United States v. Waldman, Cr. A. 66-57.

• Decision Date: 05 March 1958
• Docket Number: Cr. A. 66-57.
• Citation: 159 F. Supp. 747
• Parties: UNITED STATES of America, Plaintiff, v. Benjamin WALDMAN, Defendant.
• Court: U.S. District Court — District of New Jersey

159 F. Supp. 747

UNITED STATES of America, Plaintiff, v. Benjamin WALDMAN, Defendant.

Cr. A. 66-57.

United States District Court D. New Jersey.

March 5, 1958.

Chester A. Weidenburner, U. S. Atty., Newark, N. J., by Jerome D. Schwitzer, Asst. U. S. Atty., Asbury Park, N. J., for plaintiff.

Anthony A. Calandra, Newark, N. J., for defendant.

HARTSHORNE, District Judge.

The question here is as to the meaning of the recent statute, 18 U.S. C.A. § 3500, enacted by the Congress as a result of the decision of the United States Supreme Court in Jencks v. U. S., 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed. 2d 1103. A witness for the Government, Rosenberg, testified at length as to a certain fraud basic to the pending indictment against defendant, Waldman. Upon the conclusion of Rosenberg's direct testimony, Waldman's counsel demanded the production of any statement of Rosenberg, or report thereof, held by the Government as to the subject of such testimony. The Government admitted that it had a report of such testimony, but denied that this "statement" was of the nature which it was required to turn over to the defense, under the above statute, for inspection at the trial before cross-examination of the Government witness.

We turn to the bearing of the statute upon the doctrine laid down in Jencks. The decision in that case was based on the well known principle that if a witness who has testified has previously made admissions contrary to his testimony, these admissions are provable to affect his credibility.

"Requiring the accused first to show conflict between the reports and the testimony is actually to deny the accused evidence relevant and material to his defense." Jencks, 353 U.S. at page 667, 77 S.Ct. at page 1013.

"Because only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government's witness and thereby furthering the accused's defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less. * * * Only after inspection of the reports by the accused must the trial judge determine admissibility—e. g., evidentiary questions of inconsistency, materiality, and relevancy * * *" ibid., 353 U.S. at pages 668, 669, 77 S.Ct. at page 1013.

It should be noted that in Jencks the Supreme Court does not deal expressly with the constitutional validity of the procedure there as a violation of "due process" but with the "standards for the administration of criminal justice in the federal courts." Ibid., 353 U.S. at page 668, 77 S.Ct. at page 1013. It should further be noted that both Jencks and the above statute deal not with the defendant's right to inspect such statements at pretrial, but only at trial, United States v. Grossman, D.C.N.J.1957, 154 F.Supp. 813.

The legislative history of this statute is illuminating as to its meaning.¹ Therefrom it appears that the report of the Senate Committee on the Judiciary, in introducing the Department bill to implement Jencks, "was not to nullify but to clarify the Jencks decision." Ibid., at page 1. "Legislation was necessitated by the varying district and circuit court interpretations of the decision, some of which went far beyond the apparent holding of the court." For instance, certain courts incorrectly held that Jencks required the Government to furnish such statements of witnesses at pretrial, i. e., before they were witnesses. Certain courts required statements to be turned over to the defense which dealt with other matters, as well as those on trial, i. e., endangered defense counsel's roving at will through the Department of Justice files. In the legislative history it further appears from the Senate Committee Report, "that the bill was designed to preserve the due process rights of defendants." Ibid., at page 2.

It should be noted that the Department of Justice bill, as originally introduced in the Senate, only called for the disclosure of written statements of the witness himself as covered by the statute, subparagraph (e), subdivision (1), but did not cover at all oral statements reported by a Government agent, subparagraph (e), subdivision (2), i. e., the nature of the statement here involved. In other words, the Congress liberalized the legislation from that proposed by the Department of Justice.

Thus, in construing the above law, this court must bear in mind, first, its purpose "not to nullify but to clarify the Jencks decision," and, second, the intent of the Congress to liberalize the statements to be produced, from the nature of the statements which the Department of Justice desired to be produced. Again, Senator O'Mahoney, in charge of the Department bill in the Senate, said that it, as amended, ...