Dassey v. Foster
ORDER signed by Magistrate Judge William E. Duffin on 10/12/2016 denying 32 Motion to Supplement. (cc: all counsel) (djo)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 14-CV-1310
MICHAEL A. DITTMANN,
On August 12, 2016, this court granted Brendan Dassey’s petition for a writ of
habeas corpus. (ECF No. 23); Dassey v. Dittmann, 2016 WL 4257386, 2016 U.S. Dist.
LEXIS 106971 (E.D. Wis. Aug. 12, 2016). The respondent appealed this court’s decision
on September 9, 2016. (ECF No. 25.)
On October 5, 2016, the respondent filed a motion to supplement the record on
appeal. (ECF No. 32.) The respondent requested that the court expedite the resolution of
his motion because the outcome would affect his appellate brief, which is due on
October 19, 2016. The court ordered Dassey to respond to the motion not later than
October 12, 2016. Dassey responded on October 10, 2016.
The respondent seeks to add five exhibits to the record on appeal:
Exhibit 1: Transcript of Dassey’s February 27, 2006 interview at the Two
Rivers Police Department. This document was submitted as an exhibit at
Dassey’s postconviction hearing. (See state court record no. 173:90.)
Exhibit 2: Audio recording of Dassey’s February 27, 2006 interview at
Mishicot High School. The two discs containing the recording of this
interview were submitted as an exhibit at the postconviction hearing. (See
state court record no. 173:205.) The transcript of this interview was
provided to this Court with Respondent’s Answer. (See Dkt. 19-24.)
Exhibit 3: Audio/video recording of Dassey’s February 27, 2006 interview
later that afternoon at the Two Rivers Police Department. A DVD with the
recording of this interview was submitted as an exhibit at the
postconviction hearing. (See state court record no. 173:207.)
Exhibit 4: Audio recording of Dassey’s squad car ride from Mishicot High
School to the Manitowoc Police Department. A disc with this recording
was submitted as an exhibit at the postconviction hearing. (See state court
record no. 173:208.)
Exhibit 5: Handwritten statement of Kayla Avery, dated March 7, 2006,
introduced at trial as Exhibit 163. (See state court record no. 78.)
(ECF No. 32 at 2.) None of these exhibits were before this court when it considered
Dassey’s petition. Dassey does not oppose the addition of Exhibits 1, 2, 3, and 4 to the
record on appeal but does oppose the addition of Exhibit 5.
Federal Rule of Appellate Procedure 10(e)
“If 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 [to the court of appeals].” Fed. R. App. P.
This provision is not an invitation for parties to add to the appellate record
matters that were not presented to the district court. See, e.g., Shasteen v. Saver, 252 F.3d
929, 935 (7th Cir. 2001) (quoting United States v. Hillsberg, 812 F.2d 328, 336 (7th Cir.
1987) (“Rule 10(e) does not give this court authority to admit on appeal any document
which was not made a part of the record in the district court.”) “The purpose of rule
10(e) is to ensure that the record on appeal accurately reflects the proceedings in the
[district] court (thereby allowing [the court of appeals] to review the decision that the
[district] court made in light of the information that was actually before it), not to enable
the losing party to add new material to the record in order to collaterally attack the
[district] court’s judgment.” United States v. Elizalde-Adame, 262 F.3d 637, 641 (7th Cir.
Although courts have occasionally relied upon a stipulation of the parties under
Rule 10(e)(2)(A) to expand the record beyond matters presented to the district court, see,
e.g., Bowie v. Thurmer, 2008 U.S. Dist. LEXIS 121115, 2 (E.D. Wis. Mar. 20, 2008) (court
treating respondent’s lack of objection to petitioner’s motion to expand the record on
appeal as a stipulation under Rule 10(e)(2)(A) and thus expanding the appellate court
record to include matters not before the district court), the court is not persuaded that
the lack of an objection, standing alone, permits the district court to expand the record
on appeal to include matters not presented to the district court. See, e.g., S & E Shipping
Corp. v. Chesapeake & O. R. Co., 678 F.2d 636, 641 (6th Cir. 1982) (noting that the district
court interpreted Rule 10(e) “too broadly” when it accepted the parties’ stipulation to
add to the appellate record matters not presented to the district court); Wheeler v. Anchor
Continental, Inc., 28 Fed. R. Serv. 2d (Callaghan) 1330, 1979 U.S. Dist. LEXIS 8438 (D.S.C.
1979) (citing Panaview Door & Window Co. v. Reynolds Metals Co., 255 F.2d 920, 922 (9th
The respondent has made no effort to show that the relevant exhibits were
omitted due to error or accident, as required under Rule 10(e). The decision to initially
omit the subject exhibits from the record may have been a conscious, strategic choice on
the part of the respondent. Unlike a pro se prisoner petitioner, who might be reasonably
mistaken as to whether the relevant portion of the state court record is automatically
forwarded to the federal court, the respondent was represented by competent and
experienced counsel. Despite the lack of objection from Dassey, Rule 10(e) does not
permit the expansion of the record to include matters that the district court did not have
the opportunity to consider.
