Alvin R. CAMPBELL et al., Defendants, Appellants, v. UNITED STATES of America, Appellee.
No. 5847.
United States Court of Appeals First Circuit.
Heard April 4, 1962. Decided May 22, 1962.
Rehearing Denied June 26, 1962.
303 F.2d 747
William J. Koen, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U.S. Atty., was on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
WOODBURY, Chief Judge.
This opinion supplements the opinion of this court of November 7, 1961, 296 F.2d 527, wherein, while retaining jurisdiction generally, we directed return of the original papers to the district court for further proceedings before another judge. Further proceedings were had as directed and the court‘s findings and conclusions are before us on briefs and arguments.
Before turning to those findings and conclusions a brief resume will be helpful.
This court originally affirmed the appellants’ sentences for bank robbery, giving only brief consideration to the question of their right under the Jencks Act,
The District Court on that remand held a further hearing after which it made findings of fact and drew conclusions of law and the case again came before this court on appeal. Campbell v. United States, 296 F.2d 527 (C.A.1, 1961). We found the hearing unsatisfactory in a number of respects. Nevertheless, we found it adequate to provide the answers to some of the questions propounded by the Supreme Court.
As we understood the opinion of that Court in this case
Applying the facts as then found, indeed the undisputed facts, to our understanding of the statute we held that the Interview Report was not a statement within (e) (2), because it was not in Staula‘s words but in Toomey‘s. Moreover, the Interview Report cannot qualify as a statement under this subsection because Toomey‘s recording onto the disk, which was later transcribed and became the Interview Report, was not contemporaneous with Staula‘s oral statement to Toomey. Toomey interviewed Staula around noon but did not dictate from his notes onto the disk until evening. This answered in the negative the last part of the fourth question propounded by the Supreme Court and the only one with respect to
We thought the findings of the court below on the question of the producibility of the report under this subsection were not completely satisfactory. Nevertheless we found the record made at that hearing adequate to answer some of the other questions propounded by the Supreme Court. We found on Toomey‘s testimony, Staula had not testified, that at the interview Toomey took longhand notes of what Staula said, occasionally using symbols and abbreviations; that after the interview Staula was not shown the notes and did not sign or initial them, but that Toomey had recited the “substance” of the notes back to Staula and that Staula had said that Toomey “had the story straight.” Then we found that Toomey attended to other matters for the rest of the day and that evening dictated his so-called Interview Report onto a disk in a machine. In doing so we found that Toomey had not dictated his notes but had first rearranged them in chronological order and then, relying primarily on his notes but also on his memory, and using his own language, had dictated a report that “reflects the information in the notes.” We found that Toomey sent the disk to the Boston office of the FBI to be transcribed and upon receipt of the transcription a few days later checked it against his notes and finding it accurate destroyed his notes in accordance with standard FBI practice. Toomey did not show his report to Staula and did not interview him again.
These findings disposed of most of the Supreme Court‘s questions. However, Staula had not been called to testify at that hearing and at the trial he had testified that, although he could not clearly remember, he thought that “they wrote down what I said, and then I think they gave it back to me to read over, to make sure that it was right. And I think I had to sign it. Now, I am not sure.” Campbell v. United States, 365 U.S. 85, 89, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961), footnote 2. There being a discrepancy between this testimony and Toomey‘s, and Staula not having testified at the hearing on the Supreme Court‘s remand, we, while retaining jurisdiction generally, remanded to the District Court “for further hearings and findings, with Toomey and Staula both to testify, as to whether Staula signed or otherwise adopted or approved the notes, in order that the mandate of the Supreme Court be fully complied with.”
After a hearing on this remand the court below found, 199 F.Supp. 905, that Staula had not signed his approval of Toomey‘s notes. Nor did it find that Toomey had purported to read his notes back to Staula in just the order or in the exact words written down by Toomey on his pad. It did find, however, that: “At the end of the reading, Staula told Toomey that what the latter had written [actually on the undisputed testimony Staula never saw what Toomey had written] was to the best of Staula‘s knowledge what had happened, and that to the best of his knowledge it was true.” And the court below found that in its opinion there was “no difference of any substance, and hardly any difference in form or order of presentation between what Toomey repeated to Staula and what Toomey had jotted on the pad, or between what Toomey had jotted on the pad and that portion of what Staula told Toomey which had any value as possible testimony at any stage of this case.” On the basis of these and similar findings of close correspondence between Toomey‘s notes, what Toomey had recit
These latter findings go to the verge, if not perhaps beyond the scope, of our mandate. However, even if we were to accept them our opinion would not be changed.
