The opinion
O’SULLIVAN, Circuit Judge
(dissenting).
The basis of my dissent is a view that defendant-appellant Johnson was denied a fair trial by the refusal of the District Court to allow her attorney access to the transcript of the grand jury testimony of two jurors in the Hoffa trial, Link and Curbow, whose testimony before the grand jury brought about her indictment for perjury.
Appellant, a prostitute, had sworn to an affidavit which recited that she had, on several occasions, furnished her services to some of the jurors who were considering, and ultimately joined in, the conviction of Hoffa and his co-defendants. Her affidavit with others, was used to support a Motion for New Trial made by Hoffa and which charged serious misconduct by some members of the Hoffa jury while they were sequestered in a hotel in Chattanooga, Tennessee.
The basis for the perjury charge was not the affidavit that appellant had signed, but was her testimony before the grand jury. The . indictment charged that the grand jury was,
“conducting an inquiry to determine among other things whether there had been committed in the Eastern District of Tennessee violations of 18 U.S.C. 201 (Bribery), 18 U.S.C. 1503 (Obstruction of Justice), 18 U.S.C. 1621 (Perjury), and other Federal criminal statutes.” (Emphasis supplied.)
Called before the grand jury, appellant, exercising her Fifth Amendment rights, refused to answer the questions asked her by the United States Attorney. Thereupon she was taken before a District Judge who was advised by the United States Attorney that the grand jury was investigating, among other things, possible violations of the Federal Communications Act. This was done, quite obviously, so that the government might ask the District Judge to grant immunity to appellant, thus to expose her to extensive cross-examination upon the subject matter of the grand jury’s investigation. The Federal Communications statute is one of few which permits this type of procedure, namely, granting of immunity but reserving to the government the right to prosecute should the answers compelled under the grant of immunity be claimed to be perjurious. We can only speculate whether this procedural device was part of a government plan to obtain cross-examination of this young woman before formal accusation of her would foreclose such activity.
Responding in this cross-examination, appellant reiterated her charges against the involved jurors, verifying as true the contents of her affidavit. The cross-examination, however, was wide-ranging and indeed equipped the United States Attorney with valuable and important material for use in preparing for a perjury trial. If the accusations made by appellant in her affidavit were false, she had already committed perjury. It was not necessary to a prosecution for perjury to have her repeat such allegedly false charges before a grand jury. This is not to say that I would fault a government lawyer for employing whatever legitimate “strategy” he may choose as an aid to bringing criminals to justice. But in this case the disparity between what the government was allowed in preparing to prosecute and what was denied to defendant, in my view, impaired her right to a fair trial. The accused was cross-examined, 372 pages worth, before the grand jury and the prosecution had a transcript of it from the time the exámination was conducted. 1 Defendant, however, was not allowed at any time *31 to have the grand jury testimony of her accusers, whose grand jury and trial testimony brought about her conviction.
In preparation for trial, counsel made a motion for an order requiring the United States Attorney,
“To furnish the defendant a transcript of the proceedings before the Grand Jury, including but not limited to, her testimony, and testimony of William Link and John Curbow.” (Emphasis supplied.)
The District Court in refusing to grant the motion said:
“With respect to the defendant’s motion for production of a transcript of the proceedings before the Grand Jury, including the testimony of William Link and John Curbow, the Court is of the opinion that the motion should be denied, except to the extent that the defendant is entitled to a copy of her testimony before the Grand Jury in accordance with Rule 16(a) (3), Federal Rules of Criminal Procedure. A disclosure of testimony before the Grand Jury may properly be obtained only upon a showing of ‘particularized need’ and then in a manner consistent with the Jencks Act. Dennis v. United States, 384 U.S. 855 [ 86 S.Ct. 1840 , 16 L.Ed.2d 973 ]; United States v. Procter & Gamble, 356 U.S. 617 [ 78 S.Ct. 983 , 2 L.Ed. 2d 1077 ].” (Emphasis supplied.)
