Waterman, Friendly and Feinberg, Circuit Judges.
Appellant was convicted after a trial in the United States District Court for the Southern District of New York before a judge sitting without jury. The indictment contains six counts. Counts one and two charge appellant with making an illegal sale of narcotics on June 22, 1965 in violation of 26 U.S.C. §§ 4705(a), 7237(b) (Count 1), and 21 U.S.C. §§ 173, 174 (Count 2). Counts three and four charge violations on July 7, 1965 of the same statutes. Count five charges appellant with receiving, concealing, and facilitating the transportation and concealment of narcotics on August 24, 1965 in violation of 21 U.S.C. §§ 173, 174 and count six with unlawful possession of the same narcotics in violation of 26 U.S.C. §§ 4701, 4703, 4704(a), 4771(a) and 7237(a). Appellant received concurrent sentences of five years imprisonment on each of the six counts.
The Government's witnesses testified that appellant made the June 22nd and July 7th sales to narcotics agent Ward who was acting in an undercover capacity as one interested in purchasing drugs. The physical movements of appellant and Ward on these occasions as testified to by Ward were corroborated by another agent, but the conversations between appellant and Ward, which showed that appellant was well aware that he was dealing in narcotics, were only testified to by agent Ward. Appellant's defense to the charges involving the sales to Ward was his personal testimony that as an accommodation to another person he had delivered to Ward packages which he believed to be diamonds. He further testified that his conversation with Ward in no way indicated that the packages contained narcotics.
Appellant claims that the trial court erred under the rule of Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966), a case decided more than eight months after the trial court here refused to permit appellant to inspect the transcript of agent Ward's grand jury testimony. The judge followed the procedure which we have prescribed for this circuit in several cases, e.g., United States v. Hernandez, 290 F.2d 86 (2 Cir. 1961); he examined the grand jury minutes in camera, and, concluding that they contained no inconsistencies from agent Ward's trial testimony, refused to allow the defense to examine them.
As agent Ward did not testify with reference to the August 24th possession violations, counts five and six, the Government contends that any error in refusing to permit inspection of his grand jury testimony could not have affected appellant's conviction on those counts and, in view of the concurrent sentences, it is unnecessary for us, under the familiar rule, to consider any claims of error affecting conviction on the first four counts. Lawn v. United States, 355 U.S. 339, 359, 362, 78 S. Ct. 311, 2 L. Ed. 2d 321 (1958) and cases there cited; Brooks v. United States, 267 U.S. 432, 441, 45 S. Ct. 345, 69 L. Ed. 699, 37 A.L.R. 1407 (1925) and cases there cited. However, we need not place decision on that ground for we find no error was committed by the failure of the court to turn over the grand jury minutes.
In examining appellant's claim it is necessary to give particular consideration to three Supreme Court cases on the subject, United States v. Procter & Gamble Co., 356 U.S. 677, 2 L. Ed. 2d 1077, 78 S. Ct. 983 (1958); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S. Ct. 1237, 3 L. Ed. 2d 1323 (1959); and the case principally relied upon by appellant, Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966). All three of these cases stand for the proposition that the trial court need not allow the defense to examine grand jury minutes in the absence of a showing of a "particularized need," United States v. Procter & Gamble Co., supra, 356 U.S. at 683, 78 S. Ct. 983, cited in Pittsburgh Plate Glass, supra at 360 U.S. 399, 79 S. Ct. 1237, and Dennis, supra, 384 U.S. at 870, 86 S. Ct. 1840. Disclosure may be limited to that portion of the grand jury minutes for which the necessity of examination had been shown, for defendants have no absolute right to any wholesale disclosure of grand jury testimony. Pittsburgh Plate Glass, supra; see Procter & Gamble, supra. The major distinction to be drawn between the two earlier cases and Dennis is that the defendants in both of the earlier cases sought a wholesale disclosure of grand jury testimony as a matter of right, while in Dennis the defendants only sought a disclosure of particular testimony for which they had demonstrated particular need. After considering the Dennis defendants' showing of their need to examine the grand jury minutes, the Court found that the required showing had been made and held that the defendants should have been allowed to examine the particular grand jury minutes for which they had demonstrated need.
In Dennis the Court found a showing of need to examine the minutes based on five circumstances:
1. The events as to which the testimony in question related occurred between 1948 and 1955. The grand jury testimony was taken in 1956, while these events were relatively fresh. The trial testimony which petitioners seek to compare with the 1956 grand jury testimony was not taken until 1963. Certainly, there was reason to assay the latter testimony, some of which is 15 years after the event against the much fresher testimony before the grand jury.
2. The motions in question involved the testimony of four of the eight government witnesses. They were key witnesses. The charge could not be proved on the basis of evidence exclusive of that here involved.
3. The testimony of the four witnesses concerned conversations and oral statements made in meetings. It was largely uncorroborated. Where the question of guilt or innocence may turn on exactly what was said, the defense is clearly entitled to all relevant aid which is reasonably available to ascertain the precise substance of the statements.
4. Two of the witnesses were accomplices, one of these being also a paid informer. A third had separated from the union and had reasons for hostility toward petitioners.
5. One witness admitted on cross-examination that he had in earlier statements been mistaken about significant dates. 384 U.S. at 872-873, 86 S. Ct. at 1850.
Upon comparing the circumstances in Dennis with those here we find Youngblood's showing of particularized need to be substantially weaker than the showing made by the defendants in Dennis. The trial began within a few months of the occurrence of the crimes, and there was no significant time lag between the appearance of the witness before the grand jury and his appearance at the trial. The witness was neither an accomplice nor a paid informer but was a government agent, and there had been no suggestion ...