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October 13, 1972


The opinion of the court was delivered by: Robert L. Taylor, District Judge (Sitting by Designation).


Defendant Kerner has subpoenaed "[a]ll contents of a locked file cabinet" of defendant Miller which the latter turned over to the Government pursuant to an immunity agreement between himself and the Government. The Government promptly filed a motion to quash the subpoena on the grounds that (1) the subpoena is overly broad and fails to establish evidentiary relevance and (2) some of the documents contained therein are immune from subpoena pursuant to 18 U.S.C. § 3500(a). See Rule 17(c), F.R.Cr.P.

At the pre-trial conference on September 11, 1972, the Government stated its willingness to make all the contents of the file cabinet available to defense counsel for inspection, subject only to a protective order prohibiting disclosure of said contents and defense counsel's future representation of persons indicted on the basis of this material. The only exception to this offer was purported Jencks Act statements. Consequently, the scope of the motion is limited to these documents.

The Government has submitted to the Court for in camera inspection the two documents it contends are Jencks Act statements. The first is a sixty-eight page typed, unsigned, manuscript with numerous exhibits attached. It appears to be, as the Government contends, a statement of defendant Miller, who is a lawyer, designed to advise his own counsel of the circumstances surrounding his own involvement in the events mentioned in the instant indictment that tend to exculpate himself. The Government states that this document was prepared during January and February, 1972, by Mr. Miller, and that Mr. Miller has read it in its entirety and stated his opinion that it adequately sets forth his views regarding his own defense at the time he prepared it.

The second document is a four-page unsigned manuscript prepared by one of Mr. Miller's employees, an accountant, Robert Boissenin, at Miller's request and in preparation of the defense of his case. The Government states that this document was prepared during March and April, 1972, and that Mr. Boissenin, who both wrote it and typed it, has stated that it reflects the described occurrences to the best of his recollection.

The issue presented by this motion is whether these statements in the possession of the Government are protected from subpoena and discovery by 18 U.S.C. § 3500(a). Or, in the alternative, whether their discovery can be compelled under Rule 16(b), F.R.Cr.P., in light of the fact that they were not made to Government agents. This issue arises because of the 1970 amendment of 18 U.S.C. § 3500 which deleted the phrase "to an agent of the Government" from subsection (a) thereof. Its resolution requires an examination of the Jencks Act and its history, as well as the amendment and Rule 16(b).

Congress enacted 18 U.S.C. § 3500, known as the Jencks Act, in 1957 as a result of the decision in the case of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). The Court in Jencks held that a defendant is entitled to see memoranda of statements made by Government agents for impeachment purposes. The Government is required to turn these statements over to the defense at the time of cross-examination if the contents are relevant to the subject matter of the direct testimony. See also Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959).

The Jencks Act is divided into five sections (subsections of 18 U.S.C. § 3500). Section (a) restricts the use of statements or reports of prospective Government witnesses to impeachment purposes. Sections (b) through (d) are concerned with the procedure for compelling disclosure of these statements by the Government for cross-examination of its witnesses. Section (e) defines the term "statement" as it is used in sections (b) through (d), that is, the types of statements which can be compelled to be disclosed. In the original act, section (e) included only (1) a written statement of a witness that he had signed or approved (the statements in controversy fall into this category), and (2) a substantially verbatim recital of an oral statement of the witness to an agent of the Government that was recorded contemporaneously with the making of said oral statement. The 1970 amendment added a third category of statements made by the witness to a grand jury.

The fact that section (e), "restrictively defines with particularity the term `statement' as used in the three preceding sections" and clearly is not applicable to section (a) demonstrates the Congressional intention to prevent production of "all other statements . . . [that is, those not expressly included in section (e)] . . . under pre-existing rules of procedure". Palermo v. United States, supra, at 349, 79 S.Ct. at 1223.

