United States v. Catherine Johnson

Shipyards Corporation Todd because

such failure ? $__

Answer:

(Defendant’s 176) Exhibit No. your

In connection with consideration any issue, you

of this shall consider money relating de- 5 of

sum of to Item

fendant’s increased ser- Exhibit No. Also, your cost. vice deliberations

relating amount, any, you to an if will the Court

remember instruction that

gave you page charge,

you any are not amount consider Corporation Shipyards

claimed Todd delays.

as a result of

SPECIAL ISSUE NO. you preponderance find

Do from a Corpo- Shipyards

the evidence Todd

ration, in connection its settlement (plaintiff’s Exhibit

with Brown & Root Root

No. collected Brown & money relating amount of Company’s

Jasper Electric claims Service Shipyards Corporation?

to Todd

Answer: “We do”. do”, you If “We answered event, money, in that sum what Shipyards any, you if do find that Todd

Corporation Brown & collected from item ?

Root for this “$24,000.00”.

Answer: America, STATES of

UNITED Plaintiff-Appellee, JOHNSON, Defendant-

Catherine Appellant.

No. 18377. Appeals States Court Sixth Circuit. 19, 1969.

June WEICK, Judge,

Before Chief EDWARDS, O’SULLIVAN and Circuit Judges. EDWARDS, Judge. Circuit in- was Catherine Johnson dicted, in and was convicted (1964) violation of 18 U.S.C. § after a the United trial before the Eastern States District Court for District of Division. Tennessee, Southern years in the She was sentenced three penitentiary. federal In the aftermath of trial and con- Hoffa,1 third motion viction of James trial on his filed. new behalf was (among others) Attached thereto was August signed by appellant affidavit on Patsy Jo under the name of Harris. leged this affidavit al- trial in the Hoffa Chattanooga, Tennessee, and while sequestered on the 10th floor was guard the Read House Hotel under pro- Marshals, professional services as cured render prostitute four members grand jury Subsequently, a federal investigate convened to violations federal criminal in relation laws Appellant was Hoffa new subpoenaed motions. on being questioned on declined answer grounds. Amendment She was Fifth thereupon brought before a United States granted immunity in testimony under the im relation to her Tenn., McLellan, Kingsport, John S. munity provision of the Federal Com Cleveland, Ohio, Krislov, D. and Moses (l) Act, munications 47 U.S.C. § brief, Tenn., Shine, Kingsport, Bruce testified, thereupon (1964). Appellant appellant. allegations generally reiterating Atty., Williams, identifying Asst. Thomas A. U. S. certain affidavit and Reddy, Chattanooga, Tenn., U. S. H. J. and United Marshals Tenn., brief, Chattanooga, photo Atty., in the Hoffa trial volved appellee. graphs. (6th Hoffa, (6th 1967) (third F.2d 20 States v. mo 1965) (conviction denied), denied, first affirmed and new tion for cert. denied), aff’d, motion for new trial 390 U.S. 19 L.Ed.2d denied, ; 1968) (1968) reh. 386 U.S. (1966) ; (fourth denied), for new trial va L.Ed.2d 880 Cir.) (second nom., motion for cated and remanded sub F.2d Giordano denied), new trial ; (1967) long exit indefi- corridor at the doors and she was cross-examination On midway of two stationed the cor- other identification nite to her elevators; positive as- ridor across from the two jurors, but named (including juror and Link serting relations with each Curbow that she sexual women) on individual jurors times and four married had Link several and Curbow go- anyone floor, Hotel House rooms on this and that of the Read 10th floor the ing by the during Hoffa trial. the onto the floor could be seen the course identifying duty. a positive in three on marshals And was she Seymour Ball, hav- bellboy, particular jury During the trial of case the this services, particu- ing a procured and her the floor of the Read was taken to 10th Kemp, Marshal, James lar United States lay- inspect physical Hotel House the having her to and escorted out described above. 10th floor. course, testify (as, did not jury 24, 1967, the March On Sey- right do). had a not to clear single-count indictment a handed down a mour Ball witness called as per- appellant charging committed that trial, although testimony showed at this jury testified before when she Chattanooga company presence in relations that had sexual she had agent, with Teamsters Union Charles during jurors and Link with Curbow O’Brien. course of the Hoffa no called at prosecution There was witness introduced At the trial support by appellant direct appellant’s who offered tes-

