Campbell v. United States

• Decision Date: 07 November 1961
• Docket Number: No. 5847.,5847.
• Citation: 296 F.2d 527
• Parties: Alvin R. CAMPBELL et al., Defendants, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

296 F.2d 527 (1961)

Alvin R. CAMPBELL et al., Defendants, Appellants, v. UNITED STATES of America, Appellee.

No. 5847.

United States Court of Appeals First Circuit.

Heard October 2, 1961.

Decided November 7, 1961.

Melvin S. Louison, Taunton, Mass., and Lawrence F. O'Donnell, Boston, Mass., for appellants.

William J. Koen, Asst. U. S. Atty., Boston, Mass., with whom W. Arthur Garrity, Jr., U. S. Atty., Boston, Mass., was on the brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

ALDRICH, Circuit Judge.

The defendants were convicted by a jury of armed robbery of a bank under 18 U.S.C. § 2113. On appeal we affirmed. 269 F.2d 688 (1959). The Supreme Court granted certiorari, but limited its decision to the single issue of whether the district court had properly complied with the Jencks statute, so-called, 18 U.S. C. § 3500, in refusing the defendants access to an F.B.I. interview report of one of the government's witnesses, one Staula, for the purpose of impeachment. The court, in effect, suspended the convictions and returned the case to the district court for the purpose of making a further factual inquiry into the circumstances attending the report in order to determine whether defendants had improperly been denied access to it, or to any other paper. For the aid of the district court the court recited certain legal principles, but it left undecided what consequence might flow from non-production, because of prior destruction, of an otherwise properly called-for document. The court held, inter alia, that it had been error to refuse access to the report on the basis of Staula's denial of its accuracy because that permitted the witness to immunize himself from impeachment; instead it directed the court to conduct, in the absence of the jury, a "non-adversary" hearing, at which Toomey, the F.B.I. investigator who prepared the report, would be cross-examined by the defendants. It held that it had been error for the court to tell the defendants that they could have Toomey only as their own witness. The court gave to the district court the option of calling Toomey itself, or ordering the government to call him. Campbell v. United States, 1961, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428.

The hearing before the district court held pursuant to this mandate occupied an extraordinary amount of time. This was largely because of needless remarks by the court, although we are not unmindful that counsel contributed. While technically the court called Toomey itself and permitted the defendants to cross-examine, the restrictions imposed upon counsel were such that it was cross-examination in name only.¹ In spite of the fact that the witness was a special agent of long standing who had discussed his testimony with the Assistant U. S. Attorney immediately before the hearing, the court hovered constantly over him like an over-anxious mother. With respect to correlation between the notes, Staula's statements, and the eventual report, the Supreme Court's directions for a non-adversary proceeding to assist the court in performing its duty, with the defendants permitted to cross-examine, were honored largely in the breach. The necessary cure for this will be for us to make our own interpretation of Toomey's testimony so as to give the defendants the benefit of every doubt and to draw all proper inferences in their favor. This we will proceed to do.²

The robbery occurred on July 18, 1957. Staula was a customer present in the bank, and an eyewitness. Toomey interviewed him in a room in the local police station the following morning. No one else was present. They sat at a table. Toomey talked with Staula, asked him questions, and took notes. The notes did not purport to be word for word, or even to use Staula's own words, except when specifically indicated by quotes. Toomey did not use shorthand, but occasionally used symbols and abbreviations. He recalled two omissions — the fact that when Staula put some money of his own that he had been about to deposit in his pocket he did so to "out-cute" the robbers, and that he feared being locked in the vault. But in Toomey's opinion, the notes were "complete * * * with respect to the pertinent information" Staula had given him. However, they were complete only with respect to subject matter; the notes were not a running account. This was further demonstrated by the fact that after Staula had finished telling his story and had answered Toomey's questions, Toomey recited back to Staula the substance of what Staula had told him. He did not do so by reading his notes. Though he relied "primarily" on them, he depended also upon his memory. Staula answered in the affirmative Toomey's question whether he had the story straight. Toomey did not ask Staula to sign anything, or to initial anything, nor did Staula himself read the notes, although he was in a position at the table to have observed him writing.³

