# Petition — Morrone v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1804%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 455 U.S. 941 ## Text REC’ VFD NOV 13 1981 ”.81 5874 Ors. iA SUPRE: OURT OF THE UNITED STATES OCTOBER TERM, 1981 MODERWELL L. KESTER, Petitioner -VS- UNITED STATES OF AMERICA, Respondent PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT FRANK |. MARCONE 216 West Front Street P.O. Box 604 Media, Pennsylvania 19063 215-566-3723 Attorney for Petitioner QUESTIONS PRESENTED 1. Whether the Petitioner was deprived of his Fifth Amendment right when the trial court permitted a statement made without bene- fit of constitutional warnings to be admitted as a “confession”. 2. Whether Petitioner was deprived of due process when the trial court, after the jury had indicated deadiock, charged the jury to consider the cost of retrial rather than the evidence. 3. Whether the trial court erred in per- mitting the government agents to testify regarding an interview described as a "confes- sion" after they had destroyed their original notes. 4. Whether the trial court erred in per- mitting an in court identification based upon an impermissibly suggestive photographic dis- play. 5. Whether the trial court deprived the Petitioner of due process after the key wit- ness recanted his testimony and admitted per- jury. 6. Whether the trial court erred in charging the jury the co-defendants’ testimony should be viewed with caution. PARTIES TO THE PROCEEDINGS Aside from the captioned parties, the co- defendants, Michael Morrone and Ronald Turchi, have filed a Joint Petition for Writ of Cer- tiorari. F. Emmett Fitzpatrick, Esquire, 2800 Two Girard Plaza, Philadelphia, Pennsylvania 19102, represents Mr. Morrone and Joel Harvey Slomsky, Esquire, 2400 Two Girard Plaza, Philadelphia, Pennsylvania 19102, represents Mr. Turchi. ii TABLE OF CONTENTS Questions Presented Parties to the Proceeding Table of Authorities Opinions Below Statement of Jurisdiction Constitutional Provision Involved Statement of Case Reasons for Allowance of Writ of Certiorari a. The petitioner was deprived of his right provided by the Fifth Amendment of the United States Constitution, whereby a statement made while he believed himself to be in custody was taken without “Miranda” warnings and then admitted in evidence. b. Whether the petitioner was deprived of due process when the trial court after the jury had indicated deadlock, charged the jury to consider the cost of retrial rather than the evidence. c. Whether the trial court erred in permitting the government agents to testify regarding the interview described as a confession after they had destroyed their original notes. 10 20 24 d. Whether the trial court erred in permitting an in-court identification based upon an impermissibly suggestive photographic display. 28 e. Whether the trial court | deprived the petitioner of due process after the key witness recanted his testi- mony and admitted perjury. 31 9. Conclusion : 34 10. Appendices: Appendix "A" - Judgment Order of the United States Court of Appeals for the Third District: NO. 80-2760 Appendix "B" - Opinion of the United States District Court for the Eastern Dis- trict of Pennsylvania TABLE OF AUTHORITIES CASES: Brady v. Maryland, 373 U.S. 3, 3 5.Ct. T19Z, 10 L.Ed. 215 (1963). Bram v. United States, 168 U.S. 7). Com. v. Sholder, 201 Pa. Super. > 2d 632 (1963). Fisher v. Scafati, 439 F2 307 (Ist Cir.), cert. denied 403 U.S. 939, 91 S.Ct. 2256, 29 L.Ed2 719 (1971). Freye v. United States, 408 F2 I00 (Ist Cir.), cert. denied 396 U.S. 859, 90 §.Ct. 129, 24 L.Ed2 111 (1969). Loliver v. yet 469 F.Supp. Miranda v. Arizona, 384 U.S. Z30, 10 L.Ed2 694, 86 §.Ct. 1602. Oregon v. Mathiason, 97 S.Ct. ’ ’ -Ed2 714 (1977). Orozco v. Texas, 394 U.S. 324, 272 L.Ed2 oil, 89'S.Ct. 1095 (1969). Simons v. United States, 309 U.S. 304 (1900). United States v. Burley, 400 iii 13 31, 32-33 18 18 18 12, 13, 14, 16, 19 14-15, 17 16, 17, 19 29-30 22 CASES: Page United States v. Harrison, 173 -o. App. D.C. » 524 F2 42: (1975). 25-26, 28 United States v. Neiderberger, 580 F2 63 (1978). 6.2. United States v. Vella, 562 F2 OTHER AUTHORITIES: Jenk's Act 25 iv NO. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1981 MODERWELL L. KESTER, Petitioner -vVs- UNITED STATES OF AMERICA, Respondent PETITION FOR WRIT OF CERTIORARI OP INIONS BELOW The Judgment Orders of the United States Court of Appeals for the Third Circuit below are not yet reported. Copies of the Judgment Orders are attached as Appendix "A" and Appen- dix "B". The Opinion of the United States District Court for the Eastern District of Pennsylvania is reported at 502 F. Supp 983 and is attached as Appendix "C". (1) STATEMENT OF JURISDICTION The Judgment Orders of the United States Court of Appeals for the Third Circuit below were filed on September 15, 1981 (Appendix “A” and Appendix "B"). The jurisdiction of this Court is invoked under 28 U.S.C. Section 1254 (1). CONSTITUTIONAL PROVISION INVOLVED The Fifth Amendment to the Constitution of the United States provides in pertinent part: "No person...shall be compelled in any criminal case to be a witness against himself nor be deprived of life, liberty or property without due process of law." The Sixth Amendment to the Constitution of the United States provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right toa -+-impartial jury." (2) STATEMENT OF THE CASE This Petition for Writ of Certiorari to Third Circuit. Court of Appeals challenges the conviction of the petitioner in a criminal prosecution in the United States District Court for the Eastern District of Pennsylvania. The petitioner, Moderwell L. Kester, and co-defendants were charged with Mail Fraud resulting from an arson. The convictions were based upon violations of 18 U.S.C. Section 1341 and resulted from an alleged scheme to defraud an insurance carrier by collecting funds for fire damage to a building located at 1150 East Orthodox Street, Philadelphia, Pennsylvania. The petitioner received a custodial sen- tence of six years incarceration, five years of probation, a fine of Six Thousand Dollars ($6,000.00) and restitution of Nineteen Thou- sand Nine Hundred Eighty-six and 43/100 Dollars ($19,986.43) at six percent interest. After post-trial motions were denied, (3) the conviction was affirmed by the Third Cir- cuit Court of Appeals delow. The major evidence produced by the govern- ment came from the witness Richard Coppola, an admitted arsonist who participated in the indicted offenses. His testimony resulted from a detailed plea bargain with the govern- ment which included a plea of guilty to mail fraud charges. Mr. Coppola's testimony was critical for without it the government had no case and the District Court so instructed the jury. On May 5, 1977, an old warehouse located at 1150 East Orthodox Street, Philadelphia, Pennsylvania was set afire by arsonists. Sometime thereafter agents of the Alcohol, Tobacco and Firearms Division of the Justice Department obtained information Richard Cop- pola had set the fire and was burned at the site. The property had been owned by the peti- tioner, Mr. Kester, an elderly businessman, (4) for approximately eighteen (18) years. On April 3, 1977, the petitioner had entered into an agreement to sell the building to a Norman Miller for Sixty-five Thousand Dollars ($65,000.00). The agreement contained an amendment, inserted by Miller, that a fire would void the sale at the buyer's option. That amend- ment was stricken by the petitioner's attorney. After the fire, the property was repaired at a loss to the petitioner, improved and con- veyed to Miller. On December 13, 1977, two agents of the Alcohol, Tobacco and Firearms went to the petitioner's business office where he was served with a subpoena to appear before the grand jury. He was also interviewed without benefit of "Miranda" warnings. The agents subsequently reported the conversation contained an admission. The petitioner denied making the statement as described. (5) On October 18, 1978, the Special Prosecu- tor assigned to the Eastern District of Penn- sylvania procured an indictment charging the petitioner and Coppola with crimes including Mail Fraud. That indictment was dismissed soon thereafter upon the government's motion. On October 30, 1978, the government sub- poenaed the petitioner's financial records and, on March 5, 1979, the petitioner voluntarily testified before the grand jury denying any knowledge of an arson conspiracy. On March 22, 1979, the petitioner was arrested and notified ss thets indictments and the co-defendants were made part of the alleged conspiracy. : That indictment alleged the co-defendants and others were arsonists for hire who had burned various buildings, among which was that owned by the petitioner. On July 13, 1979, after the pre-trial motions were disposed of, a trial commenced before The Honorable J]. William Ditter, Jr., (6) Judge of the Eastern District of Pennsylvania. — The testimony consisted of the alleged inculpatory statement and the testimony of Coppola, who stated he had once seen the peti- tioner prior to the fire and that he had paid money to hire the arsonists. A search of the petitioner's financial records disclosed no source of such funds. The petitioner objected to the introduc- tion of the inculpatory statement asserting the statements were not prefaced by the neces- sary warnings and, further, that the agents had destroyed their original