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July 20, 1964


The opinion of the court was delivered by: Campbell, Chief Judge.

  This case is now returned to me pursuant to a remand order by the Court of Appeals. The remand order recites that the mandate was issued in accordance with the suggestion of government counsel. By the mandate it is:

The defendants herein were, during April of 1963, before me tried by jury and found guilty of armed robbery of a Federal Insured Savings and Loan Association. They were represented at the trial by Jerome Rotenberg, Esq., and Martin Gerber, Esq., respectively. I appointed counsel of such prominence and ability because of their criminal trial experience and excellent reputation as members of the Bar of this Court. The government was equally well represented at the trial by Assistant United States Attorney William O. Bittman, a veteran of many criminal trials, ably assisted by Assistant United States Attorney Douglas Brown.

By the wording of the mandate I am now directed to "* * * conduct an inquiry pursuant to 18 U.S.C. § 3500 * * *" (hereinafter referred to as the Act). Inasmuch as the Act, commonly referred to as the Jencks Act, does not specifically provide for such inquiry procedure*fn1 I must read and interpret the mandate as having reference to the "is it or is it not a statement" procedure referred to and approved by the Supreme Court in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959) and Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961).

At the onset of this memorandum I wish with all respect to express my opinion that the in camera inquiry I have conducted pursuant to the mandate was from the record clearly unnecessary and the request of Government Appeals Counsel therefor thoroughly unwarranted and an imposition upon the Court of Appeals and this Court. In obedience and respect to the Court of Appeals I of course did conduct the inquiry ordered.

I called as witnesses the four attorneys who took part in the actual trial. I questioned them under oath, in camera, and caused a transcript of their testimony to be prepared, which transcript I tender herewith respectfully to the Court of Appeals. Copies of the transcript and of this Memorandum are also being sent to the United States Attorney and to defendants' appellate counsel.

Findings of Fact and Conclusions of Law Pursuant to Mandate.

From the in camera testimony of the participating trial attorneys, the transcript of the trial and by longhand trial notes recorded in a bound volume at the time of the trial, I now make the following findings and conclusions in accordance with and in answer to the Mandate:

  Neither prior to nor at the time of trial were there
  in existence "* * any notes of Government counsel
  relating to interviews with Government
  witnesses * * *". Although some of the witnesses
  called by the government during the trial were in
  fact interviewed by one or both Assistant United
  States Attorneys, there were no notes taken at the
  time of or subsequent to such interviews.
    At the time of trial what might have been
  original § 3500 statements which were taken of
  many of the government witnesses by agents of the
  Federal Bureau of Investigation were no longer
  extant. These statements I learned at the trial had
  in each instance been destroyed by the agent who
  conducted the interview subsequent to his reducing
  the same to a full written statement known as an
  "interview report" and produced at the trial for
  defendants. Such destruction of the interview notes I
  find was in accordance with good business and office
  practice and was a procedural policy of the Federal
  Bureau of Investigation. It was not done in bad faith
  or with the intention or result of denying the
  instant defendants any rights they might otherwise
  have had pursuant to § 3500. The interview
  reports were "copies" (Campbell v. United States,
  373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 hereinafter
  referred to as Campbell II) of the interview notes
  and as such were § 3500 statements and all such
  reports were pursuant to my trial order fully
  delivered to the defendants as is clearly evident
  from a reading of the trial transcript.
    The foregoing findings clearly do not warrant a
  further finding as to the possible existence of
  "harmless error". However, if they should be so
  construed I do hereby conclude as a matter of law
  that any non-production of the agents' original notes
  due to their matter of course destruction would fall
  within the Rosenberg "harmless error" rule.
  (Rosenberg v. United States, 360 U.S. 367, 79 S.Ct.
  1231, 3 L.Ed.2d 1304). Briefly stated the rule is
  applicable in situations such as this where although
  related Act notes are not turned over in compliance
  with a proper defense motion, said failure of
  compliance is "empty of consequence" in that "no
  relevant purpose could have been served" and "no
  advantage to the petitioner was denied by witholding
  it"; e.g. where "the very same information was
  possessed by defendant's counsel or would have been
  available were error not committed". See also United
  States v. Thomas, 2 Cir., 282 F.2d 191 (1960).

Upon careful reflection and study of the transcript it becomes painfully apparent to me that the Assistant United States Attorney in making his aforesaid suggestion to our learned Court of Appeals was either ignorant of the record or deliberately misled that Court. I prefer of course to choose ignorance rather than venalty. However, I cannot condone and let go unmentioned such inadequate representation of the government before so important a tribunal. I am sure that our present United States Attorney who was not in office at the time of this appeal will see to it that this does not happen again.

