United States v. Perry

• Decision Date: 20 October 1972
• Docket Number: No. 71-1106.,71-1106.
• Citation: 153 US App. DC 89,471 F.2d 1057
• Parties: UNITED STATES of America, Appellant, v. Econuel PERRY, Jr., et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

153 US App. DC 89, 471 F.2d 1057 (1972)

UNITED STATES of America, Appellant, v. Econuel PERRY, Jr., et al., Appellees.

No. 71-1106.

United States Court of Appeals, District of Columbia Circuit.

October 20, 1972.

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Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry, John F. Evans, and Michael J. Madigan, Asst. U. S. Attys., were on the brief for appellant.

Messrs. Ben Paul Noble and Thomas O. Mann, Washington, D. C. (appointed by this Court), were on the brief for appellee Jackson.

Messrs. Stephen S. Millstein and O. B. Parker, Washington, D. C., were on the brief for appellees Matthews and Smith. Mr. David B. Lamb, Washington, D. C., was on the brief for appellee Beard.

Mr. Bernard W. Kemp, Washington, D. C., entered an appearance for appellee Perry.

Before WRIGHT, ROBINSON and WILKEY, Circuit Judges.

WILKEY, Circuit Judge:

Appellees are charged with robbing the Department of Commerce Credit Union on 22 January 1970. They were allegedly observed in the vicinity of the Credit Union just prior to the robbery by Mrs. Carlin P. Middleton, who subsequently testified against the appellees before the grand jury. Prior to trial the Government made available to the defense all the Jencks Act material for each of the witnesses it intended to call at the trial except for the grand jury testimony of Mrs. Middleton.¹ For some undetermined reason the stenographic notes of Mrs. Middleton's testimony had been lost. On the record made in the District Court it does not appear either that the preservation procedures employed by the private recording company were inadequate or that the notes were lost or suppressed by the Government.

At the pre-trial identification hearing the Government offered Mrs. Middleton as a witness. After she had testified, pursuant to a motion by defense counsel, the trial court ruled that at trial Mrs. Middleton should not be permitted to testify in regard to any matters whatsoever. The trial judge's action was ostensibly based legally on the authority of the Jencks Act, 18 U.S.C. § 3500, as construed by our decision in Lee v. United States²; the factual basis of his action is stated in detail, infra. The ruling was appealed to this court and was affirmed by order without written opinion. The Government now asks that the case be reheard.

Because there is some indication that the District Court may have misinterpreted our decision in Lee and because subsequent cases, both in this court and in the United States Supreme Court, recognize that in some situations in which Jencks Act material has been lost, the sanctions of that Act need not be applied, we remand with directions that the District Court reconsider the motion to suppress and conduct a further hearing on the issues of the degree of negligence of the Government and the risk of prejudice to the defendant from the absence of the notes.

I. The District Court's Rationale and the Government's Contentions

Through the court reporter who took stenographic notes of Mrs. Middleton's grand jury testimony, the Government proffered evidence that the notes were placed in a folder in a file in the office of the reporting service for which he worked, that the folder was removed from the file to type a transcript for an unrelated case, and that when the folder was returned to the file the notes of Mrs. Middleton's testimony were missing.3 This is all that appears in the record as to the cause of the loss. The Government contends on this appeal that the notes had been maintained under the "regular and systematic procedures" employed by the reporting service for the maintenance and safekeeping of the notes of grand jury proceedings which its employees recorded.⁴ It contends that "the lack of negligence in handling was clearly demonstrated by the evidence adduced."⁵ The Government even went so far as to suggest, with only the slightest circumstantial evidence that the notes had been stolen on behalf of one of the defendants.⁶

The appellees, on the other hand, contend that "the question of negligence was and is a viable one in this case."⁷ Although they offered the District Court no evidence that anything done by the Government or the reporting service was not in accordance with accepted practices, appellee Jackson maintains on this appeal that "the inexplicable loss of such important papers automatically raises a serious question of good faith and negligence. And the procedures employed by (the reporting service) must have been inadequate, given the secrecy and importance of the notes to the defense, or else the loss would not have occurred."⁸

