*3 McLAUGHLIN, Before GANEY and Judges. FREEDMAN, Circuit OF THE COURT OPINION Judge/ GANEY, Circuit Defendant-appellant was convict having 472 of Title ed for violated § post-trial mo alternative U.S.C. His judgment acquittal for tions sen denied and new trial were years imprisonment. On tenced to four appeal he claims the indictment allege it failed to defective because he knew the Federal Reserve notes were therefore, and, the court counterfeit1 denying “judg erred his motion acquittal”. ment of (C.A.2, 1965). course, F.2d 661 is essential 1. Of (C.A.6, 1965). Releford, Brown, conviction. pertaining indictment reads: to the matters about which testified. The first contained day May “On or about the 14th letter, September 11, dated ad- Township, 1964 at Edison the State Attorney dressed to the United States Jersey, New and District of Jersey at New- District New Joseph Meisch John a case ark. second was defraud, possess, with intent May 26, 1964, Szpak to his dated sent pass, sell to Leonard Vec- utter and Washington, superiors D. Defense C. forty-three (43) chione counterfeited sought permission counsel * * * ($10.00) ten dollars Federal statements, pursuant see both * * *. Reserve notes Act, (b) of the Jencks subsection U.S.C., “In of Title 18 violation judge, 3500(b)2 U.S.C.A. § added.) (Emphasis Section 472.” reading letter, directed after place coun- it at defense *4 appellant’s The short answer pertinent disposal, did. sel’s which he phrase claim is that the “with intent heading part, the the letter under stated defraud” includes a “Details of offense”: part on the the the defendant notes were counterfeit. Rua v. United 14, 1964, Special May On or about States, 321 F.2d 140 acting Agent Vecchione, in an Leonard capacity, met defendant undercover Appellant a number of rea- sets forth parking the area of Meisch at the why, estimation, sons in his the district Edison Town- and Bottle Bar in Cork court refus- committed reversible error in meeting, ship, N. As a result J. ing grant Foremost him a new trial. F R $10 Meisch sold counterfeit among judge’s these is the trial refusal (Exhibit A) A Vecchione *5 subject Szpak’s to of the matter report However, case is the stand. the mony deleted, appellant to for his the matter. There information another was use at the trial not harmless error. specifically related in which McCarthy, United 301 F.2d States v. subject Szpak’s testimony. In of matter about contacts to information addition complains appellant about informant, William C. with an judge’s of admonition in the midst Jr., coincide his testi- did not with regarding attorney’s the trial his use of May mony, 14th re- of were the events September 11, 1946, in the letter of Szpak substantially by ported told as cross-examining Szpak. The trial and, expected, in as the witness stand jury letter, containing told the that greater letter. than in the detail happen but six lines reference to ings not, any May in of did Szpak’s testi fact wise, propose spell to out the details revealing mony than the more day. fair event of that This was for reason is not a valid comment on the shown to the document This permit it. to see defense to eminently jury, proper. and was under the statute. the test is not judge overstep Nor the trial delivery requiring de purpose of propriety questioning in his bounds of re prior “which of a statement fendant while was on the wit- as to which matter lates to the ness stand. solely to is not has testified” witness obtaining in There was no error infor provide him a means of permit appellant by divulged testi court’s refusal the witness’s mation opportunity introduce into evidence the official record give mony, him but pertaining arraign pur to the indictment and for trial deems fit it as he to use may in ment of Barker who was statements poses. “[W]hether by impeachment not called either side. but as witness purposes of useful be course, appellant, prosecution, rests, It not the a decision which is brought jury to the attention himself.” Scales defendant Szpak’s 203, 258, Barker on conversations with States, cross-examination, impeach apparently (1961). In 1469, 1501, L.Ed.2d 782 credibility, though appellant ob- even Campbell 373 U.S. v. United any personal jected on direct such conversations wise was a statement knowledge. examination. Appellant the actions of asserts appellant questions, As to attorney, prosecuting re- in three they claims framed as to insinu were so prejudicial. complains spects, He were prior ate deal was involved opening made in statement ings money or associated with counterfeit during

