United States v. Michael Sidney Walk

533 F.2d 417, 1975 U.S. App. LEXIS 11377

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 1975
• Docket: 74-1899
• Status: Published

Opinions

OPINION

Before KOELSCH and SNEED, Circuit Judges, and FIRTH,* District Judge.

SNEED, Circuit Judge:

Defendant Walk was indicted for bank robbery in violation of 18 U.S.C. § 2113(a). Defendant moved for discovery of “any and all proported [sic] confessions, admissions, or statements made by [defendant], within the possession, custody or control of the government . . . At issue were statements made by the defendant to a third-party witness, which statements were reported by the witness to the Federal Bureau of Investigation, and written by the F.B.I. in the form of memoranda of the interview of the witness.

Pursuant to Rule 16(a)(1) of the Federal Rules of Criminal Procedure, the trial court ordered the government to produce all language in the witness’ statements attributable to the defendant, and the government refused. The trial court dismissed the indictment, and the government appeals therefrom.

The Jencks Act, 18 U.S.C. § 3500, controls in this case, and we therefore reverse the district court’s dismissal and order that the statements be produced only in accordance with the provisions of the Jencks Act.

Rule 16(a)(1) allows discovery of a written or recorded statement made by the defendant.¹ A statement need not be actually written or typed by the defendant to be the defendant’s “written statement”; for example, a stenographer’s transcription or a government interviewer’s relatively contemporaneous writings may be considered written statements of the defendant. In the instant case, the defendant made no written statement. The written statements were made by the F.B.I. agent, whose notes incorporated the statements of a witness, which in turn contained oral “statements” allegedly attributable to the defendant. Thus, the connection between the defendant and the written statements is too attenuated for the statements to be considered written statements made by the defendant. Any “statement” made by the defendant herein does not fall within the ambit of Rule 16(a)(1).

Furthermore, even if Rule 16(a)(1) were applicable, discovery would be precluded by Rule 16(b)² and the Jencks Act.³ The statements at issue in this case are certainly statements made by a prospective government witness, and therefore are subject to the provisions of the Jencks Act. Even assuming the applicability of Rule 16(a)(1), the Jencks Act, by its very language and that of Rule 16(b), controls and the witness’ statements may not be discovered until the witness has testified on direct examination. Cf. Sendejas v. United States, 428 F.2d 1040 (9th Cir.), cert. denied, 400 U.S. 879, 91 S.Ct. 127, 27 L.Ed.2d 116 (1970). Indeed, the production of the witness’ statements is exclusively governed by the Jencks Act.⁴

This result is consistent with the purposes of the Jencks Act. In enacting the Jencks Act, Congress sought to protect government files against unwarranted intrusions prompted by the excessively expansive reading by some lower federal courts of the United States Supreme Court’s decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1953).⁵ This protection of government files is necessary to protect government witnesses from threats, bribery and perjury. The mere fact that the witness’ statement in this case contains oral “statements” attributable to the defendant in no way diminishes the recognized, governmental interest in protecting the identity of the witness, and the context of the statement, until the time of trial. We agree with the Seventh Circuit that as a practical matter it will be impossible to excise oral “statements” of the defendant without revealing the contents of the witness’ statement. United States v. Feinberg, 502 F.2d 1180 (7th Cir. 1974), cert. denied, 420 U.S. 926, 95 S.Ct. 1122, 43 L.Ed.2d 396 (1975).⁶ Thus, to allow pretrial discovery of this statement would flout both the language and the intent of the Jencks Act. Defendant Walk’s right to receive the witness’ statements at trial is assured by the Jencks Act.⁷ Thus, our holding protects government files and witnesses and preserves the defendant’s right to use the statements for impeachment purposes.

Any prejudice to the defendant is not great. In order for the alleged oral remarks of the defendant to be admitted, the witness must testify; if so, the defendant may test on cross-examination the credibility of that testimony, including any remarks attributed to him. In this endeavor he will be aided by the Jencks Act. 18 U.S.C. § 3500(b). Earlier disclosure of statements written and signed by defendant permitted by Rule 16(a)(1) is warranted because there exists no similar opportunity to confront and cross-examine.⁸ Hence, the grounds for pre-trial discovery of these statements are not as compelling as they might be in the typical Rule 16(a)(1) case.

