ROSENBERG v. UNITED STATES.
No. 451.
Argued April 28, 1959.
Decided June 22, 1959.
Edward M. Dangel argued the cause for petitioner. With him on the brief was Leo E. Sherry.
Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Rankin, Assistant Attorney General Wilkey and Kirby W. Patterson.
A. L. Wirin and Fred Okrand filed a brief for Arthur L. Harris, Sr. et al., as amici curiae, in support of petitioner.
Mr. Justice Frankfurter
delivered the opinion of the Court.
Petitioner was convicted in the District Court for the Eastern District of Pennsylvania, 146 F. Supp. 555, for transporting in interstate commerce a check obtained by the perpetration of a fraud to which he had been a party. 18 U. S. C. § 2314. That conviction was reversed by the Court of Appeals for the Third Circuit on the ground that Jencks v. United States, 353 U. S. 657, which had been decided after conviction but before appeal, required production for petitioner’s inspection of certain statements in the prosecutor’s possession. 245 F. 2d 870. The second trial thus ordered also resulted in a conviction, 157 F. Supp. 654, which was sustained by the Court of Appeals for the Third Circuit, 257 F. 2d 760. We granted certiorari, 358 U. S. 904, limited to the questions of the application of the Jencks rule to this prosecution, the effect of the statute enacted establishing legislative rules concerning .the production of documents, 18 U. S. C. (Supp. V) § 3600, and the propriety of the ruling of the Court of Appeals that if the trial judge had erred in failing to deliver to petitioner certain documents, the error was harmless and therefore not grounds for reversal.
In the second trial, upon a demand for production for inspection of Federal Bureau of Investigation files, the United States Attorney delivered to the trial judge, and the trial judge in turn gave to petitioner’s counsel, numerous documents from the Government’s files. Many of these would not have been required to be provided under either the .Jencks. decision or the statute enacted subsequent to it. Petitioner complains that the few documents withheld by the trial judge were required to be submitted for his inspection by our opinion in Jencks' and that the failure to give'him that opportunity requires a reversal. We have today held in Palermo v. United States, ante, p. 343, that since its enactment 18 U. S. C. (Supp. V) § 3500 and not the Jencks decision governs the production of statements of government witnesses' for a defendant’s inspection at trial.
In accordance with 18 U. S. C. (Supp. V) § 3500 (c), the material withheld was preserved in the record to permit review of the correctness of the trial judge’s rulings. As did the Court of Appeals, we have reviewed the documents withheld by the trial judge. • Two are reports by FBI investigators which in no sense complied with subsection (e) of the statute. They were neither signed nor otherwise adopted by any witness at the trial, nor were they reproductions as statutorily required .of any statement made by any witness at the trial. A third document did comply with such requirement. It is a typewritten copy of a statement given by Rosenberg’s confessed associate in the crime, Meierdiercks, to the FBI. It is signed -by Meierdiercks and its contents were pertinent to the trial of the case. However, the original handwritten statement, of which this was, as already stated, merely a copy, was itself given to petitioner’s attorney. No relévant purpose could have been served by giving petitioner’s counsel a typewritten copy of a document which he had already been given in its original form, no advantage to the petitioner was denied by withholding it.
The last group of documents in controversy is a series of letters written by the victim Florence Vossler to the FBI. They were signed by her and thus met'the requirement of subsection (e). However, of the six letters-withheld by the trial, judge, five clearly fail to meet the' statutory requirement that only that statement “which relates to the subject matter as to which the witness has testified” need be produced. 18 U. S. C. (Supp. V) § 3500 (b). These five were totally irrelevant to the proceedings. In the sixth of this group of letter^, Florence Vossler wrote to the Assistant United States Attorney, that ■her memory had. dimmed in the three years that had passed since the fraud had been perpetrated and-that to refresh her failing memory she would have to reread the original statement she had given before the first trial to the FBI.
