Goldberg v. United States

• Decision Date: 30 March 1976
• Docket Number: No. 74-6293,74-6293
• Citation: 47 L.Ed.2d 603,425 U.S. 94,96 S.Ct. 1338
• Parties: Philip J. GOLDBERG, Petitioner, v. UNITED STATES
• Court: U.S. Supreme Court

425 U.S. 94

96 S.Ct. 1338

47 L.Ed.2d 603

Philip J. GOLDBERG, Petitioner,

v UNITED STATES.

No. 74-6293.

Argued Jan. 14, 1976.

Decided March 30, 1976.

Syllabus

During the course of petitioner's criminal trial, the chief prosecution witness (Newman) indicated on cross-examination that on certain dates he was interviewed by Government lawyers who took notes relating to Newman's forthcoming trial testimony, and that Newman verified the accuracy of the notes. Petitioner thereupon moved for production of the notes pursuant to the Jencks Act, 18 U.S.C. § 3500, which provides that in a federal criminal prosecution after a witness called by the Government has testified on direct examination, the court on the defendant's motion shall order the Government to produce any "statement" in its possession that relates to the subject matter of the witness' testimony. In relevant part a "statement" is defined as "a written statement made by said witness and signed or otherwise adopted or approved by him." § 3500(e)(1). The trial judge denied petitioner's motion on the ground that the material was "the work product of counsel" and declined to inspect the material In camera. The Court of Appeals affirmed on the ground that the notes were not statements of the witness within the meaning of § 3500(e). Held:

1. Any writing prepared by a Government lawyer relating to the subject matter of the testimony of a Government witness that has been "signed or otherwise adopted or approved" by that witness is producible under the Jencks Act, and the writing is not rendered nonproducible because a Government lawyer interviewed the witness and wrote the statement. Pp. 101-108.

(a) Nothing in the language or legislative history of the Jencks Act excepts as a lawyer's "work product" a statement within the definition of a producible statement. Pp. 101-102.

(b) Nor is the Act limited to statements made to an investigative agency as distinguished from prosecutors preparing for trial. Though the Government's argument to the contrary is based on the asserted unfairness of allowing defense counsel to impeach a witness by a statement that is the product of the attorney's selections rather than his own, the writings are producible only if they meet the terms of the statutory definition the Act itself protects witnesses from this unfairness; and it also safeguards the primary policy of the work-product doctrine by protecting the privacy of an attorney's mental processes. Pp. 102-106.

(c) Production of statements within § 3500(e)(1) and written by Government lawyers will not force such lawyers to testify at trial. Moreover, there is a clearly legitimate purpose for the statutory disclosure, I. e., furtherance of "the fair and just administration of criminal justice," Campbell v. United States, 365 U.S. 85, 92, 81 S.Ct. 421, 425, 5 L.Ed.2d 428, 434 (Campbell I ); lawyers will not become witnesses, since statements are producible only where they can fairly be said to be the witness' own; and defense counsel will have no right to call Government lawyers to authenticate their notes. Pp. 106-107.

2. In the circumstances of this case, the Court of Appeals erred in making the initial determination that the writings in question were not producible statements. Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 1360, 10 L.Ed.2d 501, 506 (Campbell II ). Pp. 108-111.

(a) Newman's testimony was sufficient to call upon the trial judge to conduct an inquiry into the producibility of the material. Such an inquiry is now required to determine whether petitioner's Jencks Act motion should have been granted. Campbell I, supra, 365 U.S., at 98-99, 81 S.Ct., at 428, 5 L.Ed.2d, at 438. Pp. 108-110.

(b) It is not necessary for this Court to vacate petitioner's conviction and order a new trial, since petitioner's rights can be fully protected by a remand to the trial court for an inquiry into the producibility of the material, the supplementing of the record with findings, and the availability of appellate review should the trial court decide that a new trial is not required. Pp. 110-111.

Vacated and remanded.

Donald C. Smaltz, Los Angeles, Cal., for petitioner.

Paul L. Friedman, Washington, D. C., for respondent.

Mr. Justice BRENNAN delivered the opinion of the Court.

