U.S. v. Walk

• Decision Date: 19 December 1975
• Docket Number: No. 74-1899,74-1899
• Citation: 533 F.2d 417
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael Sidney WALK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 417

533 F.2d 417

UNITED STATES of America, Plaintiff-Appellant, v. Michael Sidney WALK, Defendant-Appellee.

No. 74-1899.

United States Court of Appeals Ninth Circuit.

Dec. 19, 1975.

Bruce Babcock, Jr., Asst. U. S. Atty. (argued), Sacramento, Cal., for plaintiff-appellant.

Milton Kerlan, Jr. (argued), Sacramento, Cal., for defendant-appellee.

OPINION

Before KOELSCH and SNEED, Circuit Judges, and FIRTH, ^* District Judge.

SNEED, Circuit Judge:

Defendant Walk was indicted for bank robbery in violation of 18 U.S.C. § 2113(a). Defendant moved for discovery of "any and all proported (sic ) confessions, admissions, or statements made by (defendant), within the possession, custody or control of the government . . . ." At issue were statements made by the defendant to a third-party witness, which statements were reported by the witness to the Federal Bureau of Investigation, and written by the F.B.I. in the form of memoranda of the interview of the witness.

Pursuant to Rule 16(a)(1) of the Federal Rules of Criminal Procedure, the trial court ordered the government to produce all language in the witness' statements attributable to the defendant, and the government refused. The trial court dismissed the indictment, and the government appeals therefrom.

The Jencks Act, 18 U.S.C. § 3500, controls in this case, and we therefore reverse the district court's dismissal and order that the statements be produced only in accordance with the provisions of the Jencks Act.

Rule 16(a)(1) allows discovery of a written or recorded statement made by the defendant. ¹ A statement need not be actually written or typed by the defendant to be the defendant's "written statement"; for example, a stenographer's transcription or a government interviewer's relatively contemporaneous writings may be considered written statements of the defendant. In the instant case, the defendant made no written statement. The written statements were made by the F.B.I. agent, whose notes incorporated the statements of a witness, which in turn contained oral "statements" allegedly attributable to the defendant. Thus, the connection between the defendant and the written statements is too attenuated for the statements to be considered written statements made by the defendant. Any "statement" made by the defendant herein does not fall within the ambit of Rule 16(a)(1).

Furthermore, even if Rule 16(a)(1) were applicable, discovery would be precluded by Rule 16(b) ² and the Jencks Act. ³ The statements at issue in this case are certainly statements made by a prospective government witness, and therefore are subject to the provisions of the Jencks Act. Even assuming the applicability of Rule 16(a)(1), the Jencks Act, by its very language and that of Rule 16(b), controls and the witness' statements may not be discovered until the witness has testified on direct examination. Cf. Sendejas v. United States, 428 F.2d 1040 (9th Cir.), cert. denied, 400 U.S. 879, 91 S.Ct. 127, 27 L.Ed.2d 116 (1970). Indeed, the production of the witness' statements is exclusively governed by the Jencks Act. ⁴

This result is consistent with the purposes of the Jencks Act. In enacting the Jencks Act, Congress sought to protect government files against unwarranted intrusions prompted by the excessively expansive reading by some lower federal courts of the United States Supreme Court's decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1953). ⁵ This protection of government files is necessary to protect government witnesses from threats, bribery and perjury. The mere fact that the witness' statement in this case contains oral "statements" attributable to the defendant in no way diminishes the recognized governmental interest in protecting the identity of the witness, and the context of the statement, until the time of trial. We agree with the Seventh Circuit that as a practical matter it will be impossible to excise oral "statements" of the defendant without revealing the contents of the witness' statement. United States v. Feinberg, 502 F.2d 1180 (7th Cir. 1974), cert. denied, 420 U.S. 926, 95 S.Ct. 1122, 43 L.Ed.2d 396 (1975). ⁶ Thus, to allow pretrial discovery of this statement would flout both the language and the intent of the Jencks Act. Defendant Walk's right to receive the witness' statements at trial is assured by the Jencks Act. ⁷ Thus, our holding protects government files and witnesses and preserves the defendant's right to use the statements for impeachment purposes.

Any prejudice to the defendant is not great. In order for the alleged oral remarks of the defendant to be admitted, the witness must testify; if so, the defendant may test on cross-examination the credibility of that testimony, including any remarks attributed to him. In this endeavor he will be aided by the Jencks Act. 18 U.S.C. § 3500(b). Earlier disclosure of statements written and signed by defendant permitted by Rule 16(a)(1) is warranted because there exists no similar opportunity to confront and cross-examine. ⁸ Hence, the grounds for pre-trial discovery of these statements are not as compelling as they might be in the typical Rule 16(a)(1) case.