Implicit in Judge Wilson’s ruling is a conclusion that a “particularized need” for the grand jury testimony of Link and Curbow had not been shown and that in all events appellant could obtain and use such a transcript only in conformity with the Jencks Act. In my view these conclusions are erroneous.
In today’s scene, a lawyer charged with the duty of defending a person accused of crime has indeed a “particularized need” for previous relevant testimony of his client’s accusers. The grand jury testimony of Link and Curbow brought about appellant’s indictment and in the impending trial the prosecution’s whole case would depend upon what they would say in open court. Any lawyer worth his salt would request a transcript of what these two had already sworn to. Appellant’s counsel did so, but was turned down. Apart from the inherent obviousness of this need, I consider that in the case at bar defense counsel’s motion, supported by an affidavit of his client, clearly stated such particularized need. The affidavit contained the following:
“3. The defendant, Catherine Johnson, has been advised that the transcript of proceedings of the Grand Jury are not subject to subpoena or other process and can only be obtained by order of this Honorable Court. That the Grand Jury proceedings are in the exclusive control of the United States Attorney, as well as all other records, recordings, reports and documents and not available to defendant through any other source or through any other process except as here sought.
“4. The defendant makes oath that each of the items mentioned in her motion for discovery and inspection is material to the preparation of her defense and that the request is reasonable in view of the court’s recognition that disclosure, rather than suppression of relevant materials ordinarily promotes the proper administration of criminal justice.” (Emphasis supplied.)
The United States Supreme Court in United States v. Procter & Gamble, 356 U.S. 617 , 78 S.Ct. 983 , 2 L.Ed.2d 1077 (1958), and Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 , 79 S.Ct. 1237 , 3 L.Ed.2d 1323 (1959), has expressed circumstances under which a trial court may properly deny to litigants the use of transcripts of testimony given before a grand jury.
Whatever may earlier have been said as to whether an accused should be provided with the grand jury testimony of witnesses who are his accusers, the case of Dennis v. United States, 384 U.S. 855 , 86 S.Ct. 1840 , 16 L.Ed.2d 973 (1966), expresses the Supreme Court’s *32 current view of the subject. I consider that it supports the view I take. In that case, conviction of the defendants was reversed because the trial court denied their motion to have furnished to them a transcript of the grand jury testimony of their accusers. The factual and procedural differences between that case and the one before us do not detract from its appositeness to the case at bar. 2 I read the Supreme Court’s opinion as indicating that a “particularized need” for the grand jury testimony of the accusers of a defendant arises, without more, when defense counsel expresses his need for it to prepare for trial. Neither in the District Court nor here did the government make any claim that, aside from trial advantage to the prosecution, was there need to keep secret the requested grand jury testimony. My brothers do not point to any reason for withholding the testimony and neither did the District Judge in his opinion denying appellant’s motion for new trial. Dealing generally with our subject on the point here involved, a unanimous Supreme Court in Dennis , said:
“In United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234 , 60 S.Ct. 811 , 84 L.Ed. 1129 , the Court acknowledged that ‘after the grand jury’s functions are ended, disclosure is wholly proper where the ends of justice require it.’ In Procter & Gamble, supra, the Court stated that ‘problems concerning the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility * * * ’ are ‘cases of particularized need where the secrecy of the proceedings is lifted discretely and limitedly.’ 356 U.S., at 683, 78 S.Ct., at 987. And in Pittsburgh Plate Glass, supra, where four members of the Court concluded that even on the special facts of that case the witness’ grand jury testimony should have been supplied to the defense, the entire Court was agreed that upon a showing of ‘particularized need’ defense counsel might have access to relevant portions of the grand jury testimony of a trial witness, 360 U.S., at 400, 405 , 79 S.Ct., at 1241, 1244 . In a variety of circumstances, the lower federal courts, too, have made grand jury testimony available to defendants.” 384 U.S. at 870 , 86 S.Ct. at 1849 .
The Court’s Dennis opinion may, in my view, also be read as expressing the thought that unless some other reasons intervene, it is the defense counsel who should make the determination as to his need for the grand jury testimony.
