Benjamin Indiviglio, Rose Diaz, Veto Giordenello, Anthony Phillip Kolm and Daniel William Mitchell v. United States

Town Co. v. Oil Cotton Chickasha Cir., Maysville, F.2d fee an abandonment

constituted estate servient It follows that the title. together here, question lands in therein, minerals

with the Town, subject the Railroad the use only. specifiedpurposes

Affirmed. Diaz,

Benjamin INDIVIGLIO, Rose Veto Giordenello, Phillip Anthony Kolm and Mitchell, Appellants, Daniel William America,

UNITED STATESof Appellee.

No. 16440. Appeals

United States Court of

Fifth Circuit.

Oct. Rehearing

Petitions for and Motion for Rehearing En Banc Denied 5, 1957. Dec. part, except shall cease to use such land for the land so abandoned ais lands purpose reserved, municipality for which which, it was title within a the title to thereupon upon abandonment, thereto shall vest shall own- vest in such mu- legal nicipality.” er of the subdivision of which the sufficiency

entertain no doubt conviction evidence sustain the of ‍​​​‌‌‌​​‌​​‌​​‌‌‌‌‌‌​‌‌​​‌​‌​​​​‌‌‌​‌‌‌​‌​‌‌‌​‌‌‍each the con- spiracy charged, tests laid within the States, down in Sales Co. United Direct v. 1265, 1943, 703, 87 319 63 U.S. S.Ct. 1674; States, L.Ed. Delli Paoli v. United 294, 1957, 232, 236, 352 77 U.S. 278; United 1 L.Ed.2d and Glasser 80, States, 1942, 60, 62 S.Ct. 315 U.S. 457, 86 L.Ed. 680. Walsh, Clyde Woody, F. William Gill, Golding, W. Bernard A. Houston, Tex., Charles appellants. appellants, The than other standing object Giordenello, have Atty., no Kroll, Asst. S. Gordon J. U. admissibility to the of the ob Houston, Atty., evidence Wilkey, Malcolm U. R. S. by this tained the search ruled on Tex., appellee. dissenting) (Judge Rives CAMERON, Cir- RIVES and Before Cir., 1957, States, Giordenellov. United 5 DAWKINS, Sr., Judges, District cuit Judge. 241 F.2d 575.1The records various long telephone were ad distance calls missible as circumstantial evidence.2 Judge. CAMERON, Circuit The acts of one or co-con more of the charged four indictment spirators, committed arrests after appellants conspired with six others also defendants, of certain of the stand indicted, co-conspirators with four named footing a different from declarations persons indicted, and with co-conspirators, and were relevant Jury the Grand unknown in violation proof conspiracy.3 additional U.S.C.A., 7237(a), 26 com- Title § against mit various offenses the United therefore, error, We find no reversible having possession, States to do with the rulings in these of the trial court or the importation, purchase, sale and distribu- others All discussed the briefs. marijuana, heroin, tion of and other assign as error the denial Thirty-six overt acts narcotics. seeking the court below of a motion charged alleged conspiracy to compel the to- Government to turn over January 1, 1955 continued them a written statement taken 3, to June 1956. The trial extended over Government from one of its witnesses weeks, about three and resulted argument used at the trial. The is based conviction of all of defendants. upon the decision of the United States appealed. These four have Supreme Court in Jencks v. United carefully States, 1957, We have 3, 657, read the rec June 353 U.S. 77 pages 1007, ord of more than 1300 and we S.Ct. 1 L.Ed.2d 1103.4 The ma- 1942, 410, States, citing States, 1. 1953, Goldstein v. United 316 Lutwak United 114, 121, 1000, 617, 604, U.S. 481, 62 S.Ct. 86 344 593; L.Ed. 1312; States, Cir., Eldredge Cir., Shurman v. States, United 5 v. United 10 282, 288; 219 F.2d 62 Cantrell v. F.2d 451. States, Cir., 1926, United 5 F.2d 954; Am.Jur., 395; Evidence, trial in the case before 4. us was con- cases § 25, 1956, cluded Oct. the decision in Note of this collected 285 to the text in the Jencks case fourth amendment rendered U.S.C.A. Oct. 226 F.2d Su- Reynolds States, v. United 225 F. preme Court decision in Jencks an- 123, 131, 132, 2d ed; and cases there collect days present nounced a few after also, see, Ritter v. United argument. case was submitted oral Cir., 1956, 230 F.2d supplemental brief, ap- In a pellants one of the thus; States, Cir., position Abbate v. F.2d stated jority opinion that, of this is of the cross-examination this witness. case, I further under the of this would like faсts below not reversible error court Attorney to direct United States did commit denying statement. to make available access to the grand minutes defense the I. jury, extent, least, presented point to the trial deal with the on Lawn- transaction govern- Adams, way. arose dale, to which this has now witness given written ment witness who testified.” Agent Finley, was statement to Narcotics argument, After stated: brief the Court Attorney by under cross-examination objection.” “Overrule the Rodney Walsh, H. represented who Attorney promptly an noted Walsh Peevey, a was convicted who defendant exchange exception and, of after further appeal. but who did The entire not “My Attorney Golding views stated: of evidential appellants for contention basis specific defendant, Indiviglio, invokes by question of one consists ruling.” Thereupon exception Attorney concerning Walsh that state- Woody Attorney the de stated: “For alleged ment, relating solely to the represent, Mr. and whom I fendants Peevey’s secreting by of him in heroin LaPorte, we Mrs. Giordenello Mrs. home, by and one witness Adams: answer join request his Counsеl Walsh in “Q. true that in that And isn’t it 5* you the trans- statement said that testimony record is no in the There regarding heroin action occur- reply tending quoted contradict Street, on than red Keller rather stand, made Adams on the witness No, Lawndale? A. sir.” secreting prove heroin this of or that Attorney having retired, jury The by Peevey instead was on Keller Street made oral motion in these Walsh an arguments of on Lawndale Street. The words: attorney support by appellant’s your “Now, Honor, inspect this time for an this oral statement, appel- Finley I ask that di- the Government be as well as produce inspection us, rected to for lants’ briefs before testimony question contradictory counsel the in statement of Adams was Finley charged made to Mr. on or about the of one of the overt acts purposes February, undisputed of middle for of It was indictment.6 days argument statement, “fully “Five oral in this after entitled to the Adams case, applying policies the United States of even the restrictive time, decided a defendant trial was the argued At he new statute.” the same inspect entitled government statemеnts made which the “that the restrictions * * * places witnesses. on the doctrine vio- statute Jencks rights to lated defendant’s constitutional “This, course, precise of was the is- compulsory process evi- to obtain have specified raised sue the third error enjoy process dence, due of law.” and to appellant’s in this brief applicability of statute is the new opinion cleaidy Jencks establishes presented not to us is not considered appellant’s the denial demand for in- by us. spection of the statement Robert C. ‘Mop’ prejudicial appear appellant Adams was Kolm reversi- 5. It not does request. joined error.” ble in the Appellants position taken the Act] not 22. On or about Janu- “[Overt present Houston, gov- ary 26, 1956, vicinity decision case in the Texas, erned statute enacted Robert O. the clos- Adams concealed days ing quantity Rodney Peevey’s Congress, the last session of Heroin H. 3500, ap- Houston, Texas, § 71 Stat. 18 U.S.C.A. on Keller Street in home Sept. proved (Appellant said occurred with Giorde- concealment sup- knowledge Rodney refers to the statute in consent his H. Pee- nello vey.” plemental and asserts that brief he materiality testify demand, statement the Grand before not Adams did contradictory furnishing allegation evidence. indictment Jury in the margin giving quotation taken rise the effect would not have Appellants:”8 “Brief from the of the to a contradiction court, Sitting appellate do as as we Adams. witness finding justified error we are events, Peevey did At all only with trial court actions conviction, judgment appeal from the respect presented to that matters re provoked question and the court, contentions and limited to the Nar quest Adams’ statement requested made to as the basis for the Agent relate to did not cotic action. appeal. parties who are apparent, therefore, record It is II. tending support no evidence contains dealing essentially We are here question implications contained right discovery. This the claimed Attorney Walsh, or contradict