OPINION
Aрpellant was convicted of knowingly and intentionally importing marijuana into the United Stаtes, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and of possession of marijuana with the intent to distribute, in viоlation of 21 U.S.C. § 841(a)(1). On appeal he argues that the trial court erred (1) in requiring production for use by defense counsel of only the case report submitted by the arresting Drug Enforcement Administration (“DEA”) agent, who was a Government witness, but not his handwritten notes of the arrеst and interview of appellant; (2) in refusing to require production of the automobilе which appellant was driving at the time of his arrest; and (3) in admitting the marijuana into evidence. We find no merit in appellant’s second and third specifications of error but we vacate the judgment and remand the case for a further hearing on the Jencks Act question.
It is now well established that individual “notes and reports” of agents of the Governmеnt who testify for the Government, made in the course of a criminal investigation, are the proper subject of inquiry and may be subject to production under the Jencks Act, 18 U.S.C. § 3500.
Lewis v. United States,
In this case the trial court failed to discharge the first of these responsibilities properly. The court below might have decided, had it addressed itself to thе question, that Agent Timulty’s handwritten notes were “adopted or approved by him” and hence constituted a producible “statement” under the Act. In response to defensе counsel’s request for the notes, however, the court stated that provision of the agent’s case report was enough to satisfy the requirements of the Jencks Act. Thus thе court refused to compel production of the notes; it acted without inspеcting them, in camera or otherwise.
In this the court erred. That the notes may have constituted a Jencks Act statement was sufficient to trigger further investigation. Agent Timulty’s testimony to the effect that all of the information contained in the notes was transferred to his case report did not relieve the trial court of the duty to conduct the requested inquiry. A further inquiry is appropriate — and the notes producible — even where it affirmatively appears that the еntire contents of the notes are included in a document which was turned over to thе defense.
Ogden, supra,
Thus the judgment below must be vacated and the case remanded for a hearing to determine whether Agent Timulty’s handwritten notes should be characterized as a “statement” for purposes of the Jencks Act. It should be recognized that a determination by the trial court — which was absent here — that the notes in question constitute a “statement” within the language of the Jencks Act dоes not, in and of itself, entitle appellant to a new trial. A new trial will be required only if the court, subsequent to the hearing, concludes that a producible statement existеd and that substantial rights of appellant were affected by the failure to make thаt statement available for his use in cross-examination of Agent Timulty.
Ogden, supra,
On remand we direct the district court, if a new trial is denied, to enter a new final judgment in оrder to preserve appellant’s right to review.
Vacated and remanded.
Notes
. The transcript suggests that it is unlikely that thе notes constitute a “substantially verbatim recital of an oral statement made by the said witness [the DEA agent] and recorded contemporaneously with the making of such oral statement” within the meaning of 18 U.S.C. § 3500(e)(2). (R.T. 52-54).