Palermo v. United States

• Decision Date: 22 June 1959
• Docket Number: No. 471,471
• Parties: Anthony M. PALERMO, Petitioner, v. UNITED STATES of America
• Court: U.S. Supreme Court

360 U.S. 343

79 S.Ct. 1217

3 L.Ed.2d 1287

Anthony M. PALERMO, Petitioner,

v UNITED STATES of America.

No. 471.

Argued April 28, 1959.

Decided June 22, 1959.

Rehearing Denied Oct. 12, 1959.

See 80 S.Ct. 41.

Mr. Wyllys S. Newcomb, New York City, for petitioner.

Mr. Ralph S. Spritzer, Washington, D.C., for respondent.

Mr. Justice FRANKFURTER delivered the opinion of the Court.

Petitioner was convicted of knowingly and willfully evading the payment of income taxes for the years 1950, 1951 and 1952. A substantial part of the alleged evasion was failure to report income from dividends. Among the Government's exhibits at trial was a record, presum- ably contemporaneous and in the petitioner's handwriting, of dividends received during 1951 and 1952. This record reflected an amount of dividend income for 1951 substantially larger than that reported on the 1951 reurn . Petitioner contended that this record had been turned over to the accounting firm which regularly prepared his return, Arthur R. Sanfilippo & Co., in early 1952 for use in preparing his 1951 return, but that the figures had not been accurately entered on the return by the accountants. The Government's contention was that the record had not been given to the accounting firm until early 1953, subsequent to the initiation of the investigation of petitioner's tax affairs and long after the filing of the 1951 return. The time at which the record had been given to the accountants thus became directly relevant to the issue of criminal intent in the charge against the petitioner. Arthur R. Sanfilippo, an important government witness and the principal partner in the accounting firm, testified that his firm had not received the handwritten record of dividend income until early 1953.

Prior to the trial, on July 16, 1956, during the course of an interrogation by agents of the Internal Revenue Service, Sanfilippo had been unable to recall when the dividend record had been received. More than a month later, August 23, 1956, Sanfilippo had met with revenue agents to verify and sign the transcript of his earlier testimony. At this meeting he executed a supplementary affidavit reciting that he wished to clarify his original answers and that he remembered that his firm had not received the dividend record until after revenue agents had begun their investigation of petitioner's tax returns. A memorandum of the conference at which this affidavit was executed was made by one of the agents present. On cross-examination of Sanfilippo the defense demanded and received various documents including the transcript of the July 16 interrogation and the August 23 affidavit. The defense also requested production of any memoranda, or of any part thereof summarizing what Sanfilippo had said, which had been made of the August 23 conference. The trial judge denied this request on the ground that the Act of September 2, 1957, 71 Stat. 595, 18 U.S.C. § 3500, 18 U.S.C.A. § 3500—the so-called 'Jencks' Act—governing the production of statements made to government agents by government witnesses, precluded production of the requested memorandum since it was not within the definition of 'statement' in (e) of the Act.¹ The Court of Appeals for the Second Circuit affirmed. 258 F.2d 397. Together with several other cases raising Jencks Act problems, we granted certiorari, 358 U.S. 905, 79 S.Ct. 236, 3 L.Ed.2d 227, to determine the scope and meaning of this new statute.

Accurate analysis of these problems as a basis of their appropriate solution requires due appreciation of the background against which the statutory terms must be projected.

Exercising our power, in the absence of statutory provision, to prescribe procedures for the administration of justice in the federal courts, this Court, on June 3, 1957, in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, decided that the defense in a federal criminal prosecution was entitled, under certain circumstances, to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses. These statements were therefore to be turned over to the defense at the time of cross-examination if their contents related to the subject matter of the witness' direct testimony, and if a demand had been made for specific statements which had been written by the witness or, if orally made, as recorded by agents of the Government. We also held that the trial judge was not to examine the statements to determine if they contained material inconsistent with the testiony of the witness before deciding whether he would turn them over to the defense. Once the statements had been shown to contain related material only the defense was adequately equipped to decide whether they had value for impeachment. This decision only concerned production and therefore did not purport to modify the laws of evidence governing the admissibility of prior statements of a witness.

