Editors Choice

Supplementing the Record in the Federal Courts of Appeals. What If the Evidence You Need Is Not in the Record?

The general rule of a closed federal appellate record is not absolute. There are 3 general exceptions which are discussed in this scholarly legal paper.



George C. Harris* and Xiang Li**

*Litigation Partner, Morrison & Foerster, San Francisco.

**Litigation Associate, Morrison & Foerster, San Francisco.


The federal courts of appeals review district court orders and judgments on the basis of a closed record, which is limited to materials in the record when the district court made the decision under review.1 This limitation is “fundamental” because appellate courts “lack the means to authenticate

documents” and must rely on the district court’s designation of submitted documents as part of the record.2 “Litigants who disregard this process impair [the courts’] ability to perform [their] appellate function.”

But what if highly relevant documents on the key issue of intent come to light after the district court has dismissed your client’s contract case on summary judgment? And what if the newly uncovered documents were responsive to discovery requests and within the possession of the opposing party? Are you simply out of luck? Or are there ways to supplement the record on appeal with those documents? What if a new witness comes forward with potential testimonial statements  that strongly refute a key finding of fact made against your client in the district court? Is there anything you can do to get the court of appeals to consider a sworn statement by the witness?

Fortunately, the general rule of a closed appellate record is not absolute. Attorneys requesting that federal courts of appeals consider materials not in the district court record can rely on three  possible  avenues  to  supplement   the  record  on  appeal:

(1) Rule 10(e)(2)(C) of the Federal Rules of Appellate  Procedure,  (2) Rule 201 of  the Federal  Rules of Evidence,  and (3) the inherent equitable authority of the federal courts of appeals.4 This article uses hypothetical scenarios to examine the various contexts in which each of these avenues may present a means of supplementing the record on appeal.

1 See e.g. Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1165 (3d Cir. 1986) (pointing out that “[t]he only proper function of a court of appeals is to review the decision below on the basis of the record that was before the district court”). A district court record includes “(I) the original papers and exhibits filed in the district court; (2) the transcripts of proceedings, if any; and (3) a certified copy of the docket entries prepared by the district clerk.” Fed. R. App. P. I0(a). Consequently, “papers not filed with the district court or admitted into evidence by that court are not part of the record  on appeal.” Barcamerica Intl. USA Trust v. Tyjield Imps., Inc., 289 F.3d 589, 593-94 (9th Cir. 2002) (citation omitted); but see Riordan v. State Farm Mut. Auto. Ins. Co., 589 F.3d 999, 1004 (9th Cir. 2009) (holding that a pretrial order delivered into the possession of the clerk was part of the record when it had been submitted for review by the court and had been referenced in a motion, even though it was not officially filed).

2 See Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003).

3 Id.

4 See id (citing Fed. R. App. P. I0(e)(2)(C) and Fed. R. Evid. 201, and listing the three exceptions to the general rule of reviewing a closed record). Rule 48 of the Federal Rules of Appellate Procedure also provides for appellate fact-finding in the form of appointing a “special master to hold hearings, if necessary, and to recommend factual findings and disposition in matters ancillary to proceedings in the court.” Fed. R. App. P. The Advisory Committee Note indicates, however, that the Rule is not intended to alter the practice of remanding unresolved factual issues to trial courts, but applies instead to ancillary matters such as the “application for fees or eligibility for Criminal Justice Act status on appeal.” Fed. R. App. P. 48, advisory comm. n. Thus, while Rule 48 allows for supplementation of the appellate record with evidence not in the district court record, its limited purpose greatly restricts the nature of the evidence permitted.

As the authors explain, the story of lawyer malpractice is really two stories. Just as Jack Heinz and Edward Laumann famously reported in their study of Chicago lawyers that the legal profession is split into two hemispheres—the large corporate and the individual services market4—so, too, are LPL claims and the LPL insurance market. Kritzer and Vidmar organize much of their discussion around these divisions. They provide illustrative examples of claims and legal issues that arise in malpractice cases, dividing them by practice areas serving individuals (e.g., personal injury, divorce) and those involving business matters.5 They then address some important preliminary issues concerning lawyer liability and LPL claims in the United States. These include the surprising fact that law­ yers are not required to carry malpractice insurance except in Oregon (and very recently, Idaho), a description of the LPL insurance markets for large firm and small firm lawyers, the bases for lawyer liability, and the legal challenges plain­ tiffs confront when bringing a malpractice claim.6 They also describe the discon­nect between lawyer malpractice and lawyer discipline.7 One consequence is that even if a lawyer is disciplined for behavior that constitutes malpractice, a client cannot recover damages for the harm caused without pursuing a separate mal­practice claim.8 And if that client sues, there is no guarantee of success.


A. Scenario 1

In a breach of contract action over an asset-purchase agreement, there is a dispute about the parties’ intent as to whether certain patent rights are included. Communications between the opposing party and third parties evidencing an intent to include the rights come to light only after the court has dismissed the case on summary judgment against your client. The communications were within the scope of discovery requests and  in the opposing  party’s possession at the time of discovery. On appeal, is there anything you can do to introduce the newly discovered communications?

  1. Rule 10(e)(2)(C)of the Federal Rules of Appellate Procedure and Rule 201 of the Federal Rules of Evidence

FRAP 10(e)(2)(C) and FRE 201 will not help you here. They apply only in very specific and narrow circumstances­ correcting inadvertent omissions under FRAP 10(e)(2)(C) or taking judicial notice of highly indisputable facts or directly related court proceedings under FRE 201.

a. Rule 10(e)(2)(C)

Intended to permit correction of the appellate record to accurately reflect what happened in the district court,5 FRAP 10 (e)(2) provides that

[i]f 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:

  • on stipulation of the parties;
  • by the district court before or after the record has been forwarded; or
  • by the court of 6
  1. See U.S. ex rel. Mulvaney v. Rush, 487 F.2d 684,687 n. 5 (3d Cir. 1973).
  2. R. App. P. IO(e)(2).

Accordingly, most federal courts of appeals interpret FRAP 10(e)(2) to allow supplementing the appellate record “only to correct inadvertent omissions, not to introduce new evidence.”7 The courts of appeals are willing to supplement the record with materials not in the district record only if the materials were relied on in the district court proceedings and would have been introduced into the district court record but for inadvertent om1ss1 on.8

For example, in Ross v. Kemp, the Eleventh Circuit permitted a deposition to supplement the record even though it had not been filed in accordance with the then-recently changed Federal Rules of Civil Procedure.9 The court found the omission inadvertent because (1) the party seeking to supplement the record had reasonably believed the deposition was filed in accordance with the Federal Rules of Civil Procedure in effect at the time of taking the deposition, and (2) both parties had relied on the deposition as part of the record in their pleadings.10 Similarly, in Brown v. Home Insurance Company, the Eighth Circuit permitted a deposition to supplement the record  when the party seeking to supplement had referenced the deposition in a motion for summary judgment but had failed to file the deposition with the district court.11

  1. See 785 F.2d 1467, 1471-72 (11th Cir. 1986).
  2. Id. 
  3. 176F.3d 1102, ll04n.2(8thCir.1999).

Even if the omission from the district court record was not inadvertent, some federal courts· of appeals allow supplementation under FRAP 10(e)(2) when (1) the proffered materials bear heavily on the merits of the issue before the court,12 (2) a new issue arises on appeal,13 (3) the subject of appellate review is a habeas petition or an appeal from an administrative proceeding,14 or (4) the proffered materials have been stipulated to by both parties.15

12. In reviewing a criminal defendant’s allegations of ineffective assistance, which were premised on trial counsel’s failure to move for suppression of particular evidence, the Second Circuit permitted supplementation of the appellate record because the government had provided defendant’s trial counsel with the materials but had never filed them with the district court. See U.S. v. Au/et, 618 F.2d 182, 185-87 (2d Cir. 1980). The Second Circuit reasoned that because the omitted materials may have been the very reason that prompted defendant’s trial counsel to forgo the motion to suppress, the court could not justify “ignoring these materials which bear heavily on the merits of [defendant’s] claim.” Id. at
187. The reader should note that permitting supplementation with materials that “bear heavily on the merits” is likely limited to the context of habeas petitions. See infra Part II(d) (discussing the courts’ demonstration of particular leniency in permitting requests by habeas petitioners to supplement the record). Otherwise, such a potentially broad exception risks undermining the general rule of a closed appellate record. A federal court of appeals may also permit supplementing the appellate record with materials that the district court excluded when that evidentiary ruling is itself on appeal. See e.g. U.S. v. Stoltz, 683 F.3d 934, 936 n. 3 (8th Cir. 2012).
13. If a new issue arises on appeal, the Third Circuit has permitted supplementation under FRAP l0(e) when both parties agreed to stipulate to a fact relating to a potential mootness barrier. Brody v. Spang, 957 F.2d I 108, 1114 n. 4 (3d Cir. 1992).
14. In cases of judicial review of administrative proceedings or habeas petitions, the federal courts of appeals have also demonstrated willingness to supplement the record with materials from state courts or agency proceedings, even if they were omitted from the district court record. See M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 641 n. 8 (9th Cir. 2005) (granting supplementation of the appellate record with testimony from the administrative proceeding because a reviewing court must examine the administrative record as a whole, even if the district court record did not include the testimony in question); Crockett v. Hulick, 542 F.3d 1183, 1188 n. 3 (7th Cir. 2008) (granting supplementation of the record with jurors’ affidavits and accountability instruction from a habeas petition).
15. See Williams v. Drake, 146 F.3d 44, 50 n. 6 (1st Cir. 1998) (noting that “[a]lthough the trial transcript is silent on the magistrate’s response to the removal request, the parties have filled the gap by stipulating to the substance of the magistrate’s reply,” and accepting that stipulation); Jeffrey C. Dobbins, New Evidence on Appeal, 96 Minn. L. Rev. 2016, 2034 (2012) (“Courts and commentators will occasionally suggest that stipulation by the parties can permit a court to consider evidence that was not before the trial court.”); but see also id. (“On the other hand, there is plenty of case law supporting the traditional rule, under which appellate courts will refuse to consider supplemental evidence on appeal even when the parties are willing to stipulate to its accuracy and to its inclusion in the appellate record.”); cf Jones v. Jackson Natl. Life Ins. Co., 819 F. Supp. 1385, 1387 (W.D. Mich. 1993) (refusing to augment district court record on the basis of parties’ stipulation, and pointing out that “[t]o the extent there may be an ‘inherent equitable power’  to supplement the record exceeding the power provided in  Rule 10(e),  such power is to be exercised  not by this Court, but by the Court of Appeals”) (citations omitted). See infra Part II(a)(2) for a discussion of courts’ inherent equitable power. Individual courts may also have local rules that permit supplementation of the appellate record with unopposed materials. See e.g. Duvall, 530 Fed. Appx. at 806 n. I (noting that “[u]nder its authority pursuant to Tenth Circuit Rule 27.3(A)(3), the  clerk  granted  the  unopposed  portion  of  Ms.  Duvall’s  motion [to supplement]”).

