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                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 12-13417
                     ________________________

              D.C. Docket No. 1:11-cr-00060-ODE-RGV-2


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JOSE REYES,
a.k.a. Tulile,
JOHANN BRITO,
a.k.a. Pi,
ALBERT ESPINAL,
a.k.a. Remy,

                                                      Defendants-Appellants.

                     ________________________

              Appeals from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                           (January 5, 2015)
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Before WILSON and ROSENBAUM, Circuit Judges, and CONWAY, * District
Judge.

PER CURIAM:

       In this multi-defendant criminal appeal, Defendants-Appellants Jose Reyes,

Albert Espinal, and Johann Brito appeal their convictions and sentences for various

robbery, drug, and firearm-related offenses. Collectively, Appellants raise more

than twenty issues in this appeal. We find that only one issue—Appellants’ claim

that the trial judge failed to swear the jury—warrants any discussion.

                                  I. BACKGROUND

       Trial in this case began on February 13, 2012. After more than a day of jury

selection, the district court empaneled a jury and Appellants made opening

statements on February 14, 2012. The trial lasted more than two weeks, eventually

concluding on March 1, 2012, when the jury returned guilty verdicts against all

three Appellants. After trial, the district court sentenced Appellants to terms of

imprisonment varying from 240 to 840 months. Appellants timely appealed. On

November 5, 2012, the trial court reporter filed official transcripts of the trial and

sentencing proceedings. Shortly thereafter, on November 26, 2012, the district

court clerk filed a certificate of readiness of record on appeal.




       *
          Honorable Anne C. Conway, Chief Judge, United States District Court for the Middle
District of Florida, sitting by designation.
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      On December 30, 2013, more than a year later, Espinal filed his initial brief

in this court, arguing, inter alia, that the jury had never been sworn by the trial

court. Espinal asserted that this defect rendered the entire trial a nullity. In support

of this argument, and attached to his initial brief, Espinal filed (1) affidavits from

himself and Brito swearing that, based on their review of the trial transcript and

minute sheet entries, the district court did not swear the jury, (2) the minute sheet

entry from February 14, 2012, which does not show that the jury was sworn, and

(3) an affidavit from Espinal’s trial counsel swearing that, upon his review of the

transcript, it is clear to him that the trial jury was never sworn. Appellants Brito

and Reyes subsequently adopted this enumeration of error.

      On February 20, 2014, after Espinal filed his initial brief, the district judge

issued an order of certification pursuant to Federal Rule of Appellate Procedure

10(e)(2)(B), certifying as true and accurate a supplemental transcript of the

proceedings of February 14, 2012. The certification order stated that correction of

the transcript was warranted based on the discovered omission in the original

transcript of the swearing of the jury. The district court stated that the court

reporter’s stenographic notes reflected that the jury was, in fact, sworn after it had

been empaneled and before opening statements, but that indication of

administration of the oath was inadvertently omitted from the official record. The

court certified that the oath administration is properly reflected in the supplemental

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transcript. The district court’s order also reflects that it had been prepared by

counsel for the government.

       On March 19, 2014, the government filed its response brief in this appeal,

arguing that, notwithstanding that the original certified record failed to reflect that

the jury had been sworn, the corrected supplemental transcript showed that the

district judge did administer the jury oath. The government attached an affidavit to

its response brief from the trial court reporter who swore that his stenographic

notes “clearly contain [his] notation that [the district judge] requested that the

Courtroom Deputy swear the jury and that the oath was administered to the jury

shortly after it was empaneled and before opening statements.” The court reporter

further swore that in comparing his stenographic notes to the transcript he prepared

from the February 14, 2012, court proceedings, he discovered that any mention of

the jury being sworn was inadvertently omitted from the record. The court reporter

stated that he prepared a corrected transcript, which he then submitted to the

district court for certification.

                                     II. ANALYSIS

       The government argues that the jury oath administration issue is moot

because the court reporter merely overlooked his notation that the jury was sworn

and, upon discovery, the district court certified a corrected transcript which

reflected that the court swore the jury. By way of reply, Appellants do not concede

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that the issue is moot. Instead, Appellants take issue with the certified corrected

transcript in that the district judge supplemented the record (1) after the record had

been certified as true and correct in this Court, (2) after Appellants filed their initial

briefs, (3) ex parte with counsel for the government, (4) without any open and

public hearing, (5) without notice to Appellants, and (6) while this Court retained

jurisdiction over the case. Relying on the former Fifth Circuit’s opinion in United

States v. Selva, 546 F.2d 1173 (5th Cir. 1977), 1 Appellants argue that remand to

the district court for an evidentiary hearing on the issue is appropriate. Appellants

further argue that the district court and counsel for the government should be

disqualified from the case upon remand, and that a special master should be

appointed to conduct the evidentiary hearing.

