UNITED STATES of America, Plaintiff-Appellee, v. Dominic C. LONARDO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mario John GUERRIERI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Peter MANOS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard A. STEWART, Defendant-Appellant.
Nos. 15681-15684.
United States Court of Appeals Sixth Circuit.
Sept. 9, 1965.
James J. Carroll, and Gerald S. Gold, Cleveland, Ohio, for Dominic C. Lonardo.
Gerald S. Gold, Cleveland, Ohio, for Richard A. Stewart.
Nathaniel R. Jones, Asst. U. S. Atty., Cleveland, Ohio, Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, on brief, for appellee.
Before O’SULLIVAN, PHILLIPS and EDWARDS, Circuit Judges.
EDWARDS, Circuit Judge.
The United States is
“ * * * a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).
Defendants-appellants were found guilty by a jury on one of two counts of a federal indictment charging them with falsely representing themselves to be FBI agents in violation of Title 18 U.S.C. § 912. A federal judge in the Northern District of Ohio sentenced them to the custody of the Attorney General for three years, with three months of such custody to be served in jail, and sentences to be suspended thereafter with defendants placed on five years probation.
Defendants appeal. Having been convicted for employing illegal means to achieve a lawful purpose, they now assert that their convictions were secured by the government by illegal means.
Defendants Lonardo and Guerrieri were agents of a bonding company which had written a $50,000 bond for one Joseph Arrington and a $25,000 bond for one Alfred Oponowicz. Both of these latter had previously been charged with armed robbery of a bank. When neither of them appeared for trial, defendants undertook to locate them in order to avoid the penalty of forfeiture of the total of $75,000 in bonds.
It appears that defendant Lonardo learned that a man named Louis Gaye was a close associate of Arrington’s and was assisting in purchasing a car for Ar-rington. On the evening of February 8, 1963, assisted by defendant Stewart, Lonardo waited near the car lot until Gaye picked up the certificate of title and drove away. Lonardo and Stewart followed, forced Gaye to stop his car, and at pistol point, forced Gaye and his passenger, Betty Flonnoy, to get into the Lonardo car. Subsequently, these two defendants were joined by defendant Guerrieri and defendant Manos.
For several hours thereafter Gaye and Flonnoy were questioned by defendants in automobiles and at Gaye’s apartment. Ultimately Gaye made a phone call in defendants’ presence to Arrington which led to his capture, trial and conviction. The testimony indicated that when Gaye’s car was stopped, and at various other times, defendants displayed pistols. Gaye and Flonnoy at trial testified that defendants repeatedly identified themselves as FBI agents. This defendants denied — but the jury quite apparently believed Gaye and Flonnoy on this point. Defendants also testified to contacts with various members of the Cleveland Police Department before and during the events of February 8, which they apparently regard as sanction of their extraordinary conduct.
After Arrington’s arrest and return to Cleveland on March 15, 1963, Gaye and Miss Flonnoy were interviewed by Agent O’Hara of the FBI. An FBI stenographer took notes of the interview and transcribed them.
Subsequently, Agent O’Hara employed the transcripts in making out formal FBI interview reports — called 302 Reports — of these witnesses’ testimony. Thereafter defendants were indicted for falsely posing as FBI agents.
A week and a half before trial of the defendants Agent O’Hara removed the copies of the stenographic transcripts from the file of the United States Attorney and destroyed them. The agent testified that destruction of “interview notes” was in accordance with FBI procedures once the formal interview reports had been made out.
At trial defendants’ counsel sought and received permission under the Jencks Act, Title 18 U.S.C. § 3500, to inspect the 302 Reports and to use them for purposes of cross-examination. He also sought the original stenographic transcripts for the same purpose. These, of course, were not available to be produced, since they had been destroyed.
At trial the United States contended that all that was destroyed were the notes of the agent after the notes had been transcribed and that the ultimate reports were produced. The government claimed that these “interview notes” of the agent were not the statements of the witnesses as contemplated by the Act.
Defendants, on the other hand, contended that what had been destroyed were the actual verbatim statements of the witnesses as given to a shorthand reporter and transcribed by her. They also contended that at least the Flonnoy statement was adopted and approved by the witness.
