U.S. v. Harrison

Citation524 F.2d 421,173 U.S.App.D.C. 260
Decision Date08 December 1975
Docket NumberNos. 74-2029,s. 74-2029
PartiesUNITED STATES of America v. Kevin HARRISON, Appellant. UNITED STATES of America v. Isaac PENDERGRAST, Appellant. UNITED STATES of America v. Juan GORDON, Appellant. to 74-2031.
CourtU.S. Court of Appeals — District of Columbia Circuit

Louis Rabil, Washington, D. C. (appointed by this court), for appellants.

Mary Elizabeth Medaglia, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Eugene M. Propper, Asst. U. S. Attys., were on the brief, for appellee.

Before WRIGHT and ROBINSON, Circuit Judges, and BLAIR, * District Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

At trial appellants were found guilty of armed robbery of a federally insured savings and loan association, in violation of 18 U.S.C. § 2113(d) (1970), and were sentenced to various terms of imprisonment. The only substantial issue on this appeal arises from the deliberate destruction, pursuant to long-standing agency practice, of rough handwritten notes taken by agents of the Federal Bureau of Investigation in interviewing the key eyewitnesses shortly after the robbery. In United States v. Bundy, 153 U.S.App.D.C. 191, 192, 472 F.2d 1266, 1267 (1972) (per curiam), following our decision in United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971), 1 we held that such notes when taken by police officers "should be kept and produced." We find no principled basis for excluding agents of the FBI from this rule. We hold that rough interview notes, including those described in this case, fall within the category of potentially discoverable materials required to be preserved and produced under Bryant and Bundy. We conclude further that, under the circumstances, this case is not an appropriate one for the imposition of full Bryant sanctions.

I

At about 11:00 a. m. on March 1, 1974, a number of young men entered the Home Federal Savings and Loan Association. One held a gun on the assistant manager, who was standing behind the first teller's window, while another, later identified as appellant Pendergrast, vaulted the counter and began scooping money out of the cash drawers. A third, later identified as appellant Gordon, attempted to vault the counter, failed, and remained directly in front of one of the tellers while his companion was gathering the money. A fourth man, identified as appellant Harrison, went over and sat by the receptionist's desk, holding his hand in his pocket as though he had a gun. When the cash drawers had been emptied, the one man jumped back over the counter, and all the robbers left.

Meantime the silent alarm and camera had been activated. When developed, the photographs showed the man behind the counter and the man who tried unsuccessfully to jump the counter; the photos were used in the investigation and were admitted into evidence at trial. Police and FBI agents arrived very soon after the robbers left. They interviewed the three eyewitnesses, and took rough notes as the interviews progressed. Within a few days thereafter, all the FBI agents, using their rough notes, which consisted largely of key words and phrases, dictated reports of the interviews and had the reports typed on the FBI's standard form FD-302. After checking the typed version for accuracy, each agent discarded the rough notes, in accordance with regular FBI practice. Within the next few weeks, in an effort to identify the robbers, the witnesses were shown various photo arrays, and at a line-up on March 20, they identified Gordon and Harrison. Appellants were indicted on April 18.

At trial the prosecution presented an abundance of strong evidence against the defendants. The three eyewitnesses identified the three defendants in the courtroom, and there was testimony that they had previously identified two of them at the line-up. The photos taken at the bank allegedly showing Gordon and Pendergrast were admitted into evidence, and police officers testified that Gordon, after being advised of his rights, had orally confessed to the crime on the day of arrest and that he had made certain other incriminating statements. Pendergrast and Harrison presented alibi defenses, while Gordon offered no evidence in his behalf. The jury convicted all three of armed robbery of a federally insured savings and loan, and all three were sentenced under the Youth Corrections Act, 18 U.S.C. § 5010 (1970).

The defendants appealed, charging primarily that the court should have applied sanctions to the Government under United States v. Bryant, supra, for the failure to preserve and produce the rough notes of the FBI interviews, a point they had properly raised at the pretrial hearing. 2 After oral argument, we concluded that we did not have sufficient information on the FBI regulations and practices to rule on the claim. We therefore remanded the case to the District Court to answer five specific questions 3 concerning, as we put it relying on the Government's representation, "the FBI regulation on destruction of rough or raw notes." The District Court held a hearing on the questions. The testimony revealed that the FBI has no regulation requiring destruction of rough interview notes, although it does maintain a fairly extensive set of regulations defining which materials are to be preserved. Since there was, strictly speaking, no "regulation on destruction" of notes, as distinguished from a more or less uniform practice, the District Court found it unnecessary to answer three of the five questions. Under the circumstances, it would have been much more helpful if the District Court had not taken such a narrowly literal view of our questions. Nonetheless, the court's findings, combined with the record and exhibits from the remand hearing, have provided us with sufficient information for measuring the FBI practice against the Bryant requirements.

