*1 favor in the prosecution’s in the judge America, trial, except possi- of UNITED STATES of
course a seven-week Plaintiff-Appellee, (an need decide since the bly issue we harmless) the admission of error was agreements of the auto and immunity ALLEN, Neal Robert per- witnesses. This remarkable copier Defendant-Appellant. considering hundreds of tri- formance— No. 85-1717. hardly by judge rulings made al —is unfairness to pervasive consistent with Appeals, of United States Court Having persuade us failed to defendant. Seventh Circuit. against his judge committed errors Argued Dec. 1985. client, asks us the defendant’s counsel Aug. 14, 1986. Decided by the aggregate non-errors committed 1, 1986. Rehearing Denied Oct. the conviction. judge and reverse pages tran hundreds of of The show that the
script submitted counsel many evidentia judge did indeed make
trial defendant; none rulings yet
ry against challenged as rulings is erroneous
of these already we have dis
apart from those an government has submitted
cussed. The it, rulings our against of
extensive list rul still other
review the record reveals was, against government. There
ings fact, no partisanship evidence wholly unlike making the case Unit
judge, F.2d 386- Dellinger, 472
ed States v. (7th Cir.1972),and United States v. Bea (3d Cir.1983). ex F.2d 1090 The
ty, 722
changes an oc with defense counsel show asperity judge’s part,
casional jury from asperity concealed both
(all on at objections were made and ruled jurors’ conferences outside
sidebar entirely
hearing) understandable provocative rude and behavior
view the his client. The tac
of defense counsel and losing in a cause who tries lawyer
tic of judge trial into error is provoke one, by LeFevour’s coun
old well exhibited
sel, in the contempt held in who was twice trial.
course fair, trial
But the tactic failed. The judge’s conduct the trial
the district guilt
crisp professional, evidence of sen-
overwhelming. conviction and
tence are
Affirmed.
information about criminal matters around St. Louis and southern He Illinois. paid $2,700 a taperecording month for con- versations he had with his former associ- Baris, Louis, Mo., Irl B. St. defend- and, ates Allen, the case of people he ant-appellant. during met twenty almost months of Reppert, Attorney’s Office, Bruce U.S. undercover work. Louis, 111.,for plaintiff-appellee. East St. investigation began of Allen when COFFEY, FLAUM, RIPPLE, Stoneking Before building observed Allen a device Judges. Circuit burglar defeat alarm. As Allen was to later, bragged do often he his exper- about FLAUM, Judge. Circuit Stoneking tise and told that he knew how upon This court is to address called approval build bombs. With the scope Act, and administration of the Jencks FBI, Stoneking Allen told that he would requires 18 U.S.C. which a federal § first, like Allen to build him bomb. At prosecutor produce for the defense Stoneking wanted a bomb to wreck a build- report statement made a witness ing, later he decided that he would which relates to that witness’s rather have car-bomb with a remote-con- and, contested, direct examination detonating trol device. Allen told Stonek- report submit statement or to the court ing that he could build a bomb that could for an camera inspection. this case eighteen away detonated from miles require the district court did not the United $7,000. that he had built such a bomb for Attorney produce alleged States Allen told that his nickname was material, nor did the court choose to “little bomber” recently he had camera, material purport- examine made a car-bomb for someone in Toledo. edly showing because of an insufficient *6 agreed Allen to a build for car-bomb Sto- relevancy prosecutor’s and the assurance neking $6,000 bargain price for of and that all relevant material had been turned 13, 1983, August Stoneking on and Allen over. We review and outline threshold drove Kentucky pur- from Illinois to and requirements making for a Jencks Act re- dynamite. days chased Three later Allen quest, below, vacate decision and re- Stoneking to sophisticated delivered a car- hearing for an mand to deter- dynamite bomb constructed of ten sticks of relevancy mine the materiality and of the detonating and a remote control device. documents. We affirm on of all the de- Stoneking $6,000 gave Allen in cash for fendant’s remaining claims. bomb, Allen, according to and unbe- FBI, to arranged knownst to receive I. money much of the back as a kickback. Pipe Robert Allen was a welder for the part This was of alleges what Allen was a 1947, Union thirty years. Fitters for In by Stoneking. scheme of coercion While thirty-six years before he was arrested for Allen deny did not the substantive crimes selling a to an car-bomb undercover infor- of, he was his accused defense was based FBI, mant for the Allen pled guilty had to knowledge reputation on his of and of charge robbery. a bank during Stoneking, including of connections a mur- welder, the course of his work Allen Stoneking allegedly der had committed. Stoneking, met Jesse who claimed to be the Allen had no stated that he choice but to right-hand-man organized of the leader of build the bomb after threatened activity crime in southern Illinois. Stonek- him and his sister. ing been imprisoned but was released agreeing after to become an Allen was tried and convicted on four undercover informant for Stoneking’s the FBI. mis- counts of a five count indictment. The general sion conspiracy transport expío- was one: he of to was obtain first count was we remand on Allen’s sixth commerce dis- Because in interstate sives claim, Act, missed, was fol- violation of the Jencks we but Allen convicted transportation lowing: begin Count II: Interstate there. material, explosive violation 844(a); 842(a)(3)(A) and Count U.S.C. §§ II. explosives by a convict- III: Possession alleges government The that what Allen 842(i) felon, of 18 U.S.C. ed in violation §§ “production of seeking is the all or sub- 844(a); manufac- IV: Unlawful and Count government’s re- stantially all case device, in violation of of a
ture destructive (18 port the Jencks Act under U.S.C. 5845(a) (f), and 26 U.S.C. §§ 3500) pertaining to unrelated cases devel- § 5871; 5861(f) Unlawful and Count V: oped through Stoneking.” the use of Mr. of 18 U.S.C. explosives, violation sale of Brief, p. alleged Appellee’s 21. The moti- 844(a). 842(a)(1) district court §§ seeking vation for this information is that years of ten Allen to a term sentenced Allen’s representing counsel was a defend- V; years five on Count IV and Count ant another related case V run consecutive sentence on Count seeking Allen’s was information counsel IV. The imposed on Count the sentence advantage could be used of that II suspended the sentence on Counts court Three other client. weeks before Allen’s probation Allen on placed III and Attorney count, trial the United States informed run concur- years for each five by letter that this other rently each other but consecutive district with IV imposed participating on Counts and V. client accused of in the the sentences was murder of a St. Louis crime whose car boss that arose dur- appeals Allen six issues destroyed a remote control car- First, he the district ing his trial. contests years Stoneking met bomb several before separate imposition of sentences on court’s alleges Allen. The Allen counts he was convicted of each of the four producing took “credit” for that bomb four counts arose out of though even all Thus, taped Stoneking. conversation with Second, facts. Allen claims the same set of impli- of Allen’s counsel’s clients were both charged the criminal of- that he was bombing. car cated in the same Allen was by a transporting explosives con- fense his admonished district court that get- solely purpose for the victed felon conflict, con- might counsel have a but he ting thirty-six year old conviction before represen- sented to his counsel’s continued court abused jury and that district appealed. tation. The issue was portion severing in not its discretion *7 Third, alleges Allen that the dis- his trial. Agent During Allen’s trial an F.B.I. testi- failing in make an inde- trict court erred to fied on examination about his conver- direct accuracy pendent determination Stoneking prior Stoneking’s to sations with transcripts of government-prepared prison as an release from stint Stoneking Allen and conversations between agent. Allen’s counsel cross- undercover Fourth, Stoneking secretly taped. Al- that him Agent F.B.I. and asked examined the alleges erred in the the district court len conversations: about these jury to tell the that there method used not, Q. customary, it’s is it Now Count insufficient evidence to submit was your agency the Federal Bureau enough I, that there was implying thus reports your Investigation to make other four convict on the evidence to activities, it? isn’t Fifth, argues Allen that the dis- counts. A. Yes it is. refusing to instruct trict court erred Q. you any reports out And did make Finally, Al- jury on the issue coercion. concerning negotiations you that had that district court sixth claim is len's leading Stoneking to his up with Mr. require government failing to erred penitentiary? from the release him or material to to deliver Jencks I didn’t. A. No court for an inspection.
