ERCKMAN v. U.S, 416 U.S. 909 (1974)
U.S. Supreme Court
ERCKMAN v. U.S , 416 U.S. 909 (1974)416 U.S. 909
George ERCKMAN
v.
UNITED STATES.
No. 73-996.
Supreme Court of the United States
April 1, 1974
On petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
Petitioner was convicted after a jury trial of three counts of willfully filing false income tax returns in violation of 7206(1) of the Internal Revenue Code, 26 U.S.C. 7206(1). An important prosecution witness at trial was Internal Revenue Special Agent Eugene Konrad, who had interviewed petitioner about his tax returns before the prosecution was instituted and whose
testimony played a major role in establishing the willfullness of petitioner's acts. To facilitate his cross-examination of Konrad, petitioner moved under the Jencks Act, 18, U.S.C. 3500, for production of Konrad's report to the Chief of the Intelligence Division of the Internal Revenue Service in Chicago concerning the interview. Following the in camera examination mandated by 3500(c), the District Court refused to order production of the report on the ground that 'there is no material . . . in the special agent's report . . . that is reasonably necessary for the defendant's use in making adequate trial preparation.'
The Court of Appeals correctly held that 'this was an improper test' to apply to determine whether a statement must be produced under 3500. The court, following its recent decision in United States v. Cleveland, 477 F.2d 310, 315-316 (CA7 1973), found that the agent's report was a 'statement' within the meaning of the Jencks Act, 3500(e), see also Clancy v. United States, 365 U.S. 312 (1961), and that it therefore must be produced if it 'relates to the subject matter as to which the witness has testified.' 3500(b). Since the Court of Appeals found that 'some of it clearly relates to the subject matter of his testimony,' it held that Konrad's report should have been produced for the petitioner's use in cross-examination.
But the Court of Appeals then went on to conclude, on the basis
of its own examination of the report and without permitting
petitioner's counsel to see it, that 'the report would have been of
no assistance to defendant' and that 'there was no inconsistency
between Konrad's report and his testimony at trial.' It therefore
held the failure to produce the report to be harmless error. As to
this point, Judge Fairchild disagreed, saying that he would 'give
defense counsel an opportunity [416 U.S. 909 , 911]
U.S. Supreme Court
ERCKMAN v. U.S , 416 U.S. 909 (1974) 416 U.S. 909 George ERCKMANv.
UNITED STATES.
No. 73-996. Supreme Court of the United States April 1, 1974 On petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit. The petition for a writ of certiorari is denied. Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting. Petitioner was convicted after a jury trial of three counts of willfully filing false income tax returns in violation of 7206(1) of the Internal Revenue Code, 26 U.S.C. 7206(1). An important prosecution witness at trial was Internal Revenue Special Agent Eugene Konrad, who had interviewed petitioner about his tax returns before the prosecution was instituted and whose Page 416 U.S. 909 , 910 testimony played a major role in establishing the willfullness of petitioner's acts. To facilitate his cross-examination of Konrad, petitioner moved under the Jencks Act, 18, U.S.C. 3500, for production of Konrad's report to the Chief of the Intelligence Division of the Internal Revenue Service in Chicago concerning the interview. Following the in camera examination mandated by 3500(c), the District Court refused to order production of the report on the ground that 'there is no material . . . in the special agent's report . . . that is reasonably necessary for the defendant's use in making adequate trial preparation.' The Court of Appeals correctly held that 'this was an improper test' to apply to determine whether a statement must be produced under 3500. The court, following its recent decision in United States v. Cleveland, 477 F.2d 310, 315-316 (CA7 1973), found that the agent's report was a 'statement' within the meaning of the Jencks Act, 3500(e), see also Clancy v. United States, 365 U.S. 312 (1961), and that it therefore must be produced if it 'relates to the subject matter as to which the witness has testified.' 3500(b). Since the Court of Appeals found that 'some of it clearly relates to the subject matter of his testimony,' it held that Konrad's report should have been produced for the petitioner's use in cross-examination. But the Court of Appeals then went on to conclude, on the basis of its own examination of the report and without permitting petitioner's counsel to see it, that 'the report would have been of no assistance to defendant' and that 'there was no inconsistency between Konrad's report and his testimony at trial.' It therefore held the failure to produce the report to be harmless error. As to this point, Judge Fairchild disagreed, saying that he would 'give defense counsel an opportunity Page 416 U.S. 909 , 911 to see the material erroneously withheld and to attempt to persuade the court that the error was not harmless before the court decides that it was.' In my view, Judge Fairchild was clearly correct. I believe that the procedure employed by the Court of Appeals improperly denied petitioner the opportunity to examine the Agent's report and to argue to the court that the error was not harmless. [Footnote 1] This result is compelled by the rationale of our Jencks decision and the statute which followed it. In Jencks, this Court held that relevant and material statements of government witnesses must be turned over to the defense regardless of the trial judge's view as to their usefulness in cross- Page 416 U.S. 909 , 912 examination. This Court expressly disapproved of the practice of submitting such statements to the trial judge for an in camera examination because 'only the defense is adequately equipped to determine the[ir] effective use for purpose of discrediting the Government's witness and thereby furthering the accused's defense.' Jencks v. United States, 353 U.S. 657, 668-669 (1957). The Jencks Act expressly reaffirmed this aspect of our decision, see S.Rep.No. 569, 85th Cong., 1st Sess., p. 3 (1957); Campbell v. United States, 365 U.S. 85, 92 (1961), and on its face gives the defendant the right to examine any relevant statements of Government witnesses to make his own determination of their usefulness. The Act makes clear that it is not ordinarily part of the business of the federal judiciary to determine whether the defense could effectively utilize a producible statement. The Act thus recognizes that it is impossible for a judge to be fully aware of all the possibilities for impeachment inhering in a prior statement of a government witness. Of course, it may not be difficult to lay the witness' testimony and his prior statement side-by-side to compare them for any obvious inconsistencies. This is apparently what the Court of Appeals did here, in view of its conclusions that there was 'no inconsistency between Konrad's report and his testimony at trial.' But, as we have said before, this hardly exhausts the utility of the statement for purposes of cross-examination: