471 F.2d 1057 | D.C. Cir. | 1972
Lead Opinion
Appellees are charged with robbing the Department of Commerce Credit Union on 22 January 1970. They were allegedly observed in the vicinity of the Credit Union just prior to the robbery by Mrs. Carlin P. Middleton, who subsequently testified against the appellees before the grand jury. Prior to trial the Government made available to the defense all the Jencks Act material for each of the witnesses it intended to call at the trial except for the grand jury testimony of Mrs. Middleton.
At the pre-trial identification hearing the Government offered Mrs. Middleton as a witness. After she had testified, pursuant to a motion by defense counsel, the trial court ruled that at trial Mrs. Middleton should not be permitted to testify in regard to any matters whatsoever. The trial judge’s action was ostensibly based legally on the authority of the Jencks Act, 18 U.S.C. § 3500, as construed by our decision in Lee v. United States
I. The District Court’s Rationale and the Government’s Contentions
Through the court reporter who took stenographic notes of Mrs. Middleton’s grand jury testimony, the Government proffered evidence that the notes were placed in a folder in a file in the office of the reporting service for which he worked, that the folder was removed from the file to type a transcript for an unrelated case, and that when the folder was returned to the file the notes of Mrs. Middleton’s testimony were missing.3 This is all that appears in the record as to the cause of the loss. The Government contends on this appeal that the notes had been maintained under the “regular and systematic procedures” employed by the reporting service for the maintenance and safekeeping of the notes of grand jury proceedings which its employees recorded.
The appellees, on the other hand, contend that “the question of negligence was and is a viable one in this case.”
Despite the debate on this appeal on the negligence question, our examination of the record indicates that the trial court never expressly decided the issue. It hinted in a few words that the reporting firm had shown itself to be unreliable, but said no more on the subject.
A. The Trial Court’s Stated Reasons
The District Judge’s ruling seems to consist of three parallel strands of thought. The first, which is infused most frequently throughout his colloquy with counsel, was expressed as “In this case, wholly aside from the strict interpretation of Jencks, as a pure matter of fairness, Mrs. Middleton’s testimony was so rambling on the stand here, and so inconsistent and some of her statements so inherently outrageous that as a matter of fairness alone I think perhaps we can’t have the testimony.”
He then adverted to the second strand of his thought: “But normally that would be a matter for the jury, not for me. But Jencks says you must have this material. . . . They say you have got to have them and I think you have to have them if you’re going to put the witness on.”
The third strand of the trial judge’s thoughts were not that the Jencks Act was an absolute bar, but that the law should be evaluated with reference to the importance of the testimony and the possible prejudice to the defendant. He referred to the statement made by an inter-office prosecution memorandum, “ ‘The fact that many of the witnesses, especially Mrs. Middleton, opened up in the grand jury,’ . . . Now surely that indicates the importance of the grand jury testimony from the Government’s point of view. If it is important from the Government’s point of view, surely it is no less important from the defendant’s point of view.”
In concluding his rationale, the trial judge interwove his first thought, the inherent contradictions and absurdity of the witness’ testimony, with his third, the importance of it to the Government and to the defense:
In the context of this case, in the context of the many interviews had by Mrs. Middleton, in the context of her testimony on the stand in this case and the cross-examination, and except for the evidence that she has given on the stand here, there is no written word-for-word question and answer testimony anywhere available or would be available except this testimony in the grand jury which the U. S. Attorney and the grand jury thought was so terribly important.
It appears to this court that the absence of that question and answer testimony before the grand jury would, therefore, under the circumstances of this case and the circumstances and*1062 evidence we have as to the many statements made by this witness and her testimony on the stand, would be very prejudicial to the defendant.17
B. The Government’s Position versus the Trial Court’s Reasoning
Turning now to the characterization of the trial judge’s rationale by the Government, on the original appeal from the pretrial order suppressing all of Mrs. Middleton’s testimony, the Government argued only two points: that the Jencks Act provided no sanction for the “good faith” loss of the grand jury minutes, and that the defendants suffered no prejudice due to this loss. There was no reference to the factor which appears to us from the transcript to have weighed most heavily in the trial judge’s mind, i. e., the inherent contradictions and lack of veracity (in his opinion) of the witness’ testimony.