Q. agent Did other do that? ant all of the Jencks Act material that is available, if you already A. No. haven’t done so. Q. unusual, it, That is Every scrap isn’t not to paper Mr. Proud: reports? make given concerns has been to Mr. [Allen] Barris, Your Honor. concerning talking
A. Not
coopera-
negotiations
Allen’s
support
with the
you
When
tiary?
had with him while he was in the
penitentiary?
tions
him
then of
lease?
information that he
tive witness.
er he told me
bring
A.
A. Yes I did.
Q.
Q.
Q. Okay.
A. Yes.
A.
Q. And those are the same conversa-
A. Some were before.
Q.
Q. You mean before or after his re-
what
area, right?
before
counsel
And
And
Yes,
his “coercion”
out details
IYes did.
So
the discussions that
you
F.B.I.,
some numerous
you
you
you gave
with the
during
sir.
knew
he
testified to earlier that
I made a
Then after
cross-examination
did make some
is that
concerning any
was released from the
concerning Stoneking’s
about
gave
them information as
F.B.I.,
theory
put
right?
report
time,
me.
on the
you got out,
conversations
you
arguably to
activities in
of defense.
were
of whatev-
had with
peniten-
criminal
sought
stand,
you
demonstrate
ject matter as to which the witness has
from
fendants not be allowed to “rove at will
limits the
testified. The Act “reaffirms” rather than
Jencks v. United
1957, pp.
1338, 1344,
ant, if those statements relate
must be
held that statements
ministration of the Jencks Act. The Jencks
S.Ct.
questions regarding construction and ad-
(1957),
to the Court in this
ture,
accept
device for other cases.
pertains to
covery Your Honor.
sees this
investigative
The
Mr.
was the
S.Rep.
[******]
above
Mr.
States,
produced,
Court: And
Proud:
U.S.Code
1861, 1862).
Jencks decision.
A. sir. containing when “confidential information interest, public welfare, matters of Q. safety, And these are the conversations *8 security” and national are you morning that mentioned this involved. H.R. when Sess., Rep. Cong., No. you 85th 1st testified about the various inter- (1957). you agents, views that had with F.B.I.
correct? provides skeletal form the Jencks Act Yes, A. sir. prosecution brought that in by a criminal Mr. Barris: Your Honor at this I time States, by the United after a witness called request would that the notes and prosecutor the federal has testified on di- concerning these interviews be furnished court, examination, rect the district on mo- pursuant to Sec. 3500. defendant, tion of the shall order the Unit- govern- produce Court: Yes and I ask the any ed States to “statement or
The
give
attorney
ment to
the
report”
by
posses-
for the defend-
as defined
the Act in the
appellate
of the
de-
the
dard of
review
court’s
relates to
the
that
sion of
United States
in
need not
termination that
it
hold
has
the witness
matter as to which
subject
camera review the
disputed
of
States, document.
Goldberg v. United
testified.
If the entire
at 1341.
at
96 S.Ct.
U.S.
is
We need not reach the second
report relate
of the statement or
contents
relevancy
sue of
in this case because the
witness,
it
then
is
testimony of the
to the
question
district court did
reach the
of
not
If the
directly
the defendant.
delivered
to
relevancy.1 Although
un
the record is
part
that
of the
government claims
clear,
appears
that the district court did
report contains matter
statement or
in
camera
not
these
examine
documents
testimony, then the
to the
does
relate
first,
dis
for three reasons:
because the
it to the district
government must deliver
government’s as
judge relied on the
trict
inspection. an in camera
for
everything that was
sertion that
a Jencks
portions
the
court then must excise
district
“pertained”
the de
Act statement and
to
report
that do not
or
of the statement
already been turned over to
fendant had
witness,
and
testimony
relate
second,
defense;
his as
the
because of
district court
objects,
if
defendant
the
of
sumption that
amount
information
preserve
to
order the United States
must
to
he would
to review determine
have
report
or
text
the statement
entire
disputed documents were “statements”
elects not
appeal.
If the United States
great
impractical;
could be so
as to be
and
of the district
comply
with an order
third,
rep
defense counsel
because Allen’s
the state-
court to deliver
the defendant
another defendant
related
resented
court strikes
report,
or
the district
ment
prosecution, his
seek
criminal
motives for
testimony of that wit-
record the
from the
ing
question.
production were
may declare a mistrial.
ness and
government argues
appeal
On
first
requested were not
the documents
Thus,
questions that the district
by
Act;
statements as defined
every
Jencks Act
court must consider
second,
properly re-
that the district court
(1) is the doc
request for documents are:
assertions;
government’s
lied
and
requested
report”
a “statement
ument
third,
disputed
were
documents
Act; (2)
the contents
by
as defined
are
requested
specificity.
with insufficient
We
relevant “to the
of the document
definition,
questions
these
will discuss
has testi
as to which the witness
matter
reliance,
specificity
that order.
fied”;
(3)
requested
the defendant
specificity
with sufficient
document
a Jencks Act State-
A. Definition (a)
particularity so that
is
ment.
which
given adequate notice as to
doc
provides
a three-
The Jencks
(b)
district court
produce
uments
part
of the term “statement”:
definition
can make a determination whether
re
(1)
by said wit-
a written statement made
view the document in camera.
