Petitioner was convicted in a Federal District Court of
transporting in interstate commerce, in violation of 18 U.S.C.
§ 2314, a check obtained by the perpetration of a fraud to
which he had been a party. Upon his demand at the trial for
production for inspection of Federal Bureau of Investigation files,
the United States Attorney delivered numerous documents from the
Government's files to the trial judge, who gave them to
petitioner's counsel. However, the trial judge withheld a few
documents, and petitioner claimed that failure to permit him to
inspect them required reversal of his conviction under
Jencks
v. United States, 353 U. S. 657.
Held: the conviction is sustained. Pp.
360 U. S.
368-371.
1. Since its enactment, 18 U.S.C. § 3500 -- not the
Jencks decision -- governs the production of statements of
government witnesses for a defendant's inspection at trial.
Palermo v. United States, ante, p.
360 U. S. 343. P.
360 U. S.
369.
2. Two reports of FBI investigators were properly withheld as
not being "statements" of the kind required to be produced by 18
U.S.C. § 3500, since they were neither signed nor otherwise
adopted by any witness at the trial, nor were they reproductions of
any statement made by any witness at the trial. P.
360 U. S.
369.
3. A third document did comply with the requirement of the
statute, since it was a typewritten copy of a statement given to
the FBI by petitioner's confessed associate in the crime, who
testified against him, it was signed by the associate, and it was
pertinent to the trial of the case; but its production would have
served no useful purpose, since petitioner's counsel had been given
the original statement of which this was merely a copy. Pp.
360 U. S.
369-370.
4. Among the documents withheld were five letters written by the
victim to the FBI and signed by her; but they failed to meet the
requirement of 18 U.S.C. § 3500(b) that only statements which
relate to the subject matter as to which the witness has testified
need be produced. P.
360 U. S.
370.
Page 360 U. S. 368
5. A letter written by the victim to the United States Attorney,
signed by her, and stating that she feared that her memory was poor
as to the matters she testified about should have been produced;
but failure to produce it was harmless error, since the same
information was revealed by the victim to petitioner's counsel
under cross-examination and upon questioning by the trial judge.
Pp.
360 U. S.
370-371.
257 F.2d 760, affirmed.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
Petitioner was convicted in the District Court for the Eastern
District of Pennsylvania, 146 F. Supp. 555, for transporting in
interstate commerce a check obtained by the perpetration of a fraud
to which he had been a party. 18 U.S.C. § 2314. That
conviction was reversed by the Court of Appeals for the Third
Circuit on the ground that
Jencks v. United States,
353 U. S. 657,
which had been decided after conviction but before appeal, required
production for petitioner's inspection of certain statements in the
prosecutor's possession. 245 F.2d 870. The second trial thus
ordered also resulted in a conviction, 157 F. Supp. 654, which was
sustained by the Court of Appeals for the Third Circuit, 257 F.2d
760, 762. We granted certiorari,
358 U. S. 904,
limited to the questions of the application of the
Jencks
rule to this prosecution, the effect of the statute enacted
establishing legislative
Page 360 U. S. 369
rules concerning the production of documents, 18 U.S.C. (Supp.
V) § 3500, and the propriety of the ruling of the Court of
Appeals that, if the trial judge had erred in failing to deliver to
petitioner certain documents, the error was harmless, and therefore
not grounds for reversal.
In the second trial, upon a demand for production for inspection
of Federal Bureau of Investigation files, the United States
Attorney delivered to the trial judge, and the trial judge in turn
gave to petitioner's counsel, numerous documents from the
Government's files. Many of these would not have been required to
be provided under either the
Jencks decision or the
statute enacted subsequent to it. Petitioner complains that the few
documents withheld by the trial judge were required to be submitted
for his inspection by our opinion in
Jencks, and that the
failure to give him that opportunity requires a reversal. We have
today held in
Palermo v. United States, ante, p.
360 U. S. 343,
that, since its enactment, 18 U.S.C. (Supp. V) § 3500, and not
the
Jencks decision governs the production of statements
of government witnesses for a defendant's inspection at trial.
