Reply Brief for the Petitioner — Palermo v. United States

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SUPRE:’ - COURT.U.S& | >

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IN THE

Supreme Court of the Bntted States

October Term, 1958

No. 471

ANTHONY M. PALERMO,

voli

UNITED STATES OF AMERICA,

Respondent.

On Wait or-Certiorari To THE Unrrep Stares Court oF

ApPEALs For THE Seconp Cincurt

_« REPLY BRIEF FOR THE PETITIONER .

Wyuiys S.:‘Newcoms, .

Joun A. WELLS,

Attorneys for Petitioner.

Wrixys S. Newcoms, " at oe

Joun~ A. WELLs, +s :

Rosert E. Friscn, ~ * Ve ahead

Antuory B. Kuki, :

| , * aes Counsel.

° ¢ Z ;

eae tert Nn Sees ASSESSES SSRN SE RN —nSSESenSeeSSst

Petitioner,

iNvDaa

ae PAGE

Statement 0.0.0.0... ever eees (eveeesuia ores 1

Porst I—18 U. S. C. 3500 is properly before this

‘ Court (answering Gov’t Br. Point I, particularly

p. 17 and fn..9 on pp. 18-19) ...... Swdevkestes nek 2

. A. In the Trial Court ..... ger ines oe

B. In the Court of fe pare are we eve i *

ey rr eS od cet ca wewe aon tai 4 é

Powrt I11—There must be a new trial (Answering

~~ Gov’t Point I1; Gov’t Br. 22-29) ...... errr re 5

1. Rationale of Jencks .............. wheeenneae : 5

-2: ‘The Denial of Petitioner’s Motion to. inspect |

was highly prejudicial and constituted reversi- ;

ble error .....- PCT PP OPS fo Ec a war

A. Story Told by a Disintersated: Witness. ere.

B. The Four Stories Told by Bentlipge . pac s 3

OOWOLBENEN coco ccsievsivis Weetiaeee eee a

| Table of Citations

' CasEs : ;

: Friend v. Talcott, 228 U. S. 27 (1913) Ce

Jencks v. United States, 353 U.S. 657 (1957) 3, 5, 6, 7,8

Keen v. Overseas Tankship Corp., 194 F.2d 515. -

»-(2 Cir. 1952), cert..den. 343 U. S. 966 (1952) . 5

United States v. Burr, 25 Fed. Cas. 187 (o. - 8

‘ VO. WOOT) nn eicccserencncecessceveeceseccens a

- United States v. Wdiisinie: 258 F. 2d 397 (2 Cir.

ee) Re eee ieeees POT ae aoe

‘Srarurs: * ‘ i) Pe Es

Section 3500, Title 18, United States Code ....... 2,3,4

APPENDIX A—lInformation Supplied by the Govern-

ment on Court Exhibit 2 ............... sees eens ‘

= | IN THE = wee

. Suprews Court of the Buited States

October Term, 1958

No. 471

ray

AntHony M. PaLermo, Sais Wel rg

| Petitioner,

—_— & :

Unirep States OF AMERICA,

Respondent.

REPLY BRIEF FOR THE PETITIONER

: Statement a

\ tee ,

\. Im order- that there siny od a sound basis for the proper

‘determination of the instant case by this Court, it is neces-

sary to point out certain factual i inaccuracies. set forth in -

the government’ S brief. ‘De ea

1; \The. gov ernment sculls states that Court’s Ex.,

hibit 2 was exayined by the trial court (Gov’t Br. 17, 20,

28). Such, was not the case (R. 159, Tr.-789-803).°

2. The government statés that ‘there was no testi-

mony”’ to the effect that ‘‘the Steiner, | Rouse form [Gev’t |

Ex. 6] was passed back and forth between the petitioner

and ‘the ‘Sai Bem" (Gov’t Br. 25, fn. 12). Pre-

sumably the government is suggesting that, since in its final

form Government’s Exhibit 6 included entries relating to

the year 1952. as well\as the year. 1951, it must. have = re-

* As is pointed out in the. \government’ s brief (p. 6, fn. 1) the

- full trial record is before this ‘Court. References to the full trial

_record are prefixed “Tr,” \

‘mained in petitioner's possossion until some. time in 1953.

