Respondents Brief in Opposition — Annunziato v. United States (No. 404)

Uffice-Supreme Court, uU.s.

FILED

LosRArey

SUPREME COURT. y OCT 12 1%61

JAMES R. BROWNING. CLERK

No. 404

& the Supreme Court of the United States

OCTOBER Trrm, 1961

SALVATORE ANNUNZIATO, PETITIONER

Vv. ;

Unrrep STaTes oF AMERICA

ON PBTITION FOR 4 WRIT OF CERTIORARI TO THE UNITED

BTATRS COURT OF APPEALS FOR THE SECOND OIROUIT

‘BRIEF FOR THE UNITED STATES IN OPPOSITION

~ Attorney,

Department of Justice,

‘ * Washington 25, D.O.

,

INDEX

Opinion below. - i i

Jurisdiction... __- ee =

Questions presented.

Statutes involved

Stutement— — -

Argument. -— - -

Conclusion

CITATIONS

Causes:

Aldridge v. United States, 283 U.S. 308... -

Bailey v. United States, 53 F. 2d 982. __. - _- -

Beatiy v. United States, 27 ¥. 8d 328. -.- 2 __-

Beaver v. Taylor, 1 Wall. @7_...........-..

Brown v. United States, 150 U.S. 93... .__-

Campbell v. United States, 365 U.S. 85_. __.

Connelly v. United States, 249 F. 2d 576, cer-'

tiorari denied, 356 U.S. 921... _ _.

Costello v. United States, 255 F. 2d 389, cer-

tiorari denied, 358 U.S. 830____.. __- es

Costello v. United States, 350 U.S. 359_-_- . _.

Glasser v. United States, 315 U.S. 60_- :

Hitchman Coal «& Coke Co. v. Mitchell, 245

Holt v. United States, 218 U. S. 245... an

Jencks v. United States, 353 U.S. 657... eS oe

Lawn v. United States, 355 U.S. 339__._____-

Logan v. United States, 144 U.S. 263. ._____-

Mulloney v. United States, 79 F. 2d 566, cer-

tiorari denied, 296 U.S. 658_.__.___.____-

Mutual Life Insurance Co. v. Hillmon, 145

614744—61——1 (1)

II

Cases—Continued

O’Connell v. United States, 40 F'. 2d 201, cer-

Page

tiorari dismissed, 296 U.S. 667...._._.__.. 9

Palermo v. United States, 360 U.S. 343_____- 16, 17

Rosenberg v. United States, 360 U.S. 367___- 14

St. Clair v. United States, 154 U.S. 134___. 13

Sellers v. United States, 271 F. 2d 475__-__-_- 10

United States v. Benjamin, 120 F. 2d 521-_--- 9

United States v. Cleary, 265 F. 2d 459, cer-

tiorari denied, 360 U.S. 936......_____- 9

United States v. Compagna, 146 F. 2d 524,

certiorari denied, 324 U.S. 867__._.______- 13

United States v. Goodman, 129 F. 2d 1009-__.- 13

United States v. Keenun, 267 F. 2d 118, cer-

tiorari denied, 361 U.S. 863___._.______-_- 9

United States v. Kimball, 117 Fed. 156______- 9

United States v. Klein, 247 F. 2d 908, certiorari

denied, 355 U.S. 924____.._.__..--_-__-- 9

United States v. Parker, 244 F. 2d 943, cer-

tiorari denied, 355 U.S. 836..__.______.-- 9

United States v. Pile, 256 F. 2d 954. _______- 9

United States v. Pugliese, 153 F. 2d 497.____-_- 13

United States v. Scully, 225 F. 2d 113, cer-

tiorari denied, 350 U.S. 897___.___._____- 9, 10

United States v. Thomas, 282 F. 2d 191___-__- 19

Van Riper v. United States, 13 F. 2d 961,

certiorari denied sub nom. Ackerson v. United

SR, Be ee Peo nee chances : 13

Statutes:

Labor-Management Reporting and Disclosure

Act of 1959, 73 Stat. 519...............- 3

18 U.S.C. 3500. .....__--- 2, 3, 13, 14, 19, 17, 18, 19

a FE ak we nhdccaced secures 3, 4,12

Miscellaneous:

Morgan, A Suggested Classtfication of Utter-

ances Admissible as Res Gestae, 31 Yale L.

