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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 95-20619
___________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
FRANCISCO ROBERTO MARTINEZ;
MICHAEL HAMAKER; WILLIAM GLENN
MITCHELL,
Defendants-Appellees.
_____________________________________________
Appeal from the United States District Court for the
Southern District of Texas
_____________________________________________
June 28, 1996
BEFORE GARWOOD, DAVIS and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendants-appellees (defendants) were indicted----together with
numerous other individuals----for various narcotics and racketeering
offenses. The district court entered a pretrial order excluding
the testimony of an important government witness on the basis that
the government refused to comply with a court order to produce
specified material under the Jencks Act, 18 U.S.C. § 3500. The
government appeals this order excluding testimony, and the district
court stayed the defendants' trials pending resolution of the

appeal.
Facts and Proceedings Below
On May 30, 1990, the instant 91-count indictment was returned
against 31 defendants alleging various narcotics and racketeering
offenses. The period covered by the indictment spanned from 1973
to the date of the indictment. Since the indictment was returned,
most of the defendants have pleaded guilty.
On December 1, 1994, defendant Mitchell filed a motion
requesting that the government turn over all Jencks Act material
thirty days prior to trial because of the complex nature of the
case. On March 15, 1995, a pretrial hearing was held on Mitchell's
motion for early disclosure of Jencks Act material. The
government, represented by Assistant United States Attorney (AUSA)
Lewis (Lewis), stated that it would turn over the appropriate
Jencks Act material ten days prior to trial, but asserted its
position that the Jencks Act did not require the disclosure of the
debriefing reports of government witnesses as the particular
reports in question did not constitute the witnesses' "statements"
under the Jencks Act. The district court disagreed and ordered
such debriefing reports produced:
"We've been through that. If the agent's report says the
witness said, or Charlie told me, or the CI disclosed, or
any of those things, that is the witness's statements.
And the government argues that, well, it's not signed or
adopted by the witness. It is relied on by the
government, either you produce those reports or you go
take his statement, have him sign it, and give it to Mr.
Mitchell, one or the other."
The government filed a motion to reconsider and vacate,
objecting to the court's order in that it required the government
2

to turn over agents' reports that were not covered by the Jencks
Act.
The court held a hearing on the government's motion on July
19, 1995. AUSA Lewis advised the court that the Jencks Act issue
had been narrowed to the debriefing report completed by Texas
Department of Public Safety Lieutenant Enrique Espinoza (Espinoza)
of government witness Aurelio Aleman (Aleman).1 Lewis also
represented to the court that striking Aleman's testimony could
result in a not guilty verdict since Aleman's testimony was
important to the government's case.
The court observed that "What I think is wrong is when the
officers prepare materials that would be covered by Jencks Act in
a different form for the very purpose of not having to disclose
it." AUSA Lewis responded that that was not "the way debriefings
occur," and that in a case such as this involving criminal activity
over a long period
"The debriefings as such go on for hours and sometimes
days and can cover two or three weeks or months of time
sporadically just trying to piece together what the
witness has to say. The agents make rough notes, blurbs,
phrases, catches of a sentence . . . . Later then, many
of the debriefing reports say the witness was spoken to
on such-and-such, then the report will show it was
prepared days, weeks, or months later and then signed
even later. So, by the time you get a final typed
report, it's not anything like a transcript of what's
going on here today."
1 The debriefing report concerning government witness James
Curtis had been turned over to the defense, and was therefore not
at issue. Additionally, Lewis focused on the Jencks Act issue as
it applied to defendant Mitchell's trial, since the other named
defendants were considering possible motions for severance of their
respective trials, as well as the possibility of entering guilty
pleas.
3

