Petition — Nickell v. United States

7 Seprome m Court, LS

FILED

MAR 3 1978

nn AK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Te 1977

a -1228

CECIL K. NICKELL - - - - ~- _ Petitioner

versas

UNITED STATES OF AMERICA - -_ Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRANK E. HADDAD, JR.

529 Kentucky Home Life Building

Louisville, Kentucky 40202

BERNARD J. GILDAY, JR.

1500 American Building

30 East Central Parkway

Cincinnati, Ohio 45202

Counsel for Petitioner

March ” © 1978

WESTERFIELD-BONTE CO., 619 W. KENTUCKY~P.O. BOX 3251, LOUISVILLE, KY.

TABLE OF CONTENTS

PAGE

ff APPTTTT TTT eit ii

SD .8 Dons cscsepenceseecddads ccbieses 1

IE 6. bb Gan cdewscncdeccnencnoucesscecenses 2

SN I oo cn cccnseccccncsepencsctoccos 2

Statement of the Case............. ccc cee cece eeeees 4-5

Reasons for Granting the Writ..................4.: 5-22

MEET EE EE Py PPL EP EPP Ee Tee TeeT: oS 22-23

Bin e's dnnseene crys cer ateune pra senses ees 25-37

Appendix A (Sixth Circuit Court of Appeals Order

AE ehaid's Bo Css ce EE Le oe ceded cove 25-36

Appendix B (Sixth Circuit Court of Appeals Order

Denying Petition for Rehearing).........,.... 37

TABLE OF AUTHORITIES

Constitutional Provisions:

PAGE

United States Constitution, Fifth Amendment..... 2

Statutes:

Federal Statutes:

EE MNS... . concouncccesescecoues 2

18 USC. $3500. . bibebescesssess sd, 2-B, 4 9, 10, 18, 2D

Gases:

Berger v. United States, 295 U. S. 78 (1935)...... 20, 21

Goldberg v. United States, 425 U. S. 94, 47 L. Bd. 24

GUS, 6 BH. Ob, LBBB (IBIS)... o.ns.0r000 cove cecctecs 11, 13

Hall v. United States, 419 F’. 2d 582 (5th Cir. 1969). 21

United States v. Bell, 506 F. 2d 207 (D.C. Cir. 1974) 21

United States v. Chitwood, 457 F. 2d 676 (6th Cir.

BOTS) 0... vevecrvecccceuescuvecetees UN4 odeces 11,12

United States v. Cleveland, 477 F. 2d 310 (7th Cir.

UN's 66 bob ebhibe-ebes6eesabiaeccebideeiniee 12

United States v. Condor, 423 F. 2d 904 (6th Cir.

1970), cem. den. 400 U. 8. 958................. 12

United States v. Leon, 534 F. 2d 667 (6th Cir. 1976) 21

United States v. Phillips, 527 F. 2d 1021 (7th Cir.

| SAMIR Hotties acc ane 21

United States v. Splain, 545 F. 24 1131 (8th Cir.

Da tid snd aN bade ddl ansedeue.dses eu Ceuek aes 21

Miscellaneous:

Federal Rule of Evidence 402...............cee0 21-22

American Bar Association Standards Relating to

the Prosecution Function, §5.6(b) Presentation

of Evidence, Approved Draft, 1971, p. 119..... 22

SUPREME COURT OF THE UNITED STATES

October Term, 1977

WD coneses—ew

Crom K. NICKELL - - - : Petitioner

v.

Unirep States OF AMERICA - - Respondent

—- =

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner, Cacm, K, Nickgtn, respectfully

prays that a Writ of Certiorari issue to review the

Order and Opinion of the United States Court of

Appeals for the Sixth Circuit, entered in this proceed-

ing on March 28, 1977,

OPINIONS BELOW

The Opinion of the Court of Appeals and the Dis-

senting Opinion of Judge Wade McCree entered on

Mareh 28, 1977 (Appendix A) is reported at 552 F. 2d

684. A Petition for Rehearing was filed and the United

States was ordered to respond. The Order of the Court

of Appeals overruling Petitioner’s Petition for Rehear-

ing was entered on February 3, 1978 (Appendix B).

JURISDICTION ~

The Order of the Court of Appeals for the Sixth

Circuit (Appendix A) was entered on March 28, 1977;

and a timely Petition for Rehearing was denied by

Order of the Court of Appeals for the Sixth Circuit

(Appendix B) on February 3, 1978. This Court’s

jurisdiction is invoked pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the District Court committed prejudicial

error in denying the Petitioner’s entitlement to dis-

cover Jencks Act statements when it failed to follow

clear statutory procedures, in violation of 18 U.S.C.

§3500.

2. Whether the Petitioner was denied a fair trial

where the prosecution repeatedly made improper

and prejudicial comments throughout the trial.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fifth Amendment to the Constitution of the

United States provides in pertinent part as follows:

No person shall be . . . deprived of life, liberty,

or property, without due process of law.

Title 18 U.S.C. §3500 provides in pertinent part as

follows:

(b) After a witness called by the United States

has testified on direct examination, the court shall,

on motion of the defendant, order the United States

to produce any statement (as hereinafter defined)

of the witness in the possession of the United States

which relates to the subject matter as to which the

witness has testified. If the entire contents of any

such statement relate to the subject matter of the

testimony of the witness, the court shall order it to

be delivered directly to the defendant for his ex-

amination and use.

(e) If the United States claims that any state-

ment ordered to be produced under this section

contains matter which does not relate to the subject

matter of the testimony of the witness, the court

shall order the United States to deliver such state-

ment for the inspection of the court in camera.

Upon such delivery the court shall exeise the por-

tions of such statement which do not relate to the

subject matter of the testimony of the witness.

With such material excised, the court shall then

direct delivery of such statement to the defendant

for his use. If, pursuant to such procedure, any

portion of such statement is withheld from the de-

fendant and the defendant objects to such with-

holding, and the trial is continued to an adjudica-

tion of the guilt of the defendant, the entire text

of such statement shall be preserved by the United

States and, in the event the defendant appeals,

shall be made available to the appellate court for

the purpose of determining the correctness of the

ruling of the trial judge. Whenever any statement

is delivered to a defendant pursuant to this section,

the court in its discretion, upon application of said

defendant, may recess proceedings in the trial for

such time as it may determine to be reasonably re-

quired for the examination of such statement by

said defendant and his preparation for its use in

the trial.