Because
signed
adopted or
ness and
or otherwise
court in this case declined to
the district
him;
by
approved
inspection, we must
hold an mechanical, electrical,
(2)
stenographic,
district
briefly
review
the discretion
transcription
deciding
recording,
issue when
or other
or a
court has on each
thereof,
substantially
to hold an in camera re
is
verbatim
which a
whether or not
material,
oral
made
said
disputed
and the stan-
recital
statement
view
witness,
the court
counsel seeks to
matter
1. If the information defense
exists,
produced
requested
such
with suffi-
order the United States
deliver
have
shall
specificity,
inspection
and is a statement as defined
cient
of the court
for the
statement
statute,
then a determination of
3500(c);
the Jencks
*9
States v.
camera.” 18 U.S.C.
§
may
relevancy must be made before it
be
Wables,
(7th Cir.1984);
its
Unit-
Even witness not the ment itself be offered to must statement, however, writer of the prove and even the nature of the statement. if that cases, plain document contains information that most the answer bewill from Palermo, go impeachment does not or was itself.” statement 360 U.S. approved witness, provides 354-55, at 79 S.Ct. at This 1225-26. discre- portions presumption district court those tion excise is further reason for
995
question
court,
as a Jencks Act
for the trial
for the
if a document’s status
not
that
government.
disputed,
judge
ex-
is
should
statement
the statement in camera.
While it
amine
[emphasis
is difficult
In summary,
merely amplify
we
helpful,
not be
it is
evidence would
sic
holding
Wables.
in
this court’s
While an
necessary if
certainly not
the statement
camera
inspection
statutorily
is not
man
is examined.
itself
dated for a determination of whether a
disputed
is a
document
Jencks Act state
trigger
presump
In order
ment, the
that an in cam
is
presumption
in favor of an inspection,
tion
era
hearing
inspect
is needed to
the doc
need
a
ar
only have
reasonable
defendant
presumption
ument.
can
That
be overcome
says
gument that
the document
what he by
why
an articulation on the
record as
says,
testimony of
an examination of
document was un
based on the
believes
necessary
pragmatically impossible.
examination,
on
then it
the witness
direct
impeach
possibly be used to
that wit
can
B.
on
Reliance
Prosecution Asser-
has
counsel
not had
ness. Since defense
tions.
disputed
opportunity to see the
doc
Keig,
Wables
United States v.
and in
ument,
lay
he need
minimal founda
(7th Cir.1963),
F.2d
this court
possible
its
use as
Jencks state
tion for
rely
held that the district court
not
on
could
much
the case
recognized
ment. We
government’s
assertion that
the dis-
Wables,
States v.
United
puted document was not a statement and
(7th Cir.1984),
we held that un
where
not related to the
matter of the
prosecutor
situation in which the
like the
testimony. Keig
witness’s
held that if the
(as
is
relevant
claims
statement
question
should
of whether documents
section), an
in cam
in the next
discussed
Act
produced as a Jencks
statement was
absolutely
era
inspection is not
mandated
raised,
adequately
then the district court
statute,
inspection of the doc
by the
prosecutor
must
them. The
examine
ordinarily
required.
ument
will be
Keig
trial
that the re-
assured the
court
prosecutor claims
a state-
If the
be-
ports sought by defense counsel were
ment,
(e),
con-
as defined
subsection
yond
scope
of direct examination and
relate
matter
does not
tains
accepted
assertion.
the district court
subject matter
the witness’s testimo-
responded:
This court
the prose-
trial
must order
ny, question has been raised
once the
produce the statement for the
cutor to
counsel,
dispose
defense
the court should
court.
U.S.C.
inspection
upon
responsibility
of it on
based
its own
3500(c) (1982).
camera
hearing.
No such
in a
what
it ascertains
§
language
disposition
make a
inspection is mandated
court should not
final
upon
representation
prosecutor
if the
Act
escape
duty to
counsel.
It cannot
its
not a
that a
is
“state-
claims
document
learn
firsthand.
the truth
meaning of
ment” within
subsection
situations,
However,
(e).
in such
recently
Id. at 637. To
repeat,
this
Wables,
not
Jencks
are dif
larity (normally
exist. That
Act cases
by his cross-examination at
ferent
Brady
by trial)
than
cases is illustrated
that a
exists,
certain document
that
Navarro,
F.2d
United States v.
737
625
is
there
a reason to believe
doc
that the
—
(7th Cir.1984),
denied,
U.S.—,
cert.
‘statement,’
is a statutory
ument
that
438,
(1984).
105 S.Ct.
L.Ed.2d 364
83
the
provide
Government
to
failed
it in viola
Navarro
that because
we held
the defend
of
tion
the Act.” United States v. Robin
nothing
govern
ants “offered
to rebut the
son,
(7th
(en
Cir.1978)
585 F.2d
281
representation
explicit
ment’s
the
to
dis banc)’,
States,
Goldberg v. United
425
trict court”
there was no exculpatory
that
94, 116,
1338, 1350,
U.S.
96 S.Ct.
47 L.Ed.2d
file,
material in
defendants'
it
the
INS
(1976)(Powell, J., concurring).
603
In Rob
not necessary
find an
to
abuse of discretion
inson
circuit found that the defendant
in the district court’s refusal to examine
carry
to
“failed
his initial burden of defin
the file in
737 F.2d
632.
camera.
at
We
ing
particularity
specific
with
a
document
noted in
analysis
that case that the “Brady
which the
failed
produce
Government
to
discovery,
trial,
assumes the
after
of favor
and therefore the
did
court
not need to
able, material
information
known
conduct an
inspection.”
585
prosecution
unknown to the defense.”
at
F.2d
281. Because there was
evi
no
Id. at 631.
Therefore
mere existence
that
dence
document
defense want
file,
specu
of the
and the
INS
defendant’s
among
10,000
ed even existed
doc
might
it,
enough
lation of
be in
what
is not
file,
uments
the case
the court did not
require
to
court
the district
to examine the
reach the issue of whether the
of
“burden
contrast,
file. By
contents of the
Jencks
specifying with reasonable particularity ...
required by
Act statements are
statute to
that
there is
to
reason
believe
be
if they
reviewed in camera
are “state
”
document is
statutory
a
‘statement’
as
ments”
testimony
and are related to the
of
Act,
by
defined
the Jencks
was met in that
government
a
While
witness.
the district
case.
able,
Navarro,
rely
as in
to
be
It is
government
particu
on a
difficult to establish
requested
assertion
a
that a
bright
exist,
specificity
lar
line level
document
not
that must
does
the court cannot
bymet
rely on
be
defense
government
assertion
a
counsel
demonstrate
doc
ument does not “relate to”
information he seeks is a
mat
Jencks
ter
Act statement.
It
clear
witness’s
and should
is
that the more
not
it
rely on
obvious
is that
an assertion
the document
the statement is a Jencks
statement,
statutory
specific
does not
fit
definition of
the less
the founda
do so
“statement.” To
would defeat the
tion laid must be
to meet
defense coun
underlying
Act.
