APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 76-153).
Seitz, Chief Judge, Garth, Circuit Judge, Meanor,*fn* District Judge.
The defendant was convicted of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). We find that of the many appellate assaults he makes on his conviction, only one issue merits discussion. That concerns a recurring question which nonetheless previously has not been considered by this court - whether the Jencks Act, 18 U.S.C. § 3500, is applicable to a pre-trial motion to suppress.
Prior to trial defendant moved to suppress the identification evidence of four government witnesses.*fn1 Following an evidentiary hearing on the motion, it was denied. At the conclusion of the direct examination of each government witness who testified at the identification suppression hearing, defendant, through counsel, moved for the production of the prior statements of these witnesses pursuant to 18 U.S.C. § 3500 - colloquially called "Jencks material" or "3500 material."*fn2 The district court repeatedly held that the statements of these witnesses could not be compelled during the pre-trial hearing, noting that such statements could only be made available during the trial itself.
As was stated in United States v. Covello, 410 F.2d 536, 543 (2nd Cir. 1969), cert. den., 396 U.S. 879, 24 L. Ed. 2d 136, 90 S. Ct. 150 (1969); rehearing den., 397 U.S. 929, 25 L. Ed. 2d 110, 90 S. Ct. 897 (1970), the Jencks Act came into being to "qualify the loose interpretations the lower federal courts" had given Jencks v. United States, supra. The legislative history plainly bears this out.*fn3 Also, as Covello stated, it is highly probable that Congress did not consider whether Jencks material should be made available during pre-trial evidentiary hearings. The legislative history is clear, however, that Congress was greatly concerned with the timing of surrender to defendants of the statements of government witnesses. One class of cases following the Jencks decision that were a particular target of the act had required divulgence of such statements far in advance of trial.*fn4 Hence, the Jencks Act flatly states that disclosure of prior statements by government witnesses may not be compelled "until said witness has testified on direct examination in the trial of the case." (Emphasis added.) The blunt command of the statute together with the unequivocal legislative history has led to unbroken precedent in the Courts of Appeals denying to district courts the power to compel production of the statements of government witnesses until conclusion of direct examination at the trial.*fn5 Trial in this context means a proceeding being conducted for the purpose of determining guilt or innocence. United States v. Hodges, 489 F.2d 212 (5th Cir. 1973).
In the precise situation before us - a pre-trial evidentiary hearing resulting from a motion to suppress - federal appellate authority is unanimous in precluding district courts from ordering surrender of Jencks material during such a proceeding.*fn6 In the related contexts of pre-trial discovery*fn7 and preliminary probable cause hearings conducted pursuant to F.R. Cr. P. 5(c),*fn8 again the decisions of the Courts of Appeals are unanimous in holding that during such proceedings the surrender of Jencks material may not be compelled. We, therefore, hold that the district court was correct in denying defendant's motions to order the government to divulge Jencks material during the suppression hearing. This result, of course, in no way impairs the government's constitutional obligations under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
The only appellate decision of which we have been made aware holding that Jencks material may be compelled during a pre-trial hearing on a motion to suppress evidence is United States v. Dockery, 294 A.2d 158 (D.C. 1972).*fn9 We decline to follow Dockery because it diverges from unanimous Court of Appeals holdings on this issue, because we believe it is contrary to the unambiguous language of the Jencks Act and because we believe it misreads the legislative history of that act.*fn10
Even if we were free to reach a contrary result, as a matter of policy we would not do so. Were we to hold that Jencks material was the subject of required disclosure at pre-trial suppression hearings there would be significant danger that suppression motions would be noticed, not for their stated purpose, but as a discovery device, unavailable to those not able to trigger such a hearing in the context of their cases. If discovery is to be enlarged in federal criminal matters, it should be accomplished by general rule.*fn11
The judgment of the district court will be affirmed.*fn12
The judgment of the district court will ...