United States v. Goldberg, CR-70-517 Phx. WPC.

• Decision Date: 23 August 1977
• Docket Number: No. CR-70-517 Phx. WPC.,CR-70-517 Phx. WPC.
• Citation: 435 F. Supp. 1172
• Parties: UNITED STATES of America, Plaintiff, v. Philip J. GOLDBERG, Defendant.
• Court: U.S. District Court — District of Arizona

435 F. Supp. 1172

UNITED STATES of America, Plaintiff, v. Philip J. GOLDBERG, Defendant.

No. CR-70-517 Phx. WPC.

United States District Court, D. Arizona.

August 23, 1977.

Joseph R. Keilp, Asst. U. S. Atty., Ronald A. Lebowitz, Phoenix, Ariz., for plaintiff.

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

AMENDED MEMORANDUM AND ORDER

COPPLE, District Judge.

This Court's Order filed herein on August 18, 1977, is amended to read as follows, nunc pro tunc:

The Supreme Court remanded this case to determine whether certain writings should have been produced for use by defense counsel at trial pursuant to 18 U.S.C. § 3500, the Jencks Act. This Court was directed to hold hearings, make findings pursuant to the standards outlined in the opinion and enter either a new final judgment of conviction or vacate the judgment of conviction and accord defendant a new trial. Goldberg v. United States, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603. The Court also said:

"By noting some of the issues that must be dealt with on remand — hopefully we have set forth the most significant — we do not intend to limit the remand proceeding. It may be that further issues, heretofore overlooked or raised by evidence adduced in the remand proceeding, will also be presented for consideration." Goldberg, supra n. 20.

The documents involved directly in the remand opinion are:

1. Notes made by Assistant United States Attorney Keilp at interviews with witness Newman.

2. Notes made by Assistant United States Attorney Lebowitz (lead counsel for the prosecution) at interviews with the witness Newman.

3. Notes written by the witness Newman himself.

As to the first and second categories i.e., notes made by the prosecution attorneys, the Court said: "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 ...." 425 U.S. 94, 98, 96 S.Ct. 1338, 1342. And at page 110, 96 S.Ct. at page 1348: "For example, it will be necessary to determine whether the prosecutors' notes were actually read back to Newman and whether he adopted or approved them." (Emphasis added) And in footnote 19, page 110, 96 S.Ct. page 1348, the standard is further clarified:

"Every witness interview will, of course, involve conversation between the lawyer and the witness, and the lawyer will necessarily inquire of the witness to be certain that he has correctly understood what the witness has said. Such discussions of the general substance of what the witness has said do not constitute adoption or approval of the lawyer's notes within § 3500(e)(1), which is satisfied only when the witness has `signed or otherwise adopted or approved' what the lawyer has written. This requirement clearly is not met when the lawyer does not read back, or the witness does not read what the lawyer has written." (Emphasis added)

In further elaboration, Justice Stevens writing and Justice Stewart joining in a concurring opinion said at page 114, 96 S.Ct. at page 1350: "In short, more than relevance to the testimony and approval by the witness is necessary to make a writing a Jencks Act statement. It must first of all be the kind of factual narrative by the witness that is usable for impeachment." And at pages 115 and 116, 96 S.Ct. at page 1350, of the concurring opinion:

"General testimony that some of the notes taken by the prosecutor during a lengthy interrogation were read back to the witness, and that the witness sometimes assented to the prosecutor's version of what he said, would not justify a finding of approval of any particular note. Fairness to the witness demands a much stricter test of approval before he may be confronted with assertedly prior inconsistent statements. . . . Any determination that a portion of the prosecutor's notes is producible must be supported by a finding of unambiguous and specific approval by the witness."

Justice Powell, with whom the Chief Justice joined in concurring with the judgment and in agreeing with Justice Stevens that a prosecutor's notes are producible only upon a "finding of unambiguous and specific approval" of specific notes, added at page 125, 96 S.Ct. at page 1355: "In my view, such a finding depends upon the witness' having approved specific notes with the knowledge that he is formalizing a statement upon which he may be cross-examined."

And lastly, from the opinion at this point, the Court held at page 105, 96 S.Ct. at page 1345: ". . . writings must be produced only to the extent that they are `statements' as defined . . .."

