Appendix — Annunziato v. United States (No. 404)

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INDEX

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APPENDIX A. OpINION BELOW ; : 3

APPENDIX B. PARTIAL TrIAL TRANSCRIPT . 20

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 405 —- October Term, 1060,

(Argued June 6, 1961 Decided July 26, 1961.)

Docket No. 26846

Unizep STATES OF AMERICA,

Plaintiff--1ppellee,

ws.

SALVATORE .ANNUNZIATO,

Defendant-A ppellant.

Before:

LuMBARD, Chief Judye,

GoopricH * and FRIENDLY, Circuit Judges

* Of the Third Circuit. sitting by designation.

4

Appeal from judgment of the District Court for Connecticut,

Wa. Hl. Pimerrs, J.. convicting defendant, after jury verdict,

under indictment for receiving money from an employer in viola-

tionor 20 U0S.C. $186(b) and (dy. Affirmed.

Ilowarp A. Jacoss (Stanley .\. Jacobs, Jacobs,

Jacobs, Jacobs and Jacobs, on the brief),

New Haven, Conn... for Defendant-Appellant.

larry W. HUttGres, Jr. U.S. Atty. for Dist.

of Connecticut, for Plaintiff-l ppellee.

IP RIENDLY Carciat Judge:

The trial of this seemingly simple criminal case, involving an

alleged vielation of 20 U.S.C. $186¢b), which at the time made

it unlawful “for any representative of any employees who are

employed in an industry affecting commerce to receive or accept.

or to agree to receive or accept, from the employer of such em-

ployees any money or other thing of value,” has raised a host

of problems, to the proper solution of which the Government's

seven page brief, filed, in violation of our Rule 15 (a), on the

~ eve of the argument, has rendered almost no assistance.

In 1957 the Terry Contracting Company, Ine.. a New York

City concern, was engaged in constructing the Connecticut Turn-

pike in Bridgeport, using materials from outside the state. An-

nunziato was business agent for the International Union of Operat-

ing Engineers, members of which were engaged in work on the

site. The indictment alleged two violations of 20 U.S. C. $186

ob) by Annunziato—the receipt of $300 on or about July 3, 1957,

and the receipt of $50 on or about December 24, 1957.) Prior to

trial the Government filed an information charging him with the

same offense stated in the second count; without objection on his

part, Count 2 of the indictment was nolled and Count 1 and the

information were tried together. The jury brought in a verdict

of guilty on the former, of not guilty on the latter. “Phe court

gave Annunziate the maximum prison sentence, one year, and

imposed a fine of $2,300 plus costs of prosecution, 20 UL S.C.

S186).

The Government's proof on Count 1 was presented primarily

through tive emplovees of the ‘berry company, hereafter Terry,

Whose testimony can be summarized as follows :

(1) Tealter Haas was timekeeper on the Bridgeport job, iden-

tified as Job No. 719, during June and Jaly, 1937. Tle worked

ina trailer, with a small office at one end, the other end open,

and a door between. He first saw Annunziato on an occasion

when the tatter said “in a very loud voice” to Van Dommedllen, the

Terry superintendent, and to Frattini (later identified as the mas-

ter mechanic), that “The job was to be covered—-the letter of the

contract was to be covered by regarding the handling of all the

operating machines whereby the operating local was under their

jurisdiction,” and that the contract would be enforced “Right to

the TA week or two Jater Annunziato appeared in the trater

and asked whether Mavhew, Terry's general superintendent who

was located in New York, was on the job site. Tlaas said May-

hew was not but was expected. Mayhew arrived in the office

with a Mr. Wolf. chief estimator, also from New York. When

Haas saw Annunziato approaching, he left the othee. — Ele saw and

heard Mavhew attempt to introduce Wolf; Annunziato declined

the proffer, saying “This ain't no social call.” whereupon Wolt

also left the office. Tlaas then saw Annunziato pick up a small

manila envelope from a table in the office.

(2) Arthur Van Dommellen, teld) superintendent: of | the

Bridgeport job, recalled that late in June or early in July, 1957,

Annunziato came inte the trailer office and asked if someone from

New York was there to see him. Van Dommellen answered

“There's nobody here now, but T expect Mr. Mayhew later.”

t

6

Later \nnunziato returned: Van Dommellen met him cutside the

trailer and teld him) Mavhew and Wolf were in the otfiee i \n-

nunziato wanted to see them. Tle did.

(3) Uadliam (CRW) Mayhew was in general charge ot all

Terry construction projects. In June, 1937, the president of Terry

was Harry Terker, deceased at the time of the trial. Mayhew

Was permitted to testify over objection that in the summer of

1937, on a day betore he was scheduled to make @ trip to New

Haven, Harry Terker gave him a small manila envelope to deliver

to the business agent for the operating engineers at Bridgeport

Mayhew asked the purpose; Tlarry Terker replied “Tt's tor a com-

mitment that | have made.” When Mayhew demurred. Terker

said, “Well, T have made the cenmitment, and T would liky to

keep up with it, and T would like you to do it, to take it with you,

since you are going to New Haven.” Arriving at Bridgeport,

Mayhew and Wolf entered the trailer office. | Annunziato came in

and identified himself; Mayhew sought to mtroduce him to Wolf

and proposed going out for a cup of cotfee. Annunziato “said

that he had not come for a social call; he was not interested in

going for coffee.” © Mavhew handed the small envelope to An-

nunziato, who put it in his pocket. The envelope was about half

an inch thick and flexible.

(4) Ralph Cohen was comptroller of Terry. He identified a

Cash Voucher dated June 28, 1957, for $300, bearing the name

“B. Mayhew” at the top and reading “Job +719, Sundries.” It

also bore the legend “Receipt of above is hereby acknowledged.”

with Cohen's initials. Tf in fact Cohen had given the money to

Mayhew, he would have made Mayhew sign the receipt; instead

Cohen had put it in an envelope and given it to Harry Terker.

Cohen was allowed to testify, over objection, that Harry Terker

had told him to draw the petty cash “For Mr. Mayhew's use to

pay somebody" on the job.

/

(3) Ntchard Terker, son ot Harry Terker, had been secretary

and treasurer of Terry; atter his father’s death he became president.

Ile was allowed. over objection, to testify to a luncheon conversa-

tion with his father late in June er early in July, 1937. The

father informed the son “that he had received a call from Mr.

Annunziato” and “that he had been requested by Mr. Annunziato

for some money on the particular project in question, the Bridge-

port Harbor Bridge. Fo asked hin what he intended to do, and

he had agreed to send some up toe Connecticut for him.” Cross-

ccumination developed that the sum of money mentioned was

$230.

Annunsiato’s Appearance Before the Grand Jury.

Appellant's first ground of appeal requires a statement of the

proceedings prior to the indictment. Annunziato was summoned

before a grand jury, first on September 16 and 17, 195°, and

again on May 25, 1960. He claims that on neither occasion was

he advised of his right to remain silent under the Fitth Amend-

ment; and contends the indictment should therefore be quashed.

We find it unnecessary to consider the legal issue, see Cuited

States v. Scully, 225 F. 2d 113 (2 Cir. 1955). cert. denied 350

U. S. 897 (1935), since the factual premise is wanting. The

transcript, which, of course, was not available to defense counsel,

shows the prosecutor did advise Annunziato of his right to remain

silent before taking him into the grand jury room on September

16, 1959, and on Annunziato’s later appearance, he claimed the

privilege with the very first question asked and repeated the

claim, sustained by Judge ANDERSON when Annunziato was later

taken before him, with every question that could possibly be in-

criminating.

oir Dire of the Panel.

Moving to the trial, appellant criticizes the court’s refusal, on

the voir dire of the panel, to put a question, requested by him,

x

whether any of the panel were members of or contributors to any

organization having law enforcement as its object. He relies on

Beatty v. Cutted States, 27 F.2d 323 (6 Cir, 1928) and Bailey v.

(Cnited States, 33 F.2d 982 (5 Cir. 1931), holding that defend-

ants accused of operating stills during the prohibition era should

have been allowed to inquire into membership of veniremen ina

prohibition enforcement society, since an affirmative answer would

have supphed information permitting more effective use of per-

emptory challenges. We are not required to determine whether or

not we would follow those cases if the question which the judge

here refused to put had dealt with a special interest of the venire-

men in enforcing the particular type of law under which the de-

fendant had been indicted; Annunziato cast his net too wide.

The petit criminal jury has, of course, moved from: its historic

origins, 2 Pollock & Maitland, History of English Law, 644-650;

Plucknett, A Concise History of the Common Law, 120-129, but

hardly so far that government owes a defendant charged with

crime an opportunity to discover whether a prospective juror has

the general interest in law enforcement which is every citizen's

responsibility.

Flearsay Objections.

Our statement of the evidence has surely presaged another and

more sericus set of attacks -— alleged violations of the hearsay

rule. Appellant asserts this with respect to Mayhew’s testimony

that Harry Terker asked him to take the money to Bridgeport

in order to keep a commitment that Terker had made to Annun-

alato, to Cohen’s testimony that Harry Terker told him to draw

$300 “For Mr. Mayhew's use to pay somebody” on the Bridge-

port job, and, most importantly, to Richard Terker’s account of

lus luncheon talk with his father.

We need not tarry long over the first two statements. These

fall so clearly within Professor Morgan's sixth class, “Cases in

4)

which the utterance is contemporaneous with a nonverbal act, in-

dependently admissible, relating to that act and throwing some

ight upon at” AN Suggested Classiteation of Utterances Adimis-

sthie as Res Gestae, 31 Yale L. J. 220, 236 (1922), see Beaver v.

Paylor, 1 Wall. 637, 642 (18030; Lezets ve Borns, 106 Calif. 381,

389 P 778 (1895): Shapiro ve Cnited States, Lob F.2d 240, 242

(2 Cir, 1948), cert. demied 334 U.S. 830 (1948) > MeCormick,

evidence (1954). pp. 386-387, that we do not need here to con-

sider other possible grounds of admissibility.

