*1 relatively through or occasional isolated District,
employment outside of America UNITED STATES we the matter common sense legislative not the this is conclude BUNDY, Appellant. intent. “employed . Thus, term Appeals, Court though the applies, even the District” District of Columbia Circuit. District outside employment is based Argued Jan. offices, place re- g., employer’s (e. employer’s Decided work June duty), porting for way are organized there in such regularly spend the bulk employees who working in the District. time
of their the substantial identifies condition enhancing the District interest
wages job opportunities, purpose of express brings play the competitive disad- preclude the Act hurting
vantages employers in com-
pliance. plaintiff bus driv- Since spend District, outside the are
ers pay time within total of their 38'% among District, rotated and are routes, segregated by than routes rather unlikely plaintiffs ob- can seems recovery they seek.
tain the permit us present definitively. dispose We a determination whether
mand organized Company its work that so has regularly drivers who are bus
spend than workweek more 50% are If there of Columbia. employees, we conclude entitled to the benefits
are aware DCCA now authority interpret
final enact- a D.C. our
ment. think it
part express view con- our considered brought cerning up that was impli- for review because of the legisla- authority
cations of federal regret- was, tion, ruling even our delayed. bar,
tably, As to the provide order will vacation
judgment and remand the DCCA proceedings further not inconsistent with Genn, Washington, Mr. Edward L. opinion. (appointed court), ordered. lant. So *2 Tignor, U. S. Mr. Asst. The of substance ti] Robert S. issue appeal appellant’s
Atty., this is whom Messrs. Thomas claim the with Atty. Flannery, the notes taken U. S. at the time Officer Brown Terry interrogation filed, and and John A. of Calan should have been brief was Attys. produced Woll, Asst. were David U. C. S. Brady brief, appellee. Harold on v. the Mr. and under 1194, Titus, Jr., Atty., 83, entered H. U. S. 373 U.S. (1963). appellee. appearance L.Ed.2d 215 initial or oth- tion of an assailant BAZELON, Judge, and Before Chief eye evidence, er and LEVENTHAL, Circuit WRIGHT and description the notes of Judges. kept produced.1 for- and should be police report crime mal written the of description does, PER CURIAM: a contain offender, is often the 24, 1969, Calan On October prepared suspect a arrested and after is and 20 one-dollar bills was robbed of danger description the in the change gunpoint. He im- some small subconsciously report may in- formal be police mediately in- was and called the suspect viewing of the fluenced terrogated the crime scene of very author immediately Brown Officer Brown. judge great. Thus, unless description relayed over robber a of the original notes, may it able to see eight- male, “Negro police radio difficult, impossible, to if not determine * * * years, wearing a black een be made whether or green pants.” raincoat and medium under available to patrol minutes, officers Within a few the Jencks and Hall received the Borden Here, however, failure to appellant, wear- who was observed produce harmless notes was pants, ing green raincoat and black Appellant beyond a doubt.2 spot- stoop parked behind a car when police arrested on the basis was police. him ted the officers immediately “lookout” broadcast be- bills over one-dollar and recovered picked up after the offense and he and the tire tween the curb with within minutes the offense thorough parked money. not countenance car. After search stolen original notes gun avoidance of our rule that area, The victim no found. preserved unless the harmlessness is ap- robbery, Calan, Mr. Oth it this case. is in as self-evident days pellant later. several purpose erwise, prophylactic Appellant tried convicted rule is frustrated.3 robbery a dan- armed assault gerous weapon. Affirmed. duty pre- eluding department, U.S.App. Bryant, 1. United v. States constitutes, serve all 439 F.2d might constitute, evidence, Chapman California, pertinent subsequent otherwise pur- judicial proceeding. criminal pleased guide- pose to note this order to establish opinion court of all such lines Metropoli- Bryant, supra presently required note to be Columbia, existing depart- tan Police May 26, 1972, issued General Order mental produced Series order such a part: following parts: pertinent reads order consists Recent decisions establish PART I investigative agencies, Department Government dures for Members of the appearance Judge, differed from Calan’s LEVENTHAL, concur- Circuit Brown, as indicat- ring: immediately after ed the notes. But the affirmance I concur put talking I think lant’s conviction. po- out over the my thoughts concern- to add lice transcribed radio that was keep obligation ing *3 available. hears on he notes of what appellant person, indeed matched eyewitnesses. in his arrest within minutes. resulted A. B. judge’s de-
Appellant protests the trial
majority’s
I
turn
declara-
now
to strike
motion
nial of the defense
eyewitness’s
tion
that an
the victim who
of Mr.