There was specific testimony establishing. directly that

- Government’s Exhibit 6-was delivered to the accounting

firm in early 1952 (R. 288-291, 293) and the firm, of course,

had it again in 1953 since it was used in preparing the 1952 -

return (R. 31, 288) and returned it to petitioner. There Was —

moreover an abundance of evidence, wholly uncontradicted

establishing a regular course of dealing between petitioner

and the accounting firm,. pursuant to which business, rec-

ords, statements, checks, brokerage accounts amt®ather

documents were delivered back and forth between petitioner

and his accountants. This was established by the testimony

of Sanfilippo, Amoruso, James Pollaci (who often acted

as petitioner’s messenger), and many of the clerical and

accounting émployees of the Sanfilippo firm and has never

been contested by the government.

In other words, delivery of Government ’s Exhibit 6 to

the accounting firm early in 1952, for use in connection with.

the preparation of peti ioner’s 195kreturn, was in no way

inconsistent with the—fict that Goverment Exhibit 6,

in its final form, conteinedtentries relating to the year 1952.

POINT I

18 U..S.-C. 3500 jis Properly before this Court ©

(answering Gov’t. Br. Point I, particularly p. 17 and _

fn. 9 on pp. 18-19). 7 ae we |

On the basis aon alleged concesgion, claimed to have

" been made by defehse. counsel upon the trial, the Govern-

ment -seeks to invoke an: estoppel or waiver. It is thus

asserted that the petitioner is prevented in this Court ‘from

being heard” :to say that inspection s ould have been

granted under Section 3500. is ae a

The government’s position is appa ently based upon

_ 4n erroneous conception of: what ovcurred on the trial. On

;

«ad.

this particular point the printed Transcript of Record is

incomplete. Once-the full trial record is examined, it clearly/

appears that there is no merit ty the government’s cont

tention.

A. In the Trial Court. poorer

_ (1) Prior to'the occasion when petitioner’s application

to inspect Government’s: Exhibit 2 was made, both Section

33900 and the decision of this Court in Jencks had been dis-

cussed, argued and reviewed i in other connections, not mate-

rial here (Tr. 27-29, 50-57, 408-33, 465-86, 035 577);

(2) Upon the making of the siiadiainin: both the trial’

court and counsel fur the Government at once construed it

as invoking Section 3500 (Tr. 786-789) and discussed the

problem i in terms of that statute. No disavowal or conces-

sion was made by counsel for petitioner.

_ Thus (Tr. 786):

“THe Court: I thought we had gotten away from

the Jencks case, and I left my copy of the new statute —

. upstairs.

Mr. Newcoms: We have one here, your Honor.”’

_ And (Tr. 788) :

‘*Mr. McHucu: May it please the Court, first of

all, let me say that Section 3500 of Title 18, as Tunder-

stand it, provides that the statement of.a witness. is

to.be-given to defense counsel only under certain’ limi-

‘ted circumstances vats fi taal !

And by Mr. McHugh (Tr. 788):

‘‘It is our position that the memorandum of the

conference Which was made by Agent Harper * * * is

clearly not within the J encks, so-called, statute, Sec-

tion 3500.’’ -— :

(3) The trial court, before any alleged ‘concession’? -

by defense counsel, clearly indicated that it (the trial court)

was of the opirkbn that petitioner was not entitled to relief

’

me.

. ‘under the stathte and that, if pressed under the statute, the

| application wpuld, be denied (Tr. 786-79):

. Thus, referring to Section 3500 (Tr. 786-787) :

‘THe Court: But at the start, as I recall the stat-

dite, you.are not within’100 miles of it, are you?” .

oo ee ‘ (4) Even after the alleged concession, ‘counsel for the

> petitioner ‘specifically argued that, if gonstrued to prohibit ~—

the.inspection, sought, Section 3500 was unconstitutional

(Tr. 197-797a) ; : a es oe

__° “BeJn the Court of Appeals. — ae

mat)) Petitioner not only raised the point the ‘ Court’

of Appeals but made it one of the principal grounds of the

appeal (Br., Ct. App;, 31-35) ;

- claim of waiver or estoppel, joined issue on the point and

fully contested it (Gov’t Br., Ct. App.; 21-24) ; X

- (6) In the Court of Appeals the gyre made ‘no

(7) The Court of Appeals. not only passed ‘upon the -

point but devoted the greater portion of its opinion to the

point (208 F. 2d 397, at 398-399; R. 427-428),

} The Court specifically held (258 F. 2d-397, at 398; R.

427): ra fe

-- . + +" We do siot agree with defendant’s contention -

that under the provisions of Section 3500 the memo-

randum should have been made available to him.’’. °

C. In This Court.

(8) In the petition for a writ of eertiorari to this Court

six out of the nine stated ‘*Question Presented’’ referred to

Section 3500. and in four of them petitioner asserted that

. he was entitled to inspection under that statute (Pet. Cert.