Pee. TP te ss on cow eanebetencen sax 11

6 Wigmore, Evidence (3d ed., 1940), § 1725__- 11

Gn the Supreme Court of the United States

OcToBER TERM, 1961

No. 404

SALVATORE ANNUNZIATO, PETITIONER

Vv.

UnitrAp STATES OF AMERICA

GN PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (R.' 149-167;

Pet. App. 3-20) has not yet been reported.

JURISDICTION

The judgment of the court of appeals was entered

on July 26, 1961 (R. 168). <A petition for rehear-

ing (R. 170-174) was denied on August 14, 1961

(R. 176). The petition for a writ of certiorari was

filed on September 12, 1961. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

1“R.” refers to the printed record, consisting of the appen-

dices to the parties’ briefs in the court of appeals and the

proceedings in that court.

(1)

2

QUESTIONS PRESENTED

1. Whether a witness before a grand jury who was

warned of, and exereised, his right not to incriminate

himself is entitled to dismissal of an indictment later

returned against him because he was not told that he

was an object of the grand jury’s investigation.

2. Whether a trial judge may in his discretion

decline to inquire, on voir dire examination of the

jury panel, whether any members of the panel are

members of or contributors to any organization hav-

ing law enforeement as an object.

3. Whether inadmissible hearsay testimony was re-

ceived at the trial.

4. Whether it was error for the trial judge, in

determining whether an F.B.I. agent's 800-word re-

port of a three-hour interview with a government

witness, which the witness never saw or adopted, was

producivle under 18 U.S.C. 3500, to fail to call the

agent who wrote the report for examination as to the

circumstances of its preparation; and whether, in any

event, the failure to call the agent was prejudicial in

this case.

5. Whether a defendant can complain on appeal of

the failure of the trial judge to order delivered to

him a document which does not appear to have been

producible under 18 U.S.C. 3500 and for witich he

never asked.

3

STATUTES INVOLVED

Section 186 of Title 29 of the United Stat

provided in pertinent part at the time of the a

. »

involved (July 3, 1957) : * f

~ hse

(a) It shall be unlawful for any emp

pay or deliver, or to agree to pay or

any money or other thing of value to a ‘°

resentative of any of his employees \°T

employed in an industry affecting comr ?”

(b) It shall be unlawful for any rep Te

tive of any emplovees who are employé

industry affecting commerce to receive sei

cept, or to agree to receive or accept,

employer of such employees any mo

other thing of value. be

& # + *

(d) Any person who willfully viol:

of the provisions of this section shall, UW

viction thereof, be guilty of a misdemea_*

be subject to a fine of not more than $1

to imprisonment for not more than one ‘

both.

or

* * & *

Section 3500 of Title 18 of the United Sta

provides in pertinent part: a

* * *# *

(b) After a witness ealled by the

States has testified on direct examina,-

court shall, on motion of the defenday,,

the United States to produce any state,

hereinafter defined) of the witness in, .

. . S-

2 The section was subsequently amended (in respect

material) by the Labor-Management Reporting and

d 9459, 72S 419, 537

Act of 1 i> stat. 519, 55. va

4

session of the United States which relates to

the subject matter as to which the witness has

testified. If the entire contents of any such

statement relate to the subject matter of the

testimony of the witness, the court shall order

it to be delivered directly to the defendant for

his examination and use.