If
intent
burden
particularity.
sel’s
Therefore
conflicting
there
is
reasonable
evi
analyzed
each case must
in light
of its
dence,
inquiry
then an
camera
must
particular
own
set of
In Goldberg
facts.
v.
court,
course,
place.
take
The trial
States,
100-101,
U.S.
wide
limit
length
scope
discretion to
1338, 1343-44,
(1976),
S.Ct.
C. Threshold Partic- during the witness cross-examination ularity. prosecutor taking whether who was ques notes of the Before witness’s answers his a district court can reach question read tions back the answers for the disputed of whether a witness document Moreover, Act, approve. if the statement as defined the Jencks agent, requested speci- prosecutor must be whether he be or investi sufficient ficity. gator, put We held Act re- is himself on the have that “the stand as witness, quires report clearly that a then defendant first meet bur- falls within den of specifying particu- signed with reasonable the definition of a statement. Unit- Cleveland, however, holding, must 315— also be made with States ed Cir.1973). specificity, including Investigators’ reports, why reasonable (7th agents’ given op- defendant’s counsel was reports, clearly so fall FBI such Act, portunity attempt request language the Jencks make his *12 within specific, example, widely producible, by more continued been held to be so have prosecution pro- after not establish def- cross-examination defense counsel need signed specificity. tests of of A defendant report by the is the a lack initely that qualifies caught and his counsel should not in the to demonstrate that it as be witness Goldberg trap being request of denied a for some- statement. a Jencks States, 112-13, thing seen, they 96 have never and which the 425 U.S. at S.Ct. at see, (Stevens, J., concurring), government does not them to outlines want 1349-50 reports they specifically and are because have not asked scope nature of the enough Act statements. for it. allowable Jencks Jus- important notes that one tice Stevens hand, the attempts get On other to infor- writing a is determining in whether factor merely attempts mation can also be to ha- why Act is doc- statement the a Jencks They “fishing rass or can stall. become begin made with. 425 ument was to U.S. files, expeditions” prosecution into which Reports 1349 n. 3. 113 n. S.Ct. at at government argues the this case would FBI, investigative as the or agents, such by one have become. This is area where the itself, so prosecution are made that the the questions specificity of and over- definition recalcitrant, may prosecution “confront lap. judge is a The trial referee over this perjurious pri- forgetful, or witness exchange information and thus must make in induce him tell statement order to concerning difficult decisions motive and nothing whole truth and but truth.” strategy before he or she arrives at even Therefore, reports of Id. types these are question appellate of content. As an often usually reliable and more than not we no attempt court should make to sec- detail actual words of both specifically ond-guess holdings often of these delicate Id. and interviewer. As the witness judge fury made in and district the flux Report accompanied House which on-going of an trial. But because of the Act stated: Jencks language intent clear and of the Jencks been, remain, always will It Act, presumption appeal is that an every FBI and practice other required, inquiry generally is agency law to take Federal enforcement specifically thus the district court must important witness- written statements why holding it is not such an delineate only is es. This vital not insure the examination. accuracy of the at the statement time it premise Accepting the made but to the witness down so is tie necessarily defendant does not know what he will stand the statement which prosecution is in the file but has contained signed. he has read and (Brady) statutory a constitutional Thus, supra H.R.Rep. No. at 7. (Jencks) right to information that could re- clearly anticipated that FBI impeach prosecution possibly be used to not, more often than would be state- ports, witness, appropriate conclude then it is as defined the Act because of ments extremely that the defendant need not be reliability. their consistent particular requesting information. such overly A counsel be the determination of defendant’s cannot
Because he have inquiry, specific may about items never adequate specificity is a fact-bound quoted is duly deferential seen. This reflected the often appellate court must be Justice Marshall Unit findings language trial court’s should Chief Burr, 14,694 overt ed States v. No. Fed.Cas. a district court’s factual overturn (1807), if the p. who stressed that finding specificity of a lack when opposite “paper possession clearly The district court’s be erroneous. party,” requesting party spe cannot be tion of “statement” and to determine their cific about its “contents or applicability” or relevancy. Both the FBI agent and Sto- “particular passages.” its 25 Fed.Cas. at neking reports testified that were filed con- pas The same is true particular 191. cerning their conversations. needWe sages reports several rather than one reports those find that clearly were state- Robinson letter. court district was ments, only that precedent because of prospect reviewing up faced with the responsibility the district had a ten thousand pages. clearly That was them. In addition, examine it is because “fishing expedition.” unwarranted How they not denied that exist and because as ever, the district court should at a mini “statements,” FBI prosecution review the index mum which *13 remaining only question is of one relevan- developed be should in a case with scores cy. relevancy issue, If is the then an of documents. The district court must be in camera review is required by statute. determining wide in allowed discretion words, In other reports because F.B.I. are number of it can what documents reason se, reliable, consistently, but not per we ably obviously magic review. There is no find that Allen’s counsel laid a sufficient inquire number. But the trial court should foundation to presumption raise a that the many how documents there are which a disputed documents should be examined in to, has if witness testified there is a camera. number, significant if has prosecution the summary an is especially intriguing indexed of those documents. This case because words, both the In other prosecution presents it a collateral to conundrum the obligation the defense to assist the have classic Jencks statement situation. These disputed in determining trial court whether reports were by testified to the FBI both produced should under documents be the could be agent thus Act. Particularly trial because the impeach to either of used one them. may rely on prosecution’s court the asser Therefore, even if report not did meet (if evidence) there conflicting tion is no “substantially the verbatim of recital exist, prosecu a document does not the oral made by statement said witness” test obligation informing tion’s should include in the second sentence of the Jencks Act court, the district certain reasonable “statement,” definition it because details ty, many how documents that the witness a conversation that was converted to a to testified exist in its files.2 report aby agent federal who was also a witness, might it meet the state- “written III. signed adopted ment ... or or otherwise In this case the re approved by defendant’s him” test in the first sentence quest reports, for the agent’s FBI filed of the definition. Stoneking, his
after conversations with inappropriate It was the dis justi meet specificity the minimal level of rely to fying judge prosecution trict court on the asser review the to district statutory concerning determine if defini- met the tions the content of those doc- supposed may 2. on it be Chief Justice Marshall also touched Let not letter anything respecting requested person now contain issue whether the document to respect may the court. before Still it a wit- specifically before deal with the defendant it case, impor- ness material in the and become produced. be at Clear- could 25 Fed.Cas. 191. by bearing testimony. on Different tant his ly, requirement there is no defendant representations may have been made be must named in the statement for it contested witness, may or his been such conduct have to or either be a Jencks Act statement a relevant testimony. as to affect In various modes a statement. No case so held and to do so case, although paper upon bear be- fly logic would in the and the intent of face of opened particular applica- case be fore the its the Act. As Chief said in Unit- Justice Marshall perceived by judge. be tion cannot ed States v. Burr: page 25 Fed.Cas. at 191. (1961). the information con- L.Ed.2d As we stated in If some uments.3 O’Brien, not should those tained If, remand, counsel the district over the defendant’s be- court deter- to
turned
mines that such materials contain no in-
role as defense counsel
of his
cause
production
warranting their
formation
case,
court
then the district
can
another
defendant,
enter
should
a fresh
excising
portions
of those
direct
judgment
upon
final
based
record
reports.
