(dissenting).
At the trial in the district court before Judge Robson, defendant was represented by his own counsel.
Defendant there pleaded the defense of entrapment by a federal narcotics agent, stating that he was induced to and did believe that he was then cooperating with the agent, but that before those events occurred he had visited his parole officer, Hernandez, and sought his advice as to what he should do.
As corroboration, he subpoenaed Hernandez to give testimony and produce records regarding his visits to Hernandez.
At the trial, Hernandez did testify that defendant “requested advice as to what to do” and his reply was as set forth in Judge Castle’s opinion, including Hernandez’ refusal to fully disclose the conversation with defendant because of the departmental memorandum from the attorney-general, in support of which government counsel cited the Code of Federal Regulations, Title 28 — Judicial Administration, ch. 1, § 16.1.
The district court sustained the government’s objection to disclosure of this conversation, and, after inspecting in camera the entire parole file of defendant, the district court also sustained the government’s objection to disclosure of the contents of the parole file.
This file has been also inspected in camera by me.
Defendant relies on United States v. Andolschek, 2 Cir., 142 F.2d 503 (1944). However, in Andolschek, the contents of the reports were not in the record and therefore the reviewing court was not in *868a position to determine to what extent their exclusion was prejudicial. On the other hand, in the case at bar, not only did the trial judge examine the entire parole file of defendant in camera, but as has been pointed out, it was likewise examined by me.
Furthermore, following the enactment of the Jencks Act, 18 U.S.C.A. § 3500, the Supreme Court in Palermo v. United States, 360 U.S. 343, 350, 79 S.Ct. 1217, 1223 (1959) said, in part:
“To be sure, the statute does not, in so many words, state that it is the exclusive, limiting means of compelling for cross-examination purposes the production of statements of a government witness to an agent of the Government. But some things too clearly evince a legislative enactment to call for a redundancy of utterance. 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. Not only was it strongly feared that disclosure of memoranda containing the investigative agent’s interpretations and impressions might reveal the inner workings of the investigative process and thereby injure the national interest, but 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. The committee reports of both Houses and the floor debates clearly manifest the intention to avoid these dangers by restricting production to those statements specifically defined in the bill. * * *»» (Emphasis supplied.)
and, at 354, 79 S.Ct. at 1225, the court added:
“* * -x- However, when it is doubtful whether the production of a particular statement is compelled by the statute, we approve the practice of having the Government submit the statement to the trial judge for an in camera determination. Indeed, any other procedure would be destructive of the statutory purpose. The statute governs the production of documents; it does not purport to affect or modify the rules of evidence regarding the ad-. missibility and use of statements once produced. * * * ”
While the defense called Hernandez as a witness and he was not a government witness, I believe that the reasoning in Palermo and the Jencks Act applied to the in camera inspection of the government file by the trial judge and, to the extent that it is applicable, to this court.
For these reasons, including the result of my inspection in camera of the entire parole file of defendant, I agree with the result reached by the district court. I would hold that the defense of entrapment was not proved and the district court did not err in denying defendant’s motion for a mistrial as to its in camera inspection of the file. Accordingly the judgment from which this appeal was taken should be affirmed.