A statement by a witness that she fears her memory as to the events at issue was poor certainly “relates to the subject matter as to which the witness hás testified” and should have been given to defendant. This was recognized as error by the Court of Appeals. 257 F. 2d 760, 763. That court, however, found that- the same ■information which was contained’in• the letter was re; vealed to defendant’s counsel by statements made by Florence Vossler under cross-examination and upon questioning by the trial judge. A review of the record, portions of which are reproduced in an Appendix, precludes us from rejecting the judgment on which the Court of Appeals based its conclusion that the .failure to require production of this letter was empty of consequence. Since the same information that would have been afforded had the document been given to defendant was already in the possession of the defense by way of the witness’ admissions while testifying, it would deny reason to entertain the belief that defendant could have been prejudiced by not having had opportunity to inspect the letter.
An appellate court'should not confidently guess what defendant’s attorney might have found useful for impeachment purposes in withheld documents to which the defense is entitled. However, when the very same information was possessed by defendant’s counsel as would have been available were error not committed, it would offend common sense and the fair administration of justice to order a new trial. There is such a thing as harmless error and this clearly was .such. The judgment of the Court of Appeals for the Third Circuit is therefore
Affirmed.
[For dissenting opinion of Mr. Justice Brennan, joined by The Chief Justice, Mr. Justice Black and Mr. Justice Douglas, see post, p. 373.]
APPENDIX TO OPINION OF THE COURT.
Mr. Singer. “Miss Vossler, it has been quite sometime since you have testified. Have you had an opportunity within the last six months or so to go over any previous testimony or statements which you might have given with reference to this matter? Have you spoken to anyone — ”
Miss Vossler. “You mean'testimony that I gave?” '
Mr. Singer. “That is correct.”
Miss Vossler. “The testimony that I gave in this court?”
The Court. “Yes, in June, 1956.”
Miss Vossler. “Yes. No, I haven’t seen anything.”
The Court. “You haven’t seen — ”
Miss Vossler. “Any testimony.”
The .Court. “ — the transcript of that testimony — ” Miss Vossler. “No, sir.”
The Court, “ — which was in books like this (indicating) ?” •
Miss Vossler. “No, no, Your Honor, nothing.”
The Court. “Well, have you seen any statement which you gave to agents of the Federal Bureau of Investigation?”
Miss Vossler. “Yes, because I had a copy of'the first statement that I gave on January 24. That is the only statemént I had.”
The Court. “Have you got that with you?”'
Miss Vossler. “No, I haven’t, now.”
The Court. “When did you last see it?”'
Miss Vossler. “Well, Mr. Bechtle asked that I leave it with him upstairs.”
The Court. “When was that?”
Miss Vossler. “Monday when I arrived here.”
The Court. “In other words, you looked it over Monday?” ' .
Miss Vossler; “Well, I glanced at it Monday. I didn’t read it line for line.”
The Court. “Well, when did you last read it line for line?”
• Miss Vossler. “Well, last week, because I had it at my home.”
The Court. “Last week you read over the statement — ”
Miss Vossler. “Yes.”
The Court. “ — of January 24, you say, 1955?”
Miss Vossler. “Yes. That is when the FBI agents came • to my home.”
The Court. “I see. Last week. You have that statement, don’t you?”
Mr. Singer. “I have it here.”
Miss Vossler. “That is the only statement that I have seen at all, at any time.”
Record, pp. 330-332.
Further evidence of Florence Vossler’s loss of clear recollection came to defendant’s attorney during the course of the cross-examination.' He asked the witness to identify a Mr. McComb.
Miss Vossler. “Well, let me see if I can remember. Mr. McComb came to my house one time — you see, it is always possible to find the names of people who buy leases or purchase leases — ”
Mr. Singer. “May I interrupt you one moment, please. In all fairness to the witness, Your Honor, I feel that I should introduce this report and permit her to refresh . her recollection.”
The Court. “Yes, thank you. What number is it?”
Mr. Singer. “This is Court’s Exhibit No. 10, which is a summary of various statements given by Miss Vossler to the FBI. And I ask Miss Vossler to read Page 2 so that she may properly answer the questions.”
Record, pp. 345-346.
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