In accordance with 18 U.S.C. (Supp. V) § 3500(c), the
material withheld was preserved in the record to permit review of
the correctness of the trial judge's rulings. As did the Court of
Appeals, we have reviewed the documents withheld by the trial
judge. Two are reports by FBI investigators which in no sense
complied with subsection (e) of the statute. They were neither
signed nor otherwise adopted by any witness at the trial, nor were
they reproductions as statutorily required of any statement made by
any witness at the trial. A third document did comply with such
requirement. It is a typewritten copy of a statement given by
Rosenberg's confessed associate in the crime, Meierdiercks, to the
FBI. It is signed by Meierdiercks, and its contents were pertinent
to the trial of the case. However, the original handwritten
Page 360 U. S. 370
statement, of which this was, as already stated, merely a copy,
was itself given to petitioner's attorney. No relevant purpose
could have been served by giving petitioner's counsel a typewritten
copy of a document which he had already been given in its original
form, no advantage to the petitioner was denied by withholding
it.
The last group of documents in controversy is a series of
letters written by the victim Florence Vossler to the FBI. They
were signed by her, and thus met the requirement of subsection (e).
However, of the six letters withheld by the trial judge, five
clearly fail to meet the statutory requirement that only that
statement "which relates to the subject matter as to which the
witness has testified" need be produced. 18 U.S.C. (Supp. V) §
3500(b). These five were totally irrelevant to the proceedings. In
the sixth of this group of letters, Florence Vossler wrote to the
Assistant United States Attorney that her memory had dimmed in the
three years that had passed since the fraud had been perpetrated,
and that, to refresh her failing memory, she would have to reread
the original statement she had given before the first trial to the
FBI.
A statement by a witness that she fears her memory as to the
events at issue was poor certainly "relates to the subject matter
as to which the witness has testified," and should have been given
to defendant. This was recognized as error by the Court of Appeals.
257 F.2d 760, 763. That court, however, found that the same
information which was contained in the letter was revealed to
defendant's counsel by statements made by Florence Vossler under
cross-examination and upon questioning by the trial judge. A review
of the record, portions of which are reproduced in an
360
U.S. 367app|>Appendix, precludes us from rejecting the
judgment on which the Court of Appeals based its conclusion that
the failure to require
Page 360 U. S. 371
production of this letter was empty of consequence. Since the
same information that would have been afforded had the document
been given to defendant was already in the possession of the
defense by way of the witness' admissions while testifying, it
would deny reason to entertain the belief that defendant could have
been prejudiced by not having had opportunity to inspect the
letter.
An appellate court should not confidently guess what defendant's
attorney might have found useful for impeachment purposes in
withheld documents to which the defense is entitled. However, when
the very same information was possessed by defendant's counsel as
would have been available were error not committed, it would offend
common sense and the fair administration of justice to order a new
trial. There is such a thing as harmless error, and this clearly
was such. The judgment of the Court of Appeals for the Third
Circuit is therefore
Affirmed.
|
360
U.S. 367app|
APPENDIX TO OPINION OF THE COURT
"Mr. Singer. Miss Vossler, it has been quite some time since you
have testified. Have you had an opportunity within the last six
months or so to go over any previous testimony or statements which
you might have given with reference to this matter? Have you spoken
to anyone --"
"Miss Vossler. You mean testimony that I gave?"
"Mr. Singer. That is correct."
"Miss Vossler. The testimony that I gave in this court?"
"The Court. Yes, in June, 1956."
"Miss Vossler. Yes. No, I haven't seen anything. "
Page 360 U. S. 372
"The Court. You haven't seen --"
"Miss Vossler. Any testimony."
"The Court. -- the transcript of that testimony --"
"Miss Vossler. No, sir."
"The Court. -- which was in books like this [indicating]?"
"Miss Vossler. No, no, Your Honor, nothing."
"The Court. Well, have you seen any statement which you gave to
agents of the Federal Bureau of Investigation?"
"Miss Vossler. Yes, because I had a copy of the first statement
that I gave on January 24. That is the only statement I had."
"The Court. Have you got that with you?"
"Miss Vossler. No, I haven't, now."
"The Court. When did you last see it?"