STATEMENT OF THE CASE

This is a prosecution under 18 U.S.C. §§2113(a),

2nd paragraph, and §2(a). This case was tried before

a jury in the United States District Court for the

Southern District of Ohio, Western Division, on May

17, 18, 19 and 20, 1976.

The Indictment charged that the Petitioner aided

and abetted the commission of a bank burglary of the

Springdale, Ohio branch of the First National Bank of

Cincinnati on or about September 15, 1974.

After all evidence had been heard, the case went to

the jury. The jury deliberated, over two days, for a

period of over five hours. In this close case, the Peti-

tioner was found guilty as charged and sentenced to

serve 15 years in prison. Petitioner appealed the con-

viction to the Court of Appeals for the Sixth Circuit.

On appeal, Petitioner argued, among other issues, that

the District Court committed prejudicial error in deny-

ing the Petitioner’s right to discover Jencks Act state-

ments when it failed to follow the clear statutory pro-

cedures of 18 U.S.C. §3500, and that the Petitioner was

denied a fair trial where the prosecution repeatedly

made improper and prejudicial comments throughout

the trial.

The conviction was affirmed by a two to one Opinion

of the Court of Appeals with Judge Wade McCree filing

a Dissenting Opinion (Appendix A). A timely Peti-

tion for Rehearing was filed and the United States was

ordered to respond, The Petition, almost eleven (11)

4)

months later, was denied (Appendix B). Petitioner

filed a Motion for Stay of Mandate Pending Certiorari

which was granted on February 15, 1978.

PZASONS FOR GRANTING THE WRIT

1. This Court Now Has the Opportunity to Alleviate the

Confusion So Surrounding the Material and Information

to Which a Criminal Defendant Is Butitiod Under the

Jencks Act, 18 U.S.C. §3500.

At trial and following the defense case, the prosecu-

tion called four rebuttal witnesses, one of which was

F.B.I. Special Agent Charles G. Williams. Special

Agent Williams had not testified previously in the

prosecution’s case-in-chief.

Special Agent Williams participated in the in-

vestigation of the bank burglary at issue. After the

direct examination of this witness, the defense moved

to examine any Jencks Act material to which it would

be entitled.

Mr. Gilday: Your Honor, prior to the cross-

examination of Special Agent Williams we move

for all Jencks Act material to which we would be

entitled before cross-examining Mr. Williams.

[T.E., Vol. Il, p. 412.]

Co-counsel for the Petitioner amplified this defense

motion for Jencks Act materials.

Mr. Haddad: We would respectfully submit to

your Honor that we have to take the government’s

representation at this stage, but we would submit

to your Honor that it is pretty common knowledge

-

that a case agent will have made any number of

reports, whether they be 302 reports of other wit-

nesses or whether they be his own investigative

reports. And if you are saying that there isn’t any

of that kind of stuff, we have already seen some

of it.

Mr. Winkler: I am not saying that. I am not

saying there is no investigative report. I am sure

he made investigative reports that was comprised

of interviews with other witnesses. I am saying

there are no statements from this witness.

The Court: Yes. Well, I suppose if you dictate

sotnething into the file and say on such and such a

day I talked with witness so aad so who said so and

so, if it weren’t for the fact that he was a govern-

ment employee that would be a Jencks thing in and

of itself, wouldn’t it? That’s your point as I see it.

Mr. Haddad: Yes, sir. [Emphasis added.]

[T.E., Vol. ITI, 421.)

Furthermore defense counsel carefully preserved

?

Mr. Haddad: Of those who testified.

Mr. Winkler: We have also given you all the

Brady material.

Mr. Haddad: Are there any 302’s on an in-

vestigation that this man made, interviews of other

witnesses that did not testify? |

Mr. Nyktas: I am sure there are.

Mr, Winkler: I am sure there are.

Mr. Haddad: You are contending that that’s

not Jeneks Act material?

Mr. Winkler: Sure.

Mr. Haddad: Under the theory that they are

investigative reports?

Mr. Winkler: Right.

Mr. Haddad: Now, there is no case agent re-

port as such from Williams delineating his eonclu-

sions and his—

Mr. Winkler: The FBI doesn’t make conclu-

sions. All they do is complete it. They send it to

us and we decide what to do with it.

Mr. Haddad: Well, I don’t know. We think

that anything that this witness may have submitted

committed to writing would be discoverable once

he is called to the stand.

the record in regard to examination of the Jencks Act

materials for the witness Williams. The entire col-

loquy is here reproduced.

Mr. Haddad: I would like to pin down, if you

would, your Honor, for the record, a ruling here as

far as the Jencks Act material is concerned on

Special Agent Williams. As I understand it, the

government is contending that they have no such

statement from him other than 302’s of interviews

he made with various witnesses during this case?

Mr. Winkler: Correct.

Mr. Nyktas: Which have all been supplied to

you. Those interviews have been supplied to you

after those people testified.

Mr. Nyktas: Well, the subject matter of what

he testified to was provided to you under Jencks

material, even Green and a few witnesses before,

that is his memorandum of interviews on the 16th

with Green and on the 18th. That was all given to

you, even before he got on the stand.

Mr. Haddad: As I understand it, Jencks Act

material is not necessarily limited to the scope of

the witness’ direct examination.

The Court: I think that istrue. It covers any

statement he has given, the witness himself, doesn’t

it?

8

Mr. Winkler: Correct. I am saying he hasn’t

given any statements. His investigative report is

a compilation of statements of a number of other

witnesses. [T.E., Vol. ITI, 425.]

At this point, defense counsel specifically requested

the Court to examine the Government’s documents to

ascertain whether they were Jencks Act statements.

Mr. Haddad: Well, we expect probably the best

way to preserve this record would be to ask your

Honor to ask the government to produce all those

things and seal them, after you have looked at them

of course—In other words, I don’t see how we can

determine whether these things are Jencks Act ma-

terial which they claim are not unless your Honor

takes a look at them.

The Court: You are simply talking about Wil-

liams now?

Mr. Hadded: Yes, sir.

The Court: As far as Williams is concerned,

the Court will decline that. [T.E., Vol. III, pp.

425-426. ]

Thus, the Court declined to inspect the questioned

documents in camera.

The Court stated that it would accept the Govern-

ment’s representation that there were no Jencks Act

statements for Special Agent Williams.

Mr. Hadded: All right. In other words, what

I understand you are saying is that, even if it is

determined that some of these things the govern-

ment has but contend are not Jencks Act items,

that even if they were Jencks Act items, you are

saying that we are not entitled to them at this time?

