Indiviglio v. United States

• Citation: 249 F.2d 549
• Decision Date: 05 December 1957
• Docket Number: No. 16440.,16440.
• Parties: Benjamin INDIVIGLIO, Rose Diaz, Veto Giordenello, Anthony Phillip Kolm and Daniel William Mitchell, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

249 F.2d 549 (1957)

Benjamin INDIVIGLIO, Rose Diaz, Veto Giordenello, Anthony Phillip Kolm and Daniel William Mitchell, Appellants, v. UNITED STATES of America, Appellee.

No. 16440.

United States Court of Appeals Fifth Circuit.

October 31, 1957.

Petitions for Rehearing and Motion for Rehearing Denied December 5, 1957.

COPYRIGHT MATERIAL OMITTED

Clyde Woody, William F. Walsh, Bernard A. Golding, Charles W. Gill, Houston, Tex., for appellants.

Gordon J. Kroll, Asst. U. S. Atty., Malcolm R. Wilkey, U. S. Atty., Houston, Tex., for appellee.

Before RIVES and CAMERON, Circuit Judges, and DAWKINS, Sr., District Judge.

Petitions for Rehearing and Motion for Rehearing En Banc Denied December 5, 1957.

CAMERON, Circuit Judge.

The indictment charged that the four appellants conspired with six others also indicted, with four named co-conspirators not indicted, and with other persons to the Grand Jury unknown in violation of § 7237(a), Title 26 U.S.C.A., to commit various offenses against the United States having to do with the possession, importation, purchase, sale and distribution of marijuana, heroin, and other narcotics. Thirty-six overt acts were charged in the conspiracy alleged to have continued from January 1, 1955 to June 3, 1956. The trial extended over about three weeks, and resulted in the conviction of all of the defendants. These four have appealed.

We have carefully read the record of more than 1300 pages and we entertain no doubt as to the sufficiency of the evidence to sustain the conviction of each of the appellants for the conspiracy charged, within the tests laid down in Direct Sales Co. v. United States, 1943, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674; Delli Paoli v. United States, 1957, 352 U.S. 232, 236, 77 S.Ct. 294, 1 L.Ed.2d 278; and Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680.

The appellants, other than Giordenello, have no standing to object to the admissibility of the evidence obtained by the search ruled on by this Court (Judge Rives dissenting) in Giordenello v. United States, 5 Cir., 1957, 241 F.2d 575.¹ The records of various long distance telephone calls were admissible as circumstantial evidence.² The acts of one or more of the co-conspirators, committed after the arrests of certain of the defendants, stand upon a different footing from declarations of co-conspirators, and were relevant as additional proof of the conspiracy.³

We find no reversible error, therefore, in these rulings of the trial court or the others discussed in the briefs. All of the appellants assign as error the denial by the court below of a motion seeking to compel the Government to turn over to them a written statement taken by the Government from one of its witnesses used at the trial. The argument is based upon the decision of the United States Supreme Court in Jencks v. United States, June 3, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103.⁴ The majority of this Court is of the opinion that, under the facts of this case, the court below did not commit reversible error in denying access to the statement.

I.

The point presented to the trial court arose in this way. Adams, a government witness who had given a written statement to Narcotics Agent Finley, was under cross-examination by Attorney Walsh, who represented Rodney H. Peevey, a defendant who was convicted but who did not appeal. The entire evidential basis for the contention of appellants consists of one question by Attorney Walsh concerning that statement, relating solely to the alleged secreting of heroin by him in Peevey's home, and one answer by witness Adams:

"Q. And isn\'t it true that in that statement you said that the transaction regarding the heroin occurred on Keller Street, rather than on Lawndale? A. No, sir."

The jury having retired, Attorney Walsh made an oral motion in these words:

"Now, your Honor, at this time I ask that the Government be directed to produce for inspection by counsel the statement in question made to Mr. Finley on or about the middle of February, for purposes of cross-examination of this witness. I would like further to request the court to direct the United States Attorney to make available to the defense the minutes of the grand jury, to the extent, at least, that they deal with the transaction on Lawndale, to which this witness has now testified."