The court then expressed the view that "the larger problem is
that the United States is preparing its cases relying on witnesses,
not taking statements from them . . . you want to use the
debriefing report the very way you would use a Jencks Act; that is,
to impeach him." AUSA Lewis replied: "Not quite. I want to use
the agent to whom the witness made the statement." Lewis went on
to indicate that the report might be used to refresh recollection.
The court then expressed the view that:
"If his representations to the Government about what
happened are incorporated into a document other than a
witness statement and the Government has relied on them
just as they would have a witness statement, then I think
it's covered by Jencks Act because they would simply not
take statements and rely on these other reports and use
those as they would a witness statement."
The court determined that it would review Espinoza's report of the
debriefing of Aleman to determine whether the report constituted
Jencks Act material. Accordingly, the government submitted
Espinoza's twelve-page, typed report of Aleman's debriefing to the
court under seal for in camera review.2
On July 21, 1995, the government filed a pleading, to which
was attached an affidavit from Espinoza----describing the basis and
nature of his debriefing report, and representing that Aleman never
saw nor heard this report----and a list of documents that had already
been turned over under the Jencks Act pursuant to the government's
agreement to provide such materials ten days prior to trial.
2 A short, general overview of this report is included in the
government's brief, which was placed under seal; defendants
received a version of the government's brief in which this overview
of Espinoza's report had been redacted. We will return to the
content of this report.
4

Espinoza's affidavit states that he interviewed Aleman "over a
period of several days in November and December 1990"----his report
reflects the interviews took place November 30, December 1, and
December 3, 1990----and "[i]n January of 1991, I began preparing the
12 page typed report, which I signed in March of 1991"; the "report
was compiled from my rough notes of the interview and my memory of
the information provided by Aleman," was prepared "using my own
words" and "was not made contemporaneously with the interview"; and
"I did not ever read the 12 page report back to Aleman, nor did I
let him read it, nor did I let him review my rough notes, nor did
I read them back to him."
On July 28, 1995, the court issued the challenged order in
which it concluded that Espinoza's report constituted Aleman's
"statement" under the Jencks Act. In arriving at this decision,
the court acknowledged that Espinoza had "recorded [Aleman's]
statements in rough notes" and wrote the report "from his notes of
interviews of [] Aleman". However, the court also noted that the
interviews were conducted in "late 1990," and that the report was
dated January 2, 1991. The court also seemed to place great
emphasis on the fact that paragraphs two through fifty-four of the
report
constituted
"Espinoza's
recording[s]"
of
Aleman's
statements, and that thirty-eight of fifty-three paragraphs began
with the phrase, "Aleman stated . . ." The court concluded that
Aleman's statements were "simply recorded" in the sequence Aleman
gave them, and that the report did not include any reflections,
conclusions, theories, or impressions attributable to Espinoza.
5

The court also observed that Aleman "was interviewed by at least
two agents at all times"3 and wondered "how does it happen that .
. . the one who `reports' the interview is the one the government
chooses not to call." The court ordered that Aleman would not be
allowed to testify at trial because the government had refused to
follow the court's order and comply with the Jencks Act by
delivering a copy of Espinoza's report to the defense.
The government now appeals the district court's order.
Discussion
This Court reviews for clear error a district court's finding
that an agent's interview report is a witness "statement" within
the meaning of the Jencks Act. See United States v. Judon, 581
F.2d 553, 554 (5th Cir. 1978). "The trial court's finding will
constitute clear error where such finding either rests upon an
incorrect rule of law or is inconsistent with the facts upon which
it purports to rest." United States v. Welch, 810 F.2d 485, 490
(5th Cir.), cert. denied, 108 S.Ct. 350 (1987).
In criminal cases prosecuted by the United States:
"After a witness called by the United States has
testified on direct examination,4 the court shall, on
motion of the defendant, order the United States to
produce any statement (as hereinafter defined) of the
witness in the possession of the United States which
3 That two agents were present on each of the three interview
days appears from the report itself; the record discloses no other
source for this statement.
4 As Lewis agreed to turn over materials covered by the Jencks
Act ten days prior to trial, the government does not challenge on
appeal that portion of the court's order requiring that Jencks
materials be provided to the defense earlier than required under
the Act.
6