In this regard defendants rely upon the testimony of the FBI stenographer. This same witness also gave support to Miss Flonnoy’s testimony that in her statement to the FBI she had referred to the Cleveland police contacts during the events of February 8, but that such references were eliminated in the final “302 Reports.” Defendants contended that the original transcripts would have been valuable to them for purposes of cross-examination of Gaye and Flonnoy.
At the trial the District Judge took testimony dealing with the nature of the destroyed documents and apparently concluded that they were “statements” within the meaning of the Jencks Act. He did not, however, grant defendants’ motions for striking the Gaye and Flonnoy testimony or for a mistrial, but devised an alternative sanction. He allowed cross-examination as to the nature of the documents and the method of their destruction before the jury and charged the jury that it could infer from the fact of destruction that the destroyed documents contained material unfavorable to the government’s case.
In this appeal we are required first to determine whether or not the documents which were destroyed were “statements” within the meaning of the Jencks Act. If so, we must then determine whether or not the “sanction” employed by the District Judge meets the requirements of the Jencks Act.
As to the “statement” question, the Jencks Act, 18 U.S.C. § 3500, provides in part:
“The term ‘statement’ * * * means * * * (2) a stenographic -x- -x- -x- 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 contemporaneously with the making of such oral statement.” 18 U.S.C. § 3500.
The two government witnesses, Gaye and Flonnoy, testified that at the first FBI interview a stenographer was present who took down what they said word for word. Each also testified that they later saw and read a transcript of the interview.
The government stenographer who took the statements which are in controversy testified as follows:
“Q Now, going to the • time of March the 15th, when you were called in and Mrs. Flonnoy was making her statement, can you tell us— I am not asking you to recall what she said, but the manner in which this statement was taken; for instance, was it question and answer? Did the officers ask her a question and she give an answer, or was it just a rhetorical statement by her?
“A She was advised to tell it in her own words, so she would say— she would go on — maybe they would stop, and they would say, ‘Did you say this?’ and she would say, ‘No. I said this.’ That would clarify anything they didn’t understand, but she did give it herself.
“Q You were taking it down, your notes, exactly from her voice, her statement?
“A Yes.
“Q At any time was the statement that Mrs. Flonnoy made paraphrased by one of the officers, for instance, did she go on and make a certain statement, and then the officer put it in his words so that you would put his words in your notes rather than what the witness, rather than what the witness, Flonnoy, said?
“A The only thing I can remember is grammar, you know, correcting grammar.
“Q You mean the officer would interpose and interfere and correct her grammar in the way she was telling it?
“A Yes, sir.
“Q Would he in any sense formulate any statement in his own words from what she said, and then dictate it to you, what he, in his words, interpreted her to say ? I hope that is clear to you. In other words, did she make a statement and then the officer would, or dictate it to you, what you should put down in your notes as her statement?
“A As I stated before, the only thing I really remember is grammar, not really changing it.
“Q Your recollection is distinct. You took down word for word what the witness said?
“A Yes.”
This witness also testified that the two statements covered thirty pages — about twelve pages to the Flonnoy statement and the balance in the Gaye statement.
This record convinced the trial judge that the destroyed transcripts were Jencks Act statements. He said:
“No Court is going to sit by and observe the destruction of a statement which comes within the Jencks Act the matter of a few days before trial, and simply accept it as a statement of fact, and accept it in the sense that the Jencks Act requires no further sanctions or compliance.”
We believe he was correct in this conclusion. The testimony pertaining to the taking of the statements is sufficient for us to hold that these were “stenographic” transcripts which were “substantially verbatim” and “eontemporane-ously recorded” within the meaning of the Jencks Act, 18 U.S.C. § 3500(e) (2). From the testimony referred to we hold that the statements “can fairly be said to be the witness’ own.” Palermo v. United States, 360 U.S. 343, 350, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959).
The United States Supreme Court has considered the application of the Jencks Act to one form of statement. Where an FBI agent took longhand notes in the course of an interview, reviewed them with the witness, subsequently incorporated the substance of these notes in an Interview (or 302) Report, and then destroyed the notes, and the District Court held that the evidence showed that the report was “almost in ipsissima verba” the witness’ narrative, the Supreme Court held the Interview Report producible. Campbell [II] v. United States, 373 U.S. 487, 491, 83 S.Ct. 1356, 10 L.Ed. 2d 501 (1962).
