*1 City App. Ct. Parma. of Harrish No. 73-6253. v. denied. County. Certiorari Ohio, Cuyahoga Copper Corp. Federal v. Kennecott 72-637. No. denied. Certiorari 10th Cir. C. A. Trade Commission. Jus- grant certiorari. would Mr. Mr. Justice Stewart Douglas or deci- consideration part in the took tice petition. sion of this Mayes Law Ct. at County 73-627. v. Texas.
No. Certiorari, denied. Mr. Justice County. No. Harris Douglas grant certiorari. would A. States. 73-922. Brown al. United
No. v. et Douglas would denied. 4th Certiorari Cir. grant certiorari. Mine Union, United 73-1255.
No. International et America, Fuel al. et v. Solar al. Workers Co. Douglas Certiorari denied. Mr. Justice C. A. 3d Cir. grant certiorari. would Sup. Ct. 73-6011. McCalvin et al. Illinois. Douglas Mr, denied.
Ill. Certiorari Justice grant certiorari. C. A.
No. 73-996. Erckman States. Cir. Certiorari denied.
Mr. Mu. Justice Marshall, Justice with whom joins, dissenting. Brennan jury trial of three
Petitioner was convicted after filing returns in willfully counts of false income ‘tax (1) Revenue Code, § violation Internal (1). Ari important prosecution § U. S. G. wit- Special Agent Eugene ness at trial was Internal Revenue Konrad, who had interviewed about his tax prosecution before the returns was instituted and whose O (cid:127)co the willful- establishing major role played cross-examina- To facilitate his petitioner’s acts.
ness Act, the Jencks moved under Konrad, petitioner tion *2 report production of Konrad’s 3500, § 18 U. S. Infernal Division of the Intelligence to the Chief of the Chicago concerning interview. Revenue in Service by Following camera examination mandated produc- order (c),' 3500 the District Court refused to § ground “there is report tion of the that no. is. special agent’s report in the . . . that material ... making reasonably necessary the defendant’s use adequate preparation.” trial Appeals
The Court’ of held “this' was correctly that ^improper apply test” to to determine whether a produced be under 3500. The court, § must decision, following its recent in United States Cleve land, 310, (CA7 477 2d 315-316 1973), F. found that agent’s report was a meaning “statement” within the Act, § 3500 (e), see also States, 365 U. 312 and that it therefore must produced if it subject “relates to the matter as to which (b). the’witness has testified.” § Since the Court Appeals found that “some itof, clearly relates to the subjéct matter of his testimony,” it held that peti report should been'produced for the Konrad’s^ tioner’s use in cross-examination. But the Court then went on to conclude, on the basis of its own examination of the report and permitting petitioner’s without counsel it, to see that report “the would have been of no assistance to defend- ant” and that “there was no inconsistency between Kon- - rad’s and his testimony trial.”- It therefore held the failure produce to be harmless error.. As to this point, Judge Fairchild disagreed, say- ing he “give that defense counsel an opportunity erroneously withheld the material to see was not harmless error the court persuade decides that it was.” before the court I correct. view, Judge clearly In Fairchild was my by Court procedure employed believe that the opportunity to improperly deniéd tlie and to examine This is com- the error wás not harmless.1 result by of our and the pelled the rationale Jencks^.decision Jencks, Court held which followed it. statute relevant and material statements of Government must be turned regardless the defense witnesses over to judge’s of the trial view as to their' usefulness in cross- General, Opposition,- p. Solicitor his Memorandum n. 'claims that raised contention he .has should permitted have been to see the Jencks Act materials to enable him *3 to that the error was not harmless “for the first timé” Court, argues “petitioner’s and failure claim this that to make that below, precludes principle its assertion here.” is of While sound, misapprehended course the’Solicitor Général has the record True, petitioner argument in this case. his did not raise this obviously Appeals, brief before' Court of because at that time so; arguing petitioner he had no to do was then that the trial reason judge him, failing erred in to order the disclosed to hád anticipate and had no reason to that the Court of would ac argument cept harmless, particularly, this but hold the error to since the Government never contended that the error was harmless. argument opportunity/in But did raise this at the first his rehearing petition- Appeals. p. for in the Court of 3 At. : argue d alternative, respectfully “In the it is requested defend-- granted rehearing given ant be opporr. .after ‘defense counsel is tunity erroneously be-per- see the material withheld’ and then persuade mitted' ‘to the court the emu was not (Order, Page.8).” harmless.’ pages petition rehearing
The next of the for two were devoted to argument support Clearly, petitioner of this contention. has qur adequately preserved point for review. ¡ expressly disapproved of the
examination. This Court judge practice to the trial submitting such statements defense “only for because camera examination effective use to determine adequately equipped the[ir] discrediting the Government’s witness and purpose for defense.” Jencks v. furthering the accused’s thereby States, (1957). The 657, 668-669 353 U. S. United decision, see expressly aspect Act of our reaffirmed this Camp Rep. 569, Cong., Sess., (1957); 1st bell U. S. gives its face any defendant the to examine
relevant statements of Government witnesses to make own determination of their his usefulness. Act makés clear it ordinarily part business judiciary the federal to determine whether the de producible fense could effectively utilize a statement. The Act recognizes impossible thus it is for a judge to be fully possibilities aware of all im- peachment inhering prior in a statement of Govern- ment witness. course, may Of it not be difficult lay thé witness’ and his prior statement side by side compare any them obvious inconsistencies. This is apparently what the‘Court here, did in view of its conclusions that there was “no inconsistency between Konrad’s testimony at his trial.”. But, ás we have said before, hardly exhausts the utility of the purposes for. cross-examination:
“ Tlát contradiction between the witness’ testimony *4 and the version of the given events his is not only test of inconsistency. The omission' from+he reports of facts related at the trial, or a con- same, trast in emphasis upon- the facts, even a different order of treatment, are also relevant to the ” process.’ cross-examining States, v. United States, supra, v. United 316, quoting supra, only con- whose appellate judge judge especially A — a cold examination of through an a case is tact with familiarity with does have simply record — adequate make an necessary to of a case details intimate a wit- full value of impeachment determination of prior statement. ness’ remark, phrase. chance
“An apparently innocent person appears to Efea neutral a reference to "what special to one may significance -or event . . . who knows more intimate facts an accused’s yet may wholly And information life. meaning,to and devoid of one colorless less .well with,all aéquainted relevant circumstances.” Alder States, man (1969). v. United Thus, closely we have held related context that: realistic to court’s assume that trial
“[It not] judgment as im utility the material for peachment legitimate or other purposes, however made, conscientiously possibilities. exhaust adversary our it system, enough judges do judge. may .determination what be useful to the properly defense can and effectively be made only an advocate.” Dennis States, 'by S. 855, 874-875 U. (1966). Of course, whenever appellate court considers whether a Jencks Act error is harmless, it must of neces sity move into the usually forbidden territory specu lation about to the defense of the witness’ prior But in view of statement. these considerations, wé have held that the harmless-error doctrine should be employed with restraint Jencks Act cases. Rosenberg U. S. 367 (1959). We warned in *5 court, con- not should appellate
Rosenberg that “[a]n might have- attorney what defendant’s fidently guess doc- in withheld impeachment purposes useful for found Id., 371.2 entitled.” at to which the defense is uments argu- harmless-error rejected we the Government’s And States, supra, 316, saying: ment production of some the at least of the statements “Since defense, for us to withheld w.as a it is not they could have utilized speculate whether beep effectively.” petitioner same considerations require
These the opportunity to examine arid agent’s have to demonstrate to the error Affording was harmless. such will minimize opportunity possible' to the extent permitting judicial speculation dangers as to the “Adversary of a pro- to the defense. ceedings magically they will not eliminate all error, but substantially by will reduce its guarding against incidence . possibility . . judge, through of time lack or unfamiliarity with the information contained by suggested will be materials, provide unable to scrutiny . . demand Alderman v. United [ed].” supra, at 184. judicial
Our system designed function adversary context of. proceedings. We are therefore reluctant parte, to authorize éx in camera determina- they tions unless truly necessary are protect important , Rosenberg we held that the failure to turn over the state ment a Government witness to the defense was harmless error only very because “the same possessed by information was de fendant’s been, counsel as would available .were error not S., committed.” The Court of in this acknowledged case Rosenberg dispose did not of this Case be presence cause of the of othér relevant agent’s information in the which the already did not have available. Aider- Indeed, interests. Dennis.and governmental in camera determina- to avoid man the Court, in order *6 by the of Court approved to tions akin those conversa- of the disclosure here, ordered countervailing inter- despite substantial tions involved secrecy, and Dennis, jury in grand the interest ests —in security. sharp Alderman, in interest in the national justification disclosing for no here not is contrast, there defense, no neces- to the and thus agent’s statement the by the in camera engaged in sity for the determination already had determined Appeals.. The Court of examine gave petitioner Act the to the Jencks place;.at point, in the first the in refusing interest disclosure governmental substantial disclosure of is of the remained.3 Yet the permit to the defense to make informed essential upheld we In Palermo v. United procedure determining in for whether a witness’ use of an camera required produced to under the Act be .because statement necessary major procedure protect a was to one of the Act’s such put purposes. As Frankfurter it: limiting regulating major “The concern is with defense Act’s deny designed government papers, and it is such access access to to satisfy requirements c’o those the of statements which [subsection] witness’-testimony. (e), subject or matter of the do not relate to the design may indeed It would defeat this to hold that the defense see in be statements- order to whether it should allowed see Id., them.” approval respect procedure with to the
Palermo’s in camera surely issue here. The involved- that case is not determinative Palermo, issue involved in whether met Act’s statement, producible much of a is one that more definition competence judiciary speculation within traditional of the than is important, about statement- to the defense. More concededly case the witness’ statement this does come within the Congress produced definition of those that has ordered to defense, governmental and thus there is no substantial interest through proceedings. requiring protection in camera put presentation might usfesto which he consideration of such a report. And without presenta- by counsel, could not make tion Court truly question. informed decision the harmless-error petition certiorari, grant vacate X judgment Appeals, Court and remand this case proceedings opinion. for further with consistent No. 73-1093. App. Ct. California Paschall. Cal., App. 2d Dist. Motion of respondént leave proceed pauperis granted. Certiorari denied. forma Superintend 73-1227. LaVallee, Correctional ent Williams. A.C. 2d Cir. respondent Motion of proceed for leave to pauperis granted. Certio forma rari denied. *7 Hopkins
No. 73-1166. Hutton et al. Johns v. Uni- versity; Hopkins University
No. 73-1249. Johns v. Hutton et al. 4thA. Cir. Certiorari denied. part took no in the consideration or decision of Stewart petitions. these Virginia
No. 73-1246. & Power Co v. Electric Haden, Tax Commissioner. Sup. Ct. W. App. Va. Cer tiorari denied. Mr. Justice Powell part took consideration or decision of petition.
No. 73-6252. Jimenez A.C. v. United States. Cir. Petition for certiorari denied as untimely fiied. 28 U. S. C. 2101 (c).
No. 73-5688. Hart Coiner, Warden, 415 U. S. 938; No. 73-5846. Dulles v. Dulles, 926; Whatley No. 73-5983. , Warden, et Anderson U. S. 929. Petitions
al, rehearing denied.