relates to the subject matter as to which the witness has
testified . . ." 18 U.S.C. § 3500(b).
A "statement" is defined under the Jencks Act, 18 U.S.C. §
3500(e), as:
"(1) A written statement made by said witness and signed
or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical or other
recording, or a transcription thereof, which is a
substantially verbatim recital of an oral statement made
by said witness and recorded contemporaneously with the
making of such oral statement; or
(3) a statement however taken or recorded or a
transcription thereof, if any, made by said witness to a
grand jury." (Emphasis added).
Neither the district court nor any of the defendants has taken
the position that the report falls within either (1) or (3) above,
and it obviously does not. That leaves only (2) above.
After examining in camera Espinoza's debriefing report (the
report), the district court held that "the document's nature as
purely the statement of the witness [Aleman] is obvious." In its
description of the report, the district court observed the
following:
"The document was prepared by agent Espinoza from his
notes of interviews of Aurelia Aleman . . . Espinoza
recorded the witness's statements in rough notes (as they
are called in the police trade). After he transmuted his
notes into the report, he destroyed the notes.
Parenthetically, the notes might have been a statement
themselves, which means that they should not have been
destroyed. The interviews were held on three days in
late 1990, and the document is dated January 2, 1991.
. . .Paragraphs two through 54 are Espinoza's recording
of Aleman's statements to him. Of 53 paragraphs, 38
begin `Aleman stated . . .' Nine others begin saying
that Aleman `described,' `advised,' or `recalls.' Five
paragraphs start by saying Aleman `met,' `delivered,'
`arrived,' or similar things. When a paragraph has more
7

than one sentence, the other sentences begin in the same
fashion.
No part of the document records an agents [sic]
analysis, synthesis, interpretation, coordination,
evaluation, or even reorganization. Nothing in the
document is agent derived. Aleman's statements are
simply recorded in the sequence he said them. On the
third day, Aleman amended an earlier statement in the
interviews. The agent simply recorded the amendment at
the point in the sequence that Aleman spoke. There was
no arrangement by the agent, like inserting the new
material back with the old.
No part of the report includes the agent's
reflection on the information he had received from the
witness. He drew no conclusion, revealed no theory,
recorded no impression. The agent was a surrogate
stenographer."

In determining that Espinoza's debriefing report constituted
a "statement" under 18 U.S.C. § 3500(e)(2), the district court
implicitly concluded that the report was both (1) a "substantially
verbatim recital" of the narrative given by Aleman during the
several days of debriefing, and (2) "recorded contemporaneously
with the making of such oral statement." Beginning with the
requirement of contemporaneity, the report reflects that the
debriefing episodes took place on November 30, 1990, December 1,
1990, and December 3, 1990. Espinoza did not begin to prepare the
report until January 1991. In light of this four-week interval
between Aleman's debriefing and Espinoza's beginning to prepare the
report, we hold that the district court clearly erred in
(implicitly)
finding
that
the
report
was
"recorded
contemporaneously with" Aleman's debriefing.
Turning to the requirement of section 3500(e)(2) that
Espinoza's report must constitute a "substantially verbatim
8

recital" of Aleman's "oral statements" made at the debriefing, we
find no support for the district court's conclusion that this
requirement was satisfied in the instant case. We note that the
word "verbatim" has been defined as follows: (1) "[R]eproduced
from or repeating an original source word for word: following the
original exactly", Webster's Third New International Dictionary
2542 (1981); (2) "in exactly the same words' word for word", Random
House College Dictionary 1461 (revised ed. 1982). Of course, to be
a section 3500(e)(2) statement, it is not required that the recital
be perfectly or exactly "verbatim," but it must be "substantially
verbatim." Further, the ejusdem generis maxim restrains any broad
interpretation of "other recording" as used in section 3500(e)(2)
and correspondingly counsels against a loose or expansive reading
of "substantially verbatim," as does also the section's "recorded
contemporaneously" requirement.
In United States v. Judon, 581 F.2d 553 (5th Cir. 1978), this
Court addressed the meaning of the word "statement" as employed in
the Jencks Act. We noted that, "[I]nterview reports which contain
the interpretations or impressions of agents or `which were
prepared after the interview without the aid of complete notes, and
hence rest on the memory of the agent'" did not constitute
"statements" within the meaning of the Act. Id. at 555 (citations
omitted; emphasis added). This Court further observed that
"statements" must be "essentially transcriptions of [] interview
notes." Id. (emphasis added).
In Judon, an FBI agent interviewed a witness concerning the
9

