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June 14, 1972


The opinion of the court was delivered by: Robert L. Taylor, District Judge.


For consideration are those motions on which evidentiary hearings were granted following oral arguments on May 17, 1972, and those motions filed after the deadline for preliminary motions agreed to by counsel for all parties, to wit, March 20, 1972.


Testimony was heard on Judge Kerner's motion to dismiss Count XV for the Government's destruction of essential evidence. The question presented was whether the destruction of the rough notes made by Internal Revenue Service Special Agents Stufflebeam and Campbell during an interview with Judge Kerner which were incorporated into a memorandum of interview on the day of the interview amounted to an impermissible destruction of evidence in violation of due process. See Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). These notes are particularly important in the instant case because the essence of Count XV is an alleged misrepresentation of fact to federal agents performing an official inquiry. See 18 U.S.C. § 1001.

Both Stufflebeam and Campbell testified that they began the interview by presenting Kerner with a letter informing him that he was the subject of a criminal investigation and by advising him of his fifth amendment rights. Each said that his own notes were key words and phrases chosen to jog his own memory as he prepared a formal memorandum of interview. Each has a personal policy of destroying rough interview notes once the formal memorandum of interview is in final form to avoid duplication of records and because time erases from his memory the meanings he originally attached to the key words. The Internal Revenue Service leaves the question of destruction of rough interview notes to the individual agent.

Stufflebeam has followed the practice of destroying rough notes for as long as he has worked for the Service. The memorandum of interview quotes the Miranda warning as he read it verbatim from a printed card. Stufflebeam cannot tell from the memorandum what portions came from his notes as opposed to his recollection alone. Prior to destroying the rough notes he always compares them with the final draft of the memorandum of interview to assure the completeness and accuracy of the latter. At the time of the interview he had no thought that the memorandum might become the basis of a Section 1001 charge.

Campbell testified that he had never discussed with Stufflebeam whether to retain or destroy their rough interview notes. On reading the memorandum of that interview he said that his rough notes covered the entire memorandum with one or two words keying a whole paragraph. He recalled using key phrases such as "financial institution", "Isadore Brown", and "on recommendation of broker". Campbell has had no prior Section 1001 experience nor did he think of a possible Section 1001 prosecution at the time of the interview, preparation of the memorandum and destruction of his rough notes.

We conclude that the destruction of these interview notes was not a wilful or careless destruction of evidence and that the defendant has not been sufficiently prejudiced to warrant dismissal of Count XV. Accordingly, the motion is denied.


An evidentiary hearing was held on defendant Isaacs' motion to suppress evidence derived from certain interviews with Internal Revenue Special Agents on the ground that they failed to give him a Miranda warning when he was a subject of a criminal investigation. See United States v. Dickerson, 413 F.2d 1111 (C.A. 7, 1969). In our memorandum opinion filed May 30, 1972, 347 F. Supp. 743, we limited the issues for this hearing to a determination of when Isaacs was first given a full Miranda warning and when he first became the subject of a criminal investigation.

Despite a lengthy, detailed and thorough hearing, the parties failed to present any material fact not previously shown by their affidavits. Their respective positions and the factual disputes are accurately set forth on pages 27-29 of our memorandum of May 30, 1972, which are incorporated herein by reference.

Isaacs testified in minute detail as to the events transpiring at each of the interviews in question. He also produced personal notes of these interviews which he said he made on each occasion. He remained unequivocal in his position that he was never warned of his constitutional rights.

Isaacs is a practicing attorney who graduated from law school some thirty-five years ago. He testified that he had heard of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We are convinced that he was ...

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