On petition for rehearing the Government broadened the scope of its argument, urging that “. . .in failing to overturn the decision of the District Court, the panel in the instant case has in effect imposed upon the Government a form of strict liability in regulating the maintenance of Jencks Act material.”
But the Government went even further in its petition for rehearing, and urged upon this court that we interpret the Supreme Court’s decision in United States v. Augenblick
II. The Jencks Act
A. Rationale
If the judicial process be viewed as a search for truth, then the principal objective of the Jencks Act must be considered to be enhancing the likelihood of truth by enabling the defendant to gain access to previous statements of witnesses and use them as desired to test the accuracy of the actual testimony in court given by the same witnesses.
Viewed in its proper perspective, the judicial process is a search for truth, not an adversary game, and therefore the Jencks Act is not a mandate compelling the trial judge to strike (or bar) a witness’ testimony when a previously made statement, irrespective of the reason, cannot be produced by the Government. On the' other hand, the Government does not necessarily exonerate itself from the penalty of the statute by pleading so-called “good faith.” Instead, the trial judge’s effort must be to see that the defendant has access to previous statements of a witness to the fullest extent possible under the terms of the statute, in order to further the interests of justice in the search for truth. Whether the testimony of a witness is stricken or barred in advance, however, is in the discretion of the trial judge if eliminating the witness’ testimony would restrict the search for truth rather than assist it in the instant and future cases.
Ordinarily, excluding evidencé will assist this search only where the information has been lost or destroyed, negligently or for an unjustified purpose. “The language of the Jencks Act bolsters this position. Section 3500(a) speaks of statements in the possession of the United States, and subsection (d) provides that its sanctions apply ‘[i]f the United States elects not to comply.’ ”
We do not read “elect” in the literal or narrow sense, but rather as a purposive or negligent act on the part of the Government which has as a direct and foreseeable result the loss or destruction of documents which otherwise the Government could be compelled to produce. Looking to both the words and purpose of the statute, in this case so far there has been no showing that the Government has done either by commission or omission any act which has resulted in
B. Decisions
The parties here and the trial court draw divergent conclusions from previous decisions of the Supreme Court and this court. The trial court stated, “But Jencks [statute] says you must have this material,” and cited our decision in Lee v. United States, in which we did say, “But the Jencks Act does not embody in terms any ‘good faith’ exception”.
In Lee the missing records were of narcotics dealings with the defendant, and the two government investigative agents each said on cross-examination that without such records (which he himself had made) “he could not say what the precise scope of those dealings was.”
In Augenblick the Supreme Court found that the Government had not purposely suppressed missing Jencks Act information and held the witness’ testimony admissible at trial. “[T]he Government bore the burden of producing them or explaining why it could not do so.
In Bryant we held “that sanctions for non-disclosure based on loss of evidence will be invoked in the future unless the Government can show that it has promulgated, enforced and attempted in good faith to follow rigorous and systematic procedures designed to preserve all discoverable evidence gathered in the course of a criminal investigation. The burden, of course, is on the Government to make this showing.”
Also in Bryant we did say that even though Jencks Act information has been lost or destroyed
criminal convictions otherwise based on sufficient evidence may be permitted to stand so long as the Government made “earnest efforts” to preserve crucial materials and to find them once a discovery request is made.34
It must be noted, however, that the court’s language in Bryant was permissive and not mandatory, and that it spoke in terms of a conviction already obtained, at a stage when the trial or appellate court would be in a position to review the whole record in evaluating the interests of justice. In the case at bar we have a total ban before trial of one witness’ testimony, based on the combined themes that the Jencks Act requires it (no good faith exception and the importance of the testimony) and the inherent incredibility of the proffered testimony.