the record occasioned timony for the statements which and and then called Curbow charges. perjury juror Kemp. Three witnesses Link and Marshal Each did, testify however, having appellant facts flatly defense seen denied ever jury, convening grand jury) which, would (before if believed of the having dispute of the re- elements specifically have tended to denied sexual and prosecution’s reasonable during case and raise a the course lations guilt. appellant’s Kemp doubt about also testified Hoffa trial. Marshal met he had seen or that never bellboy Ervons, Ezell had been a who denied know- until the trial. He during the the Read House Hotel ing specifically Seymour and Ball also trial, had been that he Hoffa testified taking appellant floor 10th approached he believed a man whom during the of the Read House Hotel ask- Marshal and to be a United States Hoffa trial. one; girl; that he had ed about other mar- called two 10th- floor that she went one who shals —one had who overall subsequently back and came hotel arrange- supervision had direct over prostitute paid him. He identified sequestration Hoffa ments only by Jo He said that the name of Jo. 10th Their appellant; that he never seen was not had been floor of the Read House Hotel identify since, he did not Jo before carefully physical its selected because juror. He testified or the marshal protec- lent characteristics themselves leaving Hotel Read House after jury; tion the trial Atlanta, job in on a he had worked generally operators did the hotel elevator agent Georgia, O’Brien Teamster which floor) go (the top to the 10th floor for him. had secured marshal; except on order of that 20 in 1967 testified Weaver Venette employed three 30 marshals were trial, but (three years Hoffa after shifts, days a week be with rooming one) had been before this all Hotel at Read House Odom, Hoffa whom a Mrs. times; duty at that at least three were dating, juror had been hotel, Curbow all in the times when the presence between discussion with one of them at each end stationed in her place. brother-in-law, of her behest and Mrs. Odom had taken whom she Curbow working identified as Her for the was: Teamsters. gone “Q. (Interposing) have We into Who is she? much factual detail of trial because of felt A. Mrs. Odom. Asked how appellant’s appel- insistence in her first girl intercourses with have sexual question late that she was entitled to younger daughter. his own than granted by her motion acquittal have Q. What, anything, Cur- if did Mr. because failure say response to that? bow government proof required to meet that, A. to be He ‘She said will legal standards. identify me.’ able to course, is, no There doubt Q. anything said? Was else “unique that the have a does No, A. sir. stringent proof” per and jury of burden Q. respect to With this ? Spaeth States, cases. v. United 1956). A. Huh-uh.' (6th Cir. To perjury sustain a there conviction must Q. you time I And at that believe at least two witnesses or one witness sharing you the same testified were by independent corroborated circum with— residence States, stances. Weiler v. United Yes, (Interposing) shar- A. ing she U.S. 89 L.Ed. 495 residence, sharing the we were (1945). Appellant argues vigorously in together. residence jurors this case that denying any and Link Curbow Q. is, you That Mrs. Odom? and appellant contact with can A. Yes. regarded meeting not be the “two wit dating Q. been rule, And Mr. Curbow had support ness” since neither could her? Assuming arguendo the other’s denial. validity (But of this contention see A. Yes.” May States, (6th v. United 280 F.2d 555 denied on cross-examination Curbow 1960)), ample Cir. we there is believe making Odom such a statement. Mrs. dependent Appellant’s corroboration. testify. did not story charged that United States Mar Kemp shal escorted her the 10th floor Maydean Henry Troyce that testified of the Read House Hotel on each occa company Marshal with United States sion she had with when sexual relations party the 10th Reidy on she attended Kemp positively and Curbow Link. on House Hotel floor of the Read doing thing. His tes night such tes- She the Hoffa ended. regarded timony independent must be there. that there were other women tified and that