December 4, 1991
TERRY LYNN FRYE, APPELLANT
UNITED STATES, APPELLEE
Appeal from the Superior Court of the District of Columbia; (Hon. Stephen F. Eilperin, Trial Judge).
Before Steadman, Farrell and King, Associate Judges. Opinion for the court by Associate Judge Farrell. Concurring opinion by Associate Judge King.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: The sole issue presented is whether untranscribed testimony which a government witness, a police officer, gave in a related juvenile proceeding involving another defendant is a statement "in the possession of the United States" within the meaning of the Jencks Act, 18 U.S.C. § 3500 (1985). On the strength of our own previous decisions and ample authority from the federal courts, we answer that question "no" and affirm.
A jury found appellant guilty of one count of possessing heroin (D.C. Code § 33-541 (d) (1988)). The facts supporting the conviction are not in issue and need not be detailed here. A juvenile was arrested the same day as appellant and separately charged by the Office of Corporation Counsel, resulting in a juvenile adjudication of delinquency for possessing cocaine with intent to distribute. One of the government witnesses at appellant's trial, Officer Nitz, also testified at the juvenile adjudication. *fn1 Before appellant's trial began, his counsel requested that the government turn over to the defense a transcript of Officer Nitz's testimony in the juvenile proceeding as Jencks material under 18 U.S.C. § 3500 (1985) and Super. Ct. Crim. R. 26.2. A lengthy Discussion followed as to application of the Jencks Act to Nitz's testimony. It was determined that, although a court reporter was present at the juvenile hearing, a transcript of the proceeding had not been prepared. Defense counsel conceded that the untranscribed material, in the form of the court reporter's notes, was "technically within the custody of the Court."
The issue was complicated by the fact that records of juvenile proceedings are confidential court records, to which only limited access is permitted. D.C. Code § 16-2331 (1989). Under this section, the Office of the United States Attorney is granted access to juvenile records to prepare the prosecution of another case arising out of the same transaction or occurrence. D.C. Code § 16-2331 (b)(6). *fn2 The Superior Court may restrict this access by rule or special order. *fn3 "Other persons having a professional interest in . . . the work of the Superior Court" may be granted access only "if authorized by rule or special order of the court." D.C. Code § 16-2331 (b)(7); see also Super. Ct. Juv. A. 55 (b)(2). Appellant made no request for a court order directing preparation of a transcript of Officer Nitz's testimony under these provisions; he simply argued that it was the government's obligation to produce the transcript under the Jencks Act.
The trial Judge rejected this argument, reasoning that under the Jencks Act, the United States is
not required to manufacture statements, to manufacture records, to manufacture transcripts. [The Act] deals with what statements are in existence. At this point . . . it seems to me that the Jencks Act does not require a transcript to be transcribed and produced. So I'm going to deny the request that the United States Attorney produce at this point what is a nonexistent transcript. . . . I think it's plain since the transcript has not been produced that it's not in the possession of the United States.
Appellant contends that this ruling was error and denied him access to material properly discoverable under the Jencks Act.
The Jencks Act provides in pertinent part:
(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.
(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.
(e) The term "statement" . . . 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 contemporaneously with the making of such oral statement; or
(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 (b), (e) (emphases added). *fn4 The Jencks Act is "a limited statutory scheme which serves the concurrent purposes of aiding the search for truth by facilitating the impeachment of a witness who has given a statement to the government, while at the same time regulating access by the defense to materials and evidence within the government's possession." March v. United States, 362 A.2d 691, 698 (D.C. 1976) (citing Palermo v. United States, 360 U.S. 343, 354,79 S.Ct. 1217, 3 L.E.2d 1287 (1959)). Four prerequisites must be satisfied before discovery is allowed under the Act. "The material must be in the possession of the government; the defense must request the material; the material must constitute a 'statement' as defined at 18 U.S.C. § 3500(e); and the statement must relate to the subject matter of the witness' direct testimony." Butler v. United States, 481 A.2d 431, 446 (D.C. 1984), cert. denied, 470 U.S. 1029, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985). Only the first of these requirements, possession by the government, is at issue here. *fn5
As to what constitutes "the government" for purposes of Jencks Act disclosure, it is clear that "the duty of disclosure affects not only the prosecutor, but the Government as a whole, including its investigative agencies." United States v. Bryant, 142 U.S. App. D.C. 132, 140, 439 F.2d 642, 650 (documents in control of then Bureau of Narcotics and Dangerous Drugs in possession of government), aff'd after remand, 145 App. D.C. 259, 448 F.2d 1182 (1971). See also Montgomery v. United States, 384 A.2d 655, 661-62 (D.C. 1978) (duty to preserve Jencks material applies to all investigative agencies of the government); Duncan, supra note 4, 126 U.S. App. D.C. at 375, 379 F.2d at 152 (Jencks Act requirements apply to documents in custody of Metropolitan Police Department). On the other hand, two previous decisions of this court together strongly imply that untranscribed testimony in a juvenile proceeding is not material within the possession of the United States for Jencks Act purposes.
In McClain v. United States, 460 A.2d 562 (D.C. 1983), the appellant claimed that the government should have been required under the Act to provide him with portions of a pretrial hearing relating to his request for an order to compel an eyewitness to talk with defense counsel. In rejecting this contention, we stated, inter alia:
Appellant has cited to no precedent requiring the government, under the Jencks Act, to produce a transcript from stenographic notes of a court proceeding. Such materials, as a matter of public record, are equally available to the defense. The transcript was not requested until the day of trial, . . . and then there was no claim that it was in the government's possession . . .
