Opinion
No. 7612.
May 19, 1958.
Hayden C. Covington, Brooklyn, N.Y., for appellant.
Leon H.A. Pierson, U.S. Atty., and William J. Evans, Asst. U.S. Atty., Baltimore, Md, for appellee.
Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.
Manke's appeal from a conviction for violating the Selective Service Act, 50 U.S.C.A.Appendix, § 451 et seq., is set for hearing in this court on June 2. This is a motion by the appellant to open sealed documents and to make them available to his counsel before the hearing of the appeal. The documents are F.B.I. reports, subpoenaed but excluded from evidence at the appellant's trial.
The appellant's attorney desires inspection of the documents in advance of the hearing of the appeal, insisting that this is necessary to enable him to comment, and that a full and fair hearing is impossible in the absence of such inspection in advance. The Government argued below and, in response to the motion, argues in this court, that the documents are not admissible or subject to subpoena or inspection, and that to grant the motion in advance of the hearing of the appeal would be to decide in favor of the appellant a major question presented in the appeal before the court has had an opportunity fully to consider the case.
Without prejudging the question raised, and balancing the respective arguments, the Court will deny the motion at this time with leave to the appellant, however, to renew his motion at the hearing of the appeal. If it should later be determined that appellant is entitled to inspect the documents and that he should have a further opportunity to comment thereon, such appropriate order will be made as justice may seem to require.
Motion denied.