# Opposition Brief — Blackburn v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0138%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1972 - **Citation:** 404 U.S. 1017 ## Text 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. 2 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 3 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! --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0138%3A2. Public record. Not legal advice.