Warren E. Burger: We will arguments first this morning in Goldberg against the United States 6293. Mr. Smaltz.
Donald Smaltz: Mr. Chief Justice and may it please the Court. Case comes to this Court on the writ of certiorari of Ninth Circuit Court of Appeals. The case involves petitioners conviction for violations of the male fraud statute 18 U.S.C. 1341. The indictment charge that the petitioner Mr. Goldberg and Edwin S. Newman and three other quote defendants had violated the statute in connection with the issue on sub single premium annuity policies to various individual annuities who in term pledged those annuities as collateral for existing or for new loans with various lenders. The annuities were issued from a life insurance company located in Phoenix, Arizona known as Financial Security Life Insurance Company, sometimes referred to in the brief that as FSL. The indictment charge that the defendant and his codefendants made false statements to the lenders who considered making loans or who made loans in the policies. All of the defendants with the exception of petitioner and Newman pleaded guilty to one of more counts prior to petitioner's trial. Petitioner went, his case went to trial by itself and he was found guilty of 14 counts of the indictment and sentenced to two years in prison. On each of the count said the sentence to run concurrently and fine $1,000 per count. Following petitioners conviction, Newman whose case was severed about a week before petitioner's case was scheduled for trial and the indictment against Newman was dismissed and he was permitted to plead guilty to two misdemeanors. The issue on which the writ was granted was whether the Jencks Act contains an attorney's work product exception and whether the government attorneys notes of conversation would keep government witnesses to whom the prosecutors have read back their notes from time to time, whether witness would correct the prosecutors notes from time to time, if not compellable under the terms of the Jencks Act are compellable under the greedy doctrine. Subsequent to this Court's granting of the petition, United States conceded for the first time that certain of the notes contain in a packet of notes which was personalized in the Court of Appeal on August 12, 1974 at the time of argument, oral argument that certain of these notes were in fact not the notes of the prosecutors as has been represented all the way of the line but in fact were the handwritten notes of the witness Newman.
Warren E. Burger: I do not recall Mr. Smaltz request, did that set out in the petition for certiorari.
Donald Smaltz: No sir and I am going to get to that. It was not set out petition for certiorari because it was a fact unknown to petitioner at the time he found his petition and the government did not make the disclosure until shortly before the petitioner filed his opening brief in this case.
William J. Brennan, Jr.: And how much of the so-called Jencks issue here involve those particular notes and they are written by Newman?
Donald Smaltz: in quantity Your Honor, out of 237 pages 40 pages are Newman's handwriting.
William J. Brennan, Jr.: 40 out of 237?
Donald Smaltz: Yes sir.
William J. Brennan, Jr.: And the rest of the 237 are?
Donald Smaltz: Are written in primary in the handwriting of Mr. Lebowitz and --
William J. Brennan, Jr.: Was he the attorney?
Donald Smaltz: He was the attorney for the government, yes sir, he was one of two Court attorneys and the other prosecutors name was Keilp. Primarily most of the notes are in Mr. Lebowitz's handwriting.
William J. Brennan, Jr.: And these are notes of conversations with newsman, are they?
Donald Smaltz: Yes sir, they are, now the government has contended that in its reply in its brief that because the court did not grant the writ as to the notes in Newman’s handwriting that we petitioners foreclose from discussing this matter. However it is petitioners contention that the matter is properly before the court, two reasons. First of all, the Brady argument made in the application for the writ subsumes the issue of evidence to favorable to the defendant and --
William H. Rehnquist: Well, are you assuming Mr. Smaltz that anything impeaching within the language of the Jencks Act necessarily is embraced within Brady? Brady talked about exculpatory evidence as I recall, and they did not say that anything impeaching to a witness for the government was necessarily exculpatory.
Donald Smaltz: Well, I am not saying that all Brady materials are necessary to Jencks materials or all the Jencks materials are necessary to Brady materials but there is an area there were they overlap and if the government fails to produce upon timely demand, materials in its possession which will impeach its key witness if all they were in gender, a violation of Jencks I submit Mr. Justice Rehnquist that they can also in gender a violation of Brady.
William H. Rehnquist: Which your authority from this Court for that proposition?
Donald Smaltz: Well, In Palermo vs. United States and the concurrent opinion of Mr. Justice Brennan, I believe he indicated that the commence of the constitution were closed to the surface of the decision of this Court in Jencks versus United States.
William J. Brennan, Jr.: With that opinion did not have much support for it. How many votes did that got?
Donald Smaltz: I think that Mr. Justice Douglas in Augenblick indicated that the commence of the Sixth Amendment are closed to surface of the Jencks Act. I believe that a number of lower courts one of them being Johnson versus Johnson have indicated that the Jencks Act embodies the constitutional provisions of the Fifth and Sixth Amendment as an issue that we doubt with some rank in our brief. Secondly, second reason why this Court can consider the issue of Newman’s no handwritten notes, is that the document plain error enables the court to consider it and since it was the government's failure to disclose this material both to the trial court and to the Ninth Circuit, petitioner cannot be charged with the responsibility for not knowing of these matters, because he was not furnished the fact that these notes until August of 1975 when solicitor generals office for the first time provided him with --
William H. Rehnquist: And what is your authority from this Court for that proposition that what might be playing error when reviewed by a Court of Appeals as a basis for expanding the grant of the writ in this Court?
Donald Smaltz: Well, Your Honor I thought that the Plain Error Doctrine is a doctrine that is used only in extraordinary circumstances but when some act or some error exists which substantially affects defendant's integrity or probable reputation of judicial proceedings, I believe that is an accepted definition of when the Plain Error Doctrine will apply and that be in the case I submit that the government is further to disclose the true character of the, of what was in its possession rises that to the level of plain error.
Thurgood Marshall: Mr. Smaltz, let me back up a minute, when were this material handed to the Court of Appeals?
Donald Smaltz: Your Honor, it was handed to the Court of Appeals at the time of oral argument.
Thurgood Marshall: Well, were you there?
Donald Smaltz: Yes sir.
Thurgood Marshall: Well, you know it was handed to him.
Donald Smaltz: Yes sir, I was there.
Thurgood Marshall: Well, I thought you said a minute ago, you did not know about this until you brought your petition per se.
Donald Smaltz: No, we did not received copies Your Honor, or inspect the copies of these notes until after the petition for certiorari had been granted and that we received those copies in August of 1975, what had happened was this Mr. Justice Marshall. In the court below, in the trial court and initially in its brief to the Ninth Circuit, the government contended that the notes relating to Newman, their handwritten notes of their conversation with him had in fact been delivered to the trial judge for an in camera inspection, they said so in their appellant brief to the Circuit. We had taken the position that the trial court had never made an inspection, that was one of our complains to the Circuit and (Inaudible) the government admitted its error and they admitted it at the time of oral argument when the prosecutor stood up and requested permission from the court to file the packet of notes and he said these are all the notes that I can now locate. Now, there is a factual dispute about that and I understand that the government has filed an affidavit of the prosecutor Mr. Lebowitz who have vows to this Court and in essence what he told the Circuit was that these are all the notes. We have filed a contrary affidavit which is an exhibit to our reply brief.
Thurgood Marshall: We are not in the position that pairs also evidence, are we?
Donald Smaltz: Well I would think not Your Honor but since the government has asked, has lied to this notes and other materials which were not part --
Thurgood Marshall: The Court of Appeals consider the Jencks Act material?