supplemented by
findings,
pre-
such
thus
may rely
court
this case
The district
serving
defendant-appellant
right
many
prosecution’s assertion of hów
on the
appeal
Conversely,
therefrom.
to,
two witnesses testified
documents the
the produc-
district court concludes that
appears
the record
evidence
portions
tion
related
of such
materials
considerably less
that these are
than
show
wrong-
for defendant’s examination was
enormous numbers involved Robin-
denied,
fully
it would then become its
IV. requires proof United States and of facts Allen’s unique specific five other claims will dealt be to that conviction.5 In this briefly light context, with enough this section in of our that in itself is to meet the applicable prece- Blockburger Therefore, review of the record and test. Allen was dent. properly by sentenced the district court. 842(a)(3)(A) 4. Count II —18 U.S.C. §§ and Count III —Proof that defendant is a convict- 844(a). ed felon. 842(i) 844(a). Count III —18 U.S.C. §§ manufacturing Count IV —Proof of unlawful 5802, 5822, 5845(a) Count IV—26 U.S.C. §§ explosives. of (f), 5861(f) and 5871. selling explo- Count V—Proof of unlawful of 842(a)(1) 844(a). Count V—18 U.S.C. §§ sives. transportation. 5. Count II —Proof of interstate
1001 Provenzano, 620 F.2d States v. Felony Prior Conviction. United B. 985, (3rd Cir.) added), cert. (emphasis 1004 charged the crimi Allen denied, 899, 267, 449 101 66 U.S. S.Ct. by a transporting explosives of offense nal Indeed, (1980). stipu 129 L.Ed.2d cold “[a] 842(i) felon, 18 U.S.C. convicted §§ deprive party legitimate can ‘of lation trial, prosecution intro 844(a). his At evidence,’ Wigmore 9 moral force copy of defendant’s a certified duced 589, and, can never Evidence 2591 at § conviction, guilty, of armed by plea prior tangible, evi fully physical substitute for 20,1947. appeal, robbery On on June bank or the dence witnesses.” abused claims the district court Allen Grassi, States v. admitting convic prior its discretion (5th Cir.1979), other vacated on 1197 later. thirty-eight years into his trial tion grounds, 100 65 U.S. S.Ct. 609(b) Rules Rule of the Federal Under (1980). L.Ed.2d Evidence, thirty-eight year convic- old merely general This rule is a reiteration impeach a admissible to would tion balancing prescribed Rule by of the test However, in this case criminal defendant. Evidence, of the Rules of Federal felony an element prior conviction was provides which that: 842(i). charged under U.S.C. of the crime relevant, Although evidence be ex- suggested that be- defense counsel Allen’s if its probative cluded value is substan- the same all five counts arose from cause tially outweighed by danger facts, charging purpose for set of the sole issues, prejudice, unfair confusion of the prejudice with Count III was Allen misleading or jury, or considera- introducing counts jury as to other time, delay, or tions undue waste of Allen’s robbery armed conviction. the old presentation of evi- needless cumulative two suggested alternatives defense counsel dence. impact prior prejudicial to avoid first, the trial of Count
conviction:
sever
issue
is whether
not the
The sole
then
counts, or, second, stipu-
III from the other
its
under
district
abused
discretion
jury
prior
not inform the
late and
weighing
probative
403 when
val-
Rule
conviction.
against
prejudice.
the unfair
Allen
ue
uphill
prove
battle to
abuse of discre-
government agreed
stipulate
important
keep in
tion because
“[i]t
in-
prior felony
conviction but
Allen had
judge
discre-
mind that the trial
has wide
stipulation
know of the
jury
sisted that
*16
rulings,
will
rendering
FRE 403
tion
no confusion. The
so that there would be
appeal only if there has
be reversed on
concluding that
agreed, also
district court
a clear abuse
that discretion.”
been
of facts and circum-
because the same set
States,
Shows,
Noel
Inc. v. United
721
separate
prove
would
the
offenses
stances
(11th Cir.1983); Wright
327,
329
F.2d
severed. The district
they should not be
Compa-
Indemnity
Accident &
proposed
defendant’s
court found that the
Hartford
809,
(5th Cir.1978).
ny,
580 F.2d
810
likely
the
stipulation would be
confuse
jury.
agree
district
We
with the
court
felony
prior
Allen’s
probative value of
cases,
most,
all,
party is not
“a
In
but not
ele-
is
it is an
record
substantial because
judicial admission of
required
accept
a
Furthermore,
charged.
crime
ment
adversary,
proving
may insist on
how
difficult to see
the district
it is
States,
F.2d
the fact.” Parr v. United
255
possible preju-
denied,
have diminished
824, could
(5th
cert.
86,
Cir.),
89
358 U.S.
including those
by any stipulation,
dice
40,
(1958);
see also
3
64
79 S.Ct.
L.Ed.2d
suggested by
the defense and
both
Spletzer,
States v.
been
would infer that the
United States v.
defendant
101,
508 F.2d
must be a convicted felon.
jury
(8th
Even the
denied,
Cir.),
cert.
916,
421 U.S.
stipulation
is not told about the
and coun
1577,
(1974).
S.Ct.