9

The Court: Well, we are accepting the govern-

ment’s representation that the only thing in there

by Williams is a report or various reports of his

investigation ?

Mr. Winkler: (Nodding.)

The Court: And we are declining to make them

produce them on the ground that those are not

Jencks Act material. [Emphasis added.] [T.E.,

Vol. ITI, p. 426.]

Defense counsel felt that the Court should make its

own determination as set forth in 18 U.S.C. §3500 and

should not rely on the prosecution’s representation:

With this in mind, defense counsel continued to care-

fully preserve the record to protect this Petitioner’s

statutory right to examine Jencks Act statements. De-

fense counsel moved that the questioned documents be

filed under seal and made a part of the record on

appeal, to be reviewed if necessary.

Mr. Hadded: All right. I understand your

ruling then. My next move or motion then, your

Honor, is that they be required to file those under

seal in the record in this case so that it can be

determined after an examination of these things

whether they are or are not Jencks Act material.

The Court: Well, we will decline that, unless

you want to do it voluntarily.

Mr. Winkler: No, we don’t, your Honor. We

don’t want to set a precedent on this.

Mr. Hadded: The point is that there would be

no way for the Sixth Circuit if it gets to that point

to review it unless it’s in the record. [T.E., Vol.

III, pp. 426-427. ]

10

However, the District Court declined to preserve the

record for review regarding the questioned Jencks Act

materials.

The Court’s action in regard to the questioned

‘“‘statements’’ was contrary to the procedure specifi-

eally outlined in 18 U.S.C. §3500, the Jencks Act, and

established easelaw.

The Jencks Act, subsection (b), provides that, on

motion of a defendant, the Court shall order the United

States to produce statements of the witness in the pos-

session of the United States which relate to the subject

matter as to which the witness has testified. In the

present case, on motion of the Petitioner following the

direct examination of the witness, the Court did not

order the United States to produce such statements of

the witness.

The Jencks Act, subsection (c), provides that, if

the United States claims that any statements it has

are not discoverable, then the Court ‘‘shall order the

United States to deliver such statement for the inspec-

tion of the court in eamera.’’ In the present case,

when the United States claimed that statements of the

witness were not discoverable, the Court did not order

an im camera inspection as the Defendant-Petitioner

requested and as the Act requires.

The Jencks Act, subsection (c), also provides that

where statements are withheld and a defendant objects

to such withholding, the entire text of the statement

withheld shall be preserved for appeal. In the present

ease, resulting in the Petitioner’s conviction, the Court

did not take steps necessary to preserve the text of

the withheld statements for review on appeal.

11

Throughont, the Petitioner properly objected to

the Court’s failure to order production, to inspect

im camera, and to preserve for review.

The scope of discovery pursuant to the Jeneks Act

is very broad.

The Act requires disclosure of all statements for

use in impeaching witnesses and ‘‘is thus designed

to further the fair and just administration of

criminal justice.’’ Goldberg v. United States, _—

U. 8. ——, 47 L. Ed. 2d 603, 616 (Mareh 30, 1976).

When a moving defendant shows that a Jencks Act

statement may exist, then the Court has a statutory

duty to conduet an im camera hearing to resolve any

dispute which may arise.

If a moving defendant meets the threshold

burden of showing that a statutory ‘‘statement’’

- may exist, the judge then must conduct a non-

adversary inquiry suited to resolve the particular

issue presented. [Citations omitted.} JIJd., at 625.

The Sixth Circuit has interpreted the Act in the

same way, finding that the Court has an affirmative

duty to conduct a non-adversary in camera hearing to

resolve Jencks Act disputes.

A defense motion for production of Jencks ma-

terial imposes on the trial judge an affirmative

duty to conduct a non-adversary hearing, out of

the presence of the jury, to ascertain whether

doeuments in the possession of the Government are

Jencks Act ‘‘statements.’’ United States v. Chit-

wood, 457 F. 2d 676, 678 (6th Cir. 1972), cert. den.

409 U. 8. 858.

12

Accord, United States v. Condor, 423 F. 2d 904, 911

(6th Cir. 1970), cert. den. 400 U. S. 958; 1 A.L.R.Fed.

252, 257, §3. In the present case, the District Court

failed to fulfill its statutory and decisional ‘‘affirma-

tive duty’’ so that the Petitioner was denied his statu-

tory and decisionsal right to inspection of Jencks Act

materials.

In the absence of an in camera inspection, the Sixth

Circuit has indicated that the trial court must at least

have the contested ‘‘statement’’ sealed and made a part

of the record for a review.

[T]he District Judge wisely ordered the reports to

be made part of the record, sealed for appellate

review. Chitwood, supra, 457 F. 2d at 678.

Accord, United States v. Cleveland, 477 F’. 2d 310, 316

(7th Cir. 1973). In the present case, the District Court

neither held an in camera hearing nor preserved the

disputed ‘‘statements’’ in the record for review.

In its Opinion, the Court of Appeals for the Sixth

Circuit held that the material heretofore mentioned

did not come within the purview of the Jencks Act.

However, in the dissenting opinion of Judge McCree,

a viewpoint diametrically opposed to that of the ma-

jority opinion is detected.

McCrez, Circuit Court (Dissenting). I re-

spectfully dissent. I disagree with that part of

the majority opinion that suggests that statements

of law enforcement agents who testify at trial are

not subject to the provisions of the Jencks Act.

The Act permits a defendant to inspect the au-

thenticated or adopted statement of any govern-

13

ment witness who has testified. A witness’ state-

ment is ordinarily an account of relevant informa-

tion known to the witness and communicated to

government agents during the course of their in-

vestigation. However, law enforcement agents

themselves also often acquire information about

offenses and they are often called to testify about

their knowledge. Their information is not always

recorded in the same form as is that furnished by

other witnesses. The agents instead may include

their information in investigative reports that

also include much evaluation and discussion of

prosecution strategy. Nevertheless, a defendant is

entitled under the Jencks Act to any part of an

investigative report that is a statement of an

agent’s knowledge of facts, which if recounted by

any other witness and recorded by the agent would

be available to the defendant under the Jencks

Act. . . . [Appendix A, pp. 35-36.]

In light of the statutory language of 18 U.S.C.

§3500 and this Court’s holding in Goldberg v. United

States, supra, it is respectfully submitted that Peti-

tioner’s unfair conviction below should be reversed.

