United States v. Aviles

• Decision Date: 22 December 1961
• Citation: 200 F. Supp. 711
• Parties: UNITED STATES of America v. Alfredo AVILES et al., Defendants.
• Court: U.S. District Court — Southern District of New York

200 F. Supp. 711

UNITED STATES of America v. Alfredo AVILES et al., Defendants.

United States District Court S. D. New York.

December 22, 1961.

Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, New York City (Jerome J. Londin, Herbert B. Greene, New York City, Ezra H. Friedman, Gerald E. Paley, Brooklyn, N. Y., of counsel), for plaintiff.

Edward Bennett Williams, Wilfred L. Davis, New York City (Robert L. Weinberg, Washington, D. C., of counsel), for defendant Vito Genovese.

Roy L. Reardon, New York City, for defendant Charles Barcellona.

Albert J. Krieger, New York City, for defendants Charles DiPalermo and Joseph DiPalermo.

Maurice Edelbaum, New York City, for defendant Natale Evola.

Wilfred L. Davis, New York City, Albert J. Krieger, New York City, of counsel, for defendant Vincent Gigante.

Abraham Brodsky, New York City, for defendants Nicholas Lessa and Daniel Lessa.

Henry K. Chapman, Irving Rader, New York City, for defendant Rocco Mazzi.

David Schwartz, New York City, for defendant Carmine A. Polizzano.

Allen S. Stim, New York City, for defendant Ralph Polizzano.

Herbert S. Siegal, New York City, for defendant Salvatore Santora.

THOMAS F. MURPHY, District Judge.

Defendants move for a new trial based on newly discovered evidence. The newly discovered evidence relied upon are certain notes taken or made by Assistant United States Attorney Shaw during interviews with the government's principal witness, one Nelson Silva Cantellops, in preparing for the examination of that witness before a grand jury. The moving defendants, among others, were indicted and ultimately convicted of criminal conspiracy to violate the Federal Narcotic laws after protracted trial by jury.¹ It is defendants' contention here that the notes in question were producible under the Jencks statute,² for use in cross-examination of the witness at the trial, and that the government unilaterally determined for itself that such notes were not within the purview of the statute and, accordingly, suppressed them and deprived defendants of their use to their prejudice.

While there is room for difference of opinion, we nevertheless will proceed upon the premise that production of the notes in question was adequately demanded by defense counsel,³ and that the direction and orders of the trial court to either turn Jencks material over to counsel directly or to the court for in camera inspection also encompassed such notes, and that any fault for their non-production lies solely with the government. The defense attorneys were fully aware that Shaw had interviewed the witness approximately once a week during a period of time extending over six months; had taken notes during such interviews and had educed some 269 pages of grand jury testimony from the witness in eight days of interrogation before that body. Though not specifically mentioned by counsel, their demand was broad enough to encompass anything that would constitute a "statement" within the meaning of 3500(e), including the notes of an Assistant United States Attorney if such a person's notes are within the reach of the Act. The trial court's orders made it plain that it desired to inspect all material in respect of which a question under the Jencks Act was involved. The United States Attorney represented to the court that he had already turned over to defense counsel "the only statements that were taken that fall within 3500." Obviously the government did not consider that the notes of any of the assistants could be producible under that statute as statements and it did not purport to turn them over to the court to determine relevance or to conduct a voir dire as to whether or not they were "in substance what the witness said."⁴

A preliminary troublesome problem that could possibly preclude defendants from predicating this motion on the non-production of Shaw's notes is that they were aware of the fact, at least seemingly so, that the only material turned over to the court for its in camera inspection were reports of Narcotic Agents,⁵ and with such knowledge, defense counsel nonetheless did not make a specific demand for the assistant's notes or for a voir dire with respect thereto. They might have thought such notes no longer existed (though any doubt in that regard would have been readily dispelled by a simple inquiry) or perhaps did not believe themselves entitled to notes of that character under this relatively new statute. Whatever the reason for not requesting them specifically, or for their indifference or lack of appreciation of the problem to at least focus the issue, we hold their general request and the court's specific directions, fairly and jointly construed, encompassed Shaw's notes and, as we said above, we will therefore assume wrongful or negligent non-production on the part of the government.

