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05/28/69 James L. Fleming, v. United States of America

May 28, 1969






Bazelon, Chief Judge, Prettyman, Senior Circuit Judge, and McGowan, Circuit Judge.


McGOWAN, Circuit Judge.

In this appeal from a jury conviction of robbery and assault with a dangerous weapon, appellant does not seek reversal of the conviction but only a remand for the purpose of identifying what information the prosecutor gave to defense counsel in informal pretrial discovery, and what he did not give. Appellant urges that this is necessary in order to assure to him, and others similarly situated, the availability of collateral attack under 28 U.S.C. ยง 2255 (1964) on the ground of ineffective assistance of counsel. This direct appeal is, by appellant's own characterization, made the vehicle of a request that we exercise our supervisory powers to prescribe a procedural rule of general application in the District Court. We decline the request; and the conviction appealed from, which is literally not under any direct challenge on this appeal, stands undisturbed. I

This is not to say, however, that appellant has failed to raise a problem which may well merit further examination through appropriate channels. Appellant cites as the source of the difficulty the following colloquy which, just before the trial began, took place at the bench and out of appellant's hearing:

[Defense counsel]: I would like to state for the record, as I have in chambers, that there has been complete pretrial discovery between myself and [the prosecutor] with the exchange of the transcript of the preliminary hearing, etc., and there will be no surprise to the defense as to any evidence the Government might have and vice versa, and this will obviate any question of possible claim by the defendant of failure to have counsel file pretrial motions or to investigate his case adequately. There has been this disclosure.

THE COURT: This applies to the Jencks Act Statements?

[The prosecutor]: For the record, I have not made my files available but I have had an opportunity to discuss this at some length and I believe there has been adequate courtesy disclosure.

THE COURT: Very well.

Appellant points out that, with the exception of the transcript of the preliminary hearing, it is impossible to tell from this exchange exactly what was discovered by defense counsel. *fn1 Even the response with respect to the court's question about Jencks Act statements is highly ambiguous, leaving the reader in the dark as to whether they had been forthcoming or not. Appellant asserts with some reason that all this colloquy accomplished was to place on record an assertion by trial defense counsel that he was personally satisfied with the disclosure made to him and that there can, accordingly, be no question but that he has served his client's interest adequately. Neither that client, nor any lawyer who may subsequently represent him, can tell what the precise scope of that discovery was. It may, of course, have been complete, but it also may have been selective, and appellant asserts in this connection that individual prosecutors vary greatly in their informal discovery dealings with defense lawyers.

Appellant insists that the remedy for this problem should be a requirement, superimposed by this court on the District Court, that the scope of informal discovery should be stated on the record so that the defendant can know the reach of the revelation with which his trial counsel purports to be satisfied. In oral argument before us, counsel for appellant appeared to be preoccupied with the problem of the prosecutor who simply fails to reveal the existence of particular items in his file, as distinct from the one who says he has something but refuses to exhibit it. It is by no means clear to us, however, that the procedure proposed by appellant would solve this problem, which is further complicated, of course, by the fact that the discovery provisions in the present Federal Rules of Criminal Procedure do not provide for anything like complete discovery of the Government's evidence to the defense. And this, in turn, leaves open the possibility that there may be differing interpretations in good faith as to what is comprehended within those Rules and what is not. *fn2

It is also not clear how far appellant's true, or at least major, concern is with the competence of defense counsel in appraising the significance of what is shown to him by the prosecutor, and in utilizing it effectively in the defense of his client. A mere recital on the record of the items discovered will not, of course, reveal the significance, if any, of their contents, nor assure that such significance as they have will be properly exploited. Thus, to the extent that this is a goal of the specific proposal appellant presses upon us, it would not be realized by our affirmative response. II

The District Court, after appellant's brief was filed in this court, adopted on February 12, 1969, a local rule which is relevant to this matter. Rule 87(d) (3), set forth in the margin, *fn3 is patently designed to encourage informal discovery before trial as a means of reducing the number of formal written motions before the court. Since it requires defense counsel to forego a formal motion until he can certify the failure of a bona fide attempt on his part to get what he believes he is entitled to by informal application to the prosecutor the premise of the rule must be that the prosecutor will make an equally bona fide response to that effort. As to matters clearly within the scope of the Federal Rules, this presumably means disclosure except for special cause. It also assumes ...

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