U.S. v. Gaston, 79-5248

• Decision Date: 19 December 1979
• Docket Number: No. 79-5248,79-5248
• Citation: 608 F.2d 607
• Parties: 5 Fed. R. Evid. Serv. 447 UNITED STATES of America, Plaintiff-Appellee, v. James Edward GASTON, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 607

608 F.2d 607

5 Fed. R. Evid. Serv. 447

UNITED STATES of America, Plaintiff-Appellee, v. James Edward GASTON, Defendant-Appellant.

No. 79-5248

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Dec. 19, 1979.

Gary Wayne Barrick, Lakeland, Fla., for defendant-appellant.

Herbert H. Henry, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before AINSWORTH, FAY and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Appellant, James Gaston, was convicted of obstruction of justice, 18 U.S.C. § 1503, ¹ in the United States District Court for the Northern District of Alabama.

Evidence Adduced at Trial

At the risk of compounding the confusion inherent in the facts of this case, we here set out in some detail the nature of the evidence adduced at trial which is important to an understanding of this case and of our holding. As will be apparent, the jury was presented with a series of inconsistent statements and conflicting testimony, a situation which is particularly significant in view of the fact that the gravamen of the offense as charged was that Defendant Gaston knowingly tried to influence a prospective grand jury witness to give false testimony.

Gaston, a coal broker, had a contract to supply coal to the Tennessee Valley Authority. It appears that the two sources from which Gaston supplied coal under the contract were a pit owned or operated by Murray Trimble and a pit mined by Johnny Harper, who operated K&C Coal Company. The TVA terminated the contract when it discovered that some truckloads of coal supplied by Gaston had been improperly loaded so that a layer of good quality coal covered a substantial amount of inferior quality coal. When Gaston was informed that the contract had been terminated, and why, he went to the offices of K&C Coal Company and spoke to Harper. As a result of this meeting, Gaston obtained a statement signed by Johnny Self, witnessed by Harper, to the effect that he, Self, as the loader, was responsible for the improper loading. Gaston submitted Self's statement to the TVA. Self later repeated the substance of his initial statement in sworn statements to FBI Agent Deffenbeaugh and to Gaston's attorney. Although it was ambiguous in the initial statement, in these two later statements Self asserted that he was employed by Trimble Coal Company at the time of the improper loading. At one point, Gaston, Trimble and Self met with TVA authorities at Trimble's pit and Self was introduced to the TVA authorities as the Trimble loader who made the statement. Gaston allegedly met with Trimble and Self on one other occasion to discuss ways in which it might be made to appear that Self was employed by Trimble, such as issuing a backdated payroll check to Self.

When Self was subpoenaed to testify before a grand jury investigating the matter of false claims or statements made to the TVA, he changed his story. Although he never testified before a grand jury, Self spoke to FBI Agent Deffenbeaugh and repudiated his earlier statement, this time stating that he worked for Harper at the time of the improper loading and that he never worked for Trimble. Trimble initially told TVA officials and Agent Deffenbeaugh that Self was his employee and had done the improper loading, but he later repudiated this statement and claimed that Self had never been his employee and that he had done the improper loading himself. According to Self, Gaston offered him five hundred dollars for making the initial statement, and when Self was subpoenaed before the grand jury, Gaston warned him not to change the story. It is this latter allegation, which Gaston denies, that forms the basis of the offense of which Gaston was found guilty. ²

Request for Material Under Jencks and Brady

At trial, during a bench conference and subsequent recess, Gaston's counsel requested any prior statements of witnesses who had testified, including any interview reports prepared by the FBI agents who investigated the case on FD-302 forms (commonly called 302s), to which he might be entitled under the Jencks Act, 18 U.S.C. § 3500, or under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court called upon the prosecutor to comply with the request, and three statements that had been signed by Self and Trimble were given to defense counsel as Jencks material. The prosecutor acknowledged that there were also 302s based on Agent Deffenbeaugh's interviews of two other witnesses, Donnie Hicks, of Hicks Trucking Company, and Johnny Harper, of K&C Coal Company, but asserted that the defense was not entitled to them under either Jencks or Brady. The prosecutor, in the presence of the court, asked Agent Deffenbeaugh if he knew of any interviews, other than the three that had been given the defense, that had been subscribed or adopted by the witnesses, and Deffenbeaugh said no. The next day, in response to questions by the defense attorney on cross-examination, Agent Deffenbeaugh stated that he did not obtain signed statements from Mr. Harper or Mr. Hicks based on his interviews with them. Later, on redirect, Agent Deffenbeaugh stated that in preparing a 302, which he said was not a verbatim transcript, he would dictate from notes taken during the interview. The district court did not conduct an In camera inspection of the material, as requested by the defense and further failed to order the material submitted to the court for possible review on appeal.