2. A Decision By This Court Would Clarify What Con-

stitutes a Denial of a Defendant’s Entitlement to a Fair

Trial in Light of Highly Improper, Prejudicial, and

Continuing Prosecutorial Comments.

As previously mentioned, the Petitioner was

charged with bank burglary. The United States

alleges that the Petitioner had somehow participated

in the burglary of a branch bank in Springdale, Ohio,

on September 15, 1974.

14

The prosecution’s repeated attempts to unfairly

prejudice the jury in favor of the Government and

against the Petitioner are preserved in the record.

During the testimony of the presecution’s witness,

federal prisoner James Roberts who had already been

convicted of the bank burglary at issue, the prosecution

etigaged in suecessive irrelevant remarks, in an attempt

to. prejudice the jury against bank robbers and their

techniques in gertieral so that the Petitioner specifi-

cally might be all the more condemnable. At one point,

the prosecution gratuitously commented,

Q. That’s kind of an interesting pastime,

looking at banks.

Mr. Gilday: Judge, I object.

The Court: Sustained. The jury will please

disregard the comment. [T.E., Vol. I, p. 123.]

The defense objection was sustained.

At another point, the prosecution again gratui-

tously remarked to the witness that it’s ‘‘a good idea

not to spend too much time in a bank; is that right?’’

Immediately, the defense objected and the Court sus-

tained the objection. [T.E., Vol. 1, pp. 128-129.]

At yet another point in the testimony of this same

witness, the prosecution gratuitously questioned the

witness about the relative merits of leaving no finger-

prints. —

Q. Now, all these tools that you have here and

those tanks, et cetera and this torch head, did any-

body touch these with their bare hands?

A. Definitely not.

15

Q. That’s not a good idea, is it?

Mr. Gilday: Objection,

The Court: Sustained. [T.E., Vol. 1, p. 130.]

The defense objection was sustained.

These repeated comments by the prosecution were

objectionable because they were irrelevant to the in-

quiry at trial, whether or not the Petitioner had par-

ticipated in the alleged burglary. During the prosecu-

tion’s questioning of the same witness, the Court sua

sponte cautioned the prosecution.

The Court: Again, what is the relevancy of

this? What is the relevancy to this case. There is

an admission that he was there and what happened.

Why ad] the detail?

Mr. Winkler: I will speed it up, your Honor.

[T.E., Vol. I, p. 143.]

Finally, during the testimony of the same witness

Roberts, the prosecution attempted to overrun re-

peated defense objections and even Conrt rulings to

improperly buttress the testimony of this proseeution

witness.

Q. Now, Mr. Roberts, have you given this tes-

timony freely and vohumtarily ?

Mr. Gilday: Judge, I object.

The Court: Sustained, at this point.

Q. Have I promised you anything in return

for your testimony ?

Mr. Gilday: Again I object.

The Court: Sustained. The jury will please

disregard the testimony.

16

Q. Have you told the truth?

Mr. Gilday: Again I object.

The Court: Same ruling. [T.E., Vol. I, p. 144].

Thus, the prosecution, despite repeated Court rulings,

placed before the jury the unfair impression that this

prosecution witness may have been more credible than

he actually was.

When the Defendant’s witness William Thomas

Green came to the stand, the prosecution took just

the opposite tact, attempting to place before the jury

the unfair impression that this defense witness may

be less credible than he actually was.

Q. William Thomas Green. Now, Mr. Wil-

liam Thomas Green, about this particular case,

have you ever told a lie to anybody about it?

Mr. Gilday: Judge, I object.

The Court: Sustained.

Q. You have been truthful today; is that

right?

: A. Yes, sir. To the best of my ability; yes,

sir.

Q. Are you a truthful man?

Mr. Gilday: Judge, I object.

The Court: He has answered the question.

[T.E., Vol. II, pp 236-237. ]

It was unfair for the prosecution to badger the defense

witness as to his truthfulness. Nevertheless, the

prosecutor continued his attempt to discredit the wit-

ness’ present testimony on the basis of other episodes

completely irrelevant to the Petitioner’s innocence or

guilt.

17

Q. And isn’t it true that you only admitted

you were William Green after he told you that he

had your fingerprints?

A. That might be right. It might be right.

Q. It might be right?

A. Yes, sir, it might be. I don’t see what this

has got to do with Mr. Nickells.

Q. I think the Judge can determine what has

to do with Mr. Nickell.

Mr. Gilday: Judge, I object to the comment.

The Court: O.K. The jury will please dis-

regard the comment both of the witness and of

counsel. [T.E., Vol. II, p. 242.]

Undaunted, the prosecution continued, again in the

face of sustained objections, to pursue matters extrane-

ous to the question of Cecil Nickell’s guilt or innocence.

Q. Well, I guess you are saying that clothes

kind of make the man?

Mr. Gilday: I object.

The Court: Sustained. The jury will disre-

gard the comment.

A. Ithink I said what I tried to say.

Q. Have you ever dressed nice?

Mr. Gilday: I object.

Mr. Winkler: I will withdraw it, your Honor.

[T.E., Vol. II, p. 251.]

Such improper inquiries on matters not in issue were

intended to discredit the defense witness in the eyes

of the jury.

The prosecution took a final gratuitous potshot at

the defense witness Green by a patently improper

reference to looking into ‘‘bank vaults.’’ The feeling

of the Court below that such repeated remarks pos-

18

sessed definite potential of prejudice is apparent from

the Court’s order that the prosecution ‘‘desist.”’

A. Mr. Prosecutor, I don’t usually go look

in people’s trunks or people’s cars, you know.

Q. You don’t?

A. No.

Q. You just look in bank vaults; is that right?

Mr. Gilday: Your Honor, I object to the com-

ment.

The Court: Yes. The jury will please disre-

gard these comments. Mr. Winkler, let’s desist

those, please.

Mr. Winkler: Very well, your Honor. [T.E.,

Vol IL, p. 256.]

The Court’s order to ‘‘desist those’’ was plain, and the

prosecution’s response, ‘‘ Very well, your Honor,’’ in-

dicated the Government’s understanding.

Nevertheless, the proseeution continued to make

prejudicial remarks in its attempt to discredit defense

witnesses.

During the eross-examination of the defense witness

Roberts, the prosecution took a cheap shot directly at

the witness. Again, the Court sustained the defense

objection.

Q. You don’t have them [letters] here with

you today, do you?