° - 2-4); and oe SEN ee isan

(9) In opposing petitioner’s ‘application for a writ of

rtiorari the Government did not claim either estoppel or

ur iret ae Vio x

waiver; on ‘the contrary, the Government joined issue afd _

~** contested it (Gov’t Br. opp. cert. a cr .

Based upon the whole record, it is submitted that the .

“position of the Government is neither just nor sound. ~

Friend v. Talcott, 228 U. S..27 (1913) ; Jencks v. United

States, 353 U. S. 657 (1957). | ans

-. Viewed in its proper context and upon the whole record, _;

the alleged ‘‘concession’’ by defense counsel constituted

nothing more than a graceful act of deference to a clearly

sndicated adverse ruling by the trial court.. ‘‘Nothing goes ©

further to disturb the proper atmosphere’ of a ‘trial than

reiterated insistence upon a position which’ the judge has

‘once considered and decided.”’ | Keen v. Overseas Tankship

Corp., 194 F.2d 519, 519 (2 Cir. 1952), cert. den. 343 U.S.

966 (1952). — SA Peed

Haasee te es = c

2 ens ee

There must be a new trial (Answering Gov't Point

Il; Gov't Br. 22-29). 3 | ec gal sees

- Invoking the so-called ‘‘harmless error’’, doctrine, the 5

government contends that even if the trial court erred .in

denying petitioner’s motion to inspect the. statements of

Sanfilippo as recorded in Court’s Exhibit’2-the conviction +

should nevertheless be affirmed. It is respectfully sub- —

mitted that the government’s position is not well taken.

- "4. Rationale of. Jencks. Rice:

_ Basic in the reasoning upon which the decision, in Jencks ©

was rendered is the proposition that in a criminal case

_¢ only the defendant’s counsel is in a position to determine

‘the value, importance or significance of the prior state- -

ments made by a government witness and the use, if any,

to be made of them on defendant’s behalf. Thus this Court

said. (at pp. 668-669) : : a ee oe

-*We hold, further, that the petitioner is entitled to

inspect the reports to decide whether to use them in -

his defense. Because only the defense is. adequately -

equipped to determine the effective use for purpose

’ of-discrediting the Government’s witness and thereby

furthering the ageused’s defense,.the defense must

": initially be entitled to see them to determine what

use may be made of them. Justice requires no less.’”

The test is that of relevancy and materiality. If the

_ Statement relates, as here, to the subject matter of the wit-

ness’ trial testimony for the government, justice requires 4)

not that the statement be admitted in evidence, not thatthe ~

defense be permitted to use the statement, but that the

defense be permitted to see the statement. The vital right

is of the defendant, through his counsel, to inspect the gor

statement. < |

Recognition by this Court that it is the right to inspect

that governs, as distinguished from the admissibility or

usefulness of the document in question, is made unmis-

takably plain in Jencks. There, this Court quoted from the

- opinion of Mr. Chief Justice Marshall in United States v. ©

Burr, 25 Fed. Cas. 187, and then stated (at p. 688, fn. 14):

_ ~ *“*What is true before the:case is opened is equally

true as the case-unfolds. The trial judge cannot per-

. ceive or determine the relevancy and materiality of.

the documents to the defense without hearing defense

. argument, after inspection, as to its bearing upon the

one. = | Bee ae Rage *

This Court then went. on to say (at p.669) :

‘*Relevancy and materiality for the purposes of pro-

duction and inspection, with a view to use on ¢cross-

examination, are, established when the reports are

shown to relate to the testimony of the witness. Only

after inspection of the reports by the accused, must

the trial judge determine admissibility * * *”

It is no answer to say that the contents of the state-

ments were merely ‘‘*eumulative’’, nor for government

: ”

“7 ; i 3b

* “Te he . ‘ . , sa

counsel to spefulate as to what might or might not have —

me, had the fundamental right of the de-

“ts , ¥!

Unless efense counsel has had the opportunity both to

inspect and be heard, we respectfully suggest that neither

‘this Court, nor. the Court of Appeals, nor the District. Court,

- nor government counsel is in a position fairly to determine

whether the statements of Sanfilippo as recorded in Court’s

_ -Exhibit 2 are ‘cumulative’? or not. The doctrine for which

the government. contends: would violate the most funda- .