Our test enunciated in the Bryant decision and applied to losses occurring prior to that decision is what we have called a “pragmatic balancing approach,”
We did not have occasion in Bryant to consider the proposition, raised by appellees here, that even non-negligent loss of Jencks Act material
III. Trial Court’s Own Belief as to Truth of Witness’ Testimony Is No Part of Jencks Act Rationale
After the trial judge gave his personal evaluation of the witness Middleton’s testimony, he stated, “But normally that would be a matter for the jury, not for me. But Jencks says you must have this material.”
The trial judge thus confused two entirely separate matters, his belief as to the truth of the witness’ testimony and the obligation of the Government to produce Jencks material or incur the penalty provided by the Jencks Act. This was reasoning from a false premise, because there is nothing in the rationale behind the penalty which may be imposed under the Jencks Act that has anything to do with the trial judge’s own belief (or lack of belief) in the witness’ testimony.
As we discussed the rationale of the Jencks Act, “The command of the statute is thus designed to further the fair and just administration of criminal justice, a goal of which the judiciary is the special guardian.”
Bear in mind that in the case at bar the trial judge took up the Jencks Act question in a preliminary hearing held to inquire under Wade-Gilbert-Stovall as to the admissibility of eyewitness identification testimony.
IV. Conclusion
In the case at bar the problem is not that the trial judge has abused his discretion; in the stated reasons for the exercise of his discretion he has revealed an erroneous rationale for so doing. We recognize that the trial court has discretion in applying the Jencks Act, depending upon his finding as to either the motivation of the Government in destroying the document, or its culpability for negligence, or its exercise of bad judgment in administrative procedures.
As to the trial judge’s faulty premises : First, he appeared at times to take the mandate of the Jencks Act as being without exception, probably based on a misreading of our opinion in Lee v. United States.
The second basic error in the rationale of the trial court was, of course, in barring the testimony of the witness in advance of trial, based on his own doubt of its veracity, and in linking this doubt with his obligation to invoke the penalty of the Jencks Act.
It should be noted in concluding that even if the District Court finds some degree of negligence, it need not automatically invoke the Jencks Act sanction. As we said in Bryant, we have adopted a balancing approach for these cases which gives broad discretion to the trial court.
As to the character and extent of the Government’s responsibility, we hold that the negligence of the reporting company, if any and depending on the type, may be imputed to the Government. Because of the various public policies relating to criminal prosecutions necessarily involved here, but of course which do not exist in a strictly private agency relationship, the full scope of the doctrine of respondeat superior should not be applied. Rather, the Government’s responsibility for the acts of its agent, and grounds for invoking the sanctions of the statute to bar otherwise admissible testimony, should be tested more by the principles of negligent entrustment.
We therefore remand this case to the District Court for further consideration of the issues of the degree of negligence or bad administrative judgment on the part of the Government and the risk of prejudice to the defense caused by the unavailability of a transcription of Mrs. Middleton’s grand jury testimony.
So ordered.
. 18 U.S.C. § 3500 (1970). The Jencks Act material turned over to the defense consisted of the grand jury minutes of each witness and all relevant police and FBI reports.
. 125 U.S.App.D.C. 126, 368 F.2d 834 (1966).
. Petition for Rehearing and Suggestion for Rehearing En Banc at 8.
. Id. at 1.
. Id. at 4.
. Brief for Appellee at 10.
. Brief for Appellee Jackson at 8 (emphasis in original).
. Record, Vol. V, at 856. The Court found that there was no “conscious purpose” on behalf of the Government to destroy the notes, but this goes to the issues of intentional, not negligent, destruction. Id. at 924.
. Record, Vol. V, at 856.
. Id. at 857.
. Id. at 857-58. Referring to the non-verbatim notes others had taken of Mrs. Middleton’s grand jury testimony, the court stated: “But I don’t think anything before the Grand Jury except the stenographic notes is just going to do. . . . I just don’t see how you can cure it, if the law is what I understand it to be.” Id. at 856.
. 125 U.S.App.D.C. 126, 368 F.2d 834 (1966).