Donald Smaltz: Well, Your Honor --
Thurgood Marshall: If you know.
Donald Smaltz: The Court of Appeals in its opinion stated that the notes that had been -- the notes of the prosecutors, I will give you with the precise language.
Thurgood Marshall: Were the notes were the work papers?
Donald Smaltz: Pardon me sir.
Thurgood Marshall: Were the work papers, is that what --
Donald Smaltz: Well, they were work papers, that the court said this the Circuit Court. Apart from the question whether such notes were exempt from the Jencks Act as work product, they were not statements of the defendant within the meaning of 3500E, we find no clear prejudicial error, that is found at appendix 120. I have -- the Court indicated in its opinion that they examined the notes if I think you have to assume that but I have some doubt as to where they could make a meaningful examination for a variety of reasons. When the government launched this 237 page packet, the notes are intersperse, there is no pagination to the notes. There is no chronological order to the notes, there was no explanation by the government as to who wrote what at the time it were filed.
William J. Brennan, Jr.: But one of the Circuits that -- you said they were delivered to you in August of 1975?
Donald Smaltz: Yes sir.
William J. Brennan, Jr.: Was there some explanation made why they were delivering them to you in August 1975?
Donald Smaltz: Yes sir.
William J. Brennan, Jr.: And what was the explanation?.
Donald Smaltz: Because Solicitor General said that they were going to order up, they were going to file these notes with this Court and also they were going to file other materials which were not part of record with this Court.
William J. Brennan, Jr.: Well, I do not understand, but you are actually were given a copy of them?
Donald Smaltz: Yes sir, I was.
William J. Brennan, Jr.: Well, is that to suggest that the government conceded in August 75 that you should have had those when you made the demand time of trial?
Donald Smaltz: I would like to view as a concession Your Honor, but I do not think the government so regarded it as it --
William J. Brennan, Jr.: Why would they give you the -- why would they? Everything else was in camera, whatever was handed up was handed up to judges, is that right?
Donald Smaltz: Yes sir.
William J. Brennan, Jr.: And not given to you?
Donald Smaltz: Yes sir.
William J. Brennan, Jr.: Until August 1975?
Donald Smaltz: Yes sir.
William J. Brennan, Jr.: Well, I do not quite understand why they were given to you in August 75.
Potter Stewart: Because they were going to be lodged in this Court and it is a practice that for counsel whenever he lodged as anything with this Court in pending litigations the adversary know about it.
Donald Smaltz: At the time of (voice overlap)
Warren E. Burger: And this was filed with the limitation in camera and examination.
Donald Smaltz: And at the time that the notes were filed in the appellate court, the Ninth Circuit, the government did not provide me a copy.
William J. Brennan, Jr.: Well, my experience with Jencks Act cases I have and then quite a few since I came here, since the Jencks Act was passed since I wrote the Jencks opinion.
Donald Smaltz: Yes sir.
William J. Brennan, Jr.: Those things were always handed up in camera. The parties were not given to them if the government takes position that they are not subject to being handed over on the Jencks Act. So I do not understand how you got them in August 75.
Donald Smaltz: I got them your owner as we were putting our finishing touches on our opening brief, and I will take anything I can get from the government so I did.
Warren E. Burger: So you did not have them when you filed your petition for cert did you?
Donald Smaltz: No I did not Your Honor.
Warren E. Burger: Well, that is the date I think left in some dike (ph).
Donald Smaltz: The petition for certiorari was filed in this case on April 3, 1975. We did not receive the notes until sometime in the second week of August 1975. In our reply brief that was filed on behalf of petitioner at pages 16 and 17, there is a chart which we have prepared and it is printed in the brief which summarizes the various stages of what occurred with regard to these notes and the positions taken by the government. The position is very depending upon the court involved. In fact the Solicitor General and found his response or his opposition to the petition for certiorari never even handed that any of the notes that were lodged with the Ninth Circuit and which were it issue in this case were in fact authored by newsman. So in essence we had two different sets of notes those prepared by prosecutors and those prepared by the witness himself. Now, this case presents an unusual, Jencks Act case in the sense that the petitioner that the Mr. Newman who was the key witness against the petitioner was required by virtue of a contract he entered into with the government to make a full and complete statement. Newman was codefendant in the scheme charged. Immediately prior to trial, he entered into a written deal with the government. The plea agreement appears in the appendix at pages 48 to 50 under the terms of paragraph one of the agreement Newman was to give a complete statement under oath concerning those events which were alleged in the indictment. Under paragraph 3A of that agreement and the government agree the sever Newman. And Newman agreed to testify this for the government said testimony being in conformity with the statement having being given to the United States attorney under oath before trial. Further that in the event, Newman failed to honor the terms of his plea agreement with the government, that the government would use his pretrial statement under oath as well as his testimony at the trial petitioner against Newman in a subsequent trial. The agreement also provided that if petitioner's case went to trial, Newman would plead guilty to a felony but if petitioner pleaded guilty then Newman will be permitted to plead to two misdemeanors and in both instances the government would recommend probation.
Warren E. Burger: On what page of the appendix do we find that?
Donald Smaltz: Your Honor that is at pages 48 to 50 the precise page is 48 and 49, let us turn out Mr. Newman was the 35th and last witness called by the government and its case in chief. He was also the so rebuttal witness. Newman purported to testify in direct examination, practically in his verbose to 91 conversations, he allegedly had with petitioner which in turn linked petitioner to the illegal scheme and allegedly demonstrated petitioner's knowledge in center. Newman’s testimony on direct examination lasted three days and spend 440 pages, he was the key to the government's case, the fact even the solicitor general office acknowledges and he had work with the petitioner and the petitioner has various insurance companies for over a decade, Newman was a lawyer and he was a signatory to all of the correspondence which emanated from Financial Security Life Insurance Company to the lenders and all the two of the count mailings from the insurance company were executed and/or sent by newsman. It was Newman who after consulting a Phoenix attorney provided the formal responses to the lenders which were utilized by FSL and which automatically resided in petitioner's indictment. During the course of the trial, the judge as well as the prosecutor described the correspondence which emanated from Newman as the crux of the government's case. Now under the very same day, that this plea argument agreement is dated between Newman and the government, which is May 11, 1973, Newman participated in a two-and-one-half hour question and answer session with two attorneys for the government Mr. Lebowitz and Keilp. A postal inspector by the name of Dora Marshall (ph), Mr. Newman’s own counsel and a reporter. Newman’s testimony briefly --
Potter Stewart: By a reporter, you mean a court --
Donald Smaltz: Court reporter, yes sir. Newman’s testimony briefly touched on some of the matters alleged in the indictment but it did not cover all of his testimony in direct. The session, this May 11 session with the two prosecutors and the court reporter concluded with the prosecutor's observation as follows, for the record, the time is now 4:30 we have not exhausted all the transactions in which Mr. Newman can testify. We intend to continue this discussion of the record at a later time as well as the Goldberg transactions which will be explored at a further time. On cross-examination by petitioner of newsman --
John Paul Stevens: Before you leave that, you did have a copy of the transcript for the May 11 interview?
Donald Smaltz: Yes sir, I gave --.
John Paul Stevens: So you work unnoticed that there would be further conversation?
