The indictment charged that the four appellants conspired with six others also indicted, with four named co-conspirators not indicted, and with other persons to the Grand Jury unknown in violation of § 7237(a), Title 26 U.S.C.A., to commit various offenses against the United States having to do with the possession, importation, purchase, sale and distribution of marijuana, heroin, and other narcotics. Thirty-six overt acts were charged in the conspiracy alleged to have continued from January 1, 1955 to June 3, 1956. The trial extended over about three weeks, and resulted in the conviction of all of the defendants. These four have appealed.

We have carefully read the record of more than 1300 pages and we entertain no doubt as to the sufficiency of the evidence to sustain the conviction of each of the appellants for the conspiracy charged, within the tests laid down in Direct Sales Co. v. United States, 1943, 319 U.S. 703, 63 S. Ct. 1265, 87 L. Ed. 1674; Delli Paoli v. United States, 1957, 352 U.S. 232, 236, 77 S. Ct. 294, 1 L. Ed. 2d 278; and Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680.

The appellants, other than Giordenello, have no standing to object to the admissibility of the evidence obtained by the search ruled on by this Court (Judge Rives dissenting) in Giordenello v. United States, 5 Cir., 1957, 241 F.2d 575.1 The records of various long distance telephone calls were admissible as circumstantial evidence.2 The acts of one or more of the co-conspirators, committed after the arrests of certain of the defendants, stand upon a different footing from declarations of co-conspirators, and were relevant as additional proof of the conspiracy.3

We find no reversible error, therefore, in these rulings of the trial court or the others discussed in the briefs. All of the appellants assign as error the denial by the court below of a motion seeking to compel the Government to turn over to them a written statement taken by the Government from one of its witnesses used at the trial. The argument is based upon the decision of the United States Supreme Court in Jencks v. United States, June 3, 1957, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103.4 The majority of this Court is of the opinion that, under the facts of this case, the court below did not commit reversible error in denying access to the statement.

The point presented to the trial court arose in this way. Adams, a government witness who had given a written statement to Narcotics Agent Finley, was under cross-examination by Attorney Walsh, who represented Rodney H. Peevey, a defendant who was convicted but who did not appeal. The entire evidential basis for the contention of appellants consists of one question by Attorney Walsh concerning that statement, relating solely to the alleged secreting of heroin by him in Peevey's home, and one answer by witness Adams:

"Q. And isn't it true that in that statement you said that the transaction regarding the heroin occurred on Keller Street, rather than on Lawndale? A. No, sir."

The jury having retired, Attorney Walsh made an oral motion in these words:

"Now, your Honor, at this time I ask that the Government be directed to produce for inspection by counsel the statement in question made to Mr. Finley on or about the middle of February, for purposes of cross-examination of this witness. I would like further to request the court to direct the United States Attorney to make available to the defense the minutes of the grand jury, to the extent, at least, that they deal with the transaction on Lawndale, to which this witness has now testified."

After brief argument, the Court stated: "Overrule the objection."

Attorney Walsh promptly noted an exception and, after further exchange of views Attorney Golding stated: "My defendant, Indiviglio, invokes a specific exception to the ruling." Thereupon Attorney Woody stated: "For the defendants whom I represent, Mr. and Mrs. Giordenello and Mrs. LaPorte, we join Counsel Walsh in his request * * *."5

There is no testimony in the record tending to contradict the quoted reply made by Adams on the witness stand, or to prove that this secreting of heroin by Peevey was on Keller Street instead of on Lawndale Street. The arguments made by appellant's attorney to support this oral request for an order to inspect the Finley statement, as well as appellants' briefs before us, are that the testimony of Adams was contradictory of one of the overt acts charged in the indictment.6 It was undisputed that Adams did not testify before the Grand Jury and this allegation in the indictment would not have the effect of giving rise to a contradiction of the testimony of witness Adams.

