416 U.S. 909 (1974)

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U.S. Supreme Court

ERCKMAN v. U.S , 416 U.S. 909 (1974)

416 U.S. 909

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 [416 U.S. 909 , 911]

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