APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. D.C. Criminal No. 73-483.
Seitz, Chief Judge, and Van Dusen and Gibbons, Circuit Judges.
VAN DUSEN, Circuit Judge.
This case is before the court on appeal from a November 27, 1973, judgment of conviction and probation sentence entered after a court finding that defendant was guilty of theft of government property on June 5, 1973, in violation of 18 U.S.C. § 641, as charged in count I of a three-count indictment.*fn1
One bail hearing was held before U.S. Magistrate Powers on June 6 and another bail hearing was held before U.S. Magistrate Naythons on June 13.*fn2
On June 29, 1973, the first indictment was returned by the grand jury and on August 28, 1973, defendant filed a Petition to Dismiss Indictment, alleging that a malfunction of the recording machinery prevented his counsel from securing a transcript of the June 6 and June 13 hearings and that no record had been made of the grand jury proceedings leading to the June 29 indictment. On August 31, 1973, a superseding indictment was returned after the first indictment had been dismissed. Count I of both indictments contained the same language. No recording had been made of the grand jury proceedings leading to the first indictment, but there was a recording of the government agent's or agents' testimony leading to the second indictment (N.T. 21 of Document 11 in Criminal No. 73-483, E.D. Pa.).*fn3
On September 10, 1973, an Amended Motion to Dismiss the Indictment (Document 8 in Criminal No. 73-483, E.D. Pa.) was filed.
After a hearing on September 12, 1973, the district court made the following ruling with these findings, inter alia, on the petitions to dismiss the indictment (N.T. 21-24 of Document 11):
"My ruling is that there has been no showing of prejudice by reason of the apparent absence of some of the testimony which may have been presented at a preliminary hearing.
"I express it in those words advisedly, because I think the record is, unfortunately, still rather fuzzy as to just what did happen. There is, for example, no evidence as to who testified. There is no evidence as to what was said or as to the extent which it might conceivably bear on the ability of the defendants to make an adequate defense of the case.
"Be that as it may, I find as a fact that the reason for the non-availability of the testimony is not due to the fault of either side and will point out that the rationale that underlies some of the cases which grant dismissals for somewhat similar reasons, although not certainly similar to this case, but the basic rationale is that the defendant should be in as good a position as the government, that the government should not have access to information which the defendant does not have.
"Now, to the extent that a government witness testified at the preliminary hearing, both sides were there and heard it. If it turned out that the government had access to a transcript and the defendant didn't, obviously that would be unfair and improper. But here neither side has access to a transcript of the statement. Each side has to rely on its own recollection of what was said, to the extent that that becomes relevant at trial, and I frankly doubt that it would be likely to have much bearing on the trial in any event.
"Now we go to the question of the grand jury testimony. The record establishes conclusively that the now pending indictment is a superseding indictment and that all testimony presented to the grand jury in support of the superseding indictment was, in fact, transcribed, and that a transcript of the testimony of each witness who testifies at trial will be available for cross examination purposes.
"It seems to me that obviously accords the defendants all of their rights.
"The argument is made that because there was an earlier indictment at which the testimony was not transcribed that that somehow alters the situation. I would point out in passing that the only evidence before me is as to what the practice of the United States Attorney's office has been ...