I resent and here protest the inference of government appeal counsel that as the trial judge I did not satisfactorily or accurately discharge the duty imposed upon me by this Act.*fn2 I protest further the imposition by the same counsel upon our learned Court of Appeals, in permitting that Court to assume as it had every right to expect, that it was being well advised by him as to the facts and the law. Clearly such is not the situation here.

All of the findings required to be made by the mandate and made herein had already been made and were to be found within the trial transcript. It is quite possible of course that my rulings at the time of trial were improper and not in keeping with a higher tribunal's more accurate appraisal of the state of the law, but nonetheless the findings now requested and conclusions thereon were made (and are, I believe, factually supported by the record.) If I was in error, I am sure the case will be duly reversed and remanded. However, the facts I am now required to determine have already been determined and are to be found in the transcript of the trial.

In support of the foregoing and to classify this apparent obfuscation of the record by the Assistant United States Attorney, I deem it appropriate here to do what he should have done and call the Court of Appeals attention to the following facts. As to the existence of any interview notes, supposedly taken by government counsel in interview with government witnesses, every government witness, without fail, who answered affirmatively when asked if he or she was interviewed by the Assistant United States Attorneys testified that the Assistant United States Attorneys did not take any notes.*fn3 The reason for such emphatic denial of note taking by all of the witnesses is understandable in light of the Assistant United States Attorney's practice of calling this fact — i.e. that no notes are being taken — to the attention of prospective witnesses at the time of interview.*fn4

In addition to the testimony of the witnesses, Assistant United States Attorney Bittman (trial transcript p. 1424) made the buttressing representation in open court that although he and Brown did, as the witnesses testified, interview witnesses, they reduced nothing from these interviews to writing. Defendants' counsel in no way questioned or raised issue with the testimony of the witnesses or the representation of the Assistant United States Attorney.

Although the instant record contains witness testimony which is in addition to and in corroboration of government counsels' representations, I am of the opinion that such representations even standing alone without supporting testimony, if unquestioned by the defense would justify a finding. I am of course familiar with our Seventh Circuit's decisions in United States v. Collier, 313 F.2d 157 (1963), and in United States v. Keig, 320 F.2d 634 (1963). In Collier at page 159 of 313 F.2d the court stated: "It was not enough to take the representation of the Government attorney based on what the Bureau or agents had told him." However, a representation by an Assistant United States Attorney that he did not take interview notes is vastly different from his representation as to what someone else told him. To follow each representation during a trial by having an attorney sworn as a witness and made to repeat such representation lends no additional credence to his original statements. Such a requirement would in my opinion not only unduly burden crowded trial courts but would be an insult to the practicing trial bar all of whom took a most impressive oath upon first becoming officers of the court.

In Keig, the Court cited Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256, as follows: "The court should not make a final disposition upon the representation of government counsel. It cannot escape its duty to learn the truth first hand." In using this language the Supreme Court was referring to itself and was commenting on the situation before it; a representation made to an appellate tribunal, by appellate counsel which was not made to the trial judge and was not to be found or in any way substantiated in the trial record. The Court observed that the other party, not the Court, need not accept this representation, and if refused as it there was, that Court could make no finding thereon.

In this regard I call attention to some appropriate language appearing in Justice Frankfurter's dissent in Campbell "I", wherein in discussing the destruction issue and in part anticipating the Court's later decision on this issue in Killian, he stated at page 103 of 365 U.S., at page 431 of 81 S.Ct.:

  "It surely is not the duty of a district judge to
  investigate a response by one who is an officer of
  the court as well as of the United States on the
  assumption that he has intentionally or irresponsibly
  violated his responsibility to the court and the
  Government in conducting the Government's case in a
  manner consistent with basic legal ethics and
  professional care."

In the majority opinion in Clancy Justice Douglas in commenting upon representations made for the first time by government's appellate counsel said:

  "Moreover, the Government's assertion is not a
  positive statement of the prosecution. Those who
  present the case here say with candor that they speak
  only `according to our information,' which admittedly
  falls short of an assertion that the copies were
  delivered to the defense at the trial." (emphasis

I suggest that those who are of the view that a trial judge may not make a finding upon the basis of an unquestioned representation by one of the attorneys as to a matter within his knowledge ask themselves to what Justice Douglas referred when he used the phrases "positive statement of the prosecution" and "an assertion". Moreover, in the sentence immediately following the above quotation, emphasis is placed upon the fact of the defendants accepting or rejecting a representation. The Court stated that it could not accept the representation "(s)ince the defense earnestly denies * * *" it. See also Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307.

To preclude a trial court from accepting unopposed representation of trial counsel as to matters properly within his knowledge would render totally impractical any attempt to satisfactorily administer this Act.