But aside from those specific exceptions, federal courts of appeals generally interpret FRAP 10(e) to permit supplementation only to correct inadvertent omission and not to add to the appellate record matters not considered by the district court.16

b. Rule 201

Under FRE 201, federal courts of appeals can take judicial notice of highly indisputable facts or other court  proceedings that directly relate to the issues on appeal. The general rule of appellate review based on a closed record “is subject to the right of an appellate court in a proper case to take judicial notice of new developments not considered by the lower court.”17 Parties may in consequence seek to supplement the appellate  record with new materials that meet the FRE 201 requirements.

The Rule provides that, at any stage of the proceedings, a federal court of appeals may take judicial notice of “adjudicative facts” that are not subject to reasonable dispute because they are “generally known within the territorial jurisdiction of the trial court” or “can be accurately and readily determined  from sources whose accuracy cannot reasonably be questioned.”18 Thus, a “high degree of indisputability is the essential prerequisite” to courts’ taking judicial notice.19

16. See Brock A. Swartzle, Using “Inherent Equitable Authority” to Expand the Record on Appeal, App. Prac. J. I, 3 (Fall 2010).
17. See e.g. Landy v. FDIC, 486 F.2d 139, 151 (3d Cir. 1973).
18. Fed. R. Evid. 201(a), (b), (d).
19. Fed. R. Evid. 201, advisory comm. n.

In addition to highly indisputable facts relating to a pending case, the federal courts of appeals may take judicial notice of a proceeding in another court if the proceeding has a direct connection to the issues on appeal.2° For example, in review of habeas petitions, a federal court of appeals may take judicial notice of the relevant state court documents even if they  were not a part of the district court record.21

Here in Scenario 1, the documents you want to bring to the attention of the court of appeals were not inadvertently omitted from the record by the party seeking their introduction, and are not highly indisputable facts in your case or a directly related court proceeding. Thus, neither FRAP 10(e)(2)(C) nor FRE 201 will be a basis to supplement the record with those documents.

2.  Inherent Equitable Authority

What about the court’s inherent equitable authority? Parties may request that the court exercise its inherent equitable authority to supplement the appellate record when changes  in the law affect the outcome or when changes in the facts affect  the suitability of injunctive relief or the court’s subject-matter jurisdiction. And, even in the absence of such changed circumstances, courts are inclined to exercise inherent equitable authority if supplementing the record will advance the principles of fairness, truth, or judicial efficiency.

A majority of circuits recognize the existence of the courts’ equitable authority to supplement the appellate record as justice requires regardless of inadvertent omission, though the courts rarely exercise that power absent extraordinary circumstances.22

20. See Philips Med. Sys. Intl., B.V. v. Bruetman, 982 F.2d 211, 215 (7th Cir. 1992).
21. See White v. Gaetz, 588 F.3d 1135, 1137 n. 2 (7th Cir. 2009) (taking judicial notice of state court transcript); Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2002) (taking judicial notice of the tolling period based on documents in state case that had a direct relationship to federal habeas appeal); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (taking judicial notice of appellees’ guilty pleas because they “are most relevant and critical,” involving “the very property and issues involved in this proceeding”).
22. See Ross, 785 F.2d at 1474-75; see also Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 227 (3d Cir. 2009); Adan, 437 F.3d at 388 n. 3; Gibson v. Blackburn, 744 F.2d 403, 405 n. 3 (5th Cir. 1984); Turk v. U.S., 429 F.2d 1327, 1329 (8th Cir. 1970); Lowry, 329 F.3d at 1024 (referring to “unusual circumstances”); Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1110 n. 11 (10th Cir. 2010) (recognizing power but declining to exercise it); U.S. v. Kennedy, 225 F.3d 1187, 1192 (10th Cir. 2000); Dickerson v. Ala., 667 F.2d 1364, 1367 n. 5 (11th Cir. 1982); Colbert v. Potter, 471 F.3d 158, 165-66 (D.C. Cir. 2006); Go/and v. CIA, 607 F.2d 339, 371 (D.C. Cir. 1978).

Some courts have held that this authority is implicit in FRAP 10(e)23 while others treat it as a part of the courts’ inherent equitable powers.24 Because FRAP lO(e) in its terms  provides for  supplementation only  to  correct  inadvertent  omission, this article categorizes such equitable authority as an exercise of inherent power.

The Sixth Circuit has slowly trended towards  embracing the concept of inherent equitable authority to supplement the appellate record, and, in particular, has recently exercised the power in reviewing habeas petitions.25 While willing to allow supplementation based on inherent equitable authority in some circumstances, the Eleventh Circuit has made it clear that exercise of this inherent power  is “entirely inappropriate” when a federal court of appeals reviews a case for plain error and examines the record before the district court for error that is “clear or obvious.”26

A federal court of appeals exercises its inherent equitable authority to supplement the record when (1) changes in the pertinent law affect the outcome,27 or (2) changes in the facts alter either the suitability of injunctive relieF 8 or the court’s subject-matter jurisdiction.29 In the absence of these specific circumstances, the court evaluates every request for supplementation on a case-by-case basis and considers whether supplementation advances the principles of fairness, truth, or judicial efficiency.30 A stronger showing for one factor  may offset a weaker showing for another factor.31

23. See e.g. Au/et, 618 F.2d at 187; Mill Bridge V. Inc. v. Benton, 496 Fed. Appx. 170, 174 n. 5 (3d Cir. 2012) (“We have recognized that in limited circumstances, we may have the equitable power under Federal Rule of Appellate Procedure JO(e) to allow a party to supplement the record with documents that were not presented to the District Court.”).
24. See e.g. Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 n. 4 (I Ith Cir. 2003);
Lowry, 329 F.3d at 1024; see also Dobbins, supra n. 15, at 2035.
25. Compare In re Fisher, 296 Fed. Appx. 494, 503 (6th Cir. 2008) (“(W]e need not decide whether to recognize an inherent authority to supplement the record.”), with U.S. v. Murdock, 398 F.3d 491, 500-01 (6th Cir. 2005) (rejecting the defendant’s request to supplement the record after concluding that the equities did not demand the proffered materials be added to the record), and Thompson, 373 F.3d 688 (exercising the court’s inherent equitable power to supplement the record in the case of a habeas petitioner facing capital punishment).
26. See U.S. v. Brown, 526 F.3d 691, 707 (I Ith Cir. 2008) (describing the court of appeals as “looking over the trial judge’s shoulder, examining what was before the judge,” noting that the affidavit in question “was not before the district court,” and declining in consequence “to supplement the record and consider it”), vacated and remanded, 556 U.S. 1150 (2009).
27. The Supreme Court has held that courts of appeal are required to “consider any change, either in fact or in law, which has supervened” since the disputed decision was issued. Patterson v. Ala., 294 U.S. 600, 607 (1935); Watts, Watts & Co. v. Unione Austriaca Di Navigazione, 248 U.S. 9, 21 (1918). In a case in which these changes alter the suitability of the outcome or of any injunctive relief, the court of appeals may remand the case to the district court to supplement the record. See Adan, 437 F.3d at 389 n. 3; Gomez
v. Wilson, 477 F.2d 411, 416-17 (D.C. Cir. 1973) (denying request for supplementation on appeal but remanding for supplementation of the pleadings below in light of changes in the law). Alternatively, in a case in which the “new situation demands one result only, and discretion could not be exercised either way,” the court of appeals may choose to supplement the record with information about the new facts rather than to remand the case to the district court. Korn v. Franchard Corp., 456 F.2d 1206, 1208 (2d Cir. 1972) (taking into consideration a recent substitution of attorneys, which “drastically alter[ed] the nature of the case”); but see Natl. Wildlife Fedn. v. Natl. Marine Fisheries Serv., 422 F.3d 782, 799-800 (9th Cir. 2005) (“[W]e conclude that there are issues that have arisen after the issuance of the preliminary injunction that may require modification of the district court order. It is inappropriate for us to decide those questions for the first time on appeal, and we therefore deny the parties’ motions to supplement the record.”).
28. See supra n. 27 (collecting cases) and accompanying text.
29. A federal court of appeals may also exercise its inherent equitable authority to supplement the record with facts that divest it of subject-matter jurisdiction. See Lowry, 329 F.3d at 1024 (pointing out that “[c]onsideration of new facts may even be mandatory, for example, when developments render a controversy moot and thus divest us of jurisdiction”); Acumed, 561 F.3d at 226 n. 25 (recognizing that “sometimes a case becomes moot on appeal by reason of circumstances arising after the completion of a case in a district court,” and noting that “[s]uch circumstances can and should be brought to the attention of the court of appeals”). Only post-judgment changes in the facts, however, can be supplemented and considered if the question of subject-matter jurisdiction was already before the district court. Compare Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1555 (I Ith Cir. 1989) (describing the consideration of “the existence of subject matter jurisdiction” as requiring “a consideration of all relevant information … necessary to make an informed and final decision,” and concluding that “[i]n the interest [of] judicial economy, supplementation is necessary for a final disposition of this issue and to avoid remand on all issues”), with Rio Grande Silvery Minnow, 601 F.3d at 11 JO n. 11 (denying motion to supplement the record with facts that show the case was moot before the trial court’s judgment). If the question of subject-matter jurisdiction was not before the district court at the time of the disputed decision, the court of appeals may consider the facts­ even though they were not a part of the district court record-because it is deciding whether the case before it is moot, rather than reviewing the district court’s decision. See Cedar Coal Co. v. UMW, 560 F.2d 1153, 1166 (4th Cir. 1977) (“We think [the evidence] may be considered in ascertaining whether the cases are moot because there was no
mootness question before the district court, so we are not reviewing that. Rather, we are deciding whether the cases are now moot.”); but see KNC Investments, LLC v. Lane’s End Stallions, Inc., 504 Fed. Appx. 467,468 (6th Cir. 2012) (remanding to the district court for a determination of whether “factual events” that occurred after the district court’s decision rendered the controversy moot because the “district court is best suited to find any relevant facts and to determine in the first instance whether a live controversy remains”).
30. In Ross, the Eleventh Circuit articulated three factors that courts should consider in determining whether to exercise their inherent equitable authority to supplement the record:
(1) whether “acceptance of the proffered material into the record would establish beyondany doubt the proper resolution of the pending issue,” (2) whether remand of the case would be “contrary to both the interests of justice and the efficient use of judicial resources,” and (3) whether the inherent judicial powers of the court in habeas petitions dictate supplementation. Ross, 785 F.2d at 1475 (quoting Dickerson v. Ala., 667 F.2d 1364, 1367, 1368 (11th Cir. 1982)). These Ross factors, coupled with factors considered by other federal courts of appeals when exercising their inherent equitable authority to supplement the record, relate conceptually to the advancement of principles fundamental to the function of the judiciary: fairness, truth, and judicial efficiency. See Wa”en v. Pollard, 2012 WL 3234999, at *2 (E.D. Wis. Aug. 6, 2012) (referring to inherent equitable power and concluding that a court “may enlarge the record in unique cases when it believes the interests of justice are at stake”).
31. See Gibson, 744 F.2d at 405 n. 3 (quoting Dickerson and exercising inherent equitable authority to supplement the record because the “proper resolution of [the] issue is not in doubt, and remanding to the district court ‘would be contrary to both the interests of justice and the efficient use of judicial resources”‘); Caba/ceta, 883 F.2d at 1555 (recognizing that an application of the Ross factors “militates toward a denial” of the request to supplement, but deciding that “the overall circumstances compel the court to allow supplementation”); Ross, 785 F.2d at 1475-77 (exercising inherent authority to supplement the record because the “interests of justice will best be served” due to the misrepresentation by state officials, even though there was no showing of the first Ross factor).