details of a bank robbery and took notes during this interview.
The agent testified that he did not attempt to write down the
witness's statements verbatim, and further testified that he wrote
"principally key words and phrases and things of this nature
relating to the narrative" given by the witness. Id. at 554.
Approximately one week later, the agent prepared a report based on
"[his] notes and [his] memory and recall." Id. A second agent
involved in Judon also interviewed another witness concerning the
bank robbery. This agent made notes of the "highlights of that
interview and more of a succinct summary or more or less the gist
of the interview." Id. (citation omitted). Two days later, this
second agent prepared a report based on "the notes and his
recollection of the interview." Id. Based on the foregoing, the
trial court in Judon concluded that "the agents did more than
simply translate their interview notes into typewritten form." Id.
at 555.5
5 It appears that the agents' interview notes in Judon were
destroyed before the trial court had an opportunity to order their
production under the Jencks Act. See 581 F.2d at 555 n.1. It is
unclear, however, whether or not the district court was able to
examine these interview notes prior to their destruction. This
Court observed in United States v. Judon, 567 F.2d 1289, 1291 (5th
Cir. 1978), that the agents' reports were reviewed by the district
court in camera and subsequently sent to this Court under seal in
conjunction with Judon's appeal. There is no mention, however, of
the district court's conducting a similar examination of the
agents' interview notes. Nevertheless, this Court recognized that
the agents' reports in Judon were "not essentially transcriptions
of the interview notes." 581 F.2d at 555 n.1. Therefore, this
Court upheld the district court's conclusion that the agents'
reports were not transcriptions of the interview notes, not based
on a comparison of the interview notes and the reports, but based
instead on the agents' testimony concerning their reports and an
examination of the reports themselves.
Finally, in light of our conclusion in Judon that the reports
10

In finding this conclusion by the trial court in Judon to be
reasonable, this Court relied on the following "facts presented":
(1) the notes taken by one of the agents constituted a "one
handwritten page summary of the highlights of his interview"; (2)
the other agent's notes contained "key words and phrases" from his
interview and likewise comprised one handwritten page; (3) the
reports subsequently prepared by both agents were "far more
detailed than the notes"----one agent's report was one and one-half
(single-spaced and typed) pages long, and the other agent's totaled
three (single-spaced, typed) pages; and (4) both reports contained
the witness's account in narrative form. 581 F.2d at 555.
Additionally, this Court noted that both agents had testified that
they used their interview notes to "jog their memory" and "on this
basis prepared the [reports at issue]." Id. Finally, one of the
agents testified that, at the time he was preparing his report, his
memory was incomplete. Id.
In the present case, the posture of this appeal dictates that
an affidavit must serve to illuminate the circumstances surrounding
Espinoza's preparation of the debriefing report in question.
Espinoza's July 21, 1995, affidavit was furnished to the district
were not "essentially transcriptions of the interview notes," we
observed that it was "unnecessary to determine whether the
interview notes which were destroyed constitute[d] (e)(2)
statements." Id. In the present case, the district court's order
states in passing that Espinoza "destroyed" his "notes" after he
wrote his report. We can find no support in the record for this
statement, and the government informed us at oral argument that it
had copies of the notes. However, we need not pursue this further,
as in the court below no issue was made concerning the notes, and
none of the parties has raised any such issue on appeal.
11

