Ellis CAMPBELL, Jr., District Director of Internal Revenue, Appellant, v. J. M. EASTLAND and Montez Eastland, Appellees.
No. 19057.
United States Court of Appeals Fifth Circuit.
July 23, 1962.
307 F.2d 478
Under Ohio law, the contributory negligence of a plaintiff is a complete bar to his recovery. Patton v. Pennsylvania R. Co., 136 Ohio St. 159, 24 N.E.2d 597 (1939); Walker v. Baltimore & Ohio R. Co., 84 Ohio App. 221, 85 N.E.2d 413 (1948). Plaintiff concedes that in the absence of circumstances excusing his failure to have seen an approaching train, one who drives upon a railroad crossing and is struck by a train is guilty of contributory negligence as a matter of law. Thus where special conditions are shown which can prevent a driver from being aware of the approaching train, the question of contributory negligence is for the jury.
The railroad claims that plaintiff should have been aware of the presence of the train in time to have stopped his vehicle. Plaintiff was not required to stop his vehicle unless his looking or listening disclosed the presence of a moving train. Robinson v. Pennsylvania R. Co., 117 Ohio St. 43, 158 N.E. 83, 88 (1927). His excuse for not stopping was twofold. First, he did not know where the second set of tracks was and, therefore, had to concentrate on determining its location. If he had been adequately warned of its approximate position, he might have been expected to see the red flare sooner than he did and thus be aware of the presence of a train moving at right angles to the direction he was going. And second, the sodium vapor lamp, under the weather conditions then prevailing, acted as a veil for approaching trains rather than disclosing their presence. Under those circumstances, we think the trial court was correct in leaving the question of plaintiff‘s contributory negligence to the jury to decide.
The judgment will be affirmed.
Allen E. Pye, E. Taylor Moore, Tyler, Tex., for appellees.
Before BROWN, WISDOM, and BELL, Circuit Judges.
WISDOM, Circuit Judge:
This civil action for a tax refund is tied in a tight knot with a criminal prosecution for fraud.1 With patience some formidable knots may be untangled. A famous one was cut. Here, the trial judge attempted to cut away the criminal strand. We think that it would have been better to have waited and then patiently untangled the knot.
The controversy swirls around discovery. The plaintiffs moved to require the District Director of Internal Revenue to produce reports of agents who had investigated the plaintiffs for tax fraud. The reports were in the United States Attorney‘s criminal files. No assessment for deficiencies had been made. The Director asked for a stay of the motion in order to allow the criminal case to be disposed of first. He contended that the reports were privileged; that the motion for discovery was a cover-up to allow the taxpayers to inspect criminal files for information not available to them before the trial of the criminal case and then available only under the strict rules of criminal procedure and the “Jencks” Act,
I.
The nature of the case requires a detailed review of the facts and proceedings below.
J. M. Eastland operates a chain of five and ten cent stores in Texas and Oklahoma. He and his wife filed a joint tax return for 1957 in which they declared an operating loss exceeding their income for that year. The loss would result in eliminating their tax liability for 1955, if the loss were carried back to that year under the loss carryback provisions of Section 172 of the
| Year | Taxes Reported | Taxes Corrected | Taxes Attempted To Be Evaded |
|---|---|---|---|
| 1955 | $3,192.24 | $21,487.51 | $18,295.27 |
| 1956 | 7,746.93 | 22,894.95 | 15,148.02 |
| 1957 | 0 | 4,347.97 | 4,347.97 |
June 20, 1960, the Department of Justice forwarded the case to the United States Attorney for the Eastern District of Texas and instructed him to institute criminal proceedings against the taxpayer.