Richard Terker’s account seems to have been admitted on the

basis that his father’s luncheon statement was a declaration of a

co-conspirator; the Government now seeks to sustain admissibility

both on that ground and as a declaration of the father’s intention.

We think it was admissible on both grounds.

If the manila envelope had popped out of Harry Terker’s wallet

as he was settling the luncheon cheek and Harry had told Richard

“This is money Tm sending up to Annunziato.” admissibility

would clearly follow from the combination, logically unassailable

although practically debatable, of two principles, “that the exist-

ence of a design or plan to do a specitic act is relevant to show that

the act was probably done as planned” and that the plan or design

may be evidenced, under an exception to the hearsay rule, “by the

person's oven statements as to its existence.” 6 Wiemore, Evi-

denee (3d ed.), pp. 79-80; Mirtual Life Ins. Co. ve Fitdllmon, 145

U.S. 285, 295 (1892). The question is whether a different

result is demanded because here the declarant accompanied his

statement of future plan with an altogether natural explanation of

the reason, in the very recent past, that had prompted it.

We do not think such nicety is demanded either by good sense

or by authority. State ve Farnam, 82 Ore. 211, 161 P. 417

(1916); People vy. llealde, 24 Cal. 2d 177, 148 P. 2d 627 (1944).

As Professor Morgan has pointed out, Basic Problems of Evi-

dence (1954), p 203, the famous letter from Walters, oral evi-

dence of which was held admissible in the //i/mon case, was

iw

actually a decliration of Walters’ intention not stmply to travel te

Colorado but to travel with Plllmon, and the uiterence the jury

would almost certainly draw was that this represented a previous

arrangement between them.! Shepard v. Cited States, 200 US

9, 103-106 (1933), dees not hold that a declaration of design as

rendered madmiussible because it embodies a statement why the

design was conceived. In that case there was no relevant declara--

tion of design; the statement. “Dr. Shepard has potsoned me”

was Wholly of past fact and was oltered and recenved as a dying

declaration, erroneously as the Supreme Court held. In) Mr.

Justice Cakbozo’s words, the Government “did net use the deciara-

tions by Mrs. Shepard to prove her present thoughts and feelings,

or even her thoughts and feelings in times past * * * the testi

mony * * * faced backward and not torward * * * at least * * *

in its most obvious impheations.” Elere the “most obvious im-

plications” of Harry Terker’s statenient looked forward —— he was

going to send money to Bridgeport. “To say that this portion ot

his statement is sufficiently trustworthy for the jury te consider

without confrontation, but that his reference to the telephone call

from Annunziato which produced the decision to send the money

is not, would truly be swallowing the camel and straining at the

gnat. The “vigorous leap” with respect to the hearsay exception

for declarations of state of mind was taken when this was ex-

tended from cases where “it is material to prove the state of a

person's mind, or what was passing in it, and what were his inten-

tions,” Sugden ve St. Leonards, L. Ro 1 B.D. 134, 257 (1876), as

to which the declaration may well be the most reliable evidence

attainable, to cases where the state of mind is relevant only to

prove other action, where it surely is not. Sce Magutre, The

Hillmon Case—Thirty-Three Years .\fter. 3& Harv. L. Rev. 709,

' Professor Morgan may overstate this slightiv when he says

“that to draw the inferenc that Walters went with Hillmon re-

quired an assumption that he had made an arrangement with Hill-

mon” before Walters wrote the letter.

1]

714 CP 2350 5 Prateliens cn Stosen

et. 3M Vale 1. f. 285. 284-288 1 Jee) Pree. creluasrom ef a

’ oa

wer, State ot Named tee Prowe an

pastevento metuating the plan adds the Thavards of detective pet

ception amd menrers tec that oer prevarceatien . beat this ebees mot

demand cxechuston or even execroon. at least wher as here. the

eventos reeent ots withon tue porsemal hinoawledce ot the deeharant

ands seomtegrally aneluded) im the dechiratvai et des

matke mormbheby om the hast decree that the hatter werd) be trae card

The tertier false. * 0 Proeales the staterert ot the pastevent wou

treet doe cacdvensttedd poate teed alee. ces thee Ndr fered cctee Greats | derrt

ties wetld not he the only hearsay cxcepron where the pure petal

THAN Carry seme ales aleme wir See SF Weroprere. bvideree

Oded esp eS. and cases ented. aed Vreerream DPoew Dnstitute.

