U.S. v. Jonas

• Decision Date: 30 April 1976
• Docket Number: No. 75-1904,75-1904
• Citation: 540 F.2d 566
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles W. JONAS, Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — Seventh Circuit

Page 566

540 F.2d 566

UNITED STATES of America, Plaintiff-Appellee, v. Charles W. JONAS, Defendant-Appellant.

No. 75-1904.

United States Court of Appeals, Seventh Circuit.

Heard April 30, 1976.

Decided Aug. 18, 1976.

Terence MacCarthy, Federal Defender Program, Michael D. Sher, Chicago, Ill., for defendant-appellant.

Samuel K. Skinner, U.S. Atty., Jeffrey J. Kent, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS and BAUER, Circuit Judges and CAMPBELL, Senior District Judge. ^*

BAUER, Circuit Judge.

The question presented on this appeal is whether the trial court erred in denying the defendant's motion for the preparation of a transcript pursuant to Title 18, Section 3006(e)(1) ¹ following a mistrial. Because we believe the trial judge erred in denying the transcript we reverse and remand the case for a new trial.

Defendant Jonas was charged in a one count indictment with knowingly and unlawfully receiving, concealing, and storing United States Treasury bills in violation of Title 18 U.S.C. Sec. 2315. The court appointed the Federal Defender Program to provide legal representation for the defendant.

Two trials were held. The case was initially called for trial on April 28, 1975, with Assistant Federal Defender Jean Powers Kamp representing the defendant. Following a one day trial the jury returned its verdict, finding the defendant guilty of the offense charged in the indictment. Defendant thereafter filed his motion for a new trial and supporting memorandum, which motion was granted by the court on the ground that the government improperly failed to disclose the identity of one of its witnesses.

Subsequently the case was transferred to two other Federal Defender attorneys who requested that the trial court authorize preparation of the transcript of the first trial, without costs to the defendant. The defendant did not seek the entire transcript, but limited his request to the portions containing the testimony of the witnesses who testified at the first trial. The government did not object to the request.

The court denied defendant's motion after a full briefing of the question, noting that the court's trial notes of the first trial would be made available to defendant's attorney and, further, that the court reporter's tape recordings of the first trial would be "available for listening and for impeachment purposes."

The evidence presented at both the first and second trials was quite similar. Leo P. Netzel, a government informer, testified that he had received a telephone call sometime during the middle of March 1974 and was informed by an individual, who he later learned was the defendant, that this individual possessed various stolen securities and that he wished to dispose of these securities. Jonas had allegedly been referred to Netzel by a mutual friend, and called to inquire as to whether Netzel was familiar with a banker who would be able to dispose of stolen securities. Subsequently, Netzel and Jonas had numerous telephone conversations regarding the disposition of the treasury bill in question, culminating in a meeting of the two at O'Hare Airport on May 1, 1974.

From the airport they proceeded to a hotel coffee shop where Netzel informed Jonas of the final plans regarding the sale of one of the treasury bills. As they had previously discussed, the bill was to be sold to a foreign bank through the First National Bank of Chicago, which would be acting as the transfer agent. Netzel informed Jonas of the name of the bank vice-president whom he was to see and who would assist in the disposition of the treasury bill. Netzel gave Jonas a vice-president's business card. Jonas was driven to the bank by Netzel, who then, while in the bank, directed Jonas to the vice-president's office.

Floyd Zimms, an agent with the Federal Bureau of Investigation, purported to be the bank vice-president. He testified that he had a meeting with Jonas on May 1, 1974 at the First National Bank of Chicago. They discussed the disposition and the terms of the transfer of the treasury bill.