    ". . . Indeed the reports and debate proceeded
  on the explicit assumption that the bill retained
  as a major purpose the barring of all statements
  not specifically defined. The purpose of the Act,
  its fair reading and its overwhelming legislative
  history compel us to hold that statements of a
  government witness made to an agent of the
  Government which cannot be produced under the
  terms of 18 U.S.C. § 3500, [18 U.S.C.A. § 3500,]
  cannot be produced at all." Palmero v. United
  States, supra, p. 351, 79 S.Ct. at 1224 (footnote

The 1970 amendment was enacted as part of Title I of the Organized Crime Control Act of 1970 which primarily is concerned with special grand jury investigations of organized criminal activity. Section 102, P.L. 91-452. The negligible legislative history on this amendment refers only to the intention to include grand jury minutes as a statement of which disclosure can be compelled under sections (b) through (d). See H.Rep.No. 91-1549, 91st Cong., 2d Sess. 41 (1970); U.S.Code Cong. & Admin. News, p. 4007; S.Rep.No. 91-617, 91st Cong., 1st Sess. 144 (1969). The obvious intent behind the section (a) amendment is the additional protection from compelled discovery of all statements or reports in the possession of the Government regardless of whether they were made to a Government agent or not. Neither the amendment itself nor its legislative history contains any indication of an intent to limit the expansion of section (a) materials, for example, to grand jury minutes alone. If Congress had intended to limit the expansion of materials protected from discovery, it could have said so. This view is supported by the earlier holding of Palermo, discussed above, that "statements of a government witness . . . which cannot be produced under the terms of 18 U.S.C. § 3500, [18 U.S.C.A. § 3500,] cannot be produced at all", and the absence of any ambiguity in the statute.

    ". . . Here . . . the detailed particularity
  with which Congress has spoken has narrowed the
  scope for needful judicial interpretation to an
  unusual degree. The statute clearly defines
  procedures and plainly indicates the
  circumstances for their application." Palermo v.
  United States, supra, at 349, 79 S.Ct. at 1222.

There is an apparent conflict between the Jencks Act limitation of discovery of a prospective Government witness' statement and Rule 16(b), F.R.Cr.P. This rule provides for discovery of papers and documents in the possession of the Government on a showing of materiality and reasonableness. The rule limits the scope of discovery, as follows:

    ". . . [T]his rule does not authorize the
  discovery or inspection . . . of statements made
  by . . . prospective government witnesses . . .
  to agents of the government except as provided in
  18 U.S.C. § 3500." (Emphasis supplied)

Thus, the rule might be interpreted as permitting discovery of statements of prospective Government witnesses if they were made to someone other than a Government agent. When this rule was promulgated in 1966, the Jencks Act limited its protection from pretrial discovery to statements made to Government agents. In other words, the rule and the statute originally were consistent.

A close examination reveals that the rule incorporated the Jencks Act limitations on pre-trial discovery. Accordingly, Rule 16(b) was modified by the 1970 amendment to the Jencks Act.

Assuming, arguendo, that the language of the statute and the rule are in conflict, the Jencks Act prevails over Rule 16(b). The enabling legislation under which Rule 16(b) was promulgated, 18 U.S.C. § 3771, impliedly reserves to Congress the power to approve, reject or alter proposed rules by virtue of its reporting requirement. The provision that "laws in conflict with such rules shall be of no further force or effect" does no more than provide that the rules of pleading, practice and procedure prescribed by the Supreme Court supersede those rules of pleading, practice and procedure in effect at the time the legislation became effective. Congress' power to regulate practice and procedure in federal courts appears to be undisputed. See Sibbach v. Wilson & Co., 312 U.S. 1, 9, 61 S.Ct. 422, 85 L.Ed. 479 (1941).

For the indicated reasons, we are constrained to hold that defendant Kerner is not entitled to these statements in the possession of the Government at this time. The movement sponsored by many able judges and law professors for the further liberalization of the discovery rules has not been overlooked. This trend, ...

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