U.S. v. McSweaney

• Decision Date: 12 November 1974
• Docket Number: No. 74-1983,74-1983
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lincoln Calvert McSWEANEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 298

507 F.2d 298

UNITED STATES of America, Plaintiff-Appellee, v. Lincoln Calvert McSWEANEY, Defendant-Appellant.

No. 74-1983.

United States Court of Appeals, Ninth Circuit.

Nov. 12, 1974.

David J. Philipson (argued), Los Angeles, Cal., for defendant-appellant.

Tom Crowe, Asst. U.S. Atty., Phoenix, Ariz. (argued), for plaintiff-appellee.

Before MERRILL, BROWNING and INGRAHAM, ¹ Circuit Judges.

OPINION

PER CURIAM:

Appellant was convicted of bringing into the United States two aliens not lawfully entitled to enter (Roland Robinson and Roland's sister), in violation of 8 U.S.C. 1324(a)(1) and (4) and 18 U.S.C. 2, and for conspiracy to commit the substantive offenses. 18 U.S.C. 371.

Roland Robinson testified for the government. Appellant contends that the district court erred in refusing to order disclosure under the Jencks Act of statements made by Robinson to government agents.

Under the Jencks Act, 18 U.S.C. 3500(e), the government is required to produce 'writings signed or adopted by a witness and . . . accounts which are 'a substantially verbatim recital' of a witness's oral statements.' Wilke v. United States, 422 F.2d 1298, 1299 (9th Cir. 1970). There is no evidence that Robinson 'signed or adopted' any writings. He did testify, however, that on two occasions he was interviewed by government agents who took notes.

The first interview was conducted after Robinson had been taken to the secondary inspection area at the border. Other testimony established that Robinson was interviewed at this point by Immigration Inspectors Holmes and Gurble. The government argues that certain notes taken by an Inspector Quick did not constitute a statement discoverable under the Jencks Act. It is clear that appellant is not seeking discovery of these notes. Quick was the Customs inspector on duty when Robinson attempted his illegal entry, and it was he who directed the automobile in which Robinson was a passenger to the secondary area for further inspection. Robinson testified that the first occasion on which he was interviewed by a government agent who took notes was after he had been taken 'in the back' at the border crossing. The government has not discussed this interview in its brief.

The second interview was conducted by Inspector Cabasos with both Robinson and his sister present. A copy of the interview report was provided to McSweaney and his counsel. It states that Robinson's sister did most of the talking, Robinson merely agreeing with her, and that no separate statement was taken from Robinson.

Appellant argues that this case is controlled by the holding of Ogden v. United States, 303 F.2d 724, 736-737 (9th Cir. 1962), that testimony that a witness was interviewed by a note-taking government agent presents a prima facie showing of the existence of a producible Jencks Act statement, and when such a showing has been made it is error to deny defendant's motion that the government produce the notes, or an explanation, on the basis of the government's unsupported assertion that the notes are not available.

The report produced by the government provided an adequate basis for the district court's conclusion that Inspector Cabasos did not take a Jencks Act statement from Robinson at the second interview. However, the note-taking at the first interview has not been sufficiently explained. Accordingly, the case must be remanded to permit the district court to determine whether a Jencks Act statement was in fact taken at the first interview and, if so, what has become of it. A new trial will be required only if the court concludes that a Jencks Act statement was taken from Robinson at the first...