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,
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 ...