Curbow no corroboration that had seen testified also she She too, So, appel- Link. is the mass had there nor she seen pertaining physical personnel lant. also testified She arrangements made later United trial she saw a man whom Hoffa protect jury. juror Marshal this photographs as identified hall on one occasion F. W. Curbow at Y. conclude that the District We another. Plaza Motel Alamo denying the motion both was correct this met never testified that she had She proofs acquittal close since; identifica- man that the after the motion new years approximately tion two was made guilty. factual issues The verdict year trial and a after the Hoffa jury determination. were any- identify half she had failed after indict attacks the also first shown had one when fundamentally because tes- defective ment as pictures She of the Hoffa “willfully” employ gone originally the word it failed tified that she statute, perjury at the contained in which is Union officials Teamster talk with appellant’s (1964).2 Dis The As we understand 18 U.S.C. § argument IV, appellant Judge rejected be it could contention trict language prosecuted perjury because he held cause alleged alleged sufficiently questions to willful which she indictment3 given beyond F. Finn false See answers ness. agree 1958). scope materially we (4th related to While 2d 304 view, we affirm also Act under Federal Communications granted 7(c) immunity. ground the Federal Rule she was which greatly Procedure Rules of Criminal foreman testified at pleading practice so that liberalized among this trial served itself statute citation subjects which the allege v. Cochran willfulness. charged investigating. think it We 1964), F.2d 799 grant is much too late to doubt that immunity was coextensive (1965); L.Ed.2d 964 gave with the relevant answers she Roberts, questions asked of im- under the 867, 82 S.Ct. cert. denied munity. Murphy Comm., v. Waterfront Ochoa 8 L.Ed.2d 1948). (9th Cir. F.2d 341 pains to took And the District carefully fully charge appellant's We believe and Fifth rights amply pro- of willfulness. issue Amendment were tected if she told under the truth specificity any of find lack Nor do we grant immunity. of But it is relevant to advised indictment. in the charge which expressly excepted of the exact note its terms the statute faced. committed she while she was testi- “Whoever, having (also oath whether taken an Catherine Johnson known * * * Patsy competent testify Harris) he will tribunal Jo had sexual inter * * * * * * truly, will course with William Link and John Cur- contrary petit fully bow, states oath who were to such in the trial of * * * any al., which material matter v. United States R. Hoffa et James true, guilty (Criminal No. during trial, 11,989), of to believe said does not shall, except petit jurors sequester perjury, otherwise while said were provided law, expressly not be fined ed tenth floor of the Read House $2,000 imprisoned during more or than Hotel said more ” * * * years, 18 or both. than five January 24, 1966, “3. On or about (1964). 1621 § U.S.C. defendant, Johnson, having duly Catherine Jury taken an oath before the said Grand January 24, 1966, in about 3. “1. On or that, Jury, as a witness before said Grand Tennessee, a com District the Eastern of testify truly, did, she would then and Jury petent tribunal, is, of a Grand there, state material which matters duly America, im States of the United paneled true, wit, did not believe to be sworn the United States stated that she had had sexual intercourse Eastern District Court with the aforesaid Link William and John inquiry conducting Tennessee, was an of Curbow trial on aforesaid among things determine other whether to there tenth floor of the Read House Hotel. Eastern had been committed in the “4. The aforesaid of Cath- 18 violations of District of Tennessee Johnson, erine as she then and there well (Ob (Bribery), 1503 201 18 USC USC believed, knew and was not in that true Justice), (Perj of 1621 struction USC Catherine Johnson did not have sexual statutes, ury) , other Federal criminal intercourse with either the aforesaid Wil- inquiry being in which a in a said case Link liam or the aforesaid John Curbow law the United States authorized of during