A. Ne, I don’t.

Q. I didn’t think so.

Mr. Gilday: I will object.

The Court: All right. What the United States

Attorney thinks the jury will disregard.

Mr. Gilday: Thank you. [T.E., Vol. II, p.

279.4

19

The prosecution’s innuendos and demeaning comments

against defense witnesses continued.

At one point during the cross-examination of the

defense witness Sauer, the prosecution interjected,

Q. You are not a millionaire, are you?

Mr. Gilday: Oh, I object.

The Court: Sustained. [T.E., Vol. II, p. 312.]

The proseeution’s improper and unrelated questions

eontinued, even during cross-examination of the Pe-

titioner himself.

For example, the prosecution asked the length of

the Petitioner’s sentence on a prior conviction. Again

the defense objection to the improper question was

sustained. |

Q. And what was your sentence on that par-

ticular felony?

A. Sir?

Q. What was your sentence on that particular

felony ?

A. What was the sentence?

Mr. Haddad: Object, if your Honor please.

The Court: Sustained. [T.E., Vol. II, p. 365.]

Throughout the trial, the prosecution attempted to

support its own witnesses before the jury by remarks

unrelated to the issue at bar. Throughout the trial, the

prosecution attempted to discredit defense witnesses

before the jury by remarks unrelated to the issue at

bar. The prosecution repeatedly made improper re-

marks; defense objections were repeatedly sustained ;

and more than once the Court attempted sua sponte to

20

prevent such improper remarks. Sometimes, the pro-

secution even openly overrode the Court’s rulings.

Finally, the prosecution objected several times to legit-

imate closing arguments by the defense. Overall,

these improprieties by supposedly experienced prose-

cutors may well have resulted in the jury’s returning

a verdict of guilty in an otherwise extremely close case.

This court has not ruled on improper prosecutorial

argument since Berger v. United States, 295 U.S. 78,

84-89 (1935) where it spoke in general terms of the

prosecuting attorney as a ‘‘representative not of an

ordinary party to a controversy, but of a sovereignty

whose obligation to govern impartially is as compelling

as its obligation to govern at all; and whose interest,

therefore, in a criminal prosecution is not that it shall

win a case, but that justice shall be done.’’ The Court

here continued, describing the role of the prosecutor:

. . . he is in a peculiar and very definite sense

the servant of the law, the two fold aim of which

is that guilt shall not escape nor innocence suffer.

He may prosecute with earnestness and vigor—

indeed, he should do so. But, while he may strike

hard blows, he is not at liberty to strike foul ones.

It is as much his duty to refrain from improper

methods calculated to produce a wrongful con-

viction as it is to use every legitimate means to

bring about a just one. Berger v. Umted States,

supra, 295 U.S. at 88.

While it cannot be denied that this is all very true,

these statements render very little guidance as to

where to draw the line between proper and improper

—— =

ee i

21

prosecutorial comment and argument. All too often a

zeal for conviction has made this inquiry necessary and

therefore certain boundaries need to be imposed in

terms more specific than those in Berger. In this re-

gard, Federal Circuit Courts of Appeal, citing Berger,

have fashioned rules of their own, but their treatment

of the matter has varied and thus leaves little certainty

as to result and has little deterrent effect on prosecu-

tors. The Eighth Circuit in United States v. Splain,

545 F. 2d 1131, 1134-1136 (8th Cir. 1976) found error

(though not reversible error) in the prosecutor’s im-

proper characterizations of defendant and in his ex-

pressions of personal belief about evidence. The Court

in United States v. Leon, 534 F. 2d 667, 678-683 (6th

Cir. 1976) reversed a conviction due to prosecutorial

misconduct involving the injection of inadmissible and

irrelevant information as did the court in United States

v. Bell, 506 F. 2d 207, 225-226 (D.C. Cir. 1974). Another

conviction was reversed in United States v. Phillips,

527 F. 2d 1021, 1022-1025 (7th Cir. 1975) due to prose-

cutorial misconduct involving misstatement of the law,

injection of improper information and assertion of

personal belief about evidence. Finally in Hall v.

United States, 419 F. 2d 582, 583-588 (5th Cir. 1969)

the Court found that comments by the prosecutor in-

volving assertions that the defendant was tampering

with witnesses, expressions of personal belief about

testimony, and criminal characterizations of the de-

fendant were all highly improper.

It is hornbook law that, ‘‘evidence which is not

relevant is not admissible.’’ Federal Rule of Evidence

22

402. It is obviously unprofessional conduct for a pro-

secutor to gratuitously present before a jury impermis-

sible comments or objectionable questions.

It is unprofessional conduct for a prosecutor know-

ingly and for the purpose of bringing inadmis-

sible matter to the attention of the judge or jury

to offer inadmissible evidence, ask legally objec-

tionable questions, or make other impermissible

comments or arguments in the presence of the

judge or jury. American Bar Association Stan-

dards Relating to the Prosecution Function, §5.6

(b) Presentation of Evidence, Approved Draft,

1971, p. 119.

In the present case, the record reveals that the prosecu-

tion repeatedly brought inadmissible matters to the

attention of the jury. Thus, the facts of this case pro-

vide an excellent opportunity for this Court to reverse

a conviction unjustly obtained and to offer much needed

guidance with regard to proper prosecutorial comment

and argument.

CONCLUSION

The decision of the Court of Appeals for the Sixth

Circuit failed to recognize the prejudicial error of the

District Court in not following the clear statutory

guidelinés of 18 U.S.C. §3500. Furthermore, the denial

of Petitioner’s entitlement to a fair trial and to be

tried solely upon competent, relevant evidence was

fundamental] injustice amounting to a denial of Peti-

tioner’s Fifth Amendment entitlement to due process

23

of law. Only this Court remains to correct that funda-

mental injustice. The present Petition for Writ of

Certiorari should therefore be granted.

Respectfully submitted,

Frank E. Happap, JR.

529 Kentucky Home Life Building

Louisville, Kentucky 40202

BERNARD J. GILDAY, JR.

1500 American Building

30 East Central Parkway

Cincinnati, Ohio 45202

Counsel for Petitioner

GED De eS I Ns OM OE

AMO a ODED a Mc

APPENDIX

25

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 76-2157

Unrtep States or AMERICA,

Plaintiff-Appellee, | , .oeat, from the United

. States District Court

: for the Southern Dis-

Crom K. NicKet1, trict of Ohio.

Defendant-Appellant. |

Decided and Filed March 28, 1977.

