United States v. Ruben Kirby and Allen Johnson

Second Circuit

United States v. Ruben Kirby and Allen Johnson

273 F.2d 956, 1960 U.S. App. LEXIS 5615

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 14, 1960

Docket134, Docket 25736

StatusPublished

Cited by5 cases

This text of 273 F.2d 956 (United States v. Ruben Kirby and Allen Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Ruben Kirby and Allen Johnson, 273 F.2d 956, 1960 U.S. App. LEXIS 5615 (2d Cir. 1960).

Pincite

Opinion

PER CURIAM.

After a trial before Judge Murphy without a jury defendants were convicted of conspiracy to violate and of a substantive violation of the narcotics laws, and they appeal.

We find no merit in the contentions of appellants that the evidence was insufficient to support the findings of guilt on both counts of the indictment and that the entrapment of appellants was established as matter of law.

During the cross-examination of a government agent who testified for the prosecution counsel for appellants demanded the production of the transcript of the testimony of this witness before the Grand Jury for the purpose of impeachment. Upon inquiry it was ascertained that the Grand Jury minutes had not been transcribed. Nevertheless, and despite the admission by counsel on the application for bail to Judge Lumbard on August 13, 1958 that the request for the production of the minutes “was abandoned when the Assistant United States Attorney said they were not available,” we are urged to reverse the judgments of conviction. It is clear, we think, that the rule of Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, and the so-called Jencks Act, 18 U.S.C.A. § 3500, are not applicable to Grand Jury minutes. United States v. Zborowski, 2 Cir., 1959, 271 F.2d 661. Insofar as the point concerns the duty of the court to inspect the Grand Jury transcript for inconsistencies between the testimony of the government agent at the trial and his testimony before the Grand Jury there is nothing before us as the request for the transcript was in effect withdrawn. Had the transcript been available we have no doubt that Judge Murphy would have examined it and made available to counsel any parts that disclosed inconsistencies. Moreover, as the transcript is now available, we have ourselves compared the testimony of the witness before the Grand Jury with his testimony at the trial and have been unable to find any inconsistencies.

Affirmed.

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PER CURIAM.

After a trial before Judge Murphy without a jury defendants were convicted of conspiracy to violate and of a substantive violation of the narcotics laws, and they appeal.

We find no merit in the contentions of appellants that the evidence was insufficient to support the findings of guilt on both counts of the indictment and that the entrapment of appellants was established as matter of law.

During the cross-examination of a government agent who testified for the prosecution counsel for appellants demanded the production of the transcript of the testimony of this witness before the Grand Jury for the purpose of impeachment. Upon inquiry it was ascertained that the Grand Jury minutes had not been transcribed. Nevertheless, and despite the admission by counsel on the application for bail to Judge Lumbard on August 13, 1958 that the request for the production of the minutes “was abandoned when the Assistant United States Attorney said they were not available,” we are urged to reverse the judgments of conviction. It is clear, we think, that the rule of Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, and the so-called Jencks Act, 18 U.S.C.A. § 3500, are not applicable to Grand Jury minutes. United States v. Zborowski, 2 Cir., 1959, 271 F.2d 661. Insofar as the point concerns the duty of the court to inspect the Grand Jury transcript for inconsistencies between the testimony of the government agent at the trial and his testimony before the Grand Jury there is nothing before us as the request for the transcript was in effect withdrawn. Had the transcript been available we have no doubt that Judge Murphy would have examined it and made available to counsel any parts that disclosed inconsistencies. Moreover, as the transcript is now available, we have ourselves compared the testimony of the witness before the Grand Jury with his testimony at the trial and have been unable to find any inconsistencies.

Affirmed.

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Bluebook (online)

273 F.2d 956, 1960 U.S. App. LEXIS 5615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ruben-kirby-and-allen-johnson-ca2-1960.

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