It is palpably clear from a reading of the trial transcript that I was satisfied that the witnesses' testimony and the representation of government counsel were accurate and truthful and that there never existed any such interview notes as government counsel on appeal now seems to imagine. Moreover, my review of the trial record occasioned by this mandate, and my questioning of the trial attorneys, has in no way caused me to change my mind — rather, this hindsight has supported my earlier findings. It is quite apparent, for that matter it is obvious from the record, that there were and are no such interview notes in existence.

It has been suggested to me as a possible explanation of his unusual and unwarranted conduct therein that the Assistant United States Attorney who represents the government on the appeal of these cases may have been somewhat unduly concerned with my reference*fn5 to the "handwritings or notes" of the trial attorneys. Although it is clear to me that this distinguished counsel could not possibly have read the record and still make the representation he did to the Court of Appeals nevertheless I should observe that the transcript clearly shows my having ruled that said "handwritings or notes" ("* * * notes (made in) preparation for this case") were not Act statements and need not be turned over to the defendants.*fn6 I will acknowledge that a consideration and evaluation of this ruling in vacuum, without conferring with the trial attorneys in his own office or even more culpably without reading the related portions of the trial transcript, might upon a hypercritical appraisal by government appeal counsel of the record lead to some ambiguity. However, when properly considered*fn7 in light of the testimony of the witnesses who proceeded and followed my ruling (— that there were no "interview notes" taken by the Assistant United States Attorneys) followed by my deliberate failure to foreclose defense inquiry into the subject of the possible existence of "interview notes", and finally, when consideration is given to the broad language of the request motion being ruled on,*fn8 (in addition to notes and writings, memoranda, documents and most importantly, statements) it should be patently apparent that I was not ruling gratuitously and excluding the production of non-existing statements.

The suggestion of government's appeal counsel incorporated into the mandate that there might have existed, at the time of trial, Act statements that were not disgorged in accordance with my ruling is by nature most difficult if not impossible to now reconsider. In making this observation I wish to make it clear that I intend no disrespect to the court of Appeals for, I am sure that if government counsel before it had as he should have done fully apprised that court of the trial record it would not have deemed further inquiry into this subject necessary.

My trial rulings relative to Act requests were, when considered in light of the entire record, clear and emphatic. With the exception of the already referred to "handwritings and notes" of the Assistant United States Attorneys made solely in the preparation of their personal trial briefs, I ordered turned over "* * everything that you have on each witness * * *" (Trial Transcript p. 141).

I had no reason then (see Trial Transcript pp. 601 and 859) nor do I have any now to believe that my rulings were not properly complied with. More important, the trial transcript and my most recent inquiry examinations failed to disclose any possible indication that full compliance was not attained. Under such circumstances I fail to appreciate the presumptious suggestion of the Assistant United States Attorney conducting this appeal that further inquiry into proper and adequate compliance by his fellow assistants is now necessary.

The mandate's final requirement that I "* * * inquire into the destruction of any such statements if such destruction occurred" (emphasis mine) is the clearest indication that the Court of Appeals was misinformed as to the trial record. The testimony of Federal Bureau of Investigation Special Agents Kotsas, Hall and DuMaine is replete with references and statements to the effect that they did destroy original notes after writing reports. Moreover, with commendable, albeit expected, candor, in an obvious attempt to abide by the spirit as well as to the letter of my rulings on these issues, Assistant United States Attorney Bittman represented to the court that although such interview notes had been in existence there were none extant at the time of trial. (Trial Transcript p. 138)

Inquiry into the circumstances surrounding the various incidents of destruction brought forth the fact that at the time the agents interviewed prospective witnesses they took longhand notes of the witnesses' remarks. A short time thereafter, on the basis and with the aid of these interview notes, they dictated interview reports. After comparing the interview reports with the interview notes and determining that they were substantially similar,*fn9 they destroyed the interview notes as a matter of practice in accordance with the policy of their office. The interview reports, as the record indicates, were turned over to the defendants and the interviewed witnesses who were the original source of the information contained in the interview reports were properly cross-examined and subjected to possible impeachment thereon.

On the basis of this testimony I was satisfied that interview note destruction was not in bad faith and in contravention of the Act. I was then of the opinion — and on the basis of their recent inquiry testimony I am now certain — that defendants' counsel were equally well satisfied the destruction was not in bad faith. (Inquiry Examination Transcript; Gerber pp. 16-17, Rotenberg pp. 8, 9.) Neither of the defendants nor myself deemed it necessary to inquire further into the agents' motivation at the time they destroyed the interview notes. Impliedly I found the instances of destruction to have been in good as opposed to bad faith. Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961).

I respectfully tender the foregoing together with the transcript here attached in compliance with and obedience to ...

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