In this case, of course, we deal with somewhat different facts. As we have noted, the 302, or Interview Reports, were produced. This appeal concerns the transcripts taken in shorthand and then typed by the stenographer for the FBI. Prior to their destruction these transcripts had been reworked into Interview Reports — but at least as to the Flonnoy statement, with substantial variances. Thus far there does not appear to be any precedent directly in point in relation to this type of statement. But the grounds which we have recited for the inclusion of such a statement under the Jencks Act appear, if anything, to be stronger than those supporting the holdings above.
On this record we find no need to pass on defendants’ claim that the statements were also producible under Title 18 U.S.C. § 3500(e) (1) because they subsequently were read and adopted by Gaye and Flonnoy. See Williams v. United States, 338 F.2d 286 (C.A.D.C.1964).
Perhaps we should also seek to define the limits of our holding in this regard.
This is not a situation wherein the identical information was otherwise available to defendants. See Rosenberg v. United States, 360 U.S. 367, 370-371, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959); Killian v. United States, 368 U.S. 231, 244, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961).
It is also clear that no satisfactory “secondary evidence” was made available to counsel for defendants. The fact that reference to Cleveland police officers’ participation in the events of February 8 was deleted from the Flonnoy 302 Report is sufficient evidence that it was not a substitute for the “statement” which was destroyed. Cf. United States v. Thomas, 282 F.2d 191, 194-195 (C.A.2, 1960).
In the words of Mr. Justice Brennan dissenting in Rosenberg v. United States, supra:
“This is not a case in which the statement erroneously withheld from the defense merely duplicated information already in the defense’s possession; it is not a case in which the witness’ testimony was unimportant to the proofs necessary for conviction; and it is not a case in which the witness’ statement was wholly void of possible use for impeachment.” Rosenberg v. United States, supra, 360 U.S. at 376, 79 S.Ct. at 1237 (Footnote omitted.)
Having thus held that the statements demanded by the defendants (and not produced because previously destroyed) were Jencks Act statements, we turn to the question of appropriate sanctions. The only sanctions mentioned squarely in the Jencks Act are: “[T]he court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.”
In this case, however, the District Judge, after concluding that the statements were governed by the Jencks Act, allowed the jury to hear testimony about them and their destruction and charged the jury thus:
“ * * * I now instruct you that the destruction by the special agent of the Federal Bureau of Investigation of the typewritten transcript of the statements made by the witnesses Gaye and Flonnoy permits you to draw the inference that the documents destroyed contained matters which were unfavorable to the Government in the prosecution of this case. I say to you that it permits you to draw this inference. It does not compel you to draw this inference. That is the reason I permitted you to hear the officer testify on this subject, and it is for you to determine whether or not you will draw such an inference or not.”
It seems to us that the District Judge was in doubt as to whether the destruction of the statements was in good or bad faith and that he felt under all of the circumstances a lesser penalty was sufficient.
Obviously, this issue has aroused the attention of the United States Supreme Court. In Campbell [I] v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961), we find the question squarely posed — but not answered:
“The parties argue whether destruction may be regarded as the equivalent of noncompliance with an order to produce under that subsection. The Government contends that only destruction for improper motives or in bad faith should be so regarded. The petitioners contend that destruction without regard to the circumstances should be so regarded. However, this record affords us no opportunity to decide this important question of the construction of subsection (d).” Campbell v. United States, supra at 98, 81 S.Ct. at 428.
Also in Campbell [II] v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963), we find further reference in this footnote:
“These issues, basically, are whether the Interview Report is producible under § 3500(e) (2) of the Jencks Act and whether, if the notes are producible under the Act, their destruction gives rise to sanctions under subsection (d), or permits secondary evidence of their contents to be produced. The second district judge found that the Interview Report was a substantially verbatim recording of Staula’s oral statement to Toomey and hence producible under § 3500(e) (2). The Court of Appeals disagreed. Moreover, in denying rehearing, the Court of Appeals rendered an opinion holding that no sanctions could attach to Toomey’s destruction of his notes because such destruction had not been in bad faith. 303 F.2d at 751. Our holding that the Interview Report is producible under § 3500(e) (1) makes it unnecessary for us to consider any of the other issues, and we intimate no view on the correctness of the Court of Appeals’ rulings on them.” Campbell v. United States, supra at 491, n. 5, 83 S.Ct. at 1359.