Donald Smaltz: Yes sir, Justice Steven I was and that was where our cross-examination commenced when we began it with Mr. Newman. On cross-examination we -- the respondent or the petitioner established that Newman met with just the two prosecutors Mr. Lebowitz and Keilp May 12, June 9, June 10, June 11 and June 16, 1973. At those sessions no reporter was present and neither or either of the two postal inspectors who were assisting the prosecution of this case. In cross-examination with regard to what happened at these sessions, Newman testified that the prosecutors would take notes at which they would read back to him from time to time in which Newman would correct. After establishing these facts, petitioner moved for production of these notes under the authority of the Jencks Act. The court without waiting to hear from the government and without inspecting any of the notes, denied petitioner's request sua sponte on the basis that these notes constituted the prosecuting attorney's work product. Petitioner twice thereafter following two days renewed his motion for production of these notes under the terms of Jencks. The second time in a written memorandum which asserted that the notes if outside the Jencks Act were compellable under the doctrine of Brady versus Maryland.
William J. Brennan, Jr.: Were any of the -- I know what you are taking about now. Did they include these 40 pages you told us about?
Donald Smaltz: I do not know what they included at that time Mr. Justice Brennan.
William J. Brennan, Jr.: You do not know when those 40 pages notes where handwritten by newsman?
Donald Smaltz: No sir.
William J. Brennan, Jr.: Certainly they have not referred to on the original transcript copy which you did have.
Donald Smaltz: No sir, they are not part of the May 11 statement.
William J. Brennan, Jr.: Which must mean they must have been -- sometime later on one of the dates that you given us up to June.
Donald Smaltz: I think that that is a fair inference. I think something that adds to that inference is the fact that when the prosecutor lodged these materials with the Ninth Circuit, they were in response to the fact that petitioner was claiming that he was entitled to the notes of --
William J. Brennan, Jr.: As on those particular date.
Donald Smaltz: Yes sir.
William J. Brennan, Jr.: And they did include these 40 pages, that which was handed up included those 40 pages.
Donald Smaltz: Yes, I assume so, I never saw the notes but according to solicitor general's office, I so understand.
Potter Stewart: Now that you have been interrupted may I ask you some just to clear my own mind. Is the only discussion of this issue, the single paragraph on page 122 of the appendix?
Donald Smaltz: Yes sir.
Potter Stewart: As only the discussion that is in Court of Appeal?
Donald Smaltz: Yes sir, Mr. Justice Stewart.
Potter Stewart: Was it 122? 120, the second full paragraph on the page, on page 120 is the entire discussion of this issue in the Court of Appeals.
Donald Smaltz: That is correct. Now, the District Court Judge on these three occasions the request for the notes was made without reexamining the notes, that each motion with the assertion of the notes were work product and refused even to inspect the notes in camera.
Warren E. Burger: Were do we find in the record, the statement that he did not --
Donald Smaltz: Mr. Chief Justice -- thank you. I believe that Page 94 is where the District Court Judge for the first time annunciates the work product doctrine here.
Warren E. Burger: Who was the District Judge?
Donald Smaltz: Judge Kopal (ph).
Warren E. Burger: Judge Kopal.
Donald Smaltz: Yes sir.
Potter Stewart: Who wrote the opinion of the Court of Appeal?
Donald Smaltz: Judge Kalse (ph)
Potter Stewart: I do not see it in the appendix.
Donald Smaltz: I believe Your Honor. I am sorry I did not hear it.
Speaker: (Inaudible)
Donald Smaltz: I think it is.
Potter Stewart: With an unidentified author.
Donald Smaltz: I believe, I do not believe the author was identified, I have the impression it was written by Judge Kalse (ph) but not from what appears.
Potter Stewart: He was modest about it.
Lewis F. Powell, Jr.: Before you continue it is necessary for what I have seen coming to decision of this case to know whether or not any particular notes were identified by Newman as having them read back to him?
Donald Smaltz: I think it is for the purposes of the Jencks Act, that fact is a key fact.
Lewis F. Powell, Jr.: Are any notes so identified?
Donald Smaltz: No, none of the notes that the prosecutors at solicitor general's office have lodged with the court are so identified.
Lewis F. Powell, Jr.: And how do you think the case should be disposed off?
Donald Smaltz: I believe Mr. Justice Powell that the case are to be reversed.
Lewis F. Powell, Jr.: And remanded in what sort of direction?
Donald Smaltz: For a new trial.
William J. Brennan, Jr.: But what about Campbell?
Donald Smaltz: Well, Campbell, there was Campbell I and Campbell II. It seems to me that the court would have saved a lot of time and after they had reversed and remanded first time around.
William J. Brennan, Jr.: That does not answer my question.
Donald Smaltz: Well, I believe Your Honor that in Campbell that was decided, I recall 1963 the facts that the Jencks Act presented still a relatively new piece of legislation.
William J. Brennan, Jr.: Yes, but question is whether or not these particular notes are the notes that we read back and as you have told us were corrected by him. Questions of that time I think it could under a Campbell disposition be determined with the trial judge and free to reinstate the verdict or not as you may determine whether the note should have turned over.
Donald Smaltz: Well, if I may suggest Mr. Justice Brennan that I think that the court's opinion in Clancy versus United States is more appropriate for this reason. The first place the government has conceded that at least some of the notes were Jencks Acts statements and should have been turned over. They take the position that it had most harmless error, but as the court held in Clancy that once it established that some of the notes are Jencks Act statement and the defendant has been denied, those notes to the actions of the government that is not for appellate courts to speculate. Further, as to the use could have been made further, I submit it is a very difficult decision.
Byron R. White: But the Court of Appeals here did not reach the work for that issue but it did say apparently that none of these papers then handed up to them, constitute statements within the meaning of the Jencks Act.
Donald Smaltz: Yes sir, they did say it.
Byron R. White: I think that that is at least one of the issues here, it is a threshold issue if you are going to deal with the case the way the Court of Appeals did, does that mean we must look at these papers and decide whether there are statements?
Donald Smaltz: The government has conceded that some of them are statements.
Byron R. White: Well, I do not know, have they really conceded that?
Donald Smaltz: Yes, they have Your Honor, I believe in their brief, we pointed out on our reply brief that --
Byron R. White: Well, I know but do you think that determines some government concession determines a construction of the Jencks Act?
Donald Smaltz: Well, no but I believe that the facts appear in the record of the court below.
Byron R. White: Well, you mean that what you are suggesting is that we do have to decide whether each one of these pieces of paper is a statement or not?
Donald Smaltz: I do know that you have to decide it and I know if this case --
William J. Brennan, Jr.: Certainly as to those that we do not know as I understand the record present. That in fact Newman had corrected them, had read them back and adopted them.
Donald Smaltz: He sort of testified.
William J. Brennan, Jr.: I know but as I understand it which, as to which he testified we do not know of the many papers that have been filed here.
Donald Smaltz: We do not.
William J. Brennan, Jr.: Well, that set up a factual issue to whether or not those particular documents are not statements within the meaning of the Jencks Act in the sense of have they been adopted by the government's witness? And if that so why does not that require a Campbell hearing? Well, we cannot do it up here obviously.
Donald Smaltz: The petitioner Mr. Justice Brennan did not ask this Court to sit as an easy, if it please this Court, it was the government. We start with the proposition that we made an appropriate record below and that the government toward the petitioner's effort to have an evidentiary hearing at the time.
