U.S. v. Goldberg, 77-2989

• Citation: 582 F.2d 483
• Decision Date: 21 September 1978
• Docket Number: No. 77-2989,77-2989
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Philip J. GOLDBERG, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 483

582 F.2d 483

UNITED STATES of America, Plaintiff-Appellee, v. Philip J. GOLDBERG, Defendant-Appellant.

No. 77-2989.

United States Court of Appeals, Ninth Circuit.

Sept. 21, 1978.

Donald C. Smaltz, Los Angeles, Cal., for defendant-appellant.

Marshall Tamor Golding, Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before WRIGHT and CHOY, Circuit Judges, and POOLE, ^* District Judge.

CHOY, Circuit Judge:

Goldberg appeals from the district court's determination on remand from the United States Supreme Court that certain writings were not producible in his criminal trial under either the Jencks Act, 18 U.S.C. § 3500, or the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm in part and reverse in part.

I. Facts and Prior Proceedings

Appellant was convicted on fourteen counts of violating 18 U.S.C. § 1341, each charging him with a separate transactional instance of use of the mail for the purpose of executing a fraudulent scheme of issuing single-premium annuity life insurance policies, falsely purporting to be premium fully prepaid, for use by the annuitant as collateral for loans.

The Government's case against Goldberg consisted primarily of the testimony of Newman, a fellow employee. Prior to the trial, the Government delivered to appellant a copy of Newman's testimony before the grand jury and a memorandum of an interview of Newman conducted by two Government lawyers, Keilp and Lebowitz. The transcript of that interview indicated that the lawyers intended to conduct further interviews. At trial during his cross-examination, Newman disclosed that he had in fact subsequently met with them, although unlike the first interview, no reporter was present at those subsequent meetings.

At this point during Newman's cross-examination, appellant moved for production of the attorneys' notes of those meetings pursuant to § 3500(b) of the Jencks Act. ¹ The district court denied the request after receiving appellant's memorandum in support of the motion on the ground that the notes were the "work product" of the two lawyers. Appellant's request that the Government be ordered to deliver the notes for In camera inspection by the court was also denied.

In an unpublished memorandum opinion on December 18, 1974, this court affirmed the denial of appellant's Jencks Act motions not on the ground that the notes were attorney's work product, but rather because the notes were not "statements" within the meaning of the Jencks Act. The Supreme Court granted certiorari, 422 U.S. 1006, 95 S.Ct. 2627, 45 L.Ed.2d 669 (1975).

In Goldberg v. United States, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976), the Supreme Court reversed, holding that there is no "work product" exception to the statutory definition of a "statement" in the Jencks Act, and that the factual determination of whether attorneys' notes constitute "statements" within the statutory definition must initially be made by the trial court, not by the Court of Appeals. The case was remanded to the district court for a determination of whether the disputed notes were properly producible under the Jencks Act. The Supreme Court also indicated in footnote that if it were determined that production of the materials was not required under the Jencks Act, the district court should decide whether the notes were nonetheless producible under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See 425 U.S. at 109 n.15, 96 S.Ct. 1338.

On remand, 435 F.Supp. 1172 (D.Ariz.1977), the district court found that the notes were not producible under the Jencks Act or under Brady. The court entered a new final judgment identical to the original, including conviction on Count 10, which had been reversed in Goldberg's first appeal.

II. Jencks Act

At trial, after appellant moved for production of the Government attorneys' notes of the Newman interviews, the district court required the Government to collect all its notes in preparation for a possible production order. These notes, which totalled 237 pages, were lodged with this court during the pendency of Goldberg's first appeal and later with the Justice Department pursuant to argument in the Supreme Court. In the course of preparing his brief, the Solicitor General discovered that 40 of the 237 pages were not the attorneys' notes, but handwritten notes by Newman himself. All 237 pages of material were then delivered to appellant's counsel for the purpose of prosecuting his appeals.

The Supreme Court's opinion, 425 U.S. at 110 & n.18, 96 S.Ct. 1338, held that the following factual determinations concerning the 40 pages of Newman notes were to be made by the district court on remand:

(1) Whether the Newman notes were in existence at the time of appellant's Jencks motion during Newman's cross-examination.