notes of the interview, thereby depriving the petitioner of possible exculpating or “Brady” evidence. The agents had asserted the petitioner said he had paid money to someone he had met in a bar. The petitioner testified he had been frightened when questioned and thought he was being arrested. Both he and the agents testi- fied he had said: “if you want me to say that, I'll say it if it helps me." He then (7) determined he should speak to his attorney. He gubcequent ly denied any knowledge of the crimes. The co-defendant Turchi, testifying in his own behalf, admitted committing the arson but denied it had been ordered by the petitioner. His testimony, if believed, would have excul- pated the petitioner. The jury, after extensive deliberation, returned to report themselves deadlocked. Thereupon, the trial judge charged them to con- sider the expense of retrial as well as the evidence in the case. After extensive deliberations, the jury returned with verdicts of guilty. The petitioner asserts his innocent, that he had sold the property and could not benefit from the crime, that he was frightened and believed himself to be "in custody" when ques- tioned and that he was promised “help with the court" if he cooperated and jail if he did not. He was not told any statements would be used (8) against him and he said = v. Ringland, 497 F. 2d 1250, 1253 (8th Cir. 1974); Hale v. United States, 435 F. 2d 737, 739-40 (Sth Cir. 1970) cert. denied, 402 U.S. 976, 91 S. Ct. 1680, 29 L. Ed. 2d 142 (1971); United States v. Wyn, 415 F. 24 135, 136 (10th Cir. 1969), cert. danied 397 U.S. 994, 9° S. Ct. 1133, 25 L. Ed. 24 402 (1970). In the second place, the words in question were not coercive. The danger in supplemental instructions is that a minority of the jury may be persuaded against its will and thus the unanimity rule diluted. The pressure usually arises from language which suggests that the minority should reconsider its views, that a verdict should issue within a short period of time, or that some jurors are misbehaving by refusing to join an otherwise unanimous decision. United States v. Cheramie, 520 F. 2d 325, 329-31 (Sth Cir. 1975). Telling the jurors they had to agree was found to be coercive in Jenkins v. United States, 380 U.S. 445, 446, 85 S. Ct. 1059, 1060, 13 L. Ed. 24 957 (1965). Jurors should not 5e cold that a failure to agree would be regarded by the public as reflect- ing upon the jurors’ intelligence or integrity, nor should they be pressured by being told the issues are easy, the court has a back- leg, and retrial makes no sense. United States v. Thomas, 449 F. 2d 1177, 1183-84 (D.C. Cir. 1971). Stubbornness in the jury box should not be criticized. Powell v. United States, 297 F. 2d 313, 320 (Sth Cir. 1961). Saying that absolute certainty cannot be expected may be construed as weakening the quantum or quality of the proof required. See United states v. Silvern, 494 F. 2d 355. (7th Cir. 1973); United States v. Flannery, 451 F. 2d 880, 883 (lst Cir. 1971). I told the jurors none of these things. What I did say was that they had a duty to decide this case if it could be done without violence to individual conscience and I told them why. There is nothing wrong with a jury's being told it has a duty to decide. In Fioravanti, supra, for example, the trial judge told the jury, “It is your duty, however, to agree if possible." 412 F. 2d at 414. The Court of Appeals found no error in that comment, and to the contrary, recommended that if jurors are instructed to consult with each other they be told, "It is your duty ... to deliberate with a view to reaching an agrec-~- ment if you can do so without violence to individual judgment." 412 F. 2d at 420. Surely if jurors can be told there is a duty to decide -- not just the easy cases, but difficult ones, the ones that require diligent, conscientious effort, there is nothing wrong with reminding them that a particular case is important to those involved. I reject the idea that jurors are too stupid to know that what they do or do not do will have ar impact on society and on defendants. And this includes failing to decide a particular case. The abili«- of the judicial system to function is not served by turning away but by facing -- not by deferring but by deciding -- not by ab- dicating but by acting. There is nothing wrong with a jury's being asked to continue its deliberations so long as it is clear -26- that each member has a duty conscientiously to adhere to his own honest opinion and avoids creating the impression that there is anything improper, questionable, or contrary to good conscience for a juror to cause a mistrial by refusing to agree. Hale v. United States, 435 F. 2d 737, 741 (Sth Cir. 1970), cert. denied 402 U.S. 976, 91 S. Ct. 1680, 29 L. Ed. 2d 142 (1971). A judge's warning that under no circumstances must any juror yield his conscientious judgment makes use of even the Allen charge proper and not coercive. United States v. Robinson, 560 ©. 