We hold that the Jencks Act prohibits the pre-trial disclosure of the witness' statements, even when such statements contain quotations allegedly attributable to the defendant, and that such statements may only be produced in accordance with the provisions of the Jencks Act. In so doing, we accept the reasoned decisions of other federal courts which have similarly held. United States v. Feinberg, supra; United States v. Wilkerson, 456 F.2d 57 (6th Cir. 1972), cert. denied, 408 U.S. 926, 92 S.Ct. 2506, 33 L.Ed.2d 337 (1972); United States v. Dorfman, 53 F.R.D. 477 (S.D.N.Y.1971), aff'd, 470 F.2d 246 (2d Cir. 1972).

Reversed and remanded.

KOELSCH, Circuit Judge (dissenting):

I respectfully dissent.

Despite the majority's semantic legerdemain, I remain unpersuaded that a statement originating out of a defendant's mouth a statement which can be used against that defendant as an admission at his trial ceases to be his statement for purposes of discovery simply because it is reported to the government by a third person. Simply put, a defendant's statement is a defendant's statement; it matters not who repeats it, it remains his statement. To me, that conclusion is manifest.

By way of background, the record shows that defendant Walk was indicted for bank robbery (18 U.S.C. § 2113(a)) and subsequently entered a plea of not guilty. He then filed a pretrial motion for discovery, seeking, inter alia,

"any and all proported (sic ) confessions, admissions, or statements made by him, within the possession, custody, or control of the government, whether such confessions, admissions, or statements were recorded, stenographically or reproduced in any form in writing by the person taking, or hearing such statements, or recorded by any means of mechanical, or electrical transcription."

During oral argument of the motion, the Assistant U.S. Attorney revealed that the defendant himself had made statements to a person who was not a government employee; that this person had been interviewed by agents of the F.B.I.; and that F.B.I. memoranda of those interviews, which included the person's version of defendant's statements, were in custody of the government. Defense counsel argued that these memoranda were discoverable prior to trial, at least insofar as they included defendant's own statements, under the provisions of Rule 16(a) (1), F.R.Crim.P. ¹ The government contended that the memoranda were Jencks Act material (18 U.S.C. § 3500) and that their pretrial disclosure was proscribed by 18 U.S.C. § 3500(a). ² After taking the matter under submission, the district court filed a Memorandum and Order requiring that the government disclose within 30 days all statements in the memoranda "attributable to the defendant."

The U.S. Attorney, acting on instructions from the Department of Justice, refused to comply with the disclosure order, and the district court entered an additional order granting defendant's subsequent motion to dismiss the indictment as a penalty for the government's non-compliance. It is that order of dismissal from which the government takes its appeal.

The question presented is whether the limited portions of F.B.I. memoranda of interview which relate statements made by the defendant personally to one not a government agent are best characterized as "written or recorded statements . . . made by the defendant . . . within the possession, custody or control of the government" under Rule 16(a)(1), or as "statement(s) or report(s) in the possession of the United States which (were) made by a . . . prospective Government witness (other than the defendant)" under subsection (a) of the Jencks Act. ³ I firmly believe that Rule 16(a)(1) and not the Jencks Act, applies to this ordered disclosure and that the granting of defendant's discovery motion was thus properly a matter for the district court's discretion.

Before today, the question was arguably an open one in this circuit. In Sendejas v. United States, 428 F.2d 1040 (9th Cir. 1970), cert. denied, 400 U.S. 879, 91 S.Ct. 127, 27 L.Ed.2d 116 (1970), this court said at 1046:

"Rule 16, F.R.P.C. deals generally with pre-trial discovery in a criminal case; however, as to demands for production of statements and reports of government witnesses other than defendants, 18 U.S.C. § 3500 (The Jencks Act) controls."

But Sendejas is of little help here, for in that case there was no indication that the statements sought were those of the defendant. Moreover, in Loux v. United States, 389 F.2d 911 (9th Cir. 1968), cert. denied, 393 U.S. 867, 89 S.Ct. 151, 21 L.Ed.2d 135 (1968), we held that the discovery of F.B.I. memoranda containing statement made directly to a government agent by the defendant "is left to the discretion of the judge" under Rule 16(a); we also observed, following...