-_-mental concepts of justice and fair play. It would require

* petitioner to analyze and expound the refinements, niceties

and details of a document he has never been permitted to *

"gee, ae |

Fortunately for the petitioner the fact that the ‘state-

ments were not megély cumulative and the further fact that.

the error.was highly prejudicial can readily be. demon-’

~~" strated, But the point is that if the requirements of the

statute or of Jencks, or both, are met and it is shown that

the subject matters .of the statement were. important, a .

conviction cannot’ stand.

_- It was on this basis that Jencks struck down the require-

sink that there be a preliminary showing of inconsistency.

This Court said (353 U. S. at 667): 7

| « ‘Requiring the accused first to show conflict be-

tween the reports and the testimony is: actually to

deny the accused evidence relevant and material to

the defense.’’ me |

- No better illustration of the necessity for inspection

‘could be found than that afforded by the record in the in-

stant case. We have set out in Appendix ‘*A”’ annexed to

this brief successive, limited revelations as to Court ’s Ex-

hibit 2 made by the government at the Various stages of the

instant case.

2. The Denial of Petitioner’s Motion to inspect was highly

prejudicial and constituted reversible error. |

The government has-admitted that Government Exhibit:

6 (the Steiner, Rouse form containing notations in the pe:

titioner’s hand of dividends received by. him in 1951 and.

- 1952) is one of the matters referred to in Court’s Exhibit’2 —

. (Sanfilippo’s statements to” Special Agent Harper at the

August 23, 1956 conference, as recorded by Harper).

We read Jencks as not requiring the defense to show

prejudice.* But if prejudice is required,: it can be shown

here. . : : os nos

_ By the end of the trial five different stories had been -

placed in the record as to the time and circumstances of the |

delivery of Government’s Exhibit 6 to the Sanfilippo firm.

Four of these stories came from Sanfilippo himself. Each

depended solely upon his unsupported word; there was no

corroborative evidence whatever. =

The fifth story (in point of time) came from a disin-

terested witness, a former employee of the Sanfilippo firm

_ Who was called by. the government, and that story was sub-_

293, Gov. Ex. 6; Exs. CCQ, D, J). ~ ‘

A. Story Told by a Disinterested Witness

Mrs. LaCombe stated that when she was working in

Sanfilippo’s office in early 1952 on the petitioner’s 195]

return, she used Government’s Exhibit 6, which at that time

had entries for dividends received by the petitioner in 1951 °

(R. 290-291). An examination of Government’s Exhibit 6 |

will reveal certain pencilled notations alongside each entry

for 1951, all in Mrs. LaCombe’s handwriting. As the face

of the exhibit shows, her notations appear for all entries

for 1951, and only those entriés. She testified, among other.

- * None of the cases cited. by the government’ are in point or

persuasive (see, Gov't Br: 0-11).

things, . that she made these notations early in 1952 in

connection with preparation of the. 1951 return: (Tbid.). .

There was no evidence that Mrs. LaCombe ever had any

other occasion for working only on the 1951 entries On .

Government’s Exhibit 6"). > <

B.. The F our ‘Stories: Told by ‘Sadie

(1) On J uly 19, 1953, Sanfilippo testified under oath te

Special Agent Harper (Ex. Y-7, pp: 32-33) : ae

- T do not know *-* * I have no recollection wilidines

I ea te account for’’ Ceurt’s—Eixhibit-2. ‘\. tu ex.

(2) On ‘August 23, 1953, Sanfilippo swore (R. 152):

‘*It appears from examination of the Steiner, Rouse

form [Exhibit 6] and photostatic copies ‘of. Dr.

Palermo’s tax returns for 1951 and 1952-that I

received this form * * * from Dr. Palermo after Reve- |

nue Agent Mishler had commenced his examination

of Dr. Palermo’s returns * * * 7 believe that- Dr.

Palermo supplied me with, this form ** * at that.

allt (Italies supplied). ~

(3) A the trial Sanfilippo. stated on direct. examination

(R. 27): |

! “oT show you ‘aeutouuaal’ S Exhibit 6 for iden-

tification and ask you to tell the Court and jury if *

~--you have seen that before? A. Yes.

Q. When did you first see it? A. During the

course of the tax examination of Mr, Mishler in

1953.

