*1 appellee declaratoi'y relief, not of the discre- aware casion we reverse granting summary judgment him. We do not know what allowed the order might may be, his action or proceedings course of and remand for further not been, We are opinion. so informed. inconsistent with this presented that will therefore with a case so ordered. trustee, acting not until materialize of tradition fiduciaries vested judg- discretionary powers, arrives at way his ment as to he will exercise judgment to discretion. That by many highly current and rele- formed

vant in record. facts not x-evealed might cause a Those facts be such as to ALEXANDER, Appellant, J. Gloria cognizant x-ange txmstee, fully of of v. disex'etionary authority, conclude America, UNITED STATES of then, of not to divert. There would Appellee. coux'se, upon occasion call a court be no contrary validity upon Margaret to rale of a WATKINS, Appellant, M. declaratory judg- of course action. The v. array ment is a valuable addition to the America, UNITED STATES of judicial remedies, Appellee. of but it was modern relegating 18124, as a never device for intended Nos. 18125. reposed responsibilities courts of Court initially parties. private render To District of Columbia Circuit. case, indi- decision in some without 11, Argued March cation of how is to be ex- discretion April Decided giving advisox*y ercised, amounts an Rehearing en Banc Petition which, opinion upon questions of law 19, 1964. Denied June interesting, ren- however have not been Certiorari Denied Dec. dered immediate insistent See 85 S.Ct. 336. pressux'es of discai-ded alternatives. complaint, Since the read

light proper we consider what to be the instrument, did

construction the trust pi'esent ce-

not a matured and those children involved not even true ther and minor children. This latter Eor a 130 A. cation of small children in effect which the widowed ences and the make as proval upon conditions dren, dition was to be made either is grandfather’s gift In otherwise re Devlin’s see more between the immediate attainment Lynch very (1925), although recent imposition children’s Trust vulnerable similar to this in that her own daughter-in-law Uhlenhopp, rearing expression of, Estate, Pennsylvania relationship economic adulthood. None support religious prefer- rigid 284 Pa. minor chil- during, religious welfare. choice disap- might of fa- Iowa ease, edu- case left ity child eases, themselves community sponsibility of children which do not area soned ditional Scott re position among differing sion and either the Blake, view. situation, disposition by weighing, on Trusts N.W.2d 491 of one’s freedom to worship. perhaps At to formulation ^[1955] interests with so-called privilege least forms of there so property support Irish prevalent in tbe automatic 62.7. choose may majority susceptible of unfettered religious expres- Reports 89; against solely respect be social and and education Cases father-minor readily in the older freely See or minor- reference also In of rea- in this terms from lend tra- dis- re- I *2 Reznéck,

ker and Daniel Asst. U. S. Attys., brief, appellee. were on the Before Circuit Senior Prettyman, Washington Judge, McGowan, Judges.