This case presents important questions of construction and administration of the Jencks Act, 18 U.S.C. § 3500.¹ That statute provides that in a federal criminal prosecution, after a witness called by the United States has testified on direct examination, the court, on motion of the defendant, shall order the United States to produce any "statement," as defined in the Act, in the possession of the United States that relates to the subject matter as to which the witness has testified. The definition of "statement" in § 3500(e) pertinent to this case is: "(1) a written statement made by said witness and signed or otherwise adopted or approved by him."

At petitioner's trial in the District Court for the District of Arizona on charges of mail fraud in violation of 18 U.S.C. § 1341, the trial judge sustained the Government's contention that certain writings of Government lawyers of conversations with the Government's key wit- ness were "the work product of counsel," although the judge had not examined the writings. The Court of Appeals for the Ninth Circuit affirmed but on a different ground. In an unpublished memorandum opinion the Court of Appeals stated: "Apart from the question whether such notes were exempt from the Jencks Act . . . as 'work product,' they were not statements of the (witness) within the meaning of § 3500(e)." ² We granted certiorari limited to the Jencks Act question, 422 U.S. 1006, 95 S.Ct. 2627, 45 L.Ed.2d 669.³

We hold that a writing prepared by a Government lawyer relating to the subject matter of the testimony of a Government witness that has been "signed or otherwise adopted or approved" by the Government witness is producible under the Jencks Act, and is not rendered nonproducible because a Government lawyer interviews the witness and writes the "statement." We hold further that in the circumstances of this case the Court of Appeals erred in determining in the first instance that the writings in question were not "statements." We therefore vacate the judgment of the Court of Appeals and re- mand the case to the District Court for further proceedings consistent with this opinion, following the procedure in Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961) (Campbell I ).

I

Petitioner, with Edwin S. Newman and three other codefendants, was charged in a multiple-count indictment with using the mails to defraud by means of a fraudulent scheme, which may be briefly summarized. The Financial Security Life Insurance Co., of which petitioner was president, issued single-premium annuities to various individuals; the policies purported to be fully prepaid and were used as collateral for loans. Promissory notes were accepted in lieu of the premiums, and interest on the notes was the only money paid to the company. Further, the policies were misrepresented as being free of liens or encumbrances. In fact, the policies were valueless. Petitioner concealed these facts from lenders who accepted the policies as collateral; indeed, the company refused payment of the proceeds of the policies to the lenders upon the ground of nonpayment of premiums. The three codefendants were charged with using the annuities as collateral to obtain loans. Petitioner used these "sales" of annuities to inflate the assets of the company on paper, intending eventually to sell the company.

Of the five defendants, only petitioner and Newman worked for the company. Newman agreed to plead guilty to a single count of the indictment and to testify as a Government witness. Thereupon his case was severed prior to petitioner's trial.⁴ He was the key prosecution witness, revealing in great detail the operation of the fraudulent scheme and the transactions al- leged in the indictment. Newman signed all of the correspondence with lenders, but testified that at all times he acted pursuant to instructions from petitioner. The Government's case against petitioner consisted primarily of Newman's testimony.

Prior to the trial, which covered seven weeks starting May 22, 1973, the Government delivered to petitioner a copy of Newman's testimony before the grand jury, a memorandum of an interview with Newman conducted by a postal inspector over three years earlier, and a reporter's transcript of an interview with Newman conducted by two Government lawyers on May 11, 1973. The May 11 transcript indicated that the lawyers intended to conduct further interviews with Newman concerning other transactions. At the trial, on cross-examination on June 27, Newman disclosed that he had met with the lawyers on May 13, June 9 and 10, and part of each day from June 16 through June 27. Unlike the May 11 meeting, no reporter was present. Newman's forthcoming trial testimony was the subject of the discussion, but the notes of the interview were handwritten by the lawyers. Significantly, however, Newman testified, speaking of the May 13 interview:

"Q. And as they took notes, did they sometimes question you about what you had just said to make sure that they got it down correctly?

"A. They may have. I don't really remember that that was part of the pattern."

And again, speaking of the June 9 and June 10 interviews, Newman testified:

"Q. As you were explaining or discussing your testimony, did anyone take notes?

"A. The two gentlemen took notes.

"Q. Were they occasionally read back to you to see whether or not they correctly understood what you were saying?

"A. Probably from time to time.

"Q. All right, sir. Did you either correct them or say, 'Yes, that's right,' or 'No, that's not right because it went this way, I believe,' words to that effect?

"A. Yes, that would happen."

Finally, he described this...