William J. Brennan, Jr.: What did the Court of Appeals mean when it said, it is a cryptic sentence that simply says there are not statements. What is that based on?
Donald Smaltz: I do not know that Your Honor and I cannot --
Byron R. White: Well, did you argue in the Court of appeals that there was no work product exemption and that these were statements with the meaning of the Jencks Act?
Donald Smaltz: Yes we did.
Byron R. White: And I suppose that government said they want statements with the meaning of the Jencks Act, did not they argue that?
Donald Smaltz: The government started -- yes they did Mr. Justice.
Byron R. White: Well then the Court of appeals had the issue before them, about whether they were statements or not and they said they were not.
Donald Smaltz: That is true, they said they were not, but I have difficulty understanding how the Court of Appeals could work their way through those notes.
Byron R. White: In fact you think they were quite wrong.
Donald Smaltz: The addition to be in wrong as a matter of right, I think this is a faction matter, it was impossible for anybody to work their way through those notes when there was no explanation at all. At least the solicitor general on his brief here purports to give some explanation, sir.
Byron R. White: Well, it would help if they had written it out, right to be with you.
Warren E. Burger: The count that you have know, what have been submitted in Court of Appeals which was there.
Donald Smaltz: It would help very much.
William J. Brennan, Jr.: And would have certainly also have helped to the Court of Appeals on whether or not anything was a statement, whether or not was something led back to the witness which he had adopted after correction and you could have known that as I understand you.
Donald Smaltz: We cannot identify which notes the witness is referring to in his cross-examination.
Lewis F. Powell, Jr.: Mr. Smaltz what the Court of Appeals mean by statements of the defendant, this weren't statements of the defendant, were they?
Donald Smaltz: We never contended they were statements of the defendant Your Honor and neither did the government that may have been an error. Yes sir, Mr. Justice Powell.
Lewis F. Powell, Jr.: Your case, but I am having difficulty knowing exactly what the issue is on page 55 to 57 of the SG's brief. He quotes testimony which I take it to be Newman’s testimony, page 55, and it says that this is virtually all that actually Newman says concerning his adoption or approval of the notes. Now if in fact that is virtually all, what evidence do you have that Newman indeed did adopt or approve any of this notes.
Donald Smaltz: On first place, may I respond the question this way Mr. Justice Powell, we have set forth there are some additional facts in our brief, our opening brief --
Lewis F. Powell, Jr.: Testimony of Newman?
Donald Smaltz: Yes sir, Mr. Justice Powell.
Lewis F. Powell, Jr.: More specific that this.
Donald Smaltz: At least to some extent more specific. The problem was that we wanted to have the trial Judge make an in camera inspection as this Court has required since Palermo versus United States, and at that point in time we would then ask him to take extrinsic evidence to try and prove our contention that the statements were adopted or proved by the witness. The trial judge absolutely refused to conduct an in camera proceeding or even look at the notes. So we were close down at the threshold. The government stood silent on two occasions while the trial judge stated that the work product privilege applied on the third occasion, the government claimed work product privilege when the case got up to the Ninth Circuit, the government abandoned the work product privilege and for the first time contended that they were not statements within the meaning of the act.
Lewis F. Powell, Jr.: When was this testimony given by Newman?
Donald Smaltz: When was this testimony?
Lewis F. Powell, Jr.: The testimony in which he indicated he really did not know on 55, 57 of the SG's brief.
Donald Smaltz: When he says that on the first time he really was not sure whether that was part of the pattern, that was given Your Honor on -- the testimony was given at the start of his cross-examination. I do not --
Lewis F. Powell, Jr.: Is that during the Trial itself?
Donald Smaltz: Yes sir.
Lewis F. Powell, Jr.: And there is no further -- well that his reference in one of your briefs to some additional testimony.
Donald Smaltz: Yes sir there is.
Lewis F. Powell, Jr.: But not quite as specific as this (Inaudible).
Donald Smaltz: I think we set forth each and every instance of what he said.
John Paul Stevens: And you are saying you did not have an adequate opportunity to develop that particular aspect of the case.
Donald Smaltz: That is correct.
Lewis F. Powell, Jr.: Why is that so at that time, what could not that have been pursued beyond that point?
Donald Smaltz: Well, they could not be pursued because the government -- the trial judge shut us down, he said, I in essence until you find the case it says work -- that attorney's notes are not work product, I am not going to do anything. Each time we said, well would you please look at the notes, he said no, not until you find this case, until you find a case. So he would not conduct any sort of in camera proceedings at all, thank you.
Warren E. Burger: You reserve five minutes for rebuttal, we will allow you that five minutes later and we will adjust times accordingly so you can count on five minutes for rebuttal.
Donald Smaltz: Thank you Mr. Chief Justice.
Warren E. Burger: If you need it. Mr. Friedman.
Paul L. Friedman: Mr. Chief Justice may it please the Court. I like to take a minute or two with the outset to try to explain the notes handwritten by Newman. Some of what I say about them is not in the record and I want to make that clear but I think it is important to understand what we at least have been informed about these notes because it might clear some things up.
Thurgood Marshall: Well, would you tell us what is in the record and what is not as you go along?
Paul L. Friedman: Yes I will Mr. Justice Marshall.
Thurgood Marshall: Thank you.
Paul L. Friedman: Now, it is true that there were three request for Jencks material when Newman was testifying in the government's case in chief. In each case the request was for prosecutors notes and in each case well at least in the third case, this is in the record, in the written motion filed by Mr. Smaltz, he specifically said we are talking about notes that were generated prior to the time that Mr. Newman took the stand in the government's case in chief. There was no Jencks request when Newman took the stand as a rebuttal witness. In the appendix on page 110, Mr. Smaltz begins to lay the foundation and inquires have you met with the prosecutors again since you completed your testimony in the government's case of chief and the answer was yes, he spent all day on July 4, with the prosecutors and he has been in there offices on the average of five hours a day since the July 4, and this all took place as I recall on July 9, this testimony. The question was never asked what happened there, did the prosecutors take notes, did you write notes, there was no request for Jencks material. Now we think that in -- and let me say this which is not in the record. We have been informed that all of the notes handwritten by Newman were generated after he left the stand in the government's case in chief that the conclusion of the trial again -- this is not in the record, the prosecutor scooped up all the notes that related to Newman and Newman’s testimony and things that Newman had told them and put them in one pile both the prosecutor's notes and the notes handwritten by newsman. He did the same thing in relation to other witnesses, he put them in his files. In writing his brief in the Court of Appeals, he made a mistake, some notes relating to another witness not involved in the issue here had been turned over for in camera inspection, his recollection was they had also turned these notes over for in camera inspection. That is what he said in his brief in the Court of Appeals. The time of oral arguments in the Court of Appeals, as I understand Mr. Smaltz had filed the brief that the court had some question about whether it would accept because it was too long for a reply brief and some sort of an arrangement was struck where by he would waive oral arguments if the court would let him file his brief, the government was then asked would it waive oral argument too, not wanting to interfere with the court's plan to save some time, the government said sure. As a result it did not have the opportunity to explain all that was in this packet of notes that was then being lodged with the court. It did explain that it made a mistake in its brief and now it would like to lodge these notes.
William H. Rehnquist: It was not orally argued before the Ninth Circuit.
