Opinion
Civil Action No. 03-1529 (SRC).
August 11, 2004
OPINION and ORDER
This matter comes before the Court upon Plaintiff Mr. Tecchio's submission of a "Statement of Evidence Pursuant to F.R.A.P. Rule 10(b)(1)(B), 10(b)(2) and 10(c)" and the government's response and objection to certain elements of Mr. Tecchio's submission.
While Mr. Tecchio made this submission to the Third Circuit Court of Apeals, it was referred back to this Court pursuant to Federal Rule of Appellate Procedure 12(e) which states in pertinent part that "[i]f any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to that court and the record conformed accordingly."
Federal Rule of Appellate Procedure 10(c) states in pertinent part that "[i]f the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection." In this matter there was never a hearing, trial or other oral proceeding. The docket includes all of the submissions made before the Court, the Court's opinions and orders, and no additional submission for consideration on appeal is appropriate. See Kowalski v. Doherty, Wallace, Pillsbury and Murphy, Attorneys at Law, 787 F.2d 7, 8 (1st Cir. 1986) (finding that Rule 10(c) of the Federal Rules of Appellate Procedure applies only where there has been a hearing, and where there has been no hearing the court of appeals is to consider only those written decisions that were before the district court when it rendered its decision); Landy v. Federal Deposit Ins. Corp., 486 F.2d 139, 150 (3d Cir. 1973) (finding that normally the court of appeals will consider the record only as it existed at the time the court below made the order dismissing the action); United States v. Elizalde-Adame, 262 F.3d 637 (7th Cir. 2001) (finding that the rule is not designed to enable the losing party to add new material to collaterally attack the district court's judgment). Therefore, the record submitted to the court of appeals for its consideration should be consistent with Federal Rule of Appellate Procedure 10(a) which states that the record on appeal consists of "(1) the original papers and exhibits filed in the district court; (2) the transcript of proceedings, if any; and (3) a certified copy of the docket entries prepared by the district clerk." Plaintiff's submission, however, includes documents that were not presented to nor filed with this Court, and defense counsel objects to their submission for consideration at this time.
Emphasis added.
ORDERED that Plaintiff's "Statement of Evidence Pursuant to F.R.A.P. Rule 10(b)(1)(B), 10(b)(2) and 10(c)" is hereby stricken by this Court.