USA v. Alazzam et al.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
JASON MICHAEL BATES,
Defendant.
MEMORANDUM DECISION AND
ORDER GRANTING [615] JOINT
MOTION TO ADOPT STATEMENT OF
EVENTS
Case No. 2:21-CR-00501-DAK-CMR-5
District Judge Dale A. Kimball
Chief Magistrate Judge Cecilia M. Romero
Before the court is Defendant Jason Michael Bates’ (Mr. Bates) and Plaintiff United States
of America’s (Plaintiff) Joint Motion to Adopt Statement of Events under Federal Rules of
Appellate Procedure 10(c) and 10(e)(2)(B) (Motion) (ECF 615). For the reasons set forth below,
the court enters the following Memorandum Decision and Order GRANTING the Motion.
I. 	BACKGROUND
Mr. Bates pleaded guilty to Counts 1 and 2 of his indictment and was sentenced to 120
months’ imprisonment (R. Vol. I, pp. 684–85). Mr. Bates’ plea agreement was conditional under
Fed. R. Crim. P. 11(a)(2) and preserved his right to appeal (id. at 677). On May 4, 2023, Mr. Bates
filed a Motion to Compel Discovery (Motion to Compel) (ECF 267), and the undersigned held a
hearing on the Motion to Compel on May 30, 2023. Part of the hearing was open to the public (R.
Vol. IV, pp. 40–64), and part was sealed and ex parte (R. Vol. III, pp. 6–13). The sealed ex parte
portion of the hearing consisted of a discussion between the undersigned and former Assistant
United States Attorney Jennifer Muyskens (id.). The sealed ex parte portion of the hearing has
since been unsealed, and the transcript has been placed on the public docket at ECF 604 and 605.
The undersigned took the Motion to Compel under advisement (ECF 281) and later denied it as
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moot (ECF 293), permitting Mr. Bates to renew the motion pending further developments (see
id.). As permitted, Mr. Bates filed a Renewed Motion to Compel (ECF 366), which the undersigned
denied (R. Vol. I, pp. 589–98). Mr. Bates appealed the denial of the Renewed Motion to Compel
(id. pp. 628–29).
The transcript of the May 30, 2023, hearing (both the public and ex parte portions) does
not fully include all that was said due to technical issues (R. Vol. III, p. 8; R. Vol. IV, p. 42). While
the undersigned’s statements during the hearing are transcribed in full, the technical issues resulted
in substantial portions of the attorneys’ arguments not being transcribed and noted as “(inaudible)”
in the transcripts (see R. Vol. IV, pp. 40–64; R. Vol. III, pp. 6–13). The Tenth Circuit, at the request
of Mr. Bates, abated the appeal to allow the parties to reconstruct the missing portions of the two
transcripts.
II. 	DISCUSSION
Federal Rule of Appellate Procedure 10 provides the mechanism for ensuring that the
appellate record accurately reflects the proceedings in the district court, including when a transcript
is incomplete or unavailable. See Fed. R. App. P. 10. Under Rule 10(c), “[i]f the transcript of a
hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings
from the best available means, including the appellant’s recollection.” Id. 10(c). The opposing
party may then serve objections or proposed amendments, after which the statement, together with
any objections, “must be submitted to the district court for settlement and approval.” Id. Once
approved, the statement “must be included by the district clerk in the record on appeal.” Id.
Rule 10(e) further provides that, 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
the record supplemented “by the district court.” Id. 10(e)(2). The purpose of Rule 10(e) is to ensure
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that the record truly discloses what occurred in the district court, “but does not grant a license to
build a new record.” Shooting Star Ranch, LLC v. U.S., 230 F.3d 1176, 1177 n.2 (10th Cir. 2000)
(quoting United States v. Kennedy, 225 F.3d 1187, 1190–91 (10th Cir. 2000)).
Accordingly, where portions of a transcript are unavailable, under Rule 10(c), the proper
procedure is for the parties to reconstruct the missing portions through a statement of the evidence,
submit any objections, and present the statement to the district court for settlement and approval.
If the district court finds any errors with the statement of evidence, it may correct them under Rule
10(e). Once the statement of evidence has been reviewed and approved by the district court, it
becomes part of the record to cure any deficiency caused by the incomplete transcript.
Here, pursuant to Rule 10(c), the parties have filed a Statement of Events (ECF 65-1),
which they believe accurately summarizes what occurred during the portions of the hearing that
could not be transcribed. The parties assert that they have conferred with each other, with Mr.
Bates’ trial attorney, Scott Williams, and with former AUSA Muyskens, the only attorney present
during the ex parte portion of the hearing (ECF 615 ¶¶ 23–24). Because the undersigned was
present during both portions of the hearing, the parties request that the undersigned review the
Statement of Events and determine whether it accurately discloses what occurred and adopt the
statement in full under Rule 10(c) (id. ¶ 24–26). If the undersigned believes that the Statement of
Events should be revised or supplemented based on her recollection of what occurred, the parties
ask that the undersigned make such changes under Rule 10(e) (id. ¶ 27).
After a thorough review of the Statement of Events, the undersigned determines that it
accurately reflects what occurred during both portions of the hearing and finds it unnecessary to
make any changes or supplements under Rule 10(e).
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III. 	CONCLUSION
Because the undersigned has determined that the Statement of Events accurately discloses
what occurred during the inaudible portions of the hearing which took place on May 30, 2023, IT
IS HEREBY ORDERED that the Motion is GRANTED. The court therefore APPROVES the
Statement of Events pursuant to Fed. R. App. P. 10(c). The Clerk of Court is DIRECTED to include
the approved Statement of Events in the official record on appeal and to transmit the supplemented
record to the Tenth Circuit.
IT IS SO ORDERED.
DATED this 11 May 2026.
Chief Magistrate Judge Cecilia M. Romero
United States District Court for the District of Utah
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