at pages 473, 475, 476, 67 S. Ct. 1330, 91 L. Ed. 1610. Nevertheless we have reviewed the entire matter.
Traditionally, grand jury proceedings are privileged from disclosure. In the absence of strong reasons to the contrary the rule ought not to be departed from.
In United States v. Johnson, supra, 319 U.S. at page 513, 63 S. Ct. 1233, 87 L. Ed. 1546, there is a strong caveat against needless intrusion upon the secrecy of grand jury proceedings, especially as to granting ready resort to transcripts of testimony. See United States v. Holmes, 3 Cir., 1948, 168 F.2d 888 at page 890, and see Leahy J. in United States v. Papaioanu, supra, 10 F.R.D. 517 at page 518, 'The same admonitions articulated by Judge Learned Hand in 1909 * * * are as cogent today * * *.'
In the exercise of judicial discretion to determine whether any part of the transcript should be made available to defendant, we carefully made a judicial reading of defendant's entire testimony. See United States v. Socony-Vacuum Oil Co. Inc., 1940, 310 U.S. 150 at page 232, 234, 60 S. Ct. 811, 84 L. Ed. 1129; Boehm v. United States, supra, 123 F.2d at pages 807, 808; United States v. Mascuch, S.D.N.Y. 1939, 30 F.Supp. 976. We looked to see if anything pertinent was omitted from the indictment; whether the part contained therein was taken out of context giving a different meaning than when uttered, see Fotie v. United States, 8 Cir., 1932, 137 F.2d 831 at page 842; Meyers v. United States, 84 U.S.App.D.C., 101, 171 F.2d 800 at 806, 807, 11 A.L.R.2d 1; whether there was evidence of an innocent mistake and the correction thereof, or elaboration of incompleted answers. Realizing that any change, correction or recantation of a knowingly false statement would not remove the stigma thereof, United States v. Margolis, 3 Cir., 1943, 138 F.2d 1002, 1003; Llanos-Senarillos v. United States, 9 Cir., 1949, 177 F.2d 164; 41 Am.Jur.Perjury § 7, p. 7, nevertheless we searched therefor but found none to exist. We found that there was none of defendant's testimony not spelled out which would have any bearing on defendant's guilt or innocence on the charge of perjury, and that the testimony actually included was placed in proper context insofar as the perjurious answers were concerned.
Does the doctrine of completeness require more? One of the qualifications of the rule is that '(a) no utterance irrelevant to the issue is receivable; (b) no more of the remainder of the utterance than concerns the same subject and is explanatory of the first part is receivable.' See Wigmore § 2113; United States v. Katz, supra, 78 F.Supp. at page 440. There is a distinction between the situation where the prosecution used the transcript of testimony in cross examination and where the court itself does so. See United States v. Socony-Vacuum Oil Co., supra, 310 U.S. 150, 60 S. Ct. 811, and People v. Miller, 1931, 257 N.Y. 54, 177 N.E. 306, Cardozo J. in United States v. Cotter, 2 Cir., 1932, 60 F.2d 689 at page 692, where the prosecuting attorney used the transcript, Judge Learned Hand ruled that a judicial reading and separation was not sufficient. We feel however that the practice approved in the Socony case where the judge himself used the transcript states the rule by which we should be governed. Cf. United States v. Remington, supra, 191 F.2d 246 at page 251.
Was the accused entitled to the entire transcript under the principle of United States v. Andolschek, 2 Cir., 1944, 142 F.2d 503? That case holds that an accused charged with conspiracy must be given access to his own official reports which might directly support his defense, even though disclosure thereof was forbidden by administrative regulation. It was in reliance upon the Andolschek case that the court in United States v. Remington indicated that the defendant should have access to the grand jury minutes of his own testimony. There, however, the questions and answers were placed in the indictment completely out of context; a judicial reading was not di discussed. Involved was a not unambiguous act requiring proof of mental state (see United States v. Remington, supra, 191 F.2d at page 249) a subjective matter not an objective fact as here. See and cf. Chief Judge Reeves in United States v. Owen, D.C., 11 F.R.D. 371 at page 374, 'In the instant case the immediate context relating to the claimed false testimony has been lifted out and incorporated in each count of the indictment * * * he either had the transactions alleged in the indictment or he did not. It would be difficult to infer that any other testimony would qualify or explain this positive and categorical answer.' In addition here we have a judicial reading and a determination that defendant's rights were properly protected and preserved.
Relying upon United States v. Remington and other cases
the court in United States v. White, D.C.N.J. 1952, 104 F.Supp. 120, ruled that in all perjury actions based upon defendant's testimony before a grand jury the defendant was entitled to a transcript of his testimony. This would remove the matter from the area of discretion in the court to that of an absolute right of the defendant. In the White case, the critical questions and answers were apparently set forth in the indictment completely out of context. The accused appeared before the grand jury on only one day; a judicial reading was apparently not considered. The holding appears to be a novel one. See United States v. Owen, supra, 11 F.R.D. 371; People v. Browne, supra, 183 Misc. 764, 54 N.Y.S. 2d 759. The precise problem was not discussed during the institute proceedings on the Federal Rules of Criminal Procedure; the prevailing sentiment was however to the contrary. See Id. p. 179. In fact, the holding in United States v. White, if sustained, amounts to an unwritten exception to Rule 6(e). We do not agree.
Where a transcript of testimony is a basis for a claim of immunity from prosecution and is the best evidence of what basis there is, if any, for the claim, the transcript should be produced at least for judicial reading. Such was the problem in Edwards v. United States, supra, 312 U.S. 473, 61 S. Ct. 669, involving testimony before an S.E.C. investigator.
In the Boehm case defendant was indicted for perjury based upon testimony given before an officer of the Securities and Exchange Commission. He had already received a transcript of his own testimony, 123 F. at pages 805-806. He however sought a transcript of testimony given by other witnesses for purposes of impeachment. The court held under the circumstances there was no error in denying the request. See, however, the language of the court, 123 F.2d at pages 807-808, condemning the practice of the trial court and suggesting the propriety of a judicial reading as a basis for an intelligent ruling.
In view of all of the foregoing, orders will be filed herewith denying defendant's motions.