when, adversary litigation, one arises impeach witness statement party entry the seeks to enforce an into Adams; rule that and it is the universal litigant purpose file the other for the may impeached to as not be witness obtaining by the statement taken not material.7 matters litigant preparation trial.9 in for second decision, question before for us bearings dis- It is well to take our to therefore, is the Court this: Whether cover the state of law which faced the denying in below abused discretion the lower court when the motion statement, Adams and access compel production state- of the Adams action was shown to whether such ment was made. sufficiently prejudicial material and require appellants to reversal. (a) Discovery governed, both is by recognized Appellants cases, in criminal and civil rules of in their practice promulgated by argument Supreme the neces brief and before us the congressional authority.10 showing Court under sity predicate as a for the Indiviglio argument days foregoing and Diaz the for after mo- Several the 7. production made, statement was Adams tion was the court below wrote prayer production upon request for limited to for word “Denied” ad- thе inspection judge, ap- by the wholly the trial to the clerk of dressed the —a request subpoena pellants different from that made for the of a issuance upon appeal Finley, in the motion which the tecum for duces William Thomas predicated. Agent. Here is the statement made For reasons Enforcement reply appellants: rights by brief of these sot out the claimed hereinafter very simple appellants thereby enlarged. have “It would been a were not mat- ter for the court have called definitely produce inspection shown “It was that the state Government it possession judge by request in existence ment was and trial when was de- through appellee, by attorneys appellant. cross-examination manded If appellants’ witness, Adams. Had the statement did establish contradic- statement, requested, produced, variances, as and tions interest apparent justice it is material contradic trial court should have re- prevailed have quired permit tions would appel- the Government to insofar Clearly inspect witness was concerned. it counsel to lants’ the same.” require error not to and to Except rights where constitutional appellee produce the statement claimed, the Government is entitled to ex- question. v. Gordon United 344 actly any same treatment as 447]; [73 S.Ct. 97 L.Ed. U.S. litigant. Cir.,], v. [2 States Krulewitch United 337]; By [156 145 F.2d A.L.R. United the Act of June 54 Stat. Beekman, Cir.,], [2 now 18 § States F. U.S.C.A. the Su * * empowered [Emphasis sup preme by Congress 2d Court pass plied.] governing practice rules reply Courts, promulgated In the brief filed District them Supreme literally conferred on the rule does not cover situation dealing. these words: with which But the statute we are principle discovery inspection, Unit- “The Court of the allowed, whenever is established power to ed States shall ingredients: Rule and includes these time, prescribe, rules from time to showing There must items be a pleading, practice, procedure sought “may prepara- be material proceedings respect or all with of his tion defense and that the including verdict, prior Advisory is reasonable.” The Commit- finding guilty guilty or not * * tee’s note clear the suffi- makes it in criminal ciency shall within courts cases district the discretion of the District Court. of the United States *. Such Congress (b) year passed In the rules not take until same shall effect Congress reported Act the rules were shall under which have been shortly Attorney promulgated before the Com General regular beginning collabo mittee of a there- session preparation, fresh in their rated and until after the close of long-pending much- session, -in minds was laws and thereafter all publicized conflict of no case of States therewith shall be Socony-Vacuum Co., (argued Feb. further Oil force and effect.” May 1940) 5th and decided 16, 18 U.S. rule Fed.Rules Crim.Proc. 150, 60 84 L.Ed. 1129. What dealing one C.A. there decided subject reads as follows: and existing respect with then law the Discovery Inspection and “Rule 16 requiring permit the the Government “Upon of a motion defendant inspect statements taken defendant filing after the time exactly applies and it from witnesses information, court or the indictment except in situation now before us the attorney may the for the respects: (1) prior the statement two government permit the defend the witnesses was before of the grand jury photo inspect copy or ant to (but рrivilege question no of designated books, papers, graph raised, discussed, decided), and or was tangible objects, ob or documents during had, (2) direct the statements belonging de or to the tained attorney, examination the Government o from others or obtained fendant read t the witnesses to refresh by process, show or seizure they recollection, but had not been their sought may ing items In both exhibited witnesses. preparation his of the material stronger showing respects, there was a is and that defense permit requiring for the Government to * *” * reasonable. inspection of the statements than used before the case us. Advisory Committee’s note Socony under exist- “Whether In the Government used the rule states: this ing discovery may permitted grand jury refresh the of law memories * * involving ninety times, doubtful *. The is witnesses cases criminal reading within the discre- more than matter is them one thousand entire left previous testimony, of the court.” lines which re- tion of no the state- about fifteen there is evidence that vealed inconsistencies be- Since “by read and of was obtained seizure what was Adams tween testi- ment mony by process,” is it obvious that on the stand. trial or Dec. 1944 and became effec- then Chief Justice of the on rules, Jersey, on New to draft tive March The Court of Advisory lawyers appointed contained ‍​​​‌‌‌​​‌​​‌​​‌‌‌‌‌‌​‌‌​​‌​‌​​​​‌‌‌​‌‌‌​‌​‌‌‌​‌‌‍Committee head- the Committee Vanderbilt, late Arthur and distinction. ed T. eminence discretion, permit conclude every where fact we instance, refused, phase any part record on this from the entire inspect counsel to defense judge supervised being of the case that used transcript which procedure with commendable open recollection to refresh the sum, use Appeals fairness. the selective witnesses, testimony precaution set of this Supreme Court But the reversed. judge trial made it taken and affirmed action aside its say impossible for us he is Court. Some of District sound dis- transcended limits logically here, influenced applicable as it permitting be used empowering cretion it to Congress in its making government by the without District formulate rules for Court to Courts, * available to the defense. it Committee Advisor working out: them clearly appears addition, “In “* * grand jury the use this material Such use of prejudicial. testimony purpose re- as the So far sub- for the ject inquiry freshing matter of the is a wit- con- recollection of prior cerned, testimony discretion in the sound ness rests judge. [Citing cases.] either cumulative or dealt the trial appraise conspiracy. the minutiae witness, can He sees the testimony clearly hostility, record minus that recalcitrance, eva- his necessary re- all some establishes the facts or his need for siveness proof illegal conspiracy. freshing material, and can determine portion dependent No of it all the cir- whether or not under concerning grand jury the minor the use of cumstances facts necessary memory appropriate witnesses was minutes these refreshing Hence, As his refreshed. recollection. the situation by Judge Hough, vastly ‘The different once stated from those cases refreshing memory ingredients where essential fact that the bald dependent found in the records crime were words grand jury objection.’ is not a elicited in that a valid manner or where the requires guilt hung No irоn-clad rule evidence of in delicate opposing testimony the counsel be shown balance if jury transcript grand pages is where it deleted.” U.S. at 234, 235, page the witness and where not shown S.Ct. at appropriate procedure is some prevent adopted improper use. During following grant period the the again rests is a matter which That Congress to the sound discretion the court. the rules, Court to formulate criminal process operation, is no there inexorable rule while the was in full “Since Supreme Court, April all under circumstances en- the declaratory the witness and his counsel to rendered another decision titles discovery prior statement made under see the law at the time the adopted, promulgated and since this case the court were oath rules directly and thus examined v. United itself Goldman grand jury the use of the controlled testimony, 86 L.Ed. 1322. say conspiracy we cannot A indictment had been re- against largely make it available to coun- refusal Goldman turned based per agents is for the defense se re- sel Government they To heard, hold thаt it versible error. had what means of detectaphone, in the instances here under error of a conference in a co- conspirator’s would abuse review office.11 The Government find co-conspirator lawyers. 11. Both Goldman and the agents thing respect had refreshed admitted hold the same from notes Rule 16. The of the trial their recollection discretion lawyer’s transpired judge questions. what controls all When- them of hearing preliminary inspection ad- office. At a ever of documents right versary’s requested, trial court the trial Goldman demanded file notes, only wit- inspect from which will allow it materiality the limitations under provided had refreshed their recollection. and reasonableness nesses right trial court refused the The Supreme Rule. using affirmed, lan- (d) plain It is guage: rule-making power Court derived sole “We hold there was no error from the statute modify it could not and that denying inspection wit- provisions add to judge was nesses’ memoranda. The except by following rule, procedure right clearly ruling pre- in his at the provided. therein liminary petitioners hearing, as thе discovery access, prior right (e) should not have constituting trial, inspection Rules under material the Criminal portion ought judged against substantial Govern- back to be ground ment’s case. of Civil of the Federal Rules adopted eight earlier, Procedure, years it the “We think better rule experience and decisions use his witness does not where a pointed out Court12 them. party court, a memoranda in notes or 16 of Criminal Procedure that Rule right to have them has no absolute governing civil modeled Rule inspect produced them. and to language procedure.13 The of Criminal Where, here, they are not closely Rule 16 follows part are also notes but the witness’ quoted Civil Rule and the last sen large files, a of the Government’s two Rules identical.14 tences the trial must allowed discretion unwilling judge. to hold We are right discovery under abused in the discretion was the Civil Rules to cases where limited [Emphasis supplied.] this case.” good parties have for the shown cause above, right (c) Rule 16 order, As stated while the in criminal cases discovery primarily “Upon clause, to cover is limited intendеd beginning sought may inspection before that the items be material to generally accepted that preparation it is But his defense and that trial. counterpart (Fed.Rules of Civil is to civil reasonable.” Access U.S.C.A.), 34, placed 28 couched Rule Procedure statements witnesses on the providing by litigant always stand a been in similar has con —neither during may governed by discovery any rule, utilized sidered as time limit— trial, 4 Federal of the Moore’s course and the Court first dealt with Edition, 2440, Practice, pp. subject Hoffman, 1943, et Second Palmer v. 1941, Cir., Smith, 9 seq., States 318 U.S. every 911. There reason F.2d Taylor, counts, letters, photographs, objects, 329 U.S. 12. Hickman v. or tangible things, privileged, 91 L.Ed. 451. not which con- S.Ct. relating or contain stitute evidence any showing good “Upon party motion of any scope of the matters within the of the upon all notice to therefor cause permitted by 26(b) examination Rule * * * parties the court which other possession, custody, in his which are or pending may any (1) action an * * control produce inspec- permit party copying photographing, by scope or 14. The more restriсted tion the Crim party, moving of the behalf inal Rule will be or discussed infra. documents, papers, designated books, ac- English discovery permitted by the witnesses testified of Hoffman’s One given courts,16 and Rule 34 he had held that on cross-examination signed statement, Civil and Palmer’s Rules of Procedure involved him a permit inspection by did The trial court not the adverse see counsel asked to it. party production, right, required compel but a matter but offered to open showing good would that this cause sufficient condition using offer the state- warrant dis for Hoffman to trial court in the door permit inspection. counsel de- cretion to In a Palmer’s ment clined, evidence. concurring assigned specially opinion as error Justice Mr. joined 26(b) Jackson, had, Rules court below Mr. Frank Justice furter, language: Procedure, Civil committed error used this declining permit in- unconditional petitioner “Counsel spection the statement. ** * bases his in his claim it assign- declined consider the brief on the view that the Rules Douglas and, through Mr. ment speaking Justice away were to do with the old sit- court, used for a unanimous develоped uation where a lawsuit language: into ‘a battle coun- wits between sel.’ But a common trial is and law “Since the document always adversary pro- should marked for identification and is not ceeding. Discovery hardly in- part record, we do not know profession tended to enable a learned what its It is contents are. there- perform either its functions with- impossible, fore as stated out wits or on wits borrowed below, determine whether * * * adversary. All such the statement contained remarks procedural measures have a back- might impeach which serve to ground practice of custom and say Accordingly, witness. we cannot was assumed who those wrote ruling prejudicial even apply and should be who those we assume was erroneous. if ** question them. re- Mere ‘technical errors’ which do not signed mains as to statements or rights ‘affect the substantial those written witnesses. parties’ are not sufficient to set Production of such statements are jury appellate aside verdict in an governed by ‘Showing Rule 34 and on court. 40 Stat. 28 U.S.C. good may cause therefor’ 391, 28 § U.S.C.A. 391. who He inspection, copying order their judgment seeks have a set aside photographing. application No such ruling because of an erroneous made; has here the demand showing carries the burden right, is made on basis not on prejudice resulted. That burden has ”* cause. by petitioners.” not been maintained pages 516, 518, U.S. at [Emphasis added.] page shortly Taylor, supra,15 Hickman Palmer v. Hoffman was Mr. written Murphy, speaking Justice also a before Court filed with Congress court, unanimous widespread the Federal of noted Rules Criminal controversy among Procedure, Taylor legal and Hickman was members of profession filing, immediately problem pre- over written after there sented, part very and both were a of evolution in adverted restricted Argued Wigmore Evidence, 3946, 15. in 8 cases 3rd Nov. decided Jan. Edition, 1940, pages 1947. For 618-622. a further velopment of discussion the historical de Quoting Odgers Pleading 16. discovery inspection, from and of and Edition, 1939, page also, see, Dairy Practice and United v. Bowman States referring compilation English Co., Cir., to a of 159. F.2d by inspection procedure under Rule 16 for of cеrtain had been initiated which century books, documents, papers a Taft half and and William Howard by agreed ago,17 collaboration and included Government which Thereupon Supreme Court, lawyers, Con- documents. and furnished those gress. Bowman served on the attor- Government neys calling subpoena a duces tecum Discovery inspection under and including documents, other narrative always conced the Civil Rules have statements of witnesses and under ed to broader than the Criminal writings by not obtained seizure of Federal Rules Rules. “Under the process. The Government moved liberality Procedure, dis of Civil utmost quash ground subpoena on the that envisaged covery prescribed. and writings custody in its could be ob- was, however, discovery deemed Liberal tained under 16. Rule The motion cases. It cannot in criminal unsuitable attorney denied, the Government against defendant without be had as comply refused to with the court’s order rights encroaching on his contempt. and was held The Court Like Fifth Amendments. Fourth and Appeals of re- for the Seventh Circuit wise, inexpedient unwise it seemed versed, holding that Rulе did not en- policy a allow broad as matter of discovery title a defendant to broader against discovery as the Gov