* * * e *

(e) The term “statement’’, as used in sub-

sections (b), (c), and (d) of this section in

_ relation to any witness called by the United

States, means—

(1) a written statement made by said witness

and signed or otherwise-adopted or approved

by him: or

(2) a stenographic, mechanical, electrical, or

other recording, or a transcription thereof,

which is a substantially verbatim recital of an

oral statement made by said witness to an agent

of the Government and recorded contempora-

neously with the making of such oral statement.

STATEMENT

Count 1 of a two-count indictment, returned May

25, 1960 in the United States District Court for the

District of Connecticut, charged petitioner with

having received $300 on or about July 3, 1957 from

the Terry Contracting Company (a firm whose em-

ployees he represented), in violation of 29 U.S.C.

186 (b) and (d), supra (R. 1; Pet. App. 4). Count 2,

which charged the receipt to a separate payment, was

dismissed pursuant to a nolle prosequi and is no

5

longer involved.’ Following a trial by jury, petitioner

was found guilty (R. 143). He was sentenced to one

year’s imprisonment and to pay a fine of $2,500 and

the costs of the prosecution (R. 2). The Court of

Appeals for the Second Circuit affirmed (R. 149-168 ;

Pet. App. 3-20).

The evidence adduced by the government may be

summarized as follows:

In 1957 the Terry Contracting Company, a New

York City concern, was engaged in constructing the

Bridgeport Harbor Bridge, part of the Connecticut

Turnpike (R. 3-4, 34, 39-40, 45). Petitioner was

business agent for a local of the International Union

of Operating Engineers, members of which were en-

gaged in work on the site (R. 35-36).

On or about July 3, 1957, at about 11 a.m., peti-

tioner went to the office of the timekeeper for the bridge-

construction project, located in a trailer, and inquired

of the timekeeper, Walter Haas, and the job superin-

tendent, Arthar Van Dommellen, whether ‘‘someone

from New York was there to sce him” (R. 3-4, 7, 34,

37). Van Dommellen told petitioner that no one from

New York was there then, but that he “expect[ed]

Mr. Mayhew later’? (R. 37). William Mayhew, to

whom Van Dommellen referred, was the Terry Com-

pany’s chief engineer, in general charge of all its

* Prior to trial the government filed an information charging

petitioner with the same offense stated in count 2 of the indict-

ment. Without objection, count 2 of the indictment was dis-

missed and count 1 and the information were tried together.

The jury acquitted petitioner of the charge contained in the

information (R. 1; Pet. App. 4-5).

6

construction projects (R. 39-40). Petitioner told

Van Dommellen that he would “wander around”’ and

“he back’’ (ht. 37).

A short while later, Mayhew arrived at the con-

struction site with Philip Wolf, the chief estimator

for the Terry Company (R. 7, 33, 41). Petitioner,

returning to the office, was told by Van Dommellen

that ‘*Mr. Mayhew and Mr. Wolf were in the office, if

he wanted to see them’’ (R. 37). Petitioner entered

the office and introduced himself to Mayhew (R.

41-42). Mayhew “attempted to introduce” petitioner

to Wolf and invited him to a diner for a cup of coffee.

Petitioner declined, saying that he was ‘“‘not interested

in * * * coffee’? and that “This ain’t no_ social

eall’”? (R. 8-9, 42). Mayhew, accordingly, attended

promptly to “the business [he] had with him’ (R.

42)—the delivery of a sealed, three-by-five-inch, ma-

nila envelope which the president of the Terry Com-

pany, Harry Terker, had given to Mayhew in New

York on the previous day with the request that he

deliver it to petitioner (R. 8-9, 42-46, 99). Although

Mayhew had not seen the contents of the envelope, he

could tell from its “bulk” that it had ‘‘something in”’

it, between three-cighths of an inch and half an inch

thick, which could be “flex[ed]’’ (R. 44-45, 47). Pe-

titioner took the envelope and left (R. 43).

