“There is no Sixth Amendment requirement that [defendants] also be allowed to confront [the ■witness] at a preliminary hearing prior to trial.”
How later courts described this case
- “There is no Sixth Amendment requirement that [defendants] also be allowed to confront [the ■witness] at a preliminary hearing prior to trial.”
- “There is no Sixth Amendment requirement that [defendants] also be allowed to confront [witnesses] at a preliminary hearing prior to trial.”
- “There is no Sixth Amendment requirement that [defendants] ... be allowed to confront [witnesses] at a preliminary hearing prior to trial.”
- “The purpose of sequestering is, the cases agree, to protect the jury from interference.”
Written by the judges who cited it.
The opinion
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
PER CURIAM:
The Petition for Rehearing filed on behalf of Theodore Roosevelt Harris is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.
In his petition for rehearing en banc appellant Harris asserts for the first time that he was entitled to but did not receive a disclosure of the statement of John L. Johnson during the trial. Harris’ only request for Johnson’s statement came in a pre-trial motion for discovery, advanced on a Brady theory although tracking the language of the Jencks Act. At no point during the course of the trial did Harris request disclosure of the Johnson statement, although Johnson testified at considerable length on direct and cross-examination.
Harris originally appealed only the denial of his pretrial motion, and this panel affirmed that denial following a discussion of Brady and the Jencks Act as they relate to pre-trial discovery. In his petition for rehearing en banc, Harris now asserts that he was entitled to the Johnson statement during the trial entirely on the strength of his pre-trial discovery motion. We cannot agree with that theory of trial management. Under the Federal Rules of Criminal Procedure, a Jencks Act request is wholly inappropriate in a pretrial motion for discovery. F.R.Crim.Pro. 16(b). 1 Since Harris is entitled to a Jencks Act statement only after the witness testifies on direct, 18 U.S.C.A. § 3500 , we conclude that Harris was under obligation to request production of the statement within a reasonable time proximate to the direct testimony so as to alert the district judge and the government of the nature of his request. Preferably, that request should be made immediately before, during, or immediately after the direct examination, although circumstances might permit requests at different points during the trial. In this case, Harris made a pre-trial motion for discovery that was part Brady, part Jencks, and the district judge properly denied that pre-trial motion. Throughout the trial Harris was well aware of the existence of Johnson’s written statement and of his Jencks Act prerogative, yet he chose to remain silent. At the very least, Harris was under obligation to alert the trial judge to his Jencks Act request during the course of the trial and not simply by means of some multi-pronged pre-trial motion most appropriately termed “fishing.” See F.R.Crim.Pro. 16(b). As appellate weighers of the fairness of a trial we cannot award prizes to alleged errors dredged up by such a dragnet pre-trial discovery motion. The orderly administration of a trial, to which the Jencks Act and the Federal Rules propose to give effect, requires no more, but no less, than a timely motion. See Hanger v. United States, 8 Cir. 1968, 398 F.2d 91 ; Lewis v. United States, 8 Cir. 1965, 340 F.2d 678 ; United States v. Keine, 10 *680 Cir. 1971, 436 F.2d 850 ; F.R.Crim.Pro. 16(b), 47.
The panel has also reconsidered Harris’ objection to being placed on the summary calendar pursuant to Local Rule 18, and remains of the opinion that oral argument is not required in this case.
With these additional observations, the judgment below is affirmed.
. “Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, upon a showing of materiality to the preparation of his defense and that the request is reasonable. Except as provided in subdivision (a) (2), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses (other than the defendant) to agents of the government except as provided in 18 U.S.C. § 3500 .”
F.R.Crim.Pro. 16(b).