unbridled permitted than that under Rule 16.20 thought mind, ernment. With this judg- Advisory dis vacated the covery Committee limited Appeals to ment of of the defendant the Court of and re- behalf manded relevant were made the case for trial under documents [as holding scope and ing show of which materials admissible] by subpoena to could were material be reached the items discovery preparation provided broader by the defense and than under of Rule 16.21 This reasonable.”18 from opinion light problem sheds on the be- (f) pre-Jencks history of fore us: right discovery and of in criminal cases inspection by “It render- two decisions was not intended Rule 16 includes give right passage discovery, ed Court since limited give right In then the Federal Criminal Rules.19 Rule 17 to discovery Dairy filed broadest Bowman a motion had been terms. evolution the broad 17. See “A In The Federal terms Criminal Case Holtzoff, Fed- to its Courts” Alexander restrictive ‍​​​‌‌‌​​‌​​‌​​‌‌‌‌‌‌​‌‌​​‌​‌​​​​‌‌‌​‌‌‌​‌​‌‌‌​‌‌‍first draft final terms, (West), limited it eral Procedure is difficult to believe Rules Criminal page the framers of the rule intended to inspection discovery authorize 18. “A Federal Criminal Case scope (c) pertaining broad under Rule 17 Courts,” Holtzoff, Alexander West subpoena expressly pro- which was Company, Publishing Rules 1955 Federal hibited Rule 10 is the rule in- page Procedure, at Criminal discovery inspec- tended to cover Supreme Court, And the the Gordon tion.’’ U.S., case, page of 344 infra at 9, foot- point page S.Ct., 21. The careful note 373 of 73 noted Court was out discovery provisions Fed- “Where the court concludes ought produced, eral such materials to be Rules of Civil Procedure should, course, pro- be solicitous broader than those the Federal Rules against identity tect disclosures Procedure. Criminal informants, method, and the manner Dairy Bowman Co. circumstances Government’s 1951, 341 acquisition materials.” and Gordon United attorney produce The who refused to 97 L.Ed. 447. subpoena in the documents called for the Co., purged contempt Dairy 20. United States v. Bowman was of because the sub- poena broad, “Considering 185 F.2d 163: the too and it was had to be history entirety.” judged of Rule which shows the “in its that, had 17(c) in- and not since Marshall concluded Rule every- admitted on cross-examination thing provide additional an tended to shown discovery. in- which could have chief been Its means of demanded, an the not expedite records it was trial novation by to place abuse of court below discretion for the providing a and time before deny sub- of these inspection access to use of trial for the There records. poenaed materials. from no to exclude intention The Court reversed process of the defend- the reach of large measure, based, decision any used that had ant material admis- whether would be the records grand jury or could before the ; pointing Govern- sible out that short, used the trial. at apparently ment conceded materials, ad- or other document ought production compelled below evidence, obtained missible as evi- records constituted admissible if or solicitation the Government dence. Court dealt The persons is voluntarily third question of evidence before it as one subject subpoena.”22 by applying Rule to be solved Criminal added.] 26,24 16. Rule did not mеntion where convic- case involved a Gordon opinion (344 U.S. testimony of largely on tion was had 372) pages page 418-419, at S.Ct. at accomplice. Marshall, cross- On an one clearly not shows the Court he admitted examination Marshall intending the matter to deal further with statements more had three or discovery inspection, base but implicate did not FBI which he holding upon evidence the rules of thereupon asked The defendant Gordon. under Government’s concession: compel production the court “Apparently, earlier common law transcript of also a those statements and permit require not did the accused to judge, proceedings trial had before the production of such documents. Some up cir- sentence who held recognize jurisdictions no state still probably have which would cumstances right comprehensive to see docu- finding jury Mar- warranted the prosecu- ments the hands of the tacit assurance at least shall had received might merely denied, tion because aid requests immunity. preservation preparation Appeals for the Seventh and the of the defense. We need con- Practically entire affirmed.23 Circuit sider such broad in order doctrines Appeals re- the Court battle before case, this which deals resolve the statements around whether volved category with a limited and would be admissible and the court records definite holdings documents to which the Rule produced. mentioned if 17(c), That Court opinion are likewise con- providing subpoena duces fined,25 tecum, Rule did not mention but light experience.” [Empha- U.S., page of reason and pages 220-221 of 22. At sis explicitly given Latitude Su- Gordon, 1952, 196 F.2d States preme determining “the admis- 8 sibility competency of evidence and the privileges of witnesses.” But wit- 24. “In all trials compel right inspection must be ex- open orally in shall be taken nesses within the ercised limitations fixed ** admissibility evidence *. only Buie the Buie —the as shown from eompeteney privilege quotations creating right above — except governed, witnesses shall be when discovery as one not theretofore exist- Congress act of or these rules other- ing. provide, principles of cоm- wise they may interpreted by category and definite mon law The limited opinion which the Gordon courts of States documents the United “By proper cross-examination, de- suited from the trial court’s denials * *” * petitioner’s fense counsel laid a foundation motions. showing by his demand motion In the case before us the existence, were documents were demanded Adams statement Government, possession forthwith delivered direct to by were wit- the Government’s any showing probable con without examination, ness under were con- appellants. prejudice tradiction or tradictory testimony, present his appel Hoffman, supra, Under Palmer v. as that the contradiction was lants carried the burden relevant, important and material prejudice bringing resulted well as of directly matters which on bore the Adams statement before us. being partici- main issue tried: pation of the accused the crime. III. * * * light In the of our reason principles are axio These experience, better rule guided through have, ages, matic and the foundation every jurisdiction: courts of rank and laid the court have overruled should general an “The appellate rule is that objections which the Govern- only will consider such produc- ment advanced and ordered questions as were raised and reserved tion of the documents.” lower court.”27 “It is well settled that theory upon which the case was tried Court, It strictly is clear that in the below must be ad Gordon, did not consider whether appeal or Under hered to on review. accused should have documents party access to permitted, this rule a will not be merely they might reviewing because aid in appellate court, or preparation position his It held assume a inconsistent with that defense. merely that the three statements occupied him in the trial court with pro- grounds theory did show inconsistencies should be respect or opinion duced. The Burton, joined Justice recovery opposi Mr. of defense or relief or or Harlan, sufficiency plead in Mr. tion, Justice or the nature Jencks,26 admissibility sufficiency his- ings, demonstrates that or always torical evidence, proof.”28 rule has use of or burden of a witness’ statement should be confined general appellate rule that an “The inconsistency to those instances where only questions as court will consider is shown: court, and the raised in the lower theory requested requiring “Petitioner rule adherence to produced ordinarily below, operate pre the records pursued to the trial consideration, appeal

