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Pollard v. United States

April 15, 1971

BILLY SHUPPS POLLARD, A/K/A BILLY SHUPS POLLARD, DEFENDANT-APPELLANT,
v.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE



Hastings, Senior Circuit Judge, and Kiley and Kerner, Circuit Judges.

Author: Kiley

KILEY, Circuit Judge.

A jury convicted defendant Pollard under two indictments,*fn1 charging burglary of a bank, 18 U.S.C. § 2113(b), and conspiracy to dispose of stolen travelers checks knowing they were stolen, 18 U.S.C. § 371.*fn2 The court imposed consecutive sentences of eight years on the burglary charge and five years on the conspiracy charge. Pollard has appealed. We affirm.

The evidence against Pollard is overwhelming: The Citizens State Bank in Mount Summit, Indiana was burglarized some time before 8 a. m. on November 29, 1968. The crime was perpetrated by a "burning bar" safe-breaking method in which the safebreaker becomes covered with soot. A quantity of American Express Company Travelers Checks were taken. Pollard, on the morning of November 29, went to the home of Samuel Gaddis, a neighbor of Pollard's, "covered with soot," and holding a packet of American Express Travelers Checks. Pollard then paid a bondsman for a bond for the release of David Hedstrom from jail on a different charge. Pollard, Gaddis and Hedstrom thereafter went to Detroit where they cashed several of the travelers checks and divided the money. The checks were identified as part of those stolen from the bank.

Pollard contends here that the district court committed prejudicial error (a) in a statement it made in denying his motion for the production of Hedstrom's grand jury testimony and in the ruling itself, (b) in questioning a government witness in aid of the government's proof, thus showing partiality in denial of a fair trial, and (c) in admitting an American Express investigative report under the Shopbook Exception to the Hearsay Rule of Evidence.

I.

Pollard's trial attorney requested production of the grand jury testimony of Hedstrom, co-defendant under the conspiracy indictment, on the basis of a written communication from him that if he were called as a witness he would testify favorably to Pollard. The government attorney stated to the court that none of Hedstrom's grand jury testimony was favorable to Pollard.

After the government attorney's statement, the court read Hedstrom's grand jury testimony in camera and confirmed the statement. The court then said, outside the presence of the jury, that nothing was favorable to Pollard and "On the contrary, I found it would swing him if he testifies. * * *" The court declined to rule in advance whether if Hedstrom was called by Pollard and was cross-examined on the grand jury testimony, Pollard could then see the grand jury material.

We see no merit in the argument that the court erred in refusing to disclose to defendant the grand jury testimony of Hedstrom. It is well established that "grand jury testimony is ordinarily confidential," United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233, 60 S. Ct. 811, 849, 84 L. Ed. 1129 (1940), and that its secrecy "must not be broken except where there is a compelling [need] * * * shown with particularity." United States v. Procter & Gamble, 356 U.S. 677, 682, 78 S. Ct. 983, 986, 2 L. Ed. 2d 1077 (1958). And where disclosure is permitted, it is to be done "discreetly and limitedly." Id.

The burden is on the defendant to show that a "'particularized need' exists for the transcript which outweighs the policy of secrecy." Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S. Ct. 1237, 1241, 3 L. Ed. 2d 1323 (1959). Here, defendant's showing of need was limited to ascertaining whether Hedstrom gave evidence which incriminated the defendant in order to determine whether to call him as a witness. The trial court examined the transcript in camera, concluded that the testimony was highly damaging to defendant, and so advised defense counsel. We have examined the transcript ourselves and agree with its conclusion. Consequently, the court did not abuse its discretion in denying defendant access to Hedstrom's testimony.

Defendant's reliance on Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966), for the proposition that an in camera inspection of the transcript by the court is not a sufficient substitute for inspection by the defendant, is misplaced. In Dennis, defendant sought the grand jury testimony of a witness who had testified at trial for impeachment purposes. The Court found a prticularized need was shown and that an in camera inspection by the trial court would not suffice since only defendant and his counsel would have the time and knowledge for inspecting the transcript for inconsistencies. Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), also has no application, since the question there concerned the adequacy of an in camera inspection of oral eavesdropping to determine whether Alderman's conviction was tainted by the illegal eavesdropping.

Defendant also argues that the trial court's refusal to disclose the Hedstrom transcript violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Brady requires disclosure by the government of evidence favorable to defendant. As noted before, we have examined the Hedstrom transcript, sealed and certified to us as part of the record, and agree with the district court that the transcript contained no evidence favorable to the defendant, but rather incriminated him with respect to both counts of the indictment.

We also see no merit in the claim of error in the court's refusal to rule in advance upon a situation that might not -- and did not -- arise. Defendant cites no authority for the contrary proposition. Nor is there any merit in the argument that the "swing him" statement of the court prejudicially ...


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