jury, made summa- a statement ques with known counterfeiters. These tion, questions a witness asked of by prosecution in tions were asked prosecution. anticipation entrapment. of a defense of statement, opening Nevertheless, questions were stricken attorney “And said: by the trial admonished you convinced, I am as am sure will Assuming disregard them. you hear the be when evidence appellant might prejudiced have been you, presented there will be questions, they those we believe should Meisch, defendant, question repeated in the next trial unless be charged.” crime appellant raise indicates that he will construed a statement could not be that defense. espe personal deemed to be objectionable Berger cially brings Appellant our judge’s attention the trial instruction Here, L.Ed. 1314 state presumed “witness guilt appellant ment of belief may speak presumption the truth but this attorney prosecuting was stated outweighed by the manner in which pre upon to be to be the evidence based testifies, by the character of witness sented. contradictory testimony given or The statement in his summation say perhaps It safe to evidence.”3 concerning why the arrest of speak majority the vast of witnesses made three months after the events jurors the truth and that are aware charged indictment was as follows: author this. But we have not found an *6 testimony why they “You remember case, has cited itative They for three months. were waited casting tendency none, human na sense, checking him That makes legal out. presumption ture into in a crim a me.” like- doesn’t it? It does to jury.4 tried to a In addition inal case appear portion in that California, 1, (D.C.N.D.Cal. These words F.R.D. 4 5 charge by ver- the Court and followed 1933). cases, In two the court stated batim, (Credi- instructions number 3.01 Wong Chong law. Kam was a rule of bility Discrepancies (9 in Tes- States, 707, 111 Witnesses — v. United F.2d 711 timony) appearing Judge 1940) William C. and Wichman Allis Chalmers Cir. helpful suggested “Jury Instruc- Mfg. Co., F.Supp. 857, (W.D.Mo. Mathes’ 117 860 and for 1954). deportation tions Forms Federal Criminal The first case Cases,” appearing ques- F.R.D. 67-68 proceeding testimony 27 in which the (1961). helpful In a more recent volume given immigration an tion of- printed by publishers of Federal Rules ficer. The second involved civil action judges practitioners, Decisions and jury. tried to the without a wording changed “Ordinarily, has commenting been about a witness’ knowl- speak it is assumed that a witness will edge, Wigmore says: Jury Devitt, truth.” Mathes and Federal obviously impossible speak “It (1965) and Practice § Instructions 72.01. accuracy ‘knowledge’ with of a witness’ Compare 98 C.J.S. 459 § Witnesses principles as that which the of (1957) Am.Jur., Witnesses, with 58 861 § require. mony If the law received as (1948). offer, absolute what he had to charge proceeding only 4. A in a federal criminal then one witness would be needed containing matter; any an instruction that a witness on one for the fact asserted presumed speak thing the truth is set forth would be demonstrated. When a (by in United States v. Dried Fruit Ass’n of is known a tribunal or other decid- 774 right 308, 243, derrogating jury’s 283, 49 482 25 from the sole L.Ed. witnesses, judges credibility (1905). trial are aware that We to determine charge presumption shaping a wide discretion in this rule conflicts have Attempts particular But there to fit a case. here of a defendant. innocence necessity protective “Allen cloak have been was no for the so-called to shorten this Charge”. See, for exam- The indictment contained nullified the Courts. States, single count, complex.

