grand jury room was withdrawn during the hearing on that motion.
Judge Kerner identified the former Revenue Agent, T.R. Johnson,
whom he had deposed was in the grand jury room in his affidavit
in support of his motion. However, he stated Mr. Johnson was not
the same man he observed in the grand jury room when he was
testifying, but the man who was there resembled Mr. Johnson so
closely as to be his identical twin. The motion having been
withdrawn, further consideration is unnecessary.
KERNER'S MOTION TO DISMISS COUNT XV
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.
ISAACS' MOTION TO SUPPRESS
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 aware of his Fifth Amendment
right to not incriminate himself.
Stufflebeam testified that he advised Isaacs at an interview on
July 15, 1970, that Kerner and Miller were under investigation
and that Judge Kerner had referred him to Isaacs for information
concerning certain racetrack stock transactions. Due to Isaacs'
possible involvement in these transactions, which were under
criminal investigation, Stufflebeam testified that he informed
Isaacs of his Fifth Amendment rights. Campbell testified that he
did not recall seeing Isaacs take any notes during that
Both Stufflebeam and Special Agent Witkowski testified that
Isaacs was advised of his constitutional rights at the inception
of the interview on December 3, 1970, and January 13, 1971.
We find from the preponderance of the evidence that Isaacs was
fully informed of his Fifth Amendment rights at his first
interview with Internal Revenue Special Agents. We further find
that he became the subject of a criminal investigation on January
5, 1971, and that his status as the subject of a criminal
investigation was never misrepresented to him. Accordingly, there
is no basis for suppressing any evidence obtained from Isaacs as
a result of the aforementioned interviews. The motion is denied.
KNIGHT'S MOTION TO DISMISS THE INDICTMENT
An evidentiary hearing was granted defendant Knight on his
motion to dismiss the indictment as to him on the ground that it
was obtained by trick or artifice because Knight was compelled to
testify before the grand jury and was misled to believe that he
was not a putative defendant. From the testimony presented,
several facts appear.
Knight testified before the grand jury on two occasions: March
11, 1971, and March 18, 1971. On these occasions he was
accompanied by counsel. He was never given a formal Miranda
Justice Department attorney Victor Worheide was asked by an
Assistant United States Attorney-General to conduct a grand jury
investigation to ascertain the true facts concerning certain
allegations relevant to this case. Knight was called as a witness
because he was believed to have some knowledge of relevant facts.
Worheide denied that he, or anyone else to his knowledge, ever
said that Knight was not a subject or target of an investigation.
He said he informed Knight, and Knight's counsel, that the grand
jury was conducting an exploratory investigation and was not
specifically seeking an indictment. He also said that Knight's
counsel informed him that Knight had been advised of his
This motion is based on an allegation that the Government
already had the information to which Knight testified and that he
was already marked for prosecution.
Internal Revenue Special Agent Stufflebeam testified that Knight
did not become the subject of an investigation until June 18,
1971. The occasion for opening the investigation was the
preparation of a final report on the I.R.S. investigation wherein
Stufflebeam and Special Agent Witkowski drew together data they
had collected in several file cabinets. As this data was studied,
a pattern emerged in which Knight played a significant role. Only
then did he become a subject instead of a potential witness.
Worheide testified that, although he was familiar with many
documents which might have shown that Knight was involved in
certain transactions, the authenticity of these documents was
uncertain. There were many unanswered questions about these
transactions. Knight was called as a witness with the hope that
he could answer some of these questions. At the time he testified
there was no thought of seeking an indictment against him.
The preponderance of the evidence presented, including an in
camera inspection of the transcript of Knight's grand jury
testimony, shows that Knight has not been prejudiced by any trick
or artifice relating to his testimony before the grand jury. Even
if the indictment had been based on illegally obtained evidence,
this is not a ground for dismissal of the indictment. See United
States v. Addonizio, 313 F. Supp. 486, 495 (D.N.J. 1970) aff'd
451 F.2d 49 (C.A. 3, 1971), cert. denied 405 U.S. 936, 92 S.Ct. 949,
30 L.Ed.2d 812 (1972). Accordingly, the motion must be denied.
KERNER'S MOTION RELATING TO ALLEGED BRIBERY OF A WITNESS
Defendant Kerner has moved for an evidentiary hearing
concerning allegations that the United States Attorney in
cooperation with the Department of Justice sought and obtained
for Mrs. Marjorie L. Everett, an alleged prospective witness, a
California license to become a director of the Hollywood Park
Turf Club without a public hearing and despite her implication in
the bribery charged in the instant indictment. He contends that
the United States Attorney bribed or rewarded Mrs. Everett in
violation of 18 U.S.C. § 201(h). His charge appears to be
based on newspaper reports that the United States Attorney went
to California and met with certain state officials to persuade
them not to hold a public hearing and thereby subject Mrs.
Everett to cross-examination on the subject matter of the instant
indictment. The sole foundation for this motion is the inference
that the award of a temporary license to Mrs. Everett was a bribe
intended to influence her testimony in the instant case. Such
general, conjectural allegations are not sufficient to warrant an
evidentiary hearing. See Cohen v. United States, 378 F.2d 751,
760-761 (C.A. 9, 1967).
The recent decision of Giglio v. United States, 405 U.S. 150,
92 S.Ct. 763, 31 L.Ed.2d 104 (1972) that the Government must
disclose a promise of leniency made to a key witness in return
for his testimony implies that suppression is not an appropriate
remedy. We would expect the Court in Giglio not to have ordered
a new trial, or alternatively to have ordered suppression of
Taliento's testimony in a second trial, if the Government's
reward of leniency warranted suppression. Instead the Court held
that evidence of the promise was "relevant to his credibility and
the jury was entitled to know of it". 405 U.S. at 155, 92 S.Ct.
at 766. Even if Mrs. Everett's temporary California license was
a reward for her future testimony (and we intimate no view on
that question), we can discern no material difference between it
and the promise of leniency in Giglio. Accordingly, the motion is
Defendants Knight and Isaacs filed motions for the production
of evidence at the evidentiary hearings held from May 31 through
June 2, 1972. In the opinion of the Court these motions were
disposed of at the hearing. To the extent that they were not then
granted, they are denied.
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