(2) Whether, if the notes did not then exist, they were in existence when Newman testified on rebuttal and there was a proper Jencks request at that time.

(3) If in existence at the time of a proper Jencks motion, whether these notes deal largely, or entirely, with matter other than Newman's direct testimony.

With respect to the remaining 197 pages of attorneys' notes, the Court held that the district court should address the following issues of fact on remand:

(1) Whether these notes were read back to the witness Newman, or Newman read them himself, and he then adopted or approved them.

(2) Whether these notes were in existence at the time of appellant's Jencks motion during Newman's cross-examination.

(3) Whether, if the notes did not then exist, they were in existence when Newman testified on rebuttal and there was a proper Jencks request at that time.

Id. at 110-11 & nn.18, 20, 96 S.Ct. 1338.

In addition to iterating these "most significant" issues, the Court left open for the district court's consideration any further factual issues necessary to a determination of the Jencks question, noting: "We of course intimate no view whether production of any of the 237 pages of material was required in this case. That determination is to be made by the District Court." Id. at 111, 96 S.Ct. at 1348; See id. at 111 n.20, 96 S.Ct. 1338.

On review, the Supreme Court in its Goldberg opinion has made it clear that we may overturn the district court's findings only if they are clearly erroneous. In holding that this court erred by undertaking to make the initial determination whether the disputed notes constitute producible "statements," the Supreme Court relied on Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963) (Campbell II ), which held that whether notes of an interview can fairly be said to be a witness's own "statement" is a fact question, the determination of which may not be disturbed unless clearly erroneous.

On remand, the district court separately analyzed the 40 pages of Newman's own notes, the notes taken by Assistant U.S. Attorney Keilp, and the notes made by Assistant U.S. Attorney Lebowitz.

A. Newman notes: The district court found that one portion of these notes, consisting of two pages, was made solely for Newman's use and was never in the Government's possession until after trial, nor was the Government aware of the existence of these notes during the trial.

The remainder of the Newman notes, the court determined, were not in existence at the time of appellant's Jencks motion during Newman's cross-examination, and a proper Jencks motion was never made for their production thereafter.

The district court's finding that the Government was neither in possession of, nor aware of the existence of, a portion of the Newman notes was within the Supreme Court's conferment of authority upon it to consider factual issues in addition to those specifically enumerated in the Court's Goldberg decision. Appellant does not challenge this finding of fact, and we cannot say that it is clearly erroneous. Accordingly, the Government was not required to produce these pages of the Newman notes. The statute requires only production of statements by a witness "in the possession of" the Government. 18 U.S.C. § 3500(b).

The district court's findings with respect to the remainder of the Newman notes resolved factual issues specifically raised by the Supreme Court. Appellant neither points to any evidence nor offers any argument undercutting the finding on remand that this portion of the notes was not in existence at the time of his Jencks motion during Newman's cross-examination. Nor does the record support a contention that the district court's finding on this point is clearly erroneous.

Similarly, the district court's finding that no proper Jencks motion was made for these materials when Newman testified on rebuttal or at any time thereafter is supported by the record. Appellant's only challenge to this finding is that there was a continuing order for production of all Jencks Act material. The district court, however, emphasized that the order in question required delivery of all Jencks Act statements "By tomorrow," and found that it was not a continuing order. We cannot say that this finding is clearly erroneous.

Accepting the district court's findings of fact, the Government was not required to produce this portion of the Newman notes. The Supreme Court's Goldberg opinion, as well as the Jencks Act itself, makes clear that production is required under the statute only "on motion of the defendant." 18 U.S.C. § 3500(b); See 425 U.S. at 110-11 & n.18, 96 S.Ct. 1338. See also id. at 120 n.2, 123, 96 S.Ct. 1338 (Powell, J., concurring).

B. Keilp notes: The district court found that these notes were never read back to, or adopted by, Newman. The appellant does not contest this factual determination, and we conclude that it is not clearly erroneous.

The Supreme Court expressly specified this issue of fact as one for determination on remand. Moreover, its clear...