Gary D. HARRIS, Appellant, v. UNITED STATES of America, Appellee.
No. 21511.
United States Court of Appeals, District of Columbia Circuit.
Reargued En Banc June 25,1969.
Decided March 18, 1970.
Mr. Alexander M. Heron, Washington, D. C. (appointed by the court), for appellant.
Mr. Lawrence Lippe, Asst. U. S. Atty., with whom Mr. David G. Bress, U. S. Atty., at the time the brief was filed, was on the brief, for appellee. Messrs. Thomas A. Flannery, U. S. Atty., and Roger E. Zuckerman, Asst. U. S. Atty., also entered appearances for appellee.
Before BAZELON, Chief Judge, BASTIAN, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON and ROBB, Circuit Judges, sitting en banc.
PER CURIAM:
Immediately prior to appellant’s trial for robbery and assault with a dangerous weapon, his attorney moved for leave to inspect the grand jury testimony of the complainant, the sole available witness to the crimes charged. The motion was denied, appellant was convicted of both offenses, and on this appeal he presses the claim that inspection should have been allowed.
Rule 6(e) of the Federal Rules of Criminal Procedure empowers federal district courts to direct disclosure of grand jury testimony “preliminarily to or in connection with a judicial proceeding.” Before both the trial court and the panel of this court hearing the appeal originally, both sides concentrated argument on whether appellant had demonstrated, compliably with existing authorities, a sufficient need for the testimony to warrant its disclosure.® Thus debated was whether the balance between the traditional secrecy of grand jury proceedings and the imperatives of an effective defense tipped in appellant’s favor because of relatively minor inconsistencies between pretrial statements supplied by the complainant and the police, or because the complainant, as the only available observer of the offensive events, was a vital witness.
In cases in two circuits, the courts, exercising their supervisory powers, have adopted a rule which requires disclosure, upon completion of direct examination of each Government witness, of the witness’ grand jury testimony on the subjects about which he testified at the trial, unless a protective order is made in special cases. The Government, citing the Jencks Act as an analogy, advocates the same approach here.
We think this course is sound and we adopt it. Accordingly, we hold that in the future the accused, upon seasonable request, shall be permitted, at the close of direct examination of each witness called by the Government, to inspect the grand jury testimony of the witness which is pertinent to the subjects addressed on direct examination. An exception to this requirement will obtain only where the Government, for good cause, obtains a protective order as to particular testimony. In line with our doctrine on prospectivity, we apply this ruling to the case at bar and to all trials begun subsequent to the date of this opinion.
We note with particular approval the Government’s current practice of making the grand jury testimony of its prospective witnesses available to defense counsel at the commencement of the trial save where it is anticipated that the trial will have unusual length. Strong justifications for this practice are to be found among our recent expressions on claims for disclosure of grand jury testimony. In our Gibson decision, we stated that unless there is substantial doubt that a witness will testify at trial, there is no reason to wait until trial for disclosure. In our AUen decision, we pointed out that postponing disclosure until after a witness testifies necessarily causes delays in the trial. The Government’s practice avoids delay inherent in tendering the testimony only after the witness testifies, and is in the interest of justice. In the event that the Government does not release its witnesses’ grand jury testimony at the beginning of trial, any prosecution witness called in the meanwhile will automatically be subject to recall for further cross-examination by the defense if there is any reasonable basis therefor in the light of the grand jury testimony — of that or any other witness — subsequently made available to the accused.
Our holding herein necessitates a remand of this case to the District Court. A new trial will be required if, on inspection of the complainant’s grand jury testimony, “there is a reasonable possibility that the [testimony] could have been effectively utilized by the defense. * * * ” So ordered.
. D.C.Code § 22-2901 (1967 ed.), since amended (Supp. II 1969).
. D.C.Code § 22-502 (1967 ed.).
. Much sooner, appellant had moved pro se for inspection of the grand jury testimony that led to his indictment. That motion was deferred for preliminary action by the trial judge. Counsel’s motion renewed and refined appellant’s earlier motion.
. There was another victim of the alleged assault, but he was never identified and never came forward to lodge a complaint.
. We do not find reversible error on other grounds appellant urges on appeal.
