once defendant meets burden of specifying with reasonable particularity that a certain document exists, that there is reason to believe it is a "statement," and that the government failed to provide it in violation of the Jencks Act, "a court must then conduct an in camera inspection to determine whether the document is both relevant and a competent `statement.'"
How later courts described this case
- once defendant meets burden of specifying with reasonable particularity that a certain document exists, that there is reason to believe it is a "statement," and that the government failed to provide it in violation of the Jencks Act, "a court must then conduct an in camera inspection to determine whether the document is both relevant and a competent `statement.'"
- new-trial motion properly denied; defendant "must establish that the material asserted to be newly discovered could not have been discovered with due diligence before or during trial"; defendant did not request continuance during trial to examine gun at issue
- Brady request pertaining to 10,-000 pages of government documents will not be reviewed by the court unless defendant identifies with reasonable particularity the evidence to be considered
- Brady request pertaining to 10,000 pages of government documents will not be reviewed by court unless defendant identifies with reasonable particularity the evidence to be considered
Written by the judges who cited it.
The opinion
HARLINGTON WOOD, Jr., Circuit Judge, with whom FAIRCHILD, Chief Judge, joins,
dissenting.
I respectfully dissent from the majority opinion as I believe it is the district court, *282 not this court, which should first inquire into and resolve the two issues of fact which were more fully developed by information produced during this appeal and therefore not completely submitted to the district court. This appeal was originally disposed of by an unpublished order, based on that premise. The panel consisted of Judges Fairchild, Swygert and Wood, with Judge Swygert dissenting. The Government sought and obtained rehearing en banc.
Of course, in reversing the denial of the new trial and Section 2255 motions and remanding them for further consideration, the original panel order by no means represented a conclusion that the district court should eventually set aside the conviction and grant a new trial, although the tone of the government’s, petition might suggest that government counsel feared that would happen.
Since en banc consideration under Rule 35 of the Rules of Appellate Procedure is stated not to be favored and is reserved generally for questions of exceptional importance, one might reasonably except to be enlightened on some unusual or important issue. I recognize nothing in this case except a difference of opinion as to the application of recognized rules to the particular circumstances.
Robinson was convicted of kidnapping and killing Beard on the basis of the testimony of O’Neal, Jr., a paid government informant, who admittedly participated in the crime to some extent, but who claimed Robinson did the killing with the pistol in question. Robinson denied the killing and claimed the gun had been stolen from him., O’Neal, Jr. testified that after the killing, Robinson gave his pistol to O’Neal, Jr., who then took it to his father, O’Neal, Sr., O’Neal, Sr., said he cleaned it.
How O’Neal, Sr. cleaned the pistol remains a significant question in this rather bizarre case. The first issue involves his possible perjury in testifying about what he did to clean the pistol. O’Neal, Sr., has given two versions. His various explanations have an effect upon the possibility that the pistol might not be the murder weapon as it is claimed to be by O’Neal, Jr. That in turn reflects upon the credibility of this somewhat unsavory, but all important government witness.
After the trial was concluded, Robinson pursued government documentary evidence through the Freedom of Information Act and the Privacy Act and received through that means certain pertinent documents, at least some of which are claimed to have been previously unknown to him. Those documents which were allowed to become a supplement to the record while this appeal was pending included an FBI report of an interview with O’Neal, Sr., on October 13, 1972, in which O’Neal, Sr., was quoted as having explained only that he had boiled the pistol in water to clean it. Following the supplementing of the record, conflicting and inconclusive affidavits of opposing counsel were filed in this court as to whether or not the government previously had supplied that document to Robinson. O’Neal, Sr.’s earlier version of the cleaning in the October 13, 1972, interview report, which Robinson claims he was not furnished, becomes relevant when contrasted with O’Neal, Sr.’s later trial testimony. At trial O’Neal, Sr., testified that he had soaked the pistol in salt water for a full day and then attempted to ream out the barrel of the pistol with a coat hanger. He attached a cloth, he said, to the end of the coat hanger which he used to “saw up and down” inside the barrel. The cloth sometimes came off the hanger, he explained, and may have caused the wire hanger to rub against the inside of the barrel. It was this latter cleaning version which served at trial as an excuse for the government expert’s inability to identify the pistol as the murder weapon because of the effect that that particular cleaning procedure could have upon the ballistics comparison. Robinson claims that not having been informed prior to trial of that explanation and its basis he had justifiably relied on the favorable pretrial information supplied by the government and a stipulation simply to the effect that the pistol and bullet could not be *283 matched. Robinson, therefore, claims that he was surprised and “trapped” at trial by O’Neal, Sr.’s later cleaning explanation which related directly to the pistol’s identification. The government seeks to counter the allegation by pointing to a few lines in an FBI laboratory report dated June 14, 1976, which suggests that cleaning procedures may possibly have affected the ballistic analysis. Even that report, which the government claims Robinson did receive, however does not reveal O’Neal, Sr.’s two cleaning versions. As footnote six in the majority opinion suggests, there is even some confusion about the identity according to the date of this report. That June 14, 1972, report upon which the government and the majority now rely was not part of the record when this case was first heard by the original panel, but was only brought to this court’s attention by the government through a supplement to the record three days before the en banc hearing. If the word “bizarre” may apply to the factual questions, it may also apply to the course of procedure in this appeal.