Mayhew testified that Harry Terker, who was de-

ceased at the time of the trial (R. 47), gave him the

envelope in the company’s New York offices with the

request that he deliver it to ‘‘the business agent for

the operating engineers” on the Bridgeport project

(R. 45, 99). Terker, in response to Mayhew’s inquiry

wv

7

as to the purpose of the envelope, said that it was ‘‘for

a commitment that [he had] made." Mayhew told

Terker he “prefer[red] not to carry the cnvelope’,

but agreed to do so when Terker persisted in his re-

quest (R. 99). :

Ralph Cohen, comptroller of the Terry Company,

identified a cash voucher for $300, dated June 28,

1957, bearing Mavhew’s name and the notation ‘Job

No. 719, Sundries” (R. 55-56, 59-61). The voucher

was In Cohen's handwriting and was a company rec-

ord, kept in the regular course of business (R. 59).

Cohen identified ‘Job No. 719" as the Bridgeport

Harbor Bridge project (R. 61). The voucher bore

the further notation ‘‘Receipt of the above is hereby

acknowledged’’, followed by Colen’s initials (R. 61).

The document evideneed on its face, Cohen testified,

that $300 in company funds had been given to May

hew to enable Mayhew ‘‘to pay a sundry expense on

the job’, which, to Cohen’s knowledge, meant ‘ta pay-

ment to somebody for some purpose”’’ (R. 61-62, 64).

Cohen did not deliver the money to Mayhew direetly,

Cohen testified, since if he had done so he would have

required Mayhew to sign the voucher, and Mayhew

had not signed it (R. 65). Rather, Cohen testified,

he pul the neeney in an envelope and gave it to Harry

Terker, the president, whom Cohen did not always re-

quire to sign the voucher in such instanees (R. 65,

69). Cohen further testified that Terker had told him

that the purpose of the $3800 was ‘‘[f]Jor Mr. May-

hew’s use to pay somebody * * * on the job”

(R. 71).

614744-- 61——-2

Richard Terker, the secretary-treasurer of the

Terry Company at the time of the offense and the

son of Harry Terker (R. 77), testified to a luncheon

conversation he had with his father in the latter part

of June or the early part of July 1957 in which his

father told him that petitioner had asked him for

money in connection with the Bridgeport Harbor

Bridge project and that he had agreed to send peti-

tioner some (R. 80). The sum mentioned by his

father, Richard testified, was $250 (R. 84).

No evidence was adduced on behalf of the defense.

ARGUMENT ;

1. Petitioner contends (Pet. 7-9) that the trial

court erred in refusing to dismiss the indictment on

the ground that when he was called before the grand

jury he was a ‘‘de facto’? defendant, **[mJarked for

prosecution’, but was not so advised. Assuming

arguendo that he was a target of the grand jury in-

quiry, there is no merit to the contention.

As pointed out by the court of appeals (R. 153; Pet.

App. 7), and as petitioner now concedes (Pet. 7),

he was advised of his right to remain silent before

he was taken into the grand jury room on his first ap-

pearance before that body, and on his second and

final appearance he claimed his privilege against self-

ineriminatien witn the first question and repeated the

elaim with every question that could possibly be in-

eriminating. His rights as a witness who was himself

an object of the grand jury's investigation were thus

9

fully protected!) There was no need for the govern-

ment attorney to expand his warning by stating ex-

plicitly that petitioner was under investigation, since

the warning as worded carricd this reasonable impli-

cation. This is net a case, moreover, In whieh the

grand jury testimony of a witness, against whom an

indictment is subsequently returned, ts used or souglit

to be used against him at his trial. Ct. United States

v. Keenan, 207 F. 2d 118, 126 (CoA. 7), certiorari

denied, 361 U.S. 8603; Costello ve United States, 255

KF, 2d 389, 399-400 (CLA. 8), certiorari: demed, 358

U.S. 830; Connelly v. United States, 249 F. 2d 576,

58L (C.A. 8), certiorari demed, 356 U.S. 921. What

petitioner seeks is outright dismissal of the indict-

ment simply beeause of the alleged violation of his

rigits as a grand jury witness who was himself sus-

pect. In no event was he entitled to this. United

States v. Cleary, 265 F. 2d 459 (CLA. 2). certiorari

denied, 360 U.S. 936; United States v. Scully, 225 F.

