The opinion of the court was delivered by: PALMIERI
This is a long and complex criminal anti-trust case in which the indictment is based upon alleged violations of the Sherman Anti-Trust Act, 26 Stat. 209 (1890), as amended, 15 U.S.C. §§ 1 and 2 (Supp. V). It is being tried before me without a jury.
I have considered it necessary to file this opinion because of repeated motions by defense counsel for full disclosure to them of Grand Jury testimony
of witnesses called by the Government, without prior scrutiny of the Grand Jury transcript by the Court
I have declined to permit such disclosure, adhering in each instance to the rule of this Circuit as set forth in United States v. H.J.K. Theatre Corp., 2 Cir., 1956, 236 F.2d 502, certiorari denied sub nom. Rosenblum v. United States, 1957, 352 U.S. 969, 77 S. Ct. 359, 1 L. Ed. 2d 323 and United States v. Alper, 2 Cir., 1946, 156 F.2d 222, which requires disclosure only of inconsistent statements after scrutiny of the Grand Jury testimony in camera by the Court.
Defense counsel have opposed such scrutiny by me although I have repeatedly offered to make it.
They have asserted their right to full and untrammelled disclosure at the conclusion of the witnesses' direct testimony, and nothing less.
They assert that this right is theirs under the Supreme Court's decision in Jencks v. United States, 1957, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103
It is my view that such disclosure should not be granted in regard to Grand Jury minutes; that the scope of the Jencks decision does not extend to Grand Jury minutes; that the defendants are entitled only to the disclosure of inconsistent statements made before the Grand Jury; and that the Court must determine whether this inconsistency exists.
The right of defense counsel to inspect the Grand Jury testimony of a witness was not in issue in the Jencks case. The statements involved in that case were statements made before trial to agents of the Federal Bureau of Investigation. No questions were raised involving Grand Jury testimony nor was the matter discussed in the opinion of the Supreme Court.
The Jencks decision, essentially, is a re-examination and clarification of two procedural matters which arise in connection with the availability to the defense, for cross-examination purposes, of documents in the possession of the Government. The first of these is the requirement imposed by some courts that the defense preliminarily show that the documents contain statements inconsistent with the witnesses' testimony at the trial. The second is the practice of having the Court determine whether the documents are relevant and material to the cross-examination. The Jencks decision disapproves of both these practices
In dealing with the latter practice, the Supreme Court cited and disapproved five cases decided by the Court of Appeals for the Second Circuit.
Two of them (Ebeling and Krulewitch) related solely to statements made by witnesses to the Federal Bureau of Investigation; two of them (Grayson and Beekman) related to records of the Securities and Exchange Commission and Office of Price Administration, respectively; while the fifth case (Cohen) concerned a demand for both testimony of a witness before a Federal Grand Jury and written statements given to the prosecutor, although it appears that the Circuit Court ruled only on the statements. If, the defense argument runs, the Jencks decision is meaningful as an expression of a rule of fairness in the administration of criminal justice in the federal courts, the Supreme Court must not be understood to have made one rule for prior statements made to Government agents and another rule for prior Grand Jury testimony. Thus, they contend, the path has been prepared for the untrammelled disclosure, which they seek, of all prior Grand Jury testimony. The argument is alluring. But I feel constrained to reject it
In the absence of a clear and unequivocal statement to that effect, I cannot believe the Supreme Court intended its holding to apply to prior Grand Jury testimony. The inclusion of the Cohen case among the five Second Circuit decisions cited and disapproved is not, in my opinion, sufficient to attribute to the opinion in the Jencks case a meaning nowhere expressed. My belief that the Jencks decision was not intended to bear on disclosure of Grand Jury minutes is reinforced by the fact that the Court did not cite such Second Circuit cases as United States v. H.J.K. Theatre Corp., supra, and United States v. Alper, supra, when it expressed its disapproval of the practice of having the trial judge determine whether the document was relevant for cross-examination purposes. These cases dealt with Grand Jury minutes and it is reasonable to assume that, if the Court intended its ruling to apply to such minutes, it would have referred to these cases.
