*3
WRIGHT,
Before
ROBINSON and
WILKEY,
Judges.
Circuit
WILKEY,
Judge:
Circuit
Appellees
charged
robbing
are
with
Department
Credit Un-
Commerce
They
January
ion on 22
were
al-
legedly
vicinity
observed in
just prior
robbery
Credit Union
to the
by
Middleton,
Mrs. Carlin P.
who subse-
quently
against
appellees
testified
grand jury.
before the
Prior
to trial
the Government made
to the
available
defense all the
Jencks Act material
each of the witnesses it intended to call
except
testimony of Mrs.
For
Middleton.1
some
stenographic
undetermined reason the
notes of
had
Mrs.
been lost.
On
record made
appear
District
Court
does not
either
preservation procedures
em-
recording
ployed by
private
company
inadequate
*4
given
secrecy
inadequate,
have
prejudice
from the ab-
been
the
the defendant
importance
and
of
notes to the de
of the notes.
sence
fense, or
not have
else
loss would
Rationale
The District Court’s
I.
occurred.”
Contentions
the Government’s
Despite
appeal
the debate
this
on
on
Through
reporter who took
the court
negligence question,
our examination
stenographic
Mrs.
notes of
of the record
that
indicates
testimony,
grand jury
the Government
expressly
court never
decided the issue.
were
proffered
that
the notes
evidence
report-
hinted in a few words that the
in the office
placed
in a file
in a folder
ing firm had shown itself to be unrelia-
reporting
for which
of the
service
ble,
subject.9
but
no
said
more on
removed
worked,
the folder was
that
A. The Trial
transcript
Court’s Stated Reasons
type
an
for
file
from the
case,
when the folder
and that
unrelated
Judge’s ruling
The District
seems
of
to the file
notes
returned
was
parallel
consist of
three
of
strands
testimony were
Mrs. Middleton’s
missing.3
thought.
first,
The
which is infused
appears in
that
This
all
frequently throughout
colloquy
most
his
of the loss.
as to the cause
record
expressed
counsel,
with
case, wholly
this
was
“In
appeal that
on this
Government contends
from
aside
the strict inter-
maintained under
had been
the notes
“regular
pretation
Jencks,
pure
as a
matter
systematic procedures” em
fairness,
Mrs. Middleton’s
by
ployed
reporting
for the
service
rambling
so
so
stand
safekeeping of
maintenance and
inconsistent and some of her statements
proceedings
notes of
outrageous
inherently
so
that
mat-
as a
employees
contends
recorded.4 It
perhaps
ter of
alone think
fairness
I
handling
negligence in
“the
that
lack
testimony.”10 Shortly
can’t have the
clearly
by the
demonstrated
evi
thereafter
“I
he reverted to this theme:
5 The
even
dence adduced.”
Government
talking just
photo-
am not
about
suggest,
only the
went so far as to
talking
graphic
I
information.
am
about
slightest
evidence that
circumstantial
testimony generally
her
....
*5
agreed
defense counsel has
that was not
Middleton,
Mrs.
in the context
referring
so .
.
.
.
to our
”14
testimony on the
stand
this case and
holding
Lee,
.
court’s
“.
.
the
cross-examination,
the
except
and
making
general
fact,
without
and
given
the evidence that she has
on the
holding,
sweeping
that
in all cases the
stand
there is no written word-
statements will
loss
Jencks Act
bar
question
for-word
and answer
testi-
They say
the
witness.
that
the con
mony anywhere
or
available
would be
delay
text
of that case
the
and
trial
except
testimony
available
in the
they
permit
cannot
failure to
grand jury
Attorney
which the U. S.
go by
the Jencks Act statement
with
grand jury thought
and the
so
out reversing.”15
terribly important.
judge’s
The third strand of the trial
appears
to this court that the ab-
thoughts were not that
the Jencks Act
question
sence of that
and
tes-
answer
bar,
was an absolute
the
that
law
timony
grand jury would,
before the
should be evaluated with reference to
therefore, under the
circumstances
importance
the
the
and
case and the circumstances and
grand jury
Id. at 857.
minutes,
the
burden
you
on the Government and either
do
Referring
12. Id. at 857-58.
to the non-
you
ruling
don’t. And without
on it for-
verbatim notes others had taken of Mrs.
mally
moment,
say
at
it
I
grand jury
testimony,
Middleton’s
appear
point
you
does
unless
come
anything
court stated:
“But I don’t think
up
them, you
put
with
cannot
her on the
Jury except
before the Grand
steno-
stand.”