Cf. United States vo Neenan, 267 F. 2d 118, 126 (C.A, 7).

certiorari denied, 361 U.S. S63; United States vo Clary, 265

F. 2d 459 (CLA. 2), certiorari denied, 360 U.s. 956: United

States v. Pile, 256 F. 2d 954 (CLA, T): Costello ve United

States, 255 F. 2d 889, 399-400 (CLA. 8S), certiorari: denied, 358

U.S. 830: Connelly ve United States, 249 F. 2d S76. 581 (CLA.

&), certiorari denied, 356 U.s. 921: United Ntates ve Nein, 247

F. 2d 908, 920-921 (CLA. 2). certiorari denied, 355 U.S. 924:

United States ve. Parker, 244 F. 2d 9438. 945-949 (CLA, 7),

certiorari denied, 355 U.S. 836: United States ve Neully, 225 F.

2d 113 (C.A. 2), certiorari denied, 350 U.S. 807; United Ntates

v. Benjumin, 120 F. 2d 521, 522 (Cu. 2) 3 Mulloney v. United

States, 79 F. 2d 566, 578-580 (CLA. 1), certiorari denied, 296

U.S. 658: O'Connell v. United States, 40 F. 2d 201, 205 (CLA.

2), certiorari dismissed, 296 U.S. 667; United States v. A inball.

117 Fed. 156 (C.C.S.D.N.Y.).

10

2d 113 (C.A. 2), certiorari denied, 350 U.S. 897. Cf.

Holt v. United States, 218 U.S. 245, 247-248; Costello

v. United States, 350 U.S. 359; Lawn v. United oe

355 U.S. 339, 349-350.

2. There is likewise no merit in the contention (Pet.

9-11) that it was error for the trial judge to decline

to ask the members of the petit jury panel, upon voir

dire, whether any of them were members of or con-

tributors to any organization having law enforcement

as its object. The trial court has 1 broad discretion

as to the questions to be asked prospective jurors.

Aldridge v. United States, 283 U.S. 308, 310. While

this discretion may, of course, be abused (see td., at

310-315; Sellers v. United States, 271 F. 2d 475

(C.A.D.C.)), there was no abuse here. It is one

thing, as noted by the court of-appeals (R. 154; Pet.

App. 8), for a judge to refuse to inquire whether any

prospective juror belongs to an organization having as

its special object the enforcement of the particular

law under which the accused has been indicted. Cf.

Beatty v. United States, 27 F. 2d 323 (C.A. 6) (pro-

hibition) ; Bailey v. United States, 53 F. 2d 982 (C.A.

5) (same). It is another where the inquiry sought by

the defendant relates to membership in an organiza-

tion devoted to the improvement of law enforcement

generally, which is che responsibility of every citizen.

Petitioner, as the court below properly concluded (R.

154; Pet. App. 8), ‘‘cast his net too wide”.

3. Petitioner contends (Pet. 11-12) that Richard

Terker’s testi ony that his father told him, some time

prior to the alleged unlawful receipt of money by pe-

titioner, that petitioner had asked him fur money and

11

that he had agreed to send petitioner seme Csapra,

p. 8) was hearsay and inadmissible. We submit that

the court of appeals correctly held CR. 155-162: Pet.

App. 9-16) that this testimony was properly admitted

hoth as a “declaration of the father’s intention” and

as a “declaration of a co-conspirator” CR. 155; Pet.

App. 9).

The existence of a design or plan to do an aet is

admissible to show that the aet was probably done as

planned, and, under a well recognized exeeption te

the hearsay rule, the plan or design may be sliewn

by the person's own statements as to its existence,

6 Wigmore, Fridence (8d ed., 1940), 81725; Mutual

Life Insurance Co, Vv. Fillmon, VAS US. 285. 295-296.

