John E. Bradford v. United States

Judgе adheres to his conclusion delay laches, but no in favor to be entered decree must superior ($1,282.12) lien as the maritime (46 mortgage. 953(b), Section 953) prior- expressly accords U.S.C.A. § ity “preferred liens” which maritime un- it would be then be since

this would 974(2)) (46 laches U.S.C.A. § affected not to exist.

found

Consequently, matters II, re- must cause in Part

volved inconsistent further and not

manded for scope

proceedings. nature necessity be proceedings must of those considered instance

left in the first

judgment District and discretion initially Judge. can best He determine present record to which extent supplemented evi- further is to be hearings, dence, etc. part re-

Affirmed in and reversed part.

manded BRADFORD, Appellant,

John E. America, STATES of

UNITED Appellee.

No. 15624. Appeals Court of Ninth Circuit.

March Rehearing Oct. 1959.

On Bradford, pro. per.,

John E. Can- Cantillon, Cal., Beverly Hills, tillon & appellant. Laughlin Waters, Atty., E. Leila U. S. Bulgrin, Jensen, F. Robert John Asst. Attys., Angeles, ap- U. Cal., S. Los pellee. FEE, HAMLIN, Before BARNES Judges. Circuit HAMLIN, Judge. Circuit Bradford, was appellant, E. John cоunts in an of two a convicted selling charging him with indictment dates in violation heroin different on two received Title 21 U.S.C.A. He of § count, years on each sentence of fifteen a consecutively. run sentences According portion Govern- agent government testimony, the ment’s Farrington purchases on of heroin made paid Bradford from two occasions on each occasion. of $275.00 him the sum testimony, while similar Bradford’s Farrington’s many points, on differed particulars. ‍‌‌​​​​​‌​​‌‌​​‌‌‌​‌‌​‌‌​​‌‌‌‌‌​‌​‌​‌‌​‌‌‌‌​​​​​​‍in certain Brad- therefrom money he received the ford admitted that Farrington occasion. His from on each Farrington story, however, was that “buy” to make a of heroin asked him ap- for him from a certain “Pat”. pellant addict that was an testified Farrington said he would give capsules couple heroin him Bradford, buy he, made for him. Bradford then testified contacted “Pat” told “Pat” where the and was and where would to leave the heroin money. further Bradford testified that Farrington place, he met and that fraudulently “Whoever or know- Farrington picked up ingly imports brings heroin any package gutter drug brown underneath an any into United States or territory automobile. juris- under its control or diction, contrary law, receives, Concerning transaction, or the second conceals, buys, sells, any Farrington or in man- Bradford testified ner transportation, facilitates the heroin, buy likewise him $275.00 concealment, any or sale of such “Pat”, he had and contacted drug being imported narcotic after told that the in brown heroin would be a brought in, knowing or bag same to paper palm tree a certain under a imported brought have been into address. further he He testified that contrary law, Farrington by and Farrington’s drove the address conspires any bag to commit such car, un- saw the brown acts in Farrington violation of the laws tree, palm der the and States, imprisoned United brought shall be where him back to not less than five or more than twen- Farrington had started from. testified ty years, and, addition, may palm tree, be that he later went back to the * * * fined. picked bag, up the and it was brown found fur- to contain heroin. Bradford “Whenever on trial for a violation ther that he ad- contended was a heroin of this subsection the defendant is dict, that he was not interested in sell- shown pos- to have or to have had Farring- narcotics, and that while drug, session of the narcotic give ton had him that would him told possession shall be deemed sufficient capsules few a made the heroin if he evidence to un- authorize conviction buy Farrington for him that had not pos- less the explains regard. up promise lived to his in this session to the satisfaction jury. Bradford further did testified that he provision relating “For to sentenc- know where the heroin came from * * ing, probation, etc., imported or that was into United thought States. He testified he it could appellant first attacks constitu- legally by prescrip- a obtained doctor’s tionality Many of this Act. cases testimony by tion. He also introduced upheld constitutionality of this a chemist heroin was from derived similar statutes. Gonzales United v. by morphine simple process, a that mor- States, 1947, Cir., 870; 9 162 Yee phine synthesized could be and this had States, 1925, 178, Hem v. United 268 U.S. University done at of Rochester 470, 904; Casey 45 S.Ct. 69 L.Ed. v. codeine, a derivative of States, 1928, 413, United 276 U.S. 48 S. opium, was manufactured the United 373, Ct. 72 L.Ed. 632. States; pro- and that heroin could Recently, considering this Court in a During duced from codeine. the trial upon constitutionality similar attack stipulated by it was the Government and 176(a) aof similar section Title 18 [§ appellant 1954,1955 1956, that in covering importation, posses- U.S.C. many morphine thousands of ounces sion and sale of marihuana] said lawfully alkaloids and had been salts States, 1958, Caudillo v. United 253 F.2d produced in United States from law- 513, 515: fully imported opium. raw (Yee Hem v. through Appellant, Court-appointed States, 1925, 178, 268 U.S. counsel, opening pages an brief of 155 470, 904) 69 45 S.Ct. L.Ed. and this many makes claims of error. (Hooper appellant 1926, 868; Rosenberg The statute which violating (the States, Cir., 1926, Jones-Miller convicted 13 F. Act, U.S.C.A.) 369) Title 21 presumption reads as 2d held § importation of unlawful follows: arising instigation drugs possession govern- from at the agent, Farrington, ment ‘The statute contacted unconstitutional. telephone rule, “Pat”, substantive not of laid certain and that down ** * merely result, evi lаw the heroin was found States, 9 Farrington, dence.’ Stein on one occasion gutter Cir., 1948, certiorari in a au- beneath the wheel of an tomobile, 68 S.Ct. 334 U.S. occasion was denied another Choy Fong 1768; Ng Farring- observed L.Ed. F. ton sion, occa- United 305, under tree. On each Farrington proof Requirement according ‘to appellant, jury’ personally is not the satisfaction of took the heroin without unconstitutional; appellant touching v. United Gonzales it all. On oc- at the 870, 1947, States, Cir., casion where heroin observed the was Farrington as unconstitutional appellant 871. forcing is not It to under and the be testify; tree, Farrington Yee later, to the defendant himself and States, supra; appellant being Dear without the present, Hem United v/ent 1947, Quong States, package to the containing picked up Check v. United tree the 251; U.S.App.D.C. 8, 160 F.2d 82 Mullaney the heroin. attempt to At no time did Rosenberg 638, 1936, 82 F.2d heroin) (of “explain possession the the States, supra.” jury.” On the to the satisfaction contrary, pos- its he denied at all times to con statute be We hold the session. stitutional. posture In this the the upon the Appellant an makes attack gave jury con- certain instructions to the given by Court concern- instructions cerning statute, are which ing this statute. the footnote.1 instructions, examining it these Before agree that the instructions We these remembered that must be possessed the cer to follow. While that are not a model all denied at times was any contention set out His these time. instructions heroin at tain (1-A) does have a it knew forenco whether the defendant imported must, imports imported right govern But it was or not. particular imported. Therefore, fact, things. stat You start have been charged presumption is is im- that it was this offense out with ute under which heroin, you heroin, relating imported ported, and the if it was one believe jury heroin was im that look to the to see whether find evidence must justify explains ported a conviction. that an im- evidence it not in order question, you ported heroin, difficult look to the evi- not too But is that presumptions in our dence in this have lawsuit.” because we presumption (1-C) “Nоw, law.” simply (1-B) presumption referred, is which I imported heroin is “A have that important heroin, particularly acceptance state affairs is of a certain light part being unless evi- in the statute: until and be of this true “ not it is true. It ‘Whenever on trial for a violation of which shows that dence the law directs defendant shown is an inference which subdivision the is pre- possession And it or to from certain facts. to have drawn possession drug, cannot law- since heroin narcotic shall be sumed that fully in the United deemed evidence to authorize manufactured sufficient control, explains strict narcotic conviction defendant and there is unless the possession any found in that heroin to the satisfactiоn of the ” imported, jury.’ since heroin is been States has subject (1 D) “Now, drug manufacture of lawful in some if — here, world, hence, statute, not one of the nations of kind mentioned in the proper possessions, that the substance if believe for which there are is, prescription something into has been introduced fact, heroin, evidence under a of that presumption nature, explain may there is a that then the defendant it imported away. explanation It makes it was heroin. no dif- There is no in the 1-G, proof 1-F, 1-H and proper (1-A, possession of in his case rule may 1-1), parts narcotics violation the others did certain not involve a statute, If the contradictory said thereof. to be either because imported narcotics were not defendant’s contention had been trary heroin, but possession had no had had law or because he unlawfully knowledge importation. known it unlawful imported, explanation informed possession, or that he had how- through ever, legally it defendant’s obtained serve purpose, prescription otherwise, only must or had be believed possession, explanation jury some other of its but must also be one possession —then thek the Court shows a un- instructions of lawful der explanation “there the statute.” is no possession of heroin” States Roviaro, In United 353 U.S. States clearly prejudicial. would have been page page at 77 S.Ct. right has a A L.Ed.2d the Court said: explanation pass “Petitioner contends in United possession. As stated all make Government in cases must page Cir., Feinberg, 123 7 showing that a affirmative further 427: possessed knew nar- the accused statute, posses- “By argues force of failure cotics. He that his gives to an rise of narcotics an sion him to ac- to do so here entitles im- however, contention, the narcotics were quittal. ference that That contrary law, fur- against and a ported petitioner to has been decided * * person in Casey ther inference that in the cases cited knowledge States, of such possession had 276 U.S. is, it a importation. True unlawful 48 L.Ed. United S.Ct. may overcome trial Chiarelli, defendant on Statеs v. satisfactory by Landsborough inferences 528, 531; these possession of it, actually States or deal with it in his own hand.” but does not heroin, except enforce- a law that one is engaged agent (1-H) knowing, a ment officer or customs a “Possession must be suppression it, possession. or seizure or in the wilful to No one is to be held custody holding possess thing, meaning it in a court an officer of within the purposes law, of trial or destruction.” what of this possesses. possession if he doesn’t know you before, (l-E) knowledgeable willing told “As It is a necessary by im- the heroin be it is which is intended law.” jury ported (1-1) presumption convict in in order for the to heroin if character, is not but it a case of this necessary in is found the United im- Stаtes it is ported that the defendant know that it heroin is not conclusive. It is a imported.” presumption, is, it is a circumstance (1-F) you a con- so, “In order for there to be are to consider as if it proved is in a of this character it viction that the heroin is in the was here and actually necessary proof possession there defendant, there presumption necessarily no was a sale. There is it is conclusive this open You there was a sale. look to the evi- be the case. This lawsuit is insistence in by was, determine whether there was or dence to was not into the defendant that this presumption imported fact, The sale. comes domestic heroin. play only you if the defendаnt is shown “If find from the evidence this possession case, you the evidenceto have had in heroin involved this if be- you substance, heroin, you if find it to lieve it to be if find that it actually heroin, you have been such.” if believe from possession (1-G) “Now, is sometimes evidence in the case that it was manufac- person actual, thing States, as where holds a in tured then there is against hand. Possession other instances no case this defendant. constructive, person “However, you as where a must look to the evi- thing, dominion control ever a hav- dence this connection. The lawsuit ability produce, upon immediate handle must be decided tHe evidence before upon conjecture.” and not surmise or 486; Stop- no evidence defendant States, offered explain jury possession, were infra. pelli United provisions entitled under the ute, the stat- court, Stoppelli v. United