Despite the debate on this appeal on the negligence question, our examination of the record indicates that the trial court never expressly decided the issue. It hinted in a few words that the reporting firm had shown itself to be unreliable, but said no more on the subject.⁹

A. The Trial Court's Stated Reasons

The District Judge's ruling seems to consist of three parallel strands of thought. The first, which is infused most frequently throughout his colloquy with counsel, was expressed as "In this case, wholly aside from the strict interpretation of Jencks, as a pure matter of fairness, Mrs. Middleton's testimony was so rambling on the stand here, and so inconsistent and some of her statements so inherently outrageous that as a matter of fairness alone I think perhaps we can't have the testimony."¹⁰ Shortly thereafter he reverted to this theme: "I am not talking just about the photographic information. I am talking about her testimony generally . . . . That is absurd testimony, absolutely absurd. And then there were other inconsistencies in her testimony . . . ."¹¹

He then adverted to the second strand of his thought: "But normally that would be a matter for the jury, not for me. But Jencks says you must have this material. . . . They say you have got to have them and I think you have to have them if you're going to put the witness on."¹² He then amplified this in discussing Lee v. United States:¹³ "Likewise here there is no indication but that the reports were destroyed not in the ordinary course of business, but destroyed or lost not by the U. S. Attorney, but by the reporting firm employed by the United States; and that, of course, there is no indication whatever that there was any conscious purpose on behalf of the defendant sic, and the defense counsel has agreed that was not so . . . ."¹⁴ In referring to our court's holding in Lee, ". . . the fact, without making any general and sweeping holding, that in all cases the loss of Jencks Act statements will bar the witness. They say that in the context of that case and the delay in trial they cannot permit failure to produce the Jencks Act statement to go by without reversing."¹⁵

The third strand of the trial judge's thoughts were not that the Jencks Act was an absolute bar, but that the law should be evaluated with reference to the importance of the testimony and the possible prejudice to the defendant. He referred to the statement made by an inter-office prosecution memorandum, "`The fact that many of the witnesses, especially Mrs. Middleton, opened up in the grand jury,' . . . Now surely that indicates the importance of the grand jury testimony from the Government's point of view. If it is important from the Government's point of view, surely it is no less important from the defendant's point of view."¹⁶

In concluding his rationale, the trial judge interwove his first thought, the inherent contradictions and absurdity of the witness' testimony, with his third, the importance of it to the Government and to the defense:

In the context of this case, in the context of the many interviews had by Mrs. Middleton, in the context of her testimony on the stand in this case and the cross-examination, and except for the evidence that she has given on the stand here, there is no written word-for-word question and answer testimony anywhere available or would be available except this testimony in the grand jury which the U. S. Attorney and the grand jury thought was so terribly important.

It appears to this court that the absence of that question and answer testimony before the grand jury would, therefore, under the circumstances of this case and the circumstances and evidence we have as to the many statements made by this witness and her testimony on the stand, would be very prejudicial to the defendant.¹⁷

B. The Government's Position versus the Trial Court's Reasoning

Turning now to the characterization of the trial judge's rationale by the Government, on the original appeal from the pretrial order suppressing all of Mrs. Middleton's testimony, the Government argued only two points: that the Jencks Act provided no sanction for the "good faith" loss of the grand jury minutes, and that the defendants suffered no prejudice due to this loss. There was no reference to the factor which appears to us from the transcript to have weighed most heavily in the trial judge's mind, i. e., the inherent contradictions and lack of veracity (in his opinion) of the witness' testimony.

On petition for rehearing the Government broadened the scope of its argument, urging that ". . . in failing to overturn the decision of the District Court, the panel in the instant case has in effect imposed upon the Government a form of strict liability in regulating the maintenance of Jencks Act material."¹⁸ We think this may be an incorrect characterization of the trial court's rationale. There was not necessarily a rule of strict liability in Judge Hart's decision, as he repeatedly both made reference to his own disbelief of the witness and weighed the importance of the testimony to the Government and defense, although he did say "you must have the material" and "in all cases the loss of Jencks Act statements will bar the witness."

But the Government went even further in its petition for rehearing, and urged upon this court that we...