With the above guidelines and standards in mind, this Court held the remand hearing covering a period of four days and has reviewed all the writings at issue. The following will constitute this Court's findings and conclusions in compliance with the remand order.

KEILP NOTES

(Exhibits 1-A through 1-E at the hearing on remand)

The Court has reviewed all these notes and considered the testimony of the witnesses. These are the typical lawyer interview notes and mind joggers including reminders to himself. The evidence is undisputed that these notes were never "read back to or adopted" in any manner by the witness Newman. He never read the notes until they were shown to him immediately prior to commencement of the remand hearing long after completion of the trial. They were never read to him. They were not subject to production at the trial under the Jencks Act. His ambiguous answers at trial are not to the contrary.

LEBOWITZ NOTES

(Exhibit 3 at remand hearing)

These notes are even less a "written statement made by said witness and signed or otherwise adopted or approved by him." 18 U.S.C. § 3500(e)(1). They are almost illegible mind joggers, cryptic, episodic and nowhere truly narrative in form. They include reminders of lines of cross-examination, questions formulated by the attorney for use for witness examination suggested probably by information elicited from Newman during the interview, references to various exhibits to be referred to or re-examined, abbreviated characterization and summaries of the witness' actual comments. They are not "substantially verbatim." March v. United States, 362 A.2d 691 (D.C. C.A.1976). On their face they would not qualify as Jencks Act materials. Further they were never read back to¹ or seen by the witness Newman until he reviewed them for the remand hearing long after completion of the trial. They were not subject to production at the trial under the Jencks Act.

NEWMAN NOTES

(Exhibits 2-A through 2-E at the hearing on remand)

With regard to these notes, they were written by Newman himself and consist of statements of fact, suggested cross-examination questions and lines of cross-examination to be propounded by government counsel to witnesses other than Newman, financial summaries, etc., and constitute in part at least "statements" as defined by 18 U.S.C. § 3500(e)(1).

As to these writings the opinion of the Court, 425 U.S. at page 110, 96 S.Ct. at page 1348 notes:

"The Government, although conceding that these 40 pages contain `statements', argues that they are nevertheless not producible. The Government contends that Newman wrote the 40 pages after completing his direct testimony in order to aid the prosecution's cross-examination of a defense witness, and these are not producible because not in existence at the time of petitioner's motion to produce,18 but the Government admits that these assertions are not based on facts in the record. Any inquiry regarding them is not for this Court but for the District Court on remand." . . ..

Footnote 18: "Another matter for the District Court is the parties' dispute whether there was a proper Jencks request when Newman testified on rebuttal." (Emphasis added)

As Justice Powell noted at page 123, 96 S.Ct. at page 1354, the Act ". . . requires production of `statements' only upon the defendant's motion. See 18 U.S.C. § 3500(b)."

In his cross-examination of Newman during the government's case in chief at trial, defendant's counsel questioned Newman about the interview notes of Keilp and Lebowitz only and requested only their production. He never questioned Newman about notes or statements written by him and never at any time requested production of any such. No request for production of Jencks Act statements was made after Newman's direct testimony on rebuttal.

Exhibit 2-A consists of notes made by Newman as reminders to himself in preparation for his direct testimony in the government's case in chief. These notes were never shown to government counsel although left at the end of the trial with all other papers. Newman was never questioned by defense counsel as to the existence of these notes and no request for production was made. These were never in the "possession" of the government until after the trial was over and there is no evidence the government was even aware of their existence during the trial.

Exhibits 2-B through 2-E were prepared by Newman on his own initiative after his testimony in the government's case in chief, during the defendant's case in chief and before he was called by the government as a rebuttal witness.

Newman contends that while waiting each day in the U.S. Attorney's office he would occupy his time by making the notes and leave them on a table. He never specifically showed them to or discussed them with the government attorneys. The government attorneys testified that they never saw or used most of the notes but simply gathered them up with the total mass of paper in the "war-room" and filed them away at the end of the trial.

While the Court finds this difficult to believe, under the circumstances of this seven-week "paper infested" trial it is not impossible. However, this need not be resolved because defense counsel never requested the production of Newman's own notes and never, at any time, questioned him about...