McLaughlin, Ganey and Freedman, Circuit Judges. Freedman, Circuit Judge (concurring). McLaughlin, Circuit Judge (dissenting).
Defendant-appellant was convicted for having violated § 472 of Title 18, U.S.C. His alternative post-trial motions for judgment of acquittal and for a new trial were denied and he was sentenced to four years imprisonment. On this appeal he claims the indictment is defective because it failed to allege that he knew the Federal Reserve notes were counterfeit*fn1 and, therefore, the court erred in denying his motion for "judgment of acquittal".
"On or about the 14th day of May 1964 at Edison Township, in the State and District of New Jersey,
JOHN JOSEPH MEISCH with intent to defraud, did possess, pass, utter and sell to Leonard Vecchione forty-three (43) counterfeited * * * ten ($10.00) dollars Federal Reserve notes * * *.
"In violation of Title 18 U.S.C., Section 472." (Emphasis added.)
The short answer to appellant's claim is that the phrase "with intent to defraud" includes a charge of knowledge on the part of the defendant that the notes were counterfeit. Rua v. United States, 321 F.2d 140 (C.A.5, 1963).
Appellant sets forth a number of reasons why, in his estimation, the district court committed reversible error in refusing to grant him a new trial. Foremost among these is the trial judge's refusal to direct the prosecution to deliver to the appellant a secret-service case report. The report was made by a government agent who testified at the trial. We conclude that the refusal was reversible error warranting the granting of a new trial.
Only two witnesses, both of them being special agents of the United States Secret Service, testified against appellant at the trial on behalf of the prosecution. The first was Casimir M. Szpak; the other was Leonard A. Vecchione, the person named in the indictment as the one to whom appellant sold the counterfeited ten-dollar notes. Szpak testified that he witnessed the transaction between Vecchione and appellant on May 14, 1964, from a vantage point sixty feet way.
During cross-examination of Szpak, defense counsel learned from him that he had made two written statements pertaining to the matters about which he testified. The first was contained in a letter, dated September 11, 1964, addressed to the United States Attorney for the District of New Jersey at Newark. The second was a case report dated May 26, 1964, sent by Szpak to his superiors in Washington, D.C. Defense counsel sought permission from the trial court to see both statements, pursuant to subsection (b) of the Jencks Act, 18 U.S.C.A. § 3500(b).*fn2 The trial judge, after reading the letter, directed the prosecution to place it at defense counsel's disposal, which he did. In pertinent part, the letter stated under the heading "Details of offense":
On or about May 14, 1964, Special Agent Leonard Vecchione, acting in an undercover capacity, met defendant Meisch at the parking area of the Cork and Bottle Bar in Edison Township, N.J. As a result of this meeting, Meisch sold 43 counterfeit $10 FR notes (Exhibit A) to SA Vecchione for $65 in official Government Funds. This sale was covered by Special Agents C. M. Szpak and B. J. Mullady.
Defense counsel then cross-examined Szpak for the purpose of bringing home to the jury that the letter was completely barren of the details of the May 14 occasion about which Szpak had testified on direct examination. It is evident, we think, that the brief notation in the letter was not meant to be a detailed disclosure of ...