"Miss Vossler. Well, Mr. Bechtle asked that I leave it with him
upstairs."
"The Court. When was that?"
"Miss Vossler. Monday when I arrived here."
"The Court. In other words, you looked it over Monday?"
"Miss Vossler. Well, I glanced at it Monday. I didn't read it
line for line."
"The Court. Well, when did you last read it line for line?"
"Miss Vossler. Well, last week, because I had it at my
home."
"The Court. Last week you read over the statement --"
"Miss Vossler. Yes."
"The Court. -- of January 24, you say, 1955?"
"Miss Vossler. Yes. That is when the FBI agents came to my
home."
"The Court. I see. Last week. You have that statement, don't
you?"
"Mr. Singer. I have it here. "
Page 360 U. S. 373
"Miss Vossler. That is the only statement that I have seen at
all at any time."
Record, pp. 330-332.
Further evidence of Florence Vossler's loss of clear
recollection came to defendant's attorney during the course of the
cross-examination. He asked the witness to identify a Mr.
McComb.
"Miss Vossler. Well, let me see if I an remember. Mr. McComb
came to my house one time -- you see, it is always possible to find
the names of people who buy leases or purchase leases --"
"Mr. Singer. May I interrupt you one moment, please. In all
fairness to the witness, Your Honor, I feel that I should introduce
this report and permit her to refresh her recollection."
"The Court. Yes, thank you. What number is it?"
"Mr. Singer. This is Court's Exhibit No. 10, which is a summary
of various statements given by Miss Vossler to the FBI. And I ask
Miss Vossler to read Page 2 so that she may properly answer the
questions."
Record, pp. 345-346.
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACK and MR. JUSTICE DOUGLAS join, dissenting.
The Government's case against petitioner rested on the testimony
of Charles Meierdiercks, a confessed accomplice in the swindle that
concerns us here, and Florence Vossler, the victim. Meierdiercks
testified, in considerable detail, that he and the petitioner
obtained Miss Vossler's check by fraud, and that petitioner
transported that check in interstate commerce before cashing it.
Miss Vossler's testimony corroborated that of Meierdiercks to a
considerable extent, but did not implicate petitioner. Since a
conviction would have been impossible unless the jury
Page 360 U. S. 374
believed Meierdiercks, it seems apparent that the Government put
Miss Vossler on the stand in the hope that her detailed
corroboration of Meierdiercks' story would lend credence in the
eyes of the jury to the testimony of the confessed swindler. If the
defense could have effectively impeached Miss Vossler, the
Government would have had to rely on the essentially uncorroborated
testimony of Meierdiercks for a conviction.
Defense counsel moved at the end of Miss Vossler's direct
testimony for production of "pertinent material in the possession
of the government concerning this particular witness." The trial
judge, pursuant to this motion, ordered the delivery of some
material to the defense, but did not include a letter to the
Assistant United States Attorney -- handwritten and signed by Miss
Vossler shortly before the trial -- which stated in part:
"As a matter of fact, as time goes on, I am more hazy about the
whole transaction, and might not fare too well under a
cross-examination, though I have here my statement with which to
refresh my memory. It will be 3 years in January, 1958, since the
above swindle took place; therefore, I could not be accurate as to
day to day occurrences after such a period, though, as stated,
possibly a review of my statement would help."
The Court of Appeals and this Court both agree that this letter
was a statement relevant to the subject matter as to which the
witness testified on direct examination, and thus should have been
given to the defense under the Command of the Jencks statute, 18
U.S.C. (Supp. V) § 3500. The Court holds, however, that:
"There is such a thing as harmless error, and this clearly was
such." I dissent because it plainly appears that the harmless error
doctrine should not be invoked in the circumstances of this
case.
The principle underlying our decision in
Jencks v. United
States, 353 U. S. 657, was
that it is impossible
Page 360 U. S. 375
for a judge to be fully aware of all the possibilities for
impeachment inhering in a prior statement of a government
witness,
"Because only the defense is adequately equipped to determine
[its] . . . effective use for purpose of discrediting the
Government's witness, and thereby furthering the accused's defense.
. . ."
353 U.S. at
353 U. S.
668-669.