In Scenario 1, a strong case can be made for supplementing the record because including the materials bears heavily on the fairness of the adjudication. At least two federal courts of appeals have permitted supplementation when misconduct by the non-proffering party directly caused the proffered materials to be absent from the district court record. In Ross, a habeas case, the Eleventh Circuit remanded for supplementation when state officials misrepresented their custody of the evidence in question, thereby preventing its earlier discovery and introduction into the state trial court and federal district court records.32 In Mangini v. United States, the Ninth Circuit permitted supplementation because the non-proffering party’s failure to provide all the relevant facts when a district court judge’s impartiality was called into question deprived the district court judge “of the opportunity to exercise informed discretion” in determining whether he should have disqualified himself from adjudicating the case.33

32. 785 F.2d at 1474-78.
33. 314 F.3d 1158, 1160-61 (9th Cir. 2003) (permitting supplementation of the record with documents establishing that the district judge’s brother-in-law had acted as a lawyer for one of the parties below, although he had apparently not appeared before the judge, who was unaware of his relative’s participation in the case). The Mangini court did not discuss under what authority the court permitted the supplementation, but it is likely that the record was supplemented under the court’s inherent equitable authority because the proffered materials would have been unlikely to qualify as having been inadvertently omitted under FRAP 10(e)(2) or as relevant to a highly indisputable fact under FRE 201.

In both Ross and Mangini, however, the court seemed to infer bad faith on the part of the party that had withheld the proffered materials. It is unclear whether an honest mistake (e.g., oversight) by opposing counsel in Scenario 1 will be enough to invoke the court’s inherent equitable authority.

B. Scenario 2

In dismissing on summary judgment a wrongful death action brought by your client, the court held that a reasonable trier of fact could not find that the defendant caused your client’s spouse’s death. A witness comes forward willing to testify that the defendant has confessed to intentionally killing the spouse. On appeal, is there anything you can do to introduce the new witness’s affidavit?

1 Inherent Equitable Authority

FRAP 10(e)(2)(C) and FRE 201 are unlikely to apply  in this case, as the omission was not inadvertent and you are not seeking to introduce highly indisputable facts. Under their inherent equitable authority, however, at least two federal courts of appeals have relied on the truth-seeking function of the judiciary to permit supplementation of evidence disputed  by both parties. In Colbert, the D.C. Circuit permitted supplementation because the proffered front side of a  receipt, not entered into the district court record with its reverse side, went “to the heart of the contested issue” and pretending that it did not exist would have been “inconsistent with [the] court’s own equitable obligations.”34 And, in Schwartz, the Eleventh Circuit permitted supplementation because the proffered photographs were clearer copies of the proffering  party’s medical records, and allowing their supplementation would aid the court in “making an informed decision.”35

34. 471 F.3d at 166 (citation omitted).
35. 341 F.3d at 1225 n. 4.

You can argue that, in Scenario 2, the new-witness affidavit certainly  goes to the court’s  truth-seeking  function. But  in  this scenario, unlike in Schwartz and Colbert, there is no direct link between the evidence in the record and the evidence you seek to supplement on appeal. While the court in Colbert emphasized that it would be nonsensical to overlook the existence of materials that bear heavily on  the contested  issue,36 accepting the same reasoning in this scenario would create an exception that swallows the rule: An affidavit containing the testimony of the newly discovered Scenario 2 witness would  not  be connected to documents already in the record in the same way as were the reverse side of the receipt in Colbert or the second  set of photocopies in Schwartz.

C. Scenario 3

In a medical-malpractice action, you want to supplement the appellate record with your client’s x-rays, which were directly referred to and discussed in other medical records admitted onto the district court record. On appeal, is there anything you can do to introduce the x-ray records?

1 Rule J0(e)(2)(C) of the Federal Rules of Appellate Procedure

This is a scenario in which FRAP 10(e)(2)(C) may apply. To a certain extent, the district court proceedings relied upon the x-ray records since they were discussed in the medical records admitted onto the district court record. A federal court  of appeals is likely to permit supplementation under FRAP 10(e)(2)(C) if the proffering party can convince the court  that the x-ray records were inadvertently omitted from the district court record. If counsel below referenced the materials in a brief or pleading filed in the district court or during a hearing, the court of appeals may be more inclined to infer an earlier intent  to include the materials.37

36. Colbert, 471 F.3d at 166.
37. See Ross, 785 F.2d at 1471-72 (indicating that proffering party had reJied on supplemental materials in its pleadings); Brown, 176 F.3d at 1105 n. 2 (indicating that proffering party had referenced the materials in a motion for summary judgment).

Alternatively, Colbert and Schwartz (discussed above in connection with Scenario 2) suggest that federal courts of appeals will be more inclined to exercise their inherent equitable authority based on a truth-seeking rationale when some form of the proffered materials was already in the district court record.38 In Scenario 3, whether the court will choose to exercise its inherent equitable authority to supplement the record with the x­ rays will likely turn on how closely related the proffered materials are to the medical records already in the record.

D. Scenario 4

Your client has been sentenced to capital punishment for murder, and you represent him in his habeas petition before a federal court of appeals. His post-arrest breathalyzer test results are not a part of the state court record or the district court habeas record, but you seek their introduction in support of his assertion of mitigating circumstances (severe intoxication at the time of committing murder) for reduced sentencing. Can you introduce the breathalyzer test on appeal?

1 Inherent Equitable Authority in Habeas Actions

If supplementation is not already permitted under FRAP 10(e)(2) or FRE 201,39 federal courts of appeals demonstrate particular leniency with supplementing the record under their inherent equitable authority in habeas cases. In Brown v. Watters, the Seventh Circuit used its inherent equitable authority to permit supplementation of the record with the defendant’s commitment proceedings.40 And in Thompson, the Sixth Circuit used its inherent equitable authority to permit supplementation of the record when a proffered deposition was negligently omitted from the earlier record.41

38. See Colbert, 471 F.3d at 166 (noting that the back side of the proffered receipt had already been introduced into the record); Schwartz, 341 F.3d at 1225 n. 4 (pointing out that photocopies of the medical records had already been introduced into the record).
39. See supra nn. 14 and 21 and accompanying text (discussing supplementation of the record in habeas petitions under FRAP 10(e)(2)(C) and FRE 201).
40. 599 F.3d 602,604 n. I (7th Cir. 2010).
41. 373 F.3d at 691. Thompson suggests that federal courts of appeals may be particularly generous in granting requests to supplement submitted by petitioners who face capital punishment. See id. (“Because the evidence here was apparently negligently omitted … and because this is a capital case, we believe that the circumstances of this case merit consideration of the Sultan deposition pursuant to our equitable power to supplement the record on appeal, despite the omission of the deposition from the District Court record.”).

Because Thompson and Brown both involved evidence that was in the state court record but absent from the district court record, it is unclear whether a federal court of appeals would permit supplementing the record in Scenario 4, in which the breathalyzer test was absent from both the district court and state court records.

On the one hand, you could invoke the general principle established by the Supreme Court:

For the writ of habeas corpus … to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have . . . . the authority to  admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas petitioners lonf have had the means to supplement the record on review.4

On the other hand, the Seventh Circuit has denied supplementation in a habeas case where the evidence sought to be introduced was “essentially brand new” and had never been offered to the state court until after the federal habeas process had begun.43

E. Scenario 5

In a declaratory judgment action seeking recogmt10n of your client’s adverse possession of a particular plot of farm land, the complaint is dismissed without leave to amend for failure to state a claim under FRCP 12(b)(6) because the complaint alleged insufficient facts to show hostility. Your client now has uncovered communications showing that the defendant knew about and prohibited your  client’s use of the land in dispute. Can you introduce the new materials on appeal?

42. Boumediene v. Bush, 553 U.S. 723, 786 (2008) (holding that Military Commission Act’s elimination of federal courts’ jurisdiction over habeas cases pending at time of enactment was an unconstitutional suspension of the writ) (emphasis added; citation omitted). It bears noting, however, that when a state habeas petition preceded the habeas claim before a federal court of appeals, the Supreme Court has ruled that a petitioner seeking relief under § 2254(d)(1) is restricted to the record before the state court that adjudicated the same claim. Cullen v. Pinholster, _U.S._,_, 131 S. Ct. 1388, 1399 (2011) (limiting§ 2254(d)(l) review to the record in the state court because “[i]t would be contrary to [the statutory] purpose to allow a petitioner to overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed by that court in the first instance effectively de nova”) (emphasis in original).
43. George, 586 F.3d at 486 n. l.

1 Inherent Equitable Authority

In Scenario 5, the lower court has dismissed your client’s complaint on the face of the pleadings without leave to amend. Federal courts of appeals have held that a plaintiff appealing an FRCP 12(b)(6) dismissal may request that the court consider extra-record materials, without assigning them evidentiary weight, in determining whether the complaint should have been dismissed without leave to amend. In Orthmann v. Apple River Campground, Inc.,44 for example, the Seventh  Circuit considered evidence produced during discovery in a parallel  case but never introduced at trial in the case on appeal.

As Judge Posner explained in Orthmann, although the materials presented for the first time on appeal were “no part of the official record,” the appellant, hoping “to show that the complaint should not have been dismissed on its face” could present “an unsubstantiated version of the events,” so long  as that story “was not inconsistent with the allegations of the complaint.”45 The supplemental materials had, he noted, “no standing as evidence but [were] usable to show how the accident might have happened.”46 Thus, here in Scenario  5, you  should be able to rely on the recently discovered  communications, not as record evidence, but to show how hostility might have been established and, accordingly, why the district court should not have dismissed your client’s complaint on its face without leave to amend.

44. 757 F.2d 909 (7th Cir. 1985); see also Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 177 n. 2 (3d Cir. 2000) (noting that “as the complaint references and relies on the content of certain documents,” the court would “consider them” on appeal); Highsmith v. Chrysler Credit Corp., 18 F.3d 434,439 (7th Cir. 1994) (“This court has held that when reviewing 12(b)(6) motions, we will consider new factual allegations raised for the first time on appeal provided they are consistent with the complaint.”).
45. Orthmann, supra n. 46, at 914-15.
46. Id. at 915


A party seeking to supplement the appellate record should proceed by motion or formal request so that the court and opposing counsel are properly apprised of the status and contents of the evidence in question.47 lmpro er procedures in seeking supplementation may invite sanctions. 8 When a federal court of appeals permits supplementation under FRAP 10(e)(2) or FRE 201, it directly supplements the record with or takes judicial notice of the new materials.49 Upon a request to supplement the record under the court’s inherent equitable authority, however, a federal court of appeals may remand the case to the district court to supplement the record; or, if the issue can be readily decided without remand, the court of appeals may supplement the record directly to conserve judicial resources.50

47. See Lowry, 329 F.3d at 1025; Jones v. White, 992 F.2d 1548, 1567 (I Ith Cir. 1993) (noting, in a case in which supplementation was allowed, that it had previously been denied “when a party ha[d] failed to request leave of this court to supplement a record on appeal or ha[d] appended material to an appellate brief without filing a motion requesting supplementation”).
48. See e.g. Lowry, 329 F.3d at 1025-26 (imposing monetary sanctions for unilaterally supplementing the record).
49. See e.g. Brody, 957 F.2d at 1114 n. 4; Crockett, 542 F.3d at 1188 n. 3; White, 588 F.3d at 1137 n. 2; Smith, 297 F.3d at 815.
50. See Colbert, 471 F.3d at 166 (“Normally, supplementation of the record is effected by remanding the case to the District Court to allow that court to order the introduction of new evidence. Certainly, we could have remanded this case to the District Court with instructions to obtain and review [the newly supplemented evidence]. However, remand for such a ministerial task, which this court easily can perform itself, would serve no good purpose and would ultimately amount to a waste of judicial resources.”) (internal citations omitted); Gibson, 744 F.2d at 405 n. 3 (quoting Dickerson v. Ala., 667 F.2d 1364, 1367 (11th Cir. 1982), and exercising inherent equitable authority to supplement the record when the “proper resolution of [the] issue is not in doubt, and remanding to the district court ‘would be contrary to both the interests of justice and the efficient use of judicial resources”‘).


A party seeking to supplement the appellate record with materials not introduced in the district court record may move or formally request that a federal court of appeals correct an inadvertent omission under FRAP 10(e)(2), take judicial notice of a highly indisputable fact under FRE 201, or expand the appellate record under its inherent equitable authority. Supplementation under FRAP 10(e)(2) is generally limited to materials relied upon in the district court that would have  been in the district court record but for inadvertent omission. Judicial notice under FRE 201 is generally limited to highly indisputable facts or judicial proceedings that bear a direct connection to the issues on appeal.

A party seeking supplementation with materials that do not fall within the scope of FRAP 10(e)(2) or FRE 201 can seek to invoke the courts’ inherent equitable authority to supplement the record. The federal courts of appeals generally exercise their inherent equitable authority to permit supplementation if (1) post-judgment changes in the law affect the suitability of the outcome, (2) post-judgment changes in the facts alter the suitability of injunctive relief, (3) post-judgment changes in the facts divest the court of its subject-matter jurisdiction, or (4) the court is convinced, after factoring in the principles of fairness, truth, and judicial efficiency, that the balance of equities tips in favor of supplementation.

So, if the evidence you need to make your case in a federal court of appeals is not in the district court record, don’t despair without considering these alternatives. Even if you do not meet the requirements of FRAP 10(e)(2) or FRE 201, you may be able to persuade the appellate court that fairness, truth, or judicial efficiency will be served by considering the missing evidence.

No. 01-35273.

Argued and Submitted November 4, 2002.

Filed January 9, 2003. 

Sue Ann Love, Jardine, Stephenson, Blewett Weaver, P.C., Great Falls, Montana, for the defendant-appellant.

Francis X. Clinch, Jardine, Stephenson, Blewett Weaver, P.C., Great Falls, Montana, for the defendant-appellant.

Joseph P. Cosgrove, Hoyt Blewett, Great Falls, Montana, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, Chief District Judge, Presiding. D.C. No. CV-99-00061-DWM.

Before TROTT, T.G. NELSON and THOMAS, Circuit Judges.


TROTT, Circuit Judge:

Dick Gottsegen, doing business as Timberline Adventures, also known as Timberline Bicycle Tours (collectively “Timberline”), appeals the district court’s judgment, following a bench trial, finding the United States and Timberline liable for negligently failing to warn Elaine Mangini (“Mangini”) of the gravel patch on which her bicycle accident occurred. We have jurisdiction pursuant to 28 U.S.C. § 1291.

In the companion case, No. 01-35275, the United States appealed the judgment of the district court. After selection for inclusion in the circuit mediation program, however, the United States dismissed its appeal.

Timberline argues that the district court abused its discretion by denying Timberline’s motion to disqualify Judge Molloy. Because we conclude that facts unknown to Judge Molloy required his disqualification prior to the trial, we vacate the judgment and remand for a new trial before a different district court judge.


On July 15, 1998, while on a tour operated by Timberline, Mangini had a bicycle accident in Glacier National Park, Montana. After riding into a gravel patch on Highway 17 (also known as Chief Mountain Highway), Mangini pitchedover the  top of her handle bars and suffered serious physical injuries. Mangini brought a tort action in negligence against the United States and Timberline. Following a four-day bench trial on December 11, 13, 21, and 22, 2000, the district court found that the United States and Timberline negligently failed to adequately warn Mangini of the known gravel patch. The district court awarded Mangini $755,176.92, apportioning $656,675.58 to Timberline and $98,501.34 to the United States.


28 U.S.C. § 455 (“Section 455”) provides in relevant part:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

. . .

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

. . .

(ii) Is acting as a lawyer in the proceeding. . . .

28 U.S.C. § 455.


On November 14, 2000, prior to the trial, Timberline discovered that Judge Molloy’s brother-in-law, Kurt M. Jackson (“Jackson”), was a seventeen-year associate at Hoyt Blewett, the law firm representing Mangini. Mangini concedes that Jackson is the spouse of a person, Judge Molloy’s sister, “within the third degree of relationship” to Judge Molloy, as described in Section 455. 28 U.S.C. § 455(b)(5). This discovery prompted Timberline to move to disqualify Judge Molloy pursuant to Section 455 on November 20, 2000, three weeks before the start of the trial. On November 21, 2000, the late John C. Hoyt (“Hoyt”), one of two partners in Hoyt Blewett, submitted an affidavit to the district court opposing Timberline’s motion to disqualify. Jackson, moreover, submitted a similar affidavit on December 5, 2000. The affidavits did not dispute Jackson’s relationship to Judge Molloy, but attempted to avoid mandatory disqualification by averring that Jackson never appeared or acted as a lawyer in the proceeding. On the same day, the district court denied Timberline’s motion to disqualify, finding that “Jackson is not a partner in the firm and has not acted as a lawyer in this proceeding . . . He authored some correspondence that circulated among the parties before the case was filed.” (Emphasis added).


On July 26, 2001, Timberline filed a motion with this court to supplement the record on appeal with three newly discovered documents reflecting Jackson’s communication with the expert witness retained by Hoyt Blewett on behalf of Mangini: (1) a May 11, 2000, letter from Jackson to the expert witness enclosing an initial retainer fee and case information to assist the expert in evaluating the case; (2) a May 25, 2000, letter from Jackson to the expert witness enclosing evidence for the expert’s use in evaluating the case, and describing how Hoyt Blewett was attempting to obtain an extension on the deadline for expert reports and disclosures; and (3) a record from the expert’s office that listed Jackson as the expert’s contact for the Mangini case. Jackson clearly wrote the two letters after Mangini filed her complaint in federal court on June 22, 1999, and the documents demonstrate that Jackson acted as a lawyer in the proceeding. Accordingly, in a separate Order, we granted Timberline’s motion to supplement the record on appeal to  correct the material misstatement in the record created by Hoyt’s and Jackson’s affidavits that Jackson did not act as a lawyer in the proceeding.


Section 455(b)(5)(ii) requires disqualification under Section 455(a), even absent any evidence of actual bias. See Preston v. United States, 923 F.2d 731, 734 (9th Cir. 1991) (addressing Section 455(b)(2), which requires disqualification when the judge either served as a lawyer or a lawyer with whom he previously practiced law served as a lawyer during such association in the matter in controversy). The uncontroverted evidence in the record after our grant of Timberline’s motion to supplement shows that Jackson did act as a lawyer after Mangini filed her lawsuit. Hoyt Blewett’s characterization of Jackson’s actions as being those of a “secretary” and not a lawyer are unconvincing. Hoyt Blewett admitted at oral argument that the reason Jackson was assigned the task of communicating with the expert was because of his prior professional relationship with the expert. In addition, communicating about a case with an expert for the purpose of obtaining an expert opinion would, in almost all circumstances, constitute professional work for which attorneys fees could be awarded. See Bailey v. District of Columbia, 839 F.Supp. 888, 891 (D.D.C. 1993) (noting that consultations and outside correspondence “are not mere clerical tasks.”). We also note that the record of Jackson’s contacts with the expert is incomplete because it is limited to written correspondence, and that Hoyt Blewett categorically objected at oral argument to a possible remand for additional fact-finding on this question.

Ordinarily, we review a district court’s denial of a disqualification motion for an abuse of discretion. Kulas v. Flores, 255 F.3d 780, 783 (9th Cir. 2001) (recusal is appropriate where a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned). In this case, however, Hoyt Blewett’s failure to provide Judge Molloy with all the facts deprived him of the opportunity to exercise his informed discretion. Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 62-64 (8th Cir. 1993) (finding that the district court “suffered under a misconception that prevented a genuine application of [its] discretion to all facets” of the case where the district court thought appellee only had one trademark when it analyzed whether to issue a preliminary injunction, and appellee failed to inform the district court that it had three trademarks). Now that all the facts are properly in the record, Section 455(b)(5)(ii) clearly requires disqualification.

If we were reviewing Judge Molloy’s decision on the record that was before him, we would affirm. Based on the record before him, Judge Molloy made a proper decision, and certainly did not abuse his discretion. Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864, 871 (9th Cir. 1991).

The appropriate remedy in this case is to vacate and remand for a new trial before a different district court judge. Preston, 923 F.2d at 734-35 (after determining that the trial judge should have disqualified himself, the proper remedy was to reverse judgment and remand for a new trial because there was no way to “purge the perception of partiality” in the case). Here, as in Preston, there is no way to cure this problem because the fact remains that, unbeknownst to Judge Molloy, his brother-in-law acted as a lawyer for a tort plaintiff in an action that was tried in his court, without a jury. See Alexander v. Primerica Holdings, Inc.,  10 F.3d 155, 163 (3rd Cir. 1993) (noting special concerns about bench trials in considering judicial disqualification). Thus, Section 455 compels vacation of the judgment in this case.