After brief argument, the Court stated: "Overrule the objection."

Attorney Walsh promptly noted an exception and, after further exchange of views Attorney Golding stated: "My defendant, Indiviglio, invokes a specific exception to the ruling." Thereupon Attorney Woody stated: "For the defendants whom I represent, Mr. and Mrs. Giordenello and Mrs. LaPorte, we join Counsel Walsh in his request * * *."⁵

There is no testimony in the record tending to contradict the quoted reply made by Adams on the witness stand, or to prove that this secreting of heroin by Peevey was on Keller Street instead of on Lawndale Street. The arguments made by appellant's attorney to support this oral request for an order to inspect the Finley statement, as well as appellants' briefs before us, are that the testimony of Adams was contradictory of one of the overt acts charged in the indictment.⁶ It was undisputed that Adams did not testify before the Grand Jury and this allegation in the indictment would not have the effect of giving rise to a contradiction of the testimony of witness Adams.

At all events, Peevey did not appeal from the judgment of conviction, and the question which provoked the request for Adams' statement to the Narcotic Agent did not relate to any of the appellants who are parties to the appeal. It is apparent, therefore, that the record contains no evidence tending to support the implications contained in the question of Attorney Walsh, or to contradict or impeach the statement of the witness Adams; and it is the universal rule that a witness may not be impeached as to matters not material.⁷

The question before us for decision, therefore, is this: Whether the Court below abused its discretion in denying access to the Adams statement, and whether such action was shown to be sufficiently material and prejudicial to appellants to require reversal.

Appellants recognized in their brief and argument before us the necessity of showing as a predicate for the demand, the materiality of the statement as furnishing contradictory evidence. The quotation in the margin is taken from the "Brief for Appellants:"⁸ Sitting as we do as an appellate court, we are justified in finding error in the actions of the trial court only with respect to matters presented to that court, and limited to the contentions made to it as the basis for the requested action.

II.

We are dealing here essentially with the claimed right of discovery. This arises when, in adversary litigation, one party seeks to enforce an entry into the file of the other litigant for the purpose of obtaining a statement taken by the second litigant in preparation for trial.⁹ It is well to take our bearings to discover the state of the law which faced the lower court when the motion to compel production of the Adams statement was made.

(a) Discovery is governed, both in criminal and civil cases, by rules of practice promulgated by the Supreme Court under congressional authority.¹⁰ The power conferred on the Supreme Court by the statute was in these words:

"The Supreme Court of the United States shall have the power to prescribe, from time to time, rules of pleading, practice, and procedure with respect to any or all proceedings prior to and including verdict, or finding of guilty or not guilty by the court * * * in criminal cases * * * in district courts of the United States * * *. Such rules shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session, and thereafter all laws in conflict therewith shall be of no further force and effect."

Fed.Rules Crim.Proc. rule 16, 18 U.S. C.A. is the only one dealing with the subject and reads as follows:

"Rule 16 Discovery and Inspection

"Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. * * *"

The Advisory Committee's note under this rule states: "Whether under existing law discovery may be permitted in criminal cases is doubtful * * *. The entire matter is left within the discretion of the court." Emphasis added. Since there is no evidence that the statement of Adams was obtained "by seizure or by process," it is obvious that the rule does not literally cover the situation with which we are dealing. But the principle of discovery and inspection, whenever allowed, is established by the Rule and includes these ingredients: There must be a showing that the items sought "may be material to the preparation of his defense and that the request is reasonable." The Advisory Committee's note makes it clear that the sufficiency of that showing shall be within the discretion of the District Court.

(b) In the same year Congress passed the Act under which the rules were promulgated and shortly before the Committee and the Supreme Court collaborated in their preparation, fresh in their minds was the long-pending and much-publicized case of United States v. Socony-Vacuum Oil Co., (argued Feb. 5th and decided May 6, 1940) 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129. What the Supreme Court there decided was the then existing law with respect to requiring the Government to permit the defendant to inspect statements taken from...