Saunders v. United States

• Decision Date: 31 January 1963
• Docket Number: No. 17122.,17122.
• Citation: Saunders v. United States, 316 F.2d 346, 114 U.S. App. D.C. 345 (D.C. Cir. 1963)
• Parties: Irving M. SAUNDERS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

114 US App. DC 345, 316 F.2d 346 (1963)

Irving M. SAUNDERS, Appellant, v. UNITED STATES of America, Appellee.

No. 17122.

United States Court of Appeals District of Columbia Circuit.

Argued November 16, 1962.

Decided January 31, 1963.

Mr. George W. Shadoan, Washington, D. C., with whom Mr. John A. Yacovelle, Jr., Washington, D. C. (both appointed by the District Court), was on the brief, for appellant.

Mr. William C. Weitzel, Jr., Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys., were on the brief, for appellee.

Before Mr. Justice REED, retired,^* and EDGERTON and WILBUR K. MILLER, Circuit Judges.

Mr. Justice REED (sitting by designation).

Appellant has been convicted by a jury of robbing an employee of the Washington Post in a rest room located on the premises of the Post Building.¹ He has been sentenced to three to nine years imprisonment. This is a direct appeal from the conviction.

Appellant contends that the trial judge erred when he allowed the Government, over objection, to introduce evidence of a question asked by the appellant at his preliminary hearing before the U. S. Commissioner. It was not disputed at the trial that appellant was in the rest room where the robbery occurred shortly before the time of the crime. However, appellant denied at the trial that he was standing near a radiator when the victim, one Hedderson, entered the room. In an attempt to impeach appellant's testimony, the Government offered evidence that at his preliminary hearing appellant had asked Hedderson the following question:

"Don\'t you remember I was standing by the radiator when you walked up to the urinal; then I walked past you and walked right out the door?"

It is urged that since appellant was not represented by an attorney at the preliminary hearing, the admission of this statement resulted in a denial of his right to adequate counsel.² However, appellant was under no compulsion to speak and had been advised of his right to keep silent. The admission of his voluntary statement made in these circumstances was altogether proper. Nance v. United States, 112 U.S.App.D.C. 38, 299 F.2d 122 (1962).

We also reject appellant's contention that the trial judge failed to properly instruct the jury on the burden of proof borne by the prosecution. The instructions made perfectly clear that appellant could be convicted on the theory that he had aided and abetted in the robbery only if the jury was convinced of his necessary complicity beyond a reasonable doubt.

We are less satisfied, however, with the manner in which the trial court disposed of four requests made by appellant's attorney for the production of notes allegedly taken at pre-trial interviews with witnesses who testified for the Government. The order requiring closest scrutiny is that denying appellant's motion for the production of statements by Hedderson which the government attorney may have transcribed during the course of a pre-trial interview. During the cross examination of Hedderson, the following colloquy occurred:

"Q. You have never spoken to Mr. Caputy the government attorney about this case? A. Oh, I went to his office, yes.

"Q. And did you make a statement at that time, sir? A. I talked to him, yes.

"Q. Did you sign a statement? A. I don\'t know whether I signed one or not, to tell you the truth.

"Q. Did he take it down as you were giving it to him. A. Yes.

"Mr. Yacovelle: Your Honor, I move for that statement.

"Mr. Caputy: How ridiculous can he be? I make notes in my office, and that is my work sheet. He isn\'t entitled to it, if Your Honor please.

"The Court: The motion is overruled."

The so-called Jencks Act, 71 Stat. 595 (1957), 18 U.S.C. § 3500, requires that "after a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified." Paragraph (e) of the statute defines a "statement" to include the following:

"(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement."

The Supreme Court has held that when a defendant seeks the production of a statement as defined in the statute, the district court has an affirmative duty to determine whether any such statement exists and is in the possession of the Government and, if so, to order the production of the statement. Because the defendant often does not and cannot know whether any such statement exists, the court must conduct any inquiry which is "necessary to aid the judge to discharge the responsibility laid upon him to enforce the statute." Campbell v. United States, 365 U.S. 85, 95, 81 S.Ct. 421, 426, 5 L.Ed.2d 428 (1961); see Palermo v. United States, 360 U.S. 343, 354-55, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). Such an inquiry may involve the interrogation of the witness or of the government agent, or an in camera examination of what is purported to be a statement under the statute. See Bary v. United States, 292 F.2d 53, 56-59, (C. A. 10, 1961); United States v. McKeever, 271 F.2d 669 (C.A. 2, 1959).

Here Hedderson testified that the government attorney took down what he said during the course of their interview. It did not appear, and appellant had no way of knowing, whether or not these notes were a substantially verbatim recital of what Hedderson had said. If they were, they constituted a statement under the Jencks Act and should have been delivered to the appellant's attorney if they related to the subject matter of Hedderson's prior testimony. Under the decisions of the Supreme Court, the trial judge was required to determine whether the conditions of the statute had been satisfied.

Instead, the court denied the motion for production, and the Government defends this denial, on the grounds that the notes, having been taken down by the government attorney, constituted the work product of the attorney and were thus immune from production under the Jencks Act.

It is true that the act was in large part a reaction to the Supreme Court's decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L. Ed.2d 1103 (1957), and was intended to prevent criminal defendants from obtaining unlimited access to government files as a result of that decision. S.Rep. No. 981, 85th Cong., 1st Sess., U.S.Code Congressional and Administrative News 1957, p. 1861. But the statute applies to statements made by a witness to "an agent of the Government," and there is nothing in the statute which necessarily excludes government attorneys from its scope. The statute was intended to protect government files by its restrictive definition of "statements" and by limiting production to statements which relate to a witness' testimony. Johnson v. United States, 269 F.2d 72, 74 (C.A. 10, 1959). If a government attorney takes substantially verbatim notes of a witness' remarks, the production of these notes will no more imperil government files than if any other government agent had done so.

In Hickman v. Taylor, 329 U. S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), a qualified immunity from pre-trial discovery was conferred upon the "work product" of an attorney. The Government argues that the Jencks Act was not intended to negate this immunity. In Pittsburgh Plate Glass v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959), it was held that, absent a particularized need, the act did not entitle a defendant to production of grand jury minutes containing the testimony of a government witness. To...