II

It was established at the hearing on remand that the FBI has for many years had a series of regulations governing the preservation of written records of witness interviews. In response to the Supreme Court's decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), the Director issued Bureau Bulletin No. 57-1, 4 establishing the Interview Report Form, FD-302, to be used to record and preserve the final copy of a witness's statement whenever it is anticipated that the witness might testify in court. Adoption of the Jencks Act, 18 U.S.C. § 3500, and the issuance of later court decisions prompted additional refinements. After the Supreme Court's decision in Campbell v. United States (Campbell I), 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961), the Director inquired of the Assistant Attorney General, Criminal Division, whether rough interview notes should in the future be retained. 5 Assistant Attorney General Miller replied that the Department of Justice did not consider that the Campbell case had changed the rules on preservation of notes. He went on to outline the rules which should govern retention:

The types of written material developed in interviewing witnesses, and which should be retained, are the following:

1. Written statements, signed by the witness.

2. Written statements, unsigned by the witness, but approved or adopted in any manner by the witness.

3. Notes which are a substantially verbatim recital of an oral statement by the witness. This would cover shorthand, speedwriting, or longhand notes, as long as they are substantially verbatim and complete in recording what the witness said on interview. Even here, a transcription of the notes would suffice for the purposes of production, but prudence would seem to dictate retention of the notes in case of any dispute about the accuracy of transcription.

4. Notes which have been read back to the witness, or which the witness has been allowed to read, and which have been approved or adopted by the witness as his account of the matters concerning which he is interviewed.

In other situations than those just set forth the agent's notes do not constitute a statement under the statute and need not be retained. 6

The Bureau adopted this language verbatim and made it part of its Manual on Rules and Regulations; 7 it was this regulation that governed the actions of the FBI agents who interviewed the three key eyewitnesses at the savings and loan on the day of the robbery.

Other FBI regulations govern final preparation of the 302 report from the rough interview notes. 8 In order to assure the accuracy of the reports, the regulations require that the interviewing agent dictate or prepare a draft 302 report within five working days; it must then be typed and returned to the agent within another five working days. The agent is required to proofread the typed version and compare it with his notes for accuracy. Once this process is completed the agent initials the report, and, unless the notes fall within one of the categories of the preservation regulation set forth above, 9 it is the practice then to destroy the notes, although no regulation specifically requires this. Every FBI agent who testified at the hearing on remand testified that he routinely destroyed the notes once the final 302 report was prepared and checked for accuracy. 10 In addition, there was testimony at the hearing that new agents are carefully taught in training school just what materials must be retained, and instructors stress that a 302 report must accurately and completely reflect the substance of the agent's notes. 11

III

The FBI's practice with regard to rough notes thus satisfies the first of the Bryant requirements: preservation of evidence pursuant to systematic procedures is detailed in the Manual of Rules and Regulations. It is clear, however, that the FBI practice fails the second Bryant requirement: the regulation is too narrow to fully protect the rights of the accused....

To continue reading

Request your trial
95 cases
  • United States v. Byrne
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • October 12, 1976
    ...witness gave any testimony directly concerning any event in Northern Ireland. 16 The defendants rely on United States v. Harrison 173 U.S.App.D.C. 260, 524 F.2d 421 (1975) and United States v. Bryant, 142 U.S. App.D.C. 132, 439 F.2d 642 (1971). Both of these cases discuss the responsibility......
  • U.S. v. Hinton
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • October 17, 1983
    ...notes. See United States v. Vella, 562 F.2d 275 (3d Cir.1977); United States v. Harris, 543 F.2d 1247 (9th Cir.1976); United States v. Harrison, 524 F.2d 421 (D.C.Cir.1975). [These three cases cited as constituting the minority view, are later discussed herein in some detail]. In the other ......
  • U.S. v. Ammar
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 31, 1983
    ... ... 4712-13 (emphasis added) ...         These two references to a "prima facie" case, though troubling, do not persuade us that the district court adopted an improper standard. The first reference was made in a context unrelated to the issue of standard of proof and ... Parker, 549 F.2d 1217, 1223-25 (9th Cir.), cert. denied, 430 U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977); United States v. Harrison, 524 F.2d 421, 428-29 (D.C.Cir.1975). But see United States v. Martin, 565 F.2d 362, 363 (5th Cir.1978); United States v. McCallie, 554 F.2d 770, ... ...
  • U.S. v. Batchelder
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 25, 1978
    ...handwritten notes might violate the Jencks Act. See United States v. Harris, 543 F.2d 1247 (9th Cir. 1976); United States v. Harrison, 173 U.S.App.D.C. 260, 524 F.2d 421 (1975). Even if we were to adopt the D.C. Circuit's approach prospectively, however, no sanctions would be appropriate ba......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT