Isaac Williams v. United States

338 F.2d 286, 119 U.S. App. D.C. 177, 5 A.L.R. 3d 746, 1964 U.S. App. LEXIS 4248

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 1, 1964
• Docket: 18462
• Status: Published

Opinions

FAHY, Circuit Judge:

In Williams v. United States, 117 U.S. App.D.C. 206, 328 F.2d 178 (1963), on appeal from this appellant’s conviction of assault with a dangerous weapon, we remanded the case to the District Court for further proceedings consistent with the decision of the Supreme Court in Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428, (1961), and our cases of Saunders v. United States, 114 U.S.App.D.C. 345, 348, 316 F.2d 346, 349 (1963), and Hilliard v. United States, 115 U.S.App.D.C. 86, 317 F.2d 150, 151 (1963). The purpose was to have an inquiry by the court as to the producibility under the Jencks Act, 18 U.S.C. § 3500(e) (2) (1958) of statements of Thomas Butler and Pauline Smith, who-had testified for the prosecution. Their statements had been given to a clerk of a grand jury unit of the United States Attorney’s office, herein as a matter of convenience referred to as the clerk, an agent of the government. The statements were transcribed by the clerk in typewriting during the interviews. The court had denied defense counsel’s request for their production, made after the witnesses had testified on direct examination. The court ruled the statements were not substantially verbatim accounts of what the witnesses had said to the clerk, adding that they were in noway inconsistent with their testimony at the trial. We held that if they were substantially verbatim recitals they were producible, unless no prejudice resulted from non-production. An appropriate judicial inquiry into producibility not having been held we remanded, the fate of the conviction to depend upon the result of such an inquiry.

On the remand the required hearing was held. The court found, and It is not contested, that the statements were recorded contemporaneously with their making. But the court also found that they are not substantially verbatim-, are merely summaries of the witnesses’’ accounts of the crime, contain only the-substance and highlights of the accounts-given to the clerk by the witnesses, and). also, that in any event the failure to produce was not prejudicial to appellant. The court accordingly ruled that the judgment of conviction should stand. The case is now before us on appeal from this ruling.

With all deference we are unable to agree that defense counsel was not entitled to the statements in aid of his conduct of the defense. Since it is not disputed the statements met the requirement of the Jencks Act as having been “recorded contemporaneously” with their making, the issues are whether they were “substantially verbatim” recitals and, if so, whether the failure to make them available to the defense was harmless.

I. A perusal of the statements strongly indicates that they set forth a running account of what the witnesses said to the clerk, though transcribed largely in the third person. The transcription is a graphic description of events upon the basis of which the indictment was returned and the trial proceeded. It contains idiomatic language, .at one point set off by quotation marks, indicative of verbatim transcription, with abbreviations to aid in the expedition of transcription; and on their face the statements appear to be complete.

It is true that at the hearing on remand the clerk testified the statements were “my version” of what the witnesses told him, but this we interpret in the context of the clerk’s testimony as a whole, from which it appears he meant that when the witness said, for example, “I hit” him, the clerk transcribed it “He hit” him. He said that normally he talks to the witness, then turns around and writes “his version” of what the oral statement was. Butler and Smith both testified that the clerk was typing while they were giving their statements.

It was brought out that the clerk held Bachelor of Arts and Bachelor of Law degrees, that he considers the statements he obtains from such grand jury witnesses important for the purpose of affording the staff of the United States Attorney’s office opportunity to know what the case is all about in presenting it before the grand jury and, if the case advances to indictment, to give the one who prepares the indictment the necessary information; that the clerk tries to be accurate in taking down the essentials ; and that to him “substantially verbatim” means “exactly,” “word for word,” “every i and every t.” This, however, is really “precisely verbatim,” a degree of accuracy which the Jencks rule does not require as a condition to producibility. In taking these statements the clerk further testified he gets down the essential part, the heart of the testimony, tries to put down the substance of the witnesses’ testimony, and everything in the statement is something the witnesses said.¹ Toward the end of the clerk’s testimony the court said to him, “As I gather it, detail, in the sense of minutia, you don’t bother with it. You want to get the basic facts.” The clerk answered, “That is correct, Your Honor.”

In Palermo v. United States, 360 U.S. 343, 350, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), it is said that in determining the producibility of statements under the Jencks Act the issue is whether a statement can be fairly said to be the witness’ own so that it would not be unfair to allow the defense to use it to impeach the witness. Clearly, it seems to us, this test is here met. To repeat, “substantially verbatim” does not mean “precisely verbatim.”

The Government suggests several factors by which to judge whether a statement comes within the Jencks Act: (1) the extent to which it conforms to the language of the witness; (2) its length in comparison with the length of the interview; (3) the lapse of time between the interview and its transcription; (4) the appearance of the substance of the witness’ remarks; (5) the use of quotation marks; and (6) the presence of the comments or ideas of the interviewer. These are guidelines to aid in the application of the test announced in Palermo, and it is not suggested that the eases cited to support the importance of these factors require conformity with each. Nevertheless we think their application to the present case supports the producible character of the statements. We also give weight to the trial court’s findings of the purposes for which the statements were obtained, to give the United States Attorney presenting the case before the grand jury an idea of exactly what information the witness had, to provide the indictment writer and the government’s trial attorney with accurate information and also, on occasion, to provide a means for impeaching a witness who changes his testimony.