court. In this affidavit, Espinoza asserted that he "began
preparing" his twelve page debriefing report in January of 1991
(emphasis added). Next, Espinoza stated that his report "was
compiled from [his] rough notes of the interview and [his] memory
of the information provided by Aleman." Espinoza also asserted
that, from Aleman's narrative accounts----which "jump[ed] from subject
to subject in the same flow of conversation"----Espinoza "re-assembled
the pieces, relying on [his] notes, and [his] memory and using
[his] own words." Espinoza further stated that, "I frequently used
the words `Aleman stated . . .' as a way of indicating the source
of the information provided. The use of such words does not mean
or imply that what follows was a direct quote or a substantially
verbatim account of what was said." And, Espinoza explained that,
in the instances where he quoted Aleman directly, he indicated this
by using quotation marks.6 Finally, Espinoza averred that, "While
my report is an accurate summary of the information provided, it is
not a verbatim account, or even close to one."7
6 The report contains only about ten words----appearing in some
seven different sentences----in quotation marks, five of these are
informal first names of people and two are quantity statements.
7 This affidavit, together with Espinoza's report, constituted
the only evidence before the district court bearing on the issue of
whether or not Espinoza's report was a "substantially verbatim
recital" of Aleman's "oral statement[s]" during the debriefing. As
this Court noted in United States v. Edwards, 702 F.2d 529, 531
(5th Cir. 1983), "The duty is on the defense to initiate the proper
inquiry into the right to claim production of a statement under the
Jencks Act." See United States v. Thomas, 12 F.3d 1350, 1364 (5th
Cir.), cert. denied, 114 S.Ct. 1861 (1994)("there is no evidence
that any portion of the notes was a substantially verbatim
transcription of the witness's statements. Thus, the notes are not
discoverable under the Jencks Act . . . ."); see also United States
v. Newton, 891 F.2d 944, 954 (1st Cir. 1989)(the intent of the
12

With regard to the propriety of considering Espinoza's
affidavit in resolving this inquiry under the Jencks Act, we have
recognized that "the [district] court may need to hear extrinsic
testimony to determine whether the notes are verbatim statements."
United States v. Hogan, 763 F.2d 697, 704 (5th Cir.), unrelated
portion of opinion withdrawn in United States v. Hogan, 771 F.2d 82
(5th Cir. 1985). In Judon, this Court considered the testimony of
both agents in determining that the agents' reports were not
"substantially verbatim" transcriptions. 581 F.2d at 555; see also
Campbell v. United States, 81 S.Ct. 421, 427 (1961)( "[The Jencks
Act] implies the duty in the trial judge affirmatively to
administer the statute in such a way as can best secure relevant
and available evidence necessary to decide the directly opposed
interests protected by the statute----the interest of the Government
in safeguarding government papers from disclosure, and the interest
of the accused in having the Government produce `statements' which
the statute requires to be produced") (emphasis added).8
The district court concluded that Espinoza's report
constituted a "substantially verbatim recital" of Aleman's
Jencks Act is to require production of "`the witness' own words .
. . fully and without distortion'"; therefore, where "there was no
testimony that the agent was recording the exact words of the
witness", production of such agent's notes under the Jencks Act was
properly denied).
8 In Campbell, the Supreme Court noted that where the agent who
authored the "interview report" at the center of a Jencks Act
inquiry was available to testify regarding whether "[the report]
was a contemporaneously recorded substantially verbatim recital of
[a witness'] oral statement", then "[t]he circumstances of this
case clearly required that the judge call [this agent] of his own
motion or require the Government to produce him." Id. at 426-427.
13

debriefing testimony based solely on its examination of the report
and Espinoza's affidavit. After reviewing this report and
affidavit, we find no support for the district court's conclusion.
We turn first to the district court's observation that, "Of 53
paragraphs [constituting the report], 38 begin `Aleman stated . .
.' Nine others begin saying that Aleman `described,' `advised,' or
`recalls.'" The district court viewed this as evidence that what
followed in each instance was a verbatim transcription of Aleman's
statements to Espinoza. It is equally plausible that Espinoza
intended only to clarify the source of this information. The value
of such clarification is demonstrated by the ambiguity surrounding
a statement in paragraph eight of the report which is prefaced, "It
is believed . . ."; it is uncertain in this instance whether
Espinoza's information came from Aleman or from another source.
Moreover, the concise, carefully-drafted paragraphs in this
report----stripped to only the most directly relevant information----
convey such an abundance of detailed information (names, dates,
locations, amounts, distances, etc. . .) that it is difficult to
conceive of anyone orally communicating in such a manner.
Additionally, the structure of several of these paragraphs, while
visually accommodating, undercuts the argument that Espinoza was
transcribing Aleman's narrative in a "substantially verbatim"
manner.9
9 For example, paragraph thirty-eight, redacted in recognition
that the report is under seal, reads as follows:
"38) ALEMAN stated that ALEMAN transported to the
[specified location for a particular person] the
14

