Johnson v. United States, 6149.

• Decision Date: 21 July 1959
• Docket Number: No. 6149.,6149.
• Citation: 269 F.2d 72
• Parties: Lyle Richard JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

269 F.2d 72 (1959)

Lyle Richard JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

No. 6149.

United States Court of Appeals Tenth Circuit.

July 21, 1959.

Joseph P. Jenkins, Kansas City, Kan. (Cohen, Schnider, Shamberg & Jenkins, Kansas City, Kan., on the brief), for appellant.

E. Edward Johnson, Asst. U. S. Atty., Topeka, Kan. (Wilbur G. Leonard, U. S. Atty., Topeka, Kan., and Milton P. Beach, Asst. U. S. Atty., Kansas City, Kan., on the brief), for appellee.

Before BRATTON, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.

BRATTON, Chief Judge.

The indictment in this case charged that William Reece Johnston, Lyle Richard Johnson, and Fred Charles Riley robbed Twin City State Bank of Kansas City, Kansas, a member of and insured by Federal Deposit Insurance Corporation. The defendant Lyle Richard Johnson was granted a separate trial; was convicted; was sentenced to imprisonment for a term of seven years; and he appealed.

Complaint is made that during the trial the court refused to require the Government to produce from its files and deliver to the appellant for his examination and use a memorandum prepared by John J. Quinn, special agent for the Federal Bureau of Investigation. Quinn testified as a witness for the Government. He testified among other things that he interviewed appellant on two occasions; that special agent Brown was present at the first interview; and that special agent Brown and four other special agents were present at the second interview. He further testified that in the course of the first interview, appellant made certain statements in respect to facts and circumstances which preceded, attended, and followed the robbery; that during the interview the witness did not make any notes; that special agent Brown made notes; that the notes were not present at the trial; and that the witness did not know whether they were still in existence or had been destroyed. He further testified that after the first interview and before the second, he prepared a memorandum which related to the interview; that he also prepared a written statement to be submitted to the appellant for signature; that the statement was typed from the notes which special agent Brown had made; and that at the second interview, appellant signed the statement. The witness further testified that the memorandum included some statements made by the appellant which were not included in the written statement. It was with that background that request was made for the production of the memorandum. Soon after Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, was decided, Congress enacted 18 U.S. C. § 3500. In presently pertinent part, the statute provides in effect that after a witness called by the Government in a criminal prosecution, has testified on direct examination, the court shall on motion of the defendant require the Government to produce and deliver to the defendant for his examination and use any statement, as thereinafter defined, of the witness in the possession of the Government which relates to the subject matter concerning which the witness has testified. And ...