the aforesaid trial on the tenth oath to be administered. floor of the Read House Hotel. Jury 18, “2. It was to this Grand “In material violation of Title United States ascertain, among things, Code, Inquiry other Section 1621.” immunity.4 engaged investigation possible fying under Cf. provisions violations of Com v. Glickstein (1911). Second, govern Act. 56 L.Ed. munications 32 S.Ct. represented ment’s counsel inquiries directed also feel that We court that the was investi in- in context taken gating possible violations Com substantially vestigation related Finally, ques Act. munications possible Federal Com- violations tions themselves revealed substan Act. munications tial link those sections of the Harris, v. In United Second prohibit Communications Act which Circuit said: any person causing telephone company provision any to violate (l) Title “Section Bart, U.S.App. the Act. In re Cf. immunity Code extends United States (1962).” D.C. 304 F.2d given or ‘in cause Harris, 334 F.2d otherwise, proceeding, or criminal (2d 1964), 462-463 reversed and upon growing or out of al based grounds, on other remanded leged violation Federal Com [the (1965), remand, aff’d on munications Harris contends Act].’ (2d 1966), denied, cert. granted that he should have right witnesses, L.Ed.2d 547 summon several cluding one members of the two grand jury, that the establish Accord, Marcus United 310 F. investigation pertain jury’s did (3d 2d 143 alleged of the Communica violations L.Ed.2d agree. tions Act. do not The ex We Jury Investigation re Grand general tent which witness Giancana, (7th Cir.), inquire into matter of denied, cert. States, Giancana v. United severely jury investigation is 959, 382 U.S. 437, 86 S.Ct. 15 L.Ed.2d 36 circumscribed, secrecy light in (1965). grand jury proceedings in which have agree We with this view and feel that States, traditionally been held. United directly it applicable to our instant Levine, 335, v. 336-337 case. (2 1959). Blair See v. United States, 273, 468, 250 U.S. 39 S.Ct. 63 Further, particular question if even (1919). any L.Ed. 979 In event we was irrelevant to Federal Communica- government sufficiently find that purposes, profoundly tions Act we doubt grand jury’s established appellant fact would vestigation fell within the confines “license perjury.” to commit Glickstein (l). 409 § States, v. 139, United 143, 222 32 71, (1911). S.Ct. “First, August subpoena 56 L.Ed. 128 Of ex- 7 course, in plicitly case we have no stated that occasion “(l) person him No shall tend to incriminate or bim be excused from at tending forfeiture; testifying penalty producing no individual or but or from any boohs, prosecuted subjected papers, charges, be or shall schedules of con tracts, agreements, penalty on or for or account of forfeiture documents before Commission, any thing transaction, matter, or concern the subpena or obedience to the having ing compelled, Commission, after which he is whether such subpena against signed privilege self-incrimi or claimed his issued one or nation, testify evidence, commissioners, produce any or more or in cause or except documentary proceeding, otherwise, otherwise, criminal or or based upon any growing any alleged testifying so shall or out individual viola exempt punishment chapter, of this or tion thereto, amendments ground testifying." in so on the committed or for the reason (Emphasis (l) (1964). evidence, that tary or U.S.C. 409 § documen 47 otherwise, required added). or him 28 Obviously (although judicial might the situation to consider what discretion. differently) might the record be read to answer refused if had Judge thought Exhibit grounds See District United irrelevance. Cir.), (a transcript page appellant’s (3d Testa, 326 F.2d 730 v. 701, jury testimony) been marked 931, denied, 84 S.Ct. cert. 376 U.S. Bart, purposes of identification and would (1964); re (1962). evidence be considered admitted U.S.App.D.C. 304 F.2d 631 actually record into the read when cir care the read have We side Each of the trial before appellant was cumstances under which objection portions of read had without Plainly, agent. questioned by FBI closing transcript jury interrogation “in-custody” this was not argument. re The asked panoply of full