This reach conclusion 391, ap- Cir., 1950, 183 F.2d knowledge narcotics reading follows: proved an instruction imported into the United provides that further “The law contrary to law. for concealment when on facilitating Appellant her- contends that the trial the concealment judge jury inadequately shown to instructed the defendants have oin the heroin, question on possession possession in connec of such have had purchasing procuring tion with the possession deemed suf- shall agent. An the de- instruction was offered еvidence to authorize ficient conviction, de- defendant as set footnote. fendants’ unless give possession explain Court refused instruc this fendants their tion. We see no error refusal. satisfaction.” argumen prolix The instruction was however, Under facts of jury tative. The Court instructed the de- prejudice to the there be no could as follows: instructions, even fendant in the Court’s “Any person aids, abets, though com- who under other circumstances mands, might or causes another an just some to do leveled at criticism guilty act is as clear act as if he these was a instructions. There Now, had done pass himself. in this issue this case for heroin, government matter of the sale of possession. as to рerson supply far possession removed from the contended the heroin, of either actual construc- con- or of the narcotics the defendant tive, simply contrary. say, broker, acts as a tended to the He did not person “Yes, must absolute possession, but want to I had knowledge explain posi- and control it.” If over sit- that had his guilty.” tion, uation in order to so Court should have instructed jury clearly instructions and with no together instruction, The above with contradictory any way thereof, quoted already those we have in Footnote jury explanation his an issue for the was 1, sufficiently point covered the involved. pass upon. to is made that there The contention Under this case and facts part the United on the was misconduct sidering whole, we instructions as a by Attorney interrupting counsel States prejudicial to hold that were not during making opening of his state appellant. jury. counsel While defense ment to jury making statement, opening case, resolved the was this In Attorney against appellant, the state possession made issue of ample was set out in a footnote.3 We see no evidence ment hold there we implied finding pro prejudice to the these this to sustain being so, ceedings. Having done jury. evidence, person, found to of tile if exist of another that you 2. “Possession might par- jury, drug charged indictment, substantiate a in the selling facilitating ticipation possession а nar- in the de- be deemed cannot conspiracy is established cotic sale.” unless fendant person defendant. and the sueli between Bulgrin: Honor, fact, fact, Your it is a “Mrs. I don’t mere if interrupt opening a facilitation of sale like to counsel’s state- achieved particular acting through person, ment, but at this time it is a third or sale procuring agent, apparent intermediary simple to the Government that counsel arguing pertain itself, sufficient, matters which least is mat- not is argued person’s ‍‌‌​​​​​‌​​‌‌​​‌‌‌​‌‌​‌‌​​‌‌‌‌‌​‌​‌​‌‌​‌‌‌‌​​​​​​‍possession law, to the before ters ascribe proper possibility defendant, notwithstanding and are not considera- this court argued Appellant judge contends that the Court’s a motion jury upоn judge constructive trial, instruction possession for new stated: in error. This instruc- you jury “Do think the under- prior tion is in our footnote num- saying, stood that is what she was the in- bered 1-G. We see no error in system that the whole federal en- struction. forcement of narcotic fall laws would unless this man were convicted? contends there prejudicial “She had not part contended that misconduct on the figure Attorney pivotal was the the United clos in the entire argument following vending fabric of narcotics state where the ment was Attorney: States. I think what made the United States she undertalcing say what —and understood she was under- case, particular “But in ladies taking say if —was gentlemen, it is submitted with evidence as substantial as given under the facts that have been worthy evidence is, in this case you stand, from the witness of conviction, brought then no case your guilty if verdict is not on each under this statute is. the evi- And travesty count there would be a certainly dence in this case was justice. abundant.” “Talking about the facts particular agree case, gentle- judge’s appraisal ladies and with We the trial men, your government’s verdict, cir- under the counsel’s remarks cumstances see no which have error in statement. been testified to in guilty, this court on this is not Appellant complains of an instruction gentlemen, ladies and the ef- credibility the Court on the fect of the law completely. will be nil including witnesses, the defendant. We Absolutely it will end federal control examined and feel instruction of narcotics. that it an incorrect statement gentlemen, “Ladies and we submit the law. that should ver- not be dict.” Appellant complains further that Timely exception following was made the ar- give to the Court failed to the in being gument. When matter was struction the offered defendant: jury, is, for the that course, tions the constitu- “Of that case involved these ob- objection presumption the jections tional to which already pro- which counsel has against posed resolved the defendant. was the to court and to both the relates arguing question general constitutionality “The Court: He isn’t stitutionality of presumption application it. and the оf surely “Mr. presumption particular James Cantillon: I don’t to this mean to matters, your Honor, be. of facts. And those says going merely “The Court: He he is to would be facts which would prove prove enough If all, that. he doesn’t presented, pres- if at outside of the thing. it doesn’t mean a jury, ence of in connection with coun- Bulgrin: fact, “Mrs. previous matters of judgment al- sel’s motion for of leged talking about, only acquittal fact he is would and for dismissal. question apply to of Maybe going constitutional “The Court: he is to have objections already which he has many it, made and a whole chain here with links in would be matters so, which a would and if he is entitled to describe each your Honor, consider, Cop- under link. pеrthwaite case. opening “So far statement “The Court: description Under what case? tended to be the of one link Bulgrin: “Mrs. might This possibly case we had dis- chain; in what be a I motion, your Cop- on the cussed Honor. going can’t tell. He has the floor. am to