. Record, Vol. V, at 924.
. Ibid. “[I]t occurs to me on reviewing the statute in the Lee case that if you want to put Mrs. Middleton on the stand it’s up to the Government to come up with the grand jury minutes, and the burden is on the Government and either you do or you don’t. And without ruling on it formally at the moment, I may say that it does appear at this point unless you come up with them, you cannot put her on the stand.” Id. at 402. The same “strict interpretation of Jencks,” Id. at 856, as the District Court itself termed it, was repeated at other times during the argument on the motion. “Now, if the Lee case is controlling, as X think perhaps it is, and then I must bar her testifying because you don’t have the Jencks Act material, namely, the Grand Jury testimony to produce.” Id. at 854.
. Id. at 923.
. Id. at 925-26.
. Petition for Rehearing and Suggestion for Rehearing En Banc at 6. During argument on the motion to suppress before the District Court the Government put forth an extreme example of such “strict liability.” “ [I] f you carried that rule to its logical extent, if for example, a police officer had his house burglarized one night and he had a file in his home or perhaps his office at the Police Department burglarized and his whole file was stolen in the particular case, it had the original and all the copies of the statements of the witnesses, then that man • who committed an armed robbery or first degree murder or whatever horrible crime could not be prosecuted for it.” Record at 860.
. 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969).
. 142 U.S.App.D.C. 132, 439 F.2d 642, aff’d after remand, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971).
. The intended purpose of the Act has been interpreted by the Supreme Court to be as follows:
[A]s the legislative history makes clear, the Jencks Act “reaffirms” our holding in Jencks v. United States, 353 U.S. 657 [77 S.Ct. 1007, 1 L.Ed.2d 1103], that the defendant on trial in a federal criminal prosecution is entitled, for impeachment purposes, to relevant and competent statements of a government witness in possession of the Government touching the events or activities as to which the witness has testified at the trial. S.Rep. No. 981, 85th Cong., 1st Sess., p. 3. And see H.R.Rep. No. 700, 85th Cong., 1st Sess., pp. 3-4. The command of the statute is thus designed to further the fair and just administra*1063 tion of criminal justice, a goal of -which the judiciary is the special guardian.
Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961).
. United States v. Williams, 384 F.2d 488, 493 (2d Cir. 1966).
. Our conclusion that the loss of Jencks Act information by itself does not automatically require the imposition of sanctions is by no means novel. “Petitioners’ contention that the words ‘in the possession of must be interpreted as meaning ‘possession at any prior or present time’ must be rejected. Congress surely did not intend to initiate a game of chance whereby the admission of a witness’ testimony is made to depend upon a file clerk’s accuracy or care. Senator O’Mahoney, the sponsor of the bill, in illustrating that his measure approved the essential basis of the Jencks case, interpreted Jencks to apply only where the Government ‘had at the same time in its files a statement’ pertinent to a witness’ testimony.” So said Mr. Justice Frankfurter and three other Justices in Campbell v. United States, 365 U.S. 85, at 102, 81 S.Ct. 421, 430, 5 L.Ed.2d 428 (1961), and nothing said in the 5-4 majority opinion contradicts this.
. 125 U.S.App.D.C. 126, 129, 368 F.2d 834, 837 (1966) (emphasis added).
. 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969).
. 142 U.S.App.D.C. 132, 439 F.2d 642, aff’d after remand, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971).
. 125 U.S.App.D.C. at 129, 368 F.2d at 837.
. Id. at 129-30, 368 F.2d at 837-838.
. Ibid,.
. 393 U.S. at 355-356, 89 S.Ct. at 533, 21 L.Ed.2d 537.
. Id. at 355, 89 S.Ct. at 528, 21 L.Ed.2d at 537.
. 142 U.S.App.D.C. at 142, 439 F.2d at. 652.
. 142 U.S.App.D.C. at 141 n. 20, 439 F.2d at 651 n. 20 (emphasis added).
. Id. at 141, 439 F.2d at 651 (emphasis added).