Id.
402. The same “strict
graphic
just going
notes is
to do.
.
interpretation
Jencks,”
Id.
as
just
it,
you
I
don’t see
can
if
how
cure
it,
the District Court
itself
termed
law
what
I
Id.
understand
to be.”
repeated
during
argu-
at other times
at 856.
“Now,
ment on the motion.
if the Lee
13. 125
statements
of the wit-
to his own disbelief
erence
stand,
her
very prejudicial
weighed
importance of the
ness and
the defendant.17
de-
to the Government
versus
Position
B.
Government’s
say “you
although
fense,
did
Reasoning
Court’s
Trial
“in all
the material” and
cases
bar
Turning
Act statements will
the characterization
loss of Jencks
now
judge’s
the Gov-
rationale
witness.”
of the trial
ernment,
original appeal
from
went
But
the Government
suppressing
of Mrs.
all
pretrial order
petition for rehear
even further in its
the Government
ing,
urged upon
that we
this court
argued
points:
the Jencks
only
two
interpret
decision
Court’s
“good
provided
for the
no sanction
Augenblick19
United States v.
minutes,
loss of
faith”
Bryant20 as
decision United States
suffered no
defendants
“good
blanket rule that in all cases a
no
There was
prejudice
loss.
due to this
faith” loss of evidence
statements
appears to
the factor which
reference to
should not invoke
weighed
transcript
to have
from the
us
Act,
statutory
i.
sanctions of
mind,
judge’s
heavily
i.
in the
most
e.,
wow-liability.
can
a rule
strict
e.,
and lack
inherent contradictions
agree
proper rule for
with this as a
veracity (in
opinion)
the wit-
decision either.
ness’
II. The Jencks
rehearing
petition
the Govern-
On
Rationale
A.
argu-
scope
ment broadened
judicial process
If the
viewed as
failing
urging
ment,
.in
“.
truth,
principal
then
search
of the District
the decision
overturn
objective of the Jencks Act must
con
panel
Court,
instant case has
*6
enhancing
sidered to
the likelihood
of
imposed upon the Government
in effect
gain
enabling
to
truth
the defendant
regulating
liability in
a form of strict
previous
to
access
statements of witness
Act materi-
of
the maintenance
Jencks
the
es and use them as desired to test
accuracy
an incor-
al.” We think
testimony in
of
the actual
court’s
of the trial
rect characterization
given
the
necessarily
same witnesses.21
a
There was not
rationale.
U.S.App.D.C.
17. Id. at 925-26.
132,
642,
20. 142
remand,
aff’d after
Rehearing
Suggestion
18. Petition for
and
(1971).
1065
however,
noted,
It must be
that
is devoid of credible evidence
The record
30 Augen-
language
Bryant
permis-
court’s
in
they
suppressed.”
were
mandatory,
hold, however,
it
clearly
and not
and that
sive
did not
blick
spoke
already
in terms of a conviction
in
admitted
stage
obtained,
“good
at a
trial or
when the
is
appellate
position
nonnegligent.
court
The
would be
faith” and
evaluating
simply
review the whole record in
court
held that
the trial
justice.
permit-
In
at
the case
interests
had
abused
discretion
though
ting
bar we have a total
before trial of
ban
a witness’
even
one
witness’
based
information had been
combined
Act re-
themes that the Jencks
lost.31
quires
good
(no
exception
faith
Bryant
“that
we held
sanctions
importance
testimony)
of evidence
non-disclosure based
loss
incredibility
prof-
inherent
unless the
will be invoked in the future
fered
pro-
it has
Government can show that
mulgated,
attempted
Bryant
Our test enunciated in
enforced and
de-
occurring
good
rigorous
applied
sys-
cision and
to losses
faith to follow
designed
prior
preserve
procedures
to that
is
tematic
decision
what we
gathered
“pragmatic
balancing
ap-
called a
all discoverable evidence
35
proach,”
investigation.
requiring
course of a criminal
“weigh
degree
negligence
burden,
course,
or bad
is on the Government
32
involved,
showing.”
