United States v. Miller, 307
| Decision Date | 01 October 1957 |
| Docket Number | Docket 24457.,No. 307,307 |
| Citation | 248 F.2d 163 |
| Parties | UNITED STATES of America, Appellee, v. James W. MILLER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
N. Le Van Haver, Kingston, N. Y., for appellant.
Paul W. Williams, U. S. Atty., New York City, for appellee, Adelbert C. Matthews, Jr., Asst. U. S. Atty., New York City, of counsel.
Before CLARK, Chief Judge, and SWAN and POPE, Circuit Judges.
Writ of Certiorari Denied December 16, 1957. See 78 S.Ct. 332.
After our decision of affirmance on July 10, 1957, the appellant filed a timely petition for rehearing raising new issues based on Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, a decision rendered subsequent to the argument of Miller's appeal. The Government having been allowed to answer the petition and the petitioner to file a reply, which he did on September 10th, the matter is ready for determination.
The petitioner contends that he is entitled to a new trial because the trial procedure was not in accord with the rule subsequently announced in the Jencks case. An important witness for the prosecution was Irving Mishel. At defense counsel's request two statements made by Mishel and in the possession of the Government were examined by Judge Walsh pursuant to the rule of United States v. Krulewitch, 2 Cir., 145 F.2d 76, 156 A.L.R. 337 to determine whether counsel was entitled to use them in cross-examination. One of the statements, dated February 28, 1955, was turned over to counsel, but use of the other statement, made in 1953, was denied, because Judge Walsh found that it contained nothing materially inconsistent with Mishel's testimony and did contain matter "unrelated to this case." The statement was marked "Court's Exhibit 3," placed in a sealed envelope and filed with the Clerk of the Court. By stipulation between appellant and appellee dated December 18, 1956 this exhibit was excluded from the record on appeal.
1. The petition for rehearing complains that the 1955 statement was not made available to the defense until after the cross-examination of Mishel had been concluded and the prosecution had closed its case. The record does not bear this out. Counsel got the statement on the morning of October 24th. This was after Mishel had left the stand but long before the Government rested on the afternoon of October 25th. When the Government rested, defense counsel moved for judgment of acquittal and during the argument asked for leave to put Mishel's 1955 statement in evidence or to recall him for cross-examination about it. This request was denied. The petitioner claims that such denial is contrary to the law established by the Jencks case. The Government contends that the only issue presented is whether Judge Walsh's refusal to recall Mishel was an abuse of discretion and that the Jencks case has nothing to do with this issue. We think the Government is right. The statement, which does not appear in the record on appeal, is a short one, according to the government's answer to the petition for rehearing, consisting of only four handwritten pages. Defense counsel received it on the morning of October 24th and the Government did not rest until the afternoon of October 25th. During this interval there would appear to have been ample time for counsel to examine the statement and make his motion to recall Mishel for further cross-examination before the Government rested. We see no abuse of discretion in denying the motion. It was made too late.
2. With respect to the 1953 statement the petitioner complains that under the Jencks decision he was entitled to have the statement delivered to defense counsel, despite Judge Walsh's determination that it contained nothing materially inconsistent with Mishel's testimony. This is true. But if the case is remanded for a new trial, the procedure will be governed by the recent amendment to Chapter 223 of Title...
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