Before: Epwarps, McCrer and Enos, Circuit Judges.

Epwarps, Circuit Judge, delivered the opinion of the

Court, in which Encet, Circuit Judge, joined. McCrez,

Circuit Judge (pp. 12-13), filed a dissenting opinion.

Epwarps, Cireuit Judge. Appellant was convicted of

aiding and abetting in unlawful entry of a bank, in violation

of 18 U.S.C. §§2113(a), 2(a) (1970). After a jury trial in

the United States District Court for the Southern District

of Ohio, he was found guilty and sentenced to 15 years.

The appellate issues principally concern claims that the

prosecutor prejudiced the trial by improper questions or

comments. Appellant also argues several other issues, in-

cluding that a government rebuttal witness gave false

testimony and that the government failed to comply with

the Jencks Act. |

The underlying facts of the crime were established

beyond peradventure of a doubt. The factual issue for the

26

jury was whether or not appellant was a participant. The

two would-be bank robbers, Roberts and Green, broke into

the bank in question and were arrested in the bank when a

silent alarm went off. According to the testimony of

Roberts, one of the burglars, appellant was driving the

proposed getaway car but failed to respond to their urgent

CB radio request to be picked up. Appellant Nickell and

the other burglar, Green, however, testified that Nickell had

no part in the robbery scheme, and Nickell presented an

alibi defense for the evening in question.

The government’s corroboration of Robert’s testimony

consisted of records of phone calls between appellant’s

phone and that of Roberts, and other admitted associations,

including appellant’s presence with both bank robbers at the

scene of an accident two days before the robbery. All of

these associations were within days or hours of the bank

robbery attempt and hence somewhat suggestive of a rela-

tionship thereto. But none of them necessarily settled the

conflict between the testimony of the two actual bank

burglars. Green, the other burglar, testified that he and

Roberts were at Nickell’s apartment on September 15, 1974

—the date of the attempted burglary—but Nickell was not

present on the scene and had no part init. He testified that

the pick-up man was a black man whose name he could not

remember.

Appellant presented three alibi witnesses whose testi-

mony, if believed, would have placed appellant in his own

apartment at the time of the bank burglary attempt. In

various ways the government’s cross-examination and re-

buttal evidence tended to contradict or throw doubt on the

credibility of their stories.

Appellant does not dispute that there was sufficient evi-

dence to support the jury’s finding of guilt. He does, how-

ever, assert that the claimed errors in the trial prejudiced

his ease and demands a new trial. Beeause appellant’s

27

guilt rests primarily upon one witness who is also an ac-

complice, we approach his claims of prejudicial error with

more than normal concern.

I. PROSECUTORIAL ABUSE

Illustrative of appellant’s complaint in relation to this

issue are the first five examples set out in appellant’s brief:

During the testimony of the prosecution’s witness,

federal prisoner James Roberts who had already been

convicted of the bank burglary at issue, . . . the

prosecution gratuitously commented,

Q. That’s kind of an interesting pasttime looking

at banks.

Mr. Gilday: Judge, I object.

The Court: Sustained. The jury will please dis-

regard the comment.

The defense objection was sustained.

At another point, the prosecution again gratuitously

remarked to the witness that it’s “a good idea not to

spend too much time in a bank; is that right?” Im-

mediately, the defense objected and the Court sustained

the objection.

At yet another point in the testimony of this same

witness, the prosecution gratuitously questioned the

witness about the relative merits of leaving no finger-

prints.

Q. Now, all these tools that you have here and

those tanks, et cetera and this torch head, did any-

body touch these with their bare hands?

A. Definitely not.

Q. That’s not a good idea, is it?

Mr. Gilday: Objection.

The Court: Sustained.

The defense objection was sustained.

These repeated comments by the prosecution were

objectionable because they were irrelevant to the in-

28

quiry at trial, whether or not the Defendant had par-

ticipated in the alleged burglary. Finally, still during

the prosecution’s questioning of the same witness, the

Court sua sponte cautioned the prosecution.

The Court: Again, what is the relevancy of this?

What is the relevancy to this case? There is an

admission that he was there and what happened.

Why all the detail?

Mr. Winkler: I will speed it up, your Honor.

Finally, during the testimony of the same witness

Roberts, the prosecution attempted to overrun repeated

defense objections and even Court rulings to improp-

erly buttress the testimony of this prosecution witness.

Q. Now, Mr. Roberts, have you given this testi-

mony freely and voluntarily?

Mr. Gilday: Judge, I object.

The Court: Sustained, at this point.

Q. Have I promised you anything in return for

your testimony?

Mr. Gilday: Again I object.

The Court: Sustained. The jury will please dis-

regard the testimony.

Q. Have you told the truth?

Mr. Gilday: Again I object.

The Court: Same ruling.

From these examples and from review of the entire

transcript of this trial, we believe that appellant’s com-

plaints about prosecutorial abuse have at least some merit.

The record shows that the prosecutor was rarely able to

let any witness’ testimony go into the record without an

effort on his own part to emphasize or to discredit it. None

of his comment was such as to invade the constitutional

rights of the appellant, and for the most part it would have

been appropriate enough had he reserved it for the prosecu-

torial argument. It was, however, improperly interposed

ee ee

29

throughout the trial in a manner which cumulatively would

have represented prejudicial error if it had gone unchecked

or unrebuked.

Significantly, however, this record shows the contrary.

The trial took place before Judge Timothy Hogan, an ex-

perienced trial judge in the Southern District of Ohio. As

illustrated in the examples quoted above, at every defense

objection—and sometimes without awaiting such—Judge

Hogan interposed a ruling in defendant’s favor and often

an admonition to the jury. We can think of no better form

of correction of an overzealous prosecutor than the im-

mediate and firm response of the trial judge. However

eagerly the prosecutor sought to curry favor with the jury

by seeking to color the evidence with his own observations,

he was calmly checked and rebuffed in every important in-

stance by adverse rulings and admonitions from the bench.

The totality of this record discloses that, whatever his in-

tentions, the prosecutor did not succeed in achieving any

unfair advantage.

We find no judicial error in the District Judge’s rulings

end no prosecutorial abuse which, after Judge Hogan’s

rulings, resulted in any unfair advantage fcr the govern-

ment’s case.

Il. PERJURED TESTIMONY CLAIM

Appellant asserts entitlement to a new trial because a

rebuttal witness, whose testimony contradicted a statement

made by one of appellant’s alibi witnesses, told a lie. Ap-

pellant claims that the lie served to cast doubt upon the

alibi witness.