. United States v. Bryant, 145 U.S.App.D.C. 259, 261, 448 F.2d 1182, 1184 (1971). Bryant also enunciated a standard to be applied to losses occurring after the Bryant decision, a standard to which we have no occasion to resort here, as the loss occurred prior to Bryant. See United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971).
. 142 U.S.App.D.C. at 142, 439 F.2d at 653.
. United States v. Bryant, 145 U.S.App. D.C. 259, 448 F.2d 1182, 1183-84 (1971).
. On this appeal appellee Jackson also asserts that even if the suppression of Mrs. Middleton’s testimony is not mandated by the Jencks Act, allowing her to testify without producing the minutes of her grand jury testimony for the defense would amount to a violation of his right to a fair trial in violation of the Due Process Clause. While it is clear that discovery issues in criminal cases have a constitutional flavor, see, e. g., Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1958) ; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1962), and the Supreme Court has even recognized that “in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right,” United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969), nevertheless we do not think that the prejudice, if any, caused the defense in this case merits consideration at the constitutional level.
. 142 U.S.App.D.C. at 134, 439 F.2d at 644.
. Id. at 141, 439 F.2d at 651.
. Record, Vol. V, at 857-58.
. Campbell v. United States, 365 U.S. 85, 92, 81 S.Ct. 421, 425, 5 L.Ed.2d 428 (1961).
. Ordinarily a Jencks Act question would not arise or be resolved at a pre-trial bearing. “Suppression hearings are nowhere alluded to in the legislative history and the statute does not supply any direct guidance for conduct at such bearings.” United States v. Covello, 410 F.2d 536 (2d Cir. 1969). In this Circuit, however, a frequent practice has developed of determining Jencks Act issues prior to the commencement of trial. This practice is both efficient and consistent with the policies behind the Jencks Act. If the court waits until trial to determine whether evidence is producible under the Act, continuances must often be granted and delays in the trial are inevitable.
While we approve pre-trial determinations of Jencks Act issues, we do not hold that they must always be decided prior to trial. Situations may arise in which it is more appropriate to wait until evidence is submitted at trial before making a determination. The course to be followed in a particular situation is left to the reasonably exercised discretion of the trial judge.
. United States v. Rufus Brown, 461 F.2d 134 (D.C. Cir., 1972) (en banc), citing Brown v. United States, 126 U.S.App.D.C. 134, 143, 375 F.2d 310, 319 (1966).
. For Judge Hart’s discussion of Lee see Record, Vol. V, at 923-25. For a correct interpretation of Lee see the text accompaning footnotes 17-22, supra.
. Record at 856. The court found that there was no “conscious purpose” on behalf of the Government to destroy the notes, but this goes to the issues of intentional, not negligent, destruction. Id. at 924.
. As the Supreme Court noted in a slightly different context in Palermo v. United States, 360 U.S. 343, 353, 79 S.Ct. 1217, 1225, 3 L.Ed.2d 1287 (1958), administration of the Jencks Act must rest “within the good sense and experience of the district judge . . . and subject to the appropriately limited review of appellate courts.”
On the evaluation of possible prejudice to the defendant by the absence of this grand jury testimony, the trial court should consider that there is available to the defense here three echelons of the witness’ prior testimony: (1) the preliminary statements made to the FBI and other investigators before she appeared to the grand jury; (2) her statements to the detective and other government officers after her grand jury testimony as to what she actually testified; and (3) her testimony at pre-trial hearing. All of this will be available to defense counsel for use for impeachment purposes at the trial.
. This is precisely what happened on remand in Bryant.
Concurrence Opinion
concurring:
I concur in Judge Wilkey’s opinion. As Judge Wilkey indicates, see majority opinion at note 35, since the grand jury minutes in this case were lost prior to this court’s decision in United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971), nothing we say here in any way affects our holding in Bryant establishing standards for sanctioning losses of Jencks Act statements occurring after the date of Bryant. See 142 U.S.App.D.C. at 142, 439 F.2d at 652.