importance
faith
foot-
of the ev-
make this
And we
lost,
guilt
“Although
exception
idence
noted,
evidence of
ad-
there
is
good
evidence,
duced at trial
order
come
a de-
faith
loss
” 33
recognizing
termination that will
the ends of
serve
thus
justice.”36
balancing
approach
penalty
This
Jencks Act
should not be auto-
applied
matically
the District Court on re-
when evidence once in
invoked
resulting
Bryant,
possession
mand in
in a determi-
of the Government
turns
degree
“[a]lthough
up missing.
nation that
negligence
great,
regrettably
shown
Bryant
say
Also
we did
that even
outweighed by
factors,” specifi-
though Jencks Act information has been
cally
recording
tape
the fact
destroyed
lost or
entirely
which had been lost was almost
criminal convictions otherwise based
unintelligible and would have been of lit-
permit-
on sufficient evidence
tle use to the defense.37
long
ted to stand so
Govern-
did not
pre-
have occasion
ment made “earnest efforts” to
Bryant
proposition,
to consider
serve crucial
find
materials
and to
by appellees here,
discovery
raised
non-
request
them once
that even
negligent
loss of
made.34
material
(1971). Bryant
533,
355-356,
also
a stand-
30. 393
at
enunciated
89
at
S.Ct.
applied
occurring
ard to be
to losses
after
1066 41 If the trial imposition material.” ground for this may be a “normally” judge had the word if omitted the trial Act sanctions Jencks unavailability the —“But that be a matter for would finds that jury, been seriously de- would have prejudices the not for me”—he statement thinking ground. erred in process on sound He considera- due fense. Absent posi- adopt in which tions,38 that this an abnormal case we hesitate to Bryant, required to the witness’ noted in he was evaluate here. tion weAs credibility, discovery Jencks in criminal because “. rules you says more material.” trial must have this is make the cases “[to] ‘sporting (Emphasis supplied.) ‘quest a than a for truth' ” 39 then we stated event.’ While judge en- The trial thus confused two bur- Government’s believe that the still matters, tirely separate to belief as his abe quest “must for truth den testimony the truth of the witness’ heavy one,” not that burden do turn we obligation pro- to of the Government duty. require is All we into an absolute penal- duce material or incur the Jencks “ ef- make ‘earnest that the Government ty provided Act. This the Jencks preserve crucial materials to forts’ premise, reasoning be- from a false request discovery find them once a to nothing in the rationale cause there is 40 argued might that such made.” im- penalty which behind the provides easy means a rule any- posed Act under that has the Jencks byAct to avoid Jencks thing judge’s to do own trial pleading loss in situations innocent (or belief) in belief lack of the witness’ de- for the where would be difficult showing fense rebut the Government’s we As discussed the rationale indicate of care. until future cases But Act, “The of the stat- command Jencks otherwise, suspicious of are not so we designed thus ute is further fair re- intentions with the Government’s jus- just administration criminal spect complying Act with the Jencks goal tice, judiciary a is the which adopting prophylactic justify such a 42 special guardian.” provided The lever rule. fair by the Jencks Act “further Trial as to III. Own Court’s just jus- Belief administration criminal Testimony Is Witness’ Truth of penalize Government, if it tice” is No Rationale Part Jencks Act not “elects” the statements. gave nothing his After There is in the Act or the back- personal ground Mid implies evaluation the witness stated, striking judge’s dleton’s nor “But trial action mally barring be a for the matter in- witness’ to be jury, says you way by opinion me. But Jencks fluenced appeal appellee might type 38. On this Jackson also as- of a statement denial suppression right,” serts that even if the Mrs. of a Sixth Amendment 356, 348, Augenblick, not mandated v. States 393 U.S. Act, allowing 528, 533, (1969), tes- her to 21 89 S.Ct. L.Ed.2d 537 tify producing without the minutes think that nevertheless do any, prejudice, caused the defense right would amount to a violation of his at the con merits consideration fair in violation of the Due stitutional level. Process While Clause. is clear 134, F.2d at 39. 