PER CURIAM: Appellants (two women) met com- plainant (a man) a and had in bar drinks with When he left followed him. him, him, seized and took a roll of bills pocket. happen- from his A officer stages ed to witness the later affair They spot. and arrested on the them robbery were indicted for and convicted robbery. of assault with intent commit appellants say they In defense complainant dollar a buy whiskey seeking and were to re- money. They cover their submitted that jury, version to the but as the verdict indicates, body accept that declined to it. Appellants present point also a under Inquiry the so-called Jeneks statute.1 was made into the matter at trial. It was established that the officer had original pencil' report, made an a draft of stenog that the draft had been to a rapher police headquarters who made typewritten it, version of that signed typed report officer it. The produced impeach at the trial and used testimony officer’s as to events pencil witnessed. As to the draft “ * * * officer said: went * * (appointed Mr. M. Michael Cramer probably trash after it was —* It. C., Washington, Court), D. District went the trash after the clerk (appointed Thomas with whom Mr. Sisk testimony appear it.” All heard who Washington, C., court), on D. was to have taken it at face value estab appellant lishing in No. the brief destroyed that the notes had been argued appellants. for both in the usual The course business.2 particular defense in fact seized (appointed Miss Ruth E. Hankins urged notes, of the destruction of the Washington, C., Court), D. District upon the court that that fact alone neces appellant in No. on the brief striking sitated the mony. testi officer’s suggest court, did to the hearing Anthony otherwise, Lapham, motion or Mr. A. Asst. U. S. Atty., Acheson, inquire held to into either the fact or with whom Mr. David C. Atty., Q. circumstances U. Frank of the destruction. S. Messrs. Nebe- handwritten statement as “The one 71 Stat. 595 18 U.S.C. trash.” interrogation officer, 2. In his de- fense counsel himself to the referred judge “(c) say If the United claims the trial Appellants now any initiative, statement ordered to be should, upon have held own orig- produced this section contains under whether determine report policeman’s which does not relate to the matter pencil draft inal destroyed. Supreme matter As had been *3 witness, Campbell the court shall the pointed United the order out in v. Court by States,3 inquiry the United States to deliver such state- the conducted inspection ad- the of the court judge upon not an ment for such a matter is * * * versary proceeding rules in camera. controlled persuasion, proof but or as to of burden “(d) If the United States elects simply proceeding to aid a comply an of with order the discharge responsibility judge the the (c) paragraph (b) court under or The upon him statute. laid to enforce the defendant hereof deliver to the * * * bar, judge the in the case at trial any such the statement hearing his testi- him and officer before shall from record court strike the mony, cause was there was no satisfied testimony witness, the the hearing. that The indicates record proceed trial shall unless similarly The satisfied. defense was in its discretion shall deter- court only objective of a would justice mine that the interests throwing to determine whether been require that a mistrial declared. pencil had into the trash *4 digest They just on the it. clerk “implies duty judge- the in the trial appellant this form.” for Wat- Counsel affirmatively to in administer the statute made a demand for the handwritten kins way such as can best secure relevant and argued that the destruc- statement available evidence decide be to tion of the statement was' cause striking directly opposed tween the interests. testimony. The officer’s the » * x * 365 at 81 at 427. U.S. S.Ct. rejected to motions but failed court these the to determine whether order It is appears- true that defense counsel destroyed and statement had in fact been to have “assumed” that the handwritten the destruction. circumstances of its destroyed. notes had been But I do not This, think, I was error. Judge think this relieved the District statement, it were The handwritten if the responsibilities- Government of the existence, clearly in related to the imposed by by on them the the Act testimony. That matter witness’ Campbell Killian and eases to determine- may have vitiated statement well (1) whether the notes in fact de away attempt explain officer’s consistency to stroyed; (2) they whether, were, if this- testimony and between his proper inwas and normal course police report. appellate “An court good faith; business or and. otherwise in confidentlyguess should not what defend- (3) whether, they destroyed, if were not attorney might ant’s found have useful produced, should have been and if impeachment purposes in withheld produce prej the failure to them was to documents which the defense en- 1 appellants’ udicial to trial. defense at

titled.” Having I think the record should be remanded aware of the been made exist- ence of a “Jencks” the trial statement to the District conduct such a. Court to Rosenberg States, v. United 360 U.S. entertain tbe belief that defendant could 367, 371, prejudiced 79 S.Ct. L.Ed.2d 1304 3 have been opportunity not' inspect In tbe that ease witness bad Ibid. the letter.” written a letter to tbe Assistant United In tbe instant case the officer made no- Attorney, anticipation trial, self-impeaching in On con- admission. indicating memory dimmed, trary, attempted that ber bad to bolster his testi- memory mony explanation. and that to refresh her she would with an Court, Rosenberg, have reread the statement she made to Tbe in also held that. However, trial, purpose the FBI. “No relevant could have been by giving petitioner’s witness’ informed the defense served typewritten copy” counsel a counsel, memory jury, and the that her of a statement made quite poor. opin In a five to four another witness since tbe defendant had ion, given original the Court held that “Since the same boon handwritten state- information that would have been afforded ment. 360 U.S. at at 1233. S.Ct. original had the document been to defendant In the instant case tbe hand- already possession statement, pro- of the de written which was not by way duced, may proved highly fense of the witness’ admissions relevant testifying, deny impeaching while it would reason to as a tool for officer. States, appellant’s