* Petitioner's statement that “virtually the ertire case against

[him] was an edifice built of hearsay testimony” (Pet. 1) 12)

is unfounded. The only testimony besides Richard) Terker'-

Whieh has been challenged (see Ro 1st: Pet. App. sy) was 1)

Mayhew’s testimony that Harry Terker asked him to take the

envelope which he received from Terker to Bridgeport so that

Terker might keep a commitment he had made to petitioner

(xuprt, pp. 6-7) and (2) Cohen's testimony that Harry Terker

told him to draw $300 “[ flor Mr. Mayhew’s use to pay some-

Dody oo am toe [ Bridgeport | job” Ty ee 7). The

court below rightly held that these statements “fall so clearly

within Professor Morgan's sixth class [of utterances admissi-

ble as res gestae], ‘Cases in which the utterance is contempora-

neous with a nonverbal act, independently admissible. relating to

that act and throwing some light upon it’ [citing Morgan, 1

Suggested Classification of Utterances Adinvissthle o« Ris Gestac,

31 Yale L. Journ, 229, 236 (1922) ]. * * * that we do net need

here to consider other possible grounds of admissibility” CR.

154-155; Pet. App. 8-9). See Bearer vi Taylor, 1 Wall. 637.

642. Since petitioner “does not intend to press these points

[the admissibility of Mayhew’s and Cohen's testimony] seri-

ously” (Pet. 12), there is no occasion to elaborate the matter

further.

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14

(supra, pp. 3-4). Petitioner contends (Pet. 13-14)

that the judge, although he was not requested to

do so, should have called the agent for. question-

ing as to the circumstances of the preparation of

the report. The court of appeals held that it was

unnecessary to consider whether the judge should

have ealled the agent because in any event the error

was harmless—for the reason that the report (which

the court of appeals examined) had no impeach-

ment value at all (R: 163-165; Pet. App. 16-19).

7As. noted by the court of appeals (R. 164-165; Pet.

App. 18), both the majority and dissenting opinions in

Rosenberg vy. United States, 360 U.S. 367, 371, 375, reject

the view that the harmless error doctrine can never apply

to statements producible under 18 U.S.C. 3500. In that case

the error--failure to require production of a letter written

by the witness-victim to the United States Attorney—was

field harmless because the substance of the letter’s contents

had been otheywise made available to the defense. But there

is no reason ‘to distinguish such a situation from one in

which inspection of an erroneously withheld document shows

that it could not have aided the defense because it was lack-

ing in impeachment value. Application of the harmless

error principle in the latter situation does not, as petitioner

argues (Pet. 13), “[violate] the basic concept behind the

decision in Jencks.” The Jencks decision, 353 U.S. 657, estab-

lished the principle—now confirmed by the “Jencks” Act—

that laying a foundation of inconsistency between a_ wit-

ness’s testimony and the }.‘or statement of the witness is

unnecessary. But this is not to say that the error of with-

holding a producible statement would be necessarily preju-

dicial. If the appellate court’s examination of the withheld

document convinces the court that production could not have _

helped the accused becauss;it was wholly lacking in impeach-

ment value, the ieee doctrine is as applicable as

in any other situation in which error has not been

prejudicial.

The agent’s report is on file with the Clerk of this Court,

should the Court desire to examine it,

,

15

Although we agree with the court that any error

was harmless, we submit that there is no need to

reach the question of harm because the failure of

the judge to take the unsolicited action of calling

the F.P.I. agent was not error. r

Haas was interviewed twice by the Federal Bureau

of Investigation—on September 24, 1958, and = on

October 20, 1960 (R. 12, 13, 15, 23-24). On the

second occasion he signed a three-page statement,

which was delivered to the defense and is not

involved (R. 10, 19). On the day following the first

interview, September 25, 1958, agent Clemente dic-

tated a report of the interview, which Haas never

saw (R. 13, 22). The report, dated September 29,

1958 (evidently the date the agent signed and for-

warded it), consisted of slightly more than three

single-spaced typewritten pages, approximately 800

words (R. 12, 13, 163; Pet. App. 17). The interview

which was the subject of the report lasted approxi-

mately three hours (R. 17-18).