ground
tion of the offender
him,
on the
policeman’s
(2),
this de-
3500(e)
notes of
Act, 18 U.S.C.
Jencks
§
scription
must
in order
production
be available
quired
the notes taken
holds,
production
majority
determine whether
Brown.
required
any
18 U.S.C.
correctly,
committed
error
(1970)
3500
denying
harmless. Offi-
the motion
L.Ed.2d
subsequently
Brown,
left
who
cer
not
trial.
and that
Court “will
police force,
unavailable
prophylac-
apparently
prosecutor
countenance avoidance
[its
any
preserved
rule that
notes be
notes until
tic]
existence of
aware of the
that he re-
unless the harmlessness
as self-evi-
Mr. Calan testified
writing
seeing
as
as
dent
it is in this case.”
spoke.
unavailability
1. The
investigator’s
a re-
notes” is
Theoretically
notes
curring
past
Cal-
it has been
undercut
In the
permitted
one.
defense
agen-
practice
of some law enforcement
identification
and in-court
an’s
destroy
showing appellant’s
cies, notably
FBI,
actual
II
PART
Any
Supervisory
member of
taken
and Command
dures
department
substan-
are a
Personnel
tially
an oral state-
verbatim recital of
I
PART
prospective
made
General.
ment
contempo-
which are recorded
which are
to materials
addition
making
raneously
preserved
the oral
with the
to ex-
statement;
departmental
isting
fingerprints
Identifi-
Branch,
All
materials which reason-
are re-
or items which
cation
expected
ably may
Prop-
quired
to be relevant
to the
to be turned over
Any
judicial
property
erty
a criminal
on the
Clerk and listed
department
item
book,
as to whether
doubt
shall
members of
preserv-
potentially
be relevant and therefore
discoverable
all
pres-
any
material,
including
shall be resolved in favor
able
material
might prove
to the terms
to an ac-
ervation
favorable
this order.
cused.
appears
the “[a]ll
It
B. Definitions.
provision
B
Potentially
in Part
I
other materials”
discoverable
police rough
necessarily
cludes,
*4
appropri-
testimony.
not believe
example,
appeared
ate,
if there
of an across-
for consideration
vehicle
have been some official misbehavior
automatically
the-board
that
failing
notes,
if
other
may
possibly the error
“error” —
strong
circumstances showed a
likelihood
a witness’s
receive
“harmless” —to
notes would have undercut
testimony
original
de-
notes were
testimony.
witness’s in-court
am
stroyed
preparing an-
the course
clear
can or
be an
whether
States,
report,
Killian United
cf.
invariable
In
circum-
sanction.
some
Notes
251) (PD promptly, there is indica- filed different reliability reporting helpful to de- tion of the would have been process. The focus fendant. The need interme- possibility approach may heightened be admin- if diate excusing justifying or cannot istrative reasons arises when situation power notes, supervisory exclude lack of call on its situations, (identi- testimony, least in see 18 some U.S.C. § eyewitness). testimony by an circumstances. fication surely My judges inter- The trial own inclination is to think that maximum ested considerations likely preservation, enough and will be bet- are not note” to be substantial outweigh position justice the cir- to determine what ter interest of requires. by requiring preser- would be cumstances furthered