_ Q. Who gave it to yout A: The defendant. ia

* The government has attempted to disparage this testimony

(Gov't Br. 25, fn. 12). It is of note that the statements made by

the government in its brief are taken from assertions made by

government trial counsel; and .are not supported liy evidence. A fair

ing of Mrs. LaCombe’s entire testimony (Tr. 1256- 1282) shows

that Mwas positive and clear, and that the efforts by government trial

counsel ty shake it were unsuccessful. as

; or

set the purpose, as well as the time, of his receipt of Gov-

erfiment’s Exhibit 6 by stating (R. Ms

\ (4) Sanfilippo’s. fourth version went even further: he

oa ‘‘In other words * **’all I ean say is that it [Gov-

ernment Exhibit 6] was given to us for a certain pur-

pose, and namely the purpose was to get corrected

figures-coneerning his dividends as requested by the

* revenue agent, Mr. Mishler.’’ ° Gate str s

It will readily be seen that each of these four stories.

Was progressively more damning to the petitioner, and the

fourth and last was the most incriminating of all.

Sanfilippo’s fourth version was false. If that version

were true, the earliest time at which Sanfilippo could have

received Government’s Exhibit 6 was. sometime in April,

1953. This was established by uncontroverted evidence '

that: (a) the request by Revenue Avent Mishler was made

at.a meeting in Sanfilippo’s office, .and not on any other

oceasion (R: 82: 125-127); and (b) that Revenue Agent

Mishier’s first visit to Sanfilippo’s: office was on April 17,

1953 (1bid.), a full month after petitioner’s 1952 return was

filed on March 16,1953 (R. 7, Tr. 6). Yet the overwhelming

evidence, which ineluded Sanfilippo’s own admission, estab- :

lished conclusively) that Government’s Exhibit 6 was used °

in the preparation of the 1952 return ‘(R. 31, 288; .Tr.

1967-2028). . A dae | Fae

The time when and the circumstances under which Gov-

ernment’s Exhibit 6-was first received by. the- accounting

“\

firm constituted the heart of the case. \Sanfilippo told four

different stories about it, each more damning to the defense

than its predecessor. The last was absolutely false. The

conference of August 23, 1956 was a’ crucial stage in the

evolution of Sanfilippo’s false testimony. Yet petitioner

,Was denied access. If that denial was error, there must be

a reversal. ;

11.

Vv. Seer

CONCLUSION

The conviction. must be. reversed oad a new trial

| eat. 3

~ Respectf ally submitted,

Wrasse S. NEwcoms,

_ Joun A. Wetts,

Attorneys for Petitioner.

Of Counsel: |

Wvyutys S: N EWCOMB,

Joun A. WELLs,

Rosert E. Faiscu,

Antuony B. Kuxum.

men

~_e

“APPENDIX A af

_ Information ‘cell tes Gainmennas on.

, Comt Exhibie 2

A. The Trial Record.

Mr. McHugh stated (Tr. 789) :

“There are no quotes in that memorandum, and, if .

the. Court wishes, I will hand the memorandum to

the Court to show you that it is merely a hearsay

report of Harper of the conference had with Mr.

Sanfilippo on or about August 23rd.’’

Thereafter he stated (Tr. 800):

‘*But here we are faced with something entirely ih

different: a document that is merely the impression

or recollection. of Agent Harper of what this witness ~

may have said to him at one time or another. * *.* ”’

' B. The Government Brief to the Court of Appeals.

In its first point the Government stated (pp. 20-21) :

‘‘This memorandum relates to a aiitiaiane taal

. Agent Harper of the Internal Revenue Service had

with Mr. Sanfilippo at the time he read and signed

his testimony of July 16, 1956 and executed his affi-

davit of August 23, 1956, copys of which documents

were given to defense cou It is apparent from

the face of this exhibit tit the conference took over

two hours. The orandum does not purport to

be a transcript or even ‘a complete summary of

_ everything that was said by the witness during that

meeting. It,is also apparent from the face of the

document that it was not prepared by Agent Harper.

until some hours-after the conclusion of the confer-

ence (Court Exh. 2, pp. 1, 4).”’ |

It also stated (p. 22):

‘‘Obviously the memorandum of conference pre-

pared by Agent Ilarper was not a contemporaneous

he eee a

report. It was simply his summary of what trans-:

pired, intended for the internal use of his‘offiee. This

document does not: purport to be a ‘substantially ver-_

batim’ account -of What-Sanfilippo said. nor does it

quote him in-any way.’’ :

_. Under its seeond point, the Government stated (p. 27):

‘It referred to the following matters:

‘ ‘*(1) The kind of reeords and information sub-

mitted by Palermo to- Sanfilippo and his firm and

the occasion of these submissions. ~

‘This subject was covered by pages 7,9, 18, 24,

%, 29, 31 and 32 of Exhibit Y-7 and at pages 14-15

of the grand jury testimony (Exh: W-7). Sere

‘*(2) The subject of Palermo’s diary.