At the trial, the government attqiney, after deliv-

ering to the defense the 1960 statement signed by

the witness (R. 10), advised the court and defense

counsel of the existence of the agent’s report of

the 1958 interview, stated that in the government's

view the report was not producible under 18 U.S.C.

3000 because it was ‘‘merely the agent’s summary

of conversations with the witness’’, and delivered

the report to the court for its inspection (R. 11-

13). The court, noting that the report ‘tappears to

be a statement almost on all fours with the type

16

of statement * * * referred to in the Palermo

case’’ (Palermo v. United States, 360 U.S. 343), ruled

that it was not producible (R. 13).

Counsel for the defense made no request for leave

to examine the agent who prepared the report, nor

did he ask that the prosecutor or the court interrogate

the agent.” The defense attorney’s only request was

that he be permitted to interrogate the witness to

determine whether he had ever *‘adopted”’ the agent's

report (R. 14). This request was granted (R. 15)

and the witness was questioned to this end (R. 15-25).

The defense attorney sought to ascertain whether the

witness had said anything to the interviewing agents

during the 1960 interview which might be construable

as an adoption of anything contained in the 1958 re-

port (R. 16, 17, 18, 23, 24). .He was not successful in

establishing that there had been any such adoption

(tbid.). During this inquiry the witness testified that

he ‘‘believe[d]’’ that the interviewing agent at the

1958 intepriew took notes (R. 15), but defense counsel

made no attempt to ascertain, from the government

or any other source, whether notes in fact were taken

or, if so, how complete they were or whether they

were still in existence. Following counsel’s examina-

tion, the court repeated its ruling that the agent’s 1958

report was not producible (R. 25).

This ruling was correct. The agent’s report sum-

murized in approximately 800 words statements made

by the witness in a three-hour interview. It was

possible, consequently, for the trial court to determine

* Questioning the agent was mentioned by no one during the

proceedings.

17

from inspection that the report evidenced *‘sub-

stantial selection of material’ and for that reason was

not preducible. Palermo v. United States, 360 U.S.

343, 352-353. In Palermo, where the report sum-

marized in 600 words statements made by a wftness

at a conference lasting 345 hours (360 U.S. at 355,

note 12), the decision that the document was not pro-

ducible was made solely on the basis of inspection.

The Court, indeed, while acknowledging that. in some

instances extrinsic evidence ‘might be deemed

relevant to assist the court’s determination’’, stated

that ‘‘{i]n most cases the answer will be plain from

the statement itself.’’ 360 U.S. at 355. Here, more-

over, it is undisputed that the report was dictated on

the day following the interview. This fact also served

to remove it from the purview of 18 U.S.C. 3500 (he-

cause of the contemporaneous recordation require-

ment of subsection (e)(2) (supra, p. 4))—unless the

agent took ‘ ‘complete notes’’ during the interview and

incorporated the witness’s language, in substantially

verbatim form, into his report. See 360 U.S. at 353.’

But even if it be assumed, arguendo, that, notwith-

standing these considerations, further pertinent infor-

mation might have been obtained from the agent, we

submit that it was clearly not error for the trial court

to fail to call him. On its face, the report appeared

® As noted supra, p. 16, Haas “believe[d]” that the agent took

notes during the interview, but whether or not the agent in

fact did so—and, if he did, how “complete” the notes were, and

whether, if “complete”, they were fully incorporated in the

agent's report—are matters which were not pursued by defense

counsel and do not appear.