In the case before us we see no need to characterize the destruction of these statements as in good faith or bad — as honest or corrupt. These were no long lost documents or clerical filing errors. The destruction was deliberate; it was on the eve of trial; it was accomplished by the government agent in charge of preparing evidence for the prosecution of the ease. The fact that the agent who destroyed them may have done so in reliance upon FBI regulations (or in good faith belief that such existed) does not alter the nature of the sanctions imposed by the statute.
All this ease requires us to hold, and all we do hold, is that where a stenographic transcript of a witness’ statement has been made which constitutes a “statement” within the meaning of the Jencks Act, the government cannot avoid the responsibility for producing it or losing the benefit of that witness’ testimony by deliberately destroying that transcript on the eve of the trial. This holding is further restricted, as hereinafter set forth more particularly, to a situation where the defendant has not been furnished, in the form of a 302 Report or otherwise, the very same information contained in the statement which has been destroyed.
Striking of the witnesses’ testimony might well have been an inadequate remedy. In “the interests of justice” we believe that the District Judge should have entered an order for mistrial when it became obvious that the statements could, not be produced, and that we must do so now.
We recognize, of course, that this may mean that the government is deprived of important evidence at the new trial and that this deprivation might frustrate this prosecution. But our system of justice requires that the government should set an example of living by its own law.
As we have noted, the District Judge found, and our review of the record convinces us that he did so correctly, that there were substantial differences between the stenographic transcript taken from witness Flonnoy and the 302 Report which the court ordered produced and which was produced.
There was no such finding as to substantial differences between the stenographic transcript of witness Gaye’s testimony and the 302 Report similarly produced in relation to him. On remand for new trial, if the District Judge finds that the defendant has been furnished, by dint of the 302 Report, with “the very same information” to which they were entitled, there would then be no requirement of Jencks Act sanctions to forbid the testimony of witness Gaye. See Rosenberg v. United States, supra, 360 U.S. at 371, 79 S.Ct. 1231.
One other matter needs to be dealt with briefly. On appeal the government took the position that no sanctions were required under 18,U.S.C. § 3500(d) because it had not elected not to comply with a court order for production of the statements. The appellee’s brief says:
“The Act clearly relates to statements ‘in the possession of the United States.’ This paragraph of the Act does not say statement or documents ‘once’ in their possession.”
This record is clear on the point that these statements yere “in the possession of the United States.” We are asked to hold that they were not “in the possession of the United States” for Jencks Act purposes because of their deliberate destruction by an agent of the United States a week and a half before trial.
Legislation should be interpreted in accordance with its stated and its obvious intent. United States v. Braverman, 373 U.S. 405, 408, 83 S.Ct. 1370, 10 L.Ed.2d 444 (1963); Owensboro Wagon Company v. Commissioner of Internal Revenue, 209 F.2d 617, 619 (C.A.6, 1954). To hold with the interpretation argued for above would be to permit evasion and emasculation of the Jencks Act to the point of total ineffectiveness.
It should be added that we believe our holding in this case is considerably less far-reaching than our colleague, Judge O’Sullivan, deems it. Specifically, we deem it entirely consistent with the recent holdings of this court affirming District Judges’ rulings that FBI Agents’ notes and government attorneys’ witness sheets were not in the circumstances there involved Jencks Act statements. United States of America v. Hoffa et al., 349 F.2d 20 (C.A.6, 1965). United States v. Gosser, 339 F.2d 102, 113 (C.A.6, 1964).
Reversed, sentences vacated, and remanded for new trial in accordance with this opinion.
. This claim is not an issue in this appeal, and the court reserves comment thereon for an appropriate case.
. “§ 3500. Demands for production of statements and reports of witnesses.
“(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
“ (b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession 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.
“(c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the United States and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial.
“(d) If the United States elects not to comply with an order of the court under paragraph (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.
“(e) The term ‘statement,’ as used in subsections (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 contemporaneously with the making of such oral statement.” 18 U.S.C. § 3500.
. “If the United States elects not to comply with an order of the court under paragraph (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.” 18 U.S.C. § 3500(d) (Emphasis added.)