Order Denying Defendant’s Motion to Supplement the Record on Appeal [63] — No. 2:22-cr-20021 (Dkt. 65, E.D. Mich.)

Summary

Order Denying Defendant's Motion to Supplement the Record on Appeal, ECF No. 65 filed June 28, 2023 in United States v. Johnny Ho, Case No. 22-20021 in the Eastern District of Michigan. Ho was found guilty at trial of conspiracy to commit wire fraud, wire fraud and money laundering, and his appeal is pending before the Sixth Circuit. He moved (ECF No. 63) to add two written reports by his private investigator to the appellate record, saying he is appealing the court's refusal to let the investigator give hearsay testimony after proposed defense witnesses invoked the Fifth Amendment; the Government opposed (ECF No. 64). Nancy G. Edmunds, United States District Judge, agrees that the reports were left out of the district court record by choice, not by error or accident under Fed. R. App. P. 10(e)(2), and denies the motion without a hearing.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

Case 2:22-cr-20021-NGE-KGA ECF No. 65, PageID.1261 Filed 06/28/23 Page 1 of 3




                          UNITED STATES DISTRICT COURT
                          EASTERN DISTRICT OF MICHIGAN
                               SOUTHERN DIVISION


UNITED STATES OF AMERICA,
             Plaintiff,                                Case No. 22-20021
v.                                                     Honorable Nancy G. Edmunds
JOHNNY HO,

             Defendant.
_______________________________/

                    ORDER DENYING DEFENDANT’S MOTION
                 TO SUPPLEMENT THE RECORD ON APPEAL [63]

      Defendant Johnny Ho was found guilty at trial of conspiracy to commit wire fraud,

wire fraud, and money laundering. His appeal is currently pending before the Sixth

Circuit Court of Appeals. Before the Court is Defendant’s Motion to Supplement the

Record on Appeal. (ECF No. 63.) The Government responded in opposition to

Defendant’s motion. (ECF No. 64.) Defendant did not file a reply.

      In his motion, Defendant states that he is appealing the issue of whether this

Court denied Defendant his Sixth Amendment right to a fair trial by prohibiting

Defendant from calling his private investigator to present hearsay testimony after

several proposed defense witnesses asserted their Fifth Amendment privilege and

declined to testify at trial. Defendant therefore seeks to supplement the appellate record

with two written reports authored by the private investigator which concern what would

have been the subject matter of her testimony. (See ECF No. 63-2.) The Government

argues that Defendant’s motion should be denied because Defendant made the

strategic choice to summarize the investigator reports for this Court rather than file the


                                            1
Case 2:22-cr-20021-NGE-KGA ECF No. 65, PageID.1262 Filed 06/28/23 Page 2 of 3




reports themselves during this Court’s proceedings. (See ECF No. 31.) The reports

were therefore not omitted from the record as a result of any “error or accident” as

contemplated by Federal Rule of Appellate Procedure 10(e)(2).

       Federal Rule of Appellate Procedure 10 provides that the “Record on Appeal”

consists of “(1) the original papers and exhibits filed in the district court; (2) the

transcript of proceedings, if any; and (3) a certified copy of the docket entries prepared

by the district clerk.” Fed. R. App. P. 10(a). Under Rule 10(e)(2), the record may be

corrected or modified “[i]f anything material to either party is omitted from or misstated in

the record by error or accident . . .” But “error” and “accident” are the key terms here—

Sixth Circuit caselaw makes clear that Rule 10(e)(2) is not intended to permit a party to

“introduce new evidence in the court of appeals,” United States v. Smith, 344 F.3d 479,

486 (6th Cir. 2003) (citing S & E Shipping Corp. v. Chesapeake & O. Ry. Co., 678 F.2d

636, 641 (6th Cir.1982)); United States v. Murdock, 398 F.3d 491, 500 (6th Cir. 2005).

Thus, Defendant must “resort to an argument based on equitable principles,” but even

these, without any reasonable explanation, “do not excuse [a party’s] own failure to put

the actual documents before the district court and on the record, prior to judgment.”

United States v. Murdock, 398 F.3d 491, 500 (6th Cir. 2005). The Court therefore

agrees with the Government.

       For the foregoing reasons, Defendant’s Motion to Supplement the Record on

Appeal is DENIED. (ECF No. 63.) As the parties’ briefs sufficiently set forth the relevant




                                             2
Case 2:22-cr-20021-NGE-KGA ECF No. 65, PageID.1263 Filed 06/28/23 Page 3 of 3




factual and legal arguments, the Court issues this decision without a hearing. (See E.D.

Mich. L.R. 7.1(f)(2)).

       SO ORDERED.

                                            s/ Nancy G. Edmunds
                                            Nancy G. Edmunds
                                            United States District Judge


Dated: June 28, 2023


I hereby certify that a copy of the foregoing document was served upon counsel of
record on June 28, 2023, by electronic and/or ordinary mail.


                         s/ Lisa Bartlett
                         Case Manager




                                                 3


File and source

File

65.pdf

Size

135,349 bytes

SHA-256

cfbffb1a4a5722fd18ca862ce0fdbc2f62b0f2aef1b56aa3da6fbad697d6954d

Our copy

65.pdf

Original

archive.org