UNITED STATES of America, Petitioner, v. Honorable Fred M. WINNER, United States Chief District Judge for the District of Colorado, Respondent, Edward Alexander, Real Party in Interest, 666 F.2d 447

LOGAN, Circuit Judge. The United States petitions for a writ of mandamus setting aside Judge Winner’s order granting criminal defendant Edward Alexander a new trial. Since the government may not directly appeal the trial judge’s order for a new trial, it seeks redress by way of a petition for a writ of mandamus. Following a jury conviction for violation of 18 U.S.C. §§ 2, 1014, and 2314, Alexander filed posttrial motions to arrest judgment and to grant judgment of acquittal.

From the government’s response to these motions, he learned that the government had failed to produce a grand jury transcript to which he was entitled under the Jencks Act, 18 U.S.C. § 3500(b). Alexander then filed an amended motion for new trial, alleging that the government violated the Jencks Act by not giving him the grand jury transcripts of all of Agent Thomas Rardin’s testimony. The omitted testimony allegedly conflicted with other grand jury testimony of Rardin which defendant’s counsel had received.

The amended motion also argued that the government failed to prove substantive elements of the crime, the verdict was against the weight of the evidence, and the jury improperly disregarded the court’s instructions. At a hearing on the motion, Alexander’s counsel argued only the Jencks Act omission and the insufficiency of the evidence. The trial judge granted the motion for new trial. He emphasized the government’s absolute duty to turn over Jencks Act and Brady materials, and stated that in the event of an omission, the court presumes the defendant was prejudiced.

The government concedes the omission, but contends that it was harmless error and that the district judge failed to apply a harmless error test. Defendant’s counsel argued that courts should refrain from speculating that the defense could not have effectively utilized a statement the government should have produced, see Clancy v. United States, 365 U.S. 312, 316, 81 S.Ct. 645, 648, 5 L.Ed.2d 574 (1961), but he correctly acknowledged that courts apply the harmless error standard. See Goldberg v. United States, 425 U.S. 94, 111 n.21, 96 S.Ct. 1338, 1348 n.21, 47 L.Ed.2d 603 (1976); Killian v.

United States, 368 U.S. 231, 243-44, 82 S.Ct. 302, 309-310, 7 L.Ed.2d 256 (1961); Rosenberg v. United States, 360 U.S. 367, 370-71, 79 S.Ct. 1231, 1233-1234, 3 L.Ed.2d 1304 (1959). In this Court defense counsel maintains that the trial judge implicitly found that the omission prejudiced Alexander and was not harmless error. A fair reading of the judge’s comments in their overall context indicates the judge did not grant a new trial because of a belief that any Jencks Act omission requires it.

At the hearing on the motion for new trial, government counsel argued that nothing in the undisclosed transcript could have aided Alexander in his defense. The colloquy indicating the judge’s view was as follows: “MISS ROBERTS: But it was abundantly clear from a reading of those transcripts and from knowing the testimony in these cases that there was absolutely nothing in that transcript that could have been of any use to the defendant. THE COURT: I don’t know. MISS ROBERTS: And even Mr. Near-en— THE COURT: There’s possible impeachment.

I can see that argument in this case against this particular defendant viewed in the light most favorable to the government was the weakest case you had. You don’t know what would have tipped the scale in the mind of some juror. I don’t know. This was a very, very, very close case. I agonized over the Motion for Judgment of Acquittal, and you don’t know what some juror might have done had there been just minimal impeachment of Mr. Rardin. MISS ROBERTS: Your Honor, there is nothing that Mr.

Nearen has stated in his motion and his memorandum that shows any grounds for anything that could be considered impeachment as to his client. He even states in his memorandum on this point the inconsistency between the two statements is clearly exculpatory as regards the defendant Robohm, and the failure to provide the testimony undoubtedly affected his ability to cross-examine. He doesn’t represent Mr. Robohm. THE COURT: I know he doesn’t. But, Miss Roberts, you’ve never represented a defendant in your life. You don’t know how defense counsel can use that. It may not exculpate Mr.

