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United States v. Zurita

November 9, 1966


Hastings, Chief Judge, and Kiley and Cummings, Circuit Judges. Kiley, Circuit Judge (dissenting).

Author: Hastings

HASTINGS, Chief Judge.

Appellant, Manuel Zurita, was found guilty by a jury of violation of 18 U.S.C.A. § 2113(d)*fn1, bank robbery by the use of a dangerous weapon. Judgment of conviction was entered by the trial court, and Zurita was sentenced to serve a period not to exceed twenty-four years.

On appeal, it is asserted that the trial court erred in denying Zurita's motion to produce a composite picture drawn by an FBI agent during an interview with two principal Government witnesses and that the trial court further erred in permitting the Government to cross-examine, on a collateral issue and over objection, one of Zurita's witnesses, his wife.

On the evening of November 19, 1961, three men entered the residence of the branch manager of the Gary Trust and Savings Bank, Gary, Indiana, by means of a subterfuge. During the night, they held the manager and his wife hostage at gunpoint. The next morning, two of the men accompanied the manager to the bank and robbed it while the other man remained with the manager's wife.

During the investigation of the robbery, the bank manager and his wife aided an FBI agent as he drew a composite picture of the robbers by means of their descriptions and adoption of features in photographs of other men. The bank manager's wife testified:

"We had described the fellows as best we could -- not together, individually -- and then we looked at various pictures and we chose one, and perhaps it had a nose like one of the men, so we would mention that. We did this separately, though, we didn't do this together. Then we would choose another one that perhaps had eyes that looked, or eyebrows that were the same shape; in this way he was able to draw some kind of a picture."

During Zurita's trial, the bank manager and his wife identified Zurita in open court as one of the robbers. Another defendant, who was indicted with Zurita, but who entered a guilty plea prior to Zurita's trial, also identified Zurita as an armed participant in the robbery.

The composite drawing of the FBI agent was not introduced in evidence by the Government. Zurita, arguing that the drawing was a statement of the bank manager and his wife, requested the Government to produce it under 18 U.S.C.A. § 3500. This section, which was intended for impeachment purposes, in essence provides that in criminal prosecutions statements of a Government witness in the possession of the Government shall be made available to the defense, insofar as they relate to the testimony of the Government witness. The trial court, however, ruled that the drawing was inadmissible as not being within the definition of statements as found in 18 U.S.C.A. § 3500(e).

18 U.S.C.A. § 3500(e) defines "statement" as:

"(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or

"(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 to an agent of the Government and recorded contemporaneously with the making of such oral statement."

The question of the producibility of drawings under § 3500 is novel, although a case in which there is some similarity of facts is Ahlstedt v. United States, 5 Cir., 325 F.2d 257 (1963). There the defense attempted to have the Government produce numerous photographs which were shown to Government agents in an unsuccessful attempt to identify the participants in a robbery. It was held that § 3500 did not apply to miscellaneous photographs.*fn2

There can be no question that, literally, a drawing is not a written statement and is not a recording "which is a substantially verbatim recital of an oral statement." But this does not resolve the question whether, notwithstanding a literal interpretation of the statutory language, a drawing may be the kind of information Congress intended to have produced under § 3500.

There is nothing in the cited cases or legislative history to indicate that § 3500 was ever conceived to reach drawings. The legislative history and Supreme Court interpretation of § 3500 disclose that Congress and the Supreme Court have considered § ...

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