Id. at 570 (footnote omitted). In Collins v. United States, 491 A.2d 480 (D.C. 1985), cert. denied, 475 U.S. 1124 (1986), we dealt with documents not "a matter of public record" in the related context of the government's duty to disclose exculpatory evidence in its possession under Brady v. Maryland, 373 U.S. 83, 83 S.Ct 1194, 10 L.Ed.2d 215 (1963). The defense claimed error in the prosecutor's failure to disclose records indicating that the juvenile complaining witness had received some type of psychological treatment in the past, citing Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). We rejected this claim partly for the reason that,
as the government points out, to come within Davis v. Alaska, supra, " a fortiori the material to which seek access must in fact exist." The juvenile social file and the [18 U.S.C.] § 5010 (e) study are not public documents in possession of the prosecutor; the former is a confidential court record, D.C. Code § 16-2332 (1981), and the latter is a presentence report prepared for the court subject to limited disclosure, Super. Ct. Crim. R. 32 (b)(3) (a study conducted pursuant to 18 U.S.C. § 5010 (e) (1982) is a "presentence investigation" and subject to limited disclosure to the defendant prior to sentencing).
491 A.2d at 485.
McClain thus implies that untranscribed court testimony, because it remains in the control of the Court Reporter Division of the Superior Court, is not "in the possession of the United States" as the Jencks Act requires. And Collins, though dealing with the related duty of disclosure under Brady, implies that stenographic notes of juvenile proceedings are not Jencks material because they "are not public documents in possession of the prosecutor," but rather a "confidential court record."
This distinction between material possessed by the investigative or prosecutive branches of government and material within the control of the court is firmly established in federal decisions applying the Jencks Act. In United States v. Dansker, 537 F.2d 40 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct 732, 50 L.Ed.2d 748 (1977), the court held that a pre-sentence report and statements contained in it, prepared by the probation department at the direction of the court, are not within possession of the prosecution and hence the government for Jencks Act purposes. "In speaking of statements 'in the possession of the United States,' we understand the statute to require production only of statements possessed by the prosecutorial arm of the federal government." Id. at 61. In a case similarly dealing with pre-sentence reports, the Fifth Circuit reasoned at greater length:
Probation officers, serving by appointment of and under the direction of the district courts, are, in a broad sense, employees of the United States, but the term " United States" in § 3500 has a narrower meaning, as evidenced by § 3500 (a), which states that the Act is applicable "in any criminal prosecution brought by the United States . . ." (emphasis added). With that language we think the term "United States" is shown to mean the prosecutorial division of the government, at least within § 3500 (a); that this interpretation should also apply to § 3500 (b)'s use of the term "United States" is evidenced by the differentiation within § 3500 (b) between "the court," which on motion of the defendant is required to order production of the statement, and the "United States," for whom the witness has testified and to whom the production is directed. In sum, a "statement . . . in the possession of the United States" can only be read to mean a statement in the hands of the federal prosecutor. . . . [The witness'] presentence report remained in the control of his probation officer, and § 3500 does not reach it.
United States v. Trevino, 556 F.2d 1265, 1271 (5th Cir.) (emphasis in original), reh'g denied, 562 F.2d 1258 (5th Cir. 1977).
The same Conclusion has been reached with regard to untranscribed testimony. See United States v. Clark, 928 F.2d 733, 738 (6th Cir.), cert. denied, 112 S. Ct. 144 (1991) ("Agent DeWald's testimony at the detention hearing was not transcribed at the time of trial and, thus, the government was not in possession of the information sought"); United States v. Moeckly, 769 F.2d 453, 464 (8th Cir. 1985) ("In regard to the federal trial in Miami, the testimony had not been transcribed and therefore was not in possession of federal authorities"), cert. denied, 476 U.S. 1104, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986); United States v. Cagnina, 697 F.2d 915, 922 (11th Cir.) ("Anything in control of a district court, such as the court reporter's notes, is not in the possession of the prosecutor and therefore does not fall within the requirements of the Jencks Act"), cert. denied, 464 U.S. 856, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983). *fn6
Appellant acknowledges the weight of this authority but urges that a broader definition of "possession" should apply in the case of documents or testimony to which the parties have unequal access, as is true (he asserts) of juvenile records. The pre-sentence report cases cited above cast doubt on this argument at the outset. Also, appellant has not disputed the government's representation that it sought no access to Officer Nitz's untranscribed testimony in any form in preparing its case. The Jencks Act is not "so elastic as to embrace materials" to which the prosecutor has never sought access. United States v. Hutcher, 622 F.2d 1083, 1088 (2d Cir.), cert. denied, 449 U.S. 875 (1980). Moreover, the unequal access argument is not raised by these facts because appellant never requested an order directing preparation of the transcript, and has not demonstrated that such a request would have been futile. It is true that D.C. Code § 16-2331 (b) does not expressly provide for access to juvenile records by defense counsel in criminal cases; to acquire access these attorneys would have to come within the language "other persons having a professional interest in the . . . work of the Superior Court, if authorized by rule or special order of the court." § 16-2331 (b)(7). It is at least arguable that a defense attorney is sufficiently interested in the "work of the Superior Court," as it pertains to his or her client, to fall within this provision. We need not decide that issue, however, given appellant's failure to request preparation of a transcript.
The judgment of the Superior Court is
KING, Associate Judge, Concurring: I am in complete agreement with the opinion of the court and join it without reservation. I write separately, however, to note one point relevant to the issue raised in this appeal. On October 1, 1987, the Chief Judge of the Superior Court promulgated a memorandum establishing procedures to be followed by attorneys representing defendants in adult criminal cases who are seeking juvenile transcripts related to the adult matter. The memorandum is set forth in full in the margin. *fn1 It requires that a motion seeking the transcript in the juvenile proceeding be filed with the Judge in the criminal case. As noted in the court's opinion, no such request was made in this case.