Tamm, Wald and Scalia, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
(Criminal No. 83-00021). 1985.CDC.91
Opinion for the Court filed by Circuit Judge WALD.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WALD
Appellants, North American Reporting, Inc. and Richard Lee Boyd, appeal convictions on eight counts of mail fraud, in violation of 18 U.S.C. 1341, and eight counts of making false statements, in violation of 18 U.S.C. § 1001. This case was previously before the court in United States v. North American Reporting, Inc., 238 U.S. App. D.C. 300, 740 F.2d 50 (D.C. Cir. 1984) ("North American I"). There we rejected appellants' several claims of error in the conduct of the trial. We remanded to the district court, however, for a determination of whether certain notes taken by the prosecutors during interviews with various prosecution witnesses were subject to production under the Jencks Act, 18 U.S.C. § 3500. *fn1 On remand, the district court ruled that the prosecutors' notes did not constitute producible "statements" under the Jencks Act. Appellants, on this second appeal, claim that the district court still failed to make a proper Jencks Act inquiry. We affirm the district court's decision. I. BACKGROUND
The facts relating to appellants' trial and convictions are fully set out in North American I. Only those facts relevant to this appeal will be presented here. The district court originally ruled that the prosecutors' notes at issue were "work products" of the government attorneys and thus were not producible under the Jencks Act. See North American I, 740 F.2d at 54. On Appeal, this court found that the district court had ruled against the Jencks Act request on an erroneous legal ground. Id. at 55. The Supreme Court in Goldberg v. United States, 425 U.S. 94, 105-08, 47 L. Ed. 2d 603, 96 S. Ct. 1338 (1976), squarely held that the work product doctrine does not bar the production of government attorneys' notes that otherwise qualify as Jencks Act material. This court further noted that "established precedent requires the district court to engage in an adequate inquiry into the nature of the documents before ruling against Jencks Act production." North American I, 740 F.2d at 55. Finding that the trial judge failed to make such an adequate inquiry, we remanded the case to the district court to make the Jencks Act determination.
On remand, we directed the district court to consider whether the prosecutors' notes qualify as "statements" under either section 3500(e)(1) or section 3500(e)(2) of title 18. Id. The notes qualify as statements of witnesses producible under the Jencks Act if they have been "adopted or approved" by the witnesses, 18 U.S.C. § 3500 (e)(1), or if they are "substantially verbatim" accounts of the witnesses' interviews, 18 U.S.C. § 3500(e)(2). *fn2
Following the remand by this court, the prosecutor's office transmitted the notes in question to the trial judge together with the sworn affidavits of the two prosecutors, stating that the notes which they had taken during the witnesses' interviews had never been adopted or approved by those witnesses. See Letter from Harriet J. McFaul to the Honorable June L. Green (July 30, 1984), Appendix for Appellants ("Appendix") at 11; Affidavit of Harriet J. McFaul (Sept. 26, 1984), Appendix at 12; Affidavit of Richard L. Beizer (Sept. 26, 1984), Appendix at 13. Appellants set forth their views as to the appropriate procedures for making the Jencks determination both in a letter to Judge Green and in a subsequent memorandum filed with the court. See Letter from Hamilton P. Fox, III to the Honorable June L. Green (Aug. 7, 1984), Appendix at 14; Memorandum Concerning Suggested Procedures on Remand for Jencks Act Determination (Oct. 1, 1984), Appendix at 17. Specifically, appellants argued that an evidentiary hearing was required and that they should be allowed access to the notes for use at the hearing. The government responded arguing that the Jencks Act determination could be made on the basis of an in camera inspection and the prosecutors' affidavits, that an evidentiary hearing was unnecessary, and that the appellants should not be allowed access to the notes prior to the Jencks Act determination. See Government's Response to Defendants' Memorandum Concerning Suggested Procedures on Remand for Jencks Act Determination (Oct. 2, 1984), Appendix at 22.
On October 2, 1984, the district court issued an order ruling that the notes were not subject to the Jencks Act and reaffirming the appellants' convictions. The district court based its determination on an in camera inspection of the notes, taking into consideration the prosecutors' affidavits and papers filed by the parties. Specifically, the court stated:
All of the notes involved were made by Harriet McFaul or Richard Beizer, the attorneys from the Department of Justice assigned to the case. They prepared nonverbatim notes of interviews or phone calls of certain witnesses, none of which were read or acknowledged by the interviewees. (See Affidavits). There was no apparent attempt to make complete statements and one set of notes was almost illegible; none was obviously intended to be shown to the witness.
Appellants seek a second remand of the Jencks Act question claiming that the district court again failed to conduct an adequate inquiry. Appellants contend that the district court erred by (1) failing to conduct an evidentiary hearing, (2) failing to consider whether the notes were a substantially verbatim recording, and (3) failing to allow appellants access to the notes. II. ARGUMENT
Appellants first contend that the district court erred by failing to conduct an evidentary hearing. In Goldberg v. United States, 425 U.S. at 108, the Supreme Court stated: "We have recognized that a Government objection to production may required that the trial court inspect documents or hold a hearing to gather extrinsic evidence bearing on the extent to which the documents are statements productible under § 3500." Earlier in Palermo v. United States, 360 U.S. 343, 3 L. Ed. 2d 1287, 79 S. Ct. 1217 (1959), the Court approved the practice of conducting in in camera inspection to determine if production was compelled, noting that the final decision as to production must rest within the discretion of the trial judge "subject to the appropriately limited review of appellate courts." Id. at 353. "It is also the function of the trial judge to decide, in light of the circumstances of each case, what, if any, evidence extrinsic to the statement itself may or must be offered to prove the nature of the statement. In most cases, the answer will be plain from the statement itself." Id. at 354-55.
We have examined the prosecutors' notes at issue, together with the other materials submitted, and find no error in the district court's determination that an evidentiary hearing was unnecessary. In North American I, we similarly upheld the district court's Jencks Act determination that certain FBI notes of witness ...