Paul L. Friedman: It was not orally argued before the Ninth Circuit as I understand. The notes were turned over, the Court of Appeals --
Speaker: (Inaudible)
Paul L. Friedman: Were filed with the Court of Appeals, yes not turned over to Mr. Smaltz.
Thurgood Marshall: For volunteering part of the government?
Paul L. Friedman: I not sure. I am informed that it was voluntarily on the part of the government, the court since the issue before was whether prosecutor's notes or statements and/or work product probably when it reviewed the notes operated under the assumption that these were all written by the prosecutors although there were number of different handwritings involved, there were a number of different prosecutors involved. They concluded on the phase of the notes that they want statements. Now, we operated on the assumption that these were all prosecutor's notes at the time --
Speaker: They were not statements of the witness.
Paul L. Friedman: They were not statements of the witness newsman. Now the court said statements of the defendant and we think that that is just a mistake because that is --
Speaker: That is only a mistake.
Paul L. Friedman: Right, if it was statements of the defendant, they would have been turned over under rule 16. We found out that some of these notes were handwritten by Newman after we have filed our opposition to the cert petition and after the court granted cert because frankly that is the time we begin to look at the case very closely for the first time. We felt obligated to explain the difference in the notes and to make some argument regarding the Newman notes and because of all the confusion and because Mr. Smaltz had not seen these notes, we gave him a copy of the whole packet of notes. But that is where --
Speaker: (Inaudible)
Paul L. Friedman: Why?
William J. Brennan, Jr.: Did you give it to him because you thought they were Jencks materials to which he was entitled?
Paul L. Friedman: No.
William J. Brennan, Jr.: Well then Why, I don’t follow it.
Paul L. Friedman: We were too generous perhaps.
William J. Brennan, Jr.: Ordinary, the US attorney if he thinks that are not statements producible under Jencks Act. Only lodges that my Brother Stewart says with the Judge, for in camera inspection, does he not?
Paul L. Friedman: That is right.
William J. Brennan, Jr.: And if he turns them over to defense counsel, he turns them over because US attorney agrees they are producible Jencks statements is not that it?
Paul L. Friedman: In turning them over we did not intend to indicate to anybody that they were Jencks material.
Byron R. White: Because the case is now here, so it is --
Paul L. Friedman: That is right.
Potter Stewart: With the trial court.
Paul L. Friedman: That is right, we are not talking about the trial court, we are not talking about the Court of Appeals we are talking about here where we want to make arguments concerning work products, concerning what are statements and concerning as a large portion of our brief discusses the kinds of things that prosecutors generally write, the kinds of notes that they create in preparing for trial as opposed to agent's notes and in order to argue that and to permit Mr. Smaltz to aruge that, and again, may be we are too generous, we gave him the note so he could respond, it does no concession, excuse me.
Thurgood Marshall: Why don’t you give them to in Court of Appeals?
Paul L. Friedman: Why? At the time the Court of Appeals again we are arguing that on the phase of the notes you can tell that they are not statements, the prosecutors did not give it to him although again, I am under the impression that Mr. Smaltz was at least given the opportunity to glance through this packet of notes at that time not a chance to see them have them study them, but to glance through them and see the general nature of them.
Thurgood Marshall: Well, that is just your words against his.
Paul L. Friedman: Well, I am not sure he disagrees with that statement.
Thurgood Marshall: Well, it is not in the record any --
Paul L. Friedman: No, again it is not in the record, as to the Newman notes.
Potter Stewart: May I just ask you this, when this case was in the Court of Appeals you did not know or it was not -- there was not an awareness of the person that arguing on behalf of the government that 40 pages of the stuff was in Newman’s handwriting, is that correct?
Paul L. Friedman: Well, since he was the prosecutor of the trial case, he knew it but he did not register in his mind and he did make a note, he just pulled that the packet of notes said Newman on the cover and lodged them with the Court of Appeals.
Potter Stewart: And the presumption or the assumption or the hypothesis and the premise of the Court of Appeals was that all his handwriting was handwriting of various prosecutor's government.
Paul L. Friedman: I think we have to assume that is what they assumed, right.
Thurgood Marshall: If the judge examined in camera, would he had find that out that some of these were in Newman’s handwriting?
Paul L. Friedman: Well, it depends, well if the judge --
Thurgood Marshall: Just on the point of the Judge if you look at it, that is the only thing I have talked.
Paul L. Friedman: If they have been turned over at the time the request was made, as I understand the Newman notes did not exist, so they would not have been turned over and since there was no renew Jencks request when Newman testified as a rebuttal witness, there was nothing that made the prosecutors think that they have not turned these over, there was no demand forth, they want to think about it, they were on the midst of seven week trial. So there are number of things that can be done with the Newman notes.
John Paul Stevens: Mr. Friedman just before you leave this point about whether you are too generous to the defendant, do I correctly understand that the government gave the Court of Appeals the impression that there were entirely prosecutor's notes.
Paul L. Friedman: I think that is right.
John Paul Stevens: Or you would not really say you are too generous in correcting that impression when there are 40 pages of Newman’s handwriting, would you?
Paul L. Friedman: I do not think that we are sometimes correcting the impression.
John Paul Stevens: Would not that obligation mean to make that known at appropriate time?
Paul L. Friedman: I think it was our obligation to make that known as soon as being aware of it, whether it was also our obligation to give Mr. Smaltz a copy of the packet of the notes at that time is the only plan which I am saying perhaps we were too generous. But certainly we had an obligation to let this Court --
John Paul Stevens: Do you concede that the packet of notes contain statements within the (Voice Overlap)
Paul L. Friedman: We conceded this, we concede that the notes handwritten by Newman, 40 pages of notes, in that 40 pages is a seven page narrative which Newman wrote out sitting in the prosecutor's office explaining relationships between Goldberg --
John Paul Stevens: Do you concede that that is a statement?
Paul L. Friedman: We concede that it is a statement.
John Paul Stevens: Within the meaning of the statute?
Paul L. Friedman: Within the meaning of the statute.
John Paul Stevens: And it was not turned over to the trial judge for his consideration.
Paul L. Friedman: Because there was no demand for it. So statements --
Potter Stewart: That depends upon when it was made and the question once made is not one that is resolved by the record.
Paul L. Friedman: That is right.
Potter Stewart: That is fair to say it.
Paul L. Friedman: That is fair to say.
William J. Brennan, Jr.: (Inaudible)
Paul L. Friedman: What we have said in our brief is that perhaps the appropriate procedure is for a Campbell hearing as to those notes and if the court were inclined --
Byron R. White: (Inaudible)
Paul L. Friedman: We think we know but it is not in the record.
Byron R. White: Well you think you know but is the record clear enough that it was made before the testimony, maybe the direct testimony?
Paul L. Friedman: No, the seven page narrative it and indeed all of the 40 pages of notes handwritten by Newman, we are under the impression we have been told were written after Newman’s direct testimony in the government's case in chief.
Potter Stewart: And before his testimony on Rebuttal ?
Paul L. Friedman: Yes.
Potter Stewart: That is your understanding.
Paul L. Friedman: That is our understanding and if you look at the statement it be, there is a great support for that.
William J. Brennan, Jr.: Well, that may be to obviously we are not the tribunal to resolve issues like that.
John Paul Stevens: You are understanding the time sequence is not supported by the record itself, is this part of your off direct --
Paul L. Friedman: It is not supported by the record.