perthwaite [Copperthwaite let him continue. Cir.], Bulgrin: Very 846. well, “Mrs. Hon- or. However, of examination after careful failure the Government points be- where all the in defendant’s produce a material witness raised to nothing half, justify reversal we that such find to establish circumstances judge Govern- the case. As court the trial witness available at the de- stated motion for time of the not available to ment and trial, guilt new gives evidence to an infеrence rise fendant the Govern- was abundant. defendant the reason producing witness said ment is not Judgment affirmed. testimony wit- such is because Rehearing On Petition for Govern- ness would adverse to ment’s contentions.” BARNES, Before HAMLIN and JERTBERG, Judges. Circuit Appellant for some this matter discusses twenty pages A short an- in its brief. argument HAMLIN, Judge. is that Circuit swer to the defendant’s referring (one person affirming judg- After the decision any Hawkins) Bobby sense not in was conviction, petition ment of for rehear- government pro- material witness. The calling filed, to our attention testimony that a witness duced no had, prior about a month up- present any of the occasions filing brief, appellee’s petitioned purchased were оn the narcotics which supplement opening the Court testimony or merely discussed. The defense by adding ground brief as an additional Bobby intro- Hawkins had reversal that the District Court Farrington government agent duced the failing erred order certain notes However, no appellant. to the testimony, there is appellant’s turned over re- counsel as defendant, even quired under rule announced any time transactions occurred at Jencks United 657, 77 353 U.S. govern- relied S.Ct. 1 L.Ed.2d 1103. The trial proof the counts ment either prior place took on Jencks decision against ap- of narcotics the sale June many objections pellant. There are other petition Due to inadvertence this did thаt could leveled at the offered panel not reach the which heard the neces- struction which we do sary deem upon. thus Appellant’s was not acted discuss, statement in view of our court-appointed understandably counsel materiality above as to the the testi- denied, believed it and there- mony. point fore did not cover the Jencks either point like to We would argument. or on brief oral After oral appointed by counsel was argument, counsel for learned only appellant. Not did the to defend petition supplemental his file a ably represent the counsel denied, brief not been and subse- upon later mo- and court before quently petitioned calling rehearing, trial, also in court tion for new to prevented attention our had in effect been opening prepared an brief counsel has briefing arguing from and closing together pages, of 155 with contention error under the Jencks pages, ably pre- and brief rule. argument in All this court. sented oral granted petition rehearing We appel- points could raised in solely “to be confined to the consideration carefully and lant’s favor have been effect, any, of the on said action of the meticulously in the briefs and of the decision Court argument, oral and counsel to be com- in Jencks v. United States. industry for their in this matter. mended ” * * * government Undoubtedly they constantly ap Both thе long pellant filed on the briefs issue conscious that faces a sen- and the argued. orally matter tence. independ- could during the witness not have an The record shows meetings witness, ent recollection “a series of testi- government