Under these fact, circumstances the this case demonstrates a concert- district court did clearly abuse its dis- ed effort pros- the district court and the allowing cretion in into evidence the de- tape recordings ecution to use the fairly. prior fendant’s conviction. example, For tapes were made available to counsel for the defendant C. Transcripts Government Record- prior to the trial. The defense did not ings. allege crucial, particularly even important, portions argues tape Allen were inaudi- district given ble. The defense refusing ample court erred in time to an in-cam make prepare era determination its version of the accuracy as to the conversations *17 government-prepared transcripts tapes. viewing recorded on the Before the before they given were jury. transcripts, jurors clearly to the It the is within were and the carefully sound discretion of by the trial court to admonished the district court transcript allow a tapes heard on the by jury they to be used the to that what was the listening assist it in tape recording. to a they evidence should consider.6 The tran- jury The court tape. tape admonished the as follows: version of what is on the is, Now the is, you tape you and what hear on the and things you Now there are several that need understand, evidence, need to is the best and to understand about it. In addition to the you it is the evidence that in should consider tape being played, going the Court is to allow determining finding and the in this case. government facts give you transcript the to a of the may tape. discrepancies There some between transcript be typed up Now the has been it, by tape, you government's the hear is on the the and what and it is the
1003 immediately gentlemen regard after and with to collected count scripts were segment played. charge was the particular conspiracy between the de- each Allen and fendant the defendant McAtee. clearly prefers still the This circuit The will Court nevertheless submit the States v. followed procedure you gentlemen case to ladies and on Dorn, (7th Cir.1977), F.2d 1257 2, 3, 4 and Counts 5 and we’re now ready a the court conducted hear district where closing arguments for by to be made the jury, presence of the to ing, outside the parties. the attorneys for accuracy transcripts. the determine However, procedure mandatory is not this mistrial, for Allen’s motion a on the theo- recordings almost tape the are com when ry language the district court used do the We not reach issue pletely audible. implied jury enough to the that there was necessary procedures are when a of what evidence to convict Allen on counts two important part of merely the substantial or through five, was We denied. affirm. recording questionable quality. is of Cf. Allen makes no that the claim district Robinson, F.2d v. United States erroneously court jury instructed Chiarizio, Cir.1983); United States (6th offense, doubt, elements of the reasonable (2d Cir.1975). We hold F.2d 289 proof. of or burden The district court fol- imple district court in this case the lowed the Pattern Seventh Circuit Instruc- safeguards to sufficient assure mented that, jury tion 1.03 and cautioned the did abuse its discre trial and thus not fair by any Neither these instructions nor tion. made, ruling or remark which I have Ido Implication Insufficiency
D. any opinion mean indicate to as to the of facts, Count 1. Dismissal to your or as what verdict should of are the and be. You sole exclusive argues the district Allen judges facts. jury when court court’s remarks implied I dismissal Count In the announced context of trial where most of the to con (because the evidence was insufficient dispute were salient facts charged I Count Allen vict defendant. the defendant’s was defense coercion McAtee, a with Pat co-de conspiracy the instructions as a whole entrapment), from severed fendant who been imply did not that the evidence was suffi- trial, transport explosives inter on cient to convict the other counts. grant court state commerce. district E. Denial Coercion Instruction. acquittal judgment Allen’s motion for ed just closing prior Count I and as to before, during, Allen’s defense and after arguments jury: stated to he his trial coerced into vio- was lating the reputation the law as result of jury, Members and threats of chief witness for the presented has all been and the However, prosecution, Stoneking. Jesse up matters taken several attor- give any the district court refused to coer- neys parties and the Court has rejected Al- specifically cion instruction and that there is insufficient determined [evi- 11,” you ladies len’s offered “Instruction Number submit matter dence] discrepancies again, transcript you discrepancy, be find such a Now there discrepancies, be because of these there will why tape and is said and what then the what possibly argument or comment made controlling, you tape hear is not the on these, regard and that counsel later with transcripts transcript. The will be handed to perfectly right all as to what either one they you away then are will taken *18 may during parties tape on the have said only helping you understand the aid again, And course of conversations. tape played. again as I want to it is And they government’s regard are the version with emphasize tape best and as a is the tapes say. to what only that the Court matter of fact the evidence given by the on The admonishment was every Court allowing to be introduced. transcript was used. occasion 1004 pattern
which is based on Seventh Circuit
law
has some foundation in the evi
instruction No. 4.05.7
though
dence even
such
evidence
weak,
insufficient or of doubtful credibili
generally
While
the defense of
Brown,
United States v.
ty.”
785 F.2d
coercion, compulsion or duress is an “issue
587,
(7th Cir.1986)
(quoting United
590
United States v.
go
jury,”
of fact to
to the
Patrick,
States v.
381,
(7th
542 F.2d
386
McKnight,
75,
(7th Cir.1970),
F.2d
77
427
Lehman,
United States v.
Cir.1976));
468
denied,
cert.
880,
124,
400
U.S.
91 S.Ct.
27
denied,
93,
(7th Cir.),
cert.
F.2d
108
409
(1971), in
L.Ed.2d 118
order to become enti
967,
273,
U.S.
93 S.Ct.
holding solely
(emphasis added).
the defendant’s evidence.
on
But
That evidence is so minimal that we affirm
interpreted
it is clear that this circuit has
give
“some,”
refusal to
a coer-
even in the Patrick case
itself,
the district court’s
cion instruction.
more
just
mean
than
mere existence of
general-
See
a foundation in the evidence.
Third, in
recent
our
case of
Brown,
ly, United States v.
785 F.2d at
Brown,
United States
dence after made an V. testimony. matter of that to the part For the above reasons we affirm in the essential facts of a case are not When and reverse part. and remand in dispute theory in and the defendant’s sole coercion, of defense is the district court COFFEY, Judge, concurring Circuit in particular denying should use care dissenting. jury instruction not defendant a when all I majority concur with the in its treat- evidence the defendant offered the relevant case, ment all of the issues raised in this case, admitted. In this the offer been except for the Jencks Act issue. I dissent proof that set out what defendant’s sis majority misinterprets since the the Jencks testify to demonstrated that the ter would interpreting scope Act and case law testimony only repetitive of what and, result, imposes the Act as a an unnec- jury already heard. The defendant essary burden on the in district courts this alleged his sister’s evidentiary circuit to conduct unwarranted his own and thus would corroborate bolster hearings. credibility credibility is irrelevant his —but determining give when whether or not to I any allegation an instruction. If there was the evidence not admitted was not Agent The record reveals that FBI Fox repetitive important theory and was to the testified on direct examination that he had defense, then its exclusion would be Stoneking, several conversations with error. Because there is no harmless error felon, convicted while was con- possible give necessary refusal to prison. agent testify in did fined not instruction, would be forced to reverse. we conversations; as those details of to. case, sought only But to but Allen merely rather he related the fact that Sto- credibility allegations, tress the neking gave concerning him information them, add to and thus the refusal to allow organized Illi- crime activities Southern testify his sister is an insufficient Louis, nois and the Missouri area. This St. ground to reverse the court’s refusal testimony was elicited give a coercion instruction. concerning background information how Stoneking. the FBI came into contact with However this remains a troublesome defense counsel On cross-examination theory matter. While Allen’s of defense Agent the conversations asked Fox about Patrick, was, language to use the prison: “weak, insufficient or of doubtful credibili- not, “Q. customary, ty,” 542 find Now it’s F.2d at it is difficult to that it does not have “some foundation your agency in the Federal Bureau organized crime activities in the your tion on St. make Investigation to activities, it? isn’t area. his transfer Louis After Springfield facility, gave it is. he the FBI infor- Yes