Also, it is evident that the discreet capsules of information
that are segregated paragraph-by-paragraph in Espinoza's report
have been stripped of the conversational context which almost
inevitably accompanies the movement in speech from one thought,
incident, or topic to another. It is not until paragraph twenty-
one of the report that Aleman is credited with the correction of a
mistake in his testimony. In paragraph twenty-one, Espinoza
documents that Aleman overlooked a load of marihuana in his
preceding narrative: "On the second day of his (ALEMAN'S)
debriefing, ALEMAN remembered a load of marihuana that he (ALEMAN)
transported for [a specified person] that ALEMAN had forgotten
about." If the first twenty paragraphs of Espinoza's report are to
be viewed as a "substantially verbatim recital," then we are asked
to believe that Aleman spouted twenty discreet "capsules" of
information without misstatement, uncertainty, or revision until he
remembered, on the second day, that he had overlooked one load of
marihuana in his narrative to that point.10
following loads of marihuana:
1.
[date]-- approximately [specified amount] (load #[])
2.
[date]-- approximately [specified amount] (load #[])
3.
[date]-- approximately [specified amount] (load #[])
4.
[date]-- approximately [specified amount] (load #[])
5.
[date](after Thanksgiving) -- approximately
[specified amount] )load #[])"
10 Even if we make the entirely farfetched assumption that
Espinoza did not filter the information provided by Aleman in order
15

Finally, the language used in the report suggests that
Espinoza opted to put the information he obtained from Aleman into
his own----Espinoza's----words. For example, in paragraph ten, the
report states that "ALEMAN remembers that a [particular object was
located] in the curtilage of this house." One might reasonably
suspect that Aleman did not use the term "curtilage," as that term
would likely be foreign to someone lacking a legal or law
enforcement background. There is no indication that Aleman had
such a background. Moreover, the entire report is couched in
terminology that is usually reserved to legal documents
(particularly in a criminal law context) or at least to someone
accustomed to communicating in such terms. Paragraph fifteen
begins, "ALEMAN stated that approximately in [specified dates],
ALEMAN transported approximately one load of marijuana per month of
approximately [amount] pounds each (loads #x, #y and #z) for [a
particular person] . . . ." Lastly, paragraph twenty-seven
to present the litany of discreet and concise paragraphs that
comprise his report, it is wholly unrealistic to pretend that
Espinoza did not omit the contextual "glue" (transitions between
topics and incidents, etc . . .) that is conspicuously absent from
this report. Even if we make the unlikely assumption that
Espinoza's editing was limited to culling out this "glue," even
such editing must call into question the district court's
observation that, "No part of the document records an agents [sic]
analysis, synthesis, interpretation, coordination, evaluation, or
even reorganization. Nothing in the document is agent derived."
Any editing on the agent's part must raise as a serious issue in
this (Jencks Act) context the applicability of the tenet that
statements that contain an agent's interpretations or impressions
are not producible. See Goldberg v. United States, 96 S.Ct. 1338,
1349 n.2 (1976); United States v. Judon, 581 F.2d 553, 554-555 (5th
Cir. 1978)(unfair to require production of statements that could be
said to be the product of the investigator's "selections,
interpretations, and interpolations")(citations omitted).
16

provides a strong indication that Espinoza was using his own
words----and incorporating his own impressions----in the report:
"Aleman described a typical unloading at the . . . ." (Emphasis
added). Therefore, we hold that the district court clearly erred
in its determination that the language of Espinoza's report
supported a finding that this report constituted a "substantially
verbatim recital" of Aleman's oral statements during debriefing.
Moreover, there is nothing in the report----or elsewhere in the
record----which tends to contradict or cast doubt upon Espinoza's
affidavit, and that affidavit likewise shows that the report was
not a Jencks Act statement.
On a related topic, we observe that the district court
demonstrated in various pretrial discussions that it viewed the
government's reliance on the disputed (Jencks Act) materials as an
additional ground for ordering disclosure of such materials under
the Act. We find no support for this approach to 18 U.S.C. § 3500.
Of course, such reports are presumably written to be relied on by
law enforcement authorities for some purpose, but there is nothing
to indicate that this report was written to be relied on as a
"substantially verbatim" recital of Aleman's oral statements (or as
a document to be "adopted or approved" by Aleman) or that the
government ever so relied (or intended to rely) on it (indeed,
there is nothing to indicate any particular reliance at all by the
government on the report).
Lastly, it must be noted that our present decision in no way
impinges upon any of the rights or protections established in Brady
17

