410 F.2d 307 | 3rd Cir. | 1969
Lead Opinion
OPINION OF THE COURT
This appeal is from an order of January 12, 1968, in which the District Court of the Virgin Islands denied defendant (appellant) a new trial after a hearing on the producibility of certain documents under the Jencks Act, 18 U.S.C. § 3500.
The Government of the Virgin Islands filed an information against defendant in 1966, charging him with murder in the first degree. At his trial, one of the Government’s witnesses was Charles Groneveldt, the supervising detective in the case. On cross-examination, after eliciting from Groneveldt the fact that he had made reports during the investigation, defendant’s counsel requested their production by the Government under the Jencks Act (N.T. 214-5). This request was denied by the trial judge (N.T. 217). A conviction and sentence of life imprisonment followed.
One of the contentions on appeal from the conviction was that it was error to deny the Jencks Act request. This court held (in our No. 15,817) that the Act applied to
The hearing was held on November 7, 1968. At that time the entire investigative file was produced in court.
Defendant complains particularly on this appeal of the lack of opportunity to inspect at the trial portions of two investigative reports.
The interviews with Skeete contained in the two investigative reports were not producible under the Act after the direct examination of Groneveldt, since the contradictory statements did not “ . . . relate ... to the subject matter as to which the witness has testified____” as required by § 3500(b).
Assuming the reports were producible under the Act, defendant suffered no prejudice by not having seen them. The Supreme Court has recognized that the lack of opportunity by the defense to inspect documents covered by the Jencks Act may be harmless error. Rosenberg v. United States, 360 U.S. 367 (1959). See, also, e.g., United States v. Knox Coal Company, supra, footnote 1; United States v. McCarthy, supra; United States v. Allegrucci, supra, footnote 7. At the preliminary hearing on December 7, 1965, Skeete testified that defendant had left the house in the late afternoon of October 1, 1965, and did not return until the following day (P.H. 12-13,15). Defendant’s counsel then introduced into evidence a paper, signed by Skeete on December 1, 1965, in which he had represented to counsel’s law clerk that defendant had been home the night of October l.
In view of the fact that the same inconsistency revealed in Skeete’s interviews with the police was already known to defendant’s counsel by virtue of Skeete’s testi
“The record is devoid of credible evidence that they [certain notes and tapes] were suppressed. . . .
“[A]part from trials conducted in violation of express constitutional mandates, a constitutionally unfair trial takes place where the barriers and safeguards are so relaxed or forgotten ... that the proceeding is more a spectacle ... or trial by ordeal . . . than a disciplined contest.” United States v. Augenblick, supra, 37 L.W. at 4084.
This record does not justify the conclusion that the trial was “constitutionally unfair” within the meaning of the above-quoted language.
The January 12, 1968, order of the District Court will be affirmed.
We assume the reports were “in the possession of the United States” within the meaning of the Act, despite the fact that at the trial and again at the hearing on remand the United States Attorney stated that the only report he ever received from Groneveldt was an unsigned, undated list of witnesses, giving a one-sentence summary of their anticipated testimony (N.T. 217, H.R. 29-31). Cf. Augenblick v. United States, 377 F.2d 586, 597-598 (Ct. Claims 1967), reversed on other grounds, 37 L.W. 4081 (1-14-69); Beavers v. United States, 351 F.2d 507 (9th Cir. 1965); United States v. Knox Coal Company, 347 F.2d 33 (3rd Cir.) cert. den. sub nom. Lippi v. United States, 382 U.S. 904 (1968).
These two reports (P-1 and P-3) were among the six introduced by the Government at the hearing on remand as possibly falling within the Act. Defendant does not contend in his brief that any of the other four were producible.
The interview reports contain this language
“(Mr. Albert Skeete) residing at Estate Whim, Fredericksted, was interviewed and stated that the subject ‘Bajan’ [defendant] resided with him for the past two weeks. . . . Mr. Skeet further stated that on Saturday, October 2, 1965, ‘Bajan’ arose about 5:30 A.M. and left the house. [Emphasis supplied.] He further states that on Sunday morning October 3,1965, ‘Bajan’ washed all his work clothes.”
(Report dated 11-17-65)
“Reinterview of Mr. Skeet
Mr. Albert Skeet was interviewed this date_ . . . Mr. Skeet further stated that on Friday, October 1, 1965, the subject did not come home or sleep in the house. [Emphasis supplied.] Mr. Skeet stated he next saw Fitzgerald Lovell Saturday morning, about 8:00 or 9:00 P.M. [sic] and that on Sunday morning about 10:00 A.M. the subject, Fitzgerald Lovell washed his clothing.”
(Report dated 11-19-65)
“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 ....” 18 U.S.C. § 3500(b).
Although a statement which would support impeachment for faulty memory would apparently be sufficient as “relating” to a witness’ testimony, see Rosenberg v. United States, 360 U.S. 367 (1959), it was not Groneveldt’s, but Skeete’s memory which was cast into doubt by the reports. And though the interviews did relate to the subject matter of Skeete’s testimony which was introduced by the Government later in the trial (N.T. 178-196),
“The term ‘statement’, as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means—
(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.” 18 U.S.C. § 3500(e).
