Jencks Act

United States v. Gonzalez-Melendez, 570 F.3d 1 (1st Cir. 2009)

The First Circuit remands this case to the trial court to make findings regarding whether a “302” amounted to a statement of the witness who was interviewed by the FBI agent. The prosecutor’s statement in court that the 302 was not a “statement” was not sufficient. The judge must make an independent finding whether the interview constituted a substantially verbatim recital of what the witness said, or whether the witness adopted the statement after reviewing it. It is not necessary that a witness physically write or record the statement in order to qualify as a statement. 18 U.S.C. § 3500(e)(1).

United States v. Hodgkiss, 116 F.3d 116 (5th Cir. 1997)

Law enforcement agents interviewed various co-defendants during the course of the investigation and kept debriefing notes. The agents then testified at trial. The debriefing notes were Jencks material that should have been furnished to the defense, because the testimony of the agents related to the subject of the interviews, the interviews and the testimony related to the defendant's relationship to other members of the conspiracy. The fact that the agents did not expressly rely on the interviews of the co-defendants did not mean that the notes did not qualify as Jencks material. Harmless error.

United States v. Neal, 36 F.3d 1190 (1st Cir. 1994)

18 U.S.C. §3500(e)(2), which requires the disclosure of written or recorded statements of a witness, includes statements which are written by a police officer during an interview of a witness if the written report represents a substantially verbatim account of what the witness said. It is not necessary that the witness’s statement be recorded stenographically or tape recorded.

United States v. Welch, 810 F.2d 485 (5th Cir. 1987)

A DEA agent made a number of reports in connection with his undercover investigation of a methamphetamine lab. An in camera hearing was required to determine whether these reports related to the subject matter of the agent’s testimony and thus were “statements” subject to disclosure under the Jencks Act. Since he had drafted the reports, they were clearly adopted by him or were verbatim recitations of his statements.

United States v. DeFranco, 30 F.3d 664 (6th Cir. 1994)

During the course of deliberations, the defense learned that it had been deprived of some Jencks material. The trial court erred in simply concluding that the inadvertent failure to produce the material was harmless. Alternative remedies, such as striking the witnesses’ testimony were more appropriate.

United States v. Tincher, 907 F.2d 600 (6th Cir. 1990)

Despite the defendant’s request for Jencks or Brady material, the government failed to disclose material which clearly fell within the scope of both requests. The prosecutor failed to give to the defendant grand jury testimony of the agent who was testifying. In light of the deliberate misrepresentation of the prosecutor, the conviction was reversed.

United States v. Allen, 798 F.2d 985 (7th Cir. 1986)

The conviction in this case was reversed because of the trial court’s refusal to conduct an incamera examination of the FBI reports pursuant to the Jencks Act. The court holds that when it is acknowledged that documents exist but disputed whether these documents contain “statements,” the district court must make an in camera examination of the documents. The trial court’s accepting the government’s word in this case, that no statements were contained in the documents, is not adequate compliance with the requirements of the Jencks Act. The court also notes that FBI reports, commonly known as 302’s, normally contain “statements” of witnesses.

United States v. Ogbuehi, 18 F.3d 807 (9th Cir. 1994)

The AUSA interviewed a witness and occasionally read the notes back to the witness. The witness testified that the AUSA would “from time to time” read something back to her and ask if he had it right. She would say, “Yes, that’s what I said” or if it were “no,” he would correct it. Pursuant to Goldberg v. United States, 425 U.S. 94 (1976), this type of statement may have been “adopted” by the witness, even if the witness never actually read the AUSA’s notes, had them read to her in full, or signed them. See also United States v. Boshell, 952 F.2d 1101, 1104 (9th Cir. 1991).

United States v. Brumel-Alvarez, 991 F.2d 1452 (9th Cir. 1992)

One informant for the government testified that he went to Bolivia and witnessed the source of the cocaine involved in the conspiracy alleged in this indictment. No other cocaine was introduced, seized, or known to have been in possession of any of the defendants. The prosecutor acknowledged in both his opening and his closing that the informant’s testimony was the key to the case. The prosecutor, however, failed to reveal to the defense a memorandum written by a DEA agent who severely criticized the operation and the credibility of the informant. Only a redacted version was provided to the defense. Among other things, the memorandum documented various false claims of the informant and his predilection to “run” the operation. The memorandum also revealed that the informant declined to make undercover calls to the supposed “higher-ups” who were involved in the smuggling venture. The memorandum also qualified as Jencks Act material of the author of the memorandum – the disgruntled DEA agent who testified on behalf of the government.

United States v. Smith, 984 F.2d 1084 (10th Cir. 1993)

When an attorney alerts the court to the existence of notes reflecting a witness interview, some inquiry is necessary to determine if the notes are producible under the Jencks Act.

United States v. Rivera Pedin, 861 F.2d 1522 (11th Cir. 1988)

The Eleventh Circuit reversed this conviction because of a Jencks Act violation. The government was in the possession of a diary of one of its witnesses which contained material statements about the witness having erased a tape which had been produced in connection with the taping of the defendant’s telephone calls.

United States v. Lloyd, 992 F.2d 348 (D.C.Cir. 1993)

As an aside in this opinion dealing with Rule 16, the court suggests that a tax return of a witness may be covered by the Jencks Act. This is clearly dictum in the opinion, however.

United States v. Snell, 899 F.Supp. 17 (D.Mass. 1995)

Witness statements which contain exculpatory information must be produced when Brady information is produced. Just because the information also falls under the Jencks Act does not mean that disclosure may be delayed.