United States v. Campbell, Crim. No. 57-280.

• Decision Date: 05 December 1961
• Docket Number: Crim. No. 57-280.
• Citation: 199 F. Supp. 905
• Parties: UNITED STATES of America, Plaintiff, v. Alvin R. CAMPBELL et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

199 F. Supp. 905

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

Crim. No. 57-280.

United States District Court D. Massachusetts.

December 5, 1961.

William J. Koen, Asst. U. S. Atty., Boston, Mass., for plaintiff.

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

WYZANSKI, District Judge.

This case is in this Court pursuant to an order of the Court of Appeals, following its opinion rendered November 7, 1961 in Alvin R. Campbell et al. v. United States, No. 5847, 296 F.2d 527. By lot, Judge Caffrey drew the case. He disqualified himself and, at his request, last week I accepted assignment of the case. November 28, 1961, I asked counsel to appear before me the next day. They did, and, with their consent, I scheduled the case for hearing on December 5, 1961, and for that day summoned Staula and Toomey "both to testify", as ordered at p. 534 of the opinion of the Court of Appeals. At their counsel's suggestion, I also issued process requiring the three defendants to be in Boston December 4, 1961 so that counsel might interview them that day, and have them present in the courtroom for identification purposes on December 5, 1961.

The story of this case requires only brief recapitulation. December 17, 1957 the grand jury indicted these three defendants for armed robbery of a bank under 18 U.S.C. § 2113. Judge McCarthy tried the case to a jury. Staula testified. To impeach him defendants' counsel sought access to a so-called interview report, the document before me as Ex. 3. Judge McCarthy refused counsel access to that paper. The jury convicted. February 18, 1958 Judge McCarthy imposed sentences of 25 years imprisonment on each defendant. They appealed. The Court of Appeals affirmed. 1 Cir., 269 F. 2d 688 (1959). On certiorari, the Supreme Court, in effect, suspended the convictions and returned the case to the District Court for the purpose of making a further inquiry into the circumstances attending the report. Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed. 2d 428 (1961). Judge McCarthy held a hearing, and on May 1, 1961 he filed findings of fact and conclusions of law, and he re-imposed the sentence of 25 years originally imposed on February 18, 1958, but adjudged that defendants be credited with all good time already served by them under the original sentences. On appeal, the Court of Appeals re-examined the evidence, adopted canons for the interpretation of the relevant Jencks statute, 18 U.S.C. § 3500, and, while retaining jurisdiction of the appeal generally, returned the original papers to this Court for further proceedings before another judge.

The hearing before me involved the testimony of only Staula and Toomey. Both were examined by defendants' counsel and by the assistant District Attorney. Each gave a straightforward and, in general, credible account. Such discrepancies as there were in no way reflected on the integrity or general testimonial reliability of either man. But there were some minor inaccuracies of observation and lapses of memory such as might be expected of honest men. My findings on the basis of their testimony follow.

1. On July 19, 1957 Toomey, an F.B.I. special agent, alone interviewed at the Canton police station Staula who, as a customer present in the bank, was an eyewitness of the robbery.

2. Toomey had in front of him an ordinary pad of white paper with blue lines. As he asked Staula questions, the pad was not within range of Staula's detailed observation. But from Toomey's own testimony, it is quite clear what he put on the pad. He did not purport, as though he were a court stenographer, to write down every word. But in longhand, and not in cipher, or with unusual abbreviations, he set down two different types of information. One was direct quotation of the precise words Staula used in describing each of the alleged robbers whom Staula observed, and of the phrase "over against the wall" used by Staula. The other information was a substantially accurate, but not letter-perfect, rendering of answers Staula gave to Toomey's questions.

3. When Toomey had finished writing, he addressed Staula. Toomey did not purport to read the jottings on the pad in just the order they appeared, nor with the scrupulous care that one stenographer would read back to another. Yet Toomey not merely adhered to the substance but so far as practical to the precise words,—and to achieve this correspondence he looked down at the jottings each time before he uttered a sentence.

4. At the end of the reading, Staula told Toomey that what the latter had written was to the best of Staula's knowledge what had happened, and that to the best of his knowledge it was true. Toomey did not ask Staula to sign his approval; nor was there any reason so to do for Staula was not a possible party, nor a likely adverse witness who could be impeached, nor a person whose testimony could be used in his absence.

5. There is, in my opinion, no difference of any substance, and hardly any difference in form or order of presentation between what Toomey repeated to Staula and what Toomey had jotted on the pad, or between what Toomey had jotted on the pad and that portion of what Staula told Toomey which had any value as possible testimony at any stage of this case.

6. After Staula left, Toomey used the jottings on his pad to dictate to a disc. Any person who had the jottings before him and had Toomey's knowledge of what Staula said would have dictated the same words to the disc. That is, there is not on the disc any element of art, invention, or...