John W. Young v. United States ( 1969 )

DANAHER, Circuit Judge:

Convicted of assault with a dangerous weapon, this appellant has here asserted only one claim of error which need be noticed. During the trial the defense moved for permission to examine testimony before the grand jury given by one Curry, the victim of the assault. Denying the defense motion, the trial judge remarked “Unless you have some very exceptional reason for asking for it I don’t intend to grant the request.” ¹

On the totality of the evidence adduced through various witnesses and in light of the jury verdict, it is clear enough that the appellant had used a knife to cut Curry. Apparently there had been marital difficulties between the appellant and his wife. Young testified that he had approached Curry to ask that he leave the wife alone only then to be struck by a tire iron wielded by Curry.

When it developed during the trial that Curry was not to appear, the prosecutor stated that if defense counsel “wants to agree that Mr. Curry’s Grand Jury testimony be read into the record or received in evidence I would have no objection. But I think otherwise he is not entitled to see it.” Defense counsel understandably rejected the proffered stipulation ² on the ground that it would be “ridiculous to think that I would stipulate to testimony I haven’t read.”

Thereupon, after colloquy with counsel, the trial judge directed that the transcript of Curry’s grand jury testimony be sealed as a court exhibit for possible use on appeal.³

Had Curry testified we would have had before us a very different situation. Under varying circumstances and in many pre-Dennis instances we have made it clear that grand jury minutes of the testimony of a witness who also testified at trial must at the very least be examined by the trial judge in camera. After examination of such testimony, we had pointed out, the trial judge should reveal to counsel any inconsistency that is not plainly immaterial.⁴ On occasion we ourselves have examined the grand jury minutes.⁵

Although in this case no need for continued secrecy inheres, yet other situations might well present quite different problems.⁶ We thus are unwilling to find error as a matter of law, although we have been pressed to say that the Dennis and Allen holdings should be extended to require the disclosure ⁷ of the grand jury testimony of the non-appearing Curry. No authority has been cited as so holding, and our diligent search has disclosed none.

We think that in the unique circumstances here disclosed the trial judge in the exercise of the broad discretion permitted by Fed.R.Crim.P. 6(e) might very properly have examined the minutes of Curry’s testimony to determine whether or not the trial quest for the truth would have been advanced in light of what Curry had said. Had the trial judge thereupon determined that no relevant inconsistency had appeared and no other basis had developed for utilization of the Curry testimony, that very well could have ended the matter.

Since the judge had ordered sealed and made part of the record the Curry transcript, we have ourselves examined that material.⁸ Singularly unenlightening, the Curry testimony in essence states only that he had been cut by Young while working on his car; he had no knowledge as to why Young had cut him for he had never had an argument with him “or nothing.” He disclaimed any basis for Young’s involving his wife with Curry. He had not been questioned by any of the grand jurors.

Obviously whatever he had told the grand jury was not subject to impeachment for Curry did not testify at trial. In short, our examination disclosed no matter of possible assistance to the defense.⁹ There was no inconsistency between Curry’s version and the substance of the affirmative trial evidence offered through the appellant’s mother-in-law and other witnesses. The appellant himself testified concerning his claim of self-defense so that issue was before the trial jury, and the Curry transcript contained nothing to indicate the existence of yet other “relevant considerations” within the purview of Allen v. United States.¹⁰

In sum, after our examination of the minutes, and our consideration of other claims here advanced, no prejudice appearing,¹¹ we find no error affecting substantial rights, and the conviction is

Affirmed.

1 . Quite probably the trial judge by the “very exceptional reason” reference had in mind the long standing rule that a showing of “particularized need” was required. But the stricture so implied has surely been tempered by Dennis v. United States, 384 U.S. 855, 874-875, 86 S. Ct. 1840, 16 L.Ed.2d 973 (1966). And. see Allen v. United States, 129 U.S.App. D.C. 61, 65-68, 390 F.2d 476, 480-483 (1968), as modified August 23, 1968.

2 . Not having been subject to cross-examination, the testimony of Curry before the grand jury would not otherwise have been admissible under the circumstances appearing here. Cf. Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), and cases cited; Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and cases cited; Holman v. Washington, 364 F.2d 618, 622-624 (5 Cir. 1966); Government of Virgin Islands v. Aquino, 378 F.2d 540, 549-552 (3 Cir. 1967).

3 . No doubt the trial judge had in mind such situations as appeared in cases cited in Corley v. United States, 124 U.S.App. D.C. 351, 353, 365 F.2d 884, 886 (1966).

4 . Id. In light of Dennis v. United States, supra note 1, we have gone even farther in Allen v. United States, supra note 1, where the grand jury witness had testified at the trial. The Second Circuit has held that a defendant should be entitled to see all the grand jury testimony of each witness on subjects about which that witness shall have testified at the defendant’s trial. United States v. Youngblood, 379 F.2d 365, 370 (2 Cir., 1967).

5 . See, e. g., Gordan v. United States, 114 U.S.App.D.C. 191, 313 F.2d 582 (1962).

6 . See, e. g., Dennis v. United States, 384 U.S. at 868 n. 13, 86 S.Ct. 1840.

7 . Compare the discussion in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), explaining the Court’s understa'nding of the purposes and objectives of the Jeneks Act, 18 U.S.C. § 3500. Congress went no farther than to say that, under circumstances carefully circumscribed, defined material is to be produced upon motion of the defense after the witness has testified on direct examination at trial. Reichert v. United States, 123 U.S.App.D.C. 294, 297, 359 F.2d 278, 281 (1966) ; cf. Duncan v. United States, 126 U.S.App.D.C. 371, 379 F.2d 148 (1967).

8 . See Gordan v. United States, supra note 5.

9 . We recognize as did the Court in Dennis that an examining judge will not have the same background as trial counsel in an assessment of what undisclosed material may possibly be of assistance to the defense. Here, however, the matter seems so clear we believe our position comports with whatever might be required in the interest of justice.

10 . Supra note 1, 129 U.S.App.D.C. at 66-67, 390 F.2d at 481-482. The Government stipulated that Young had nothing to do with Curry’s non-appearance.

11 . United States, v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 84 L.Ed. 1129 (1940).