United States v. Rhodes
| Decision Date | 20 May 1966 |
| Docket Number | No. 15243.,15243. |
| Citation | 360 F.2d 865 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Everett Edmond RHODES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Kenneth Allen Knutson, Chicago, Ill., for appellant.
Edward V. Hanrahan, U. S. Atty., Edward J. Murray, Asst. U. S. Atty., Chicago, Ill., for appellee, John Peter Lulinski, Lawrence Jay Weiner, Asst. U. S. Attys., of counsel.
Before SCHNACKENBERG and CASTLE, Circuit Judges, and MAJOR, Senior Circuit Judge.
Everett Edmond Rhodes, defendant, appeals from a judgment of the district court convicting him, after a trial without a jury, on counts of an indictment charging illegal sales of heroin, 21 U.S. C.A. § 174 and 26 U.S.C.A. § 4705(a). It was charged that the sales occurred respectively on June 22, 1964 and July 1, 1964. At the trial, defendant was represented by his own counsel and in this court by court-appointed counsel.
At his trial defendant admitted that he took money from, and purchased drugs and delivered them to, a federal narcotics agent. But he pleaded the defense of entrapment by the agent, stating that he was induced to and did believe that he was then cooperating with the narcotics agent.
Defendant testified, inter alia, that he had visited his parole officer, Jose Hernandez, before the foregoing events occurred and had sought his advice as to what he should do. To corroborate his testimony about the inducement and his belief that he was only "cooperating" with a federal agent, defendant subpoenaed the parole officer, Jose Hernandez, to give testimony and to bring certain records regarding defendant's visits to Hernandez.
At the trial Hernandez was called as a witness for defendant and was examined by his counsel. He testified that defendant "requested advice as to what to do" and that he replied:
Hernandez then stated that he could not further tell the conversation because of a departmental memorandum from the attorney-general. Government counsel then cited to the court the Code of Federal Regulations, Title 28 — Judicial Administration, ch. 1, § 16.1.1
The court sustained the government's objection to the parole officer's testifying further about the conversation on the basis of privilege afforded by the regulation concerning non-disclosure, and after inspecting the entire parole file of the defendant in camera sustained the contention of the government that the contents thereof need not be disclosed. The file, under seal, has been transmitted to this Court.
The government relies upon the rationale of Palermo v. United States, 360 U.S. 343, 350 and 354, 79 S.Ct. 1217, 3 L.Ed.2d 1287, and the Jencks Act, 18 U.S.C.A. § 3500, as affording by analogy a proper basis for the court's rulings and its subsequent denial of the defendant's motion for a mistrial because of those rulings.
Whatever impact the reasons for the enactment of the Jencks Act, and the subsequent teachings of Palermo concerning the statute's application and the propriety of employing an in camera procedure in the resolution of questions arising thereunder with respect to the production of government records, may have in the situation where, as here, the witness involved has been called by the defense rather than the prosecution, we perceive no basis under the facts and circumstances here involved for excluding the testimony of the parole officer witness as to the content of conversations with defendant on the ground of privilege. No resort to the rationale of the Jencks Act or to that of Palermo is necessary to excuse the production of the records for defense examination or use. In the posture in which the issue arose the defendant had no right to examine or use such records for the purpose of the possible impeachment of his own witness, and, of course, no right to search this government file on the possibility that materials in aid of the defense might be gleaned therefrom. But, certainly, the subject matter of the conversation the defendant sought to have the witness disclose for the purpose of attempting to corroborate his own testimony did not involve national security or defense, secrets of state, or matter similarly privileged. No challenge was made as to the relevancy of the testimony sought to be elicited. And any likelihood that the interrogation of the witness might develop into an exposure of inner workings of the government's investigative processes could have been guarded against by the interposition of a proper objection should the questioning have taken such a course.
In our opinion the principle recognized and applied in United States v. Andolschek, 2 Cir., 142 F.2d 503, is equally controlling with respect to the content of the conversation here involved. The government elected to prosecute the defendant, and insofar as conversations between its parole officer and the defendant about matter relevant and material to the defendant's claimed relation to the government's narcotic law enforcement activities are concerned "the government must choose; either it must leave the conversations in the obscurity from which a trial would draw them, or it must expose them fully".
The court's ruling honoring the claim of privilege which was made and excusing the witness from testifying further about the conversation, although he had already testified to a part of his conversation with the defendant, was not withdrawn from the application of Andolschek by the in camera examination of the parole file. No examination of the file could have of itself determined that it contained in full the content of the conversation about which the defendant was inquiring. And there is no independent evidentiary...
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United States v. Rhodes, 16471.
...objection. On appeal to this court, we reversed Rhodes' conviction and remanded the case for a new trial. United States v. Rhodes, 360 F.2d 865 (7th Cir. 1966). In concluding that the court's ruling sustaining the Government's objection was erroneous, we We perceive no basis under the facts......