439 142 discovery have a issues criminal cases 644. see, flavor, g., Napue e. constitutional 141, Illinois, F.2d at 651. v. 360 U.S. 79 S.Ct. ; Mary- (1958) Brady 3 L.Ed.2d Record, V, Vol. at 857-58. land, L.Ed. 83 S.Ct. U.S. (1962), Campbell 2d v. United recognized 85, 92, has even that “in some situa- L.Ed.2d tions, production denial of aof *10 discretion; veracity particular in- in the reasons for the witness stated the Logically has no reason exercise of his discretion he revealed there is volved. doing. an opinion on the erroneous for so why wit- rationale We the trial court’s recognize that the trial discre- veracity to the Gov- court has should relate ness’ Act, applying depend- obligation tion Jencks incur to or ernment’s ing upon finding to either penalty. as destroy- motivation of the in mind that Bear ing culpability document, its judge up the Jencks at bar trial took judg- negligence, or its bad exercise of hearing question preliminary in a Act procedures. ment in administrative inquire to Wade-Gilbert-Sto held under judge’s faulty prem- As to the trial admissibility eyewitness vall as to appeared ises First, : he at times to take testimony.43 As identification being the mandate Jencks Act as recently court en banc had occasion has exception, probably without on a based pre-trial observe, to in connection with misreading opinion of our in Lee v. identification, hearings suppression above, United States.45 As we discussed considering admissibility “In unless either in the instant or subse- trial, identification constitu at evidence quent justice interest cases the will admission, tional infirmities will bar penalizing be furthered the Govern- go only but testimonial infirmities to ment, penalty then that is not to in- be weight of the evidence. start adversary automatically voked an phrased principle, with the well game. In order to exclude (now Burger Judge Justice) Chief a neg- showing there should a be either thoroughly applica different context but ligence purposeful destruction accom- willing eyewitness ble ‘When here: panied by either bad motive or bad give testimony, oath sub under judgment. Despite the debate on this ject rigors to all the of cross-examina appeal negligence question, penalties perjury, tion and must be ” examination of the record indicates that heard.’ In that case as we rec expressly the trial court never decided ognized veracity that a witness’ should the issue. a few words that hinted jury considered and not be reporting firm had shown itself judge. trial unreliable, be no more on but said IV. Conclusion subject.46 regard to With the trial weighing resulting prejudice problem court’s bar the case at is not defendants admission that the trial has abused his Ordinarily question til at evidence is submitted trial before making pre-trial a determination. The course to arise at a not bearing. or be resolved “Suppression particular hearings followed situation are no- reasonably legislative history left exercised discre- where alluded judge. supply any tion of the di- trial statute does not guidance for rect conduct such bear- Brown, 44. United States v. Rufus ings.” Covello, United States v. (D.C. Cir., 1972) (en banc), F.2d 134 (2d 1969). Circuit, In this Cir. how- citing Brown v. United U.S. ever, frequent developed practice has App.D.C. 134, 143, F.2d determining prior issues prac- the commencement trial. This Judge 45. For Hart’s discussion of Lee tice is both efficient consistent with Record, V, see Vol. For policies 923-25. a cor- Act. If behind the Jencks interpretation rect of Lee see the text the court waits until to determine accompaning 17-22, supra. producible footnotes whether evidence is under Act, granted continuances must often 46. Record at 856. The court found delays in are inevitable. purpose” there was no “conscious on be- approve pre-trial we While determina- destroy half of the issues, tions Jencks Act do not goes notes, to the in- issues of always they hold decided tentional, negligent, prior destruction. to trial. Situations arise appropriate is more un- wait *11 relating policies prosecutions testimony, if to criminal the Gov- Mrs. Middleton’s negli- necessarily malicious, of course involved was neither ernment strictly private any in not exist gent, stupid, not see that do nor we do relationship, scope agency of the possible prejudice the full weighing question of respondeat superior should doctrine of to the defendants arises. Rather, applied. the Govern- in the ration- error second basic responsibility of its for the acts ment’s course, was, of of the trial court ale invoking agent, grounds for and barring of the witness otherwise sanctions of the statute to bar trial, his doubt own of based advance tested admissible should be linking doubt veracity, of and negligent principles en- more of obligation penalty invoke the trustment. of Jencks Act. to the remand this therefore in con should noted District Court further consideration for cluding that if the District Court even degree negligence of the of the issues degree negligence, it need finds some judgment on the bad administrative Act automatically invoke part and the risk Bryant, As we sanction. we said prejudice to the defense caused adopted balancing approach for unavailability transcription of Mrs. of a gives broad these cases which discretion grand jury Middleton’s If, even find the trial court.47 after So ordered. ing degree negligence, some prejudice court finds the risk slight, Judge, WRIGHT, impose it can refuse to J. SKELLY Circuit concurring: According the Jencks Act sanctions.48 ly, feel free to con should Judge Wilkey’s opinion. I concur preju sider all matters to the relevant indicates, majority Judge Wilkey As see issue, including dice other evi available grand jury opinion at note since of