U.S. v. Feinberg

• Decision Date: 07 June 1974
• Docket Number: 74-1254,Nos. 74-1253,s. 74-1253
• Citation: 502 F.2d 1180
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Bernard FEINBERG, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. John C. THOMPSON, Defendant-Appellee. . Heard
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1180

502 F.2d 1180

UNITED STATES of America, Plaintiff-Appellant, v. Bernard FEINBERG, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellant, v. John C. THOMPSON, Defendant-Appellee.

Nos. 74-1253, 74-1254.

United States Court of Appeals, Seventh Circuit.

Heard June 7, 1974.

Decided Sept. 12, 1974, Rehearing Denied in No. 74-1253 Oct. 15, 1974.

James R. Thompson, U.S. Atty., Gary L. Starkman, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellant.

Joseph A. Lamendella, Elmer Gertz and Wayne B. Giampietro, Chicago, Ill., for defendants-appellees.

Before CLARK, Associate Justice, ¹ CUMMINGS, Circuit Judge, and BEAMER, Chief District Judge. ²

CUMMINGS, Circuit Judge:

These consolidated cases have a somewhat different procedural origin. In Feinberg, pursuant to a motion for a Bill of Particulars under Rule 7(f) of the Federal Rules of Criminal Procedure, the district judge ordered the Government to respond to the following (see 371 F.Supp. at 1208):

1. Whether a written memorandum or verbatim transcript of oral statements made by the defendant to Government agents or third persons exists;

2. Whether the Government has possession of existing memoranda or transcripts;

3. The name and address of the persons to whom the defendant made oral statements;

4. The date on which the defendant made oral statements; and

5. The substance of oral statements by the defendant.

The first four matters are not within the prohibition of the Jencks Act (18 U.S.C. 3500), so that the district judge acted within his discretion in ordering the answers. See Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305; ³ United States v. Rimanich, 422 F.2d 817, 818 (7th Cir. 1970). In fact, the Government's brief only challenges the order insofar as it requires the Government to produce the statements (or the substance thereof) made by the defendant to prospective government witnesses. ⁴ On the Government's motion to reconsider, the district court treated defendant's request as one for discovery under Rule 16(a) of the Federal Rules of Criminal Procedure and again held that such statements were producible.

In Thompson the court granted defendant's motion for discovery under Rule 16(a) insofar as the defendant sought to inspect and copy statements made by him that were contained in statements made by third parties, within the possession, custody or control of the Government. Because of the restrictions of the Jencks Act, we reverse as to such statements in both cases.

In pertinent part, Rule 16(a)(1) permits the district court to order the Government to permit a defendant to inspect and copy or photograph any relevant 'written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government * * *.' The Advisory Committee's notes make it plain that the words 'to the attorney for the government' modify the phrase 'the existence of which is known, or by the exercise of due diligence may become known'. 8 Moore's Federal Practice, P16.01(3) p. 16-5 (2d ed. 1973). Therefore, as held below (371 F.Supp. at 1216), Rule 16(a)(1) is not limited to statements of the defendant made to agents of the Government. United States v. Baker 262 F.Supp. 657, 671-672 (D.D.C.1966); Moore, supra, P16.01(1) p. 16-38.

On the other hand, Rule 16(b) provides in pertinent part that Rule 16 does not authorize the discovery or inspection 'of statements made by government witnesses or prospective government witnesses (other than the defendant) to agents of the government except as provided in' the Jencks Act. Accordingly, it is necessary to refer to the Jencks Act to see if it permits the discovery of defendants' statements made to prospective government witnesses (371 F.Supp. at 1212).

In pertinent part, the Jencks Act provides (18 U.S.C. 3500(a)):

'In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) . . . shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.'

While we sympathize with broadened discovery in criminal cases, the foregoing statutory provision proscribes pretrial discovery of statements of government witnesses, including those parts which relate conversations of the defendant. Such statements are not producible under 18 U.S.C. 3500(b) until after a witness called by the United States has testified on a subject matter related to the statements. United States v. Wilkerson, 456 F.2d 57, 61 (6th Cir. 1972), certiorari denied, 408 U.S. 926, 92 S.Ct. 2506, 33 L.Ed.2d 337; United States v. Kenny, 462 F.2d 1205, 1212 (3d Cir. 1972), certiorari denied sub nom. Kropke v. United States, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176; United States v. Dorfman, 53 F.R.D. 477, 479 (S.D.N.Y.1971), affirmed, 470 F.2d 246 (2d Cir. 1972). The Commentary of the American Bar Association's Advisory Committee on Pretrial Proceedings does not discuss the question although its report acknowledges other hurdles presented by the Jencks Act. See ABA Standards Relating to Discovery and Procedure before Trial (1969), pp. 58-59, 62. United States v. Duffy, 54 F.R.D. 549 (N.D.Ill.1972), dealt with a quite different, though possibly overlapping, discovery request, so that it does not support defendants.

As noted in Dorfman, in excluding pretrial discovery of oral statements made by defendant to prospective government witnesses, Congress was endeavoring to protect the security of those witnesses. Prohibiting the disclosure ordered here until the witness has testified at trial also protects the integrity of the Government's evidence. Probably these same factors motivated the draftsmen of proposed Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure (presently scheduled to go into effect on August 1, 1975) to limit pretrial discovery to the 'substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent' (62 F.R.D. 304-305). Since the proposed rule was intended to give 'greater discovery' than before (62 F.R.D. 308), it strongly reinforces our holding that the present rule does not permit the discovery sought.

As the district judge intimated, any statement of the defendant in the Government's possession involves at least an implicit statement of someone else-- if only the stenographer-- that the defendant made the statement attributed to him. 371 F.Supp. 1213. This does not mean that we are overruling past decisions permitting the defendant to discover his own statements. There may be line-drawing problems, but the guiding principle is fairly clear. A defendant's statement is discoverable when it or an account thereof is 'written or recorded' (Rule 16(a)(1)) promptly after the statement is made. Where a written record is contemplated when the statement is made and an account of the...