‘This topie was discussed in both the question

and answer statement. (Exh. Y-7, page 16) and the

grand jury testimony (Exh. W-7,. page 5).

‘*(3) The keeping of records by Sanfilippo per-

taining to Palermo’s real estate and fees received

therefor, _ |

‘This was mentioned at page 10 of Exhibit Y-7

and at page 2 of Exhibit W-7,. :

_**(4) The role ‘of Sanfilippo’s firm in preparing

Palermo’s income tax returns, - ..° . : /

‘This came up on a number of oceasions during |

the questioning of Sanfilippo by the Special Agents

gave. additional testimony about it before the grand

jury (Exh. W-7, pages 4, 7 and 21). None of the

matter stated in Court Exhibit 2 on these subjects

is inconsistent in. any material way with either San- /

filippo’s grand jury testimony or his statements to,

the Internal Revenue Service. which were furnished.

to, and used by, defense counsel in Cross-exalMina-

tion.’ ° : /

lil | £3

C. The ‘Government Brief in Opposition to the Petition

for Certiorari. goin gina

‘The Government, said (pp. 6, 7-8, 9): |

_ ‘Some hours. after the meeting was over, the agents

made a memorandum of what took place at this |

August 23, 1956, meeting (See Court’s Ex. 2, pp.

hee Sok. |

“It is not disputed that the agent's memoran-

otherwise adopted by the witness. As the court

below. said (Pet. 15), it-is quite apparent from the

record that the memorandum. was made from mem.

ory; that it was merely a summary of the agent’s

recollection, and that it’ does not appear ‘that the

‘memorandum was a transcript of notes made at the

interview. As is apparent from the face of the

memorandum, it does not purport to be a transcript

or even a-complete summary of. what was said by the

witness during the meeting; and it was not prepared

until some: hours after the conference, (Court. Ex. 3.

pp. 1, 4.) : ae

' .“The petitioner does not. show how failure to pro-”

vide a defendant with a Government agent’s memo-_

/randum of the agent’s recollection from memory:

of what had taken place at a meeting with the wit-

ness could deprive petitioner of-any constitutional

right. The memorandum is: hearsay as to the wit-

ness. There is no recagnized rule of evidence under

which the. petitioner would be entitled. as of right

to such a-document, coiisisting only of notes or a |

memorantlum made by a third party which the wit-

ness has not adopted as his own statement or which

the evidence does not show to be in fact his own

statentent.’’ | ee tae

| D. The Government Brief to ‘the Supreme Court.

. The Government said ¢(p. 10): sey

: ? ‘ ; : . .

‘Some time after the conclusion of this meeting

with Mr. Sanfilippo on August 23, 1956, the Internal -

Revenue agents made a memorandum df the meet-:

. ee. ei i

- u N .

a wis wy ' ‘

p lv 1

ing, which was placed in. af files of the Service

‘(R. 426-427).’’ ne ee ees

And thereafter (p. 16):

In its

for cross-examination

‘Under the statutory. procedire, a summary of

prior oral statements prepared by the Government

agents; and which has not been approved by the

witness, is not a ‘statement’ which must be produced

f such witness-..’As the Court

of Appeals held, and as.the description of the docu-

‘ment itself clearly indicates, Court’s Exhibit 2 is

such a summary.’’ bole

argument, ‘the Government said (p. 91):

“The memorandum, consisting of only fifty-five lave.

written lines, relating to a conference which the head- .

ing indicates lasted three and one-half hours, is obvi-

ously not a substantially verbatim recording. Nor

was it approved or adopted in any manner. by Gov-

ernment witness Sanfilippo; it was signed only by

Agent Harper, sometime after the conference, and

later by A nt McGowan. It is. merely their sum-

marized version of prior oral statements, Under the

it is not fairly attributable to Governmest_w vitness

- Sanfilippo, and not subject to compulsory: produc-

_‘tion.’’ (Italics: ‘in the original).

And thereafter (p. 24):

‘‘These other statements were more reliable, being -

the actual verbatim statements of the witness; they

to which they relate; moreover, they had the addi--

tional quality of being given under oath, whereas

the agent’s summary (besides being hearsay | as to

the witness) was not so made.”’ 7

were also equally close in point of time to ‘the al

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.