Because Jackson acted as a lawyer in the proceeding before Judge Molloy, Section 455(b)(5)(ii) required his disqualification. Judge Molloy was unaware of the need to disqualify himself because of Hoyt’s and Jackson’s materially misleading affidavits and Timberline’s failure to bring the relevant documents to his attention. Now that all the facts have come to light, however, we conclude that Judge Molloy was mandatorily disqualified under Section 455(b)(5)(ii). Accordingly, the district court’s judgment is VACATED and this case is REMANDED for a new trial before a different district court judge.


No. 82-8413.

March 20, 1986. 

John Charles Boger, Jack Greenberg, James M. Nabrit, III, Joel Berger, Deborah Fins, James S. Liebman, Deval L. Patrick, New York City, Timothy K. Ford, Seattle, Wash., for petitioner-appellant.

Jan Hildebrand, Mary Beth Westmoreland, Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before KRAVITCH and JOHNSON, Circuit Judges, and LYNNE, Senior District Judge.

Honorable Seybourn H. Lynne, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation.

The principal issue before this panel is whether appellant Ross should be allowed to submit additional evidence to this court after issuance of a panel opinion and scheduling of en banc argument. The issue was presented the day preceding en banc rehearing of the case, by Ross’ motion to supplement the record with affidavits based on information obtained by attorneys in an unrelated case. Subsequent to the filing of the motion, and en banc argument, the court affirmed the district court’s denial of federal habeas corpus relief on all grounds except the one relating to the motion to supplement the record. Ross v. Kemp, 756 F.2d 1483 (11th Cir. 1985) (en banc). The en banc court did not address the motion, but remanded the case to this panel for consideration of the motion and reconsideration of Ross’ claim of unconstitutional jury composition. Id. at 1494.


Appellant Ross, a black male, was convicted of the murder of a white policeman, armed robbery, and kidnapping, and sentenced to death by an all white and all male jury on March 13, 1974. The Georgia Supreme Court affirmed his conviction and sentence on direct appeal. Ross v. State, 233 Ga. 361211 S.E.2d 356 (1974), cert. denied, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1217 (1976). In 1976, Ross filed in state court a petition for habeas corpus relief consisting of twenty-one claims, including an allegation that the grand jury which indicted him and the traverse jury which convicted and sentenced him were selected through procedures that systematically excluded blacks and women in violation of the sixth and fourteenth amendments. At the state court hearing, Ross’ attorney, Herbert Phipps, explained that when he had gone to the office of the Colquitt County clerk and requested the 1973 jury lists from which the jury venires for 1974, the year in which Ross was indicted  and tried, had been picked, the clerk told him that the lists had been destroyed. Phipps also filed an affidavit, dated October 13, 1976 (Exhibit F state habeas petition), with the state court averring that although the 1973 Colquitt County jury lists were no longer available, he had personally examined the lists in connection with other cases he had handled since 1971 and had found unconstitutional underrepresentation of blacks and women. The state habeas court rejected the merits of Ross’ jury composition claim due to lack of evidence. The Georgia Supreme Court affirmed, stating it had fully considered all of Ross’ contentions but found that he was fairly tried and convicted. Ross v. Hopper, 240 Ga. 369240 S.E.2d 850, 853 (1977), cert. denied, 435 U.S. 1018, 98 S.Ct. 1890, 56 L.Ed.2d 397 (1978).

The en banc opinion sets forth the facts of the offenses of which Ross was convicted and the other sentences imposed, 756 F.2d at 1484-85, as well as the procedural history of the case. Id. at 1484. We therefore limit this opinion on remand to the facts and proceedings relevant to the motion to supplement the record.

Phipps did not begin representing Ross until the post-trial phase.

In 1978, Ross filed a petition for federal habeas corpus relief, raising twelve claims, again including an allegation of unconstitutional jury composition, and requested an evidentiary hearing. In December, 1979, after the court granted his motion for discovery, Ross subpoenaed and deposed both the county clerk, Wilbur Murphy, who was custodian of the records, and a former member of the jury commission, Thomas Norman. Murphy testified that the jury commissioners revised the lists every two years and that his office kept the one copy of the current jury lists but discarded the old lists when the new ones were completed. He explained that was why he did not have any of the lists from 1970 through 1974. Murphy also stated that the commissioners revised the lists earlier than usual in 1977 in anticipation of an upcoming criminal drug case. He testified that he did not know why the trial judge ordered the early revision, that he believed it was just to make sure the lists were proper, and that he was not aware of any party having requested the revision. Murphy produced no documents in response to the subpoena seeking the jury lists from 1970 through 1974 and other documents identifying the race or sex of jury members in those years, but provided the 1975 and 1977 lists stating they were the only ones he had. Norman testified that the clerk was the sole custodian of the lists and that none of the jury commissioners ever had in his or her possession the entire lists, but only the portions containing the geographic area for which that commissioner was responsible and which were always returned to the clerk. He explained that the jury commissioners started afresh each time they revised the jury lists and did not simply amend the old lists. Norman corroborated Murphy’s testimony as to the selection procedures. He added that the early 1977 revision was aimed at getting a closer percentage according to race and sex, and resulted in an increase of women and blacks on the lists although he could not make an accurate estimate as to the degree of increase since 1973 because he did not have the 1973 lists and could not recall the percentage of blacks or women on those lists. He stated that his best guess was that the judge ordered the early revision. Norman did not produce any documents in response to his subpoena which requested the same documents as Murphy’s subpoena.

Mr. Norman was a member of the jury commission in Colquitt County for several years including the time period during which the jury lists and venires for Ross’ juries were created. Mr. Murphy was the clerk of the jury commissioners at the time of his 1979 deposition and apparently had been since 1965 so that he, too, had been in office during the time period relevant to Ross’ claim.

Following the depositions, Ross filed a renewed motion for an evidentiary hearing with a supporting legal memorandum arguing that the discovery depositions revealed significant new evidence on his jury claim entitling him to a hearing. At the court’s request, Ross subsequently joined in a consolidated legal memorandum supporting his motion for a hearing with two petitioners in unrelated habeas cases, addressing five common constitutional claims. On January 26 and 27, 1981, the district court held a consolidated hearing to determine what evidence the three petitioners could present and added the jury challenges to the list of  common claims. The petitioners’ joint evidence consisted of studies showing the unique harm that capital defendants experience when blacks and women are excluded from their juries because members of these two groups are statistically less likely to vote for the death penalty. As a result of the January hearing, the parties understood that the court had limited the evidence which the petitioners could present individually on the jury claims at the May 1981 hearing to showings of cause and prejudice.

After the hearings, the district court denied Ross’ petition for habeas corpus. It held that Ross had had a full and fair opportunity to present his jury claim to the state court and had not overcome the presumption of correctness accorded state court findings in federal habeas proceedings under 28 U.S.C. § 2254(d)Ross v. Hopper, 538 F. Supp. 105 (S.D.Ga. 1982). This panel of the court of appeals affirmed the district court’s denial on this ground as well as other grounds. Ross v. Hopper, 716 F.2d 1528, 1537-39 (11th Cir. 1983). The full court subsequently granted Ross’ motion for rehearing en banc, 729 F.2d 1293, and scheduled oral argument for June 12, 1984.

The district court’s first opinion denying Ross relief on his jury composition claim held that Ross had waived the claim because he had not satisfied the state requirement that grand jury composition challenges be made prior to indictment and traverse jury composition challenges be made when the jury array is put upon the defendant, nor had he made an adequate showing of cause and prejudice to overcome the default. Mitchell v. Hopper, 538 F. Supp. 77, 94-97 (S.D.Ga. 1982). The district court resolved the three petitioners’ claims with the same legal analysis relying on Francis v. Henderson, 425 U.S. 53696 S.Ct. 170848 L.Ed.2d 149 (1976), and Wainwright v. Sykes, 433 U.S. 7297 S.Ct. 249753 L.Ed.2d 594 (1977). As Ross pointed out in his motion to the district court to alter or amend judgment, this was an erroneous legal conclusion on the facts of his case because the amended version of the state statute on which the district court relied (Ga. Code Ann. § 50-127(1)) was not in effect at the time of Ross’ trial and the law that was in effect at the time of trial permitted Ross to raise the jury composition claim for the first time in collateral state proceedings. In addition, Ross argued that because the state court had addressed the merits of his claim, the federal court was not serving the interest of comity by not addressing the merits. Ross previously had set forth these same arguments for the district court in his pleadings ( see Petitioners’ Consolidated Memorandum of Law Supporting Motion for Discovery at 20), but the district court had not adopted this reasoning.

After the filing of Ross’ motion to alter or amend the judgment, the district court issued a Supplemental Opinion, Ross v. Hopper, 538 F. Supp. 105 (S.D.Ga. 1982), in which it amended its memorandum and order concerning Ross’ jury composition claim. It held that no principle of comity barred the federal court from considering the merits of the claim and vacated the portion of its first order that held differently. It denied Ross an evidentiary hearing and relief nevertheless. The district court did not have before it any statistical proffer of discrimination in Ross’ juries since Ross’ attorneys believed the necessary 1973 lists were unobtainable. They had not included Murphy’s or Norman’s deposition in their oral proffer to the district court at the hearing, either, but did file the Norman deposition with the court on the day of the May 1981 hearing.


On June 11, 1984, appellant Ross filed a motion to supplement the record of his habeas petition with four documents, copies of which have been lodged with this court. Two of the documents are depositions taken in conjunction with the district court proceedings: Murphy deposition dated December 6, 1979; Cole deposition dated December 7, 1979 relating to a different claim. The other two documents are affidavits outlining statistical evidence relevant to Ross’ claim of unconstitutional composition of Colquitt County’s 1973 grand and traverse jury venires: Friedman affidavit dated June 8, 1984; Jenkins affidavit dated June 10, 1984.

Ross now seeks a full hearing on the merits of his jury composition claim in order to develop this evidence, and argues in the alternative that we should grant relief on the merits of his jury composition claim because the proffered evidence presents a prima facie case of unconstitutional jury composition and the state has not suggested any “serious rebuttal testimony.” The state argues that the motion to supplement  should be denied, or in the alternative, remanded to the district court.

No single alternative correctly resolves all the issues raised by the motion. We find that proper disposition of the motion requires consideration of the request to supplement the record with the 1979 depositions apart from consideration of the request to supplement it with the 1984 affidavits.


According to Ross’ memorandum in support of his motion, the Murphy and Cole depositions were two of several taken by Ross’ attorneys in connection with the federal district court proceedings that they expected would be automatically filed with the district court pursuant to Fed.R.Civ.P. 30(f)(1) and the Southern District of Georgia’s Local Rules. In an affidavit (Boger affidavit dated June 8, 1984) filed in support of Ross’ motion to supplement the record, one of Ross’ attorneys stated that he and his co-counsel believed that the depositions had been automatically filed with the court and that there had not been a conscious decision to omit them from the record. He explained that they did not file these two depositions as part of their written proffers in 1981 under the then-recently changed Federal Rules because they assumed that the depositions were already a part of the record in accordance with the requirements of the Federal Rules in effect at the time of the taking of the depositions.