Toomey testified that the interview had taken place in the forenoon; that it lasted half an hour; that he attended to some other matters during the day, and that that night he dictated his interview report into a machine. He stated that he first arranged the notes in chronological order, and then relying primarily on his notes, but also on his memory, dictated a report that "reflects the information in the notes." However, he used his own language. He did not believe, for instance, that the phrase in the report that "he Staula went to the teller's window which is served by Mr. Kennedy," and the phrase, twice repeated, that he "observed these individuals no further," were the witness'.⁴ He testified that he sent the machine disc to the Boston office for typing; that he received the transcribed report back some days later; that he checked it against his notes, and on finding it accurate, destroyed the notes in accordance with standard F.B.I. practice. He did not show this report to Staula, and, in fact, never saw him again after July 19.

On this record it is entirely clear that Staula agreed to the accuracy (and "approved," to use the statutory language) of what Toomey recited to him as his understanding as to his, Staula's, account on July 19. But it seems also clear on Toomey's testimony that what Toomey so told Staula that morning differed to some extent from what was in his notes, and, on both Toomey's and Staula's testimony (and there could be no other, so far as appears), differed also from what he put in the eventual report, although all may have been summaries of the same thing. Before considering the importance or consequence of these differences, we review the applicable principles as we understand them.

Neither the Supreme Court in its opinion, nor the defendants presently, suggest that any paper here sought⁵ is producible other than in accordance with 18 U.S.C. § 3500. Palermo v. United States, 1959, 360 U.S. 343, 360, 79 S.Ct. 1217, 1223, 3 L.Ed.2d 1287. A statement is not producible under this statute unless it is,

"(e) * * *

"(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."

This statute is by no means clear. It might well have been possible, as contended by the dissenters in Campbell, 365 U.S. 85, at 104, 81 S.Ct. 421, at 431, 5 L.Ed.2d 428, to interpret subsection (1) as limited to a statement "written * * * by said witness," and subsection (2), in complementary fashion, as a statement given orally but written or otherwise transcribed by someone else. However, the court has construed subsection (1) to include a statement orally made by the witness and written by someone else. This broader construction must, in turn, cast light upon subsection (2). We must hold this latter to be limited to oral statements by the witness taken down contemporaneously by someone else in a particular fashion which produces a "substantially verbatim recital." Thus subsection (1) applies if the writing, even though made by someone else, was "signed or otherwise adopted or approved," although it did not follow the original statement substantially verbatim, while subsection (2) applies if the writing was substantially verbatim, even though it was not signed, adopted, or approved. This, in turn, must mean that a writing not specifically approved is not producible in spite of its general accuracy if it is not substantially verbatim.

Before construing the particular statutory provisions it may be appropriate to turn to the legislative history. While it has sometimes been said that the only purpose of the act was to rectify lower court misinterpretations and enlargements of the Jencks decision, we must observe that public clamor about the consequences of that decision, and the incipience of Congressional action, was immediate and was, at best, only prophetic so far as judicial misunderstanding was concerned. See 103 Cong.Rec. 8290 (June 4, 1957). Eleven bills were introduced. It is evident that the primary consideration was protection of the F.B. I. A review of the Congressional history suggests, as is often the case in important legislation, that views differed as to the extent of the legislative protection desired. We believe it apparent that some of the proponents were more concerned with protection than they were with merely "interpretation," and that their principal deterrent was apprehension as to the scope of due process.

Examining the statute as a whole, it might be argued at first blush that the only aim was the elimination of confidential matter and irrelevancies, as provided by section (c). However, it also appears that not every memorandum made by an F.B.I. agent as the result of an interview is to be indiscriminately...