hearing. ORDERED that motion v. United Cf. Moore denied; hereby appeal stay pending U.S.App.D.C. 254, F.2d 555 States, 117 it is (1964); Williams F.2d 178 U.S.App.D.C. Dis- FURTHER ORDERED cited. and cases may proceed to examine trict Court camera directions entire file in upon District Court determination particular non-privileged docu- ments, any, proposes if disclose plaintiff part be- whole Machín as ing reports” within “mechanics’ meaning opinions herein rendered court, appellant shall be notified days (5) five within which objections objec- file if thereto and Eugene Subpoena M. In served re tions, any, if are overruled whole or Secretary ZUCKERT, Air part stay its or- District Court shall Force. days period (5) der five so as No. 18288. permit application a renewed United States Court *5 ap- court in this case for relief as such District of Columbia Circuit. seek; pellant may is be advised to and it Jan. appel- FURTHER ORDERED that summary lee’s for is motion affirmance hereby dismissed moot. Rosenthal and Miss Mr. Alan S. Baldwin, Attys., Dept, Kathryn H. ap- pleadings Justice, for were on the pellant. Atty., Acheson, David U. Messrs. C. S. Q. Atty., Nebeker, and Frank Asst. U. S. appellant. appearances also entered Harry Jules Messrs. Wender S. C., Fink, Washington, on the D. Inc., CO., pleadings appellee VALLEY TELECASTING Machín. Jack S. Appellant, Before Danaher Washington, Judges, Burger, Chambers. FEDERAL COMMUNICATIONSCOM- MISSION, Appellee, PER CURIAM. Inc., California, Tele-Broadcasters mo- Upon appellant’s consideration Intervenor. stay appellee’s pending appeal, tion No. 18092. opposition appellee’s thereto, motion affirmance, appellant’s opposi- summary United States Court summary appellee’s of Columbia Circuit motion for District ap- affirmance, appellee’s reply to Argued Feb.

pellant’s opposition for sum- to motion May Decided mary affirmance, appearing that or mil- no has claim been made state danger being itary im- secrets appear- properly revealed, it further ing for a said motion to the court that stay premature, and due consideration thereon, it been had notes “(e) ‘statement’, term The faith or not in normal course. been bad (b),' (c), (d) in subsections used suggestion made at to that effect was No * * * of this section means— judge say trial the time. cannot We “(1) A statement made written failing to committed reversible error signed by said witness and or other- inquiry no one who initiate an adopted approved him wise or thought testimony nec- heard the officer’s ” (cid:127)Jfr

[*]

[*] essary. Appellants guilty of were found assault argument As that the destruc- with intent to Brown testi- rob. Officer they pencil had tion of notes after n complaining fied that he observed signed typed copy been and the walking along witness, Mitchell, inadmissible, testimony made the officer’s restaurant, appellants street. left a The 4 contrary. Killian is to the walking began pursuing Mitchell, Affirmed. they him a they began walking As came fast rate. close shadow WASHINGTON, Judge (dis- ducking in and out between trees senting) : parked Appellant cars. testified Watkins pertinent requirements The Mitchell a dollar n purchase Act, Jencks 18 U.S.C. 3500 whiskey, and ran a bottle of as follows: money. There after him to recover that contradictory regard testimony was with “(b) After a called witness transpired appellants to what when on direct United States has testified caught up Mitchell. examination, shall, on mo- the court ap- defendant, appellants order The manner in which significant any produce proached United state- ele- States Mitchell was defined) (as appellants’ ment hereinafter ment in an evaluation of suggest- testimony possession witness in the tent. OfficerBrown’s stealthy police approach. A United which relates to the ed a written signature, report, matter as to which the wit- which contained his * * * hiding however, be- ness has testified. no mention of made 95, States, 231, 421, 365 81 S.Ct. 5 L.Ed.2d Killian v. United 368 U.S. 82 U.S. (1961). (1961). 428 S.Ct. 7 L.Ed.2d 256 trees, judge obligation cars, and so forth. He ex- hind had an to determine inconsistency plained away destroy be- another whether that statement had been report ed good and whether tween such destruction was in. stating merely report was faith and in accord with normal digest practice. he had States, of a handwritten statement Killian v. United pre- 231, 242, submitted to the clerk at the U.S. S.Ct. 7 L.Ed.2d length”; ; (1961). “full that statement cinct He should have either summon he whether ed on pre it “had more.” When asked his own motion the clerk who him, “digest” pared required had the statement with handwritten the Gov replied: went “No. It produce Campbell —it ernment to him. [Q. Where?] the trash after it was States, 85, 94, 365 U.S. 81 S.Ct. probably after A. went in the trash 5 L.Ed.2d 428 The statute-