Slight changes in phraseology can often work vast changes in meaning. And in Palermo v. United States, 360 U.S. 343, 350, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), the Court, referring to legislative history, said that Congress felt it would “be grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness’ own rather than the product of the investigator‘s selections, interpretations and interpolations.” Moreover, to determine what language appearing in the Interview Report had actually been used by Toomey and approved by Staula when Toomey recited from his notes to Staula after the interview, imposes a subtle and exceedingly difficult if not impossible problem for the district court. Furthermore, to delete from the Interview Report the words not approved by Staula would result in his being confronted on cross-examination with his words out of context. Therefore we think we must assume that when the Court in its opinion in the present case at pages 93 and 94 of 365 U.S., at page 421 of 81 S.Ct. used the word “copy” in the questions it propounded with respect to
Construing “copy” as used by the Court as meaning not almost a copy or anything less than a copy, we now categorically answer the Supreme Court‘s questions as follows: (1) Toomey did not write down what Staula told him at the interview but at the most only the essence or substance, in part in his own words, of what Staula told him and Toomey did not give the paper to Staula to read or read it to him word for word to make sure that it was right nor did Staula sign it; (2) the Interview Report was neither the paper described by Staula nor a copy of it; (3) that paper was destroyed by Toomey in accordance with FBI practice7 and (4) Staula did not read over and approve, indeed he never even saw, the Interview Report. The second part of question (4) we have already answered.
Judgments will be entered affirming the judgments of the District Court.
ALDRICH, Circuit Judge (concurring).
While the court is perhaps right that subsection (2) does not require further comment, in case someone might think otherwise I might point out that the court found, on unimpeached testimony, that the disc from which the report was transcribed constituted Staula‘s words, “some recorded in the jottings [notes], some carried in Toomey‘s memory.” It must follow that the notes contained less than what Staula told Toomey and less than what Toomey later dictated. Thus it must be clear that the notes were not the “substantially verbatim recital” described in
The court‘s emphasis on ipsissima verba is heightened when one realizes that “just checked with Staula” means checked some seven hours before. I cannot bring myself to believe that the checking back with a witness at noontime of a consolidation of jottings and memory, and the dictation of a report in the evening, would result in the identity inferred by the court. If it happened it would be a surprising coincidence. I agree with my brethren that the statute is not satisfied in such a manner.
On Petition for Rehearing.
WOODBURY, Chief Judge.
In our opinion of November 7, 1961, 296 F.2d 527, we said that the Jencks Act imposed no duty on the agents of the FBI to take the statements of witnesses and no duty, at least in the absence of bad faith, to keep any statements that might have been taken. Therefore, there being no evidence from which it could possibly be found that Toomey destroyed his notes in bad faith, the question propounded by this petition for rehearing whether his notes, had they not been destroyed, would be producible under
ALDRICH, Circuit Judge, (concurring).
Appellants make no contention that the original notes were destroyed in bad faith. Nonetheless, the Supreme Court indicated the possibility of consequences unfavorable to the government even if the destruction were innocent. Consequently, in our opinion of November 7, although we indicated our own views that it was legally immaterial, we instructed the district court to determine “whether Staula adopted or approved the notes, in order that the mandate of the Supreme Court be fully complied with.” The court now states that appellants are not entitled to an answer to this question because of its immateriality. I confess that because of my belief that the answer should not make any difference I overlooked the fact, when concurring in the court‘s decision of May 22, 1962, that it had not been given.
On the present posture the case stands thus. The district court, on the last remand, found that the interview report itself satisfied the requirements of
Strictly, as I see it, the matter immediately before us is whether to send