United States v. Barson, 26660.

• Decision Date: 16 April 1971
• Docket Number: No. 26660.,26660.
• Citation: 439 F.2d 128
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph BARSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

439 F.2d 128 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Joseph BARSON, Defendant-Appellant.

No. 26660.

United States Court of Appeals, Fifth Circuit.

March 1, 1971.

Rehearing Denied April 16, 1971.

Daniel S. Pearson, Robert C. Josefsberg, Pearson & Josefsberg, P. A., Miami, Fla., for defendant-appellant.

William A. Meadows, Jr., U. S. Atty., by Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before PHILLIPS^*, BELL and SIMPSON, Circuit Judges.

PER CURIAM:

In an opinion dated November 6, 1970, United States v. Barson, 5 Cir. 1970, 434 F.2d 127, we remanded this case to the district court for the limited purpose of conducting an adversary hearing to determine whether or not the appellant was prejudiced by the refusal of the district court to order production of the grand jury testimony of two government witnesses, Norman Rachlin and Laurant Wheldon, for purposes of cross-examination at trial. In accordance with that mandate, the district court ordered production of the grand jury testimony of the witnesses, and, after notice, conducted such an adversary hearing on January 6, 1971. In an order dated January 22, 1971, the district court concluded that no prejudice had resulted to the appellant from the failure at trial to order production of the testimony for inspection and possible use by appellant.

The district court has certified to us a copy of the transcript of the hearing, together with a copy of that court's findings of fact and conclusions of law. We append the findings and conclusions to this order as Appendix A.

We have carefully reviewed the transcript of the hearing before the district court, and are convinced that the record amply supports the district court's findings and conclusions that no prejudice resulted to the appellant. The conviction of Joseph Barson is accordingly

Affirmed.

APPENDIX A

(Title and Heading omitted)

Pursuant to the mandate of the United States Court of Appeals for the Fifth Circuit, this Court has conducted an evidentiary hearing, after notice to the parties, to determine whether prejudice resulted to appellant Joseph Barson from lack of opportunity to use at trial the grand jury minutes of Government witnesses, Norman Rachlin and Laurent Wheldon. Pursuant also to said mandate, this Court entered an Order, dated November 9, 1970, requiring the United States Attorney to deliver to appellant Joseph Barson and his attorney copies of the grand jury testimony of the witnesses Rachlin and Wheldon, and thereafter requiring appellant to file a statement specifying instances of prejudice resulting from lack of opportunity to use said grand jury testimony, and also requiring the United States Attorney to file a reply to appellant's statement, and pursuant to said order, the parties have filed their respective statements. Attached to the Government's reply statement were two reports of interview of Rachlin by FBI Agent Wheldon, dated January 12, 1966, and February 7, 1968, respectively, which the Government contends were delivered to defense counsel during the trial as part of the Jencks materials. Appellant admits to having received at trial the report dated January 12, 1966, but denies having received the other. It appears from the statements filed...