Kaboni Savage v. United States

Federal Rule of Appellate Procedure 10 affords litigants multiple tools to ensure a complete appellate record. Rule 10(c) states that if a hearing transcript is unavailable, “the appellant may prepare a statement of the … proceedings from the best available means,” which must then be served on the appellee for objection and presented to the district court for settlement. Under Rule 10(e)(2), material omissions from the record “may be corrected and a supplemental record may be certified” on “stipulation of the parties,” by “the district court,” or “by the court of appeals.” In this federal capital case, the Third Circuit held that when an appellant lacks any “means” to “prepare a statement of” untranscribed “proceedings” under Rule 10(c), the district court has no obligation to assist in reconstructing those proceedings unless the appellant first files a declaration “saying he does not remember what happened.” The court of appeals further held that when an appellant wishes to review and supplement the record with undocketed trial correspondence in the district court’s possession, he must first show how the correspondence would “give rise to ‘any difference[s]’ about whether the record truly discloses what occurred in the district court.” The question this case presents is: Whether the Third Circuit properly held—in conflict with decades of federal practice endorsing flexible procedures to assemble a complete record on appeal—that an appellant seeking a complete appellate record must overcome procedural impediments lacking any basis in Rule 10’s text.