We hold that the Jencks Act prohibits the pre-trial disclosure of the witness’ statements, even when such statements contain quotations allegedly attributable to the defendant, and that such statements may only be produced in accordance with the provisions of the Jencks Act. In so doing, we accept the reasoned decisions of other federal courts which have similarly held. United States v. Feinberg, supra; United States v. Wilkerson, 456 F.2d 57 (6th Cir. 1972), cert. denied, 408 U.S. 926, 92 S.Ct. 2506, 33 L.Ed.2d 337 (1972); United States v. Dorfman, 53 F.R.D. 477 (S.D.N.Y. 1971), aff’d, 470 F.2d 246 (2d Cir. 1972).

Reversed and remanded.

1 . At the time of the district judge’s order, Rule 16(a)(1) provided:

“(a) Defendant’s Statements; Reports of Examinations and Tests; Defendant’s Grand Jury Testimony.

Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government

Rule 16 has since been amended in a manner not material to the result of this case. The amendment is scheduled to take effect December 1, 1975. Act of July 31, 1975, Pub.L. No. 94-64, 89 Stat. 370.

2 . Rule 16(b) provides in pertinent part:

“Except as provided in subdivision (a)(2), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses (other than the defendant) to agents of the government except as provided in 18 U.S.C., § 3500.”

3 . In pertinent part, the Jencks Act provides:

“(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 subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.”

4 . “The purpose of the [Jencks] Act, its fair reading and its overwhelming legislative history compel us to hold that statements of a government witness made to an agent of the Government which cannot be produced under the terms of 18 U.S.C. § 3500 cannot be produced at all.” Palermo v. United States, 360 U.S. 343, 351, 79 S.Ct. 1217, 1224, 3 L.Ed.2d 1287 (1959).

5 . In Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 1224, 3 L.Ed.2d 1287 (1959), the United States Supreme Court grappled with the scope of the term “statement” in the Jencks Act, and in particular section (e) thereof. Thus, the Court properly emphasized (as the dissent herein notes) the policy rationale that any statement allowed to be produced should fairly represent the words of the witness, lest that witness be unfairly impeached. Id. at 350, 79 S.Ct. 1217. But the Court certainly recognized that the impetus for the enactment of the Jencks Act (as opposed to the narrow concept of what constitutes a “statement” thereunder) was the protection of government files and the investigatory process, as we suggest herein. Id. at 346, 347, 350, 79 S.Ct. 1217. See, e. g„ United States v. Dorfman, 53 F.R.D. 477, 479 (S.D.N.Y.1971), aff’d, 470 F.2d 246 (2d Cir. 1972) (Congress sought to protect security of government witnesses).

6 . In Feinberg, the Seventh Circuit reversed the district court on the issue involved in this case, and held that statements made by a defendant to a prospective government witness are not discoverable under Rule 16(a)(1). The lower court decision that was thereby reversed is heavily relied upon by the dissent herein, post.

7 . Although it is true that the scope of the term “statement” may differ between Rule 16 and the Jencks Act, in this case the Government has conceded that the statements are within the scope of the Jencks Act. (Gov.Br., pp. 2-3).

8 . Effective December 1, 1975, Rule 16(a)(1)(A), as amended, will permit the discovery of “ . the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent . . .” Early disclosure authorized by this provision cannot be justified on the basis of the absence of an opportunity to confront and cross-examine. The government agent to whom an oral statement was made usually is available for confrontation and cross-examination. However, early disclosure in this case does not imperil government witnesses. The government agent to whom the defendant’s oral statement was made presumably does not require the protection the Jencks Act provides to other government witnesses. Moreover, the specificity of this amendment supports our holding. Were the defendant’s view of the current Rule 16(a)(1) proper, the Amendment would be either unnecessary or, if necessary, too narrowly drawn. Cf. United States v. Feinberg, supra.