Mrs. dence prior minutes this case were lost importance and decision in United States v. court’s testimony to the defense. U.S.App.D.C. 132, F.2d Bryant, 142 nothing any (1971), say As to the character ex here way holding Bryant responsibility, tent of the estab Government’s affects our negligence sanctioning lishing we hold that the re standards losses occurring porting company, depending after of Jencks statements type, may U.S.App. imputed Bryant. the date of See 142 Gov public ernment. D.C. F.2d Because various prior testimony: (1) pre- slight- As the noted in witness’ ly liminary different FBI context in Palermo v. statements made to appear- investigators before she (1958), grand (2) jury; 3 L.Ed.2d ed her state- adminis- to the govern- tration ments the detective and other rest good experience jury grand “within the after her tes- sense and ment officers actually testified; subject timony the district what she appropriately ap- (3) pre-trial to the hear- limited review of pellate ing. courts.” All this will be available impeachment possible preju- On the evaluation defense counsel use purposes dice to defendant at the trial. absence of grand jury testimony, the trial court precisely happened should what consider there is This available to Bryant. the defense here remand in three echelons of the were or that notes were suppressed by lost the Government. hearing pre-trial At the identification offered Mrs. Middleton testified, as a witness. After she had pursuant counsel, a motion defense the trial court ruled that at trial Mrs. Flannery, Messrs. Thomas A. U. S. permitted Middleton should not be Atty. filed, the time the brief was regard testify what- matters Terry, Evans, A. Mi- John John F. judge’s soever. The trial action was os- Attys., Madigan, chael J. Asst. U. S. tensibly legally authority based on the appellant. were on the brief for Act, of the Jencks 18 U.S.C. § Messrs. Noble and Ben Paul Thomas construed our decision Lee v. Unit- Mann, (appointed Washington, O. D. C. 2; ed States the factual basis of his ac- ap- Court), on the were brief detail, tion is stated in The rul- infra. pellee Jackson. ing appealed to this court and was opin- Stephen order affirmed without written Messrs. Millstein and B.O. S. Parker, Washington, C., ion. The now that the asks D. were appellees ease reheard. brief for Matthews and Smith. (1970). 2. 125 F.2d 834 1. 18 The Jencks § U.S.C. material turned over to the grand jury minutes of consisted of the police each witness and all relevant reports. FBI appellees, hand, con on question indication there is some Because negligence tend that “the misinter- District Court in this case.” a viable one because was and in Lee and preted decision Although they offered District cases, subsequent in this court both anything Court, no done evidence that United States reporting service in the Government recognize in some situations lost, accepted accordance has been Act material which Jencks practices, ap- appellee maintains not be Jackson Act need of that the sanctions appeal inexplicable that “the loss of plied, with directions remand important automatically papers motion such reconsider the District Court question good hear- raises serious faith suppress a further and conduct negligence. negli- procedures degree em And ing the issues (the ployed by reporting service) gence risk of of the Government and
Notes
notes stolen on behalf one had been absolutely testimony, ab- That is absurd the defendants.6 Record, V, 9. Vol. 856. The Court found Suggestion Rehearing 4. Petition for purpose” there was no “conscious Rehearing for En Banc at 8. destroy behalf of the 5. Id. 1. notes, goes in- but to the issues of tentional, negligent, Id. destruction. not at 924. Appellee 7. Brief at 10. Record, V, Vol. (em- Appellee at 8 8. Brief Jackson phasis original). possible prejudice there other incon- surd. And then were to the defendant. He referred . . to the statement ”11 sistencies . . made memorandum, prosecution inter-office He then adverted to the second strand “ many witnesses, ‘The fact that thought: normally “But his especially opened up Middleton, Mrs. jury, not would be a matter for the grand jury,’ surely . . . Now you says me. But Jencks have importance indicates you They say material. have grand jury testimony from the Govern- got you I have them and think have point important ment’s of view. it is If going put you’re them point view, from the Government’s amplified on.” He then witness
[12] surely important no less from the discussing Lee States:13 point
[16] defendant’s of view.” “[Ljikewise indication here there no concluding rationale, In destroyed reports but that were thought, interwove his first ordinary business, course but absurdity inherent contradictions and destroyed S. Attor lost U. third, the witness’ with his ney, reporting employed firm importance of it States; that, the United and to the defense: course, there is no indication whatever there was conscious case, the context of this [sic], behalf of the defendant many context interviews had