United States v. O'BRIEN, 18516.

Decision Date27 May 1971
Docket NumberNo. 18516.,18516.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Patrick Joseph O'BRIEN, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Max Cohen, Cohen, Delph & McKenna, Gary, Ind., for defendant-appellant.

William C. Lee, U. S. Atty., John R. Wilks, Asst. U. S. Atty., Fort Wayne, Ind., for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, PELL and STEVENS, Circuit Judges.

HASTINGS, Senior Circuit Judge.

Defendants Patrick Joseph O'Brien and George R. McMahon were charged in a four-count indictment with violation of Title 18, U.S.C.A. §§ 1952(a) (3) and 2, the interstate travel in aid of racketeering act and the aider and abettor act. The four counts charged separate but identical violations by interstate travel from Chicago, Illinois to East Chicago, Indiana for the purpose of carrying on "a business enterprise involving gambling" in violation of Indiana criminal statutes on August 12, 13, 14 and 15, 1969, respectively in Counts I, II, III and IV. After a trial by jury, concluded on March 6, 1970, verdicts were returned finding each of the defendants guilty on all four counts.

Defendant McMahon was sentenced to serve three years on each of the four counts, to run concurrently, which sentence was suspended and he was ordered placed on probation for five years. McMahon did not appeal and is not concerned with the instant appeal.

Defendant O'Brien was sentenced to a term of imprisonment for three years on each of the four counts, to run concurrently, six months to be served, the remaining two and one-half years suspended on each of the four counts. O'Brien was ordered placed on probation for a period of five years to begin after his release from the institution. O'Brien has appealed from the final judgment of his conviction and sentence.

No question is raised in this appeal on the sufficiency of the evidence to convict. The only charged errors relied upon for reversal concern rulings by the trial court in denying defendant's motions to produce certain statements pursuant to the so-called Jencks Act, Title 18, U.S.C.A. § 3500.1

It is conceded that the evidence adduced by the Government clearly established that defendant O'Brien operated a bookmaking establishment at Riley and Dickey Roads in East Chicago, Indiana on the four occurrence dates charged in the indictment, i.e., August 12, 13, 14 and 15, 1969. Defendant McMahon was a brother-in-law of O'Brien and on the four dates charged traveled from Chicago, Illinois to East Chicago, Indiana, to O'Brien's bookmaking establishment to aid and assist him in the operation of the illegal activity. The Government established the charged violations through the direct testimony of several agents of the Federal Bureau of Investigation.

The testimony of the several FBI agents on direct examination related solely to their investigation of the specific offenses charged in the indictment and was limited to events that took place on August 12, 13, 14 and 15, 1969. On cross-examination facts were elicited showing that certain of the agent witnesses had been conducting a continuing investigation of each of the defendants prior to the dates alleged in the indictment and previous to the time discussed on the direct examination of the witnesses. It was further shown on cross-examination that reports had been made of their investigation, surveillance and observations of defendants and the operation of the bookmaking establishment and that such reports were in the possession of the Government.

Timely motions for production of these statements were made by defendants under § 3500, supra. The Government, without objection, produced and delivered to defense counsel all statements made by each of the agent witnesses concerning the events to which they had testified occurring on August 12, 13, 14 and 15, 1969.

The Government objected to the production of statements made by the agent witnesses relating to times earlier than those alleged in the indictment other than those testified about by the individual witnesses on their direct examination. Counsel for both sides and the trial court were well aware that such earlier reports were the ones sought and objected to. The objections were grounded on the claim that such earlier reports did not "relate" to the direct examination of the witnesses and were therefore not "producible" under the Jencks Act.

We have examined the record as it pertains to each of the agent witnesses, together with the rulings of the trial court, and shall comment on each of them.

Agent Watson testified on cross-examination that he had never entered the bookmaking establishment prior to August 12, 1969, but had the location under surveillance on several occasions prior thereto over the previous three months. He made the customary 302 reports of his investigation. Over Government objection, the trial court ordered production of all prior statements made by Watson. No error is charged by defendant as to this witness.

Agent Ford testified on cross-examination that he commenced his investigation concerning the bookmaking establishment in March, 1969 and continued it up until the time of August 12 through August 15, 1969. He made 302 reports on the investigation in which he participated. The Government objected to the production of such earlier reports on the ground that they were not pertinent and material in that they did not relate to the direct examination. After a lengthy side bar conference, the trial court sustained the Government's objection and refused to compel production.

Agent Albright testified on cross-examination that he had been assigned to conduct a surveillance of defendant McMahon prior to August 12, 1969. He could not remember the dates but had made such prior surveillance, kept logs of the same and turned them over to the FBI. The trial court sustained the Government's objection to production of the logs and denied production.

Agent Briick testified on cross-examination that he had defendants under surveillance many times prior to August 12, 1969 and kept logs of what he saw which he gave to the FBI. He had testified on direct examination that the only time he ever saw the defendants cross the state line together was on August 8, 1969. The log relating solely to that date was produced and delivered to defense counsel, that being the only occurrence date mentioned. On the Government's objection, the trial court declined to compel production of all other earlier logs.

The 302 reports and logs made by Agents Ford, Albright and Briick, to which production was denied by the trial court, were ordered sealed and made a part of the record.

Agent Whitaker testified on direct examination solely with reference to a search warrant issued in this proceeding on which he made a return August 22, 1969. Such testimony was limited to the search warrant and the information contained therein. On cross-examination Whitaker testified he had received information from a confidential source intermittently from January, 1967 to August 22, 1969 and that it did not directly involve the defendants. Government counsel stated they had no prior knowledge of any such confidential source and had been assured that it had nothing to do with the case at bar. The trial court sustained the Government's objection to the production of any reports concerning the information received by the agent going back to January, 1967 as being too remote, not related to the indictment occurrences and wholly without the area of proper cross-examination. The trial court further denied defendants' motion to seal such reports and make them a part of the record. At this juncture, we pause to conclude and hold that the trial court did not err in its denial of defendants' motion to produce statements made concerning this confidential information. Clearly defendants were bent on a "fishing expedition" when mention was made of a confidential informant. Such reports are not producible being completely outside the scope and unrelated to the direct examination of the witness under the Jencks Act. No authority has been cited and we know of none requiring that they be sealed and made a part of the record in this situation.

Agent Grubert testified on direct examination solely concerning the arrest of defendant McMahon and a search made of his vehicle on August 22, 1969. There was no testimony concerning the occurrence dates of August 12 through August 15, 1969 charged in the indictment. On cross-examination he testified he had made some investigation of defendants in April, 1969 and filed reports thereof. Again, we conclude and hold that the trial court did not err in denying defendants' motion to produce and to seal the reports of such investigation and make them a part of the record. As with Whitaker, such statements were completely unrelated to the direct testimony of the witness.

Finding no error in the rulings of the nonoccurrence witnesses Whitaker and Grubert and the trial court having...

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