court. He is entitled to more. or no clude the review, ** reports grounds But if [sub- of defense or mitted to the trial opposition do not court] not asserted and relied contradictory exculpatory gen contain “Under the in the trial court.”29 helpful petitioner, principle requiring material possible prejudice no definiteness eral particularity

could have re- statement of fifty supported by was confined was three statements more than decisions of FBI who witness admitted that Court. those statements did not include Gordon. 253, pp. The first sen- § 28. Ib. 35-37. words, In other the witness admitted that supported fourteen tence is produced impeach if statements would cases. testimony given at the trial show- 287, p. 59; thirty-two Supreme ing Ib. § inconsistencies. clear supporting cases are listed as 77 S.Ct. 1018. 26. 353 text. Jurisprudence, of 3 This text American “Appeal Error,” 246, p. 25, §

561 motions, objections, and ex- grounds and must be construed light ground upon which of the issue ceptions, in con- where which was troversy testimony should in the case de- which was claimed * * They cided stated at *. were not ex- admitted must not be been trial, beyond will tended propriety purpose exclusion of its authority in on another review.”30 case. not considered different words, In other opinion to make an a therefore, plain, It is appli- decision there must have been an exercising Court, as it in Jencks judicial cation of the precise mind to the jurisdiction, only appellate was em- its question necessary to be determined powered put in error the trial court rights order to fix the parties.”33 considering ruling only re- with appellant do spect asked it to to what graphically epitomized rule theory on relied based on controlling Mr. Justice Reed in the Ap- appellant presenting his motion. opinion in Darr Burford, 339 U.S. require pellant trial court to asked 200, 214, 587, 595, 94 L.Ed. present court— to the the Government 761: appellant Ford Matusow and not to —the doubt the “We effectiveness of a solely basing requests statements, his voluntary point statement on a not had estab- he assertion that Compare Bowen, in issue. L. J. by proof that these statements lished Co., Cooke v. New River 38 Ch.D. probably contradicted the my 70-71: like The Su- the witness stand. me, who sit Brothers with I am preme decide had the extremely any reluctant to decide evidence, that, facts in on the thing except necessary what deny- its discretion in below had abused special case, the by I believe ing because presented at as it ‍​​​‌‌‌​​‌​​‌​​‌‌‌‌‌‌​‌‌​​‌​‌​​​​‌‌‌​‌‌‌​‌​‌‌‌​‌‌‍was long experience judgment universally But, under the trial. accepted principles, these weight far comes with gravity more competence did upon points when go beyond come not that. Judges are to de bound IV. cide, dicta, I and believe obiter proverbial appli like the tiny, chickens of des rule of is a universal It home come sooner or Supreme Court, roost as well as cation very way country, later a uncomfortable cоurts of this Judges them, binding who have uttered opinion no authority can considered as great and are source of embarrass unless the calls for its case 32 in future expression.31 Jurisprudence ment cases.’ Cohens v. American Virginia, Commonwealthof 6 Wheat. upon scores of deci drew Wright 399-400, 257; 5 L.Ed. in its distillation of rule to these sions general 302 593- “The ex words: pression opinion in an the court 439.” in connection be taken with the case text, 83, p. 353, p. citing § 33. See same 295: “The doc- 30. Ib. a number of Su § contemplates preme support. trine stare decisis Court decisions in De points actually as are involved from all of the cisions states are cited case, foregoing quota determined in and not what is said 'with the connection judge contrary court or outside record and no tion statement has been points necessarily holding involved And cf. our found. recent case Citing thing, therein.” number of the same Matthews v. United States, 1954, cases. F.2d quotation Lessee, 34. The combines the text of Carroll v. Carroll’s Cf. 16 How. opinion with footnote 38. 57 U.S. L.Ed. 936. Frankfurter, words of Mr. Justice Am.Jur., Courts, 79, p. seq. joined, § Mr. et whom Justice Black dis- judge The trial V. оverruled both motions manifestly upon his conclusion that the of the Su- the decision In order that requisite inconsistency contradiction and may preme be tested in Jencks had not been shown. The entire battle- is decisis it as under stare to force ground in the court below based necessary just was there to consider what single argu- point, on this in the ruling court and before the trial Appeals ment before the of for witness Mat- thereon. Government’s the Fifth position Circuit the same usow, of the Communist a member maintained. Government, party employ of in the the supra, had made a number had testified that he discussed the authorities Under nothing of to the written and oral statements had before the attorney Government, had question and Jencks’ whether the trial it but develop sought denying to two motions cross-examination erred in solely predicate argued were inconsistent on the those statements that based given inconsistency testimony well at trial as had been with a that testimony given by concession, made; upon him before based as with established, upon out We set as then well a Senate Committеe. the law transpired margin portion first a of what must be sub- that the statements what Court below for its decision to demonstrate mitted to the materiality. upon, what was and therefore relevance and ruled go authority ren- be- Court when it Court was without to before the ruling yond re- decision.35 the trial court dered the Jencks senting ground making helpful for this We are here: examination. procedure portions reports, that those on matters of ash “Decisions ought in the Gow-t’s the Court’s control not to which meto read- within after Quick evidentiary shifting ing them have an fluctuations value in like sand. be impeachment, be avoided unless a rule case in them should be tluis available to us made proven practice mischievous cross-examination has itself * * * * Respect practice. for an *. we ex What are concerned with adjudication obtaining plicit pro written on matter declarations this is witness which are inconsistent with very recently rendered after his cedure fullest consideration, testimony; Court, well as we assert to the decision, should lead us the basis of the Krulewiteh on other case and soundness Mayo cases, right to we [334 adhere Wade that ob- prior 1647].” 