On appeal, Gaston asserts as error this failure of the district court and argues that even if the 302s were not producible as statements of Harper and Hicks, they nevertheless were producible as statements of Agent Deffenbeaugh. Appellant also complains that the district court abused its discretion under Fed.R.Evid. 611(b) by permitting cross-examination of Gaston exceeding the scope of the subject matter of his direct examination.

The Jencks Claim

The Jencks Act, codifying the holding in Jencks v. United States,353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), requires production, upon motion of the defendant, of any statement, as defined by the Act, within the scope of the subject matter of the direct examination of a government witness who has testified. 18 U.S.C. § 3500(b). The term "statement" is defined as follows:

(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or

(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. . . .

Id. at § 3500(e)(1), (2).

As to witnesses Harper and Hicks, the record indicates that the definition contained in subsection (e)(2) of the Act is not met since Agent Deffenbeaugh clearly stated that the 302s were not verbatim transcripts of the interviews. United States v. Cuesta, 597 F.2d 903, 913-14 (5th Cir. 1979).

Gaston contends, however, that in order to determine whether the 302s met the definition contained in subsection (e)(1), the district court was required to conduct an In camera examination of the forms. As authority for this proposition, he cites United States v. Judon, 567 F.2d 1289 (5th Cir.), Aff'd per curiam, 581 F.2d 553 (5th Cir. 1978). In Judon the court remanded to the district court for a determination on the (e)(2) issue by extrinsic evidence, such as an examination of the interviewing agents. The court noted that although it was conceivable that the circumstances surrounding the making of the 302s there involved could have made them (e)(1) statements, the duty was on defense counsel to initiate the inquiry into any information the witness might have about the document and the trial court was not required to conduct a hearing on the (e)(1) issue where there was nothing before it in the witness' testimony or on the document in question suggesting adoption or approval by the witness. Id. at 1292 (following United States v. Lamma, 349 F.2d 338 (2d Cir.), Cert. denied, 382 U.S. 947, 86 S.Ct. 407, 15 L.Ed.2d 355 (1965)). Gaston points out that in Judon, unlike the case at bar, the trial court did make an In camera examination of the forms and made them part of the record on appeal. We do not think an In camera inspection necessary for a resolution of the (e)(1) issue in this case for two reasons. First, defense counsel failed to initiate an inquiry of the witnesses on this subject which might have triggered the need for further examination. Second, the agent testified that the reports were not signed by the witnesses and the court could have concluded no more on this issue from the face of the forms.

We thus hold that under the circumstances of this case, with respect to the claim that the defense was entitled to the 302s as the statements of witnesses Harper and Hicks under either subsection (e)(1) or (e)(2) of the Jencks Act, the trial court did not err in refusing to inspect the forms In camera or in failing to order their production for submission to this court for review on appeal.

Assuming that Agent Deffenbeaugh may be considered to have adopted or approved the 302s that he prepared, they might be producible as his Jencks Act statements, but only to the extent that they related to the subject matter of his testimony. See United States v. Medel, 592 F.2d 1305, 1316-17 (5th Cir. 1979); United States v. Sink, 586 F.2d 1041, 1050-51 (5th Cir. 1978), Cert. denied, --- U.S. ----, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979); United States v. Graves, 428 F.2d 196, 199-200 (5th Cir.), Cert. denied, 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269 (1970). Their permissible use by the defense would have been limited to impeachment of the agent's testimony alone. See generally Annot., 5 A.L.R.3d 763, 785-97 (1966). In view of the narrow scope of...