Acevedo-Garcia v. Monroig

351 F.3d 547 (2003) | Cited 23 times | First Circuit | December 5, 2003


On September 9, 2003 the defendant-appellants filed a Petition for Rehearing in their individual capacity and a Petition for Rehearing and/or Suggestion for Rehearing En Banc in their official capacity. As is explained herein, we grant the petition for a panel rehearing, which moots the suggestion for rehearing en banc.

In our opinion of August 21, we stated that our review of the legal issues in the case was handicapped by the defendants' failure to produce transcripts of the defense portion of the trial. Specifically, we were unable to review fully the challenged evidentiary rulings, claims of inappropriate participation of the trial court, and the sufficiency of the evidence challenge.

In their petition for rehearing, defendants explained that they ordered the transcripts from the court reporter, paid for the transcripts, and later received a full set of transcripts. Furthermore, both parties referred to the full set of transcripts in their briefs. Upon further investigation, we determined that the transcripts were never properly filed with us through a combination of miscues by the defendants, the court reporter, and the circuit court clerk's office. Without assigning responsibility to any one party for the absence of the transcripts, we decided that we would review the now available transcripts in deciding the issues to which they relate.

Having done so, we find nothing in the full record that requires us to alter the ruling in our opinion filed on August 21. By this order, we grant the petition for rehearing, withdraw our opinion filed August 21, and file a revised opinion.

1. Senior Judge Hugh H. Bownes participated in the original hearing and disposition of the this case but retired on September 1, 2003, prior to the filing of the petition for rehearing, and passed away on November 5, 2003. The remaining members of the panel comprise a quorum for the issuance of this order. See 28 U.S.C. § 46(d).

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