At all events, Peevey did not appeal from the judgment of conviction, and the question which provoked the request for Adams' statement to the Narcotic Agent did not relate to any of the appellants who are parties to the appeal. It is apparent, therefore, that the record contains no evidence tending to support the implications contained in the question of Attorney Walsh, or to contradict or impeach the statement of the witness Adams; and it is the universal rule that a witness may not be impeached as to matters not material.7

The question before us for decision, therefore, is this: Whether the Court below abused its discretion in denying access to the Adams statement, and whether such action was shown to be sufficiently material and prejudicial to appellants to require reversal.

Appellants recognized in their brief and argument before us the necessity of showing as a predicate for the demand, the materiality of the statement as furnishing contradictory evidence. The quotation in the margin is taken from the "Brief for Appellants:"8 Sitting as we do as an appellate court, we are justified in finding error in the actions of the trial court only with respect to matters presented to that court, and limited to the contentions made to it as the basis for the requested action.

We are dealing here essentially with the claimed right of discovery. This arises when, in adversary litigation, one party seeks to enforce an entry into the file of the other litigant for the purpose of obtaining a statement taken by the second litigant in preparation for trial.9 It is well to take our bearings to discover the state of the law which faced the lower court when the motion to compel production of the Adams statement was made.

(a) Discovery is governed, both in criminal and civil cases, by rules of practice promulgated by the Supreme Court under congressional authority.10 The power conferred on the Supreme Court by the statute was in these words:

"The Supreme Court of the United States shall have the power to prescribe, from time to time, rules of pleading, practice, and procedure with respect to any or all proceedings prior to and including verdict, or finding of guilty or not guilty by the court * * * in criminal cases * * * in district courts of the United States * * *. Such rules shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session, and thereafter all laws in conflict therewith shall be of no further force and effect."

Fed.Rules Crim.Proc. rule 16, 18 U.S. C.A. is the only one dealing with the subject and reads as follows:

"Rule 16 Discovery and Inspection

"Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. * * *"

The Advisory Committee's note under this rule states: "Whether under existing law discovery may be permitted in criminal cases is doubtful * * *. The entire matter is left within the discretion of the court." [Emphasis added.] Since there is no evidence that the statement of Adams was obtained "by seizure or by process," it is obvious that the rule does not literally cover the situation with which we are dealing. But the principle of discovery and inspection, whenever allowed, is established by the Rule and includes these ingredients: There must be a showing that the items sought "may be material to the preparation of his defense and that the request is reasonable." The Advisory Committee's note makes it clear that the sufficiency of that showing shall be within the discretion of the District Court.

(b) In the same year Congress passed the Act under which the rules were promulgated and shortly before the Committee and the Supreme Court collaborated in their preparation, fresh in their minds was the long-pending and much-publicized case of United States v. Socony-Vacuum Oil Co., (argued Feb. 5th and decided May 6, 1940) 310 U.S. 150, 60 S. Ct. 811, 84 L. Ed. 1129. What the Supreme Court there decided was the then existing law with respect to requiring the Government to permit the defendant to inspect statements taken from witnesses and it applies exactly to the situation now before us except in two respects: (1) the prior statement of the witnesses was made before the grand jury (but no question of privilege was raised, discussed, or decided), and (2) the statements had, during direct examination by the Government attorney, been read to the witnesses to refresh their recollection, but they had not been exhibited to the witnesses. In both respects, there was a stronger showing for requiring the Government to permit inspection of the statements used than in the case before us.

In Socony the Government used the grand jury to refresh the memories of its witnesses ninety times, involving reading to them more than one thousand lines of previous testimony, which revealed about fifteen inconsistencies between what was read and their testimony on the stand. The trial court refused, in every instance, to permit defense counsel to inspect any part of the transcript which was being used in open court to refresh the recollection of the witnesses, and the Court of Appeals reversed. But the Supreme Court set aside its action and affirmed that of the District Court. Some of its language is applicable here, as it logically influenced Congress in its empowering the Supreme Court to formulate rules for the District Courts, and the Advisory Committee and the Supreme Court in working them out:

"* * * Such use of grand jury testimony for the purpose of refreshing the recollection of a witness rests in the sound discretion of the trial judge. [Citing cases.] He sees the witness, can appraise his hostility, recalcitrance, and evasiveness or his need for some refreshing material, and can determine whether or not under all the circumstances the use of grand jury minutes is necessary or appropriate for refreshing his recollection. As once stated by Judge Hough, `The bald fact that the memory refreshing words are found in the records of a grand jury is not a valid objection.' * * * No iron-clad rule requires that opposing counsel be shown the grand jury transcript where it is not shown the witness and where some appropriate procedure is adopted to prevent its improper use. That again is a matter which rests in the sound discretion of the court.