A. *21 reports any concerning bombings out several in the Q. you And did make mation you had concerning negotiations that area. He further testified that St. Louis leading up to his Mr. with prison September his release from in after penitentiary? from the release began to work as an informant for 1982 he A. No I didn’t. during next two and one-half the FBI agent Q. Did other do that? June, subsequently met years. He Allen A. No. Stam, through acquaintance a mutual unusual, it, Q. isn’t not to That is Stoneking. The remain- of both Allen and reports? make testimony Stoneking’s concerned der concerning talking coopera- A. Not subsequent topics of those conversations report I of whatev- made a tive witness. himself and Allen and the intro- between concerning any criminal he told me er recordings tape made of duction gave me. information that he cross- of those conversations.1 On several his re- Q. or after You mean before following colloquy took examination lease? defense counsel and Stonek- place between A. were before. Some ing: reports Q. you did make some So out, got Q. Okay. you Then after you had with discussions that then of the conversa- you had some numerous [sic] from the he was released him before F.B.I., right? is that tions with penitentiary? Yes I did. A. I A. Yes did. Q. you gave And them information as same conversa- Q. And those are the activities in you knew about the to what you you testified to earlier tions that area, right? peniten- he in the this with him while was tiary? Yes, sir. A. A. Yes.” time, during were Q. And pro- then moved for counsel
The defense with you would talk making notes when reports FBI document- of all of the duction them? agents had ing conversation that Yes, A. sir. de- Stoneking, district court but the the conversations Q. And these are government as- request after the nied this morning when mentioned this you over all that it had turned the court sured inter- the various you testified about information con- reports FBI agents, F.B.I. you had with views that Al- concerning the defendant tained therein correct? Agent Fox After counsel. len to defense stand, Stoneking tes- excused from Yes, sir. A. opera- his role in the undercover as to tified I Honor at this time Mr. Barris: Your imprisoned that while He stated tion. reports request that the notes would request FBI to early 1982 he contacted be furnished concerning these interviews from the arranging his transfer help in pursuant to Sec. 3500. pursuant Haute, penitentiary Terre federal govern- I ask the Yes and The Court: penitentiary federal Indiana to the attorney for the defend- give the ment to might that he Missouri in order Springfield, that is Act material all of the Jencks ant family. He informed to his be closer available, already done so. you haven’t informa- possibly provide FBI that he could meetings prior with the in his car devices on direct examina- other
1. His
concerning
in this case
Allen.
role of the FBI
defendant
tion
tape recording
FBI would set
was that the
“apparently” as I
scrap
paper
that word
am at a loss to
Every
Mr. Proud:
given
parameters
Mr.
majority
has been
understand
concerns [Allen]
point
Barris,
holding.
majority appar-
At one
Your Honor.
Jencks Act but the
signed or statement made
otherwise
in camera
it “does not relate to” the
duced
ument does not contain
by him.” 18 U.S.C. §
pursuant to the
production of a witness’s statement
produced for an the court
must relevance of the statement.
for order the statement
ment contends
United States
F.2d
matter
fied.” defendant after the witnesses
added).
under the Jencks
witness it
ment to
(1976).
Goldberg v. United
§
direct examination
§
3500(c).
to the
ture,
Your
covery
3500.
accept the
The Jencks
pertains to [Allen].
sees this
testimony
The Court:
Mr. Proud:
96 S.Ct.
qualifies
[******]
Mr.
as to which the witness
If the statement
Honor. He has
Court
produce, upon the motion
If
A statement
device
may order the statement
Barris,
perhaps
government’s
1338, 1347,
to
Navarro, ed States
moving
The burden on the
defendant
Cir.1984)
(7th
government to
(requiring the
prove
statutory
not to
the existence of
prior
exculpatory evidence
purpose
produce
collat-
all
‘statement.’ The
of the
trial). Therefore,
incumbent that the
it is
proceedings
eral
is to resolve that issue.
evidentiary
Rather,
provide a sufficient
simply
the burden is
to estab-
defendant
thorough
through a
by probative
lish
in foundation at
trial
usually
evidence—
to demon-
of the witness
alleged
cross-examination
cross-examination of the witness
sufficient basis for
that there is a
given
to have
a statement —that there is
strate
halting
compel
judge
the trial
statutory
‘state-
the trial to
reason to believe
requested documents ment’
exist.
Certainly
review the
more must
impeachable
if
contain
speculative possibility.
to determine
be shown than a
is consistent
If,
here,
This burden
theory
the defendant’s
is that material.
that a trial of
admonishment
require-
our court’s
prosecutor’s
notes meet the
bearing directly on the
purpose
The
pro-
collateral issues
Jencks Act is to
the defendant are to duce
guilt or innocence of
statements to the defendant
to be
impeach government
States v.
used to
avoided. See United
Rovetu-
be
witnesses.
Palermo,
(7th Cir.1985)
so,
(noting
360 U.S. at
F.2d
need not be under the Jencks Act as no foundation has developed been in the Ill impeach record to the substantive testimo- majority holds that the defense coun- The ny unambig- witness. The clear and evidentiary a sufficient sel established language uous of the Jencks Act mandates justify hearing an in foundation camera applicable is not until such time as on the fact that the defense counsel based witness has offered on cross-examination of elicited might Thus, impeached. under subsec- Agent merely Fox that Fox had filed (b) tion only required United States is reports of his him- conversations between produce those statements “which relate Stoneking relating underworld self matter as to which the wit- activity justifying in the St. Louis area. example, ness has For in Gold- testified.” holding, majority states that: berg, supra, prosecution witness identi- particular “It is difficult to establish a person fied the defendant as the engaged bright line specificity level of that must in the criminal Supreme conduct. The by defense be met counsel to demon- Court held that a sufficient basis strate that the information he seeks is a developed record had been for the court to Jencks Act statement. It is clear that hold an in camera examination of the the more obvious it is that the state- government concerning documents the wit- statement, ment is a Jencks Act the less ness’s prose- discussions with specific the laid must be to foundation cutors since the witness testified that he meet counsel’s burden defense previously government’s reviewed the particularity.” accuracy. notes of his conversations for added). Majority opinion (emphasis at 996 Thus, qualified if the in Goldberg majority’s apparent concern is that (an as statements issue to be determined *25 has not review the defendant been able to remand) upon might very the statements government reports impossible the it is provided impeachment well have if material request him specific to make a to see a the “statement the to mat- relate[d] particular document and thus more “the testimony the ter of the witness.” 18 obvious the statement is a Jencks Act 3500(b). In Goldberg possibil- U.S.C. the § statement, specific the the foundation less ity prosecutor’s *26 impeached by de- the same that could be these any on of the cross-examination as to reports. majority that mere- no foun- The assumes tails these conversations. Thus report detailing ly the FBI filed a any possible impeachment dation for because counsel, however, Stoneking pur- its conversations with established. Defense indictment, fact, prior Agent activities to the 2. that he filed defendant’s Fox testified reports Stoneking reports by Agent af- of his filed Fox of his conversa- conversations by Stoneking quizzed prison prison ter de- Stoneking left when while he was in can tions with fense counsel on Stoneking cross-examination. way as in no relate the defendant 1983, some nine did not meet Allen until June 3. Unlike the where the situation in O’Brien Stoneking pris- from months after was released agents testified on as to direct examination on. during in- defendant's dictment, the time of the activities concerning reports also filed
1013
Stoneking signed
approved
any
in-
or
state-
documenting their continuous
poses of
in the St.
organized
reports
justify
crime
ment recorded in the FBI
vestigation into
automatically
these
report
area that
Louis
his conclusion that
contained
discovery
subject to the Jencks
Goldberg,
become
See
Act “statements.”