About the middle of June 1960 the taxpayer‘s attorney, Mr. Allen Pye, got in touch with Mr. Paul Brown, then United States Attorney for the Eastern District of Texas, and inquired if the Eastland file was “in the office for consideration for criminal prosecution“. At that time the file had not been returned from the Department of Justice. Later, in the hearing on the motion for discovery, Mr. Brown testified that Mr. Pye “asked that when it was received and before the matter was presented to the Grand Jury, in the event we decided to present it to the Grand Jury, that he be given an opportunity to discuss the matter with me, and indicated at that time that there might be a plea of guilty“, although Mr. Pye made no firm commitment as to such a plea. After the file came into the office June 27, 1960, Mr. Pye had two or three telephone conversations with the United States Attorney as to when the case would be presented to the grand jury. December 16 Mr. Brown and his successor, Mr. Tunnell, had a conversation with Mr. E. T. Moore, another of the taxpayer‘s attorneys, in the course of which Mr. Brown called Mr. Pye, and informed him that the case was being prepared for submission to the grand jury January 3, 1961, in Beaumont. He made an appointment with the taxpayer‘s attorneys for the following day. At this conference, the two United States Attorneys “anticipated that the discussion would be about a plea of guilty“. The taxpayer‘s attorney, however, said that “he was firmly convinced of Eastland‘s innocence” and felt that “if the United States Attorneys would go into the file more thoroughly” they would agree. Mr. Tunnell, the incoming United States Attorney, then agreed to “defer presenting it to the Grand Jury so that he could do just what Mr. Moore had asked him to do“.
December 5, 1960, the Eastlands instituted an action in the Northern District of Texas for the tax refund claimed for 1955. Mr. Brown testified at the hearing on the discovery motion that notwithstanding this recent filing—just ten days before Mr. Moore‘s conference with the United States Attorneys for the Eastern District—Mr. Moore did not “at that time or any time, mention the fact that [the taxpayer] had filed a civil action“. Mr. Tunnell also testified that there was no conversation relative to a civil action. In response to repeated questions from Mr. Moore, he said: “We were talking about whether this case was going to be submitted to a grand jury or not * * * I was not aware of your connection or anybody‘s else‘s connection with any civil action in this case.” Mr. Tunnell, as the new United States Attorney, agreed to give the case the study suggested and to make an independent judgment on it. This would
The District Director filed his answer in the civil suit January 31, 1961, denying that a refund was due. He neither counterclaimed nor pleaded any affirmative defense. The answer contains no reference to any deficiency. The taxpayer had not paid any deficiency; the tax deficiency had not even been assessed.
February 13, 1961, the taxpayer filed a motion under Rule 34 for discovery. There was no pre-trial conference; the case was months and months distant from trial. The taxpayer asked for production of the following documents:
“1. ‘Any and all’ reports of the Special Agents or of any other employee of the Internal Revenue Service made with respect to the examination of the taxpayers’ returns for the years 1954 through 1957.
“2. ‘Any and all’ written statements taken under oath by any agent or employee of the Service.
“3. ‘Any and all’ written statements and documents received from certain employees of the taxpayers.
“4. ‘Any and all’ documents pertaining to the failure of defendant to act upon the claim for refund.”
The affidavit attached to the motion to produce asserted that the several taxable years were interrelated, because an adjustment in one year might affect the tax liability for every year at issue.
February 21, 1961, the District Director filed an answer stating:
“That said files and documents in the custody of the United States Attorney for the Eastern District of Texas in connection with a criminal proceeding are privileged except as they might be ordered produced under the holding of Jencks v. U. S., 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed. 2d 1103 or
Title 18, U.S.C., Section 3500 , relating to production of documents in criminal cases.”
The answer pointed out that the case, having been recently filed, “is not set for trial, and in the normal sequence of events would not be reached for trial for several months“. In addition, the Director asserted:
“Tax refund suits such as this case are handled by attorneys from the Department of Justice, and since the filing of this motion on February 14, 1961, said attorneys have not had time to prepare an answer to said motion on the merits, or to come to Dallas for a hearing on the merits.”
Accordingly, the defendant prayed for a stay of proceedings pending disposition of the criminal case.
The motion was filed in the District Court for the Northern District of Texas. That court transferred the action to the Eastern District of Texas.
March 21, 1961, a hearing was held on the taxpayer‘s motion to produce. We have previously referred to some of the testimony. The United States Attorney repeated his request for a delay in producing the submission of the criminal case to the grand jury. He and his predecessor testified, as noted, that in discussions with the taxpayer‘s counsel there had been no mention of a civil suit for a refund; the taxpayer was interested in the criminal action only. On the record, the United States Attorneys, although contradicted by one of the taxpayer‘s attorneys, made a good case for the point that the criminal action was more important than the civil action, even in the minds of the taxpayer‘s counsel.