"Since there is no inexorable rule which under all circumstances entitles the witness and his counsel to see the prior statement made under oath and since in this case the court itself examined and thus directly controlled the use of the grand jury testimony, we cannot say that the refusal to make it available to counsel for the defense is per se reversible error. To hold that it was error in the instances here under review would be to find abuse of discretion, where in fact we conclude from the entire record on this phase of the case that the judge supervised the procedure with commendable fairness. In sum, the selective use of this testimony and the precaution taken by the trial judge made it impossible for us to say that he transcended the limits of sound discretion in permitting it to be used by the government without making it available to the defense. * * *

"In addition, it clearly appears that the use of this material was not prejudicial. So far as the subject matter of the inquiry is concerned, that prior testimony was either cumulative or dealt only with the minutiae of the conspiracy. The record minus that testimony clearly establishes all the facts necessary for proof of the illegal conspiracy. No portion of it was dependent on the minor facts concerning which the memory of these witnesses was refreshed. Hence, the situation is vastly different from those cases where essential ingredients of the crime were dependent on testimony elicited in that manner or where the evidence of guilt hung in delicate balance if that testimony was deleted." 310 U.S. at pages 233, 234, 235, 60 S.Ct. at page 849. [Emphasis added.]

During the period following the grant of power by Congress to the Supreme Court to formulate criminal rules, and while the process was in full operation, the Supreme Court, on April 27, 1942, rendered another decision declaratory of the law of discovery at the time the rules were promulgated and adopted, Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 995, 86 L. Ed. 1322. A conspiracy indictment had been returned against Goldman based largely on testimony given by Government agents of what they had heard, by means of a detectaphone, of a conference in a co-conspirator's office.11 The Government agents admitted that they had refreshed their recollection from notes made by them of what transpired in the lawyer's office. At a preliminary hearing and at the trial Goldman demanded the right to inspect the notes from which the witnesses had refreshed their recollection. The trial court refused the right and the Supreme Court affirmed, using this language:

"We hold there was no error in denying the inspection of the witnesses' memoranda. The judge was clearly right in his ruling at the preliminary hearing, as the petitioners should not have had access, prior to trial, to material constituting a substantial portion of the Government's case.

"We think it the better rule that where a witness does not use his notes or memoranda in court, a party has no absolute right to have them produced and to inspect them. Where, as here, they are not only the witness' notes but are also part of the Government's files, a large discretion must be allowed the trial judge. We are unwilling to hold that the discretion was abused in this case." [Emphasis supplied.]

(c) As stated above, Rule 16 was intended primarily to cover discovery and inspection before the beginning of the trial. But it is generally accepted that its civil counterpart (Fed.Rules of Civil Procedure Rule 34, 28 U.S.C.A.), couched in similar language — neither providing any time limit — may be utilized during the course of the trial, 4 Moore's Federal Practice, Second Edition, pp. 2440, et seq., United States v. Smith, 9 Cir., 1941, 117 F.2d 911. There is every reason to hold the same thing with respect to Rule 16. The discretion of the trial judge controls all such questions. Whenever inspection of documents in the adversary's file is requested, the trial court will allow it only under the limitations of materiality and reasonableness provided in the Rule.

(d) It is plain that the Supreme Court derived its sole rule-making power from the statute and that it could not modify or add to the provisions of any rule, except by following the procedure therein provided.

