United States Court of Appeals, Third Circuit
United States Court of Appeals, Third Circuit
2d 1074
58 USLW 2382
Charles D. Sheehy, Acting U.S. Atty., Paul J. Brysh (argued), Asst. U.S.
Atty., Pittsburgh, Pa., for appellee.
Joel Hirschhorn, P.A. (argued), Miami, Fla., for appellant.
Before BECKER, STAPLETON and GARTH, Circuit Judges.
GARTH, Circuit Judge:
The central issue presented by this appeal is whether the Jencks Act, 18 U.S.C.
3500, which by its terms is limited to providing the defendant with
government witnesses' statements only after the witness has testified on direct
examination in the trial of the case, should be extended to providing
government witnesses' statements at sentencing hearings.
I.
2
Plisco argued that the government did not live up to its plea agreement which
required the government to submit an application to the Witness Protection
Program on his behalf. Faith Plisco stated that an officer from the U.S.
Attorney's Office informed her on or about September 18, 1988 that an
application for the program had been mailed and that they were waiting for
"D.C." and that there would be no problem.
On the other hand, the government contended that Plisco did not live up to the
plea agreement and did not fully cooperate with the government as he had
promised. The government also contended that Plisco was not truthful. In
addition, a U.S. Attorney testified that he had no recall of Faith Plisco's
conversation concerning the witness program, and that no application had ever
been submitted.
THE COURT: Mr. Hirschhorn, the Third Circuit dealt with this exact question
in the case of the United States versus Murphy, which is cited at 569 F.2d 771,
in which it held that Jencks material was only applicable to trial; and trial in this
context means a proceeding being conducted for the purpose of determining
guilt or innocence.
10
They cited also a Fifth Circuit case; but, of course, we're governed by the Third
Circuit decisions. This is not a proceeding to determine guilt or innocence; and,
therefore, you are not entitled to Jencks material.
11
(A244-245).
12
On appeal, Plisco argued that the district court erred in holding that: 1) his plea
of guilty was constitutionally valid; 2) the government had not breached its plea
agreement; 3) Plisco could not withdraw his guilty plea, or in the alternative,
enforce the plea agreement; and 4) it was not necessary for the government to
provide Jencks Act material to Plisco pursuant to 18 U.S.C. 3500. We will
vacate Plisco's sentence and remand for resentencing.
II.
13
We need not deal at length with three of the four points of error assigned by
Plisco on this appeal because our independent review of the record satisfies us
that the district court did not err in upholding Plisco's guilty plea; in holding
that the government did not breach its plea agreement with Plisco; and in
holding that Plisco could not withdraw or enforce his plea agreement.
However, the district court's ruling which deprived Plisco of Jencks Act
material at his sentencing hearing stands on different footing. Our review of
that ruling is plenary.
III.
14
15
16
(b) After a witness called by the United States has testified on direct
examination, the court shall, on motion of the defendant, order the United
States to produce any statement (as hereinafter defined) of the witness in the
possession of the United States which relates to the subject matter as to which
the witness has testified. If the entire contents of any such statement relate to
the subject matter of the testimony of the witness, the court shall order it to be
delivered directly to the defendant for his examination and use.
***
17
***
18
19
(e) The term "statement", as used in subsections (b), (c), and (d) of this section
in relation to any witness called by the United States, means--
20
(1) a written statement made by said witness and signed or otherwise adopted
or approved by him;
21
22
23
In Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103
(1957), the case from which the Jencks Act takes its name, the Supreme Court
set forth its reason for permitting the defendant access to documents in the
government's possession at the time of trial. Justice Brennan, writing for the
Court, stated:
24
Every experienced trial judge and trial lawyer knows the value for impeaching
purposes of statements of the witness recording the events before time dulls
treacherous memory. Flat contradiction between the witness' testimony and the
version of the events given in his reports is not the only test of inconsistency.
The omission from the reports of facts related at the trial, or a contrast in
emphasis upon the same facts, even a different order of treatment, are also
relevant to the cross-examining process of testing the credibility of a witness'
trial testimony.
25
***
26
***
27
28 rationale of the criminal cases is that, since the Government which prosecutes
The
an accused also has the duty to see that justice is done, it is unconscionable to allow
it to undertake prosecution and then invoke its governmental privileges to deprive
the accused of anything which might be material to his defense.
29
Id., 353 U.S. at 671, 77 S.Ct. at 1015 (quoting U.S. v. Reynolds, 345 U.S. 1, 12,
73 S.Ct. 528, 534, 97 L.Ed. 727 (1953)).
30
The district court, as we have noted above, rejected Plisco's motion for Jencks
material at the sentencing hearing relying on United States v. Murphy, 569 F.2d
771 (3d Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1588, 55 L.Ed.2d 807
(1978). In light of the express language found in 18 U.S.C. 3500 and our
holding in Murphy, that reliance was understandable. However, Murphy
involved a request that Jencks Act material be produced at a pretrial
suppression hearing, not at a post-trial sentencing hearing. Thus, when the
district court rejected Murphy's request, we affirmed the district court,
emphasizing that Jencks Act material "was not available prior to trial." Murphy,
569 F.2d at 774.
31
Murphy, however, recognized that some authority existed to require Jencks Act
material at post-trial hearings, id., but because Murphy had not involved a posttrial hearing, those authorities were not relevant in a pretrial context. But, even
those cases to which Murphy referred, were not post-trial sentencing cases.