92 L.Ed. the witness’ tain der to show statements or- page 221, page inconsistencies, at at 70 S.Ct. ex- 339 U.S. if ist; right and a denial of this to look of Mr. the statements would be this And see the Justice case Wantock, & error.” Armour Co. reversible Jackson responded 132-133, attorney Government’s 323 U.S. timely again by attempting “It 118: is to differentiate the Krule (upon counsel that words our witeh case which chief remind reliance light based) opinions read from the one then before the stating: Court, “There the the case discussion.” trial ness admitted wit the facts on the witness stand that please, If the Court 35. “Mr. McTernan: she statement to the F.B.I. time, you move for an we this a.t entirely contradictory what prosecution produce requiring the * * * stand, had testified to she reports submitted to the EBI court by I submit here varied this witness has not ®. ask witness We particle one of those following procedure doing this the in adopted: statements he has made and the require the Court making statements he on the witness produced reports be and handed now.” stand inspection. We Court for desirе report portions counsel a like motion those will Jencks’ testimony. respect given by witness’ statements contradict Gov- disparities upon Eord in his witness and based view ernment good grounds. far, I there is a submit same so importuned appellate jurisdiction. sponding it was the action But procedural perhaps significant branch of Whatever most take. control, jurisprudence comprehended held should be least limitation judicial possessed power discre- court was trial that this do, did extends tion to do what cases and contro- * * * only jurisdiction appellate versies. court had The result only that discretion determine whether limitation is that the Court’s power There was is to abused. decide lawsuits between * * * litigants. adversary court Also, Jencks record from which the trial appellate in as court, properly could have found that the statements an it only in- the FBI files contradicted or were can act on the state of facts by wit- with those on the revealed consistent the record made in the ruling below, supplemented ness stand. reversal its some- by Supreme could, gеneral by and must Court times information of as, may judicial be considered founded the as- which it take notice. sumption that it the trial court over, felt that And when it is all exercising against judicial decree, erred in discretion broadly however worded, actually Jencks’ motion. binds, in in- most only stances, parties to the case. VI. others, merely As to it is a weather Jencks, The decision in within the way judicial vane actually decided, points limits of the blowing precedent wind is —a is the law of But it is not that case. likely the Court in a similar case is the law of this “law of the case—nor the weight to follow. Its real in sub- land.” Mr. Justice Jackson thus defined sequent cases, however, depend will Supreme the character of the Court’s many factors, quality such as the System: function in the American prevailing opinion, dependent “The Court also is strength any dissent, accept- political powers branches or its by profession, ance or criticism respects. in other vital Its experience jurisdiction original. application and the in irrevocable ** the rule.” In all other cases it has opinions majority 36. “The In The Amеrican overrules two Court judgments System Government,” Harvard of this Uni Court these same cases, reported versity Press, quotation page 470, 351 U.S. at brings together page 886, 76 S.Ct. at several sentences and 351 at pages page 487, page 880, 11-13. 76 S.Ct. at and en- 11, 1956, tered on June less than 12 attempting 37. The unwisdom to limit ago. months In substitute therefor it holding stare decisis to the of one case opinion enters no whatever for the Court. difficulty divining as well as the majority. It is unable to muster a direction which that “weather vane” But, all, gives worst of no authoritative points illustrated guidance what, anything, as to if Ex- dissenting opinion from the of Mr. Jus Congress may ecutive or the do to reme- Clark, tice Burton, concurred in Mr. Justice dy distressing situation in which Covert, in the case of Reid v. now find themselves.” 1957, 1, 78, 1222, 1262, 354 U.S. Congressional “Furthermore, And 1 L.Ed.2d 1148: four Record of Feb. my 18, 1957, page specifically reports speech Brothers would over impair long-recog would rule two made on the floor of the United States vitality respected prec an nized old and Senate Senator Stennis in which he law, Congress Ross, in our the case of In lists ten Acts of edent re in the last twenty years passed spe- 140 U.S. S.Ct. “for the sole purpose ap reversing L.Ed. cited this Court with cific Federal Court many proval opinions opinion contrary arrived as late to the intent Congress enacting a unanimous as Court in Ex the statutes under Corp., parte consideration;” Bakelite 279 U.S. and in which the Sen- “ * * * And, 49 finally, ator made the statement: aside, reverses, upset body the Court sets also Court has own Socony, Goldman, Palmer, on Jencks side of The reliance Hick- man, Bowman, (none would have a if the facts firmer basis Gordon of which precisely overruled), same as here. there were be con- would clearly they merely general But are not. sidered as one case in the body through points developed was work- out that Matusow the law ages. ing while undercover the Government Whatever undiscovered Jencks, Supreme posing may friend of intimate have in a universally prosecu- by-pass accepted case he had for the testified appellate procedure quoted, rules of tion in other cases. The above clearly power. we appellatе felt that Jencks’ have no such indicates that it We sit as an judgment upon his conviction could not stand without testimony. While, rulings case, present in the as below contained jury upon in placed the record and the Government before the as based the theory right thirty-three pages appellants witnesses and claimed presented guilt testimony, appel- to that and the of these court. And we must abundantly principles follow the lants was with- established established above testimony. any upon exemplified reliance discussed and as out Adams’ the Su- preme Court decisions listed in this Moreover, had, on Matusow a motion paragraph, expressing thought the best trial, for a new taken the stand in Jencks’ Justices, partici- several of whom imply attempted behalf and that some to pated Jencks, period over a of two testimony false; of his trial was at the during decades which the Civil and Crim- published book he a under the adopted. inal Rules were We are with- title “False Witness”38 which that grant appellants out to more than implication developed. In further they requested below, of the court or to ease, this the record contains no evidence grant theory relief different tending any testimony at all to show that advanced the court below and be- relating appellants open of Adams to fore us.39 slightest