(e) The right to discovery and inspection under the Criminal Rules ought to be judged against the background of the Federal Rules of Civil Procedure, adopted eight years earlier, and the experience and decisions under them. The Supreme Court12 pointed out that Rule 16 of Criminal Procedure was modeled upon Rule 34 governing civil procedure.13 The language of Criminal Rule 16 follows closely the language of the quoted Civil Rule and the last sentences of the two Rules are identical.14

The right of discovery under the Civil Rules is limited to cases where parties have shown good cause for the order, while the right in criminal cases is limited by the clause, "Upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable." Access to statements of witnesses placed on the stand by a litigant has always been considered as governed by the discovery rule, and the Supreme Court first dealt with the subject in Palmer v. Hoffman, 1943, 318 U.S. 109, 116, 63 S. Ct. 477, 482, 87 L. Ed. 645.

One of Hoffman's witnesses testified on cross-examination that he had given him a signed statement, and Palmer's counsel asked to see it. The trial court offered to compel the production, but only upon condition that this would open the door for Hoffman to offer the statement in evidence. Palmer's counsel declined, and assigned as error that the court below had, under Rules 26(b) and 34 of Civil Procedure, committed error in declining to permit unconditional inspection of the statement. The Supreme Court declined to consider the assignment and, through Mr. Justice Douglas speaking for a unanimous court, used this language:

"Since the document was not marked for identification and is not a part of the record, we do not know what its contents are. It is therefore impossible, as stated by the court below, to determine whether the statement contained remarks which might serve to impeach the witness. Accordingly, we cannot say that the ruling was prejudicial even if we assume it was erroneous. Mere `technical errors' which do not `affect the substantial rights of the parties' are not sufficient to set aside a jury verdict in an appellate court. 40 Stat. 1181, 28 U.S.C. § 391, 28 U.S.C.A. 391. He who seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted. That burden has not been maintained by petitioners." [Emphasis added.]

In Hickman v. Taylor, supra,15 Mr. Justice Murphy, speaking also for a unanimous court, noted the widespread controversy among members of the legal profession over the problem there presented, adverted to the very restricted discovery permitted by the English courts,16 and held that Rule 34 and the other Rules of Civil Procedure involved did not permit inspection by the adverse party as a matter of right, but required a showing of good cause sufficient to warrant the trial court in using its discretion to permit inspection. In a specially concurring opinion Mr. Justice Jackson, joined in by Mr. Justice Frankfurter, used this language:

"Counsel for the petitioner * * * bases his claim to it in his brief on the view that the Rules were to do away with the old situation where a lawsuit developed into `a battle of wits between counsel.' But a common law trial is and always should be an adversary proceeding. Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary. * * * All such procedural measures have a background of custom and practice which was assumed by those who wrote and should be by those who apply them. * * * The question remains as to signed statements or those written by witnesses. * * * Production of such statements are governed by Rule 34 and on `Showing good cause therefor' the court may order their inspection, copying or photographing. No such application has here been made; the demand is made on the basis of right, not on showing of cause. * * *" 329 U.S. at pages 516, 518, 67 S.Ct. at page 396. [Emphasis added.]

Palmer v. Hoffman was written shortly before the Supreme Court filed with Congress the Federal Rules of Criminal Procedure, and Hickman v. Taylor was written immediately after their filing, and both were a part of the evolution in procedure which had been initiated by William Howard Taft a half century ago,17 which included collaboration by lawyers, the Supreme Court, and Congress.

Discovery and inspection under the Civil Rules have always been conceded to be broader than under the Criminal Rules. "Under the Federal Rules of Civil Procedure, utmost liberality of discovery was envisaged and prescribed. Liberal discovery was, however, deemed unsuitable in criminal cases. It cannot be had as against the defendant without encroaching on his rights under the Fourth and Fifth Amendments. Likewise, it seemed unwise and inexpedient as a matter of policy to allow broad and unbridled discovery as against the Government. With this thought in mind, the Advisory Committee limited discovery in behalf of the defendant to such documents [as were made relevant and admissible] * * * upon a showing that the items were material to the preparation of the defense and that the request was reasonable."18