ple, was not v. United Morissette Only 96 L.Ed. two called in 72 S.Ct. witnesses were States, (1952); Reynolds testimony case and was brief and v. United their 1956). testimony point. Szpak’s direct 16 Alaska pages quoted approximately covered The words also clashed charge proof. regarding transcript, the burden took while Vecchione’s 7% appellant pages. take the stand The of these same Cross-examination any required pages on behalf. or offer witnesses witnesses 38% jury respectively reproduction. jury Under circumstances required they supplemental were have concluded that did not ask for instructions prosecu- accept as in Shaffman v. United tion’s at face value since F. witnesses its 374-375 Nor purpose. other witnesses. it recalled not contradicted the court for retried, judge, If the is ever is to trial Since the matter be remanded to charge jury, may in- in his should not district new court and there be a proposition trial, judge pre- wit- clude therein we think the trial presumed speak any truth. ness sides trial should omit refer- Charge” ence to the “Allen unless the charged proof are dif- circumstances of much juror listen “A should thus: ferent from that of the first trial. jurors and fellow with deference contends that judgment if he with distrust of his own charge large jurors erred in majority take finds arise from reasonable doubt could or she different from that which he view a lack or failure of evidence. We on takes.” This instruction was based the instructions examined the Allen what was said adequate give 501-502, on reasonable doubt were understanding Also, an what 154, 41 L.Ed. concept judge need fol- The trial is. States, 196 U.S. Burton v. United opportunity ob- shall have had er) be, is; would and that *7 serving happened or and what was what inquiry. end of directed attention or ob- shall have his “Hence, be assumed cannot witness things; This is far law, servation to the matter. as beforehand, to the know go. as can the law that it he thinks the assume is most can upon “Accordingly, the rules the sub- the assumes that law he knows. ject concerned, hand are all particular in truth some is of matter strictly knowledge, but with the witness’ complexion, to but also realizes observing opportunities complexion his what its real of is determine * * * may and actual observation. to listen vari- the have to tribunal tests, then, practical de- and the persons; “The of of some ous the statements rules, concerned reject, tailed are strictness it will and these will others and not with Knowl- accept. with Observation edge. Nevertheless, “Nevertheless, persons as the aim ultimate the to from all method, may gives to often name will listen law the tribunal will whom roughly sufficiently, said, require qualification attempt be to some listening qualification involved is Knowl- here will them worth which make distinguished edge, presume as from to least determine to. It will —at Sanity, Experience, quali- other which witness correct— beforehand capacity Wig- knows, really know.” 2 to it will fications i. one e. which —but Ed.) (3rd § more Evidence be one offered shall ask that each one know, short, likely ‘prima to facie’ —in against side, precise words an inference either ritual and use the low some informing strength the relative each inference de- found in other decisions pended jury point. v. on the at United States circumstances adduced on this Schireson, Appellant A.L.R. the trial. was not harmed 116 F.2d 1941). these instructions. 1958). Jackson, (C.A.3, charge request as 257 F.2d 41 not err in Caruso, 358 ed. See States Accordingly, judgment of the dis- 186-187 trict court will be reversed and the cause remanded for a new trial. Appellant complains charge govern- court’s refusal FREEDMAN, Judge (concur- Circuit produce ment’s failure a witness ring). possessed knowledge facts and of relevant “gives infer- who is available rise [an] convincing opinion I concur in against government that such ence reversing judgment the court testimony unfavor- awarding evidence or be would is to new trial. there Since government.” informant, able to the trial, however, be a we new believe accompanied had express disapproval should now our place later sold where statement of Assistant United Barker counterfeit bills to Vecchione. Attorney, equivalent I read as position witnessed was not in to have of an assertion convinced during the transaction. He was in court produced evidence that would the trial but as a witness. was not called defendant was gave op- charged.1 The court defense counsel By crime this assertion the portunity privately to converse prosecutor placed jury’s scales into advan- Barker. The former did not take deliberation the belief rath- merits of his tage opportunity. of this Nor was weight er than the of the evidence.2 prevented in summation from com- practice frequent It has become a menting upon prosecu- the fact counsel in cases civil as well as criminal tion did not call Barker witness. to tell their conviction Usually merits of their client’s cause. given, charge) set The court’s improper suppress it is difficult general forth the rule that the failure they uttered statements the time are bring before the committing great- without the risk of upon witness who could elucidate case, injuring er harm of the client’s facts seems to indicate that it fears general relief must be for some reserved call that witness and this fear some discussion in the on the court’s would evidence that if called witness role of counsel. exposed to the facts unfavorable party. judgment Then the trial went on In the case the exceptions add being there were conviction is and a reversed new general rule, being one the inference trial awarded. In this circumstance we fairly opportunity cannot be drawn from the non- should not lose the to declare production guidance of a witness whose of the bar in future superior others’, would not be and that cases and on the retrial of this case that potential improper another was where a witness such statements are and should *8 sides, aggravated in court and available to both not be The evil is made. produce open failure to that witness is where the statement comes from the language, prosecutor’s in made 2. On the of such statements see opening (4th “And I am con- statement reads: Sharswood’s Professional Ethics ed. vinced, you 1876), pp. seq.; Appendix, I as am will be when sure 99 and et you presented seq. discussing pp. hear the and it evidence 183 et the conduct of you, question Phillips that there will be Charles in Courvoisier’s case. See defendant, Meisch, that of Amer. is Bar Assn’s Canon 15 of charged.” the .crime Ethics. Profess. 776 government's attorney, acts, taining as the counterfeit also in- bills was Supreme Berger properly Court said in troduced into evidence and package by U.S. S.Ct. Vecchione identified as repre- (1935), purchased L.Ed. 1314 “not from the defendant [as which was ordinary night only party May of an re- sentative] of 14th. The on the controversy, sovereignty port by Agent but of a whose which made