On cross-examination the witness, Mrs. Dils, denied that

she had “lived in a residence with [her] daughter Gloria

and with [the alibi witness] Bob Sauer.” The question did

not bear directly upon Sauer’s previous alibi testimony and

was not pursued. After the trial two affidavits were pre-

sented in which the declarants told of seeing Mrs. Dils in

36

the Sauer home. Mrs. Dils was never asked at trial whether

or not she had ever been in the Sauer residence, nor was

the ambiguous phrase “lived . . . with . . . Sauer”

ever clarified by the cross-examiner. Accepting the affi-

davits at face value, they by no means support the sugges-

tion which we believe we are meant to derive from ap-

pellant’s brief, that this elderly grandmother committed

perjury by denying a previously existing illicit relationship

with witness Sauer.

Appellant was clearly not entitled to a new trial on this

ground. See Ashe v. United States, 288 F. 2d 725, 733 (6th

Cir. 1961).

Ul. THE JENCKS ACT ISSUE

Appellant claims prejudicial error also in the fact that

the District Judge refused his motion to be allowed to in-

spect all of the “reports” of an FBI Agent who was a wit-

ness in the case. He asserts in effect that the Jencks Act

required that on demand he be allowed to see the reports,

or in the alternative that the District Judge screen the

reports in camera to determine whether they should be

turned over as “statements” under the Jencks Act. We do

not find these requirements in the Jencks Act.

The Jencks Act defines “statement” as follows:

(e) The term “statement”, as used in subsections

(b), (ec), and (d) of this section in relation to any wit-

ness called by the United States, means—

(1) a written statement made by said witness and

signed or otherwise adopted or approved by him;

(2) a stenographic, mechanical, electrical, or

other recording, or a transcription thereof, which is

a substantially verbatim recital of an oral statement

made by said witness and recorded contemporane-

ously with the making of such oral statement; or

31

(3) a statement, however taken or recorded, or

a transcription thereof, if any, made by said witness

to a grand jury.

18 U.S.C. § 3500(e) (1970).

The “statement” rcferred to above is a statement of a

witness whose direct testimony is presented in a criminal

trial, which statment had been previously recorded and ap-

proved or adopted by the witness. Here it is undisputed

that the witness statements taken by Agent Williams had

been previously made available to appellant’s counsel for

purposes of cross-examination of other witnesses.

The question posed here, however, is not so easily an-

swered. Agent Williams’ direct testimony at trial bore

only upon the fact (as claimed by him) that appellant’s wit-

ness Green, on being arrested, gave a false name. Appel-

lant does not dispute that the government furnished the

“statement” which Agent Williams took from Green. The

dispute before this court pertains to whether or not under

subsection (b)! of the Jencks Act appellant must be fur-

nished all of Agent Williams’ case reports, or under sub-

section (c)? the court must require production of such re-

1(b) After a witness called by the United States has testified

on direct examination, the court shall, on motion of the defendant,

order the United States to produce any statement (as hereinafter

defined) of the witness in the possession of the United States which

relates to the subject matter as to which the witness has testified.

If the entire contents of any such statement relate to the subject

matter of the testimony of the witness, the court shall order it to be

delivered directly to the defendant for his examination and use.

18 U.S.C. § 3500(b) (1970).

2(c) If the United States claims that any statement ordered

to be produced under this section contains matter which does not

relate to the subject matter of the testimony of the witness, the

court shall order the United States to deliver such statement for

the inspection of the court m camera. Upon sach delivery the court

sha] excise the portions of such statement which do not relate to

the subject matter of the testimony of the witness. With such ma-

terial excised, the court shall then direct delivery of such statement

(Footnote continued on following page)

32

ports for screening as to their relevance to the direct testi-

mony of the agent. The breadth of appellant’s claim is

clearly set forth in the following statement to the District

Judge on the part of one of appellant’s counsel, Mr.

Haddad: “Well, I don’t know. We think that anything

that this witness may have submitted, committed to writing

would be discoverable once he is called to the stand.”

We do not find such broad requirements in the Jencks

Act or in any of the cases cited to us by appellant. The

purpose of the Jencks Act itself was to restrict a defend-

ant’s right to any general exploration of the government’s

files*—a right Congress feared it perceived in Jencks v.

United States, 353 U. S. 657 (1957). See Goldberg v. United

States, 425 U. S. 94, 104 (1976); Palermo v. United States,

360 U. S. 343, 345-50 (1959).

Finding the Jencks Act to be inapplicable here is not the

end of the inquiry, however. We recognize that the Su-

preme Court has repeatedly upheld the trial court’s “inher-

(Footnote continued from preceding page)

to the defendant for his use. If, pursuant to such procedure, any

portion of such statement is withheld from the defendant and the

defendant objects to such withholding, and the trial is continued

to an adjudication of the guilt of the defendant, the entire text of

such statement shall be preserved by the United States and, in the

event the defendant appeals, shall be made available to the appel-

late court for the purpose of determining the correctness of the

ruling of the trial judge. Whenever any statement is delivered to

a defendant pursuant to this section, the court in its discretion,

upon application of said defendant, may recess proceedings in the

trial for such time as it may determine to be reasonably required

for the examination of such statement by said defendant and his

preparation for its use in the trial.

18 U.S.C. §-3500(¢) (1970).

3(a) 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) shall be the subject of subpena,

discovery, or inspection until said witness has testified on direct

examination in the trial of the case.

18 U.S.C. § 3500(a) (1970).

ee OR Ae

33

ent power” to require production of all relevant facts in a

criminal trial. In United States v. Nobles the Court said:

Decisions of this Court repeatedly have recognized the

federal judiciary’s inhereut power to require the prose-

cution to produce the previously recorded statements

of its witnesses so that the defense may get the full

benefit of cross-examination and the truth-finding proc-

ess may be enhanced. See, e. g., Jencks v. United

States, 353 U. S. 657 (1957); Gordon v. United States,

344 U. S. 414 (1953); Goldman v. United States, 316

U. S. 129 (1942); Palermo v. United States, 360 U. S.

343, 361 (1959) (Brennan, J., concurring in result).

United States v. Nobles, 422 U. S. 225, 231 (1975).

(Footnote omitted.)

In these cases, and all of the cases relied upon by appel-

lant, there has, however, been some foundation* laid for

production of the material sought which indicated the ex-

istence of a prior “statement” relevant to the issues at trial

as to which the witness had testified. See Goldberg v.

