*1 GORDAN,Appellant, W. Robert America,
UNITED STATES
Appellee.
George
Washington,
Shadoan,
Mr.
W.
No. 16537.
Court),
(appointed
C.
the District
D.
Appeals
Court of
United States
appellant.
Circuit.
Columbia
District of
Acheson,
Atty., Mr.
Mr.
S.
David C.
U.
Argued
Oct.
Atty.,
Aikens,
Arnold T.
Asst. U. S.
Decided
Dec.
Atty.
Paulson,
U.
Asst.
S.
Mr. Nathan J.
Rehearing
Banc Denied
En
Petition
filed,
at the time the motion
En Banc Jan.
appellee.
the motion for
Judge,
Before
Bazelon,
Judges.
Burger, Circuit
Bastian
BURGER,
Judge.
Circuit
Appellant
convicted of
violation
appeal,
the federal narcotic laws. On
the Dis-
this court remanded
instructions to the Dis-
trict Court with
to examine Officer
trict
camera,
significant
event he found
he was to make
pertinent parts of the
available to the defense.1
significant
Judge found no
District
gov-
this motion
consistencies.
this court to affirm the
ernment asks
Judge.
finding of the District
have examined the
We
no abuse of dis-
and have found
error in the
District
cretion
of this issue.
resolution
Court’s
points
dissent
to no material or
discrepancies
between the
grand jury testimony of the
trial and
officer,
on an individual
police
interpretation
subjective
two sets
Essentially
the dissent is
answers.
comparisons of what Officer
“suggests”
“may sug-
“indicates,”
gest,”
“seems
indicate.”
record and
review
careful
Our
grand jury minutes satisfies
discrepancies
no more
occur when one
variations
normal
a series
events on
describes
person
two different occasions
months
Joy
1. At trial Officer
was asked
apart.
how,
describe
occasion,
he
contacted
purpose
defendant for the
judgment
af-
is
of conviction
purchasing
replied
narcotics. He
firmed.
driving along
in his automobile
Affirmed.
and
“stopped”
defendant
him.
grand jury
testified before the
BAZELON,
Judge (dissenting).
“seated in a
automobile”
“approached”
when he was
on
1961 Gordan
June
was convicted
apparently waiting.
whom he was
of a
indictment
all counts
charging
seven-count
illegal
narcotics.
sales of
2. At trial Officer
on
single
hung “by a
Government’s case
direct
that,
and cross examination
testimony
its sole wit-
thread.”1
ness,
occasion,
paying
one
cap-
for four
Joy,
Police
undercover
Officer
an
only two,
he received
because the
agent
prohibited
the time the
narco-
at
defendant
allegedly
tics transactions
testimony
himself. But his
before
July
one
1960. The defense offered
grand jury indicates that
defendant
Hughes,
rebuttal,
witness
Oliver
occasion, purchase
on that
four
materially
“categorically
contro-
who
and
supplier,
sules from his
the two
2 Joy’s testimony.
Thus
verted”
gave Joy,
remaining
keeping
issue in the
was the credi-
critical
ease
money for himself.
memory
bility
Officer
3. At trial Officer
During
defense counsel re-
gave
occasion,
on a certain
defendant
judge
quested
inspect, in cam-
the trial
just
they got
$6.00
out of the
testimony
era,
car. But
jury
before the
any incon-
whether there were
determine
that he had
testimony
between that
and his
money “previous
time,”
to this
testimony
judge re-
at trial. The trial
possession
defendant had
of the
appeal
held that this re-
fused.
throughout the car ride.
remanded
case
was error and
fusal
to the District
instructions
“with
4. At trial Officer
testified that
Joy’s grand jury
examine
having
argu-
he did not
“ever”
recall
3 Upon examination,
timony in camera.”
anything.”
