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Joseph D. Johnson, Joseph D. Johnson, Chtd., Charles D. Dedmon, Office of Federal Public Defender, Topeka, KS, for Jessie Ailsworth, Jr.
F.G. Manzanares, Jerold E. Berger, Topeka, KS, for Undra P. Mock.
James G. Chappas, Jr. Topeka, KS, for Kenneth R. Torain.
Mark L. Bennett, Jr., Bennett & Dillon, Topeka, KS, Benjamin C. Wood, Lawrence, KS, for Arnett Louise Rice.
Matthew B. Works, Works, Works & Works, P.A., Amy C. Bixler, Alan G. Warner, Topeka, KS, for Terence J. Douglas.
Stephen W. Kessler, Topeka, KS, for George Stewart, Jr.
Jeannine D. Herron, Topeka, KS, William K. Rork, Rork Law Office, Topeka, KS, for Calvin Lee Conway.
Gregory G. Hough, Office of United States Attorney, Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, District Judge.
*1 On May 7, 1996, the court entered a memorandum and order denying the defendant's requests for specific performance of the plea agreements but allowing each of the defendants to withdraw their respective pleas. See United States v. Ailsworth, 1996 WL ---- (D.Kan. May 7, 1996). [FN1] Selection of the jury is set to commence on June 17, 1996.

FN1. That memorandum and order contains a complete summary of the lengthy history of this case.

On June 10, 1996, the court held a status conference with counsel discussing the trial. During that conference, the court took three separate issues raised by defense counsel under advisement. This memorandum and order addresses each of the motions or requests.
1. Defendants' requests to review audio tapes a second time prior to trial.
The government plans to introduce approximately 60 audio tapes into evidence. The defendants request the opportunity to re-review, prior to trial, each of the audiotapes the government intends to introduce in this case. The government opposed the defendants' request, noting the logistic difficulties of again making such arrangements at CCA. The government also noted that the defendants have previously been permitted to review the audiotapes and that there is no reason to duplicate the expenditure of effort and resources at this point in time.
The court denies the defendants' requests. The defendants have reviewed the audio tapes prior to this trial, albeit that a substantial amount of time has passed since the first trial commenced. The defendants, through counsel, will have ample opportunity to reexamine the tapes and transcripts. The court intends to review each of the tapes and transcripts outside the presence of the jury prior to receiving the tapes into evidence and prior to allowing the jury to use the transcripts.
2. Peremptory Challenges.
The defendants requested a total of twelve peremptory challenges. The court indicated that it would allow a total of twelve peremptory challenges to the defendants if all four defendants proceed to trial. [FN2] The defendants did not object to the court allowing the government to have one additional challenge, or a total of seven peremptory challenges, if they were allotted additional challenges.

FN2. In the event that one or more defendants enter a plea prior to trial, the court will only permit a total ten peremptory challenges. The court denies Ailsworth's request for a number of challenges equally divisible by the number of defendants.

Fed.R.Crim.P. 24(b) provides in pertinent part:
If the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges.... If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.
"A court apparently lacks authority to grant the government additional peremptory challenges in multi-defendant cases, and at least one court has held that a district court lacks authority to add to the government's six allotted peremptories unless defendants consent. See United States v. Bruno, 873 F.2d 555, 560-61 (2d Cir.), cert. denied, 493 U.S. 840, 110 S.Ct. 125, 107 L.Ed.2d 86 (1989)." United States v. Anderson, 39 F.3d 331, 344 n. 8 (D.C.Cir.1994), modified on other grounds, 59 F.3d 1323 (D.C.Cir.1995) (en banc).
*2 Unless the government can produce persuasive authority to the contrary, based upon this plain reading of Rule 24(b), the court will not allot the government an additional peremptory challenge even if the defendants are allotted more than ten.
3. Defendants' request for daily transcript.
Based upon the number of witnesses and defendants, the defendants request a daily transcript. The government took no position in regard to that request.
A daily transcript at a criminal trial "may be an incidental convenience," but the Constitution does not require the government "to furnish an indigent with every luxury that a wealthy litigant might conceivably choose to purchase." Gardner v. California, 393 U.S. 367, 372 (1969). "The right of an indigent defendant to a daily transcript is not guaranteed by the Constitution. The failure to provide it at government expense violates neither the due process clause nor the equal protection clause." United States v. Scarpa, 691 F.Supp. 635, 636 (E.D.N.Y.1988). "[T]he decision to supply daily transcripts to indigent defendants is a matter within the discretion of the trial judge." United States v. Bari, 750 F.2d 1169, 1181 (2nd Cir.1984) (citing United States v. Rucker, 586 F.2d 899, 905 (2nd Cir.1978)), cert. denied, 472 U.S. 1019 (1985). [FN3]

FN3. However, the Second Circuit held that "it is an abuse of discretion to decline either to order such transcripts or provide for other

means of adequate access when the government is receiving them." 750 F.2d at 1182.

According to the court reporter's estimate, each day of testimony typically generates approximately 200 pages of transcript. The cost per day for regular transcript is $3 per page, resulting in an average cost of $600 per day. The cost for daily transcript is $5 per page, resulting in an average cost of $1,000 per day, or approximately $400 more per day than the cost of regular transcript.
Although this case involves numerous witnesses, multiple defendants and numerous counts, the defendants have not demonstrated to the court's satisfaction that a daily transcript is necessary for the effective examination of the witnesses who will testify at trial. Counsel must rely on their own notes and recollection to conduct cross-examination.
IT IS SO ORDERED.
D.Kan.,1996.
END OF DOCUMENT

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