18

bevond the coverage of 18 U.S.C. 3500, and _peti-

tioner’s counsel did not suggest interrogation of the

agent or that anything would be gained by calling

him. Campbell v. United States, 365 U.S. 85, on.

which petitioner relies (Pet. 13), is distinguish-

able. In that case, not only did defense coun-

sel, unlike defense counsel here, indicate a desire that

the agent be called for questioning, but there was a

reason for calling the agent which was wholly

absent here. The witness had admitted that he had

adopted a statement of the agent, which the govern-

ment had been ordered to produce (but was unable

because it did not have in its possession a state-

ment of the type the witness described), and the prin-

cipal reason for calling the agent was to determine

whether the report in controversy was the statement

referred to by the witness or a copy of it. 365 U.S.

at 87-95. It was, indeed, in all probability, the fact

that this aspect of the Campbell case was absent here

which explains why the defense attorney in this case,

unlike counsel in CampbeH, did not request that the

agent be called. |

5. Petitioner’s final contention—that the trial court

should have ordered the delivery to the defense of an

F.B.I. agent’s report of an interview with Richard

Terker, notwithstanding that the defense did not re-

quest its production (Pet. 14)—is also untenable.

Even if it appeared that the report was of a type pro-

19

ducible under 18 U.S.C. 3500—and it does not '—the

failure of the defense to ask for the report, the ex-

istence of which was acknowledged by the government

(R. 82), is, as the court of appeals held (R. 166; Pet.

App. 20), a complete answer to this contention, 18

U.S.C. 3500(b) (supra, pp. 3-4).

Petitioner’s attempt to excuse the defense’s failure

to ask for the report on the ground that the trial

court, following a ‘“‘heated exchange’? concerning

‘*handwritten notes taken during the interview”

whieh was the subject of the report (see note 10),

‘‘abruptly cut off the subject from inquiry” and

**put an end to defendant’s quest’? (Pet. 14) is

based on an inaccurate representation of the record.

The subject of the “exchange’’ was a proposal by de-

fense counsel to ‘‘claim an inference”? before the jury

from the fact that the agents’ notes, taken during the

interview, were subsequently destroved (Pet. App. B,

p. 22). Government counsel, pointing out that the

10Tt appears that the report was an ordinary memorandum

of interview—-similar to that pertaining to witness Haas

(supra, p 15)—in which the .nterviewing agent or agents

reported statements orally made by the witness. See R. 82.

In this instance the interview lasted from two ‘o two and a

half hours (R. 81). In view of the defense’s failure to request

the production of the report, there is no occasion to consider

whether, if it had been asked for, it would have been produc-

ible as “secondary evidence of the contents of” certain long-

hand notes taken by the interviewing agents—later routinely

destroyed (see Pet. App. B, p. 22)—which the witness testified

he had occasion to “look over” following the interview and

which he said he “imagine[d]” were accurate. See opinion

below at R. 166, Pet. App. 19. Cf. United States v. Thomas,

282 F. 2d 191, 1£..-195 (C.A. 2).

20

notes were destroyed “in the usual course of business

by the F.B.I.,” opposed this proposal (td., pp. 22-23).

The court directed that there be no argument between

counsel in the jury’s presence with respect to ‘“‘what

inferences they can or cannot draw’’ from the de-

struction of the notes (p. 23), and, following further

discussion (pp. 23-25), directed that ‘‘that subject

* * * be dropped”’ (p. 25). No other limitation was

imposed upon counsel. The court, indeed, empha-

sized to counsel their complete liberty of action as to

any aspect of the case (including the calling of wit-

nesses), subject to the foregoing specific limitation

(pp. 23, 24-25).

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be denied.

ARCHIBALD Cox,

Solicitor General.

HERBERT J. MILLER, Jr.,

Assistant Attorney General.

Purr R. MonaHan,

Attorney.

OcroBER 1961.

¥.S GOVERNGERT PRINTING OFFICE, 1961