The decision promptly gave rise to sharp controversy and concern. The day following our opinion the House of Representatives was told that the decision in Jencks posed a serious problem of national security and that legislation would be introduced. 103 Cong.Rec. 8290. The same day H.R. 7915, the first of eleven House bills dealing with what became the Jencks problem, was introduced in the House.² Defendants' counsel began to invoke the Jencks decision to justify demands for production far more sweeping than that involved in Jencks, and under circumstances for removed from those of that case, and some federal trial judges acceded to those excessive demands.³ The Department of Justice, concerned over these rapid intrusions of Jencks into often totally unrelated areas, drafted legislation to clarify and delimit the reach of Jencks. See 103 Cong.Rec. 15781. On June 24, 1957, this legislation was introduced into the Senate by Senator O'Mahoney acting for himself and several other Senators. 103 Cong.Rec. 10057. After study by a subcommittee of the Judiciary Committee the bill was reported out, 103 Cong.Rec. 10601, then withdrawn and a completely new measure substituted. 103 Cong.Rec. 14913. When the bill reached the floor for debate Senator O'Mahoney proposed an amendment in the nature of a substitute which was adopted, 103 Cong.Rec. 15938, and the bill passed the Senate on August 26. Ibid. In the House the original H.R. 7915, after being amended in Committee, see 103 Cong.Rec. 10925, was passed on August 27, 103 Cong.Rec. 16130, and then substituted for the text of the Senate bill. 103 Cong.Rec. 16131. The two versions went to Conference. The Conference Report was agreed to by the Senate on August 29, 103 Cong.Rec. 16490, and by the House the next day. 103 Cong.Rec. 16742. The Act was approved on September 2, and became law as § 3500 of the Criminal Code, 18 U.S.C., 18 U.S.C.A. § 3500.⁴ Congress had determined to exercise its power to define the rules that should govern in this particular area in the trial of criminal cases instead of leaving the matter to the lawmarking of the courts.

In almost every enactment there are gaps to be filled and ambiguities to be resolved by judicial construction. This statute is not free from them. Here, however, the detailed particularity with which Congress has spoken has narrowed the scope for needful judicial interpretation to an unusual degree. The statute clearly defines procedures and plainly indicates the circumstances for their application. Since this case is the first calling for authoritative exposition of an Act that frequently comes into use in federal criminal prosecutions we deem it appropriate to explicate the construction of the statute required by the circumstances of this case.

1. Subsection (a) requires that no statement of a government witness made to an agent of the Government and in the Government's possession shall be turned over to the defense until the witness has testified on direct examination. This section manifests the general statutory aim to restrict the use of such statements to impeachment. Subsections (b), (c) and (d) provide procedures for the production of 'statements,' and for the consequences to the Government of failure to produce. Subsection (e) restrictively defines with particularity the term 'statement' as used in the three preceding sections. The suggestion that the detailed statutory procedures restrict only the production of the type of statement described in subsection (e), leaving all other statements, e.g., non-verbatim, non-contemporaneous records of oral statements, to be produced under pre-existing rules of roc edure as if the statute had not been passed at all, flouts the whole history and purpose of the enactment. It would mock Congress to attribute to it an intention to surround the production of the carefully restricted and most trustworthy class of statements with detailed procedural safeguards, while allowing more dubious and less reliable documents a more favored legal status, free from safeguards in the tournament of trials. To state such a construction demonstrates its irrationality; the authoritative legislative history precludes its acceptance.

To be sure, the statute does not, in so many words, state that it is the exclusive, limiting means of compelling for cross-examination purposes the production of statements of a government witness to an agent of the Government. But some things too clearly evince a legislative enactment to call for a redundancy of utterance. One of the most important motive forces behind the enactment of this legislation was the fear that an expansive reading of Jencks would compel the undiscriminating production of agent's summaries of interviews regardless of their character or completeness. Not only was it strongly feared that disclosure of memoranda containing the investigative agent's interpretations and impressions might reveal the inner workings of the investigative process and thereby injure the national interest, but it was...