“What is the materiality of this stuff you want, except, to be honest about it, you want to see about your defenses in a criminal case?”
In spite of this well-grounded suspicion, the trial judge concluded that if the civil suit were bona fide, it should be kept so independent of the criminal action that the criminal action should be ignored. This is the fatal defect in the proceedings below. The trial judge adopted the strict view that there “is nothing in this statute that exempts the operation of Rule 34 in a civil case by virtue of the fact that there might be a criminal case pending or a potential criminal case.” He said:
“I will say this: The argument about there being a potential criminal case or not, as made by the Government, doesn‘t appeal to me. It‘s a matter of materiality here as to whether or not I should let you look at the matters; because if this is a bona fide civil suit, then the rules of civil procedure govern it; and if it falls within Rule 34, then you are entitled to have those documents produced—I don‘t care whether a criminal action is pending or whether the Government wants to bring one or what.”
On the materiality of the requested reports, the court was persuaded by the taxpayer‘s argument that a suit for refund based on an operating loss carryback in effect puts in issue each item of income, deduction, and credit both in the year of loss and the years when the loss is carried; that here, the taxpayer could not be certain what adjustments the Government proposed to make and what issues the Government might raise.
After announcing his decision to grant the motion the trial judge remarked, apparently acknowledging the existence of a serious legal question, “I assume that the Government is going to refuse to let [the taxpayer] see [the records]“. March 21, 1961, the trial judge entered an order directing that all the requested documents be produced at 2:00 P.M. the next day.
March 22, 1961, the District Director served a notice to take the deposition of the taxpayer on March 30, 1961. At the same time he filed a “Motion to Stay Order to Produce Pending Plaintiff‘s Compliance with Notice of Taking Deposition and Plaintiff‘s Giving Testimony“. This motion alleged that the discovery order would require disclosure of the criminal file, that the Director anticipated Mr. Eastland would exercise his privilege against self-incrimination by refusing to reply to questions, that if this proved to be the case the District Director ought not to be compelled to comply with the Order to Produce. The taxpayer filed no answer to this Motion to Stay. The court summarily denied the motion the same day it was filed.
March 23, 1961, the taxpayer filed a Motion to Dismiss, moving that the court, “under
At the hearing March 24, naturally enough, the trial judge was in doubt as to the reason for such a motion. The taxpayer‘s attorney stated that the reason was to cut off the Government‘s “tremendous counterclaim“. This was the colloquy:
“The Court: * * * I can‘t see how dismissing this lawsuit with prejudice would settle your tax liability for 1955.
“Mr. Pye: Well, we want this judgment, of course, to cut off any right of counterclaim—to cut off any counterclaims or cross-actions that they may have against this Plaintiff; in other words, to settle this tax liability for 1955. It‘s the type of thing that we might end up settling it that way anyway; but under the circumstances we now find ourselves in, why, we felt that this would be the best way to settle it.
“This settles it as far as he is concerned, Your Honor. He doesn‘t have to worry about a tremendous counterclaim; whether it has good basis for it or not. And when are they going to bring it, if they are going to bring it.”
Then, and no doubt to the surprise of even the taxpayer‘s attorney, whose motion had not asked for such action, the trial judge came up with the idea:
“Why wouldn‘t the proper thing be for the Court to strike their Answer in this case and enter judgment for the full amount of your suit?”
In reply, the United States Attorney stated, in part:
“I think the Court understands that I do not stand in defiance of this Court. I respectfully decline on the grounds asserted in this Order. I must assume responsibility for it, notwithstanding direction from higher officials, because the records are in my custody.
“But, I would pray the Court that no such harsh remedy be exercised against the United States Government that it could not later stand on the merits of any lawsuit—civil or criminal—that might be before the Court—and stand or fall with the merits of the case without regard to any wrongdoing upon the part of any agent of the Government that is personal in nature.”
The Court held:
“Therefore, the Court thinks it is most ill-becoming of any party, and particularly an agency of the Government of the United States, not to obey a lawful order of the Court.
“Now, the Court feels that this is a lawful order. If it didn‘t, it never would have entered the order. And, therefore, I think that as drastic steps as are permitted under Rule 37 should be taken against the Government in this case; with the exception of I‘m not going to put the United States Attorney or his Assistant in jail.