. The early decisions of the Supreme Court spoke of allowing disclosure in terms of a “particularized need where the secrecy of the proceedings is lifted discretely and limitedly.” United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 2 L.Ed.2d 987, 1077 (1958). See also Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959). However, in Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973 (1966), the Court recognized “the growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice.” Thus Dermis, while recognizing the traditional reasons for grand jury secrecy, see Simmons v. United States, 113 U.S.App.D.C. 369, 370, 308 F.2d 324, 325 (1962), relaxed the stringent standard of “particularized need.”
This court, in Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476 (1968), picked up the threads of the Dennis decision and held that “the threshold requirement to show need should not be stretched to a requirement to show ‘particularized need,’ — a term of art that may serve to obstruct useful discovery.” 129 U.S.App.D.C. at 67, 390 F.2d at 482. We there listed a number of factors which would militate toward disclosure and actually erected a per se rule of sorts that disclosure is mandated for the testimony of a police officer who testifies before the grand jury in relation to a confession. Id. Later, in Gibson v. United States, 131 U.S.App.D.C. 143, 403 F.2d 166 (1968), we reaffirmed our Allen opinion and indicated that when the disclosure sought is of the testimony of the complaining witness, the trial court should be especially solicitous of the defendant’s need for inspection. 131 U.S.App.D.C. at 145-146, 403 F.2d at 168-169.
The precedents were in this stage of ad hoc balancing when this case was argued.
. United States v. Youngblood, 379 F.2d 365 (2d Cir. 1967) ; United States v. Amabile, 395 F.2d 47 (7th Cir. 1968), which, with the concurrence of the Government, explicitly adopted the Youngblood rule.
. “Although the disposition of this appeal does not require it, we think this is an appropriate time to reexamine this circuit’s practice with reference to examination of grand jury minutes.” United States v. Youngblood, supra note 7, 379 F.2d at 368.
. In such a ease, “the court should first examine in camera the material sought to be protected before making its ruling; and if material is withheld from the defendant under such an order it shall be sealed by the court and preserved for consideration on appeal.” United States v. Youngblood, supra note 7, 379 F.2d at 370.
. 71 Stat. 595 (1957), 18 U.S.O. § 3500 (1964), which provides, inter alia, that “[ajfter a witness called by the United States has testified on direct examination, the court shall, on motion of the defedant, order the United States to produce any statement (as [thereinafter] defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.” The Act does not, however, encompass grand jury testimony. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 398, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959).
. The Government’s stand thus comports with its position in United States v. Amabile, supra note 7, 395 F.2d at 53, where it expressed approval of the Youngblood rule for the Seventh Circuit.
. Since, as the Government informs, there often is no occasion to transcribe grand jury testimony except for inspection by the defense, a motion for production should be made in time to assure the availability of the testimony at the trial. The motion should be made either prior to, or shortly after, the date when the case is certified to the ready calendar, a date which, Government counsel informs us, is frequently the time when counsel on both sides focus on close preparation for trial, or a plea, or both. The motion need only request production of relevant grand jury testimony of the Government’s trial witnesses, since the accused may not know who testified before the grand jury, or who will be called by the Government at trial, or what they will testify about.
. The Government may request such an order at any time before the grand jury testimony is delivered to the defense. The procedure then appropriate is set forth in note 9, supra.
. See Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061 (1969).
. Upon authorization by the trial court to do so.
. In protracted trials, disclosures of grand jury testimony are deferred, it seems, until shortly before the witness testifies.
. Gibson v. United States, supra note 6, 131 U.S.App.D.C. at 146, 403 F.2d at 169.
. Allen v. United States, supra note 6, 129 U.S.App.D.C. at 67, 390 F.2d at 482.
. After issuance of a mandate following the panel decision and before the mandate' was vacated by our order granting rehearing en bane, the complainant’s grand jury testimony was made available to defense counsel. This does not render the case moot because there is need to consider the significance of certain discrepancies in the testimony. Whether these should lead to an order granting a new trial is a judgment that should be made, at least in the first instance, by the trial judge and not an appellate court. The trial judge’s application of the standard for determining whether a new trial is appropriate will, however, be affected by the determination whether the grand jury testimony should have been accorded appellant as a matter of right. See Allen v. United States, supra note 6. That determination is accordingly appropriate for this court on this appeal.
. Allen v. United States, supra note 6, 129 U.S.App.D.C. at 67, 390 F.2d at 482.