Court’s Inherent Authority
“Despite the general rule limiting the record to material presented to the district
court, some courts have discussed the existence of an ‘inherent equitable power to
supplement the record on appeal to include information not presented to the district
court.’” Warren v. Pollard, 2012 U.S. Dist. LEXIS 109650, 3-4 (E.D. Wis. Aug. 6, 2012)
(citing Chrysler Int’l Corp. v. Cherokee Exp. Co., 1998 U.S. App. LEXIS 1317 (6th Cir. Jan.
27, 1998) (quoting In re Capital Cities/ABC, Inc.’s Application for Access, 913 F.2d 89, 97 (3d
Cir.1990)); 20 Moore’s Federal Practice, § 310.10[e] (Matthew Bender 3d Ed.)); see also
Thompson v. Bell, 373 F.3d 688, 690 (6th Cir. Tenn. 2004) (“[W]e recognize that a number
of our sister circuits have held that the courts of appeals have the inherent equitable
power to supplement the record on appeal, where the interests of justice require.”)
(citing cases). Thus, there are instances where courts have added documents to an
appellate record despite their omission from the district court record. For example, in
Warren v. Pollard, 2012 U.S. Dist. LEXIS 109650 (E.D. Wis. Aug. 6, 2012), the court
granted a habeas petitioner’s request to add to the appellate record documents that
were not submitted to the district court.
In certain instances, the interests of justice might favor the expansion of the
record. And although not explicitly noting any inherent authority to expand the record,
the Court of Appeals for the Seventh Circuit has occasionally accepted matters not
presented to the district court “[i]n the interest of completion,” Ruvalcaba v. Chandler,
416 F.3d 555, 563 n.2 (7th Cir. 2005), or because the omitted items “are helpful for
context,” Crockett v. Hulick, 542 F.3d 1183, 1188 n.3 (7th Cir. 2008).
Accepting for present purposes that the court has the inherent authority to
expand the appellate record to include matters not presented to the district court, the
court is not persuaded that doing so here furthers the interests of justice. The
respondent having made no effort to show that the exhibits were omitted due to error
or accident (or offer any other explanation as to why they were omitted), the court
presumes that the omission was due to a conscious choice the respondent now regrets.
Moreover, some of the proposed additional exhibits are cumulative. Exhibits 2
and 4 are simply the audio recordings of interviews of which the transcripts are already
in the record. (Compare Exhibit 2 with ECF No. 19-24; Exhibit 4 with ECF No. 19-25 at 215.) Exhibit 1 is a transcript of an interview at the Two Rivers Police Department and
Exhibit 3 is the video recording of the same interview. This police department interview
was conducted at the urging of the district attorney due to the poor quality of the audio
recording (Ex. 2) of the earlier February 27, 2006 interview (see ECF No. 19-19 at 6) and
was intended to be a re-do of the interview that is already in the record (ECF No. 19-24).
As for Exhibit 5, the respondent argues that it is relevant to show that Dassey’s
confession was reliable. However, the court concluded that the reliability of Dassey’s
confession was irrelevant. (ECF No. 23 at 74; Dassey, 2016 WL 4257386, 29, 2016 U.S.
Dist. LEXIS 106971, 90 (quoting Rogers v. Richmond, 365 U.S. 534, 544 (1961)). Even if the
court of appeals were to disagree with this court’s conclusion, the statement was written
on March 7, 2006—after Dassey’s March 1 confession. In the interim, Dassey was
criminally charged and the details of his confession widely publicized. (See, e.g., ECF
No. 19-19 at 43-45.) Moreover, Kayla Avery disavowed the statement at trial, testifying,
“I -- I kind of made up the statement. And I’m sorry.” (ECF No. 19-17 at 13.)
As generally cumulative, and thus in the court’s view, largely irrelevant, it might
seem a little matter to add exhibits to the record, especially those exhibits to which
Dassey does not object. The problem is that reliance upon the court’s inherent authority
must be reserved for extraordinary circumstances. See 20 Moore’s Federal Practice, §
310.10[f] (Matthew Bender 3d Ed.)) (“In extraordinary situations, the circuit court
may consider material not presented to the district court when it believes the interests
of justice are at stake.”) The respondent has failed to demonstrate that this is an
extraordinary case. Therefore, the court declines to exercise its inherent authority to
expand the record to include documents that this court did not have the opportunity to
consider when deciding Dassey’s petition for a writ of habeas corpus.
IT IS THEREFORE ORDERED that the respondent’s motion to supplement the
record on appeal is denied.
Dated at Milwaukee, Wisconsin this 12th day of October, 2016.
WILLIAM E. DUFFIN
U.S. Magistrate Judge
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