“about
with defendant
inconsistency
judge
“no
the trial
But his
testimony given
between
Joy
they may
indicates that
and the tes-
which defendant
about the
refused
$3.00
timony
trial.” The Govern-'
said
gave
return after
examine the
asks
ment now
jury
capsules.
instead of four
judge’s
minutes,
review the trial
inconsistency,”
affirm
finding
of “no
At
testified that
judgment
original
of conviction.
approached
he had never
defendant and
buy
however,
reading
minutes,
tried to make
de-
But his
following
fendant refused.
inconsistencies be-
reveals
indicates that on a
officer’s
tween the
may
testimony:4
number of occasions
essential
to a
is
discussion
1. Gordan
(1962).
tbe
issues
court
underlying
offend the
reasons
Ibid.
secrecy requirement.
See Simmons
F.2d
3. 112
Both
conditions
prevail
instant case.
portions
of select
4. Disclosure
proper,
my opinion,
Joy’s requests
refused Officer
drugs.
preparing
to obtain
defense counsel in
his case or
examining
cross
Government’s
appears
ness.
I do
think
that this
*3
that
6. At trial
testified
from the face of the inconsistencies.
capsules
to Detec-
turned certain
over
being
counsel, my
so,
That
defense
grand
But
the
tive Somerville.
jury
opinion,
oppor-
should
afforded
be
that he turned these
he testified
tunity
jury
to
the
capsules
to
Hood
same
over
Detectives
urge upon
and to
the trial court as
Bonaparte.
grounds
significance
for
trial
the
a new
At trial Officer
appear.6
of
which
inconsistencies
capsules
the
“in”
adversary
the
pro-
car. But before
Without the benefit of
standing
side-
ceedings,
that “he
speculate
tified
as to the
can
significance
addicts
with these other narcotics
walk
Some
inconsistencies.
capsules.”
directly upon spe-
the
[me]
handed
when
of them seem bear
jury
(He
example,
the
later
For
issues in the
cific
case.
that;
sug-
sure” of
“not
that he was
Officer
gesting
it.)
sitting
not recall
he did
his
that he was
waiting
he un-
car
for
Joy testified
trial
8. At
successfully attempted
number
driving,
tried
they
were
while
drugs
defend-
purchase
from
occasions to
the
his fix with
him to-take
to convince
purchased
ant,
the
and that he
But he
them.
rest of
funds,7
police department advance
with
episode
the
entrapment
all relate
the issue
driving
they
while
were
while
not
unsuccess-
about
coming
park-
which
to the
over
fully sought
information
elicit
ed car.
throughout
trial.
the
described
At trial
occur-
claimed
events
inconsistencies are not
Other
so ob-
But before
U.”
“at 12th and
red
viously
specific
related to
issues in the
ap-
what
grand jury he described
grist for
But their
as
case.
occurring at
as
events
parently the same
impeachment
becomes obvious
mill
Streets.
and U
against
14th
they
the back-
when
are viewed
ground
testimony.
incon-
trial
hold that
brethren
sufficiently
events in
did not describe
not
Or,
terms;,
scrupu-
general
with
he related
to warrant
material
epi-
they
decide
each
the details of
put
lous
another
background any
useful to
Against
been
not
sode.8
would
trial,
reports
or a
facts
related
infra.
5. See note
upon
emphasis
same
contrast
willing
especially
to be
should
6. Courts
treat-
facts,
order of
even a
process
adversary
aided
ment,
to the cross-ex-
also relevant
the traditional
reasons behind
the
secrecy
credibility
testing
amining process of
proceedings
do not
testimony.”
[Empha-
trial
of a witness’
clearly
apply,
here.
See
as
supplied.]
sis
Simmons
related,
example,
how defendant
8. He
large
envelope
white
from
“withdrew
denied)
(or
was not disclosed
This
* *
pants pocket
right
side
his
among
thus
listed
and was
5-6];
placed
pp.
and how he
[Record
Jencks v.
“inconsistencies.”
cf.
pocket”
[his]
“in
left front shirt
U.S.
10],
geographical
pp.
[Record
His
(1957),