(f) The pre-Jencks history of the right in criminal cases of discovery and inspection includes two decisions rendered by the Supreme Court since passage of the Federal Criminal Rules.19 In Bowman Dairy a motion had been filed under Rule 16 for inspection of certain books, papers and documents, and the Government agreed to an order and furnished those documents. Thereupon Bowman served on the Government attorneys a subpoena duces tecum calling for other documents, including narrative statements of witnesses and other writings not obtained by seizure or process. The Government moved to quash the subpoena on the ground that writings in its custody could be obtained only under Rule 16. The motion was denied, the Government attorney refused to comply with the court's order and was held in contempt. The Court of Appeals for the Seventh Circuit reversed, holding that Rule 17 did not entitle a defendant to any broader discovery than that permitted under Rule 16.20

The Supreme Court vacated the judgment of the Court of Appeals and remanded the case for trial under its holding that the scope of materials which could be reached by subpoena was broader than under discovery provided by Rule 16.21 This language from the opinion sheds light on the problem before us:

"It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest terms. * * * Rule 17(c) was not intended to provide an additional means of discovery. Its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials. * * * There was no intention to exclude from the reach of process of the defendant any material that had been used before the grand jury or could be used at the trial. In short, any document or other materials, admissible as evidence, obtained by the Government by solicitation or voluntarily from third persons is subject to subpoena."22 [Emphasis added.]

Gordon involved a case where conviction was had largely on the testimony of one Marshall, an accomplice. On cross-examination Marshall admitted that he had given three or more statements to the FBI in which he did not implicate Gordon. The defendant thereupon asked the court to compel the production of those statements and also a transcript of proceedings had before the trial judge, who had held up the sentence under circumstances which would probably have warranted the jury in finding that Marshall had received at least tacit assurance of immunity. The requests were denied, and the Court of Appeals for the Seventh Circuit affirmed.23 Practically the entire battle before the Court of Appeals revolved around whether the statements and the court records would be admissible if produced. That Court mentioned Rule 17(c), providing for subpoena duces tecum, but did not mention Rule 16, and concluded that, since Marshall had admitted on cross-examination everything which could have been shown by the records demanded, it was not an abuse of discretion for the court below to deny access to and use of these records.

The Supreme Court reversed in a decision based, in large measure, on whether the records would be admissible; and pointing out that the Government apparently conceded that the Court below ought to have compelled production if the records constituted admissible evidence. The Supreme Court dealt with the question before it as one of evidence to be solved by applying Criminal Rule 26,24 and did not mention Rule 16.

The language of the opinion (344 U.S. at pages 418-419, 73 S.Ct. at page 372) shows clearly that the Court was not intending to deal further with the matter of discovery and inspection, but to base its holding upon the rules of evidence under the Government's concession:

"Apparently, earlier common law did not permit the accused to require production of such documents. Some state jurisdictions still recognize no comprehensive right to see documents in the hands of the prosecution merely because they might aid in the preparation or preservation of the defense. We need not consider such broad doctrines in order to resolve this case, which deals with a limited and definite category of documents to which the holdings of this opinion are likewise confined.25

"By proper cross-examination, defense counsel laid a foundation for his demand by showing that the documents were in existence, were in possession of the Government, were made by the Government's witness under examination, were contradictory of his present testimony, and that the contradiction was as to relevant, important and material matters which directly bore on the main issue being tried: the participation of the accused in the crime. * * * In the light of our reason and experience, the better rule is that upon the foundation that was laid the court should have overruled the objections which the Government advanced and ordered production of the documents." [Emphasis added.]