Fed.R.Civ.P. 30(f)(1) was amended in 1980 to provide that the automatic filing of depositions with the court could be suspended by order of the court in individual cases. Rule 5(d) was amended at the same time to provide that automatic filing of depositions with the court was no longer required if the court “on motion of a party or on its own initiative” orders that depositions not be filed unless otherwise ordered or used. The amendments did not go into effect until August 1, 1980. 85 F.R.D. 521, 525, 528 (1980). In any event, neither party has directed us to such a court order in this case.

A. Murphy Deposition

The state argues that appellant Ross should not be allowed to supplement the record with the deposition of Wilbur Murphy because there was no showing that it could not have been presented to the state habeas corpus court and because the deposition was never submitted to the federal district court. We reject the first argument: whether Murphy’s testimony could have been presented to the state court is relevant to whether the evidence conforms to one of the categories of Townsend v. Sain, 372 U.S. 29383 S.Ct. 7459 L.Ed.2d 770 (1963), requiring the district court to hold a full evidentiary hearing. At this juncture, however, we only decide whether the Murphy deposition should be included in the record, as the Norman deposition is, to be part of the evidentiary proffer aimed at persuading the district court to hold such a hearing. The second argument is without merit because the record as well as the Federal Rules of Civil Procedure in effect at the time of the taking of the deposition reveal that it was reasonable to believe that the Murphy deposition had been filed with the court.

The record reveals that Ross’ attorney explained to deponent Murphy during his deposition that the original transcript of the deposition would go directly from the court reporter to the federal court, and could be held by the court reporter for only 30 days during which the deponent could check for errors. No objection nor statement to the contrary was made by the state. The explanation was consistent with Fed.R.Civ.P. 30(e) and (f) in effect on that date which provided for automatic filing of depositions with the court by the officer before whom the deposition was taken. We find that Ross’ attorney was justified in relying on the Rule and the understanding of those present at the deposition that this procedure would be followed.

The record also reveals irregularities in the filing of the Norman deposition that indicate that the omission of the Murphy deposition was not deliberate and that the parties could reasonably have believed it had become part of the record. Finally,  both the appellant and appellees relied on the Murphy deposition in their pleadings. According to circuit precedent, it is appropriate to supplement the record with a deposition upon which parties relied even though for some unexplained reason it was not filed below. McDaniel v. Travelers Insurance Co., 494 F.2d 1189 (5th Cir. 1974); see also Clay v. Equifax, Inc., 762 F.2d 952, 955 n. 2 (11th Cir. 1985) (district court correctly considered deposition testimony that was presented in briefs and motions even though deposition not filed with court).

The record suggests that the exhibits from the Murphy deposition were filed with the court in January of 1980. They were accompanied by the Norman deposition, however, rather than the Murphy deposition. Then, in May of 1981, when additional depositions were filed to complete the proffers of evidence made at the hearing, a copy of the Norman deposition was filed for the second time with the court. The fact that the Norman deposition incorporated much of Murphy’s testimony could have reinforced the misperception that all the depositions relevant to the jury composition claim had been automatically filed. The questioning in Norman’s deposition sought Norman’s confirmation or explanation of what Murphy had already told the lawyers in his deposition earlier the same day.

Appellant Ross stated his intent to introduce testimony from the clerk in his original request for an evidentiary hearing in federal court. He specified that the clerk was one of the individuals to be deposed in his motion for discovery with supporting affidavit and notice of depositions. Subsequent to the actual taking of the deposition Ross referred to the deposition testimony, apparently believing it to be part of the record before the court, in his renewed motion for an evidentiary hearing with supporting affidavit by annexing the original request which included the clerk’s testimony in the list of evidence supporting his right to a hearing.

Perhaps the strongest indication of the reasonableness of the appellant’s belief that the Murphy deposition was part of the record is the state’s apparent belief that it was in the record and reliance on the deposition testimony in its pleadings. In its brief to this panel on December 27, 1982, in connection with our initial consideration of Ross’ appeal from the district court’s denial of relief, the state included in its description of the “deposition testimony presented to the District Court” an explanation of the substance of Murphy’s testimony and included page references to the deposition transcript. Brief for Respondent-Appellee at 24.

The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.

We find, therefore, that the Murphy deposition should be made part of the record on appeal. Our actions are authorized under Fed.R.App.P. 10(e). Under Rule 10(e), “[i]f anything material to either party is omitted from the record by error or accident . . ., the court of appeals, . . . of its own initiative, may direct that the omission or misstatement be corrected. . . .” Murphy’s deposition is undoubtedly material to Ross’ jury composition claim since Murphy, as the Colquitt County clerk, was the official custodian of the county’s jury lists. We therefore grant Ross’ motion as to the Murphy deposition. The deposition shall be made part of the record.

B. The Cole Deposition

The state does not address in its brief the issue of whether or not Ross should be allowed to supplement the record with the Cole deposition and may have read the en banc court’s remand of this case to the panel to be limited to the jury composition claim and evidence relevant thereto. The Cole deposition relates to Ross’ claim that the state deprived him of the due process guarantees set forth in Giglio v. United States, 405 U.S. 15092 S.Ct. 76331 L.Ed.2d 104 (1972). We have previously reviewed the relevant parts of the Cole deposition in our original panel opinion, Ross v. Hopper, 716 F.2d at 1536 n. 6, in connection with Ross’ Giglio claim which we denied. This holding was reinstated by the en banc court. Ross v. Kemp, 756 F.2d at 1486. In light of the limited nature of the remand and the fact that the issue to which this deposition relates has already been resolved by this court, we deny the motion to supplement as to the Cole deposition.


The two 1984 affidavits consist of statements by a statistician (Friedman), and a criminal defense attorney (Jenkins), who  were involved in a challenge to the validity of the 1975 jury lists in Colquitt County during pretrial proceedings in a 1977 criminal action (i.e., State v. Nicolai, Crim. No. 5886 (Indictment No. 11977 Super.Ct. Colquitt Co.)). Friedman sets forth in his affidavit the statistics for the racial and sexual composition of the Colquitt County jury lists in 1973 and 1975 and states that he obtained this information from either the clerk or a jury commissioner after he was retained in 1977 by Jenkins to analyze the Colquitt County jury lists that were to be used in the Nicolai case. Jenkins explains in his affidavit that he retained Friedman in 1977 and how he happened to be contacted by Ross’ attorneys in 1984.

Friedman reports that his research, which included review of the jury pool and venires from which Ross’ grand and traverse juries were selected, revealed that according to the 1970 census, the community population age eighteen and older was 18.87% black and 53.53% female, whereas the 1973 grand jury list was 6.86% black and 4.68% female, and the 1973 traverse jury list was 9.95% black and 14.92% female. He calculated the disparities as follows:1973 Grand Absolute Comparative Category Population Jury Venire Disparity Disparity 1973 Traverse Absolute Comparative Category Population Jury Venire Disparity Disparity

Jenkins attests to his participation in the Nicolai case as attorney for one of the defendants and his motion challenging the composition of the grand and petit jury lists based on Friedman’s study. Jenkins states that at the hearing on his motion in Colquitt Superior Court, the clerk, Murphy, testified along with some of the jury commissioners and Friedman, but that the state offered no rebuttal evidence. Jenkins explains that the judge indicated at the close of the hearing that in light of the showing of substantial underrepresentation he had grave doubts as to the validity of the jury lists. Jenkins subsequently learned that the lists were reconstituted. He further states that based on the information he had in 1977, all the county’s jury lists substantially underrepresented blacks and women prior to the 1977 revision. He also attests to the fact that Mr. Murphy was undoubtedly aware of the same information because Friedman conducted his investigation in the clerk’s office, and because Murphy participated in the system of selection, testified at the hearing, and subsequently participated in the revision of the lists.

Appellant does not claim that the omission from the record of the evidence contained in the 1984 affidavits was a mistake or oversight. Rather, Ross argues that his attorneys attempted to obtain the 1973 jury lists and statistics of the race and sex of those listed from state officials in 1976 and again in 1979, but were told by the state custodian of the records that the 1973 lists had been discarded in 1975. Ross’ attorneys only discovered by chance, during their preparation for argument before the en banc court in June of 1984, that the information still existed in Friedman’s files. We are faced, therefore, with a situation demanding a different analysis than the  request to add the 1979 depositions to the record. Because the information in the affidavits was not before the district court in any form, and because neither of the parties relied on the evidence at an earlier point in the proceedings, Fed.R.App.P. 10(e) is inapplicable to this portion of the motion to supplement. Appellant requests that this court exercise its inherent equitable authority to supplement the record on appeal.

As a matter of course, this court of appeals delegates authority to the clerk of this court to grant motions to supplement if the motions are uncontested and the material at issue was before the district court. 11th Cir.R. 17(c)(8). Where the parties have treated the material as if it was part of the record and later discover that for some unexplained reason it was not, we rely on the authority of Fed.R.App.P. 10(e) as in the case of the Murphy deposition discussed above. See also United States v. Page, 661 F.2d 1080 (5th Cir. 1981), cert. denied, 455 U.S. 1018102 S.Ct. 171372 L.Ed.2d 136 (1982). We do not extend that authority beyond situations where the omission was “by error or accident,” but instead recognize that it is our inherent equitable authority that is exercised in such cases. See Dickerson v. Alabama, 667 F.2d 1364, 1367 n. 5 (11th Cir.), cert. denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982). We recognize that this interpretation of Rule 10(e) conflicts with the Second Circuit’s view ( see infra note 16), however, we note that our approach is similar to that applied by other Courts of Appeals. See, e.g., Turk v. United States, 429 F.2d 1327, 1329 (8th Cir. 1970); Gatewood v. United States, 209 F.2d 789, 792-93 (D.C. Cir. 1953).

A. The Court of Appeals’ Inherent Equitable Authority to Supplement the Record

The state does not question this court’s authority to supplement the record on appeal. Both parties recognize that this court exercised such authority in Dickerson v. Alabama, 667 F.2d 1364, 1366-68 (11th Cir.), cert. denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982), when we granted the request by the petitioner therein to supplement the record on appeal with a state court trial transcript which the district court had not considered. Furthermore, this court exercised such authority previously in this appeal by our order dated January 7, 1983 granting a motion by the state to supplement the record.

Apparently, no objection was filed within the eleven days between the filing and the granting of the motion, although the motion concerned material that was not before the district court. The state’s motion to supplement pertained to its defense to Ross’ Giglio claim. The proffered material consisted of an excerpt from a murder trial of one of Ross coconspirators which took place after Ross’ trial.

The state’s only argument for denying Ross’ motion to supplement is that unlike the request in Dickerson, Ross’ motion concerns affidavits containing information “obtained in relation to the trial of a totally distinct case” in which the “instant appellee” was not involved and, therefore, never had the opportunity to rebut the evidence. We agree that the state must be provided with an opportunity to rebut the evidence, but we note that a remand to the district court would satisfy this issue.

