Before HINCKS and WATERMAN, Circuit Judges, and RYAN, District Judge.
The defendant appeals after a conviction on counts of smuggling and conspiracy to smuggle.
The major point raised on appeal is the trial court's refusal to follow the procedure set forth in Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103, when the defendant's counsel requested to see the grand jury testimony of the major government witness during that witness's cross-examination. The district judge held that neither Jencks nor the statute enacted by Congress immediately after the Jencks decision, 18 U.S.C.A. § 3500, authorized handing over grand jury testimony to defendant's counsel. The judge thereupon utilized the procedure which had prevailed before the Jencks case and inspected the grand jury testimony in camera. Finding no inconsistencies he then refused to give the transcript to the defense.
We hold that the district judge followed the proper procedure with respect to grand jury minutes. In reaching this conclusion, we accept the defendant's position that the government's case depended on the testimony of Gaudin and that the crux of the case was a credibility test between Gaudin and the defendant.*fn1
But even the admitted importance of this potential instrument of impeachment cannot serve to change the present state of the law with regard to grand jury minutes. There is no doubt that prior to the Jencks case the procedure which the judge applied was proper. United States v. H.J.K. Theatre Corp., 2 Cir., 236 F.2d 502, certiorari denied sub nom. Rosenblum v. United States, 352 U.S. 969, 77 S. Ct. 359, 1 L. Ed. 2d 323; United States v. Alper, 2 Cir., 156 F.2d 222. Later, in the now famous case of Jencks v. United States, supra, the Supreme Court, without mentioning grand jury minutes, held that a witness's statements made to government agents must be turned over to the defense for possible impeachment purposes if the government calls that witness to the stand. We do not think the Jencks opinion may be read to apply to grand jury minutes. But this is an academic problem and need not delay us because after the Jencks case and before the trial in this case Congress enacted 18 U.S.C.A. § 3500.
The legislative history of that section demonstrates that Congress does not intend that grand jury minutes should be made available under the Jencks procedure. Extracts from the Senate and Conference Reports will serve to make that clear. In Senate Report No. 981, 85th Cong. 1st Sess.,*fn2 it was stated:
"* * * The committee rejects, therefore, any interpretations of the Jencks decision which would provide for the production of entire investigative files, grand jury testimony, or similar materials."
In the appendix to the Report the following appears:
"It should be noted that grand jury testimony is protected from disclosure by a Federal Rule of Criminal Procedure, 6(e), and it is within the discretion of the trial judge to decide when grand jury testimony is to be revealed to the defense after a proper foundation is laid. Jencks makes no reference to this rule and such a disclosure was not mentioned directly or indirectly in the opinion."
The report of the House Congerence conferees, Conference Report 1271, 85th Cong. 1st Sess., expressly states that the conferees agreed among other things to limit the types of statements covered in the bill to those of government witnesses "made to an agent of the Government."
If any further indication of Congressional intent is needed, it may be found in the Congressional comment on the case of United States v. Rosenberg, 3 Cir., 245 F.2d 870. This case was decided after the Jencks decision but before the enactment of § 3500: it held that under the Jencks case the defendant was entitled to the grand jury testimony of government witnesses without prior inspection by the court. This decision was brought to the attention of Congress and is referred to in the Senate Report as a "misinterpretation" of the Jencks case. Plainly Congress intended that the section as finally passed should not enact the Rosenberg holding.
However, the defendant argues that the mandate in the Jencks case is a constitutional edict and that § 3500, if it narrows the holding of the Jencks decision in any regard, is unconstitutional. We cannot agree. As we read the Jencks case, its rule is an exercise by the Supreme Court of its supervisory power over the "administration of criminal justice in the federal courts." [353 U.S. 657, 77 S. Ct. 1013.] See McNabb v. United States, 318 U.S. 332, 340-342, 63 S. Ct. 608, 87 L. Ed. 819. We find no indication in Jencks that the standards it set forth were constitutionally required. It follows that once Congress has entered the filed its determination of proper federal criminal procedure is controlling. We conclude that § 3500 in that it fails to apply the Jencks procedure to grand jury minutes is not unconstitutional. For a sound and thorough discussion of the entire problem, see Judge Palmieri's opinion i United States v. Consolidated Laundries Corp., D.C., 159 F.Supp. 860.
However, merely because neither the Jencks rule nor § 3500 provide for the unrestricted availability of grand jury minutes, it does not follow that they may not be made available under the applicable procedure. In United States v. Procter & Gamble Co., 356 ...