Medel (tea davtdence Rife 0G: 2) fer the appleation et stich

aoprmerple ander the hearsay cxceptoon fer statements of fact

Agaunst mterest oan exceptron thot weld ceed) be appleable here

bert for thre rather mefeterssd ide Jearrtati om that ot dloes met relate t

- The nigh onpessbhty et dbsentangiing statement. of plan trem

reasons underage them. and the arteritis of ana attempt te de

so, are well dlastrated by some ot the decedent: Wihitralls: state

ments held admissible om the rsne ot patcomity i the celebrated

case ot Lloyd vo Powel Dhittrye Steam Coal Ce. LIMITA NAN ©

733. 7340 Among the statements were Uthat Mee Ltevd) bad

told hint seme things that troulded der: very mineh bart that ot

dear to matter because he wetuld marcy her seom enarch and that

“he was atraid Miss Lloyd was om trealie rt was a case of get:

ting marred Whittall. declarations of design were celinetted

net, aso the (/ilfmren case. te preve a tatare aet. which. mdeed,

Whittal admitted ty never performed. but te establish a past eceur-

rence inferably meting the design) Perhaps. as) shown m

Morgan, Hearsay Dangers and the Vppheation of the Ptearsay

Concept, 62 Flarv Eo Rev 177. 210-212 (1848). ther lordship.’

judgments are net very Tumeneets. but at least me one suggested

that Whittalls starenomts must be spht down the muddle so as to

exclude what) Vice had ied bom and admit only the rest.

statements only against: penal interest, see Wigmore, $1476,

American Law Institute, Model Code of Evidence. Rale S00 (1)

The alternative ground for admissibility is as a statement by a

co-conspirator, Appellant properly makes ne pomt that the in-

dictment did net charge a conspiracy; it is enough if evidence,

other than that whose admissibility is under challenge, disclosed

one. St. Clair ve Carted States, 154 U.S. 134, 149 (1804):

Cutted States vs. Puyliese, 133 F.2d 497, 300 (2 Cir. 1945);

People v. Luctano, 277 N.Y. 348, 14 N. E. 2d 433 (1938). The

serious questions are whether \nnunziato and Harry Terker had

the sort of common purpose that makes certain declarations of one

admissible against the other and, if so, whether Terker’s declara-

tion was of the sort that falls within that rule.

It is quite true that mere yielding to the commission of a crime

against one’s self does net render a complying person a co-con-

spirator. ‘Thus a woman who simply consents to be transported

across a state line for the purpose of engaging in’ sexual inter-

course is not a co-conspirator to violate the Mann Act, 18 U.S.C.

$$2421 et seq., Gebardi v. United States, 287 U.S. 112 (1932),

and, as there stated, p. 123, “It is not to be supposed that the

consent of an unmarried person to adultery with a married per-

son, where the latter alone is guwity of the substantive offense,

would render the former an abettor or a conspirator, compare

In re Cooper, 162 Cal. 81, 85; 121 Pac. 318, or that the acquies-

cence of a woman under the age of consent would make her a co-

conspirator with the man to commit statutory rape upon herself.

Compare Queen v. Tyrrell, [1894] 1 Q. B. 710." We assume

the same would be true of one whose sole role was that of a vic-

tim of extortion. The rationale of this is that when the legisla-

ture has imposed criminal penalties to protect a class of persons, it

can hardly have meant that a member of that very class should

be pumtshable either as an wider or abettor or as a co-conspirator.

In contrast, a person making a payment toa United States officer

for services im relation to a matter in whieh the United States js

laterested, receiptot winch PSUS) C. S287 forbids, may be found

eunkty ot sae a with the ofiieer rece ving ied Siok May \

Cinted States, 173 BF. 2d 94, boO4-1008 (D.C. Cir, 194%), cert.

demicd a LS 830) O40).

Determining which of these lines of authority is the more rele-

vant here requires some analysts of the purpose of 204-02 S.C.

S186. This came inte the statutes as S302 of the Vatt-liartley

Net ot P47, 61 Stat. 136.1357. Seetion 302 (ay made it “untaw-

ful for any employer te pay or debver, or to agree to pay or de-

liver, any money or other thing ef value te any representative of

any of Tis employees who are employed in-oan industry: affecting

commerce. Section 302Cb). previously quoted, made it simi-

larly unlawtul “for any representative of any cmplovees” to “re-

ceive or accept” from an emplover. Seetion 3020) is an elabo-

rate series of exceptions, including carefully circumscribed ones

with respect to welfare funds. “These provisions existed only in

very sketchy form in the Hartley bil passed by the Plouse of Rep-

resentatives, 8Uth Cong. Ist Sess. HE. R. 3020, $8¢a)(2)¢1B) and

((); the Senate removed the provisions from) $8. elaborated

them, and imposed criminal sanctions, $302(d). as well as open-

ing the federal courts to civil suits to restrain their violation,

$302(¢). Most of the discussion centered around welfare funds.

* At least this explains the results under the Mann Act, in statu-

tory rape, and, as we assume, in extortion; it would scarcely seem

todo so with respect to adultery. Hlowever, as to that, “Tt is well

known that the public policy of the several States differs as to

criminal liability for adultery, and where a legislature has made

plain its intent upon that question, prosecutors should not) be

permitted to circumvent that decision.” Jay ve United States,

175 F.2d 094, 1005 (D.C. Cir. 1949), cert. denied 338 U. S.

R30 (1949).

1+

Senator Baii, a majority member of the Labor Committee, de-

clared the purpose to be that these should be “used actually for the

specified benefits to the employees of the employers who contribute

to them and that they shall not degenerate inte bribes,” 93 Cong.

Rec. 4805; Senator Vatt, speaking toe $302¢a), said “That i-, it

may be said. in a case of extortion or a case where the union

representative is shaking down the employer.” 03 Cong. Ree.

