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 ...