which would demand portion read dur read which had been warnings. Miranda Ari Miranda v. argument. ing government’s It was zona, L. 384 U.S. reading just objected defense who (1966). Appellant Ed.2d 694 sought. portion which the Mas under indictment at the time. Cf. giving government objected in turn States, siah v. page whole 372 (1964). L.Ed.2d suggested. find error no defense We of her basic constitu She was warned prejudicial the District defendant rights no tional and there threats Judge’s jury re ultimate refusal inducements, nor was there coercion. quest. See Caldwell v. Carolina, Davis North Cf. 36 F.2d 738 (1966). Buckley L.Ed. 1143 cites as reversible also 1929); F.2d error four instances where Murray U.S.App. Judge refused to admit evidence. In one D.C. instance the have tended evidence would possible part to show misconduct appellant’s pertaining issue As to juror woman Curbow with a different pretrial en to her motion filed place. aat time and re different Other grand jury transcript, tire note that we jected testimony would have tended Judge granted the so charge some of Mar the United States pertain appellant’s own far as it would shals with when indiscreet conduct off testimony, as follows: and then said duty. Judge’s analysis of respect to the defendant’s “With proffered opinion evidence his production of a motion for denying appellant’s for motion new proceedings the Grand before justifies rejection of matters including testimony Jury, of Wil grounds rulings of irrelevance. His Curbow, Link and the Court liam John discretionary authority were within the opinion of judge of a trial and do not constitute denied, except extent should be prejudicial City error. See Kansas Star copy entitled defendant States, (8th Co. v. United testimony of Grand Cir.), denied, 923, cert. 354 U.S. 77 S.Ct. 16(a) Jury in accordance with Rule 1381, (1957); 1 L.Ed.2d 1438 United (3), Pro Federal Rules of Criminal Higgins, (7th States v. 362 462 F.2d Cir. A. testimony cedure disclosure 1966); Johnston, United States 318 v. Jury properly before the Grand (6th Hardy 1963); F.2d 288 Cir. Unit v. showing only upon obtained States, 253, U.S.App.D.C. ed 118 F. 335 ‘particularized in a need’ and then (1964). 2d 288 manner consistent with Jencks States, We also feel Act. Dennis 384 v. United Judge’s handling request 1840, for 855 L.Ed.2d [86 U.S. S.Ct. 16 portion 973]; of Exhibit 2 within his United v. & States Procter