The trial judge was not explicit as to why the November 17 report failed to come within the Act, nor can we determine from the record whether it qualified as a “statement” under § 3500(e)(1). Like the report of November 19, it bears Torres’ signature and Groneveldt’s signed approval. But Groneveldt testified at the hearing on remand that it contained facts determined both by him personally and by others (H.R. 17), and since the report does not indicate who questioned Skeete, we are unable to say that the interview was not “signed or otherwise adopted or approved” by Groneveldt. It does appear, however, that neither of the reports fell within § 3500(e)(2): they are not “recordings” within the meaning of that section, they are summaries and not a “substantially verbatim recital” of Skeete’s statements, and, in the case of the November 17 report, there is no indication it was “recorded contemporaneously” with the interview (cf. H.R. 18). See Palermo v. United States, 360 U.S. 343 (1959); United States v. Allegrucci, 299 F.2d 811 (3rd Cir. 1962); United States v. Grunewald, 162 F.Supp. 621 (S.D.N.Y. 1958).
There is a conflict in the Circuits as to whether the “clearly erroneous” rule discussed in Campbell v. United States, 373 U.S. 487 (1963), applies to a District Court’s determination that a report is not a “statement” under § 3500(e). Compare Canaday v. United States, 354 F.2d 849 (8th Cir. 1966), and United States v. Gosser, 339 F.2d 102 (6th Cir. 1964), cert. den. 382 U.S. 819, rehearing denied, 382 U.S. 922, rehearing denied, 382 U.S. 933 (1965), with Williams v. United States, 338 F.2d 286 (D.C. Cir. 1964).
The statement was as follows:
“Mr. Lovell was with me Mr. Skeete, on Friday October 1st. Lovell spent the night with me. On Saturday morning, October 2nd, 1965, I gave Lovell the key to my house as I went to town. I then saw Lovell at about*208 3:00 p.m. on Saturday, October 2nd, 1965. Lovell bought some groceries and we ate together. Lovell went out in the evening.
[signed] E. J. Ocean — 12/1/65
“This was read to me on the 1st of December 1965 this is exactly what I told Mr. Ocean.
[signed] William Albert Skeete.”
N.T. 528-531. After quoting Skeete’s testimony at the preliminary hearing to the effect that defendant was absent on the night of October 1, 1965, and then reading the statement taken by Ocean in its entirety, counsel stated:
“But I say to you that the testimony of Mr. Skeete adduced here by the Government to demonstrate that this man was gone from home all night the critical night is of vital interest and of vital concern and whether it’s
As pointed out in footnote 1 above, the record makes abundantly clear that the only report which the prosecuting attorney had at the time of trial was “a statement listing witnesses” (P-6), which contains nothing whatever relating to Mr. Skeete’s contradictory statements. In Brady v. Maryland, supra, relied on in the dissenting opinion, the prosecuting attorney had possession of and knowledge of the statement in question.
Dissenting Opinion
dissenting
As I see it the question is whether in the circumstances of this case the failure of the Government, even in good faith, to disclose to the defendant standing trial on a charge of murder the two contradictory statements given by Albert Skeet to the police on November 17 and 19, 1965, amounted to a denial of due process under the doctrine of Brady v. Maryland, 373 U.S. 83 (1963).
We need not, therefore, make our decision within the limited contours of the Jencks Act (18 U.S.C. § 3500) or choose between the competing elements of rigidity and flexibility in its construction. Cf. Palermo v. United States, 360 U.S. 343, 351-53 (1959). Indeed on the earlier appeal in this case in Government of Virgin Islands v. Lovell, 378 F.2d 799, 805 ( 3 Cir. 1967), we exercised our supervisory appellate authority to make the Jencks Act applicable in the Territory of the Virgin Islands as a “gloss” on the rule of Jencks v. United States, 353 U.S. 657 (1957).
•I therefore put aside as peripheral the question whether the Jencks Act itself would apply in the circumstances of this case. Instead, the question for me is whether there was a violation of the guarantee of a fair trial, which is the objective of the exercise of our supervisory power over criminal proceedings.
A key figure on the issue whether the defendant had been at home during the night and early morning hours immediately preceding the murder was a 90 year old man, Albert Skeet, the defendant’s landlord. When the case was called for trial Mr. Skeet was present in the courtroom and the Government intended to call him as a witness. He was suddenly taken ill and fainted in the courtroom and was removed to a hospital, where he remained until after the end of the trial. As a result of Mr. Skeet’s illness the Government read to the jury his testimony at the preliminary hearing.
The majority believes that the failure of the prosecution to disclose this information was not prejudicial to the-der fendant because Mr. Skeet had already been contradicted at the preliminary hearing. There he had testified on direct examination that defendant had not been at home on the night of the murder. On cross-examination, however, he acknowledged giving a statement to the law clerk of defendant’s counsel that defendant had been at home in bed that night. It is therefore true that a contradiction had already appeared at the preliminary hearing between Mr. Sheet’s direct testimony and his admission on cross-examination.
But there is a profound difference in the effect on the fact finder engaged in determining credibility between a single contradiction and a double one. This is especially true in the present case where the Government’s witness was an aged, undernourished man
I think we must view the problem in all the surrounding circumstances. This is not a case where Mr. Skeet testified before the jury. The defense had no opportunity to cross-examine him in the light of what it may have learned from the testimony of the police officers. The defense did not have the advantage of the jury’s observation of Mr. Skeet’s testimony or the manner in which he reacted when he was confronted with his contradictory statement to the law clerk. The new and more serious contradiction embodied in the two statements to the police take on in these circumstances a significance which they might not otherwise have had. When the Government claimed the benefit of the rule of necessity which permitted it to have the advantage of Mr. Skeet’s testimony without producing him on the stand it carried, it seems to me, a corelative burden of disclosing to the defendant the two contradictory statements to the
I therefore dissent.
The physician who examined Mr. Skeet after ' he had been taken ill testified that he was badly nourished, emaciated and dehydrated.