The state asserts in its brief that the “instant appellee” did not participate in the proceedings from which the affidavit information came. At oral argument, however, the state admitted that it had been involved in the proceedings of the Nicolai case from which the information came, insofar as a state attorney testified. Regardless of the state’s role, provision for the state to rebut the evidence will ensure that it is not prejudiced by any prior nonparticipation.

There are additional concerns, however, that this court must consider before invoking our inherent equitable authority to enlarge the record and consider material that has not been considered by the court below. Such authority is rarely exercised, Dickerson v. Alabama, 667 F.2d at 1367, and this court has not articulated a general rule for when it is appropriate. Rather, we have dealt with such requests on a case-by-case basis. We have refused to supplement  the record when a party has filed supplemental material without requesting leave of this court or has appended material to an appellate brief without filing a motion to supplement. See Harris v. United States, 768 F.2d 1240, 1242 (11th Cir. 1985) (government filed diplomatic note from foreign government with court of appeals without requesting leave to do so); United States v. Bosby, 675 F.2d 1174, 1181 n. 9 (11th Cir. 1982) (government attached affidavit to its appellate brief without filing motion to supplement); Mitchell v. Trade Winds Co., 289 F.2d 278, 279 (5th Cir. 1961) (Labor Department attached file of correspondence to its appellate brief); see also Kemlon Products Development Co. v. United States, 646 F.2d 223, 224 (5th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 320, 70 L.Ed.2d 162 (1981) (denial of motion to supplement record with items from related pending litigation between same parties, relying on general proposition that “court of appeals will not ordinarily enlarge the record on appeal to include material not before the district court.”).

This approach follows the Supreme Court’s holding as to the proper treatment of issues presented to federal appellate courts but not passed on below. The Supreme Court has stated that the matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases. We announce no general rule. Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt, . . . or where “injustice might otherwise result.”

Singleton v. Wulff, 428 U.S. 106, 12196 S.Ct. 2868, 287749 L.Ed.2d 826 (1976). See also United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir. 1984) (per curiam) (refusing to consider new legal argument raised for first time in reply brief at appellate level). Ross’ case raises a slightly different question, however, since the issue of whether Ross is entitled to an evidentiary hearing was passed on below, but the evidence in the proffered affidavits does significantly affect the analysis of the issue.

The cases in which we have allowed supplementation suggest consideration of several factors in deciding whether to exercise our discretionary authority. In Dickerson, we listed three factors that convinced us to exercise our discretionary power. First, acceptance of the proffered material into the record would establish beyond any doubt the proper resolution of the pending issue. 667 F.2d at 1367. Second, remanding the case to the district court for consideration of the additional material would have been “contrary to both the interests of justice and the efficient use of judicial resources.” Id. Third, the court cited the unique powers that federal appellate judges have in the context of habeas corpus actions by virtue of 28 U.S.C. § 2254(a)Id. at 1368 n. 7. The Fifth Circuit acknowledged the significance of these first two factors in Gibson v. Blackburn, 744 F.2d 403, 405 n. 3 (5th Cir. 1984), and relied on them to justify its consideration of photographic evidence used in a pretrial identification display that was added to the record after the district court had rendered its final judgment. Both the Eighth Circuit and the District of Columbia Circuit have invoked similar “interests of justice” language. See Turk v. United States, 429 F.2d 1327, 1329 (8th Cir. 1970) (authorizing enlargement of record on appeal with preliminary hearing evidence not presented to trial court if it is “in the interest of justice” to do so); Gatewood v. United States, 209 F.2d 789, 792 n. 5 (D.C. Cir. 1953) (court of appeals considered transcript of preliminary proceedings which had not been before trial court because it was in interest of both parties and due administration of justice).

This circuit does not consider the same factors in all cases, however. In Erkins v. Bryan, 663 F.2d 1048, 1052 (11th Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 343, 74 L.Ed.2d 384 (1982), the panel allowed a party to supplement the record with documentary evidence that had been quoted in part in affidavits, but not presented in its entirety to the trial court. The only stated justification for granting the motion in that case was the fact that the other party had not objected to the motion. Id. at 1052 n. 1. In United States v. Aulet, 618 F.2d 182, 186 (2d Cir. 1980), the Second Circuit cited the convergence of the parties’ positions, in addition to the first two Dickerson factors, as a reason for allowing the government to supplement the record with copies of Jencks Act statements that had been disclosed  to the appellant but had not been presented to the trial court.

Although the Second Circuit relied on Fed.R.App.P. 10(e) rather than invoking the court’s inherent authority in Aulet, we find its rationale for exercising Rule 10(e) authority relevant to the question presented in the instant case since the Aulet court’s interpretation of Rule 10(e) indicates that the rule provides adequate authority to add material to the record even if it was not a mere error or oversight, 618 F.2d at 187, whereas in such a case this circuit looks to its inherent equitable authority rather than Rule 10(e). See supra note 12. In Dickerson we recognized this divergence in interpretations of the scope of Rule 10(e), but refused to express any view on the correct interpretation of the rule, and although citing Aulet, we relied on our inherent authority. We follow this precedent in the instant case.

B. Discussion

Ross’ case ordinarily would not constitute a situation in which it would be appropriate to exercise our inherent authority because, unlike the cases discussed above, Ross did not file his motion to supplement until after a panel of this court had already considered the issue and the parties had submitted briefs for en banc reconsideration. The motion concerns evidence relating to jury lists compiled more than ten years ago — evidence that was not included on Ross’ direct appeal, nor in his state or federal habeas proceedings. Also, Ross has not yet established, under Dickerson‘s first factor, that acceptance of the proffered material would establish beyond doubt that he is entitled to a full evidentiary hearing on his jury claim under Townsend v. Sain, 372 U.S. 29383 S.Ct. 7459 L.Ed.2d 770 (1963). One of the elements that Ross must establish under Townsend  is that his failure to present the proffered material to the state court was not the result of inexcusable neglect. 372 U.S. at 31783 S.Ct. at 759. Taken at face value, the proffered affidavits showing that the defense lawyers in the Nicolai case found the material in early 1977 and convinced the trial judge to order revision of the 1975 lists, suggest that the statistical evidence of jury composition was not so hidden that Ross’ attorneys could not have  discovered it at the time of the state habeas proceedings in December of 1976. The record as it stands does not explain Ross’ failure to subpoena the clerk and the 1973 lists into state court. Furthermore, Ross has not adequately explained why the statistical evidence was not discovered during the federal habeas proceedings through following up on Murphy’s and Norman’s remarks about the revision of the 1975 list.

Under Townsend v. Sain, Ross must also meet the threshold requirement of alleging facts, which if proven, would entitle him to relief, 372 U.S. at 30783 S.Ct. at 754, and he must show that his case comes within one of the six Townsend categories. Id. at 313, 83 S.Ct. at 757Thomas v. Zant, 697 F.2d 977, 986 (11th Cir. 1983), appeal on other grounds following remand, 766 F.2d 452 (11th Cir. 1985). This panel’s original rejection of Ross’ claim that he was entitled to an evidentiary hearing was based on Ross’ failure to meet the threshold requirement. The panel recognized that this shortcoming was due in part to the county’s destruction of the 1973 jury lists. With the addition of the Friedman affidavit evidence, however, Ross does allege facts, which if proven, may meet the standard for a fourteenth amendment prima facie case set forth in Castaneda v. Partida, 430 U.S. 482, 494-9597 S.Ct. 1272, 128051 L.Ed.2d 498 (1977), because: (1) blacks and women are undoubtedly recognizable distinct classes, see Davis v. Zant, 721 F.2d 1478, 1482 (11th Cir. 1983) aff’d in relevant part on rehearing en banc, 752 F.2d 1515, 1516cert. denied, ___ U.S. ___, 105 S.Ct. 2689, 86 L.Ed.2d 707 (1985); (2) Friedman’s evidence is aimed at proving the degree of underrepresentation by comparing the proportion of the group in the total population to the proportion called to serve over a significant period of time, compare 721 F.2d at 1482-83; and (3) Norman’s deposition testimony suggests that the selection procedure was susceptible to abuse. Compare id. at 1484 nn. 12 and 13. The facts alleged by Ross may also establish a sixth amendment violation under Duren v. Missouri, 439 U.S. 357, 36499 S.Ct. 664, 66858 L.Ed.2d 579 (1979). Ross argues that the facts are already proven because under Fed.R.Evid. 1004, Friedman’s summaries should be admissible for the truth of their contents since the original 1973 jury lists were destroyed without any bad faith on Ross’ part and because Friedman’s summaries were accurately compiled and admitted into evidence during the Nicolai hearing. (Also citing Klein v. Frank, 534 F.2d 1104 (5th Cir. 1976); Burton v. Driggs, 87 U.S. (20 Wall.) 125, 134, 22 L.Ed. 299 (1874)).
As to the remaining element, Ross argues that his case comes within three different Townsend categories: “(4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.” Townsend v. Sain, 372 U.S. at 31383 S.Ct. at 757. The record clearly indicates that a fact material to Ross’ constitutional claim was not adequately developed at the state court level. In a constitutional challenge to the composition of a jury, statistics of the makeup of the jury lists used are “indispensable to a fair, rounded, development of the material facts.” Id. at 322, 83 S.Ct. at 762.

We cannot determine from the record what could have been uncovered, either, as the state suggested at oral argument that no transcript of the Nicolai hearing had been made and no written order was issued. We also note that Murphy and Norman testified about revising the 1975 list and Ross, of course, needed the 1973 list.

At the same time, however, we are extremely disturbed by the fact that the apparent negligence on the part of Ross’ attorneys may have been due to their reliance on misrepresentations by the state official who had legal custody of the records. We are also disturbed by the state official’s failure to produce the Nicolai records or any other documents when he was subpoenaed and deposed in 1979 in connection with Ross’ federal habeas proceedings. Equally disquieting is the seeming inconsistency in the disclosure of the jury lists to different attorneys in different cases. These unanswered questions and inconsistencies in the record as it stands are even more troublesome viewed in light of the fact that the evidence pertains to a claim which Ross raised as early as 1976 in his state habeas petition and which he continued to pursue in his federal habeas proceedings. Moreover, Ross’ proffered evidence, if included in the record, would certainly appear to have a definite impact on his ability to prove the illegal composition of his grand and traverse juries. Because of these allegations, we find it appropriate to invoke our inherent authority and remand the motion to supplement the record to the district court for a hearing to resolve the threshold issue of inexcusable neglect. See Thomas v. Zant, 697 F.2d 977, 986 (11th Cir. 1983), appeal on other grounds following remand, 766 F.2d 452 (11th Cir. 1985) (recognizing that inexcusable neglect issue “may itself require an evidentiary hearing”).