29 983, 2 Gamble, Nor S.Ct. is it our view [78 356 U.S. 677 consistent with expressed by the concern the United L.Ed.2d 1077].” Supreme preserving Court for request production No secrecy proceedings. government States, 359, Costello v. United 350 U.S. purposes of cross- trial for witnesses at 406, (1957); 76 S.Ct. 100 L.Ed. 397 Dennis was ever made. examination Cf. Johnson, 503, United States v. 319 U.S. 875, States, 855, 86 384 U.S. v. United 1233, (1943); 63 S.Ct. 87 L.Ed. 1546 (1966); 1840, L.Ed.2d S.Ct. Co., Procter States v. & Gamble Youngblood, F.2d 677, 983, 356 U.S. 2 L.Ed.2d S.Ct. Dairy (2d 365, 1967); National (1958). States, Corp. 384 F.2d Products denied, (8th suggested cert. The rule the dissent 957, go beyond 1032, requirements 1151 would 88 S.Ct. 19 L.Ed.2d far (1968). 855, of Dennis v. United 384 U.S. 1840, (1966). 86 S.Ct. 16 L.Ed.2d 973 attempt Nor made was there ever Supreme In Dennis the United States “particularized show a need” for production Court held that at trial of testimony. Procter See United States v. grand jury government statements Co., 677, 683, & Gamble 356 U.S. purposes witnesses for of cross-examina- 983, (1958); Pitts S.Ct. L.Ed.2d 1077 required tion was where defendants burgh Plate Glass Co. United asked for such statements. The hold- 1237, 3 L.Ed. ing in the Dennis ease was: 1323, rehearing denied, 2d 361 U.S. petitioners “Because were entitled to 4 L.Ed.2d 94 examine the Hensley, minutes re- United States v. 374 F.2d lating denied, to trial of the four Cir.), 352-353 government witnesses, so and to do rehearing while those witnesses were available cross-examination, we reverse the As to this judgment for a below and issue remand we find no error. new trial.” Dennis v. United suggesting We read the dissent as supra 86 S.Ct. at 1852. pretrial discovery grand jury proceed- case, although, In our instant in our ings granted generally to defendants opinion, judge suggested the trial request stating necessary on a it is proper procedure by his reference to the preparation appears for trial. This cases,5 Dennis and Procter & Gamble cry particula- us to be a far request jury testimony no rized need test in Proc- United States v. ever purpose made trial for the Co., supra. ter & Gamble No such rule government cross-examination wit- previously has been enforced in this cir- nesses. Barnes, cuit. United States v. 1963); showing We do not States v. find in this Hensley, supra. suggest record to the existence of a Brady Maryland Brady issue. suggested Nor has the rule been Maryland, 83, adopted by generally. the federal courts (1963). 10 L.Ed.2d 215 Walsh v. United F.2d (1st Cir.), XII, 387 U.S. We have considered issues XIII 18 L.Ed.2d 1335 All XIY. of these issues have been Hanger effectively v. F.2d dealt in the District Judge’s 1968); opinion v. John and we affirm the rea- son, 1964). soning and result contained therein. Co., Dennis v. United ble (1966) ; United States v. Procter & Gam- investigating, among jury other was judgment District Court of the things, possible of the Federal violations affirmed. done, Act. This was Communications Judge (dis O’SULLIVAN, Circuit government obviously, quite that so senting) . grant Judge might to ask the District expose immunity my appellant, thus to is a view dissent to The basis upon cross-examination defendant-appellant Johnson was her to extensive grand jury’s by District refusal matter a fair trial attorney investigation. to Communica- access The Federal her to Court allow jury permits grand testi- transcript is one few which tions statute trial, namely, granting type procedure, jurors mony in Hoffa this of two govern- reserving Curbow, immunity be- whose but Link and brought right prosecute grand jury her should the about ment fore compelled perjury. under for answers indictment perjurious. immunity to be be claimed Appellant, prostitute, had sworn pro- speculate We can whether had, which recited an affidavit government part device was of a cedural occasions, her furnished on several plan cross-examination of to obtain were who to some services young woman before formal accusation in, considering, ultimately joined activity. such of her would foreclose his co-de- of Hoffa and the conviction others, Her affidavit fendants. cross-examination, Responding in this support Motion New used was charges against her reiterated charged by which made Hoffa and Trial jurors, verifying as true involved by members misconduct some serious The cross- contents of her affidavit. sequest- they were while Hoffa however, wide-ranging examination, was Chattanooga, Tennes- hotel in ered equipped and indeed the United States see. Attorney important with valuable and charge was The basis preparing per- material for use in for a appellant had not the affidavit by If the accusations made signed, her before the but was false, appellant in her affidavit charged grand jury. The indictment already perjury. . It had committed grand jury was, per- necessary prosecution not to a repeat “conducting inquiry allegedly her to determine such charges things among false whether there before a This other say govern- I in the Eastern that would fault a had committed lawyer employing of 18 ment whatever of Tennessee violations legitimate “strategy” (Bribery), choose U.S.C. 201 U.S.C. bringing Justice), justice. (Obstruction an aid to criminals to U.S.C. disparity But in (Perjury), other Federal this case the between sup government pre- (Emphasis what the criminal statutes.” was allowed paring prosecute plied.) was denied what defendant, my view, impaired appel- jury, Called before right fair trial. The accused was

lant, exercising her Fifth Amendment cross-examined, pages worth, rights, questions refused answer Attorney. asked her the United States of it from the time the Thereupon she taken before a Dis- exámination Defend- was conducted.1 trict who was advised ant, however, time Attorney allowed government’s case. If the her dence in the take the stand at did not gave grand transcript However, which she before the of evidence the entire claimed, true, jury testimony as she in which she her guilty. charges against supported not the her evi- was introduced as Link and Curbow testimony say Any lawyer open her of in court. worth grand to have transcript request of jury and his salt would a grand accusers, whose already these sworn to. conviction. what two had brought her testimony about so, Appellant’s did counsel but trial, counsel preparation In Apart the inherent turned down. requiring an order motion for amade need, obviousness of this I consider that Attorney, United States in the case at defense counsel’s mo- bar transcript the defendant “To furnish tion, supported by of an affidavit Grand proceedings before client, clearly particularized such stated to, her limited including Jury, but The fol- need. affidavit contained the testimony William testimony, of lowing: (Emphasis Curbow.” and John Link defendant, “3. The John- Catherine supplied.) son, has been the tran- advised refusing in Court The script proceedings of Grand said: motion Jury subpoena or are not mo- respect defendant’s “With only process other and can be obtained transcript of production of tion of order Honorable Court. the Grand proceedings before Jury proceedings That are Grand testimony Wil- including the Jury, of in the exclusive control of the United Curbow, Court John liam Link and Attorney, as as all other well opinion that of is records, recordings, reports and docu- except extent should ments and not available to defendant copy to a entitled the defendant through through other source testimony Grand her process except other here 16(a) Rule Jury with in accordance sought. Proce- Criminal (3), Rules of Federal “4. The defendant makes oath that testimony be- disclosure dure. A each of the mentioned in her items Jury may properly be fore the Grand discovery inspection motion for showing ‘par- only upon a obtained preparation material in a manner then need’ and ticularized request and that is rea- defense Act. Jencks with consistent recogni- in sonable view of the court’s U.S. Dennis v. disclosure, sup- tion rather than 973]; 1840, 16 L.Ed.2d [86 S.Ct. pression of relevant ordi- materials Gamble, & Procter United States narily promotes proper adminis- L.Ed. [78 justice.” (Empha- tration of criminal supplied.) (Emphasis 1077].” 2d supplied.) sis ruling is Implicit Wilson’s Supreme The United States Court “particularized need” that a a conclusion Gamble, United States v. Procter & testimony of Link grand 2 L.Ed.2d 1077 been shown and Curbow (1958), Pittsburgh Plate Glass Co. obtain could all events in con- such a and use (1959), has ex- my formity Act. In the Jencks with pressed circumstances under which a erroneous. conclusions are view these may properly deny trial court to liti- gants transcripts testimony the use of charged lawyer today’s scene, given before a defending person duty accused “particularized Whatever earlier has indeed of crime said as to previous whether an relevant accused should need” provided jury testimony accusers. his client’s brought accusers, witnesses who are his Link and Curbow in the case of appellant’s Dennis v. indictment about prosecution’s whole impending (1966), they expresses depend upon Supreme would what case would Court’s grand testimony subject. I consider the witness’ of the view current supplied the de- In that should have been to I supports the take. view it that case, fense, agreed that the entire defendants Court was of the conviction upon showing ‘particularized a trial court because reversed might ac- to need’ counsel have them defense to furnished motion have their testimony grand portions cess to relevant jury testimony a witness, pro trial The factual and of their accusers. U.S., S.Ct., at that case at between cedural differences circumstances, variety 1244. detract one us do not and the too, courts, I have lower appositeness the case at bar.2 federal to its grand jury testimony Supreme opinion available made read the dicating Court’s 870, 86 “particularized for to defendants.” 384 at need” U.S. testimony 1849. grand jury S.Ct. at accusers more, arises, without defendant of a opinion may, in The Court’s Dennis expresses need his counsel when defense view, my expressing the also be read as prepare Neither it to for trial. for thought that other reasons unless some gov here did Court nor intervene, it is counsel who the defense that, claim aside from ernment make should make the as to his determination advantage prosecution, was testimony. grand jury for the need requested keep to there need secret enough adversary system, “In it is testimony. My our judges do brothers judge. withholding for The determina- point reason for tion to the de- what the Dis and neither did useful effectively properly can denying appel opinion his trict fense made only by Dealing advocate.2 The lant’s generally new judge’s respect point function in this our deciding has limited whether case involved, Supreme here a unanimous production, been made for Dennis, Court said: supervise process: example, Socony-Vacuum “In United States v. cause elimination of extraneous Co., Oil 811, upon applications matter and to rule 84 L.Ed. acknowl- Court by protective Government edged grand jury’s ‘after situations, orders in unusual such ended, functions are wholly proper disclosure involving security those the Nation’s ends of where dangers or clearcut who individuals justice require Procter it.’ In & Gam- pro- by are identified ble, supra, ‘prob- the Court stated that (Emphasis supplied.) duced." concerning lems jury transcript use at impeach at the trial to I recollection, conclude reference Dennis witness, to refresh his ’* * * quoting these additional observations: credibility test are particularized ‘cases of secrecy need where system adversary “In our for deter- proceedings is lifted guilt rarely mining innocence, it is U.S., limitedly.’ discretely and justifiable S.Ct., And in Pitts- at 987. exclusive rele- access to a storehouse of jus- burgh supra, Exceptions Glass, to this are Plate four vant where fact. most members of the tifiable the clearest and Court concluded special compelling that case considerations.” even facts of there denied were 3. Cf. Alderman 2. The motions exam- made at the conclusion of the direct witnesses whose ination each of the jury testimony sought. I do distinguishing circum- not consider that a stance. (Emphasis Congress equally clear intended at 1851. that