Farrington, a period with defendant dealings over two defendant with the fied as to his months.” testi- He purchase of narcotics. regarding telephone conversations fied discussion, After announced the Court meetings place time him, inspect with camera, he would notes actions him, stating with and statements “I will take a look now at them places. at various times privately they and see if are such that testimony fact they Included in this capable would either of some after on two occasions potential you capable worth to of some government funds being to the defendant therefor, injustice worked their divul- from heroin genee.” he had received detail He described in defendant. Government counsel then stated: time, place circumstances exact “May inquire proce- I defendant. with the his transactions your dure, Honor? I wouldn’t want Far- During cross-examination notes, these in case the Court decid- fol- rington by counsel defendant’s they ed fendant, were not available to the de- lowing place: took public a matter of rec- notes, you “Q. Now, did made ord exhibits. during not, you of this the course “The Court: purpose ‍‌‌​​​​​‌​​‌‌​​‌‌‌​‌‌​‌‌​​‌‌‌‌‌​‌​‌​‌‌​‌‌‌‌​​​​​​‍That is thе investigation? Dur- I did not. A. inspection. of an in camera defend- of the course—out They “Government counsel: are yes. presence, ant’s not made an exhibit at that time? “Q. I meant. A. what That is No, they “The Court: are not. Yes, sir, I did. They are not even marked for iden- “Q. notes in his You make didn’t The tification. witness hands them No, presence? A. sir. Judge Judge to the and the sits here daily “Q. You made notes on the bench and looks at them and each of these contacts with after hands them back to the witness. defendant? A. Yes. * * * purpose of the in “Q. you took the stand Before inspection camera is to let them you yesterday recol- refreshed only come to the pri- for his you notes, did from those lection scrutiny.” vate not? A. did. documents, including Thereafter, certain copy “Q. of those Do notes, the witness’ were handed to the they Yes, sir, available? A. notes Court. available. are During recess, noon ex- May “Q. them, please I see ?” the file amined and when resumed court following proceedings place government objected took presence hearing ground but out of the production timely, made part and confined to notes was in The file consists file. Court, stat- reports himself. the witness copies which were ing general, agency. “in not used for investigating notes It the sent to memory refreshment at the immediate part other documents in consists testimony giving not are relation, apparеnt the time of no no bear which side,” other stated case, to the made available immediate but to this relation objection. thing the to sustain he intended which class of are of the agencies investigative have where stressed for the defendant Counsel many persons suspecting contending notes, are the see desire to