The defendant took the witness stand on his own behalf and testified that the transfer of the treasury bill did not involve a sale of that bill, but rather, it was a transfer of collateral to the bank for purposes of securing a business loan. Jonas contended that he had acquired the treasury bill from a business debtor in Germany as security on a business debt, and sought to secure a loan for himself following default by this foreign debtor on his obligation to Jonas. Jonas did not seek to sell the treasury bill but only to obtain a collateralized loan on the basis of this security. He further testified that, although he suspected for various reasons that the treasury bill might have been stolen, he did not know that it was a stolen security. Despite Jonas' testimony the jury returned a verdict of guilty, and the defendant was sentenced to a term of four years.

Following the denial of a transcript, one of the defense counsel did listen to the tape recording of the first trial prior to the retrial. The transcript motion was renewed during the second trial with defense counsel suggesting that it appeared there were inconsistencies between the testimony of government witnesses at the first trial and that given by those same witnesses at the second trial. The court observed it did "not have any independent recollection" of the cross-examination of Netzel at the first trial, and did not recognize any inconsistencies in his testimony at the second trial. ² Defense counsel, in attempting to demonstrate for the court that inconsistencies existed, was limited to relying solely upon information acquired by listening to the tape recordings.

In denying the motion, the court stated that portions of the first trial could be transcribed if defendant, after again listening to the tape recording of the first trial, could show "a particularized need for a transcript," and if the defendant could point to "material variations" between testimony given at the second trial and that given at the first trial.

The record before the trial court does not indicate that any inconsistencies in witness testimony were called to the attention of the court. Now, on appeal, counsel for the defense have outlined a number of inconsistent statements presented at the two trials by the same witnesses. Regardless of defense counsel's approach, we believe the court erred because a defendant should not be required to show inconsistencies in testimony in order to obtain a free transcript. ³

I.

Both sides have acknowledged that the key case in this appeal is the Supreme Court's decision in Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). In Britt the same legal question was presented although the factual context of the case was much different. There an accused's three day murder trial ended in a mistrial when the jury reported it was hopelessly deadlocked, and a retrial was scheduled for the following month. The trial court denied a motion requesting a free transcript of the first trial. The Supreme Court eventually affirmed the denial because the trial of the case took place before the same judge and the same counsel in a small town; and, according to the accused's counsel, the court reporter was a good friend who would, at any time, have read back to counsel his notes of the mistrial, well in advance of the second trial, if counsel had simply made an informal request. Furthermore, at oral argument it became evident that petitioner could have obtained from the court reporter far more assistance than that available to the ordinary defendant.

But Justice Marshall, in affirming the denial of the transcript, warned against conditioning transcripts in retrial situations upon a showing of some type of particularized need. He stated:

"We agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner's failure to specify how the transcript might have been useful to him. Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of a particular case [footnote omitted]." 404 U.S. at 228, 92 S.Ct. at 434.

In this case, the trial court partially justified the denial of the transcript upon the defendant's failure to produce inconsistencies in witness testimony or his general failure to give compelling reasons establishing the usefulness of the prior transcript. Such a denial was improper. ⁴

The government seeks to support the denial of the transcript on another ground cited by the trial court, i.e., that alternatives such as the judge's notes and court reporter's tapes were available as a substitute for the transcript. But, unlike the situation in Britt, where defendant was represented by the same attorney at both trials and the two trials were separated by a period of one month, Jonas was represented by different counsel at the two trials, which were separated by a period of approximately two and and one-half months. Counsel for Jonas did not have available to them an alternative which was substantially equivalent to a transcript. The tape recordings of the first trial did not allow counsel to adequately prepare for the second trial and were not an adequate substitute for a transcript for purposes of impeachment at the second trial. ⁵ Making only the tape recordings available during court hours, in the office of the court reporter, placed an unreasonable demand on counsel, requiring them to listen to the tapes of a two day trial and to attempt to record the verbatim statements of witnesses for effective impeachment at the second trial.

Although the trial judge offered his own trial notes to the defendant, they do not amount to a substitute for a verbatim record of what the witnesses said while on the stand. The judge's trial notes being handwritten and abbreviated do not...