It is clear that the Supreme Court, in Gordon, did not consider whether an accused should have access to documents merely because they might aid in the preparation of his defense. It held merely that the three statements which did show inconsistencies should be produced. The opinion of Mr. Justice Burton, joined in by Mr. Justice Harlan, in Jencks,26 demonstrates that the historical rule has always been that use of a witness' statement should be confined to those instances where inconsistency is shown:

"Petitioner requested only that the records be produced to the trial court. He is entitled to no more. * * * But if the reports [submitted to the trial court] do not contain contradictory or exculpatory material helpful to petitioner, no possible prejudice could have resulted from the trial court's denials of petitioner's motions. * * *"

In the case before us the motion demanded that the Adams statement be forthwith delivered direct to appellants without any showing of probable contradiction or of prejudice to appellants. Under Palmer v. Hoffman, supra, appellants carried the burden of showing that prejudice resulted as well as of bringing the Adams statement before us.

These principles are axiomatic and have, through the ages, guided courts of every rank and jurisdiction: "The general rule * * * is that an appellate court will consider only such questions as were raised and reserved in lower court."27 "It is well settled that the theory upon which the case was tried in the court below must be strictly adhered to on appeal or review. Under this rule a party will not be permitted, in the appellate or reviewing court, to assume a position inconsistent with that occupied by him in the trial court with respect to the grounds or theory of recovery or relief or of defense or opposition, the nature or sufficiency of pleadings, the admissibility or sufficiency of evidence, or the burden of proof."28

"The general rule that an appellate court will consider only such questions as were raised in the lower court, and the rule requiring adherence to the theory pursued below, operate ordinarily to preclude the consideration, on appeal or review, of grounds of defense or of opposition not asserted and relied on in the trial court."29 "Under the general principle requiring definiteness and particularity in the statement of the grounds of objections, motions, and exceptions, where the ground upon which it is claimed that testimony should have been admitted were not stated at the trial, the propriety of its exclusion will not be considered on review."30

It is plain, therefore, that the Supreme Court, in Jencks exercising as it was only its appellate jurisdiction, was empowered to put the trial court in error only by considering its ruling with respect to what appellant asked it to do and based on the theory relied on by appellant in presenting his motion. Appellant asked the trial court to require the Government to present to the court — not to appellant — the Matusow and Ford statements, basing his requests solely upon the assertion that he had established by proof that these statements probably contradicted the testimony given on the witness stand. The Supreme Court had the power to decide that, on the facts in evidence, the court below had abused its discretion in denying the request as it was presented at the trial. But, under these universally accepted principles, its competence did not go beyond that.

It is a rule of universal application by the Supreme Court, as well as the other courts of this country, that no opinion can be considered as binding authority unless the case calls for its expression.31 American Jurisprudence32 drew upon scores of Supreme Court decisions in its distillation of the rule to these words: "The language and general expression in an opinion of the court are to be taken in connection with the case * * * and must be construed in the light of the issue which was in controversy in the case and which was decided * * *. They must not be extended beyond that for the purpose of authority in another and different case. In other words, to make an opinion a decision there must have been an application of the judicial mind to the precise question necessary to be determined in order to fix the rights of the parties."33

The rule was graphically epitomized by Mr. Justice Reed in the controlling opinion in Darr v. Burford, 339 U.S. 200, 214, 70 S. Ct. 587, 595, 94 L. Ed. 761:

"We doubt the effectiveness of a voluntary statement on a point not in issue. Compare Bowen, L. J. in Cooke v. New River Co., 38 Ch.D. 56, 70-71: `* * * like my Brothers who sit with me, I am extremely reluctant to decide anything except what is necessary for the special case, because I believe by long experience that judgment comes with far more weight and gravity when they come upon points which the Judges are bound to decide, and I believe that obiter dicta, like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the Judges who have uttered them, and are a great source of embarrassment in future cases.' Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 399-400, 5 L. Ed. 257; Wright v. United States, 302 U.S. 583, 593-594, 58 S. Ct. 395, 399, 82 L. Ed. 439."34

In order that the decision of the Supreme Court in Jencks may be tested as to its force under stare decisis it is necessary to consider just what was there before the trial court and its ruling thereon. The Government's witness Matusow, a member of the Communist party in the employ of the Government, had testified that he had made a number of written and oral statements to the Government, and Jencks' attorney had sought in cross-examination to develop that those statements were inconsistent with testimony given at the trial as well as with testimony given by him before a Senate Committee. We set out in the margin a portion of what transpired to demonstrate what the Court below ruled upon, and therefore what was before the Supreme Court when it rendered the Jencks decision.35

The trial judge overruled both motions manifestly upon his conclusion that the requisite contradiction and inconsistency had not been shown. The entire battle-ground in the court below was based on this single point, and in the argument before the Court of Appeals for the Fifth Circuit the same position was maintained.