       Federal Rule of Appellate Procedure 10(e)(2) states:

       If anything material to either party is omitted from or misstated in the
       record by error or accident, the omission or misstatement may be
       corrected and a supplemental record may be certified and forwarded:

              (A) on stipulation of the parties;
              (B) by the district court before or after the record has been
              forwarded; or
              (C) by the court of appeals.

       Rule 10(e) specifically permits a district court to correct an accidental

omission in the record after the record has been forwarded to the appellate court.


       1
        This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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Fed. R. App. P. 10(e)(2); see also United States v. Mori, 444 F.2d 240, 246 (5th

Cir. 1971) (“Under Rule 10(e) it is clear that the district court may consider a

motion to correct the record even after appeal has been taken.”). Moreover, the

Rule does not, in itself, require an evidentiary hearing to correct such an omission.

While there have been instances when this Court has remanded a case to the

district court so that it could “conduct an appropriate hearing . . . for the purpose of

supplementing the record, if possible, to disclose what transpired during the . . .

trial,” see, e.g., Selva, 546 F.2d at 1174, those cases involved a remand so that the

district court could “attempt to reconstruct the record,” see id.

      Here, there is nothing in the record to reconstruct. The court reporter

provided a sworn statement that he recorded the jury being sworn, but

inadvertently omitted this information from the official transcript. The district

court thereafter certified the supplemental transcript based on this inadvertent

omission. As certified by the district court, the oath administration is properly

reflected in the supplemental transcript. See Mori, 444 F.2d at 246 (“The trial

judge ordered the record corrected pursuant to his recollection of the events at

issue, and that determination, absent a showing of intentional falsification or plain

unreasonableness, is conclusive . . . . Since defendant has not effectively

challenged the conclusions reached by the trial court, we must read the record [as

determined by the trial court].”). Therefore, inasmuch as Appellants argue that the

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district court erred in failing to hold an evidentiary hearing, the district court did

not abuse its discretion. See United States v. Brown, 441 F.3d 1330, 1373 (11th

Cir. 2006) (evaluating district court’s failure to hold an evidentiary hearing in

evaluating a Rule 10(e) motion for an abuse of discretion); cf. United States v.

Pagan-Ferrer, 736 F.3d 573, 582 (1st Cir. 2013) (stating that Rule 10(e) “requires

that the district court settle the matter, not that it hold an evidentiary hearing”);

Mori, 444 F.2d at 246 (noting that there was no need for a full evidentiary hearing

on Rule 10(e) motion).

      With respect to Appellants’ argument that they were not given proper notice

or an opportunity to respond to the correction of the record, such notice and an

opportunity to respond does not apply to the district court’s correction of the record

on its own motion based on an inadvertent omission. Rather, Appellants would be

given that opportunity if (1) the record was reconstructed by a party, or (2) a

dispute between the parties regarding the record was submitted to the court by one

of the parties. Compare Fed. R. App. P. 10(c) (allowing party to respond to

statement of evidence that has been reconstructed), and Fed. R. App. P. 10(e)(1)

(discussing disputes regarding the record being “submitted to and settled by” the

court), with Fed. R. App. P. 10(e)(2)(B) (allowing the district court to correct error

omitted by error or accident).




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      Finally, to the extent Appellants challenge the Rule 10(e) order on the

ground that it was ex parte, the only basis for doing so appears to be that the

district court requested the government to draft a proposed Rule 10(e) order

addressing the court reporter’s disclosure. Although we have “repeatedly

condemned the ghostwriting of judicial orders by litigants,” particularly after an ex

parte communication between the court and one party, we have also explained that

we will vacate such orders “only if a party can demonstrate that the process by

which the judge arrived at them was fundamentally unfair.” In re Colony Sq. Co.,

819 F.2d 272, 274-76 (11th Cir. 1987). On this record, we do not find that

Appellants have satisfied this burden. The district court relied entirely on its court

reporter’s sworn affidavit in its order certifying the corrected transcript. The court

reporter’s affidavit, in turn, certified that the court reporter’s detailed notes of the

trial “contain[ed] [his] notation that [the district judge] requested that the

Courtroom Deputy swear the jury and that the oath was administered to the jury

shortly after it was empaneled and before opening statements.” The court reporter

has no interest in the proceedings other than to serve the court. He is not paid by

nor does he share any other interest with any party before the court. Appellants

have presented no evidence at all to suggest that the district court’s reliance on its

own court reporter’s sworn affidavit to certify the record was somehow

fundamentally unfair. Under these circumstances, we find no reversible error.

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                               III. CONCLUSION

      The district court did not abuse its discretion in modifying the record under

Rule 10(e) or in failing to hold an evidentiary hearing on the jury oath issue.

Accordingly, remand is not necessary and Appellants’ request for disqualification

of the district court and government counsel on remand is moot. We find no merit

to the remaining arguments Appellants raise in this appeal.

      AFFIRMED.




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