United States, supra; United States v. Chitwood, 457 F. 2d

676, 678 (6th Cir.), cert. dented, 409 U. S. 858 (1972);

United States v. Conder, 423 F. 2d 904, 911 (6th Cir.), cert.

denied, 400 U.S. 958 (1970).

Frequently the dispute needing resolution was whether

or not the witness had adopted or approved the statement

within the meaning of the Jencks Act. See Goldberg v.

lnited States, supra at 110; Campbell v. United States,

373 U. S. 487, 492-93 (1963); United States v. Chitwood,

supra at 678.

*We employ the word ‘‘foundation’’ in the sense it was used

by the Court in Jencks v. United States, 353 U. 8. 657, 666 (1957) :

Both the trial court and the Court of Appeals erred.

We hold that the petitioner was not required to lay a pre-

liminary foundation of inconsistency, Sane a sufficient

foundation was established by the testimony of Matusow and

Ford that their reports were of the events and activities

related in their testimony.

34

Here, as previously noted, Agent Williams’ recordation

of witness Green’s statement was furnished under the

Jencks Act. This represents compliance with the thrust of

the Jencks Act and most of the cases cited to us. Bunt

because Agent Williams became a witness as to what Green

said, appellant now seeks discovery “of anything that this

witness may have committed to writing. . . .”

Our endorsement of this broad right would require either a

wholesale turnover of FBI files to any defendant on de-

mand, or at a minimum, that the trial judge examine for

relevance and materiality all of the reports filed by any

government agent who took the witness stand. The first of

these alternatives would have the potentiality for placing

in the hands of a person (or persons) charged with crime

much confidential government information which had no

bearing at all upon the issue of guilt or innocence at the

trial involved. Routine judicial screening, however, would

pose no such problem and might on occasion contribute to

a more just result. But it surely would represent an addi-

tional substantial burden to our overburdened federal trial

judges and further delay the trial of criminal cases. In the

face of clear Congressional opposition to such “rummag-

ing” of the FBI files as was expressed in the Jencks Act,

and in the absence of any clear affirmative mandate from

the Supreme Court, we decline appellant’s invitation to

adopt such a broad (and necessarily unilateral) discovery

rule.

In this case an experienced District Judge found no rea-

son to require production of the FBI reports for either

turnover or screening.

The record before him disclosed no basis for belief that

a Jencks Act “statement” existed other than those already

furnished to defense counsel. Additionally, the District

Judge had before him no showing of relevance or material-

ity of any evidence contained in Agent Williams’ “reports.”

These facts represent decisive distinction between this case

ee ee ee

35

and those relied upon by Judge McCree’s dissent. The

question of routine trial producibility of FBI files and re-

ports other than witness statements “written . . ., signed,

or otherwise adopted or approved by him” was decided in

the negative in Palermo v. United States, 360 U. 8. 343,

349-51 (1959). Palermo has been frequently discussed and

cited by the Supreme Court, but never overruled. See

Campbell v. United States, 365 U. S. 85 (1961) [Camp-

bell I]; Campbell v. United States, 373 U. S. 487 (1963)

[Campbell II]; Goldberg v. United States, 425 U. S. 94

(1976).

We therefore held that where the District Judge has

discovered no foundation for either turnover or judicial

screening of F'BI files, and the appellate record discloses

none except the unsupported demand of the defendant, the

District Judge’s refusal to order either turnover or screen-

ing is not an abuse of judicial discretion.

The remaining three of appellant’s stated issues do not

require discussion. We have examined them against the

record of this case and find them without merit.

The judgment of the District Court is affirmed.

McCzrez, Circuit Judge (Dissenting). I respectully dis-

sent. I disagree with that part of the majority opinion that

suggests that statement of law enforcement agents who

testify at trial are not subject to the provisions of the

Jencks Act. The Act permits a defendant to inspect the

authenticated or adopted statement of any government wit-

ness who has testified. A witness’ statement is ordinarily

an account of relevant information known to the witness

and communicated to government agents during the course

of their investigation. However, law enforcement agents

themselves also often acquire information about offenses

and they are often called to testify about their knowledge.

Their information is not always recorded in the same form

as is that furnished by other witnesses. The agents instead

may include their information in investigative reports that

36

also inelude much evaluation and discussion of prosecution

strategy. Nevertheless, a defendant is entitled under the

Jencks. Act to any part of an investigative report that is a

statement of an agent’s knowledge of facts, which if re-

counted by any other witness and recorded by the agent

would be available to the defendant under the Jencks Act.

Such statements, like the statements of other witnesses,

should be ordered produced if they relate to the subject

matter of the agent’s testimony. See United States v.

Johnson, 521 F. 2d 1318 (9th Cir. 1975); Lewis v, United

States, 340 F. 2d 678, 682 (8th Cir. 1965) ; United States v.

Bell, 457 F. 2d 1231, 1235 (5th Cir, 1972).

If the government claims that any document ordered

produced for inspection contains more than the statement

of a witness or does not relate to the subject matter of his

testimony, the district court must examine the material and

excise those portions that are not available to the defendant

under the Act. The Act requires this procedure even if the

defendant’s request for inspection includes writings some

of which are obviously not related to the testimony given

by the witness or include evaluative or tactical notations.

See, e.g., United States v. Mason, 523 F. 2d 1122 (D.C, Cir.

1975). And the court may not delegate to the government

its duty to determine whether or not the requested material

is available for inspection by the defendant.

I share the concern of the majority opinion for the

workload of overburdened district judges, but I would not

permit this consideration to cause us to overlook the clear

mandate of the statute. I would remand to permit the

district court to make the required inspection and deter-

mination. See Goldberg v. United States, 425 U.S, 94, 111

(1976).

nv > wees thane at dea eaganlnaaillingl

NON ie tm

37

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 76-2157

Unitep States or America - - - Plaintiff-Appellee

v.

Crom, K. Nicketn - - - - - Defendant-Appellant

ORDER—Filed February 3, 1978

Before: Puuurrs, Chief Judge, Epwarps and Encst,

Circuit Judges.

On receipt and consideration of appellant’s petition for

rehearing ; and

The panel having ordered-a response by respondent

United States, and having given careful consideration to

said petition and the response thereto and finding no merit

to said petition,

Now, therefore, the petition for rehearing is hereby

denied.

Entered by order of the Court

(s) John P. Hehman

Clerk