The remaining questions to which we now turn are, (1) were the notes in fact producible, and (2) if so, were defendants prejudiced thereby, by failure to have impeachment use of them, to the extent that justice requires a new trial. Rule 33, Fed.R.Crim.Proc., 18 U.S.C.A. In resolving these questions we have read, and reread and compared, all of the notes and other material in the file submitted on this motion, including reports of Narcotics Agents relating to Cantellops testimony, all of the trial testimony of the witness Cantellops and the testimony of Shaw upon the post-trial hearing before Judge Bicks.⁶ In addition, we have held a hearing and read the briefs submitted on this motion. All of the foregoing labors could have been avoided by the simple action of the government of turning over the notes to the trial judge for in camera determination. Although this was the practice approved re doubtful "3500 material" by the Supreme Court in Palermo a year later, it has for many years been the practice in the Second Circuit in doubtful "relevancy matters" to produce the materials for the trial court's determination in camera. See, e. g., United States v. Grayson, 166 F.2d 863, 869 (2d Cir., 1948); United States v. Beekman, 155 F.2d 580, 584 (2d Cir., 1946); United States v. Ebeling, 146 F.2d 254, 256 (2d Cir., 1944); United States v. Cohen, 2 Cir., 145 F.2d 82, 92 (1944); United States v. Krulewitch, 2 Cir., 145 F.2d 76, 78, 156 A.L.R. 337 (1944). Unilateral action on the part of the government in fairly doubtful instances cannot be condoned.

In determining whether Shaw's notes were producible, i. e., whether they are "statements" we apply the same standard applied by the trial court, and that is, "do they set forth in substance what the witness said." In that view we can immediately eliminate the typewritten chronology which manifestly was prepared by Shaw from additional sources other than the witness's interviews, at a much later time, and includes interpretations, impressions and interpolations; it is a general meshing of materials, and in the language of Shaw, to constitute a comprehensive and intelligible whole. It is a work product of the attorney that, although incorporating information from notes of Cantellops' interviews, cannot at all be said to be a substantially verbatim statement of that witness. In any event, the notes from which information was taken and incorporated into that chronology exist and if defendants were entitled to them and received them, they would not also be entitled to a transcription of them. No advantage would be denied defendants in that regard. See Rosenberg v. United States, 360 U.S. 367, 370, 377, 79 S.Ct. 1231, 3 L.Ed.2d 1304.

Proceeding then, to a consideration of the handwritten notes of Shaw we find that the great majority of them are probably Jencks "statements" and that a voir dire by the trial judge would have resulted in the government being ordered to turn them over to defense counsel. However, with the exception of certain notes entitled, "Re. Conversation with Nelson Cantellops on October 10, 1957." and "10/11/57" (stapled together in one group), we find that virtually the entire contents of Shaw's notes correspond with the grand jury testimony of Cantellops which was turned over to the defense. As a matter of fact those notes were used by Shaw in presenting this witness's testimony to the grand jury. Defendants, in effect, already had what the notes contain and consequently no prejudice resulted to defendants from their nonproduction. Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304; Killian v. United States, 82 S.Ct. 302; United States v. Annunziata, 293 F.2d 373, 383 (2d Cir., 1961).

We come finally to the October, 1957, notes, mentioned above, and in our opinion, upon their non-production, defendants' motion for a new trial stands or falls. Up to this point we have not discussed the question of whether or not notes of an Assistant United States Attorney are subject to production under the Jencks Act; we have just assumed that to be so, supra. Now, limiting ourselves to the particular character of the notes in question we hold them to be producible. A convenient point of departure in our reasoning in so holding presents itself in the fact that the two statements turned over to defense counsel by the government in this case, without first submitting them to the court, and turned over without any contention at all that they did not fall unquestionably under the reach of § 3500, were two "Q & A's" of the witness Cantellops, one of which, coincidentally, was taken by Shaw. These of course were recorded verbatim by a stenographer simultaneously with the questions and answers. If in place of the stenographer we have the assistant taking down the questions and answers verbatim, in shorthand or word for word in longhand, logically such notes would be no less producible per Jencks. And since that statute requires production of statements if only "substantially verbatim" and recorded but "contemporaneously," then so long as such a statement is relevant to the direct testimony of the...