Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
The defendant was convicted of bank robbery and appeals. On his behalf it is strongly argued that the evidence was not sufficient to justify the case going to the jury. While the jury under the evidence could have decided either way, we must agree with the district judge that a jury question was presented.
Appellant's other two points are substantial and call for a new trial. The first of these presents a Jencks Act situation. The defendant was interviewed by two F.B.I. agents and a Pennsylvania state trooper five days after the robbery. The agents, Smith and Carrig, took notes. Carrig prepared a report based on these. The report was discussed by both agents and Smith checked it for accuracy. The notes were routinely destroyed sometime prior to trial. Smith was a government witness. On cross-examination he was asked and replied as follows:
"Q. Did those notes correctly and accurately reflect what Mr. McCarthy told you?
"A. They were a summary of what he had told us.
"Q. Did it [the report] correctly reflect the content of your notes?
"A. The report was only a summary of what Mr. McCarthy had told us, not a detailed summary of it."
Defense counsel moved that a copy of the report be made available to him for the purpose of cross-examining the witness. The motion was denied on the ground that "a summary * * * isn't covered by statute or Jencks or any of the cases."
The Jencks Act, 18 U.S.C. § 3500, provides that a statement in the possession of the government, made by a government witness to a government agent, shall, on defendant's motion, be turned over to the defendant for the purpose of cross-examining the witness so long as the statement is relevant to the testimony of the witness. Subsection (e) of the Act defines "statement" as:
"(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or
"(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement."
The government's position as stated in its brief is that since the report "* * * is not a verbatim interview with the defendant * * * [it] should not have been granted to the defense." This theory misconceives subsection (e) of the Jencks Act. The demand for the report is not governed by paragraph (2) of (e) but by paragraph (1). The same sort of problem was passed upon in Clancy v. United States, 365 U.S. 312, 81 S. Ct. 645, 5 L. Ed. 2d 574 (1961). There an F.B.I. agent testified concerning an interview with one of the defendants at which he was present. He said he did not take notes at the time but afterwards returned to the office and made a memorandum of the interview. Another agent was present at interviews with three of the defendants. He compiled a memorandum from notes taken at the interviews by a third agent. Both of them signed the later memorandum of the conversations. The Supreme Court said at pp. 314-315, 81 S. Ct. at p. 647:
"The trial court, though directing delivery to the defense of notes made by the witnesses at the time of the interviews, refused the requests for the memoranda, saying that written statements were not covered by the Jencks Act unless they were made 'contemporaneously' with the interview. The Government now concedes that this was an erroneous ruling, as indeed it was. Each of these statements related 'to the subject matter as to which the witness has testified.' Each was a 'statement' as that word is defined in the Act. The requirement that it be contemporaneous applies only to 'a substantially verbatim recital of an oral statement' made to a government agent. By the terms of the Act, 'a written statement made by said witness and signed or otherwise adopted or approved by him' is also included. These statements fell in that category and should have been produced. Campbell v. United States, ante, 365 U.S. p. 85, 81 S. Ct. 421, 5 L. Ed. 2d 428. And see United States v. Sheer [7 Cir.], 278 F.2d 65, 67-68. As the senate Report on the bill that became the Jencks Act states:
"'The committee believes that legislation would clearly be unconstitutional if it sought to restrict due process. On the contrary, the proposed legislation, as reported, reaffirms the decision of the Supreme Court in its holding that a defendant on trial in a criminal prosecution is entitled to reports and statements in possession of the Government ...