Unpublished Disposition, 874 F.2d 817 (9th Cir. 1989)

MEMORANDUM^** 

Tallon was convicted of unlawfully operating a vehicle while under the influence of intoxicating liquors in violation of Hawaii Rev.Stat. Sec. 291-4 (1985 & Supp.1988), a federal offense pursuant to the Assimilated Crimes Act, 18 U.S.C. § 13 (1982). Tallon was apprehended at the H-3 Gate of the Marine Corps Air Station in Kaneohe, Hawaii. We affirm.

This appeal is centered upon an incomplete transcript of the proceedings before a magistrate in which Tallon was found guilty. The proceedings were recorded, not heard by court reporters. In transcribing the recorded proceedings, it appeared that portions were inaudible. This was particularly true of many of Tallon's responses to questions. Apparently Tallon spoke softly and the recording device did not pick up her voice as well as it did most of the other participants in the hearing. There were very few inaudible portions of the proceedings in which the prosecution's case was presented. Nonetheless, Tallon's testimony was sufficiently audible to make clear that her defense was that she was not intoxicated.

While it is true that 28 U.S.C. § 753(b) (1982) requires that court reporters record proceedings verbatim, the failure to do so is not reversible error per se. The failure to do so in this case was harmless error. See United States v. Piascik, 559 F.2d 545, 548 (9th Cir. 1977), cert. denied, 434 U.S. 1062 (1978). The transcript easily provides the reader with a clear sense of what transpired at the hearing and of the magistrate's specific findings, verdict, and sentence. Tallon complains that the transcript omissions preclude the effective assistance of counsel. This is not so. The only true issue on appeal is whether there was sufficient evidence to support the verdict. A reasonable fact finder could find, as did the magistrate here, that Tallon was guilty as charged. These conclusions are in no way altered by the fact that Tallon's appellate counsel was not the trial counsel.

AFFIRMED.