United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN U.S. Magistrate Judge.
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
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.
respondent seeks to add five exhibits to the record on
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.
Rule of Appellate Procedure 10(e)
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. 10(e)(2).
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.
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 ...