4876.

Decisions have recognized that $302(a) and (b) have this dual

purpose—of protecting employers against extortion and of in-

suring honest representation to employees. Judge Learned Hand

said, dissenting in United States v. Ryan, 225 F. 2d 417, 426

(2 Cir. 1955), revd. 350 U. S. 299 (1956), conviction affirmed

on remand, 232 F. 2d 481 (2 Cir. 1956), “Cohgress wished to

prevent employers from tampering with the loyalty of union offi-

cials, and disloyal union officials from levying tribute upon em-

ployers.” Other circuits have stated that “The Taft-Hartley

offense is in the nature of bribery,” Bianchi v. United States, 219

F. 2d 182, 193 (8 Cir. 1955), cert. denied 349 U. S. 915 (1955),

and that “The statute is not limited in its thrust to cases of ex-

tortion * * * Congress wished to assure collective bargaining at

arms length.” Arroyo v. United States, 256 F. 2d 549, 551-552

(1 Cir. 1958), revd. on other grounds, 359 U. S. 419 (1959).

We think it follows that an employer who makes or agrees to

make a payment to an employee representative forbidden by

$302(b) is engaged in a criminal enterprise jointly with the re-

cipient. He is not simply and solely a member of the class whom

the statute aims to protect; he is likewise a member of a class

whose activities the statute aims to curb. The same act which

constitutes an offense by the employee under $302(b) is also one

by the employer under §302(a)—indeed, “An employer might

be guilty under subsection (a) if he paid money to a representa-

tive of employees even though the latter had no intention of

weeping.” .frreye vo Pnited S*ttes, 350 €. S. at 423-424.

Harry Verker was thus a ce-comsprrater |

That, however, is net the end ot the problem. bor althorgh

establishing: the feregemyg atferds an added ground fer the ad-

missibility of Fiarry Perkor’s declarations te Mayhew and Cohen,

beth plamly in “turtherance ot the conspiracy. it may net with

respeet to Parry's declaration to Richard. whose immediate rete

Wes thatoef an aaditer, net am accor In Maw Wiper vo United

Vtales, 13 BL 2d 961, 967 62 Cir, 1260, we said that “merely

narrative declarations fof a conspirator! are not competent.” and

and in (usted States ve Goodman, 120 Fo 2d 108, 1013) ¢2 Cir.

142). we held it error to have admitted what “were merely nar-

rative declarations of a past fact.” even though made while the

conspiracy was continuing. See Curted States vo Compagna,

Ifo FL 2b 324, 330 (2 Cir, 1944): cert. denied 324 U.S. 867

(1943). United States vo Piviltese, sopra, at 200. In contrast, the

Seventh Circuit construes the expression “in furtherance of the con-

-spiracy” as referring “not to the adarssion as such, but rather to

the aef concerning which the admission or declaration is made.”

Titternational Indemnity Co. ve Lehman, 28 F.2d 1, 4 (1928),

cert. demied 278 U.S. 648 (1928). a ruling which Morgan has

characterized as “employing a time-honored judicial device to

*We do not think it necessary to decide whether if \nnunziate

and Harry Terker had been the only persons here involved, the

“Wharton rule” would have prevented prosecution for conspiracy.

see Note, Developments—-Conspiracy, 72 Harv. i. Rev. 020, 033-

9356 (19359), or, if it would, whether that would make the declara-

tien of one participant inadmissible against another. We cannot

see why the latter should be so; the basis of adnussibiiity is a

joint enterprise, whether technically a “conspiracy” or not, see

American Law Institute, Model Code of Evidence, Rule S08¢b).

In any event the Wharton rule would not be appheable here. since

at least two persons other than the payer and the receiver, namely.

Mayhew and Cohen, knowingly participated in the criminal en-

terprise. t

lo

make new Jaw without appearing to neglect, much less to abuse,

the doctrine of stare decisis,” Admissions, 12 Wash. L. Rev. 181

(1937) in ALA. LS.) Selected Writings on Evidence and Trial

(1937), 825, 835; and such an extension of the rule is proposed

in the American Law Institute’s Model Code of Evidence, Rule

5U08(b), and approved by Protessor McCormick, Evidence (1054

ed.), pp. $22-523. See Note, Developments-Conspiracy, 72 Harv.

L. Rev. 020, O83-PR6 (1939). We think Harry Terker’s state-

ment to his son was adiussible even under the historic view of

this Circuit. The statement was not a “merely narrative deciara-

tion of a past fact.” Even the instant payment to Annunziato

lay in the future; moreover, it night well have been important

to Harry's objectives that his son, tuen secretary-treasurer and

later president of the company, should know of his father’s policy

if questions should ever arise or if a simular problem with respect

to Annunziato should be presented in the future.

To round out this discusyon we add there was ample evidence,

other than Harry's statement to Richard, to show the common

plan; the judge needed only enough “to decide whether, if the

jury chose to believe the witnesses,” Harry Terker and Annun-

ziato were engaged in one, United States v. Pugliese, supra, at

500.