The knowledge of the clerk of the use to be made of the statements tends to support their accuracy. That this is so is illustrated by a change he made in one of the statements to insure accuracy. See note 1, supra. The testimony as to how the statements were contemporaneously recorded also lends support to the view they were substantially verbatim, as does a comparison between the length of the statements in relation to the probable length of the interviews. The trial court found, moreover, that the clerk would not change a witness’ words where to do so would materially alter the purport of the witness’ statement, and, finally, the ungrammatical construction of the sentences, contrasting with the educational qualifications of the clerk, indicates he was making substantially verbatim transcriptions.

II. On this review we may not rule against the findings of fact of the trial judge unless we conclude they are clearly erroneous. Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963); Palermo v. United States, supra, 360 U.S. at 353, 79 S.Ct. 1217. However, a finding that written statements are or are not producible under the Jencks Act as substantially verbatim recitals of witnesses’ oral statements is not an ordinary finding of fact; it is a factual conclusion arrived at by applying a legal standard to the other facts found. To the extent that this conclusion is based upon the application of an erroneous rule of law or is inconsistent with the facts upon which it purports to rest then it is clearly erroneous. In holding, as we do, that the trial court erred in finding that the statements were not producible, we accept the court’s basic findings of fact. We do not accept, however, the court’s finding that the statements were “not substantially verbatim, but were merely [the clerk’s] summary of the witnesses accounts.” Such a conclusion, we think, is the result of the application of an erroneous legal standard, and is inconsistent with the subsidiary findings upon which it is based and the evidence as a whole. We keep in mind, in the practical application of the Jencks Act, “The command of the statute is * * * designed to further the fair and just administration of criminal justice, a goal of which the judiciary is the special guardian.” Campbell v. United States, 365 U.S. 85, 92, 81 S.Ct. 421, 425, 5 L.Ed.2d 428.

Being clear, but with deference, that the statements are producible under the Act,² we conclude that the conviction must be set aside and a new trial granted, unless the error in not requiring production was harmless, a question we now consider.

III. The case is unlike Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959), where the error of the trial court in not making a producible statement available was held to be harmless because the same information was available to the defense in another form. The statement involved was a letter of the witness written prior to trial stating that in order to refresh her failing memory she would need to reread the original statement she had given to the F.B.I. Thus in Rosenberg the subject matter of the statement was the single fact of loss of recollection. As the Court pointed out,

“[T]he same information which was contained in the letter was revealed to defendant’s counsel by statements made by [the witness] under cross-examination and upon questioning by the trial judge.”

360 U.S. at 370, 79 S.Ct. at 1234. In our case, however, the producible statements contain a running account of the events surrounding the commission of an alleged offense, not an isolated item of information otherwise obtained by defense counsel.

The issue of credibility of the witnesses for the defense vis-a-vis those for the prosecution was important. Defendant took the stand and gave quite a different version from that given by Butler and Smith of the events which led to his indictment. His testimony was corroborated by that of another witness. If believed this version of the affair might have persuaded the jury that Butler, who in fact shot the defendant but claimed to have done so to protect one Hicklin from an attack by defendant, was not to be believed, and that the facts did not require conviction of defendant. We do not intimate that the jury would have so concluded. If there were discrepancies between the statements and the testimony of Butler and Smith given at the trial, as we find to be the case, then the failure to make the statements available to defense counsel deprived him of the right effectively to conduct the defense as contemplated by the Jencks rule.

There were a number of such discrepancies. Both Butler and Smith testified defendant hit Hicklin only once with a bar stool, whereas both said in their statements that defendant hit Hicklin a second time with the bar stool. In this respect the statements may have been more favorable to defendant than the witnesses’ trial testimony, but this is not decisive under the Jencks Act. The issue is whether counsel should have had the choice of using the statements to test the witnesses’ credibility; that is, in the present context, to test whether the witnesses gave true accounts of what occurred. This should be considered along with the defendant’s testimony that he was chased out of the bar by Butler who was brandishing a pistol and that if he, the defendant, hit Hicklin at all it was by bumping him when he was trying to get out the door.³

The error, therefore, in denying the request of the defense for production of the statements was not harmless. See Clancy v. United States, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961), where the Court said:

“Since the production of at least some of the statements withheld was a right of the defense, it is not for us to speculate whether they could have been utilized effectively. As we said in Jencks v. United States, supra, 353 U.S. [657] 667, 77 S.Ct. [1007] 1013 [1 L.Ed.2d 1103];

“ ‘Flat contradiction between the witness’ testimony and the version of the events given in his report is not .the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’ trial testimony.’ ”

365 U.S. at 316, 81 S.Ct. at 648.

Reversed and remanded for proceedings not inconsistent herewith.

1 . The evidence further shows that to make the transcription of Mr. Butler’s statement conform more accurately to what the witness had said the clerk corrected his transcription by changing the sen-fence, “then at one time he threw a glass of beer on the floor and broke the bottle and glass,” to read “then at one time he threw a glass of beer on the floor and the bottle too.”

2 . As we pointed out in our first opinion in this case, the produeibility of the statements is not affected hy the self-serving declaration found at the top of each stating that: “The following is a summary of the witness conversation not read to or by the witness it is not intended to be a substantially verbatim account — ws.” (Lack of punctuation as in original.) See Williams v. United States, supra, 328 F.2d at 180.

3 . There are other discrepancies. As examples, Butler on the stand placed defendant’s arrival at the grill “around about five o’clock” whereas in liis statement he placed it “starting at 7 PM”; Butler testified that he had always liked defendant and had no grudge against him. but in his statement he referred to Mm as a “member of a gang that buys whiskey outside and drinks same in the streets * * * and then comes into the grill and starts trouble,” that he had told him to get out and that “he did not want him in there.”