Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

UNITED STATES v. IOVINELLI

March 21, 1967

UNITED STATES
v.
IOVINELLI.



The opinion of the court was delivered by: Lynch, District Judge.

Memorandum of Decision

The defendant Iovinelli has been indicted under Title 18 U.S.C. § 201(b) on a charge of improperly influencing a revenue agent.

This court has previously ordered the government to produce any relevant written or recorded statements of the defendant in accordance with Rule 16(a) of the Rules of Criminal Procedure which provides:

  "Upon motion of a defendant the court may order the
  attorney for the government to permit the defendant
  to inspect and copy or photograph any relevant (1)
  written or recorded statements or confessions made by
  the defendant, or copies thereof, within the
  possession, custody or control of the government, the
  existence of which is known, or by the exercise of
  due diligence may become known, to the attorney for
  the government * * *"

This court subsequently ruled that recordings of conversations wherein the defendant allegedly improperly influenced the revenue agent were within the scope of its order. The government is objecting to this ruling, and contends that the provision in Rule 16(a), providing for the discovery of relevant written and recorded statements of the defendant, applies only to a recorded recital of past occurrences. The government's position is that this provision does not apply to a "concurrent recording of contemporaneous sounds of a normal conversation held in a non-custodial atmosphere outside of the obvious presence of criminal investigators."

The government, in support of this contention, cites the decision of United States v. Sopher, 362 F.2d 523 (7th Circuit, 1966). That case dealt with Section 3500 of Title 18, which specifies the procedure under which statements of government witnesses (other than the defendant) to agents of the government shall be produced.

In the Sopher case, the District Court had refused to direct the production of a tape recording of a conversation in which the defendant had allegedly extorted money from a person bidding on a proposed sewer project. The defendant argued that he was entitled to have the tape recording produced.

The 7th Circuit, in affirming the District Court's denial of the motion for production, stated:

  "A § 3500 statement is a recorded recital of past
  occurrences made by a prospective prosecution
  witness. From its very nature, necessarily it is made
  after those events have taken place. * * * But a
  concurrent tape recording of a conversation between
  the payer and recipient of an alleged cash bribe is
  obviously of contemporaneous sounds. The result is a
  preservation of a conversation just as it was
  spoken. * * * It is therefore not a recital of a
  past occurrence by a prospective witness and is not
  within the general purview of § 3500."

The government has taken the position that the meaning of the word "statements" in paragraph 16(a) of the Rules of Criminal Procedure is the same as the meaning of the word "statements" in § 3500. The government reasons that the word "statements" in paragraph (a) of Rule 16 is identical with the meaning of the word "statements" in paragraph (b) of Rule 16 which provides that "* * * this rule does not authorize the discovery or inspection of * * * statements made by government witnesses (other than the defendant) to agents of the government except as provided in 18 U.S.C. § 3500."

The Sopher case is not dispositive of the issue before this Court. The case holds there is no absolute right to production under Section 3500 of the type of recording which is at issue here. To the extent that Section 3500 gives a right to the production of the statements of government witnesses after they have testified, the word "statements" is expressly defined as written statements or a recording of a "substantially verbatim recital of an oral statement." This definition precludes a recording of contemporaneous sounds of a normal conversation.

But "statements" as used in paragraph (a) of Rule 16, is not so limited because the word is not defined. The mere fact that paragraph (b) of Rule 16 refers to Section 3500 statements, insofar as that section prohibits pre-trial discovery, does not mean, in the Court's opinion, that the word "statements" in paragraph (a) of Rule 16, which grants discovery, is limited to statements which are a recital of past occurrences. (Obviously, the prohibition in Section 3500 against certain pre-trial discovery is not applicable here inasmuch as that section applies to statements of prospective government witnesses other than the defendant to government agents.)

The question for the Court is not whether the defendant has an absolute right to the discovery of the recording at issue — obviously he does not — but whether, as a matter of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.