“I am not going to put Mr. Campbell in jail.
“If the Court were inclined to put anybody in jail it would be that man up in Washington that told you to disobey this Order.
“But now, of course, the Court has assumed at all times that the Plaintiffs filed this suit for refund in good faith. And I am not here disposed to do anything as to any criminal action that the Government might bring against them. That‘s independent.
“However, on the other hand, I will do such as I think I can do under this Rule 37 to prohibit the Government from asserting any civil liability against them.”
Without hearing any evidence in support of the complaint, the district court entered a judgment March 25, 1961, denying the taxpayer‘s motion to dismiss, striking the District Director‘s answer
II.
In general, we agree with the view expressed by William D. Mitchell, former Attorney General, Chairman of the Advisory Committee that drafted the Federal Rules of Civil Procedure, in a statement often quoted:
“It ought not to be necessary to resort to discovery against the Government * * * [for] the Government litigates with its citizens and ought to be frank and fair and disclose all the facts.”3
There are times however when the Government, because it is the Government, must withhold or postpone full disclosure. This is such a time.
A. In a mine-run civil case the discovery provisions of the Federal Rules
However, all discovery rules exempt privileged matter.6 In the district court the Director first relied primarily on Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, and the “Jencks” Act,
(a) We do not know what material in the files may happen to be protected by the informer‘s privilege.8 If there were any such material, it should have been protected by an appropriate exception to the order. (b) Executive privilege is narrowly confined to matters affecting the national security, such as military and state secrets. It may not be invoked lightly. “There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.” United States v. Reynolds, 1953, 345 U.S. 1, 7, 73 S.Ct. 528, 532, 97 L.Ed. 27. There is no basis here for the claim of executive privilege.10 (c) The “Jencks” Act,
B. What constitutes good cause varies from case to case. Two circumstances distinguish the situation here from the mine-run situation in discovery against the Government: (1) the interrelation of the civil action with the criminal action and (2) the absence of a deficiency assessment.
In handling motions for a stay of a civil suit until the disposition of a criminal prosecution on related matters and in ruling on motions under the civil discovery procedures, a judge should be sensitive to the difference in the rules of discovery in civil and criminal cases. While the Federal Rules of Civil Procedure have provided a well-stocked battery of discovery procedures, the rules governing criminal discovery are far more restrictive. Compare
A taxpayer about to be indicted for fraud carries a heavy burden when he asks to inspect the Government‘s criminal
Instead, the trial judge held that the suit for refund was a bona fide suit, and as such, it was completely “independent” of the criminal case. If a taxpayer files suit in bad faith, it is an abuse of process; but his good faith on a suit for refund does not sanctify the motion for discovery. We take the view that whether or not the suit, as distinguished from the motion, was bona fide, the effect of granting the motion was to give pre-trial discovery of documents denied the taxpayer in the criminal case. The order nullified the effect of section 3500. It was an open invitation to taxpayers under criminal investigation to subvert the civil rules into a device for obtaining pre-trial discovery against the Government in criminal proceedings.
(2) The District Director‘s motion to stay was based, in part, on the administrative policy against asserting tax deficiencies before development of the criminal case. At such time, after the criminal case had progressed, the issues would be clarified and the assessment of deficiencies would be a factor in considering a limited and timely discovery. At that time the taxpayer might more appropriately argue that it is the Internal Revenue Agents’ knowledge of the particular aspects of the taxpayer‘s business which he is entitled to discover in order to have an understanding of the reason for the deficiency assessment; here, the argument was premature.
The taxpayers filed a complaint based on their own knowledge of their financial affairs. They had all the knowledge they needed for purposes of proving their case. In effect, they asked for information on a counterclaim the defendant had not asserted.
