Knoch, Kiley and Cummings, Circuit Judges. Knoch, Circuit Judge (dissenting).
Poole was convicted by a jury of violating the so-called Lindbergh Kidnaping Law*fn1 and was sentenced to twenty years' imprisonment. We reverse and remand for a new trial.
On the night of May 18, 1965, Richard Keller drove his date from their home city, Chaffee, Missouri, to "The Little Villa," a tavern in McClure, Illinois, where they had some drinks and stayed until about 1:30 a.m. When they left The Little Villa, they met Poole, who assisted Keller in getting his car started and in return was given a ride by Keller to Poole's stated destination at Cape Girardeau, Missouri. Upon arrival there, Poole displayed a knife and told Keller to keep driving. Subsequently, Poole forced Keller to relinquish the wheel, and after driving through Charleston, Missouri, forced Keller from the car at knife point. Poole kept the girl in the car and drove her back into Illinois.
According to the girl's testimony, Poole's first stop was about 4:00 a.m. at a tavern in Cairo, Illinois, where he left her in the car for a few moments while trying unsuccessfully to obtain liquor. The girl testified that Poole stopped at a roadside park about 4:15 a.m. and that she had sexual intercourse with him twice for fear that he would harm her. The girl testified that after leaving there they stopped at a gas station. They later stopped in a cafe in Pinckneyville, Illinois, where the girl asked employees to call the police. Poole was arrested at the cafe about 6:00 a.m.
The indictment charged that Poole knowingly transported the girl across the Missouri-Illinois state line and unlawfully held her for the purpose of "taking possession and control of the automobile in which [the girl] was * * * a passenger, and for the purpose of providing [Poole] with the means of transportation." The indictment also alleged that Poole did "then and there assault, rape and ravish" the girl and "did not liberate her unharmed."
Poole contends that he was deprived of due process because of the government's failure to produce an FBI report of the girl's physical examination which he claims to be favorable to him. We need not reach this constitutional issue. We reverse under our supervisory power because of the government's failure to disclose the report. McNabb v. United States, 318 U.S. 332, 340-341, 63 S. Ct. 608, 87 L. Ed. 819 (1943); United States v. Consolidated Laundries Corp., 291 F.2d 563, 571 (2d Cir. 1961).*fn2
At the preliminary hearing about three and one-half months before Poole's trial, the girl testified that she had been given a physical examination by a "Dr. Green" in Pinckneyville, Illinois, shortly after Poole's arrest. In fact, she had been examined by Dr. Eugene Stotlar in that town. Government counsel, who should have known the name was Stotlar and not Green, did not correct this inaccuracy, and Poole's court-appointed counsel failed to locate "Dr. Green." Thereafter, defense counsel did not try to obtain any further information about the examination from the government.
No doctor's name appeared on the list of witnesses given to defense counsel, though the government listed the FBI agent who took Dr. Stotlar's statement. At the trial, counsel objected to testimony by the girl about the examination on grounds of hearsay.
Neither the agent nor the doctor was called to testify at the trial. The government's proof of the kidnaping and rape charges rested primarily on the testimony of the girl and Keller. Poole did not take the stand in his own defense. The only evidence introduced by him consisted of several letters attesting to his credit standing and performance as an employee.
The defense theory as expressed in counsel's opening statement to the jury was that the girl was not kidnaped since the "abduction" was not against her will. The main theme of his cross-examination of the girl was that she was willing to be Poole's companion.
Under cross-examination, the girl told of having started drinking at age sixteen and of having "four" Tom Collinses before leaving The Little Villa on the night in question. She admitted that it made no difference whether she came home at 1:30 or 3:30 a.m.; that after Keller was put out of the car until they arrived at the bar near Cairo, Poole did not have the knife in his hand but had both hands on the wheel; that on the way to Cairo she was sitting next to him; that "right outside" Cairo he discussed having sexual relations with her and when they arrived at the roadside park fifteen or twenty minutes later, she had already disrobed; that Poole was hugging her en route to the park and she had kissed him; that they had intercourse twice and that it "was not painful in any way"; that the car was parked about "three or four feet" from the road; that she told Poole they had better go because she didn't want anyone to see her out there; that at the service station she left the car to go to the restroom and when she came out Poole was in the station paying the attendant; that she was able to drive and was standing at the car door when Poole was in the station; and that earlier, in Cairo, she was alone in the car when Poole tried to get liquor. On cross-examination, a waitress at the cafe in Pinckneyville testified for the state that she noticed nothing unusual about the girl when she took the order, and that the girl was not crying.
In his final argument, Poole's attorney urged this favorable testimony upon the jury in support of his request that the jurors ask themselves whether the girl's "accompaniment" with Poole was a "forced" or "abducted one" or the result of her own "volition," "desire" or "nature." He asked, "Where are the FBI agents * * * who investigated this case?" referring to the agent who was listed as a witness. He asked, "Where is the doctor?" and argued that the doctor could have proved "whether or not there has, in fact, been an act of sexual intercourse." He stated that the doctor would have brought out the truth about the girl's "serious accusations."
Shortly after the jury rendered its verdict, defense counsel learned from government counsel that the government possessed a written FBI report*fn3 of Dr. Stotlar's examination which disclosed no ...