The
Jencks statute was clearly designed to effectuate
this principle. The statute, while delimiting the statements which
are to be turned over to the defense, obviously comprehends that
statements which are producible under it must be given to the
defense regardless of a judge's opinion as to how useful they might
be on cross-examination, for only the defense can fully appreciate
their possible utility for impeachment. This is the rationale of
the
Jencks case, and this is the rationale of the statute.
As the Senate reported:
"the proposed legislation, as here presented, reaffirms the
decision of the Supreme Court in its holding that a defendant on
trial in a criminal prosecution is entitled to relevant and
competent reports and statements in possession of the Government
touching the events and activities as to which a Government witness
has testified at the trial. . . ."
S.Rep.No. 981, 85th Cong., 1st Sess., p. 3;
and see
H.R.Rep.No. 700, 85th Cong., 1st Sess., pp. 3, 4. Although we need
not go so far as those courts which have suggested that the
harmless error doctrine can never apply as to statements producible
under the statute,
see Bergman v. United States, 253 F.2d
933;
United States v. Prince, 264 F.2d 850, fidelity to
the principle underlying
Jencks and the
Jencks
statute requires, I think, that, when the defense has been denied a
statement producible under the statute, an appellate court should
order a new trial unless the circumstances justify the conclusion
that a finding that such a denial was harmful error would
Page 360 U. S. 376
be clearly erroneous. In that determination, appellate courts
should be hesitant to take it upon themselves to decide that the
defense could not have effectively utilized a producible statement.
This must necessarily be the case if the appellate court is to give
effect to the underlying principle of
Jencks, affirmed by
the statute, which, I repeat, is that "only the defense is
adequately equipped to determine [its] . . . effective use for
purpose of discrediting the Government's witness. . . ." Indeed,
another consideration which should move the appellate court to be
especially hesitant to substitute its judgment as to trial strategy
for that of defense counsel is that, under the procedure
established by the statute, the defense does not see the statement,
and has no opportunity to present arguments showing prejudice from
its withholding.
In short, only a very strict standard is appropriate for
applying the harmless error doctrine in these cases. Under such a
standard, I cannot conclude that defense counsel could not have put
Miss Vossler's letter to effective use in impeaching her. Although
she stated on cross-examination that she had refreshed her memory
before testifying by reference to a statement she had made
previously, this oral testimony was obviously not as useful for
impeachment purposes as her written admission shortly before trial
that her memory of the events in question was failing. Defense
counsel, if armed with the letter, might well have probed more
deeply than he did in testing how her memory of the events to which
she testified was refreshed. The trial strategy of defense counsel,
familiar with his case and aware of the various possible lines of
defense, might have been entirely different had he been in
possession of the letter. At least I cannot bring myself to assume
that this would not have been the case.
This is not a case in which the statement erroneously withheld
from the defense merely duplicated information
Page 360 U. S. 377
already in the defense's possession;
* it is not a case
in which the witness' testimony was unimportant to the proofs
necessary for conviction; and it is not a case in which the
witness' statement was wholly void of possible use for impeachment.
In this case, the defense was denied a letter written by a key
government witness shortly before trial making statements which
raised serious questions as to her memory of the events about which
she testified in considerable detail at the trial. In such a
circumstance, I think it was error for the Court of Appeals to
second-guess defense counsel as to the possible use of the letter
on cross-examination. If we are to be faithful to the standards we
have set for ourselves in the administration of criminal justice in
the federal courts, we must order a new trial in a case such as
this, where the possible utility to the defense of the erroneously
withheld statement cannot be denied.
"The inquiry cannot be merely whether there was enough to
support the result, apart from the phase affected by the error. It
is, rather, even so, whether the error itself had substantial
influence. If so,
or if one is left in grave doubt, the
conviction cannot stand."
Kotteakos v. United States, 328 U.
S. 750,
328 U. S. 765.
(Emphasis supplied.)
I would reverse the judgment of the Court of Appeals.
* The defense was not given a typed statement signed by
Meierdiercks which was discoverable under the statute, but this was
harmless error, since the defense was given a handwritten statement
from which the typed statement had been copied.