24 507, 517 (2d Cir. 1977), cert. denied 435 U.S. 905, 98 S. Ct. 1451, 55 L. Ed. 24 496 (1978). I told the jurors the importance of individual judgment six times. I said these matters should bs decided if it could be done “in good conscience.” (para. 3); "if you can do so without violence to your individual conscience” (para. 4); “if you can do so without violence to individual judgment” (para. 6); and “if you can conscientiously do so” (para. I also said that “you should not surrender your honest conviction as to the weight or the effect of the evidence solely because of thi opinion of your fellow jurors or for the mere purpose of returnin- a verdict to us ... in the final analysis, each of you must decid- _ @ach of these matters for himself or herself." (para. 7) It is no coercive to tell a jury to try to reach a verdict if shey are warnings were given, and secondly, that the indictment against him should have been dismissed because Perlick did not retain his rough notes of interview as required by United States v. Vella, 562 PF. 24 275 (3d Cir. 1977), cert. denied, 434 U.S. 1074, 98 S. Ct. 1262, 55 L. Ed. 24 779 (1978). See also United States v. Niederberger, 580 F. 24 63, 71 (3d Cir.), cert. denied, 439 U.S. 980, 99 S. Ct. 567, 58 L. Ed. 24 651 (1978); United States v._ Harris, 560 F. 24 148 (3d Cir.), cert. denied, 434 U.S. 986, 98 S. Ct. 614, 54 L. Ed. 24 480 (1977); and United States v. Harrison, 524 F. 2d 421 (D.C. Cir. 1975). The first issue, that concerning the failure to give Miranda warnings, was previously raised by a pretrial motion to suppress. An evidentiasy heasing was held. after which T entered an order, incorporating findings of fact and conclusions of law, and refused the motion. There is nothing I can add to that order. It is attached as an appendix to this opinion. Kester's second reason is somewhat ambiguously phrased in his post-trial motions and brief. What he says is that Agent Perlick should not have been permitted to testify about the December 13, 1977, statement when it was determined his rough inter- view notes had been lost or destroyed after a formal report of interview was prepared. The problem is that the destruction of the notes was revealed by the cross examination of Perlick only ater he had testified as to his conversation with Kester. Since = -3l1- believe Kester's intention is plain, I shall treat his motion as an assertion that Agent Perlick's testimony should have been stricken or that the indictment should have been dismissed once it was established that the interview notes had been destroyed. In Vella, supra, the Court of Appeals statec explicitly To avoid future misunderstandings, we speci- fically adopt the precepts announced in caekes 260, 4 oe ee 173 U.S. App. D.C. , as the law in this circuit, to- wit, the rough interview notes of F.B.I. agents should be kept and produced so that the trial court can determine whether the notes should be made available to the appellant under the rule of #34 Bee 373 U.S. 83, 83 S. Ct. 1194, . Ed. 15 (1963), or the Jencks Act. 562 F. 2d at 276. Although the language of Vella is obligatory, Niederberger, supra, in construing it held that when there was no bad faith by the Government and no specific pretrial request by the defendant, the district court's refusal to strike testimony and segesai to grant a new trial were not errors because even had the testimony of the Government agent been excluded, there was sufficient é@vidence to convict. Vella specifically adopted the precepts announced in United States v. Harrison, supra. Harrison, in turn, relied on United States v. Bryant, 439 F. 2d 642 (D.C. Cir. 1971), which Ed. 2d 215 (1963), to require that “in framing their rules for evi- dence preservation, investigative agencies must define discoverable evidence very broadly, including any materials that ‘might’ be ‘favorable’ to the accused.” 439 F. 2d at 652 n. 21. Bryant, however, predated United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. EG. 24 342 (1976), which held that where there has been only a general request for exculpatory material, ‘*4) or no request at all, the proper Brady test for a reviewing judge is whether the omitted evidence would create a reasonable doubt that did not otherwise exist. This means the Government's omission to provide information must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. 