The Supreme Court, in Jencks, disapproved the requirement that a showing of inconsistency be made before the documents are turned over to the defense. It stated that the Fifth Circuit's reliance on Gordon v. United States, 1953, 344 U.S. 414, 73 S. Ct. 369, 97 L. Ed. 447 for that proposition was 'misplaced,' and that the Gordon opinion had been 'misinterpret(ed).' 353 U.S. 657, 666, 77 S. Ct. 1007, 1012. Turning to the Gordon opinion, then, it should be noted that that case dealt with the question of turning over to the defense prior statements of a witness made to the Government. Grand Jury minutes were not involved. In setting forth the problem which was before it in Gordon, the Court, at 344 U.S. 414, 418, 73 S. Ct. 369, 372, said:
'Apparently, earlier common law did not permit the accused to require production of such documents. Some state jurisdiction still recognize no comprehensive right to see documents in the hands of the prosecution merely because they might aid in the preparation or presentation of the defense. We need not consider such broad doctrines in order to resolve this case, which deals with a limited and definite category of documents to which the holdings of this opinion are likewise confined.'
What it comes down to, then, is this: The Supreme Court, in Jencks, handed down a decision which did not deal with Grand Jury minutes. The Jencks decision interpreted and explained a prior Supreme Court decision (Gordon) which was explicitly limited to statements made to Government investigators. The Jencks decision also disapproved a certain practice prevalent in this Circuit and, in connection with this disapproval, cases were cited dealing with non-Grand Jury documents while the cases which did deal with Grand Jury minutes were not cited.
From this, defendants would have me conclude that the Supreme Court, in Jencks, established a rule of procedure to be followed in dealing with Grand Jury minutes
An examination of other Supreme Court decisions indicates, however, that Grand Jury minutes are not to be dealt with in the same manner as other documents. The Supreme Court has, in the last twenty years, considered the extent to which Grand Jury minutes must be divulged by the Government. This was done in United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 231-237, 60 S. Ct. 811, 84 L. Ed. 1129; and United States v. Johnson, 1943, 319 U.S. 503, 512-513, 63 S. Ct. 1233, 87 L. Ed. 1546.
In the Socony-Vacuum case, the Government and trial judge had used Grand Jury minutes to refresh the recollection of certain witnesses. The trial judge had refused to permit inspection of the minutes by defense counsel. In holding that this was a matter within the sound discretion of the trial judge, the Court, at 310 U.S. 150, 233-234, 60 S. Ct. 811, 849, said that there was
'no iron-clad rule (which) requires that opposing counsel be shown the grand jury transcript where it is not shown the witness and where some appropriate procedure is adopted to prevent its improper use. That again is a matter which rests in the sound discretion of the court. Grand jury testimony is ordinarily confidential. * * * But after the grand jury's functions are ended, disclosure is wholly proper where the ends of justice require it. See Metzler v. United States, 9 Cir., 64 F.2d 203, 206. Since there is no inexorable rule which under all circumstances entitles the witness and his counsel to see the prior statement made under oath and since in this case the court itself examined and thus directly controlled the use of the grand jury testimony, we cannot say that the refusal to make it available to counsel for the defense is per se reversible error.'
It should be noted that in the Metzler case, which was cited by the Supreme Court, the Assistant United States Attorney had been permitted to read the defendants' confessions to the trial jury from the Grand Jury transcript and that the trial court then refused, and the Circuit Court approved its refusal, to turn over to defendants all of the testimony given before the Grand Jury.
In the Johnson case, the Seventh Circuit had ruled that the Government was required to answer the defendant's contention that the Grand Jury which had found the indictment was without power to investigate the crime for which the defendant was indicted. In rejecting this ...