United States v. Lamma

• Decision Date: 04 August 1965
• Docket Number: Docket 29191.,No. 545,545
• Citation: United States v. Lamma, 349 F.2d 338 (2nd Cir. 1965)
• Parties: UNITED STATES of America, Appellee, v. David LAMMA, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

349 F.2d 338 (1965)

UNITED STATES of America, Appellee, v. David LAMMA, Appellant.

No. 545, Docket 29191.

United States Court of Appeals Second Circuit.

Argued June 21, 1965.

Decided August 4, 1965.

Werner L. Polak, New York City (J. Robert Lunney, New York City, on the brief), for defendant-appellant.

Robert J. McGuire, Asst. U. S. Atty., Southern Dist. of New York (Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, and Peter E. Fleming, Asst. U. S. Atty., on the brief), for appellee.

Before MOORE and ANDERSON, Circuit Judges, and LEVET, District Judge.^*

ANDERSON, Circuit Judge.

The question presented on this appeal concerns the interpretation and application of the Jencks Act, Title 18 U.S.C. § 3500.

The case arose out of an investigation of suspected illicit traffic in narcotics in the vicinity of 45 East 135th Street in New York City on September 7, 1961. The appellant, Lamma, Bernard Shelton, a co-defendant in the indictment, and another man were under surveillance. Two narcotics agents saw the three men take a taxicab to the Grampion Hotel, near 119th Street and St. Nicholas Avenue, and enter the hotel. Shortly thereafter Shelton left the hotel and walked to a grocery store where the agents conversed with him. The two agents and Shelton then returned to the hotel and entered the room where Shelton and his wife lived. Present were Shelton's wife, Lamma and one Anthony Graham. There were two glassine envelopes, containing narcotics, on the dresser. The three men were arrested and on September 27, 1961, were indicted in two counts; the first charged substantive narcotics offenses under Title 21 U.S.C. §§ 173 and 174 and the second charged the same accused with conspiring to violate federal narcotics laws.

The charges against Shelton were severed prior to trial and he testified as a government witness against the other two in the trial itself. At the close of the government's case the court dismissed the conspiracy count. At the completion of the trial the court found both Lamma and Graham guilty on the first or substantive count and both were sentenced to the five year minimum.

At the close of the direct examination of Shelton as a witness in the presentation of the government's case, defense counsel invoked the Jencks Act by requesting a statement in the government's possession which related to the subject matter of the witness' testimony. The government turned over to the defense a "question and answer" statement by Shelton, but refused to turn over certain handwritten notes of the Assistant United States Attorney, made at the time of his interview with Shelton, on the ground that they did not constitute material required to be produced under the Jencks Act. The Assistant U. S. Attorney contended that the notes were only an outline of what the witness told him during the course of preparing the witness for trial. The court, after inspecting the notes, agreed, and rejected the argument of defense counsel that the notes were a substantially verbatim recital of an oral statement, made by a witness who has testified at a trial, and recorded contemporaneously with the making of such oral statement, and thus within the purview of subsection (e) (2) of the Act. The court did not explore further into the background circumstances of the making of the notes. The matter was then dropped.

Lamma claims in this appeal that the court erred in failing to conduct a voir dire inquiry to determine whether the notes constituted a "statement" as defined in subsection (e) of Title 18 U.S. C. § 3500.¹ We hold that Judge Murphy did not abuse his discretion and committed no error in denying defendant's motion for production of the notes without a formal voir dire.

In Palermo v. United States, 360 U.S. 343, 358-360, 79 S.Ct. 1217, 3 L. Ed.2d 1287 (1959) (Appendix B) the Supreme Court canvassed the legislative history relevant to a proper construction of subsection (e) and concluded with respect to (e) (2) that it encompassed more than automatic reproductions of oral statements, but in determining whether such "other recording" constitutes a "statement," a very restrictive standard is to govern — only continuous, narrative statements made by the witness, recorded verbatim or nearly so, qualify. 103 Cong. Rec. 15940. Congress intended to restrict defense access to statements of government witnesses, for purposes of impeachment, to those statements for which the witness and not the government agent is responsible, so as to avoid the unfairness that results from the use of distorted and inaccurate material. Palermo v. United States, supra, at 350, 79 S.Ct. 1217. Where a claimed past contradictory written or recorded statement of a witness is to be used to impeach and discredit him, it should be his own statement and not someone else's interpretation of what the witness said or what he thought the witness said.

The Court also said in Palermo that in most cases the trial court will be able to determine whether a statement falls within the Jencks Act by examining the statement itself without the aid of extrinsic evidence, but added significantly,

"It is also the function of the trial judge to decide, in light of the circumstances of each case, what, if any, evidence extrinsic to the statement itself may or must be offered to prove the nature of the statement." Id. at 354-355, 79 S.Ct. at 1226.

Accordingly, the procedure to be employed for determining whether or not a "statement" is involved rests within the sound discretion of the trial judge. See United States v. Hilbrich, 232 F. Supp. 111, 121 (N.D.Ill.1964). However, guidelines for the exercise of that discretion do exist. For example, if it is unclear whether a document qualifies under (e) (2), the court of its own motion should conduct a voir dire examination into the circumstances surrounding its making. Campbell v. United States, 365 U.S. 85, 92, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961); Saunders v. United States, 114 U.S.App.D.C. 385, 316 F.2d 346, 350 (D. C.Cir.1963), per Justice Reed.

In this case no such hearing was called for. It is true that the record is silent as to the length of time the interview consumed; and it was conceded that the notes were made contemporaneously with the oral statements. But, after examining the notes, we are of the opinion that the notes clearly do not contain any "substantially verbatim recital." They are fragmentary and do not appear to set out the substance of the interviewee's remarks; nor is there any indication that they conform to his language rather than that of the Assistant U. S. Attorney. United States v. Aviles, 315 F.2d 186, 192 (2d Cir.), vacated and remanded sub nomine Evola v. United States, 375 U.S. 32, 84 S.Ct. 24, 11 L.Ed.2d 106 (1963), on remand for reconsideration, aff'd, 337 F.2d 552 (2d Cir. 1964), cert. denied 380 U.S. 906, 85 S.Ct. 886, 13 L.Ed.2d 794 (1965); cf. United States v. McKeever, 271 F.2d 669 (2d Cir. 1959). These...