John Paul Stevens: But if we can screw that is what is been lodged with this Court as part of the record, we must accept the fact that the record does contains statements by the witness that were not disclosed to the defense.
Paul L. Friedman: It contains statements by the witness that were not disclosed to the defense.
John Paul Stevens: That is in the record if we decreed what you have lodged with this Court as part of the record.
Paul L. Friedman: Yes, now on the other hand when you look at the statements, particular at seven page narrative which is the only thing we can see is the statement within the meaning of Jencks. It relates to testimony given by a witness named Paridin (ph) who testified as a defense witness after Newman testified in the government's case in chief and when Newman took the stand as a rebuttal witness, he began to testify concerning relationships with Paridin (ph) and he was cut off by an objection from Mr. Smaltz sustained by the court at least until the prosecutor could show the court in a transcript because it was daily copy, what part of Paridin's (ph) testimony was to rebut. A page-and-a-half of that seven page statement relates to the testimony before Newman was cut off. In fact this testimony is almost verbatim from that seven page statement. So it is the inference we think, is clear that it was not created until afternoon and left the standing and after Paridin (ph) has testified and in any of that only page-and-a-half of 239 pages of notes relates in any way to testimonying a trial and it is completely consistent and almost verbatimly consistent with what he said a trial so --
Thurgood Marshall: That type of argument, it should be made to the trial court instead of here.
Paul L. Friedman: It is a type of argument that should be made to the trial court but --
Speaker: (Inaudible)
Paul L. Friedman: That is right.
Speaker: (Inaudible)
Paul L. Friedman: That is right and additionally but again this is something that we have to argue on the basic things outside the record, there was no renewed demand for the Jencks, for Jencks material at the time when --
Byron R. White: But it should have been told or if it have been told what you are telling that the court now or of if any court had that should have reached the same decision that the Court of Appeals did and these are not principle --
William J. Brennan, Jr.: If the facts are you tell them, while you tell us, we do not know that they are.
Paul L. Friedman: We do not.
William J. Brennan, Jr.: That is why, I cannot understand why this case does not automatically call for Campbell here.
Paul L. Friedman: It leads us to the Newman notes.
William J. Brennan, Jr.: Of course, it does, well not to say the whole words.
Paul L. Friedman: Not necessary the prosecutor's notes, now again may be the prosecutor should never have turned the Newman notes over to the Court of Appeals.
William H. Rehnquist: Because they were not in the record either.
Paul L. Friedman: Because they were not in the record, he knew they did not exist at the time the Jencks request was made, the Jencks request was only for prosecutor's notes, it was only for prosecutor's notes that existed at the time that Newman testified in the government's case in chief. There was no renewed Jencks request at all when Newman takes the stand and rebuttal and certainly none for the notes handwritten by newsman, so it should not have been before the Court of Appeals.
John Paul Stevens: Is there not a Brady issue in the case at that point?
Paul L. Friedman: No, I do not think so Your Honor unless there is something in the notes that is truly exculpatory in the Brady sense unless there are facts.
John Paul Stevens: Had not the defendant contended there was a Brady issue in the case?
Paul L. Friedman: He contended that there was a Brad.-
John Paul Stevens: And of course he would not know the merits of that contention without knowing whether or not there was anything exculpatory in the notes.
Paul L. Friedman: Prosecutor examined that everything that he had and in response to the court --
John Paul Stevens: The prosecutor's examination may not had been as careful as it sometime should be.
Paul L. Friedman: I don't think this Court has --
John Paul Stevens: Because apparently the prosecutor was under the impression that there were 40 pages of his notes that just were not there. It is a rather unusual situation, did he not give the Court of Appeals the impression that everything was his own notes?
Paul L. Friedman: Yes.
John Paul Stevens: And he must have know, that better, must not he?
Paul L. Friedman: At that time, again it is not on the record, we do not know whether he went through this packet of notes before his oral argument in the Court of Appeals or just suddenly realized that they never --
John Paul Stevens: What sort of a duty does the government lawyer had in preparing for an argument in the Court of Appeal, should not he at least look at the file?
Paul L. Friedman: Well, he was under the impression until he walked into the courtroom that it was already in the record.
William H. Rehnquist: Oh I thought this was not orally argued?
Paul L. Friedman: It was not, but he prepared for all argument I gather because -- anyway.
Thurgood Marshall: Can a judge lie on what US Attorney recommends, if US Attorney says I have looked at this and did not do the and not looked at, is that what you are -- are you saying that he presented something to court that he had not first examined himself?
Paul L. Friedman: It is not in the record, what exactly the process he went through before he lodged this with the court.
Thurgood Marshall: Did not you say a minute ago that he had just barely looked through it?
Paul L. Friedman: I said I do not know that. I do not know whether he did or did not.
Thurgood Marshall: Well, do I not assume that he did look at or is that the way you run US Attorney’s office?
Warren E. Burger: Mr. Friedman, I assume if this case goes back on a Campbell remand someone has got to go through mechanical process of turning these pages over one at a time, identifying the handwriting of one person as distinguished from another, that is the lawyers, the notes of the lawyers for the government as distinguished from things written in a handwriting of Newman is that no so?
Paul L. Friedman: I think that is true, yes.
Warren E. Burger: That means of hearing in the District Court would be required.
Paul L. Friedman: I think that on the Campbell, excuse me and the notes handwritten by Mr. Newman with the record in this stage, unless this Court is willing to undertake the process of determining that there was no air or harmless air that there should be a Campbell hearing with regard to the Newman notes. The thrust of our argument deals with the notes written by the prosecutor and as we understand that that is the issue that the court was interested in when certiorari was granted. We do not think there has to be that kind of a hearing with regard to those notes and the reason we say that is that by their nature and in this, in the context of this case, lawyers notes taken in preparation for trial are not going to be 99 times out of a 100, Jencks Act statements. He does not write along narrative continuous account of things, we would never be able to use the notes and examining a witness in court. We think that it would be useless to say that the Palermo and Campbell procedure of an in camera inspection and the taking of extrinsic evidence that applies when agents make reports, should always apply to prosecutors, right.
William J. Brennan, Jr.: Not a curiosity, I think this is the first Jencks Act case we had now in 10-15 years, is it not?
Paul L. Friedman: Yes, we had a --
William J. Brennan, Jr.: I had the general impression that the practice had grown up with the perhaps the help of the justice department. US Attorneys are almost automatically turning over to defense counsel, the trials of everything they have in the way of no matter who took notes of conversations with government witnesses right after the government witness had completed his direct examination. Am I right in that impression?
Paul L. Friedman: I think the impression that you have is wrong. In my own experience --
William J. Brennan, Jr.: And why don’t we have more cases here, I am wondering?
Paul L. Friedman: Because I do not think that most people believe the prosecutor's notes contains Jencks Act statements. In my own experience as an Assistance US Attorney, they will have a request, really request for prosecutors notes, prosecutors take notes in -- and everybody has its own way of taking notes obviously but you write down the general subject matter you want --
William J. Brennan, Jr.: What are the statements of government witnesses then that are automatically turned over as a matter of course?
Paul L. Friedman: What seems to me to be automatically turned over. A reports of investigative agents, FBI, secret service, postal inspectors that kind of thing or the kind of thing that we had here were the prosecutors took a statement from question and answer statement under note, under oath which is clearly.
William J. Brennan, Jr.: Because certainly there maybe statements taken by prosecutors which would still be Jencks Act statements.
