Earlier this week the Tenth Circuit issued a decision in United States v. Brody, involving a criminal defendant's challenge to his sentence and conviction for failure to file a tax return. The court rejected all of the defendant's issues, holding that the appellate record was insufficient for the court to adequately review them. The opinion is a crisp 14 pages, and it returns again and again to the theme of the appellant's responsibility to provide a record adequate for the court's review of the issues on appeal.
The decision is also instructive concerning the dangers of relying on the appellee to provide portions of the transcript. The defendant's attorney intended to challenge only the 10-month sentence, and limited the preparation of the transcript accordingly. But when the government decided to order and pay for the entire transcript, Brody's counsel attacked the conviction on multiple grounds. The problem was that by the time the opening brief and related appendix were due (after multiple extensions), the transcript still had not been prepared. The court denied Brody's motion to "defer or dispense with" an appendix for the brief, observing: "This is the appellant's appeal, and it is the appellant's -- and not the appellee's -- responsibility to prepare an appendix that will permit adequate review by this court and that is in accordance with our rules."