67 investigating appeal. the multifarious record the on The Court said even of these it would more assume that the District of one or activities Court’s failure to people. deliver the statement tified to brought forth here. of the informant formant was and ness, affirmatively shown that sistencies in “The file does not “Insofar as it shows ^[*] the regard. same detail here, ^[*] with what the show witness ^[*] although have asked know who you have аll they have been ^[*] disclose has verified the witness it ^[*] does identity already things incon- wit- tes- ^[*] in- was matter excised was an to defense counsel with the extraneous In the not think a new trial should be or- prejudicial has from cannot know that failure to deliver dered.” mine udicial “ * * * but we involved; statement, by stipulation the whether or present error, record on case, properly excised, was because the exhibit not was a defendant, appeal. no such error, been excluded cannot question, Since stipulation we do deter- prej- we between the 18 of the so-called U.S.C.A. § appellee 3500, ‍‌‌​​​​​‌​​‌‌​​‌‌‌​‌‌​‌‌​​‌‌‌‌‌​‌​‌​‌‌​‌‌‌‌​​​​​​‍appellant and was excluded from result the same was reached.

68 prior Rosenberg, In Lohman, refused occurred the trial court where trial In decision, a letter testified allow defendant to examine a witness the Jencks by report to written a witness to the United States a written he had made Attorney day certain after a before the The case was two trial. FBI within F.Supp. meeting. Court, defense tried 157 trial court denied in District 654, report pro- passage of 3500 and the after § motion that counsel’s Appeals question, appeal, letter in provisions with the Court accordance duced. On preserved section, rule refusal of that Jencks held that under the grant prejudicial appeal. er- in the record on Appeals, Cir., The Court the motion was 760, 953]: F.2d 3 it held was The Court stated [251 ror. ques- error not to have the letter without cоurt was “The district examination, tion to counsel for but after ruling at of the Jencks the benefit examining letter, held the Court court But this of the trial. the time counsel had at the time of the trial must, course, apply as it the law same information contained in the letter reviewed, not judgment is is when a and therefore the failure to allow defend- judgment it the law as was when ant’s it at time of counsel to examine entered.” consequence. trial was of no adopted Bergman, court trial In by Court a 5 to affirmed would that a desired the view statement majority, saying 4 79 S.Ct. U.S. [360 counsel if made available to not be 1234]: refresh used it to witness had not appellate “An court should not con- recollection, examined but wоuld be fidently guess what defendant’s at- see whether the trial court to torney might have found useful witness’ inconsistent with the tents were impeachment purposes testimony, in with- made avail- if would-be so held documents counsel, is to which the defense It otherwise not. able to However, very entitled. when the apparent followed the trial court possessed same information was procedure case. in the instant same procedure defendant’s counsel as would have pointing out that such After Jencks, been mitted, com- disapproved available were error not expressly Bergman would F.2d offend common [253 continued sense fair administration 935]: justice to order new trial. There light deci- “In of thе Jencks thing as harmless error sion, court failure the district clearly was such.” prior avail- to make statement [the] Although disagreeing respect requires with defense that the able to specific application judgments reach the harmless be set aside. We error doctrine under the facts of the with reluctance conclusion dissenting the four that the Justices indicated likelihood fail- view the proper ain avail- that may such a standard make statement [the] ure to applied: actually prejudice to worked no able defendants, and in view the generally “Although go we need not far so and fair con- conscientious suggest- as those courts which have long complicatеd duct ed harmless that the error doctrine judge.” the district apply can never as to statements statute, Rosenberg producible under the v. United 360 see Bergman 3 L.Ed.2d 1304 is S.Ct. U.S. 933; first cases which the Su- one Prince, 850, fidelity preme has been called principle underlying statute, 18 terpret U.S.C.A. § Jencks States, 1959, requires, and the Jencks statute Palermo see think, 1217, L.Ed.2d when the defense 79 S.Ct. U.S. States, producible supra, page statement denied a 353 U.S. at statute, page appellate court S.Ct. at an 1012. under unless should order new trial We are reluctant to reverse justify the conclusion circumstances case where the District followed finding a denial that a that such procedure widely which was fol clearly was harmful would be error where, lowed and as the Government erroneous.” points guilt out, its brief evidence of satisfied, substantial, but we are We, Supreme Ros- unlike the consideration, after careful under us, enberg, before do not have the notes permit rule of Jencks refusal the error and are unable to characterize inspection of the notes under the cir as harmless. calling cumstances of this case was error having The the instant case reversal, according and we must act statute, there occurred before the Jencks ly. Upon procedures a retrial the set out procedures up were no for counsel in Title 18 Section 3500 will be followed. preserve question exami- notes judgment The is reversed. reviewing nation above, court. As shown outlining the District Court concerning procedure followed notes, stated were further, to be made an “They He said are not exhibit. even marked for identification.” apply