Jencks
however,
If,
has not
the witness
rules.
(Powell, J.,
promise to act as an other and materials Mr. where However, agent expressly stated that talking has been to the F.B.I. over this any reports concerning the he did not file long period of time. These concern oth- Stoneking leading negotiations he had with government er criminal matters ... Stoneking’s prison.7 Tr. at release from request characterized this [defense for 125. Stoneking’s as a discovery statements] (Tr. 159). device other reasons.” IV majority engages in Because the an unwar- questions innocuous asked of From the unduly expansive interpretation ranted and Stoneking inquiring as to whether he had discovery of the Jencks Act rules to accom- FBI with the and whether “conversations” “fishing” modate the defendants’ obvious conversations, FBI of these took notes exploration expedition FBI into the Stoneking’s response, affirmative files, I dissent. majority still holds that the Jencks Act discovery apply reports to the FBI rules fear, position, I
this case. Such a will lead unnecessary delays in trials
to abuses attorneys stop now a trial dead require already
its tracks and our over-bur- district courts to conduct
dened
inspections files without the attorney initially establishing even
defense through proper reasons cross-ex-
sufficient on the basis of that conversations what the FBI contain. Defense counsel encourages required place to establish and unrelated to the case took was failed to establish alleged request "fishing expeditions” by foundational for the defense counsel unnecessarily Jencks Act material the documents he will interfere with a criminal tri- Allen, al, any sought contrary majority’s relevance to much less his to the assertion that its (Allen’s) holding” "catapult asserted defense. Counsel for Allen does not the Jencks "narrow required discovery some was particularity demonstrate at least Act into a broad device.” The extra relationship places what the between burden a decision of this nature on the requested majority’s defense. the documents Allen’s federal courts is too obvious. The ambiguous and innocuous To hold that the testi- creation of a "low level foundation” and its mony requirement defense counsel elicited from the infor- minimal burden as well as the ma- agent support jority’s misleading legislative mant and the was sufficient to construction of in- judges request nothing unsupported Jencks Act will force to examine tent are conclusions any time defense counsel wants to documents "go fishing” without recitation of basis in law or the effect, government’s files. In in the of this case. facts given open majority invitation not, contends, engage majority “merely defense bar to in a needless 7. I am as the criminal "fishing expedition.” accepting government’s assertions” as to notes set forth at trial before a district court FBI notes production of the for moved required to hold an in camera hear- will be fell with- contending that these documents ing government document. to review a discovery and that rules in the Jencks Goldberg, supra, In the defendant was deny for the district court it was error of mail fraud. A indicted and convicted making an in request without first pled guilty prior of the defendant cohort In inspection of the documents. camera govern- agreed testify for the trial and re- district court’s decision upholding the trial, preparing govern- for ment. for fusing grant the defendant’s motion prosecutors extensively ment interviewed inspection, we noted an in camera notes of person and made those con- part of attempt on the Act was Jencks trial, At the defendant versations. moved inter- Congress “to balance Government’s production of those notes under the ac- limiting regulating defense est Act after the witness testified on against a defend- files cess to Government cross-examination that those notes were compe- to relevant ant’s ‘entitle[ment]
Notes
determination notes 981, Cong. 1st S.Rep. No. 85th (quoting government product tected work of the 3, reprinted in U.S. Code Sess.
[1957] prosecutor and remanded the case to the
1862).
News,
In
Cong.
p.
Adm.
order
&
inspection
district court for an in camera
goals,
that a
we stated
achieve these twin
as to whether
notes were “statements”
initially:
defendant must
meaning of the
of the witness within the
specifying
of
with rea-
“meet the burden
Act, noting that the witness’s “testi-
Jencks
(normally by his
particularity
sonable
mony
question
a sufficient
under the
raised
trial)
a certain
at
cross-examination
require
judge
the trial
to conduct
Act to
exists,
is reason
there
document
109,
at
96 S.Ct.
inquiry____”
such an
Id.
the document is a statu-
to believe that
Powell concurred in the
at 1347. Justice
‘statement,’
tory
and that
Govern-
erroneously
result since
district
provide
failed to
it
violation
ment
upon
the motion based
the work
denied
States, 425
Goldberg
Act.
v. United
concurrence,
product privilege. His
cited
[1350], 47
[*]
[*]
[*]
[*]
[*]
[*] general than concurrences in the rather showing generalized A as this prosecutor’s of the under- correctness require should never besufficient standing of what the witness knows. pro- collateral judge trial to conduct explicit ques- Absent answers to such producibility prose- ceedings on the satisfy tions that bur- defendant’s is, inquiry cutor’s notes. If it collateral den, deny judge the trial should required, competent for always will be production motion without the col- for rarely gowill to trial that prosecutors proceeding.” lateral general sub- such ‘discussions key 123-24, and the relat- stance’ with witnesses Id. at (emphasis at 1354 S.Ct. in the taking of notes to be used added). ed witnesses____ examination of such Our court Robinson and Justice Pow- collateral and ‘needlesstrial of confus- Goldberg emphasized ell’s concurrence ing approach issues’ that the Court’s for defendant to establish the the need necessary encourages is not ‘assur- for possibility requested information is to the crimi- ing that utmost fairness meaning a statement within the the administration nal defendant’in justify interrupting a Act so as to Jencks Act.” discovery to conduct a mini-trial in the trial 1352-53, 119-20, 96 S.Ct. at Id. at concern as ex- judge’s chambers. Our added). emphasizing (emphasis interrupting Robinson pressed in over proper prior for foundation to a need separate mini- criminal trial to conduct a request application of the Jencks Act
existed that
those
notes
laid must be to meet the defense counsel’s
impeach
contained material that could
the
particularity.”
position
burden of
This
en-
testimony
implicating
of the witness
the
compasses
assumption
an erroneous
O’Brien,
defendant.
In United States v.
face,
report,
normally quali-
an FBI
on its
(7th Cir.1971),
agents