Under the authorities discussed supra, the Supreme Court had nothing before it but the question whether the trial court erred in denying the two motions based and argued solely on the predicate that a showing of inconsistency had been made; and upon their concession, based upon the law as then well established, that the statements must first be submitted to the court for its decision on relevance and materiality. The Supreme Court was without authority to go beyond the ruling of the trial court responding to the action it was importuned to take. Whatever branch of procedural jurisprudence should be held to control, the trial court was possessed of discretion to do what it did do, and the appellate court had jurisdiction only to determine whether that discretion was abused. There was testimony in the Jencks record from which the trial court could have found that the statements in the FBI files contradicted or were inconsistent with those made on the witness stand. The reversal of its ruling by the Supreme Court could, and must be considered as, founded upon the assumption that it felt that the trial court erred in exercising its discretion against Jencks' motion.

The decision in Jencks, within the limits of the points actually decided, is the law of that case. But it is not the law of this case — nor the "law of the land." Mr. Justice Jackson thus defined the character of the Supreme Court's function in the American System:36

"The Court also is dependent on the political branches or its powers in other vital respects. Its only irrevocable jurisdiction is original. * * * In all other cases it has appellate jurisdiction. * * * But perhaps the most significant and least comprehended limitation upon the judicial power is that this power extends only to cases and controversies. * * * The result of the limitation is that the Court's only power is to decide lawsuits between adversary litigants. * * * Also, as an appellate court, it properly can act only on the state of facts revealed by the record made in the court below, supplemented sometimes by general information of which it may take judicial notice. * * * And when it is all over, judicial decree, however broadly worded, actually binds, in most instances, only the parties to the case. As to others, it is merely a weather vane showing which way the judicial wind is blowing — a precedent that the Court in a similar case is likely to follow. Its real weight in subsequent cases, however, will depend on many factors, such as the quality of the prevailing opinion, the strength of any dissent, the acceptance or criticism by the profession, and the experience in application of the rule."37

The reliance of appellants on Jencks would have a firmer basis if the facts there were precisely the same as here. But clearly they are not. The Supreme Court points out that Matusow was working undercover for the Government while posing as an intimate friend of Jencks, and that he had testified for the prosecution in other cases. The Supreme Court indicates clearly that it felt that Jencks' conviction could not stand without his testimony. While, in the present case, the Government placed before the jury thirty-three witnesses and 1300 pages of testimony, and the guilt of these appellants was abundantly established without any reliance upon Adams' testimony.

Moreover, Matusow had, on a motion for a new trial, taken the stand in Jencks' behalf and attempted to imply that some of his testimony at the trial was false; and he had published a book under the title "False Witness"38 in which that implication was further developed. In this case, the record contains no evidence at all tending to show that any testimony of Adams relating to appellants was open to the slightest question.

It is further clear that, under stare decisis, Jencks would not stand alone, but would take its place alongside of Socony, Goldman, Palmer, Hickman, Bowman, Gordon (none of which have been overruled), and would be considered merely as one case in the general body of the law developed through the ages. Whatever undiscovered power the Supreme Court may have in a given case to by-pass the universally accepted rules of appellate procedure above quoted, we have no such power. We sit as an appellate court in judgment upon the rulings of the court below as contained in the record and as based upon the theory of right claimed by appellants and presented to that court. And we must follow the established principles above discussed and as exemplified by the Supreme Court decisions listed in this paragraph, expressing the best thought of the Justices, several of whom participated in Jencks, over a period of two decades during which the Civil and Criminal Rules were adopted. We are without power to grant appellants more than they requested of the court below, or to grant relief upon a different theory from that advanced in the court below and before us.39