Jencks Act and Grand Jury Minutes

This case furnishes further proof, if any were needed, of the

prophetic truth of Mr. Justice Frankfurter’s observation concern-

ing 18 U. S. C. $3500, "The possible permutations of fact and cir-

cumstances are myriad.” Palermo v. United States, 360 U. S.

343, 353 (1959).

(1) The witness Haas had been twice interviewed by the

Government, on September 24, 1958, and shortly before the trial

in the fall of 1960. On the latter occasion he signed a three page

statement, which was delivered to the defense. It is unques-

17

tioned that at his first interview he did) net sign or otherwise

adopt oor approve any statement: the controversy is wheiher an

Interview Report dictated by PLB TL Special Vgent (Temente on

September 25. 1038, the day atter the interview, and forwarded

under date of September 200 came within $3500) 62)

The Interview Report, of sightly more than three single-spaced

typewritten pages and seme SO words, was turned over to the

judge, who permitted defense counsel te examine Elaas in regard

to itn the absence of the jury. Plaas testifed that at the Sep-

tember 24 interview the FBT. agent made notes; that the inter-

view “possibly” Tasted about three hours; and that on his 1960

interview he was not shown cither the notes made in September,

1938, or the Interview. Report, although the agents had “certain

papers in front of them™ to which they referred. Defense coun-

sel made ne request for the calling of Agent Clemente. The judge

announced he would adhere to a ruling, made prior to the detailed

examination of Haas, that. under the Palermo decision, the Inter-

view Report need not be produced.

Examination of the Interview Report in the light of the testi-

mony does not leave us with a clear conviction whether or not the

report came within $3500(e) (2), see United States vo McKeever,

271 F. 2d 669, 673-075 (2 Cir. 19595. On the one hand, “the

statute Was meant to encompass more than mere automatic repro-

ductions of oral statements”; on the other, “summaries of an oral

statement which evidence substantial selection of material, or

which were prepared after the interview without the aid of com-

plete notes, and hence rest on the memory of the agent, are not

to be produced. Neither, of course, are statements which contain

the agent's interpretations or impressions.” 360 U.S. at 352-

353. Here the agent did have notes, how complete we do not

know, and the Interview Report at least purports to be solely

a statement of what Haas said. Selective it must have been if the

interview in fact had lasted about three hours; hence, even though

1s

|

the word-time ratio is shghtly higher than in Palermo, 360 U.S.

at 353. fn. 12. tas hardly “a substantially verbatim: recital of an

ofal statement’ aif chat requires not only correctness but a com-

pleteness that would include the immaterial and the trivial as well

as the pertinent, The obvieus Way to help resolve these doubts

wold have bece to call Agent Clemente, at least if he was avail-

able, Cumpheli v. Ciited States, 365 U.S. 85 (1961 ).

Whether the Cumpbeil decision means that, under circumstances

such as here presented, the judge was required to ascertain the

availability of the F.BAL agent and require his production if

available, even though, in contrast to Campbell, 365 U.S. at O4,

this Was net even suggested by defense counsel, is a serious (ques-

thon— perhaps he might be since, as it is all too easy to forget, the

Judge had a knowledge of the nature of the Interview Report

which defense counsel did not. We do not feel called upon tod

resolve that issue here. Careful serutiny of the Interview Report

convinces us that on no basis could it have assisted the defense.

Cs nvinces us that on no basis could it have assisted the detense.

Both the majority and the minority opinions in Rosenberg V.

United States, 360 U.S. 367, 371, 375 (1959), spurn the ex-

treme view “that the harmless error doctrine can never apply as

to statements producible under the statute, see Bergman vy, l baat

States, 253 F, 2d 933; United States v. Prince, 264 F. 2d 850. |

Even taking as our test the presumably more rigid standard laid

down by the minority in Rosenhery, pp. 375-376, that we must

remand “unless the circumstances justify the conclusion that a

*In the light of this ruling by the Supreme Court, we go

occasion to consider whether there Is a sufficient basis le -

guishing, as regards 28 U.S. C. $2111, error in the ae ae

statement producible under the Jencks Act — — ina :

of the judge to read the minutes of grang jury rr .

government witness and to make available to the defense — e

tions containing inconsistencies, OF the different views as to 5 sig?

ter that have been expressed by judges of this Court, sec | * ’

States v. Giampa, I°. 2d oma (1961) and : nited S ee =

Hernandes (on petition for rehearing ), F. 2d (1961).

10

indhing that such a denial fof a statement prodneible under $3500 |

was harmful error would be clearly erroneous,” we answer that

here it would be, fully recognizing, as we say this, the caution that

“appellate courts sliould be hesitant to take it Upon themselves te

decide that the defense could not have effectually utilized a pro-

ducible statement.” The Interview Report checks fully with

Haas’ trial testimony. Tad we been defense counsel. we would

have bitterly regretted receiving it, sinee its production. would

have presented the dilemma, which trial law vers strive desperately

to averd, that examination on the report would only reintoree the

Witness’ testimony whereas failure te use it would do the same.

