United States v. Vasquez

1993 | Cited 0 times | Tenth Circuit | April 15, 1993


THEIS, District Judge.

Appellant Vasquez petitions for rehearing, raising the four issues which the court previously declined to consider for lack of a proper record on appeal. Appellant now seeks to provide the court with the transcript excerpts which were previously omitted from the record.

Rule 40 of the Federal Rules of Appellate Procedure governs the filing and contents of a petition for rehearing. That rule provides in pertinent part: "The petition shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended. . . ." Fed. R. App. P. 40(a).

In Westcot Corp. v. Edo Corp., 857 F.2d 1387 (10th Cir. 1988), this court discussed the standards which we apply to petitions for rehearing:

Consideration of appellant's petition for rehearing discloses no issues the panel has overlooked or misconstrued in its order and judgment. The petition attempts to inject into the case facts beyond the record and adds what is essentially a reiteration of arguments already advanced in the briefs. In that form the petition is neither helpful nor persuasive. To the contrary, such a document is wasteful of the court's overburdened time and the appellant's funds.

Tenth Cir. R. 40.1 sets the tone for petitions for rehearing, but it is unfortunately overlooked by far too many practitioners. when we stated a "petition for rehearing should not be filed routinely," we were not making a suggestion; we were setting a standard to which counsel must adhere.

A petition for rehearing must not be regarded by the practicing bar as another pleading which should be filed by the losing side in every appeal. This canon is particularly true when the petition consists of evidence not presented in the appeal or the equivalent of a restatement of arguments presented in the brief. Cases are not decided by timid panels who are in doubt of the results reached. Attempts to overcome deficiencies in the record or reiteration of previously rejected legal theories will not prompt a change of mind.

Id. at 1387-88 (emphasis added).

A petition for rehearing was not designed to be "a crutch for dilatory counsel, nor, in the absence of a demonstrable mistake, to permit reargument of the same matters." United States v. Doe, 455 F.2d 753, 762 (1st Cir.) (citation omitted), vacated on other grounds sub nom. Gravel v. United States, 408 U.S. 606, 33 L. Ed. 2d 583 , 92 S. Ct. 2614 (1972); see also United States v. Smith, 781 F.2d 184, 184 (10th Cir. 1986). Appellant's efforts to overcome the deficiencies in the record are too late.

As we stated in our previous opinion, there appeared to be little dispute between the parties on the material facts. Nor did there appear to be significant disagreement about the nature of the trial court's evidentiary rulings in which the trial court had discretion. This case remains an identification case in which the jury, as Judges of the credibility of the evidence, made its determination.

Appellant's petition for rehearing is hereby DENIED.


Appellant's petition for rehearing is hereby DENIED.

* The Honorable Frank G. Theis, District Judge, United States District Court for the District of Kansas, sitting by designation.

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