at S.Ct. supplied.) to exclude from the those minutes operation Act, of the so-called Jencks it was to the assertion Relative V, (Supp. Stat. U.S.C. District discretion within the 1958) 3500.” § following did, Judge to rule as comply point: To the Jencks Act and with government wait until a witness has argues it “But Government completed direct examination before judge not error the trial obtaining that witness’ tes- petitioner’s motions. little, any, timony if would aid proposition dis- With this latter we preparation for I read Dennis as trial. agree, at and we reverse.” holding that under facts such as we have at 1848. here the desired should be interpreted Den Other circuits have made available time when it will as- at a States, substantially supra, nis v. United preparation. sist in such Young Ias have. See United States v. majority The “no re- observes that (2d blood, 1967); 379 F.2d 365 Car quest jury testimony gill purpose ever for the made at 1967); Dairy and Nat’l Products government cross-examination wit- Corp. States, 384 F.2d 457 Judge already nesses.” The 1967). and, above, request denied the out set Further, disagree respectfully I application. the Jencks Act has no I proper it was importance fail to see the of the time of that, particularized rule need had a govern- request, it unless be that shown, requested testi- keep ment should be allowed secret mony could used “in a manner important material until the elev- consistent with Jencks Act.” Sub- hour, gain advantage enth thus to over (a) Act, section of the Jencks 18 U.S.C. No other defense. reason is dis- provides: § cernible. brought In criminal Notwithstanding contrary conten- the United no or statement majority, tion of I consider that I report possession of the United propose general no new rule. Neither States which was made a Govern- ruling suggest does the I collide with prospective ment witness or Govern- previous dealing spe- decision with the (other ment witness than defend- present cial facts that are here. I con- ant) agent to an of the Government my comports sider that view with the subperia, shall dis- statement of Dennis that: covery, inspection until said wit- developments entirely “These are con- ness has testified on direct examina- growing sonant realization tion in trial of the case.” disclosure, suppres- rather than Pittsburgh Plate Co. v. Glass sion, ordinarily of relevant materials 395, 398, promotes proper administration of (1959), justice.” criminal Supreme Court made clear that relevancy Jencks has no Act to an ac- opinion I am of the defend- request cused’s minutes. supporting ant’s motion with her affi- there Court said: “particularized davit disclosed a need” appears “It to us clear that Jencks v. grand jury testimony for the of her ac- States, supra, is in con- nowise cusers, Gurbow, Link and and denial of trolling nothing here. It had to do her motion was error. grand jury proceedings and its language I was not intended to encom- would reverse remand for a new pass grand Likewise, jury minutes. it

Case Details

Case Name: United States v. Catherine Johnson

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 19, 1969

Citation: 414 F.2d 22

Docket Number: 18377

Court Abbreviation: 6th Cir.