427 U.S. at 112-13, 96 S. Ct. at 2402. Thus when a court reviews the effect of a failure to preserve possible evidence, the broad rule announced by Bryant must be consicered to have been modified by Agurs and Niederberger. I conclude therefore, that if a Government (14) in the instant case there was no “pretrial request for specific evidence." See s, 427 U.S. at 104, 96 S. Ct. at 2398. Kester did file a Pre Trial Motion in which he said: 6. ... the defendant hereby requests all copies of any and all statements of the defendant, including, but not limited to Grand Jury Hearings, interviews or intercepted messages, telecommunications or memoranda, the substance ef any oral statement which the government expects to introduce in evidence, the Grand Jury testi- mony of any and all witnesses whose information given at any time during the investigation could be con- sidered extulpatory and would assist the defendant in the defense of the charges filed against hin. The Government responded that it would comply with this re- quest to the extent that the material requested existed. There is no suggestion that the Government did not do so. As previously stated, it was not until after Agent Perlick's direct examination had been concluded that any request ‘for his rough notes was made. agent has failed to follow Vella, in the absence of bad faith on the part of the Government, the appropriate test is whether the notes that were not preserved would have created a reasonable doubt which otherwise did not exist. ‘15) In the instant case, there was no evidence of bad faith or any improper reason for the destruction of the notes. Vella was decided on September 19, 1977, less than three months before Perlick's December 13, 1977, interview with Kester. From all that appeared neither the ATF in general nor Perlick in particular was aware of the Vella decision. In part, this may be attributable to the wording of Vella, which addressed itself only to the F.5.I. While it would be fatuous to contend (and the Government aces not do so) that once the Vella rule had been made known to ATF, its agents could destroy their rough interview notes, nonetheless, it is entirely possible that ATF was less likely to know of Vella because it was specifically directed to the F.B.I. In Harrison, supra, it was recognized that a direction to a police department differed from a direction to the F.B.I. Just as the court in Harrison refused to attribute any bad faith to the F.8.I. for destroying notes when only the police had been directed not to do (IS) This is practically tne same balancing test announced for pre-Bryant interviews: (The court] should weigh the degree of negligence or bad faith involved, the importance of the evidence lost, and the evidence of guilt adduced at trial in order to come to a determina- tion that will serve the ends of justice. 439 F. 2d at 653, as quoted by Harrison, 524 F. 2d at 434. so, 524 F. 2d at 434, I shall attribute no bad faith to Agent Perlick or to the ATF, particuarly in view of the time sequence here. The possibility that Agent Perlick's rough notes would have helped Kester is remote. Although he denied any culpability in the fire at his Orthodox Street warehouse, Kester admitted that he told Agent Perlick many of the things about which Perlick had testified. (N.T. 13-166-74; 13-190-93) He claimed to have done so because he had had seven or eight martinis earlier that after- noon and was intoxicated. (N.T. 13-85) He was not totally sober when the agent arrived. (N.T. 13-88) He was half lit (N.T. 13-92), was under the weather, was drunk (N.T. 13-169), and was half drunk (N.T. 13-195). In addition, he was scared and upset (N.T. 13-90, 91, and 195), the agents put words in his mouth (N.T. 13-91, 165, and 167), he was afraid he was going to be beaten up (N.T. 13-175) or have a stroke (N.T. 13-169), and he just said anything to get rid of Perlick (N.T. 13-164, 166, and 174). However, he also testi- fied that after receiving appropriate warnings and with his attorney available to him, he appeared voluntarily ‘+®) and repeated to the Grand Jury the things he had told Agent Perlick (N.T. 13-175, 182). Kester argued at trial that the preservation and pro- duction of Agent Perlick's rough notes might have been helpful im impeaching Perlick as to the date he interviewed Kester (N.T. (16) Had he not appeared voluntarily, he would not have been subpoened (N.T. 13-178). 13-152; 171-73).