Alexander and it may just help Mr. Robohm, but it may in the mind of a juror weaken Mr. Rardin’s testimony.” In his oral ruling granting the motion for a new trial, the judge stated: “THE COURT: All right. The motion of the defendant Alexander for a new trial is granted. Fortunately, this does not mean a retrial of the long involved case involving Mr. Krown and Mr. Feeney. 18 U.S.C.,

Section 3500 says that the United States shall produce any statement of the witness. The United States didn’t do it. That’s it. I don’t think it was in bad faith. I think it was unfortunate. The trouble with this whole case has been — one trouble — we’ve had different prosecutors on different defendants and now we have got somebody arguing the Motion for a New Trial who didn’t try the case because the person who did try it is on vacation.

But this case was a very, very, very nip and tuck case and I don’t know what a jury might have done had there been any additional evidence.” In the formal order denying the government’s motion for reconsideration, the judge stated: “I ordered a new trial in this case. I did so because I think that the evidence in the case against this defendant is weak; that the slightest change in the testimony might change the result and that the interests of justice require a new trial. The government failed to comply with Brady, but that is not the only error on the part of the prosecution.

I just don’t think that the defendant received a fair trial taking into account all of the surrounding facts and circumstances, including the many problems which have developed in the companion cases in which James Feeney and Kevin Krown are charged. Evidence vital to defendants has been held back, and the government must accept the consequences of its conscious decision to keep facts secret.” Order of July 27, 1981. Thus, the judge rejected the government’s suggestion that the defense could not have used to its benefit the undisclosed transcript.

Notwithstanding the trial judge’s remarks that a showing of prejudice was unimportant, the judge’s emphasis on the closeness of the case suggests he considered whether the defendant had been prejudiced by the omission. If the trial judge had thought that a Jencks Act omission, without regard to its prejudicial effect, required granting a new trial, he would have had no reason to comment on the weakness of the government’s case and the possible use defendant’s counsel could have made of the witness’s inconsistent statements. Therefore we conclude that the trial judge applied the harmless error standard.

As the judge observed, while the omitted testimony may not have been directly exculpatory, the defendant could have used it to impeach the witness. Therefore, we cannot say that in this case, characterized as “very close,” the omission was harmless error. The Supreme Court has noted that we should be extraordinarily reluctant to grant mandamus in a criminal case when a new trial has been ordered: “This is not to say that mandamus may never be used to review procedural orders in criminal cases.

It has been invoked successfully where the action of the trial court totally deprived the Government of its right to initiate a prosecution, Ex parte United States, 287 U.S. 241 [53 S.Ct. 129, 77 L.Ed. 283] (1932), and where the court overreached its judicial power to deny the Government the rightful fruits of a valid conviction, Ex parte United States, 242 U.S. 27 [37 S.Ct. 72, 61 L.Ed. 129] (1916). But this Court has never approved the use of the writ to review an interlocutory procedural order in a criminal case which did not have the effect of a dismissal.” Will v.

United States, 389 U.S. 90, 97-98, 88 S.Ct. 269, 274-275, 19 L.Ed.2d 305 (1967) (emphasis added). Accord, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190-191, 66 L.Ed.2d 193, 197 (1980) (“A trial court’s ordering a new trial rarely, if ever, will justify the issuance of a writ of mandamus.”) To restrict the use of the writ to extraordinary circumstances, the Supreme Court has required that the party seeking issuance have no other means to attain the desired relief, and that the petitioner establish a “clear and indisputable” right to issuance of the writ. Id.

The government has failed to demonstrate a “clear and indisputable” right to issuance of the writ of mandamus. The petition is hereby denied. . The jury found Alexander guilty of transporting worthless cashier’s checks in interstate commerce, and presenting or causing another to present them to a federally insured bank. . The Jencks Act, 18 U.S.C. § 3500(b), generally requires that after a government witness has testified, upon defendant’s motion the government must disclose to the defendant any prior statement of a government witness relating to the subject matter of his or her testimony.

These statements include a witness’s testimony before a grand jury. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963), the Supreme Court held that suppression of evidence “favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” . Denying a defendant’s motion for judgment of acquittal does not preclude a trial court from weighing the evidence to determine prejudice.

After denial of defendant’s motion and return of a jury verdict, the trial court may consider again the sufficiency of the evidence if the defendant renews the motion for judgment of acquittal within seven days after the jury is discharged. Fed.R.Crim.P. 29(c).