v. Maryland, 83 S.Ct. 1194 (1963), and its progeny or under the
general federal rules of evidence as applied in federal criminal
cases. The Supreme Court's decision in Brady, rendered subsequent
to its decision in Jencks v. United States, 77 S.Ct. 1007 (1957),
recognized the government's general obligation to provide evidence
that is both material and favorable to an accused. 83 S.Ct. at
1196-97. This includes evidence that would materially impeach a
prosecution witness. See United States v. Bagley, 105 S.Ct. 3375,
3380 (1985). Our present decision in no way touches on this
constitutional requirement. Had Espinoza's report contained
material information favorable to any of the defendants, then such
information would have to have been examined within the analytical
framework established pursuant to Brady and its progeny regardless
of whether or not this potentially exculpatory information
constituted a "substantially verbatim" statement under 18 U.S.C. §
3500(e)(2).11
In Jencks, exercising its supervisory power "to prescribe
procedures for the administration of justice in the federal
courts," the Supreme Court "decided that the defense in a federal
criminal prosecution was entitled, under certain circumstances, to
obtain, for impeachment purposes, statements which had been made to
11 Mitchell filed a motion for production of exculpatory
evidence on December 1, 1994; the government agreed to provide such
evidence, and the district court granted the motion on March 15,
1995, at a pretrial motions hearing. However, while the parties
agreed that a certain letter (written by Raymond Martinez)
contained a potentially exculpatory statement and would therefore
need to be produced, Espinoza's report was never specifically
mentioned in this context. So far as we can determine, nothing in
Espinoza's report could be construed as implicating Brady.
18

government agents by government witnesses." Palermo v. United
States, 79 S.Ct. 1217, 1221 (1959). Promptly following the
issuance of Jencks, Congress initiated and enacted the Jencks Act.
"One of the most important motive forces behind the
enactment of this legislation was the fear that an
expansive
reading
of
Jencks
would
compel
the
undiscriminating production of agent's summaries of
interviews regardless of their character or completeness
. . . it was felt to be grossly unfair to allow the
defense to use statements to impeach a witness which
could not fairly be said to be the witness' own rather
than the product of the investigator's selections,
interpretations, and interpolations." Id. at 1223.
Therefore, the Supreme Court emphasized in Palermo the statutory
requirement that "statements" under 18 U.S.C. § 3500(e)(2) must
constitute "a substantially verbatim recital of an oral statement
made by said witness to an agent . . . ." Id. at 1224.
"It is clear from the continuous congressional emphasis
on "substantially verbatim recital' . . . that the
legislation was designed to eliminate the danger of
distortion and misrepresentation inherent in a report
which merely selects portions, albeit accurately, from a
lengthy oral recital." Id. at 1224-25.
And, finally, in emphasizing this point, the Court observed that
"The statute governs the production of documents; it does not
purport to affect or modify the rules of evidence regarding
admissibility and use of statements once produced." Id. at 1225-
26. Our ruling today comports with Palermo. Further, we do not,
for example, address the circumstances under which opposing counsel
must be allowed to examine material that a witness for the other
side admits in his testimony he has used to refresh his
19

recollection respecting the subject matter of his testimony.12
We reverse the district court's order excluding the testimony
of Aleman and remand with instructions that the order be vacated.
REVERSED and REMANDED
12 As far as concerns introduction in evidence of the report
itself, this generally could only be done to impeach testimony of
Espinoza himself, not Aleman. If Espinoza were to testify in a
manner harmful to the defense and materially contrary to what he
personally represents in the report----or if Aleman were to testify
in a manner harmful to the defense but materially contrary to the
substance of what the report asserts is the story he told at the
debriefing----then the report or the said information in that part of
it could well be required to be furnished to the defense as Bagley
material.
20