question. reaching conclusions, In that, these It is we have further clear teachings history decisis, ear the stare to Jencks would not stand weighing tradition, alone, along- place the facts before us but would its take judicial paragraph ute. The second case law to state- the extent precedent probably ment reads follows: less means to “The issue Jencks involved case Court of the United States procedure any court, under which a defendant than in Federal, State may inspect govern country. Actually a statement of a in the impeach witness, specifically ment credibility to cases been overruled argu of such witness. Court of the United States ment of the case centered on whether it 7 more than since This is necessary for the defendant to were es 29 which overruled same inconsistency during years tablish a foundation of bе the first 142 of its * * testimony history tween the the witness and *.” the statement before the statement was States, Cir., 1955, v. United Jencks made available the defense. The Court 226 F.2d held numerous lower court cases supra, holding necessary 39. As stated footnote 4 we have foundation was apply wrong, not asked to new Fed- were and that statements which And eral statute this case. the fact relate of the witness terms are somewhat at variance must available to the defense requiring with the conclusions here reached does without the defense first tempt accuracy. inconsistency. accept us to doubt establish some We principle.” Nor are we influenced the statement Attorney pre-Jencks General No Senate law has been found Judiciary might Attorney Sub-Committee on June have led the Gen- 28, 1957, accept principle. which doubtless accounts for eral logical, therefore, It seems provisions acceptance some of of the new stat- sense, appellants These are entitled light common reason they safeguards resting upon duty us all constitutional rеsponse —and while, denied do not contend that justice to do reaching fair That which them—and to a trial. time, result the same they complain widely expressed have had. The error combat will tend to manifesting ju- relating Ap procedure alone. is one the courts idea that arguing pellants, apparent of this under the facts irresponsibility in their dicial reversal, big “concerned from case for are more “protect wolf bad efforts to deciding etiquette Riding with the mere of trials Hood.” little Red (Rule with the formalities and minutiae procedure” reasonable material and what is delineating “in the than with substantial 16), what inor (Rule are, experience” our light merits.42 Such matters under court, of reason system, assuming applies) cannot entrusted to trial we that it ap appeal, judgment should be the state account of fail to take gov- organized struggle proved say age-old unless can that there we between organized prejudicial The fair a “clear abuse crime. ernment and Unit record is discretion *.” Michelson v. inference from this great expense turned ed has аt Government overwhelming up convicted, 213, 221, evi- here 93 L.Ed. 168. To do this dence, compelled nar- leaders of the we some of the would be to hold that grievous taking wrong appellants cotic traffic which is a matter of law fully were of the toll of health and morals denied access to Adams state youth they people particularly of this ment and law that as a matter of message legis- prejudiced by produce land. lature, recent it. failure to New York stated: the Governor of It is our did view that the below continued “The number of addicts has not abuse its discretion.43 grow. in New York Narcotic arrests City percent ap 600 Moreover, alone have risen it is clear that decade; past persons pellants prejudiced arrests of were not twenty-one per- challenged ruling 2300 have increased court. We the trial 41 repeat cent.” what the Court said 338, though “Justice, bet- founded on the conclusion that was due 78 L.Ed. 674: closing days tor, accused, in the hectic also. is due to the accuser congressional session, concept to make some con- of fairness must not be cessions order to be relieved of the till it is strained narrowed to filament. keep onus of other features of the Jencks de- are to the balance true.” We Clark, cision led for- Mr. Justice States, Cir., Shurman v. United 5 See 41. concerning Attorney General, say mer 272, 280, F.2d and footnote 6. 233 (353 majority opinion in Jencks U.S. States, 633, 1020): 681-682, Bihn United 328 42. Cf. U.S. 77 S.Ct. 1172, 1485; 638, Congress changes 66 S.Ct. 90 L.Ed. So “Unless the the rule cony-Vacuum States, today, Oil Co. v. United announced the Court those in- page 235, telligence agencies supra, U.S. at 60 S.Ct. ac 310 of our Government 850; may page Whitman, engaged Federal Crim in law enforcement as well Procedure, p. up shop opened inal for the Court has close their criminal and thus afford- files Ap- Doubtful Omniscience of In “The holiday rummaging him for ed a Roman Courts,” pellate 41 Minnesota Law Re- through confidential information as well page 751, 6, Alan No. Charles view as vital national secrets.” Wright quotes from Dean Leon Green “Probably strang- (3 makes this statement: Blackstone the statement Bl. legal chapter history 391) doing right, in American Comm. that “next est period great object short how the last the public administration seventy-five years, peri- justice fifty ‍​​​‌‌‌​​‌​​‌​​‌‌‌‌‌‌​‌‌​​‌​‌​​​​‌‌‌​‌‌‌​‌​‌‌‌​‌‌‍givе public the same should be to during losing which trial courts were satisfaction.” od power, appellate courts Mr. Justice Cardozo used this most of practically Snyder drawn unto themselves Commonwealth Massachu- judicial system.” setts, 330, 54 all the U.S. spect purpose United Lutwak v. it for of cross-examin- case of recent ing ruling 619-620, 604, district States, 73 S.Ct. Adams. That U.S. was, course, prior the decision 593: the United States “In the fact view of Jencks v. guilt fairly record shrieks seq., L.Ed.2d et parties, how this we cannot conceive think, decision, re- 1103. That I should possibly one admission could have quire judgments of a reversal of these jury reach influenced this improper respectfully dis- I conviction. therefore A defendant verdict. sent. but not entitled to a fair trial Rehearing On Petition for perfect proper case one. This is a 52(a) application Rule PER CURIAM. of Criminal the Federal Rules considering Upon petitions for re- Procedure.44 hold that the error We hearing filed on behalf was harmless.” by appellant Gior- and the motion Veto Affirmed. hearing petition en denello for of his petitions banc, it is ordered that said Judgе RIVES, (dissenting), Circuit hereby and said motion deference, I views With adhere to the denied. my dissenting opinion expressed Cir., States, 5 Giordenellov. United dissenting. RIVES, Judge, Circuit there F.2d the reasons ob- would hold the evidence