obligation govern impartially upon is as com- which testi- dealt matters with pelling obligation govern all; given as its and his counsel fied was testimony defense challenged. interest, therefore, way whose in crim- in no other was inal is it shall win supplied alone The Vecchione evidence case, justice but that done.” shall be requisite proof uphold the convic- charged All in tion. the elements by brought indictment were forth Judge (dis- McLAUGHLIN, Circuit by testimony up it was oral senting) backed . real of the counterfeit bills. evidence respect, With due it me that seems to is that Vecchione’s What decisive here majority opinion its zealous effort in strength testimony of uphold the Jencks Act has miscon- prove beyond doubt a reasonable purpose ceived the of that statute. true charged elements the crime without The Jencks Act never intended to supporting the need of witnesses. apply admittedly to the harmless error is the doctrine The above conclusion which occurred here. The uncontradicted Rosenberg States, 360 U.S. tight facts and a consideration (1959), L.Ed.2d testimony whole show that the where landmark Jencks Act decision Agent Szpak, upon re- which relied the F.B.I. letter to witness had written a versal, is de minimis the situation be- memory stating that she feared her unimportant fore us. His evidence was poor, the the events issue would required proofs for conviction be- nonproduction of Court found cause that same was included in evidence testimony letter, though a violation by the full trial detailed at the only Act, harmless Jencks amounted Agent Vecchione. The latter was the re- information was error since the same agent with the defendant talked whom by state- vealed to defendant’s counsel and to whom defendant sold the counter- under cross- ments made the witness money. Szpak merely feit an ob- upon questioning examination meeting server of that from across the judge. street. Meisch, defendant, appeal was indicted all the information Szpak report under the de- 472 of Title 18 U.S.C.A. revealed to Section “uttering obligations Agent Szpak witness counterfeit from the or fense particularly securities.” A under I stress that conviction Section stand. do requires prove testimony gave Szpak 472 beyond defense the Government report. a reasonable the de- in the doubt that more information than was lone, insig- passed fendant the intent out the one notes with do point complained connection defraud and with that the nificant item counterfeit, “in- report notes are with the contained Carll, (1881) ; in- 26 L.Ed. 1135 formation about contacts Barker, Jr., Litberg, formant, United States v. F.2d 20 William C. 1949). Agent [Szpak’s] Vecchione testified coincide with his did not * * * affirmatively appears mony, that he met defendant on the night May 14,1964, been advan- defendant could have pointed Szpak tageously impeach package con- out which contained used cerning events about counterfeit bills that the defend- * * *9 (Em- money informant, ant *.” told that the “queer” (counterfeit). package phasis supplied.) issue con- The definitive pected appeal to it which whether there evidence this guilt beyond attempted prove on would attack the defendant’s have been some giving credibility by way profes- Agent Szpak’s his his reasonable doubt. In Szpak’s proofs report. question sional view of the Assistant Our is whether “ * * * unimportant Attorney way to United in no de- States conviction;” parted duty proofs necessary to it his overall strongly urge justice Rosen- I dissent in be done. Mr. Justice Brennan’s berg proposed States, supra, comment which cannot but very unwarrantably supplied). The (emphasis at the least confuse S.Ct. 1237 confronting very judges, problem us was our district be same withdrawn. Ap- Eighth before the peals Circuit Court Lewis v. United There the agent Hill, Charles an undercover improperly Bureau of Narcotics was p. ruled 684:

withheld. The court light “In the above uncontradict- trial, appellant’s

ed facts established at the whole and from a consideration of INTERSTATE GAS COM- COLORADO before'us, record think District we PANY, Petitioner, relation conduct in Court’s action and here of error to the Jencks Act claim v. only and deem-

made can considered COMMISSION, FEDERAL POWER guilt Appellant’s ed to be harmless. of in Respondent. against him as made indictment, counts IX XII PIPELINE COMPANY NATURAL GAS Petitioner, AMERICA, supra, beyond OF rea- established competent testimony sonable doubt given by other than that Witness COMMISSION, POWER FEDERAL (Emphasis supplied.) Hill.” Respondent. Mr. Justice Frankfurter’s conclusion appli-

Rosenberg, categorically supra, is LINE EASTERN PIPE PANHANDLE p. appeal. on COMPANY, Petitioner, cable to He said U.S., p. opinion thing as of 79 “There is such a COMMISSION, POWER FEDERAL clearly such.” harmless error and this Respondent. light In admitted facts Nos. governing suggest it is a law Appeals States Court United lawfully grievous mistake reverse this Circuit. Tenth erroneous established conviction on theory 9, 1967. Jan. doing Act that in the Jencks so being upheld. concurring expresses dis- opinion approval of the Assistant Attorney’s statement to jury heard when the

was convinced that presented the evidence saw question de- but that

“there will be

fendant, Meisch, the crime effect,

charged.” the Assistant Attorney ex- that he told the notes S prosecution to direct the to deliver to the Funds. in official Government $65 appellant report. a secret-service case by Special sale was covered report government was made Mullady. Agents Szpak B. J. C. M. agent who testified at the trial. We conclude that the refusal was reversible cross-examined Defense counsel then warranting granting error of a new bringing Szpak purpose home trial. complete- the letter May ly of the details of the barren Only witnesses, being two both of them Szpak testified had occasion about which special agents of the United States Se- evident, we examination. It is on direct Service, against appellant cret testified think, notation in the brief prosecution. at the trial on behalf of the detailed dis- not meant to be a letter was Szpak; The first was M. Casimir May Szpak observed on closure of what Vecchione, per- other was A. Leonard correctly 14, judge so ad- and the trial son named in the one indictment as the jury. monished the appellant to whom sold the counterfeited Szpak ten-dollar notes. he testified that report case not in court witnessed transaction between Vec- being Szpak cross-ex the time appellant May 14, 1964, chione and on amined, defense counsel reserved vantage point sixty way. feet right to recall and further cross-examine During Szpak, report. cross-examination defense had read the him after the testifying, defense counsel learned from him that had finished When Vecchione government he had produced made two written statements provides: “(b) subject 2. This subsection After matter as to which relates witness called has witness has testified. If the which the examination, testified on shall, any direct court entire contents such statement re- defendant, motion of the order late to the matter of the produce any witness, the United States to state- the court shall order (as defined) directly ment hereinafter of the wit- be delivered to the defendant for possession in ness of the United States his examination and use.” alia, 497, 13, 1356, containing, copy 10 L.Ed. file inter a carbon footnote 83 S.Ct. 26, 1964, 501, Supreme May pointed report 2d Court out the case dated signed copy States, by Szpak, under Jencks and a carbon v. United 657, 677-678, September 11. After the trial U.S. letter of showing papers 1103, L.Ed.2d of inconsist- examined all in nothing file, ency prerequisite production saw as a he remarked that he unnecessary. was en- documents them to defense counsel already have, since F.2d 678 titled that did not Lewis v. United original (C.A.8); Prince, 264 Aside from had the letter. Nevertheless, (C.A.3). report, papers in the the other earlier, pertinent in- been indicated affirmative- file to the issues has were not ly appears and, therefore, had volved right production. advantageously to their Since defense been used the defense concerning given original Szpak impeach had let- counsel been ter, mony informant,. err events about copy accompanied order that the be turned him. over Rosenberg parking and Bottle area of the Cork Township. Bar The refusal Edison 3 L.Ed.2d 1304 prosecu- of the trial to direct nothing re- There was May 26, report, tion to deliver maining papers the sub- which related to portions with such not relate which did Szpak ject testified on as to which had