c29:No. 76-2157

McCREE, Circuit Judge
(dissenting).
I respectfully dissent. I disagree with that part of the majority opinion that suggests that statements of law enforcement agents who testify at trial are not subject to the provisions of the Jencks Act. The Act permits a defendant to inspect the authenticated or adopted statement of any government witness' who has testified. A witness’ statement is ordinarily an account of relevant information known to the witness and communicated to government agents during the course of their investigation. However, law enforcement agents themselves also often acquire information about offenses and they are often called to testify about their knowledge. Their information is not always recorded in the same form as is that furnished by other witnesses. The agents instead may include their information in investigative reports that also include much evaluation and discussion of prosecution strategy. Nevertheless, a defendant is entitled under the Jencks Act to any part of an investigative report that is a statement of an agent’s knowledge of facts, which if recounted by any other witness and recorded by the agent would be available to the defendant under the Jencks Act.
Such statements, like the statements of other witnesses, should be ordered produced if they relate to the subject matter of the agent’s testimony. See United States v. Johnson, 521 F.2d 1318 (9th Cir. 1975); Lewis v. United States, 340 F.2d 678, 682 (8th Cir. 1965); United States v. Bell, 457 F.2d 1231, 1235 (5th Cir. 1972).
If the government claims that any document ordered produced for inspection contains more than the statement of a witness or does not relate to the subject matter of his testimony, the district court must examine the material and excise those portions that are not available to the defendant under the Act. The Act requires this procedure even if the defendant’s request for inspection includes writings some of which are obviously not related to the testimony given by the witness or include evaluative or tactical notations. See, e. g., United States v. Mason, 173 U.S.App.D.C. 173, 523 F.2d 1122 (1975). And the court may not delegate to the government its duty to determine whether or not the requested material is available for inspection by the defendant.
I share the concern of the majority opinion for the workload of overburdened district judges, but I would not permit this consideration to cause us to overlook the clear mandate of the statute. I would remand to permit the district court to make the required inspection and determination. See Goldberg v. United States, 425 U.S. 94, 111, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976).

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