Opposition Brief — Blackburn v. United States

In the Supreme Gourt of the Bnited States

Ocroser TERM, 1971

No. 71-529

HarRLAN ALEXANDER BLACKBURN, PETITIONER

V.

Unrrep States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPRALA FOR THE FIFTH CIRCUIT

Following a jury trial in the United States District

Court for the Middle District of Florida, petitioner

was convicted on two counts of having knowingly used

facilities of interstate commerce in furtherance of an

illegal gambling enterprise, in violation of 18 U.S.C.

1952. He was sentenced to prison terms of four years

and a fine of $4,000 on each count (Tr. 1584). The

court of appeals affirmed (Pet. App.).

tioner operated an illegal gambling business in Florida

which had gross weekly intake of up to $250,000, is not

in dispute. Petitioner's sole claim relates to the court's

'“Tr.” refers to the transcript of the trial which we are lodg-

ing herewith.

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refusal to require production of certain F. B. I. inves-

tigative reports regarding the government’s principal

witness, McCormick, who had worked with petitioner

in the operation of the gambling enterprise. McCor-

mick served as a paid informer for the F.B.I. for

approximately four years. During this period MeCor-

mick was interviewed about once a month. He made

oral reports to an agent, who took notes which he then

reviewed with McCormick to insure accuracy; later the

agent dictated written reports. MeCormick never read

the notes or the reports (Tr. 1001, 1016-1029).

At trial the government furnished petitioner with

the two reports which pertained to this prosecution.

Petitioner demanded, under the Jencks Act, 18 U.S.C.

3500, all the reports covering the entire four-year pe-

riod. The district court held a hearing at which the

agent who had interviewed McCormick testified that the

for a few trade terms used in the gambling business

(Tr. 1017-1018, 1021). In addition the agent testified

that in preparing the reports he had separated the in-

formation according to incident, and that only the two

reports furnished petitioner contained any material

relating to the direct testimony of the informant (Tr.

1020-1025). MeCormick in turn testified that he had

given only verbal reports to the agents, that the writ-

The judge also directed the prosecutor to examine the re-

maining reports to determine if they contained any exculpatory

matter. The prosecutor did so and represented to the court that

im the reports was exculpatory as to petitioner (Tr.

Zz

423

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ten reports were not his, and that he had never seen

any of them (Tr. 1005-1006).°

Following the hearing, the district judge ruled that

the reports were not Jencks Act material, as they had

not been adopted by the witness; he therefore refused

to require production of the reports (Tr. 1001, 1032-

1043, 1045, 1454-1458).

The trial court’s determination that the reports had

not been adopted by McCormick should be sustained.

Although a different result was reached in Campbell v.

United States, 373 U.S. 487, this was based on the

finding of adoption made by the trial judge on the

particular facts of that ease. As the Court in Campbell

held, the relevant questions are factual and the find-

ings of the district courts should not be disturbed un-

less clearly erroneous, 373 U.S. at 493. The finding was

not clearly erroneous in this case. Furthermore, the

trial court correctly found that the reports were not

producible since they did not relate to the direct testi-

mony of the witness. See United States v. Graves, 428

F. 2d 196 (C.A. 5), certiorari denied, 400 U.S. 960.

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari be denied.

Erwin N. Griswo.,

Noltcitor General.

Novemser 1971.

* Petitioner's assertion that this witness did not testify on the

question of adoption (Pet. 9-10) is not supported by the record.

©.S SOVERNErHT PRINTING OFF NCE Teo!