stated

tained the search Giordenello against not admissible him. present I think also decision with the decision of the Su-

conflicts States, preme Court in Jencks v. United 1007, 1 L.Ed.2d

353 U.S. Adams, coconspira-

1103. Robert C. indicted, un- various tor not testified to dealings with Giordenello DISTRIBU lawful INSTITUTIONAL DRUG Corpora TORS, Inc., California Kolm, Kolm described Ben- and that tion, Petitioner, Indiviglio ny in New Italian through City whom he secured York Judge YANKWICH, as Chief overseas, and told him that Leon heroin from Hon. District the United States Benny law wife had a common California, District the Southern inferably Rose, Rose Diáz alias name of Respondent. Division, Central Diviglio. jury, If believed Rose No. 637. Misc. damaging testimony was most Adams’ appellants. four Adams each Appeals Court of States signed a written statement cover- Circuit. Ninth relating ing all of his transactions June appellants and had these Agent Finley. Adams’ state- Narcotics certainly possession ment was probably the United of the United States Attor-

the control

ney. per- district court declined to attorneys in- mit the rights “Any defect, error, irregularity substantial not affect or variance which does disregarded.” shall be

Case Details

Case Name: Benjamin Indiviglio, Rose Diaz, Veto Giordenello, Anthony Phillip Kolm and Daniel William Mitchell v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 5, 1957

Citation: 249 F.2d 549

Docket Number: 16440

Court Abbreviation: 5th Cir.