Paul L. Friedman: Yes, now our position as I think we made --
William J. Brennan, Jr.: But those things are not they automatically turned over?
Paul L. Friedman: Yes, our position is not that, and that is why we do not say there is a broad attorney's work product exception just because something has taken them by a prosecutor instead of an agent, it is not exempt from the Jencks Act. But the nature of the kind of thing that is taken by a prosecutor will normally not be a statement within the meaning of Jencks Act. This 89 page statement under oath taken by the prosecutors clearly a Jencks Act statement, but his cryptic notations preparing himself to examine witnesses, 99 times of a 100 will not contain the kind of statements the Jencks was talking.
William J. Brennan, Jr.: Has this kind of issue come up before?
Paul L. Friedman: It has come up in some of the circuits and the circuits have considered the work product question and said there is no -- generally they have said there is no broad work product, exception but a number of them have said, we have looked more closely with the prosecutor's notes. There are certain problems that develop when their prosecutor's notes that we are talking about that do not develop when there are investigative agent's notes and that is what we are trying to say here.
Byron R. White: I take it to the -- you think that when the facts are developed or if they are developed that will show that you did turn over everything that you had that were statements, by the time the witness got off the stand on his direct examination.
Paul L. Friedman: Everything that was a Jencks Act statement, yes.
Byron R. White: Well , let us say none of these papers involved, you think we have done an existence
Paul L. Friedman: The notes taken by the prosecutors, some of them were in existence certainly.
Byron R. White: But not the narrative.
Paul L. Friedman: Not the narrative.
William H. Rehnquist: Mr. Friedman, would we have to enlarge the question upon which we granted certiorari in order to reach the Newman notes?
Paul L. Friedman: Well, it maybe subsumed within the Brady question but there is nothing exculpatory and then he has had the notes for five months now and has pointed out nothing as exculpatory. I think the answer is no. It is not included within the question on which certiorari was granted. But as we try to point out in our brief it is not Mr. Smaltz's fault that he did not raise the additional question, we do want to where the court would have granted cert on the additional question of the witnesses on handwritten notes because that is clear. If they fall in the definition of a statement and were written by the witness, they should be turned over on proper demand.
William H. Rehnquist: Customarily we administer certiorari not to do justice in individual cases but to try to get the force issues that we think are of significant importance to the law in general.
Paul L. Friedman: That is right.
Potter Stewart: Quite often that appears after grant of certiorari that something has happened that leads us for example to dismiss the writ as improvidently granted, we do that at least several times during the courts of a term because of after developing events and after developing events in this case if it might lead us to do something else beside dismissing the writ, do as you suggest for example with respect to the handwritten statement of Newman.
Paul L. Friedman: As to the prosecutor's notes however, we think they are not statements. An examination which the Court of Appeals might show that they are not statements that the real kind of tough issue in the case, I think it is not the question of what a statement is, but what is adopted or approved, what does that mean and they must be in order to be producible under Jencks. Both statement of the witness and adopted or approved by the witness. These were not adopted or approved because we think adopted or approved means that the precise words written in the notes have to adopted or approved or else it is not fair to try to impeach someone with words that are on his own and I think the legislative history supports us, I think that E2 was intended to broader that E1 not just the opposite and the court said that in Palermo and even Mr. Smaltz's --
Thurgood Marshall: Excuse me.
Paul L. Friedman: Yes Mr. Justice Marshall?
Thurgood Marshall: I want to go back a minute, do not you agree that in this case with the testimony before the judge, he should have at least looked at those?
Paul L. Friedman: No I do not.
Thurgood Marshall: Why?
Paul L. Friedman: Because there were prosecutors' notes, there was a representation by an attorney and officer of the court, but they were not substantially verbatim, not written by the witness and not continuous narrative kinds of statement included within the Jencks Act and there is no evidence that they were adopted or approved within the meaning of the Jencks Act.
Thurgood Marshall: I see.
Paul L. Friedman: They were the general content of the notes, the general facts were checked with the witness but not the words of the notes, and in fact Mr. Smaltz is interestingly not relies on a characterization that the Assistance US Attorney made in his brief in the Court of Appeals that entries in the notes were only made after a lengthy conversation and a mutual understanding of the facts was reached. He says that indicates adopted or approved, we think that indicates just the opposite. They sat there for a long time --
William J. Brennan, Jr.: Could you tell that some had been corrected --
Paul L. Friedman: Well, I think that if you look at that exert of --
Warren E. Burger: What page are you referring to?
Paul L. Friedman: Page 92 of the appendix. The question that Mr. Smaltz said, was were they, the notes occasionally read back to you to see whether or not they correctly understood what you were saying and the answer was probably from time to time. Alright sir, did you either correct them or say yes that is right or no that is not right because it went this way I believe or words to that effect and he said yes that would happen. Again this may be subject to interpretation but I think the reasonable interpretation that he was not correcting the words taken down by the prosecutors in the sense of adopting those words that is on but he was saying yes that is right, certain facts happened that way or no it is not right, those facts did not occur.
William J. Brennan, Jr.: Now, have we any way of identifying from the record precisely what notes were the subject of that particular colloquy?
Paul L. Friedman: No, the only thing that we know that they had to do with some of the notes taken on June 9 or 10, but of course he met with the prosecutors, May 13 June 9, 10, 16, 17, 18 ,19, 20, 21, 22, 23, 24, 25, 26, before he ever took the stand in direct and then he met with them number of times before his rebuttal testimony. So we are talking about one part of possibly two days meetings with the prosecutors in which there was a general verification of the facts the way I read and not an actual adoption or approval of the words.
William J. Brennan, Jr.: Does the department have any particular procedure by which to signify approval or adoption, whether the interrogation is by an investigator official or by a prosecutor?
Paul L. Friedman: I do not believe so, I think that we, the general policy is that adoption or approval means some sort of a formal acceptance of the words comparable to initialing or signature but not necessarily initialing or signature and perhaps something more specific on auto exist.
Thurgood Marshall: There is nothing in this initial on anything in here.
Paul L. Friedman: Pardon me?
Thurgood Marshall: In these work products there is no initial on anything like the one that is before us.
Paul L. Friedman: No signing, no indication that he ever looked at the prosecutor's notes and no reason why he would look at the prosecutor's notes. There is nothing to indicate that any of these pages other than those that have now been identified were adopted or approved by him in any way. In fact Mr. Smaltz in his reply brief keeps referring when he list the categories of things to information of the notes but he never calls them statements, he list six pages on which there are direct quotations and there is a single thing in quotation marks on each page, but even there we cannot be entirely sure that they are Newman’s words, that might be a paraphrase that relate to conversations he and other people had. But Mr. Smaltz have got this information, he does not call them statements.
Harry A. Blackmun: Mr. Newman was a lawyer, was he not?
Paul L. Friedman: Mr. Newman was a lawyer who had not practice law in some years but he was a lawyer and he was intimately familiar with the operation of this insurance company and the prosecutors having about three weeks to prepare needed his education on things. Let me just say one thing about the Brady question, there seem to be two Brady questions that he is raising, one is that non Jencks tight material may never the less be Brady because it would be helpful on cross-examination and we think the answer to that is that unless it contains exculpatory facts materials substance of kinds of evidence, it is not Brady and he still has not shown.
