Williams v. United States, 17964.

• Decision Date: 12 December 1963
• Docket Number: No. 17964.,17964.
• Citation: 328 F.2d 178,117 US App. DC 206
• Parties: Isaac WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

117 US App. DC 206, 328 F.2d 178 (1963)

Isaac WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.

No. 17964.

United States Court of Appeals District of Columbia Circuit.

Argued November 12, 1963.

Decided December 12, 1963.

Mr. Vance A. Fisher, Washington, D. C., with whom Mr. George Blow, Washington, D. C. (both appointed by this court) was on the brief, for appellant. Mr. M. Michael Sharlot, Washington, D. C. (appointed by this court) also entered an appearance for appellant.

Mr. B. Michael Rauh, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before FAHY, DANAHER and BASTIAN, Circuit Judges.

FAHY, Circuit Judge:

Appellant was convicted of assault with a dangerous weapon. There was testimony and other evidence that he assaulted a man in a bar or grill with a bottle and bar stool. Appellant himself was shot by one Butler, the proprietor of the place who was tending the bar. Reversal is sought on grounds now to be mentioned and discussed with brevity.

It is said the court erroneously refused the request of defense counsel for an instruction on the lesser included offense of simple assault. We find no error in this respect. There was insufficient evidence of simple assault to have justified a verdict of guilty of that offense.

It is said cross-examination of Butler, designed to show his interest and bias, was erroneously restricted. We find no abuse of discretion in this regard, especially in light of the fact that the circumstances of the shooting by Butler and the consequent relation of this witness to the situation as a whole were sufficiently developed and argued to the jury.

It is said the court erred in refusing, on request, to order production of the transcript of the testimony of a key government witness given before the grand jury. We find no error in this refusal, because the evidence as a whole indicates no probable inconsistency.

It is said the court erred in instructing the jury that it was their duty to listen to each other with a view of being convinced by what their fellow jurors had to say so that the verdict would be unanimous and true. This was not objected to and occurred in the context of a full charge which precludes us from holding that the questioned part amounted to such plain error affecting substantial rights as to require reversal in the exercise of our discretion under Rule 52(b), Fed.R.Crim.P.

Neither in the respects discussed nor for other reasons do we find reversible error.

There is, however, a problem under the Jencks Act, 18 U.S.C. § 3500 (1958), which requires a remand. Butler, the proprietor of tho grill, and Pauline Smith, a waitress at the grill, testified for the prosecution. Each had testified before the grand jury and a short while before doing so each had given a statement to a clerk of the grand jury unit of the United States Attorney's office. The clerk was an agent of the government. The statements were taken down and transcribed in writing by the clerk. Counsel for appellant requested the production of both written statements. This was denied, the court ruling that the written statements were not substantially verbatim accounts of what the witnesses had said and were in no way inconsistent with the witnesses' testimony at the trial.¹ If, however, either statement was a substantially verbatim recital of what the witness had said to the clerk it should have been made available to defense counsel under the Jencks Act, which provides that after a witness called by the United States has testified on direct examination the court shall upon motion of the defendant order the United States to produce inter alia a stenographic or other recording or transcription "which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement." 18 U.S.C. § 3500(e) (2) (1958).

As was pointed out by this court in Saunders v. United States, 114 U.S. App.D.C. 345, 348, 316 F.2d 346, 349 (1963), and reasserted in Hilliard v. United States, 115 U.S.App.D.C. 86, 317 F.2d 150, 151 (1963), these statutory provisions require that when a defendant seeks the production of a statement, as defined in the Act, "the district court has an affirmative duty to determine whether any such statement exists and is in the possession of the Government and, if so, to order the production of the statement." In Hilliard we further pointed out, "A trial judge is to conduct such inquiry as may be necessary to determine whether or not the conditions of the statute have been satisfied. His inquiry may involve an interrogation of witnesses, or he may make an in camera examination of the statement," or the circumstances may call for both such in camera examination and interrogation of witnesses. This is clear from the decisions of the Supreme Court in Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963), decided subsequent to the trial of this case, and in Palermo v. United States, 360 U.S. 343, 354-355, 79 S.Ct. 1217, 1226, 3 L.Ed.2d 1287 (1959). In the latter case the Court said:

"It is also the function of the trial judge to decide, in light of the circumstances of each case, what, if any, evidence extrinsic to the statement itself may or must be offered to prove the nature of the statement. In most cases the answer will be plain from the statement itself. In others further information might be deemed relevant to assist the court\'s determination."

In the present case the trial judge examined the statements. They have also been made available to and have been examined by this court. It cannot be determined from the statements themselves that they are not substantially verbatim recitals of what the witnesses told the government agent. It is...