The statistics set forth by Friedman concerning the underrepresentation of women on both the grand and traverse jury venires present a case that is undoubtedly significant compared to the other cases in which we have granted relief on similar constitutional challenges to jury composition. ( Compare 38.6% traverse jury venire disparity and 48.8% grand jury venire disparity for women in Friedman’s calculations for Ross’ case with: Bowen v. Kemp, 769 F.2d 672, 685 n. 9 (11th Cir. 1985) (22.7% traverse jury disparity for women); Davis v. Zant, 721 F.2d at 1481, n. 3 (18.4% traverse jury list disparity for women, 18.1% for blacks); Gibson v. Zant, 705 F.2d 1543, 1545 (11th Cir. 1983) (31.6% trial jury list disparity for women, 20.39% for blacks, 37.9% grand jury list disparity for women, 20.8% for blacks); Machetti v. Linahan, 679 F.2d 236, 240 (11th Cir. 1982), cert. denied, 459 U.S. 1127, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983) (36% petit jury list disparity and 42% grand jury list disparity for women); Porter v. Freeman, 577 F.2d 329, 331-32 (5th Cir. 1978) (20.4% jury roll disparity for women); Preston v. Mandeville, 428 F.2d 1392 (5th Cir. 1970) (approximately 13.3% master jury roll disparity for blacks)).
Although Ross’ statistics of underrepresentation of blacks is not as strong, the grand jury disparity of 12% is significant compared to some cases in which we have granted relief, and depending on the statistics of the several predominantly white precincts which were omitted from Friedman’s summary, the traverse jury racial disparity of 8.9% may make out a cognizable claim. But see United States v. Tuttle, 729 F.2d 1325, 1327 (11th Cir. 1984)cert. denied, ___ U.S. ___, 105 S.Ct. 968, 83 L.Ed.2d 972 (1985) (asserting that Eleventh Circuit consistently requires disparity of over 10%); United States ex rel Barksdale v. Blackburn, 639 F.2d 1115, 1125 (5th Cir.), cert. denied, 454 U.S. 1056, 102 S.Ct. 603, 70 L.Ed.2d 593 (1981) (limiting statistical showings to only include population with more than a seventh-grade education to fulfill Louisiana state law requirement).

Our remand in this case is consistent with the other concerns mentioned in Dickerson. Because of the significance of the alleged constitutional violations, the interests of justice will best be served by remanding for further hearings. The Supreme Court recently reaffirmed its position that discrimination on the basis of race in the selection of grand jurors undermines the fundamental values of the judicial system and of society as a whole to such an  extent that in the face of such a practice, the criminal defendant’s conviction must be reversed. See Vasquez v. Hillery, ___ U.S. ___106 S.Ct. 617, 62288 L.Ed.2d 598 (1986). This court too, on more than one occasion, has recognized the special importance of a jury representing all segments of the community. We have further noted that “[t]he importance of affording a defendant trial by a representative jury of his peers is magnified in capital cases, where juries are required to consider ` as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'” Davis v. Zant, 721 F.2d 1478, 1482 (11th Cir. 1983), aff’d in relevant part on rehearing en banc, 752 F.2d 1515cert. denied, ___ U.S. ___, 105 S.Ct. 2689, 86 L.Ed.2d 707 (1985) (quoting in part Lockett v. Ohio, 438 U.S. 586, 60498 S.Ct. 2954, 296457 L.Ed.2d 973 (1978) (emphasis in original)); Gibson v. Zant, 705 F.2d 1543, 1546 (11th Cir. 1983). The remand will also result in efficient use of judicial resources as it will eliminate a successive habeas petition on this claim. See Sanders v. United States, 373 U.S. 1, 2283 S.Ct. 106810 L.Ed.2d 148 (1963) (encouraging flexible handling of petitions for habeas corpus to avoid successive petitions). Finally, we note that in the instant case, this court, like the Dickerson court, is “reviewing the district court’s review of the habeas corpus claim of a state prisoner” and as federal appellate judges, we “have been granted unique powers in the context of habeas corpus actions.” 667 F.2d at 1368 n. 7.

In Vasquez v. Hillery, the Supreme Court held that requiring the state to retry a criminal defendant in 1986 who was first indicted in 1962 was not too harsh a remedy because the racial discrimination in the selection of the defendant’s grand jury was a constitutional violation “possible only under color of state authority, and wholly within the power of the State to prevent.” 106 S.Ct. at 623. The Court refused to allow the subsequent conviction by a properly constituted petit jury to validate the conviction. The Court explained that a grand jury’s impact extends beyond determining whether probable cause exists; the grand jury has “the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a noncapital offense — all on the basis of the same facts.” Id. (emphasis added). Hence, a subsequent conviction does not establish that the discrimination in the selection of the original body exercising such power did not impermissibly infect the nature of the later proceedings. The Court specifically rejected the contention that if a long period of time elapses between conviction and the filing of the federal habeas corpus petition, then relief should depend on the ability of the state to get a second conviction. (In Hillery’s case, the time lapse was sixteen years). Ross’ federal habeas petition, filed within four and one-half years of his conviction, alleged discrimination in both the grand and petit juries.

At the hearing before the district court on remand, the parties shall present evidence on the issue of inexcusable neglect including the unanswered questions: whether the clerk agrees that in 1976 he advised Ross’ attorneys that the 1973 lists already had been destroyed; whether it was the clerk or the jury commissioners who gave the lists to the Nicolai lawyers; why the clerk did not produce the Nicolai records in response to the 1979 subpoena; why the clerk did not disclose during his 1979 deposition that he had testified at the Nicolai hearing; why Ross’ attorneys did not subpoena the clerk and the jury commissioner to testify and to produce the 1973 jury lists at the state court habeas hearing; and why Ross’ attorneys did not pursue the clerk’s reference to the Nicolai case during the federal habeas proceeding by checking the court records and newspaper accounts or by further depositions concerning the Nicolai case. Only after such a hearing will the district court be able to determine whether Ross’ attorneys’ failure to locate the statistical evidence sooner was inexcusable neglect or whether the negligence was excusable action in reliance on misrepresentations by the custodian of the state records. See Thomas v. Zant, 697 F.2d at 980-83 (analyzing when defendants’ and attorneys’ actions constitute inexcusable neglect and when they do not).

If the district court finds at the hearing that Ross has shown there was no  inexcusable neglect then the court shall allow the record to be supplemented and determine whether the record, as supplemented, is sufficient, under Townsend v. Sain, to entitle Ross to a full evidentiary hearing on the merits of his jury composition claim. In order to prevail on the merits, Ross must present a prima facie case to the district court and to this end should be permitted to present additional testimonial or documentary evidence bearing on the claim. The state would be able to present rebuttal evidence. The district court would then determine whether or not Ross was indicted, and/or convicted and sentenced by an unconstitutionally composed jury and therefore entitled to habeas corpus relief.

The state has not yet proffered meaningful rebuttal evidence in response to Ross’ motion to supplement. The jury commissioner’s statement at his deposition that no one was excluded because of their race or gender is insufficient, Whitus v. Georgia, 385 U.S. 545, 55187 S.Ct. 64317 L.Ed.2d 599 (1967), and the mere affirmations of good faith by the county officials are not necessarily adequate. See Bowen v. Kemp, 769 F.2d at 688. The fact that a member of the underrepresented group was on the commission also may be irrelevant. Id. To rebut an equal protection violation, the state must prove absence of discriminatory intent, and to rebut a sixth amendment case, the state must prove a significant governmental interest justifying the imbalance of the groups. Davis v. Zant, 721 F.2d at 1482 n. 6 (comparing Casteneda with Duren).

In conclusion, we hereby GRANT the motion to supplement the record as to the Murphy deposition pursuant to Fed.R.App.P. 10(e), DENY the motion as to the Cole deposition, and REMAND this case to the district court for the limited purposes as set forth in our opinion above.

White 81.13 93.14 + 12.01 + 14.80 Black 18.87 6.86 — 12.01 — 63.64 Male 46.47 95.32 + 48.85 + 105.12 Female 53.53 4.68 — 48.85 — 91.25 White 81.13 90.05 + 8.92 + 10.99 Black 18.87 9.95 — 8.92 — 47.27 Male 46.47 85.08 + 38.61 + 83.08 Female 53.53 14.92 — 38.61 — 72.12 Friedman explained that even these figures significantly overrepresent the percentage of blacks on the jury venires because of missing precinct data from some predominantly white areas. Friedman provides this same data and analysis for the 1975 lists, finding a greater underrepresentation of blacks. Friedman also attests to his presence during testimony by jury commissioners at an evidentiary hearing in the Nicolai case. Finally, Friedman states his conclusion that based on his entire study of the 1973-75 Colquitt County jury selection system, the system failed to produce grand or traverse juries representative of the community.

I concur in Parts I, II, III, and IV-A of the sensitive and carefully structured opinion of the court. My disagreement with the decision of the majority to remand the motion to supplement the record with the Friedman and Jenkins affidavits is a narrow, but critical one.

As the court acknowledges, one of the elements that Ross must establish under Townsend is that his failure to present the proffered material to the state court was not the result of inexcusable neglect. The only excuse discerned by the court on this record for failure to have to have done so is the single unsworn statement of Phipps, his attorney, at the state habeas hearing on December 9, 1796, as follows:

MR. PHIPPS: Your Honor, on claim 21, we have no evidence to present because when I went to the Clerk’s Office in Cloquitt County to examine the jury list that were [sic] in use at that time, I was informed by the Clerk that about a year ago the jury list was revised and the practice is that when they revise they discard the trial list. So the Clerk was unable to find a list that could be identical as the one in use at that time. So we don’t have any further evidence on that, uh, claim.

If the two affidavits are to be credited, they establish beyond peradventure that the relevant jury lists were in existence at the time of the state habeas hearing since they were made available to Friedman approximately one month later by either the clerk of the court or by the jury commissioners.

On February 25, 1977, Friedman’s statistical study of the jury lists was relied upon by the defendants in the Nicolai case to support their challenge to the jury lists. On that date a front page article in The Moultrie Observer publicized the attack on the Colquitt County grand and petit juries with specific reference to the Friedman statistics.

It is incomprehensible that a lawyer who frequently practiced in Moultrie with a population of approximately fifteen thousand, the county seat of Colquitt County, was not aware of the purported factual basis for a challenge to the jury lists and of an opportunity to move to supplement the record either in the state habeas court or the record on appeal to the Georgia Supreme Court from its judgment. Of compelling  significance is the failure to come forward with the Friedman evidence in behalf of Ross at the federal habeas hearing on January 26 and 27, 1981.

Not until the eve of the oral argument before the en banc court was an effort made to supplement the record with material which was never before either the state or federal habeas court. Since in my view inexcusable neglect is so glaringly apparent on the record, I would recognize the motion to supplement for what it is, a last ditch effort to bolster a failing cause. I would forthrightly deny it.

From the order remanding such motion to the district court, I respectfully dissent.

Supplementing the Record in the Federal Courts of Appeals. What If the Evidence You Need Is Not in the Record?
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