“In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate. 2
3 The trial judge’s function in this respect is limited to deciding whether a case has been made for production, and to supervise the process: for example, to cause the elimination of extraneous matter and to rule upon applications by the Government for protective orders in unusual situations, such as those involving the Nation’s security or clearcut dangers to individuals who are identified by the testimony produced." (Emphasis supplied.) 384 U.S. at 875 , 86 S.Ct. at 1851 .
I conclude reference to Dennis by quoting these additional observations:
“In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact. Exceptions to this are justifiable only by the clearest and most compelling considerations.” 384 U.S. *33 at 873 , 86 S.Ct. at 1851 . (Emphasis supplied.)
Relative to the assertion that it was within the discretion of the District Judge to rule as he did, the following is in point:
“But the Government argues that it was not error for the trial judge to have denied petitioner’s motions. With this latter proposition we disagree, and we reverse.” 384 U.S. at 869 , 86 S.Ct. at 1848 .
Other circuits have interpreted Dennis v. United States, supra, substantially as I have. See United States v. Youngblood, 379 F.2d 365 (2d Cir. 1967); Cargill v. United States, 381 F.2d 849 (10th Cir. 1967); and Nat’l Dairy Products Corp. v. United States, 384 F.2d 457 (8th Cir. 1967).
Further, I respectfully disagree that it was proper for the District Judge to rule that, had a particularized need been shown, the requested grand jury testimony could be used only “in a manner consistent with the Jencks Act.” Subsection (a) of the Jencks Act, 18 U.S.C. § 3500 provides:
In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subperia, discovery, or inspection until said witness has testified on direct examination in the trial of the case.”
In Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 398 , 79 S.Ct. 1237, 1240 , 3 L.Ed.2d 1323 (1959), the Supreme Court made clear that the Jencks Act has no relevancy to an accused’s request for grand jury minutes. The Court there said:
“It appears to us clear that Jencks v. United States, supra, is in nowise controlling here. It had nothing to do with grand jury proceedings and its language was not intended to encompass grand jury minutes. Likewise, it is equally clear that Congress intended to exclude those minutes from the operation of the so-called Jencks Act, 71 Stat. 595 , 18 U.S.C. (Supp. V, 1958) § 3500.”
To comply with the Jencks Act and wait until a government witness has completed his direct examination before obtaining that witness’ grand jury testimony would aid little, if any, in the preparation for trial. I read Dennis as holding that under facts such as we have here the desired transcript should be made available at a time when it will assist in such preparation.
The majority observes that “no request for grand jury testimony was ever made at the trial for the purpose of cross-examination of government witnesses.” The District Judge had already denied the request and, as set out above, the Jencks Act has no application. I fail to see the importance of the time of the request, unless it be that the government should be allowed to keep secret this important material until the eleventh hour, thus to gain advantage over the defense. No other reason is discernible.
Notwithstanding a contrary contention of the majority, I consider that I propose no new general rule. Neither does the ruling I suggest collide with any previous decision dealing with the special facts that are present here. I consider that my view comports with the statement of Dennis that:
“These developments are entirely consonant with the growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice.” 384 U.S. at 870 , 86 S.Ct. at 1849 .
I am of the opinion that the defendant’s motion with her supporting affidavit disclosed a “particularized need” for the grand jury testimony of her accusers, Link and Gurbow, and denial of her motion was error.
I would reverse and remand for a new trial.
. Appellant did not take the stand at her trial. However, the entire transcript of her grand jury testimony in which she supported her charges against the jurors Link and Curbow was introduced as evidence in the government’s case. If the evidence which she gave before the grand jury was true, as she claimed, she was not guilty.
. The motions that were there denied were made at the conclusion of the direct examination of each of the witnesses whose grand jury testimony was sought. I do not consider that a distinguishing circumstance.
. Cf. Alderman v. United States, 394 U.S. 165 , 89 S.Ct. 961 , 22 L.Ed.2d 176 (1969).