Potter Stewart: What else you conceded that something may not be a statement within the definition of the Federal Statute might still be producible on their brief?
Paul L. Friedman: Yes. I mean if Newman said Goldberg did not do any of these things, I have told you for three weeks he did and the prosecutors just brought a cryptic note that would be Brady but that is because it is not being turned over to try to impeach him with prior and consistent statements but because it tends to show that he is not guilty in a fact or --
Potter Stewart: Real evidence or tangible evidence might be Brady with the statement at all?
Paul L. Friedman: Suppressing somebody else's fingerprints on a gun or that sort of thing. We are not certainly not trying to limit Brady but what we are saying is that Brady does not subsume Jencks and sort of swallow it up. His other point has to do with this plea agreement but he cross-examined about the plea agreement. He brought out an awful lot of evidence about the agreement, the nature of it, what Newman expected from it, tried to show bias and brought out how much time it spent with the prosecutors but he did not know he was followed up on that, I got the Judge to give instructions upon the care with what accomplished testimony should be considered. The Judge instructed that Newman was going to get probation or at least that the prosecutors were going to recommend probation and even now that he have the notes, he does not show how he would have shown anymore with the eight of the notes and there is nothing in the notes that relates to the plea agreement. The only thing it shows is he spent a lot of time with the prosecutors and that Mr. Smaltz Newman was able to bring out. We think that in this case there is absolutely no legitimate claim to a new trial. There is a legitimate claim to a hearing in the Campbell sentence and the question of the notes handwritten by Newman. We think that there need not be such a hearing and the notes handwritten by the prosecutors if the court accepts our view that statements, the term statement and the terms adopted or approved must be very narrowly defined as Congress intended particularly when prosecutor's notes are vowed.
Byron R. White: But that requires us to look at the papers.
Paul L. Friedman: Requires you to leaf through the paper I think because it is pretty clear on its phase that they are not statements.
Byron R. White: And the Court of Appeals say that if it had another alternative where we have been to say the work product basis for the District Courts ruling was unsound and we may to do this the (Inaudible) itself.
Paul L. Friedman: But I think the court --
Byron R. White: But it did not write any opinion, it did not tell us anything about these papers.
Paul L. Friedman: It did say, it did indicate that it looked through the papers and they are not statements.
Byron R. White: Or it said they were statements.
Paul L. Friedman: Well, on the phase of the papers, it is clear except as we say in the case of this seven pages handwritten by Newman but they are not statements.
William J. Brennan, Jr.: That has to do along the problems with the statutes in the beginning that camera inspection has been that parties argued these cases without knowing anything about the materials and opinions cannot be written which disclosed what is in the material.
Paul L. Friedman: That is right. But of courses Palermo I think said and you would know better than I that when it is clear that they are statements, they are turned over. When it is clear that they are not statements, they are not turned over and it is in those doubtful cases that you need an in camera inspection.
William J. Brennan, Jr.: But what I am suggesting is that lawyers come here and argue these cases, they do not know what they are talking about and we cannot tell them what they are talking about and that we have to decide.
Paul L. Friedman: On this case Mr. Smaltz says what he is talking about because he seemed to, thank you.
Warren E. Burger: Mr. Smaltz
Donald Smaltz: Your Honor, I want to take the grant the court has offer to allow me five more minutes.
Warren E. Burger: Sure.
Donald Smaltz: I would like to first address myself to the fact that the government contends that we do not renew our motion for the statements of the prosecutor's of Mr. Newman's conversations at the time Newman testified in rebuttal. I do not know how many times we have to make the request but the trial judge cut a short and said there is an attorney work product exception and I submit that we would have taken a significant chance of arousing Judge Kopal ire if after having the head demotion denied three times, we would have come up again with the same request just because Newman is on rebuttal. Secondly, at the beginning of the trial --
William H. Rehnquist: What you would have been requesting you say that on rebuttal had you simply renewed your earlier request would have been prosecutor's notes because I take that Judge Kopal would not have overruled on the same basis, a request for a statement, narrative statement of the witness Newman.
Donald Smaltz: Well, the government -- I do not plead they would have, if the government had told in the day exist because on May 15, Mr. Justice Rehnquist before the trial begin, this is not covered in the brief but it appears in the record at page A99 of the reporter's transcript the judge entered what might be referred to as a continuing order for the government to turnover all Jencks Act's statements. Judge Kopal orders the government on May 15 before the trial begins to produce every document which he had in his possessions or as it deems possession they are out to produce copies of them for you referring to me because I have made this motion. For the defendant, that is every document that is to be used in presentation of the government's case, all Jencks Act's statements who witnesses who will or may be called will be delivered to the defendant by tomorrow.
William H. Rehnquist: This is in the appendix?
Donald Smaltz: No sir it is not.
William H. Rehnquist: It is not in the record?
Donald Smaltz: It is in the record, but it is not in the appendix.
William H. Rehnquist: Not on the appendix?
Donald Smaltz: It is in the reporter's transcript at page A99. I believe that it was the intent of Judge Kopal (ph) to have the government turnover to the defense all Jencks Act statements, but Judge Kopal had no way of knowing as the defendant had no way of knowing of the fact that Newman was writing these statements and there was no way for that fact to come to attention of anybody unless the prosecutor fulfilled its duty and called that fact to the attention of the court, which it did not do so.
William H. Rehnquist: Why did you moved three times during the trial for Jencks Acts statements if judge Kopal already entered an order prior to trial request -- requiring the government to turn them over?
Donald Smaltz: Well, I moved three times because I believe that Mr. Lebowitz had taken notes which constituted Jencks Act statements and I believe that the prosecutor did not feel that that complied or that attorney's notes were required as Jencks Acts statements. During the cross -- during the direct examination of newsman, even sitting away at counsel table, I could observe that the prosecutor was reading from a document that was handwritten out and rather detailed and I was not creating my neck to see that because there was a huge book that the prosecutor had on his desk and that is what prompted me initially in my cross-examination to ask those questions about attorney's notes. Further, I would like to invite the court's attention to page 5 and 6 of our reply briefs because the second reason that I asked about attorney's notes was that newsman, while he was committed to having made a complete statement to the government by the terms of that plea agreement, only made a partial statement and I knew that somewhere along he had to fulfill that requirement to the government and I felt it was odd that a reporter was not present and in pages 5 and 6 of our reply brief, we attempt to analyze why that agreement in and off itself makes the attorney's notes compellable. I would like to say one more thing and that is that the government argues, the legislative history demonstrates that Congress intended to shield prosecutor's trial notes from production. Our review of the legislative history of Congress in enacting Jencks Act which was cited in the government's brief discloses no such concern for attorney's notes, but does disclose a concern for the witness, in questioning a witness about a statement he never saw or whose language he never adopted or approved. Now, the congressional intent with respect to the meaning of adoption or approval, we agree is not precisely set forth in legislative history, but nonetheless the thrust of the provision was to ensure that unless the defendant had in some way been informed that the statements attributed to him and has indicated his approval of their accuracy the summaries should not be turned over to the defense, but in the context of this case for the reasons that we set forth at pages 6 and 7 of our reply brief, Newman was committed to giving an accurate statement and the prosecutors were committed to receiving an accurate statement for the reasons we have expressed in our brief and here at oral argument, we respectfully submit that petitioner's conviction should be reversed in a new trial order.
Warren E. Burger: Thank you gentleman. The case is submitted.