Beyond this, Haas’ testimony as to the delivery of the envelope

Was corroborated both by Mayhew. wiiese testimony was even

more dircet, and, in some degree, by Van Dommellen, Applying

the test of harmless error, 28 UL S.C. $2111, laid down in Kot-

feakos Vv. Cited States, 328 UL S. 730. 765 61940). we pro-

nounce this to have been such, Karp vo United States, 277 F. 2d

843, 840 (8 Cir. 1960), cert, defied 364 U.S. 842 (1900)——ii

error it was.

(2) Richard Terker testified he was first interviewed by the

FBI. in the fall of 1958. The interview lasted “About two,

two and a half hours.” the agents made longhand sil and

Richard looked at them at the end of the interrogation, Po the

question whether the notes were accurate and correct, he answered

“LT would imagine so, ves.” When defense counsel asked for pre :

duction of the notes, the prosecutor responded, “T have ccicguine

your Honor, by the term ‘longhand netes’ as allucled to _ this

testim my: We do have, as has been developed im the inal

of other witnesses, the F.BoE. memorandum of the guna

Defense counsel then gave “notice * * * to produce the —"

notes that were taken on questioning the witness, and the witness

ed ° ‘ . oa* or

read over and consented to”; the judge noted the, prosecutor

x“! . . r es oa ci ¢ Q ft -

statement “that no such notes are in his possessron. Phere

20

lowed a conference at the bench. as to the content of which the

transcript does not inform us.

erker’s testimony created at least a prima facie case that the

Tlonghand notes were “a written statement * * * otherwise ade ypted

or approved by him” within $3500(¢)(1). Hence, if defendant

had sought the memorandum of the interview mentioned by the

prosecutor, he should have been given it for use as secretary

evidence of the contents of the destroyed notes, see United States

Vv. Phemas, 282 F.2d 191, 193-195 (2 Cir. 1960), or perhaps, if

facts elicited on an inquiry warrantetttas independently producible

under $3500(¢)(2). However, defendant made no such re-

quest and the point is thus foreclosed.

(3) Richard Terker had testified briefly before the grand jury

on May 25, 1960. At defendant's request the judge examined

the minutes of this testimony for possible inconsistencies, in ac- 4

cordance with the procedure directed in United States v. Spanyelet,

mew -

~

2d 661. 666 (2 Cir. 1959) ; and United States v. Hernandes, 282

FE. 2d 71 (2 Cir. 1960), on rebearing, F. 2d —— (2 Cir.

1961). Finding no inconsistencies, he declined to make the min-

utes available to the defense. We have reviewed the minutes and

likewise find none. "

Affirmed.

APPENDIX B

Cross-examination by Mr. Jacoss:

Q. Mr. Terker, did you ever sign any statements for the |

Government in connection with this case? A. I don't beheve so.

(). When were you first questioned by the Government in con-

nection with this case? A. Oh, I'd say about two years ago.

©. Where would that take place? A. First time was in the

office, in our office.

21

QJ. That's about the fall of the vear 1958? ALT would

place it somewhere around there.

(. Who questioned you about it. sir? A. There were two

Federal agents, Federal Bureau of Investigation agents.

©. Hlow much time did they spend with you? AL About

two, two and a half hours.

Q. Did they make notes while you were talking? AL Yes.

(). Did you ever have occasion to look over those notes, Mr.

Terker? A. Yes.

Q. When was that, sir? Al At the conclusion of the inves-

tigation — or questioning.

@. On that particular occasion? Al Yes. It was long-

hand notes.

Q. Yes. Were those notes accurate and correct, so far as you

know, sir, on looking them over? A. 1 would j Imagine so, yes.

©. Sure.

. hes ae 5 t . a 1.9>

ne lee PSur Honor, by the térm “fongnaNlr Rows! as a

to in this testimony. We do have, as has been developed hye

testimony of other witnesses, the F.B.1. memorandum of thed

terview. | he

Mr. Jacoss: I hereby give you notice to produce the n-

hand notes that were taken on questioning the witness, an

witness read over and consented to. ig-

The Court: Well, you have made that request, Mr. Jche

of the Government, and Mr. McDonald, acting for the Gc

ment in the presence of the jury, has informed you that :*

notes are in his possession. | ,

Mr. McDona'v: Your Honor, may I approach the be

The Court: right. €

(Discussion att ench)

* » * * * *

Mr. McDonatp: Your Elonor, with reference to the Federal

Sureau of Investigation notes referred to in the cross-examiina-

tion, | have ascertained that those notes are no longer in existence.

Mr. Jacoss: Well, | would like that to appear on the record

betore the jury, that these are not in existence, so that Pecan claim

an inference from that.

Mr. MeDonatp: T don't know what inference can be drawn

from that, your [lonor.

Mr. Jacoss: The inference that can be drawn from that 1s

that evidence in the particular case is no longer available, and it

has been destroyed by apparently someone on the Government's

side. I claim this would be a proper inference for the jury to

consider in this particular case, the reason for the non-availabil-

ity of this particular evidence has been destroyed, or is not avail-

able for other reasons. i

It would ve the same thing av if we had a civil action here, your’

Honor. Certain notes wefe made at a certain time, and then

destroyed by a particular party to the act.