‘*7) analysis shows, however, that while the notes might have impeached Kester, it is highly unlikely that they would have impeached Agent Perlick. Admittedly, on the date of the interview, Agent Perlick served Kester with a Grand Jury subpoena. On its face, this subpoena shows it was served on December 13, the date shown on Agent Perlick's formal report of interview. Both Perlick and Kester testified the interview took place on that date. (N.T. 10-108; 13-82). It is unlikely Agent Perlick would have put one date on the subpoena and another on his formal report of interview. This is particularly true since the date of the inter- view became significant only after Kester testified during trial. The issue as to the date of ineesview came up in this way. During cross examination at the suppression hearing, Agent Perlick was asked if Kester had told him one of his trucks had been destroyed “earlier that morning.” Perlick said he recalled being told “something about an accident." (Hearing of May 22, 1979, N.T. 18) Kester then testified the accident had occurred that morning (N.T. 47, 56), i.e., the day the agents were there. (N.T. 57) It was partly because of the truck accident earlier that day that he drank so many martinis. (N.T. 58) As he told the Grand Jury, he was drinking heavily that day because "this truck thing upset” hin. (17) Kester's post-trial briet suggests Agent Perlick may have destroyed his notes because he had a personal reason to do so if they contained Brady material since “without Kester, the case would not have federal jurisdiction and Agent Perlick's investigation would have gone for naught.” [I consider this argument to be voreposterous. He also asserts bad faith was shown because there was no testimony about any ATF policy to destroy notes. The short answer to this contention is that no one asked about the matter. (N.T. 60) Again at trial the matter of the truck accident was originally brought up during Agent Perlick's cross examination by Kester's counsel: Q. «+. After this interview was over, sir, did he say something to you about a truck accident? A. I think he mentioned an accident. Q. You think? Come on, you know he did, don't you? ... Didn't he tell you that that morning when he had come to work on the 13th of December he had been told by one of his employees that a brand new truck of his had run into a tree and totally destroyed it? Did he tell you that? A. I believe he did, yes, some words to that effect. I don't remember specifically whether it was a new truck, but I think he said there was an accident tha+ morning. é Q. And he was very upset about it. A. He said that, yes. Q. And at lunch time that day he had gone out, had lunch and drank martinis and had too many. Didn't he tell you that? A. 4 said he was drinking that day. (N.T. 10-227-28). Kester then testified that he was very distressed on December 13, 1977, because a stupid driver had had an accident with a brand new truck. (N.T. 13-82, 83, 85, 143, 144, and 157). That was the reason he was upset that day (N.T. 13-145, 148), i.e., the day the agents came to interview him. (N.T. 13-150, 152) There were no other accidents involving his trucks about then. (N.T. 13-146) However, when Kester was shown a report, containing information he said he had provided to his insurance agent which showed the accident had occurred on December 12, 1977, he began to waiver about whether the accident and the interview were on the same date. (N.T. 13-157) He then said he did not know the date of the accident (N.T. 13-162), and finally, that on the day of the interview, all he told the agents about the accident was that the truck had been towed to his garage that morning. (N.T. 13-195) He then accused the Government of having originally said the accident was on December 13 (N.T. 13-161), a charge that quite simply was not true. It was because of the question as to whether the accident and the interview had been on the same date that Kester's counsel wanted the original interview notes. It was obvious, how- ever, from the time Kester's counsel first raised the question during cross examination at the suppression hearing, Perlick had not thought that what Kester may have said about the truck accident was of sufficient importance to record it. If indeed there had been no notation, the destruction of Perlick's notes was unimportant. If, on the other hand, Agent Perlick's notes had had some notation in this regard, they might have confirmed one of Kester's versions of what occurred on the morning of December 13, 1977, but refuted another. '28) wnat Perlick's notes might have said did not go to the issue of guilt or innocence per se, but to Kester's credibility. Of course, Kester's credibility was paramount, but the jury had amp s opportunity to judge it from his extensive testimony. I conclude at one Or another, the accident occurr on a 13 and the truck was towed in that same morning, the accident occurred on December 12 and the truck was towed in on December 13, that he had not seen the truck before lunch, that he was not sure whether he had seen it before lunch (N.T. 13-82), and that he had seen