United States v. Edward Brookins and Jessie L. Oliver

445 F.2d 607, 1971 U.S. App. LEXIS 9123

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 6, 1971
• Docket: 30847_1
• Status: Published

Opinions

GODBOLD, Circuit Judge:

Appellants were convicted by a jury under an indictment in several counts charging nontax-paid liquor offenses arising from a.sale by Oliver to an informer, Lena Spencer, on November 13, 1969 (in which transaction Brookins participated) and from a sale by Brook-ins to Lena Spencer on December 11, 1969. We reverse.

Prior to trial, on three different occasions, appellant Brookins was officially supplied with what purported to be a copy of the indictment returned by the grand jury.¹ In two of the copies, in one or more counts, there were erasures or strikeovers by which the month “September” as the date of one or more of the alleged sales had been changed to “December.” One of the copies showed as a codefendant Ben Brookins (the son of appellant Brookins), while the indictment under which the defendants were arraigned and tried showed Raymond Smith as codefendant instead of Ben Brookins.

At arraignment, again by pretrial motion, in his opening statement at trial, and by offer of evidence during trial, counsel for appellants raised the issue that the copies of the indictment were relevant to the reliability of the testimony of the informer as to the dates of the two sales transactions and the identity of the participants.

We need not consider any other grounds for admissibility of the copies than that of impeachment by a prior inconsistent statement. Appellants’ counsel was correct in his theory if, first, to any material extent the allegations of fact in the copies were inconsistent with any statement made by Spencer at trial, and, second, if the allegations consisted of or in substance represented statements she had made either to the Assistant United States Attorney who drafted the copies or to someone else who in turn communicated them to the Assistant United States Attorney.

As to the first, the copies were inconsistent with Spencer’s testimony. She was particularly vague and contradictory about relevant dates. She placed the time of her employment to do undercover work as November 30, 1969, which was after the date charged as that of the first sale. On inquiry by the court she changed that date to September 30 (which date was corroborated by the investigators). However, she testified that she reported to the investigators undercover buys made from Brookins during September, on the 11th or 13th, which was before she was employed and before Brookins was even made known to her. This confusion especially sharpens the significance of the changes in the copies of “September” to “December.” Spencer told of numerous efforts to make buys from Brookins between December 1 and 11. The investigators corroborated November 11 and December 13 as correct dates. They did not corroborate her testimony of numerous attempts to make buys during the first half of December.² The informer identified both Ben Brookins and Raymond Smith as participants in one or both of the sales in which she stated she bought whiskey. Neither her testimony nor that of the investigators shed any light on why Ben Brookins was dropped as a putative defendant and Smith added in his stead.

Defense counsel directed his theory toward the expected — and actual — testimony of the informer. However, the copies also became admissible for impeachment of the investigators if, and to the extent, that the copies consisted of or represented statements made by them to the Assistant United States Attorney. If effect is given to the September date appearing on the copies before they were changed, they were inconsistent with testimony given by the investigators at the trial. Also it was shown that Spencer did not testify before the grand jury. Therefore, it may be inferred that one or more of the investigators did so, relating either what was known to such witness personally or had been related to him by some other of the investigators or by the informer. Thus, a further possible inconsistency appeared.

To decide the question of admissibility it was necessary to determine whether, and to what extent, the copies — and the alterations made in them — reflected statements made to the Assistant United States Attorney who drafted the copies, by Spencer or by one or more investigators. It does not matter that the statements represent a third party’s transcription or recollection of a prior statement, Howard v. United States, 108 U. S.App.D.C. 38, 278 F.2d 872 (1960) (commissioner’s synopsis of government agent’s testimony at a preliminary hearing) ; Clifton v. United States, 224 F.2d 329 (4th Cir. 1955) (testimony by a government agent as to a prior inconsistent statement made by a witness admitted, even though it was otherwise hearsay); Palm v. New York, N.H. & H.R. Co., 200 F.2d 67 (2d Cir. 1952) (statement by an adverse witness taken by the impeaching party’s agent and a court stenographer in question and answer form, and not signed by the witness) ; Kesmarki v. Kisling, 400 F.2d 97 (6th Cir. 1968) (answers to interrogatories in an unrelated law suit which were neither verified nor signed by the adverse party, so long as the answers represented the response of the adverse party. Since the party had testified that these answers were not reflections of her own statements, they were held inadmissible).

Defense counsel sought permission to examine the Assistant United States Attorney outside the presence of the jury as to who had given him the facts set out in the copies and the content of such information, but the District Judge denied the request. Instead the court allowed the Assistant United States Attorney to explain, also outside the presence of the jury, that before the grand jury met he discovered that the wrong date had been inadvertently typed into the proposed indictment, and that he changed the date with a pen on one copy, which the grand jury subsequently returned as its indictment. He described the copies sent to appellant Brookins as copies of “rough drafts,” on which corresponding changes had been made by typewriter. The copy showing the name of Ben Brookins as a defendant was explained to be a copy of a different indictment which was proposed but never presented to the grand jury at all. The Assistant United States Attorney assured the court that after the indictment was returned no alteration had been made in it. The District Judge stated that he accepted the statements explaining the various discrepancies and, on the basis thereof, considered the copies to be irrelevant.

Without the testimony of the Assistant United States Attorney the defense could not establish a foundation for use of the copies for impeachment purposes. Whether viewed as an erroneous application of normal evidentiary rules or of the confrontation clause of the Constitution, the court could not deny to the defendants the right to establish a predicate for admissibility. Nor could it deny the copies of any probative force (assuming they might have been shown to be admissible at all) by accepting the explanations of the Assistant United States Attorney as to the discrepancies. The jury would have been entitled to accept or reject those explanations, if made to it, and its province could not be preempted by the trial judge’s confidence in the Assistant United States Attorney’s reliability and the truthfulness of his explanations made to the court alone.³

There is no issue in this case of the right of a defendant to secure written memorials from the files of a United States Attorney in search of inconsistencies. The copies were freely and officially furnished to the appellants. Nor is the issue one of rejecting the trial court’s conclusion that the Assistant United States Attorney was a person of integrity whose explanation was acceptable to him.

Other contentions of the appellants— that the case was tried in the wrong division, that they were improperly denied the names and addresses of government witnesses, that cross-examination of Brookins was improper, and that the prosecutor commented on Oliver’s failure to testify — are without merit.

Reversed and remanded.

1 . Ono copy mis furnished to Brookins by the United States Commissioner. Two were mailed to him from the office of the United States Attorney. There are no grand jury minutes. However, no one disputes that the copy of the indictment under which appellants were arraigned and tried was the indictment actually returned by the grand jury.

2 . It was shown that Spencer assisted in making buys from a number of suspects in the same general area and over a period of several months. Her testimony was, in several respects, confusing, self contradictory and contradictory to that of the agents. In some respects, including the whereabouts of both appellants on November 13 and December 11, it was contradicted by defense witnesses.

3 . For applicable procedure when disclosure of information is demanded of an employee of.the Department of Justice, see 28 C.F.R. § 16.12 et seq.