The opinion of the court was delivered by: HERLANDS
The question before the Court is the scope of the applicability of the Jencks case, Jencks v. U.S., 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103, and the statute, 18 U.S.C. § 3500, enacted subsequent to the Jencks case, with respect to certain papers and records involved in this case now on trial.
The prosecution witness, Monroe Tobias, completed his direct examination yesterday. Immediately thereafter, and before cross-examination commenced, defense counsel moved to have the Court order the prosecution to produce all pretrial statements of the said witness in the possession of the United States.
Thereupon, and in open court, the assistant United States attorney in charge of this case turned over to each of defense counsel photostatic copies of the following documents:
1. Transcript of the testimony given by said witness, Monroe Tobias, on March 24, 1954 before the grand jury impaneled in and for the Southern District of New York.
2. Transcript of the testimony given by said witness, Monroe Tobias, on May 5, 1952, May 8, 1952 and May 27, 1952 before the grand jury impaneled in and for the Eastern District of New York.
With respect to the grand jury testimony on May 5, 1952 the assistant United States attorney stated in open court that the photostatic copy of the stenographic transcript for said date, as delivered to defense counsel, did not contain certain portions of the proceedings transpiring during the period stenographically recorded at pages 1287 to 1291 during the session of May 5, 1952; that the deleted portions did not contain testimony of the said witness, but in fact reflected proceedings that took place in the grand jury room while said witness was excused, and which proceedings represented executive proceedings on the part of the grand jury, as distinguished from the taking of testimony.
The full transcript of everything that transpired on May 5, 1952 has been furnished to the Court. The Court has examined said transcript and has concluded that the assistant United States attorney has properly caused to be excised from the copy of the transcript furnished to the defendants, those portions of the transcript at pages 1,287 to 1,291 which clearly relate to grand jury proceedings not involving the giving of testimony by the witness Monroe Tobias. There is not the slightest doubt about the fact that the excised portions have no testimonial value.
In response to inquiries made by the Court, the assistant United States attorney advised the Court and defense counsel that there were eight other papers relating to the witness Monroe Tobias in the file of the United States Attorney. It was the contention of the assistant United States attorney that these eight documents should not and could not properly be turned over to defense counsel because they did not come within the provisions of the statute, Title 18, section 3500, or the holding and rationale of the Jencks case.
Indeed, the prosecution takes the position that it was not required to turn over the aforementioned grand jury testimony, but that the prosecution has, nevertheless, done so, without thereby creating or establishing a precedent for a similar course of conduct with respect to other Government witnesses who may hereafter be called in this case.
But with respect to the eight additional documents, the prosecution contends that, upon an inspection thereof by the Court, it will become manifestly clear that neither under the Jencks case nor under the statute should such additional documents be turned over to defense counsel.
Accordingly, the said documents were turned over to the Court. They have been closely examined by the Court.
Title 18, section 3500, is entitled 'Demands for production of statements and reports of witnesses.' Subsection (a) of said statute pertinently provides:
'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) to an agent of the Government shall be subject of subpena, discovery, or inspection ...