United States v. Rosenberg, 12554.

• Citation: 257 F.2d 760
• Decision Date: 22 July 1958
• Docket Number: No. 12554.,12554.
• Parties: UNITED STATES of America v. Joel ROSENBERG, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

257 F.2d 760 (1958)

UNITED STATES of America v. Joel ROSENBERG, Appellant.

No. 12554.

United States Court of Appeals Third Circuit.

Argued June 9, 1958.

Decided July 22, 1958.

Rehearing Denied August 15, 1958.

COPYRIGHT MATERIAL OMITTED

Bernard Tompkins, New York City (Herbert Edelhertz, New York City, Stanley Bernard Singer, Philadelphia, Pa., on the brief), for appellant.

Louis C. Bechtle, Asst. U. S. Atty., Philadelphia, Pa. (Harold K. Wood, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

Before KALODNER, STALEY and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

For a second time in the course of this litigation we must determine whether withholding from the defendant certain data, which defense counsel had asked the government to surrender for inspection and possible use in the cross-examination of witnesses, has amounted to reversible error under the principles announced in Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103. On the first appeal we set aside appellant Rosenberg's conviction, holding that the "failure of the trial judge to permit counsel for the defendant to inspect at the trial the witness' grand jury testimony and statement to the F. B. I., as required by the rule announced in the Jencks case, compels us to grant a new trial." 3 Cir., 245 F.2d 870, 871.

A new trial followed. The defense again asked that the government produce for its examination reports and statements which might facilitate cross-examination of two prosecution witnesses. The prosecution produced all of the records it had of its dealings with these witnesses. The trial judge then examined the data to determine how much of it was relevant and potentially useful for the purposes of the defense. As a result of this examination the court permitted defense counsel to examine and use most of the data. However, the court ruled that certain items were irrelevant and, over objection, denied the defense permission to examine them. At the same time, the court did make the documents in question part of the record for our consideration on appeal.

The crime for which appellant has been convicted was the transporting of a check in interstate commerce after participating in the fraudulent scheme by which the check had been obtained. 18 U.S.C. § 2314. The government's theory was that the appellant had collaborated with one Meierdiercks in the entire criminal enterprise. Meierdiercks appeared and testified as an important government witness. At the conclusion of his direct testimony the defense asked that it be permitted to examine the government's records of and concerning prior statements by the witness. A similar request was made for data concerning statements of the prosecuting witness, Florence Vossler, who had been the victim of the fraudulent scheme.

We have examined all of the items which the defendant was not permitted to examine. Several of the documents contain no reference to, much less the text or any summation of, anything said by either witness. For example, two are office memoranda concerning the progress and procedure of a then pending prosecution of Meierdiercks. Another paper contains a detailed physical description and summary personal history of Meierdiercks. Still another is a record of an unsuccessful search for certain names on hotel registers at or about the time of the crime. These and other miscellaneous items from the prosecutor's files were obviously not germane to the request of the defendant. Why the prosecution produced them is not clear. Their surrender could not have been responsive to the defense request or to any proper request for whatever records the government had made, in verbatim text or otherwise, of prior statements of certain witnesses.

There was also a minute or office notation stating as a fact that, on first questioning, Meierdiercks had denied any involvement in the alleged wrongdoing. In some circumstances it might well have been improper to withhold this summary record of what the witness had said. But here Meierdiercks' first verbatim statement to the Federal Bureau of Investigation, denying implication in the wrongdoing, was among the papers surrendered to the defense. There was no point, therefore, in adding a general notation that he had made a denial of this kind. Similarly, the court withheld a typewritten copy of a later detailed statement of the witness about the crime. This too was surplusage, because the original longhand text of that very statement was surrendered to the defendant.

More troublesome is the fact that the court withheld from the defense a letter written to the prosecutor by the victim, Miss Vossler, just before the second trial of the case, in which she expressed concern that the lapse of time had made her recollection of details of relevant transactions hazy so that she would have to rely upon her previous detailed statement to refresh her memory. Certainly an admission by a witness to the prosecutor that time has thus dimmed her recollection of events as to which she is to testify is a type of statement which should be made available to the defense under the Jencks rule. But after examination of the actual testimony of Miss Vossler we think it clear that the defendant suffered no prejudice from this...