In reaching these conclusions, we have given ear to the teachings of history and tradition, weighing the facts before us in the light of reason and common sense, in response to the duty resting upon us to do justice to the appellants while, at the same time, reaching a result which will tend to combat the widely expressed idea that the courts are manifesting judicial irresponsibility in their apparent efforts to "protect the big bad wolf from little Red Riding Hood."40 In deciding what is material and reasonable (Rule 16), or in delineating what is "in the light of reason and experience" (Rule 26, assuming that it applies) we cannot fail to take account of the state of the age-old struggle between organized government and organized crime. The fair inference from this record is that the Government has at great expense turned up and convicted, by overwhelming evidence, some of the leaders of the narcotic traffic which is taking such grievous toll of the health and morals of the people particularly the youth of this land. In a recent message to the legislature, the Governor of New York stated: "The number of addicts has continued to grow. Narcotic arrests in New York City alone have risen 600 percent in the past decade; arrests of persons under twenty-one have increased 2300 percent."41

These appellants are entitled to all constitutional safeguards — and they do not contend that any were denied them — and to a fair trial. That they have had. The error they complain of is one relating to procedure alone. Appellants, arguing under the facts of this case for reversal, are more "concerned with the mere etiquette of trials and with the formalities and minutiae of procedure" than with the substantial merits.42 Such matters are, under our system, entrusted to the trial court, and on appeal, its judgment should be approved unless we can say that there is a "clear showing of prejudicial abuse of discretion * * *." Michelson v. United States, 335 U.S. 469, 480, 69 S. Ct. 213, 221, 93 L. Ed. 168. To do this here we would be compelled to hold that as a matter of law appellants were wrongfully denied access to the Adams statement and that as a matter of law they were prejudiced by failure to produce it. It is our view that the court below did not abuse its discretion.43

Moreover, it is clear that appellants were not prejudiced by the challenged ruling of the trial court. We repeat what the Supreme Court said in the recent case of Lutwak v. United States, 344 U.S. 604, 619-620, 73 S. Ct. 481, 490, 97 L. Ed. 593:

"In view of the fact that this record fairly shrieks the guilt of the parties, we cannot conceive how this one admission could have possibly influenced this jury to reach an improper verdict. A defendant is entitled to a fair trial but not a perfect one. This is a proper case for the application of Rule 52(a) of the Federal Rules of Criminal Procedure.44 We hold that the error was harmless."

Affirmed.

RIVES, Circuit Judge (dissenting).

With deference, I adhere to the views expressed in my dissenting opinion in Giordenello v. United States, 5 Cir., 1957, 241 F.2d 575, and for the reasons there stated would hold that the evidence obtained by the search of Giordenello was not admissible against him.

I think also that the present decision conflicts with the decision of the Supreme Court in Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103. Robert C. Adams, a coconspirator not indicted, testified to various unlawful dealings with Giordenello and Kolm, and that Kolm described Benny Indiviglio as an Italian in New York City through whom he secured heroin from overseas, and told him that Benny had a common law wife by the name of Rose, inferably Rose Diaz alias Rose Diviglio. If believed by the jury, Adams' testimony was most damaging to each of the four appellants. Adams had signed a written statement covering all of his transactions relating to these appellants and had given it to Narcotics Agent Finley. Adams' statement was certainly in the possession of the United States, and probably under the control of the United States Attorney. The district court declined to permit the attorneys for appellants to inspect it for the purpose of cross-examining Adams. That ruling of the district court was, of course, prior to the decision by the United States Supreme Court of Jencks v. United States, 353 U.S. 657, 665, et seq., 77 S. Ct. 1007, 1 L. Ed. 2d 1103. That decision, I think, should require a reversal of these judgments of conviction. I therefore respectfully dissent.

PER CURIAM.

Upon considering the petitions for rehearing filed on behalf of the appellants and the motion by appellant Veto Giordenello for hearing of his petition en banc, it is ordered that said petitions and said motion be and they are hereby denied.

RIVES, Circuit Judge, dissenting.