Both United States v. White, 342 F.2d 379 (4th Cir.), cert. denied, 382 U.S.
871, 86 S.Ct. 148, 15 L.Ed.2d 109 (1965), and United States v. Kelly, 269 F.2d
448 (10th Cir.1959), cert. denied, 362 U.S. 904, 80 S.Ct. 615, 4 L.Ed.2d 555
(1960), imply that Jencks Act material is to be furnished at proceedings held
pursuant to 28 U.S.C. 2255.
32
Moreover, in 1983, some five years after Murphy was decided, Rule 12(i) of
the Federal Rules of Criminal Procedure was amended to require the production
of Jencks Act material at motions to suppress evidence, thus superseding the
holding in Murphy.
33
34
35
The first, and virtually the only case, to address the question of whether Jencks
Act material must be furnished at a sentencing hearing was decided in the
federal district court in the Eastern District of New York some few months after
this court's decision in Murphy was filed.2 In United States v. Fatico, 458
F.Supp. 388 (E.D.N.Y.1978), aff'd, 603 F.2d 1053 (2d Cir.1979), cert. denied,
444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980), Judge Weinstein,
among other things, held that:
Fatico, 458 F.Supp. at 400. Holding that such material must be furnished for
sentencing hearings where government witnesses testified, Judge Weinstein's
reasoning with respect to the defendant in Fatico is just as applicable to the
situation which confronted Plisco at his sentencing:Unable to cross-examine the
informants, [here, Droznek] the defendant's only hope was to attack the
credibility of the Government agents by attempting to impeach them with their
prior statements and reports. Without this limited weapon, the defendant
remained virtually defenseless. Nor could the defendant rely on a subsequent
trial to rectify any inaccurate findings. Unlike a pre-trial hearing, which may be
followed by a trial at which the defendant is afforded full procedural
protections, sentencing is the end of the line. The defendant has no opportunity
to relitigate factual issues resolved against him. Where the facts relied upon at
sentencing have already been determined at trial, this is of little, if any,
consequence. But in this case, where, after a guilty plea, the critical fact was
litigated for the first time at the sentencing hearing, the defendant is irreparably
disadvantaged.
38
Id.
39
There can be little doubt that Jencks Act material might have aided Plisco in his
cross-examination of the government's witness, Droznek. The issues before the
district court and on appeal all involved Plisco's participation in drug dealing.
Droznek, at the sentencing hearing, not only testified about his and Plisco's
association in a life of crime which included, among other things, physical
intimidation, loansharking, gambling, gun-running and theft, but he also heavily
implicated Plisco in cocaine and other substantial drug sales.
40
41
THE WITNESS [Plisco]: Yes, Your Honor. I'm sorry for everything that I've
done and that I'm guilty of; that all the things you've heard today from Mr.
Droznek on the witness stand are not true. It is true that since I've been arrested
in New Castle, Armstrong County, I believe, I've gotten out of the numbers
business and the sports business, and I was just going along making an honest
living and turned my back on things; and I didn't want any involvement with
anything or any people or any--anybody.
42
And, Your Honor, I beg you for leniency in the case, understanding.
43
MR. HIRSCHHORN: Just let me, Your Honor--I need to ask Mr. Plisco a
question.
44
45
THE WITNESS: Not all the things that Droznek said, Your Honor, today on
the witness stand in front of you are true. Not all of them are true.
46
THE COURT: I understand you to say that, they were not true.
47
MR. HIRSCHHORN: I understand him to say all of them were not true, but
that's not exactly what he meant. What he meant is not all of them.
48
49
50
A282-283.
51
In sentencing Plisco to prison for 15 years and fining him $50,000, the district
court had evidently been impressed with or at least had taken into
consideration, the testimony given by Droznek. In imposing sentence, the
district court said:
52
THE COURT: Mr. Plisco, not only were you involved in drug trafficking, but
you were also involved in financing other drug traffickers. The severity of your
crime must be impressed upon you.
53
The use of illegal drugs is an extremely serious problem in our society. Those
who sell illicit drugs threaten the lives and the health of persons who use those
drugs and jeopardize the people victimized by drug users who commit crimes
to support their habits.
54
Mr. Plisco, you must realize the serious consequences of your activities. You
must resolve never again to become involved with drugs or the people who sell
or use drugs.
55
A283-284.
56
57
We will affirm Plisco's conviction, but we will vacate his sentence and remand
the case to the district court for further proceedings consistent with the
foregoing opinion.
The second sentence of the Rule, not relevant for our purposes in this case,
states as follows:
For purposes of this subdivision, a law enforcement officer shall be deemed a
witness called by the government, and upon a claim of privilege the court shall
excise the portions of the statement containing privileged matter.
Surprisingly, in the years since United States v. Fatico, 458 F.Supp. 388
(E.D.N.Y.1978) was decided, no other court, and in particular, no court of
appeals has had the occasion to address this issue