We the Jencks not the stat- States, supra.

ute. Lohman v. United Rosenberg, In Court was considering application of the statute. CO., INTERNATIONAL SILVER assuming, Even so as the case here far Plaintiff-Appellee, concerned, the same standards applicable are in either case and that POMERANTZ, Defendant-Appellant. Julie permissible apply would be harm- doctrine, No. say Docket 25506. less error we cannot appel- failure turn the notes showing jury: was no story. inconsistent with the witness’ has made The Court “The Court: may request inspection that counsel’s be noted It camera its agent’s

Notes

practical why Then, available counsel.” order the jury, “I think there file to we should you, Mr. reason government presence inspection and there why is no Farrington.” said, we legal reason “I will should not hearing make it defense every return appellant’s counsel in this case did noth- fect ferences, inapplicable Court in Miller admits of even marked for identification.” The ef- stipulation holding words of the trial attributed to the but we in that here. For all that as an essential element to regard notes stipulation by court, and thus find it the matter of conflicting were “not appears, question less than Jencks, as to the trial counsel The troublesome judging where proper used in standard Court said [353 U.S. 657, where, here, 77 S.Ct. court 1013]: of a trial action prior to the Jencks de- has been tried hold, further, peti- “We that the appellate but comes before cision inspect tioner is entitled to the re- decision, Jencks after court ports to decide whether to use them cases. several arisen in only in his defense. Because the de- adequately equipped fense is to de- problem ‍‌‌​​​​​‌​​‌‌​​‌‌‌​‌‌​‌‌​​‌‌‌‌‌​‌​‌​‌‌​‌‌‌‌​​​​​​‍apparently first sub- purpose termine the effective use for a Circuit Court United mitted to discrediting the Government’s 164, Miller, 163, States thereby furthering witness and per In a October 1957. curiam decided defense, accused’s the defense must rehearing denying petition decision initially be entitled to see them to Appeals pointed may determine what use be made of court, request, at defense counsel’s requires them. Justice no less.” two statements made examined Mishel determine whether both Lohman v. witness In Bergman them was entitled to use in cross- counsel States, Cir., 1958, one Use of of the state- examination. Circuit, opinions by Judge, denied the trial court the Sixth because ments only Stewart, contained matter now Justice that it Mr. reversed found nothing ground. this case” but on ma- victions the Jencks “unrelated inAnd terially Prince, Cir., 1959, with inconsistent Mishel’s testi- placed mony. where the This statement in a F.2d trial occurred subse- envelope quent with filed the Clerk to both Jencks decision sealed Court, by stipulation Act, Jencks

notes over Appeals States Court of prejudicial lant’s counsel Second Circuit. it constituted error.1 harmless Argued May 14, 1959. testimony Farring- of the witness Decided Oct. 1959. gov- merely ton was not incidental princi- collateral to ernments pal question. intimately He was constituting cerned with the events charged, offenses and was the one who purchases ap- made the pellant of the narcotics selling. was convicted of It is as true here it was in Jencks that—(cid:127) “The crucial nature of the testi- * * * mony to the Govern- conspicuously appar- ment’s case is impeachment ent. The of that testi- mony singularly important petitioner.” Jencks v. United parties Statos, discuss three other cases ques from this circuit on the Jencks Cir., 1958, Rios v. United Rodgers tion. F.2d 173. 79; Wagner

Case Details

Case Name: John E. Bradford v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 9, 1959

Citation: 271 F.2d 58

Docket Number: 15624

Court Abbreviation: 9th Cir.