Mr. Huttcren: If your Honor —

Mr. Jacoss: Justlet me finish. =~

Or one of the representatives, then I take it the jury is entitled

to consider and draw from that an inference which they can con-

sider as part of the entire case.

Mr. HuLtGren: If your Honor please, what Mr. Jacobs is

saying is that the inference can be drawn that we are hiding some-

thing that will show his innocence, and the jury can draw that

inference. Those notes were destroyed in the usual course of

business by the F.B.I., and made into an oral report by the agent.

and they were destroyed at the time of the interview, not yester-

day, or due to this trial.

Also, it casts a reflection upon our office. I submit to the

Court that if there was anything helpful to the accused in our case,

like that, we would bring it forward. And, I submit, no infer-

és

ence should be drawn from the fact that those notes were ce-

stre ved.

The Court: T think itis fair that that statement by Mr. Me-

Donald be made on the record with the jury present, since there

Was an interchange between Mr. Jacobs and Mr. MeDonald wath

respect to the existence of those notes. but PE think that is all that

Is necessary to be said at this time in the presence of the jury.

Vhe Court will order that there be no argument or interchange

between counsel in the presence of the jury with respect to what

inferences they can or cannot draw from that fact.

Counsel on both sides are aware of their rights as to producing

evidenes. calling upon witnesses, to establish whatever they

may wish ro establish, but all that I am concerned with now, with

the witness on the stand, 1s that a request was made by Mr. Jacobs

of Mr. McDonald for notes, if there are any, which this witness

referred to in his testimony.

Mr. McDonald said before the recess, as I recall, that he did not

have the notes in bis possession, did not have them here. — He has

now further stated that his investigation has established that the

notes are no longer in existence, and T will permit Mr. McDonald

to state that before the jury. I suggest there be no further argu-

ment between counsel on that in the presence of the jury.

We have taken evidence. Now, whatever argument you wish

to make should be reserved to the end of the case.

In the meantime, counsel on cither side can take whatever steps

they wish to take with respect to producing evidence on this sub-

ject, or any other subject.

Mr. Jacoss: Well, I hadn't intended to say anything about

that now, your Honor, but I just want to understand, because I

may mention it in my final argument, that is. at the close of the

case, if we get that far. I am wondering if your Honor’s ruling

— does it in fact foreclose me from mentioning this in final argu-

ment, or is that something left open, your Honor?

-4+

The Court: Lamonot ruling on that now AIL TD meant was.

His ts net the tine to argue the case. Mr. Jacobs.

Mr. Me Donato: Your Henor. it appears to ome that betere

this should come in. in the presence of the pury. at ought te he

established that Mr. Jacobs has a right.te see these notes ands

$300. | dent think that has been established as vet.

Mr. Jacoss: TP thought that the testimony of the witness was

that alter the conclusion of that mterview that occurred, DP belreve

it was im the tall of P9S8, that he remembers he read over these

notes, and they accurately represented what he told: the Govern:

Ment agent,

And so that TP claim that they were an accurate transcription of

What he said. and he had read them over, and approved them, and

adopted them. “That's the theory on which T claim them.

The Court: Well, TP think vou are going much further, Mé@

Jacobs, than the testimony of the witness went. At least, aceord-

Ing tomy notes, whatevercthey are worth, on vour cross-examina-

tion of this witness, Mr. Perker testified that he was first: ques-

tioned by the F.B.L. agents about two vears ago, the fall of 193s,

and he looked over the notes of that interview, made during that

tirst interview, that is, he looked over the notes at the end of that

interview, as [understand it.

I don't recall any testimony that he said he adopted them or —

Mr. Jacoss: No, no. T say, it seems to me that he went

further than that, if my recollection of the testimony is correct,

that he looked them over, and that they were accurate notes of

what he said there.

New, T don't say he says he has adopted them: T say by doing

what he did, in fact did, he did adopt them.

The Court: Well, that, again, is a matter of argument. This

Witness is still here under cross-examination by vou. As T told

vou just before the noon recess, T will permit vou to cross-examine

this witness, or any other witness, with respect to conversations

or interviews with representatives of the Government. and with

respeet to ins examonaten of amv memoranda. records. netes. and

sootorth, af those qnterviews. Po further uimk directing am se's

te Mr MeDonald that ts mot necessary fer the (court ceo rude at

thes time whether this cs a statement am the purview of Seetron

Jaw)

Whether itis cer net. Pothonk counsel is entitled te develope on

cross-soNgmiination whreatotoanythone. this witness das umhved te

refresh dis recollection te testy here. or te refresh dis recetlee

Peron commection with the vartotus comterences he lied with varrous

representatives of the BoE T

Mr Me Donatp The dh se. veur Pboner

The (our: Tt he did se the request by the defendant te

the Government tor the producaem of a statement under Section

S500 has been with reference te these motes, and the request having

been made and response by the Government having been made, as

appears in the record. the onty further thing that Po think the

record should show in the presence ot the jury as the statement

that vou pust made.

And with that, P think that subject should be dropped