United States v. Sebastian, 990

• Decision Date: 07 June 1974
• Docket Number: Docket 74-1147.,No. 990,990
• Citation: 497 F.2d 1267
• Parties: UNITED STATES of America, Appellant, v. Anthony James SEBASTIAN a/k/a Tony Sebastian, and Patrick Gibbons, Appellees.
• Court: U.S. Court of Appeals — Second Circuit

497 F.2d 1267 (1974)

UNITED STATES of America, Appellant, v. Anthony James SEBASTIAN a/k/a Tony Sebastian, and Patrick Gibbons, Appellees.

No. 990, Docket 74-1147.

United States Court of Appeals, Second Circuit.

Argued May 8, 1974.

Decided June 7, 1974.

Anne M. Srebro, Asst. U. S. Atty. (John T. Elfvin, U. S. Atty. for the

Western District of New York, on the brief), for appellant.

George P. Doyle, Buffalo, N. Y. (Doyle & Denman; Martoche & Collesano, Stanley J. Collesano, Buffalo, N. Y., on the brief), for appellees.

Before ANDERSON, FEINBERG and MANSFIELD, Circuit Judges.

FEINBERG, Circuit Judge:

The issue raised in this case is whether a district judge may compel the Government at a pre-trial suppression hearing to turn over to the defense for use in cross-examination prior statements of prosecution witnesses who have already testified on direct. We hold that the Jencks Act (the Act), 18 U.S.C. § 3500, requires a negative answer.

I

The United States appeals, pursuant to 18 U.S.C. § 3731, from an order of the United States District Court for the Western District of New York, John T. Curtin, J., suppressing certain evidence the Government wishes to use at trial against Anthony James Sebastian and Patrick Gibbons, who have been charged with passing and uttering forged United States savings bonds and conspiring to do so. 18 U.S.C. §§ 472, 2 and 371. The evidence consists of a written statement taken from Sebastian by a government agent, and credit cards, checks and stock certificates allegedly stolen together with the bonds involved in this case and seized incident to Gibbons's arrest.

Judge Curtin's order was entered after the following course of events. The hearing on defendants' motion to suppress was held on December 19, 1973. The first prosecution witness, Deputy Sheriff Gary C. Behm, testified to Gibbons's arrest and the circumstances surrounding the resulting seizure. After his direct examination, the court ordered the Government to turn over "that part of Mr. Behm's investigative file which is thirty-five hundred i. e. Jencks Act material." The judge specified: "Whatever summary he made of his investigation, that shall be marked and made available. . . ." The Government, however, declined to yield any items, on the ground that the Act compels such disclosure only after a witness has testified on direct examination at trial. Similarly, when the second prosecution witness, United States Secret Service Agent Samuel J. Zona, testified to Sebastian's arrest and subsequent execution of a written statement, the court granted a defense request for production of Jencks material; again the Government refused to comply.

On December 21, 1973, the judge ordered Sebastian's statement and the items of physical evidence suppressed because of the Government's non-production. This appeal followed. For reasons stated below, we hold that the trial court erred in excluding the evidence and reverse the order of suppression.

II

In pertinent part, the Act provides as follows:

(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

(b) 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 . . . of the witness in the possession of the United States which relates to subject matter as to which the witness has testified. Emphasis added.

18 U.S.C. § 3500.

Clearly, the literal wording of the Act supports the Government's position that it may not be forced to give defendants statements of prosecution witnesses before the actual trial. The phrase used in the statute—"the trial of the case"— would not ordinarily be taken to mean a suppression hearing. For example, the proposed amendment to Rule 12 of the Federal Rules of Criminal Procedure states that a motion to suppress evidence must be made prior to trial.¹ The legislative history of the Act is less helpful. It reflects a general congressional aim to disapprove "misinterpretations" of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), which had led some lower federal courts to authorize excessive or untimely disclosure in reliance on supposed Supreme Court precedent,² and to establish "an exclusive procedure" for responding to defendants' demands for access to prior statements of government witnesses.³ But it is fair to say that the Act's history does not shed any blinding light on our immediate problem. As we previously stated in United States v. Covello, 410 F.2d 536, 544 (2d Cir.), cert. denied, 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 136 (1969):

In all probability Congress did not consider the question whether a suppression hearing is itself a "trial" or whether such a hearing is so much an integral part of the criminal trial that determines a defendant\'s innocence or guilt so as to intend either that the Act apply to such a hearing or that it not do so.

In terms of case authority, however, we do not write on a clean slate. In United States v. Percevault, 490 F.2d 126 (2d Cir. 1974), this court very recently overturned an order calling for pre-trial disclosure of Jencks material. Similarly, in United States v. Covello, supra, we upheld a trial judge's refusal to turn over a government agent's reports after the latter's direct testimony at a pre-trial suppression hearing. Decisions from other circuits, moreover, uniformly deny production before trial on the merits. See Robbins v. United States, 476 F.2d 26, 32 (10th Cir. 1973); United States v. Lyles, 471 F.2d 1167 (5th Cir. 1972); United States v. McMillen, 489 F.2d 229 (7th Cir. 1972); United States v. Montos, 421 F.2d 215 (5th Cir.), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970).

Appellees rely in part on United States v. Foley, 283 F.2d 582 (2d Cir. 1960), which Covello characterized "as holding no more than that we left it to the discretion of the trial judge whether to order a production of documents . . . ." 410 F.2d at 544-545. But Foley is readily distinguished by its unusual procedural posture. It arose on the Government's petition for mandamus, always an extraordinary remedy,⁴ and the court found "no indication from the transcript of the argument" that the judge would ultimately "require any disclosure to taxpayers of government files . . . inconsistent with applicable principles of law." United States v. Foley, supra, 283 F.2d at 584.⁵ Moreover, appellees' brief in Percevault, supra, called Foley to the attention of the panel. Nevertheless, the court stated that "cases which have afforded the district judge a measure of discretion in administering the Act . . . did not consider the timing of the disclosure . . .," 490 F.2d at 132 (emphasis added), but only procedural or definitional issues.

Appellees correctly point out that most of the decisions cited by the Government deal with requests for production in the context of discovery motions or preliminary hearings. See, e. g., United States v. Percevault, supra (discovery); United States v. Lyles, supra (discovery); United States v. McMillen, supra (discovery); Robbins v. United States, supra (preliminary hearing). Appellees argue most persuasively that the case for pre-trial disclosure is strongest in the framework of a suppression hearing. Since findings at such a hearing as to...