United States v. Prince, 12785.

• Citation: 264 F.2d 850
• Decision Date: 18 March 1959
• Docket Number: No. 12785.,12785.
• Parties: UNITED STATES of America v. James William PRINCE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

264 F.2d 850 (1959)

UNITED STATES of America v. James William PRINCE, Appellant.

No. 12785.

United States Court of Appeals Third Circuit.

Argued February 18, 1959.

Decided March 18, 1959.

William W. McVay, Pittsburgh, Pa., for appellant.

Thomas J. Shannon, Asst. U. S. Atty., Pittsburgh, Pa. (Hubert I. Teitelbaum U. S. Atty., Pittsburgh, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and GOODRICH and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Appellant was convicted for selling and facilitating the concealment and sale of narcotic drugs on or about April 10, 1958, in violation of 21 U.S.C. § 174. He was sentenced as a second offender to ten years imprisonment under the mandatory provisions of Section 174.

His first point concerns the government's alleged failure to comply with the trial court's direction to produce statements of a government agent in accordance with 18 U.S.C. § 3500. Agent Hill of the Federal Bureau of Narcotics was a trial witness for the government. On direct examination he testified that on April 10, 1958 he arranged by telephone to purchase three spoons of heroin from Prince for $60 and to send Randolph Jackson, a special government employee and a friend of Prince, to the latter with the money for the drug. According to the government evidence that sale was consummated. At the opening of the cross-examination Mr. Hill was questioned and answered as follows:

"Q. Mr. Hill, did you make written reports pertaining to the subject matter you have just testified? A. I have a written report, for April 10th, the actual date of the sale.

"Mr. McVay: Your Honor, I request those reports.

"The Court: Do you have it there?

"Mr. Shannon: Yes.

"Mr. McVay: Your Honor, may I have a recess so that I will have time to look at these reports?

"The Court: How long are they, Mr. Shannon?

"Mr. Shannon: Approximately a page and a half. You can read it in a couple of minutes I imagine.

"The Court: Go ahead. We will let you take time to read it, Mr. McVay."

As the result of the above a report by Mr. Hill of his activities on April 10, 1958 with reference to Prince was produced and furnished defense counsel. On redirect examination Mr. Hill was asked if he had talked with Prince after April 10th. He said he had and he was requested to relate the conversation. This was objected to. The court asked the district attorney its purpose and the reply was "The purpose of it is to show the subsequent similar conduct." The court allowed the evidence over further objection.¹ Mr. Hill then told that on April 28, 1958 he had talked with William E. Jackson, referred to in the record as a drug seller, and Prince together. He said:

"I spoke to them. I told them that I was looking to buy more heroin. William E. Jackson turned to the defendant and asked the defendant did he want to take care of me. The defendant said, `I am still suspicious that he is a narcotic agent. I want to sell to him but I don\'t want to put it in his hands although I want the money.\' William Jackson said, `If you don\'t want to take care of him I will.\' Then William Jackson and I left the Snack Shop."

There actually had been a written report of the April 28th conversation and related incidents by Agent Hill. It was produced at the hearing on defendant's motion to appeal in forma pauperis. The district judge in his opinion with respect to that motion said: "It is true that upon defense counsel's request, pursuant to 18 U.S.C.A. Sec. 3500, only one of two reports covering matters about which narcotics agent Hill had testified was delivered to him." (Emphasis supplied).

The statute governing the matter, 18 U.S.C. § 3500(b), provides in part: "After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified." This language is hardly ambiguous and the legislative history of Section 3500 leaves no doubt as to its intent. Senate Report No. 981 states: "* * * the proposed legislation * * * reaffirms the decision of the Supreme Court in its holding that a defendant on trial in a criminal prosecution is entitled to relevant and competent reports and statements in the possession of the Government touching the events and activities as to which a Government witness has testified at the trial * * *" U.S.Code Congressional and Administrative News 1957, p. 1861.

The district judge, though conceding the right of the defense to the second report, thought that it "could not conceivably have produced a different verdict."

In our view the mandate of the statute itself makes the omission substantial. It is not the function of the district court or ourselves to determine whether the appellant was prejudiced by failure to make available the relevant portions of the prior report of the witness. Bergman v. United States, 6 Cir., 1958, 253 F.2d 933, 935, 936. In Lohman v. United States, 6 Cir., 1958, 251 F.2d 951, 953, the factual situation was much the same as here. A written report to the Federal Bureau of Investigation had been made by the witness concerning matters to which he had testified. The request of the defense for the report was denied by the trial judge. Mr. Justice Stewart, then Judge Stewart, who also wrote the Bergman opinion, held for the court that this was "clearly prejudicial error". And see Johnston v. United States, 10 Cir., 1958, 260 F.2d 345, 347.

Appellant also suggests serious error in the failure...