These facts distinguish the case from Frazier v. Phinney, S.D.Tex., 1959, 24 F.R.D. 40613 and Commissioner v. Licavoli, 6 Cir., 1958, 252 F.2d 268. In those cases the civil action was the direct result of a tax deficiency; the District Director refused to give the taxpayers any information whatsoever concerning the basis of the deficiencies and penalties assessed against him. To the extent that this opinion differs from the opinions in Frazier v. Phinney and Commissioner v. Licavoli, we disapprove of those decisions. In Frazier v. Phinney the court said:
“By assessing and collecting the alleged income tax deficiencies, penalties, and interest, defendant laid the necessary basis upon which plaintiffs could invoke the jurisdiction of this court. If defendant had not assessed and collected such amounts, he might contend that this court did not have jurisdiction and might refuse to discuss the basis for such
alleged tax deficiencies until all criminal actions related there to have been disposed of. But by permitting plaintiffs to obtain the jurisdiction of this court, defendant gave them the right to proceed expeditiously with the adjudication of their tax liability and to use all discovery procedures permitted by the Federal Rules of Civil Procedure. Thus defendant cannot deny plaintiffs access to the requested agents’ reports solely on the ground that they might obtain information and Government evidence intended for use in a pending criminal action. This motion for production of documents will be considered, therefore, solely upon established criteria under the Federal Rules of Civil Procedure.”
We agree with the district court in attaching great weight to the assessment of tax deficiencies, although we are now considering it in its bearing on good cause rather than as a basis for jurisdiction. When the Government is the moving party and has made a claim for tax deficiencies, it has elected, as in bringing an indictment in a criminal case, not to “leave the transactions in obscurity from which a trial will draw them, [but to] * * * expose them fully“. United States v. Andolschek, 2 Cir., 1944, 142 F.2d 503 (per Judge Learned Hand). “The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Such rationale has no application in a civil forum where the Government is not the moving party, but is a defendant only on terms to which it has consented.” United States v. Reynolds, 1953, 345 U.S. 1, 12, 73 S.Ct. 528, 535, 97 L.Ed. 727.
In discussing good cause in Frazier v. Phinney the court emphasized that the defendant had “refused even to discuss the matter or have a conference with [the plaintiffs] regarding the alleged tax deficiencies” and that “denial of production would unduly prejudice the preparation of plaintiffs’ case and cause them hardship or injustice.” That is not this case. Again it must be remembered that the District Director did not refuse to furnish the reports under a claim of absolute privilege. He asked only that discovery be deferred until a later and more appropriate time. There is nothing in the record to show that the taxpayer needed the information immediately or that he would have been prejudiced in his civil suit by a reasonable delay. As pointed out, the suit had been filed only recently, it was not on the trial docket and, in the normal course of events in the busy Eastern District of Texas, it was a long way from trial.
C. In concluding that on the facts the taxpayer failed to show good cause below, we are influenced by the scope of the order. The order requires the production for inspection and photographing of “any or all” revenue agents’ reports pertaining to the basis for the deficiencies for the years 1954, 1955, 1956, and 1957. The reports prepared as part of a criminal investigation would necessarily contain information of importance in a criminal prosecution that would have no necessary relation to the refund claim but could not be physically separated in the files.
Limited discovery and other remedies were available which would not be vulnerable to improper inspection. Thus, the plaintiffs were clearly entitled to discovery of any documents obtained from the plaintiffs’ files. By interrogatories under
Summarizing, in balancing the individual‘s right to prepare his case promptly against the public interest in withholding the full disclosure sought here, the following elements tip the scales in favor of the District Director: (1) discovery would give the taxpayer possession of reports denied him in the criminal proceeding; (2) there is reason to think, “to be honest about it“, that the motion for discovery (if not the suit for refund) was for the purpose of obtaining the otherwise unobtainable reports; (3) the Government was not the moving party seeking to recover while withholding information that might defeat recovery; it assessed no deficiency and asserted no counterclaim; (4) the District Director did not claim an absolute privilege but asked only for a reasonable delay; (5) the record is bare of any showing that a reasonable delay would have prejudiced the taxpayer in the civil suit; (6) limited discovery by interrogatories and other remedies were available to the taxpayer; (7) the success of the taxpayer‘s suit depended on the truth or falsity of his own records and his knowledge of his own financial affairs; (8) the taxpayer filed a motion to dismiss with prejudice; (9) that motion to dismiss, following the Director‘s notice to take the taxpayer‘s deposition, raises a fair inference that the taxpayer, instead of making the same full disclosure he was asking from the Government, intended to claim his privilege against self-incrimination. In short, the taxpayer failed to show good cause for the order of discovery issued in this case.
III.
Right or wrong, the trial judge issued an order which the District Director declined to obey. The United States Attorney, however, acted under instructions from his superiors, made a good faith refusal, and respectfully explained his legal position to the Court. Notwithstanding the trial judge‘s indignation, therefore, we do not have before us a defiant litigant whose defiance, as an agent of the United States, is particularly irresponsible and ill-becoming.
The rules of law governing the interplay between Rule 55(e) and Rule 37(b) have not been firmly established. Rule 55(a), which sets the focus for other subsections of the Rule, provides for the entry of a default judgment against a party who “has failed to plead or otherwise defend as provided by these rules.” The thrust of this section is directed to instances when a party by neglect or
Irrespective of the sweep of Rule 55(e) itself, we feel that its underlying policy reaches the instant case. The Rule rests on the rationale that the taxpayers at large should not be subjected to the cost of a judgment entered as a penalty against a government official which comes as a windfall to the individual litigant. The private party must first demonstrate that there is some basis on which he is entitled on the merits of his claim to receive judgment. A court should accord respect to this policy beyond the confines of Rule 55(e)‘s strict coverage when it can do so without running against a countervailing consideration. The court took this position in O‘Neill v. United States, supra. We agree with O‘Neill. In the instant case the trial court‘s ruling did unnecessary violence to the policy against entering unsupported default judgments against the Government when it abruptly struck the Government‘s answer and entered judgment for the taxpayers at a hearing on a motion by the taxpayer for dismissal of his claim with prejudice. There is no shred of affirmative evidence in the record to support a recovery by the plaintiffs. In fact, on the record, there is a strong implication that the taxpayer, the District Director, the United States Attorney, and the trial judge himself recognized that the taxpayer probably owed more to the Government than the Government owed to him. In arguing for dismissal of his claim with prejudice the taxpayer virtually acknowledged that his purpose was to foreclose the Government from asserting any counterclaim. Since in final analysis the judgment was against the American taxpayers as a class, the plaintiffs should have been compelled to introduce their books, records, or some other evidence to show that they actually had suffered an operating loss; at the present we have only the plaintiffs’ untested allegations as to the loss and its extent.
When the Government has refused to comply with discovery orders,
Rule 37(b) provides a range of sanctions for the enforcement of discovery orders. And it vests discretion in the trial court in the selection of the particular sanction to use. This Court is reluctant to disturb an exercise of discretion by a trial judge, “but when we are convinced that the court below has exceeded a proper discretion in that the order imposed was too strict or was unnecessary under the circumstances, we would be remiss in our duties if we did not set that order aside.” Syracuse Broadcasting Corp. v. Newhouse, 2 Cir., 1959, 271 F.2d 910, 915. In this case, we cannot escape the conclusion that the trial judge exceeded his judicial discretion in granting judgment for the plaintiff. He followed an unnecessarily broad discovery order with an undesirably stern sanction.15 We believe that the ends of justice would best be served by remanding this case for a full trial on the merits. The civil suit should be given a second start. If the plaintiffs wish, they may submit a new motion for discovery. The merits of the motion will be unaffected by the complicating factor of a parallel criminal proceeding.
The judgment is reversed and remanded.
BELL, Circuit Judge (concurring specially).
I concur in the result only. My view is simply that the trial court abused its discretion under the facts in finding the necessary good cause for the production of the reports then in the criminal files of the United States attorney for use in the civil case.
The criminal aspect of the matter could not be ignored. The end result
REVERSED and REMANDED.
Notes
“(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
“(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use. * * *
“(d) If the United States elects not to comply with an order of the court under paragraph (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.” * * *
“[T]he legislative history makes clear, the Jencks Act ‘reaffirms’ [the Supreme Court‘s] holding in Jencks v. United States, 353 U.S. 657, [77 S.Ct. 1007, 1 L.Ed.2d 1103] * * *. The command of the statute is thus designed to further the fair and just administration of criminal justice, a goal of which the judiciary is the special guardian.” Campbell v. United States, 1961, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428. See also Clancy v. United States, 1961, 365 U.S. 312, 81 S. Ct. 645, 5 L.Ed.2d 574.