Even after Robinson’s conviction had been affirmed on direct appeal the district court granted Robinson’s motion to have a scientific examination made of the pistol to determine whether the alleged murder weapon fired the shot that killed the victim. The identification of the pistol therefore obviously continued to be considered by the district court as an important and questionable fact issue in the case. The subsequent reports of Robinson’s experts found that there was no evidence that salt water and a coat hanger had in fact been used to clean the pistol. Nor could Robinson’s experts say the fatal bullet had come from the pistol; one was positive it had not. If these expert opinions are considered credible when considered along with O’Neal, Sr.’s original cleaning explanation, there would remain in the record little explanation for the government’s failure to prove the pistol was the murder weapon linked to Robinson. The district court without hearing originally denied Robinson’s motion for a new trial and his Section 2255 petition. It must be emphasized, however, that the district court did not at that time have before it the earlier cleaning explanation of O’Neal, Sr., which may be viewed as corresponding with the analysis of Robinson’s experts.
Robinson was unquestionably entitled to O’Neal, Sr.’s October, 1972, interview report under the Jencks Act, possibly also under Brady, but we are in no position to determine from the conflicting affidavits of counsel whether or not the report was timely furnished, and if not, why not. If not furnished, it is the district court which should determine the report’s possible impact, if any, on the trial. If not furnished, the explanation of why not might also deserve consideration when viewing the issue of Robinson’s diligence.
Robinson’s lack of diligence in bringing these matters to the district court’s attention is a factor to be considered. However, I believe that in the particular circumstances of this case that issue together with the other questions viewed in the light of the circumstances now known to this court but not known to the district court deserve to be further considered and resolved by the district court. I would leave fact finding to the district court. Usually we do. United States v. Disston, 582 F.2d 1108, 1111-1112 (7th Cir. 1978); United States v. Tanner, 471 F.2d 128 , 143 n.23 (7th Cir. 1972). In bringing cases to a final conclusion, diligence is a consideration but so is the satisfaction that the search for the truth has been pursued as far as may reasonably be possible.
The other issue concerns Robinson’s allegation that the government failed to supply in Robinson’s trial other Jencks Act or Brady documents relating to O’Neal, Jr., which may have come to light in the 1976-77 Hampton 1 trial. Some documents were generated by the FBI during the short overlapping time period of the two cases. Robinson at trial asked for the FBI’s interviews with O’Neal during that overlapping time period, but excluded those relating only to the “Panthers.” The government *284 first argues that Robinson’s request for the interviews should be interpreted as a failure to make any request, but it should not be so narrowly construed.
Next, the government argues that the documents in the Hampton case did not qualify as Jencks Act material as they did not relate to the subject matter of O’Neal, Jr.’s testimony; and further, that the documents could not be considered as qualifying as “statements of the witness.” However, at the en banc oral argument one of the government’s counsel proceeded to answer the government’s own arguments by conceding that there were included in the Hampton files pertinent interview reports of O’Neal, Jr., which related to the present case. Counsel, however, then represented that in any event those documents had been supplied to Robinson.
There is, moreover, at least a challenge by Hampton plaintiffs to the government’s good faith in completely producing O’Neal documents even so recently as the Hampton trial.
The government also argued that to require an in camera inspection of the Hampton documents would have unnecessarily imposed on the district court an “onerous burden.” However, at the en banc oral argument one of the government counsel advised the court that she had reviewed the documents of the pertinent time period and that the review had not taken her very long.
At the en banc oral argument, government counsel further represented that there were nine O’Neal, Jr., interviews in the Hampton files during the time period. Robinson, however, in his brief has acknowledged receipt of only eight O’Neal, Jr., interview memoranda. I do not find in the record that the government has previously disputed that Robinson received only eight memoranda.
I believe it is the district court, not this court, which should also clear up this clouded issue which continued to develop during this appeal.
I would reverse and remand this case to the district court for further proceedings. By advocating the application to this case of the ordinary Disston and Tanner procedures for resolution by the district court of factual matters first arising on appeal, it is again emphasized that no implication is intended as to what result should be arrived at by the district court.
. Hampton v. Hanrahan, No. 77-1698, is now on appeal in this court, but undecided.