United States v. Cruz

• Citation: 478 F.2d 408
• Decision Date: 21 June 1973
• Docket Number: No. 72-1301.,72-1301.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nelson CRUZ et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

478 F.2d 408 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Nelson CRUZ et al., Defendants-Appellants.

No. 72-1301.

United States Court of Appeals, Fifth Circuit.

May 4, 1973.

Rehearing and Rehearing Denied June 21, 1973.

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Denis Dean, Miami, Fla. (Court-Appointed), Daniel S. Pearson, Miami, Fla., for Julio Fuentes.

Melvyn Kessler, Miami, Fla., for Luis Lara.

Donald I. Bierman, Miami, Fla., for Felix Aleman and Pedro Manuel Noriega.

Robert W. Rust, U. S. Atty., Jerome B. Ullman, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before AINSWORTH, GODBOLD and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 21, 1973.

CLARK, Circuit Judge:

This case involves a large-scale car theft ring which conducted operations in New Jersey and Florida. Challenges are raised to (1) indictment solely on the basis of hearsay, (2) destruction of investigators' notes assertedly designed to thwart the Jencks Act, (3) alleged prejudice resulting from variance between the indictment and proof, misjoinder, and failure to sever, and (4) arrangements between the prosecution and government witnesses. Concluding that the appellants received a fair trial free of prejudice and reversible error, we affirm all convictions challenged on this appeal.

Originally there were forty defendants variously charged in thirty-nine substantive counts of interstate car theft¹ and one overall conspiracy count.² Sixteen of these defendants pled guilty, charges against seven others were dismissed, two were acquitted in separate trials, and one remains a fugitive from justice. Fourteen others were tried before the United States District Court sitting without a jury. Eight of the fourteen who went to trial were acquitted. The instant appeal is by five of those found guilty. Three appellants, Cruz, Noriega, and Aleman, were found guilty of conspiracy and on one or more substantive counts; appellant Lara was found guilty of conspiracy but acquitted on four substantive counts; appellant Fuentes was acquitted of conspiracy but found guilty on two substantive counts.

Grand Jury Hearsay

The appellants contend that their grand jury indictment was invalid because it was based on the hearsay testimony of one investigating FBI officer rather than on direct testimony of informant-witnesses whom the government could have summoned to testify. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), the Court considered and rejected the contention that an indictment based exclusively on hearsay evidence is constitutionally invalid. This reasoning has been followed on many occasions by this court. See, e. g., United States v. Bird, 456 F.2d 1023 (5th Cir. 1972); United States v. Klaes, 453 F.2d 1375 (5th Cir. 1972); United States v. Howard, 433 F.2d 1 (5th Cir. 1970), cert. denied, 401 U.S. 918, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971).

Recognizing the piercing precedent of Costello, the appellants would avoid its thrust by distinguishing the facts of this case. First, they refer us to opinions of the Second Circuit which they contend establish the rule that an indictment based on hearsay is invalid where (1) non-hearsay evidence is readily available; (2) the grand jury is misled into believing it was hearing direct testimony rather than hearsay; and (3) there is a high probability that had the grand jury heard the eye witnesses it would not have indicted. See United States v. Umans, 368 F.2d 725 (2d Cir. 1966) (dicta), cert. granted, 386 U.S. 940, 87 S.Ct. 975, 17 L.Ed.2d 872, cert. dismissed as improvidently granted, 389 U.S. 80, 88 S.Ct. 253, 19 L. Ed.2d 255 (1967); United States v. Malofsky, 388 F.2d 288 (2d Cir.) (dicta), cert. denied, 390 U.S. 1017, 88 S.Ct. 1273, 20 L.Ed.2d 168 (1968), United States v. Leibowitz, 420 F.2d 39, 41-42 (2d Cir. 1969),³ However, this "best evidence" rule has never been considered, even by that circuit, as a constitutional requirement. United States v. Callahan, 439 F.2d 852, 859-860 (2d Cir.) cert. denied 404 U.S. 826, 92 S.Ct. 56, 30 L.Ed.2d 54 (1971). Rather, it serves simply as a supervisory guideline to be employed by courts within their sound discretion to protect potentially innocent citizens from possible prosecutorial manipulation of grand jury proceedings. United States v. Estepa, 471 F.2d 1132, 1136-1137 (2d Cir. 1972). See also United States v. Gramolini, 301 F.2d 39 (D.R.I.1969); United States v. Arcuri, 282 F.Supp. 347 (S.D.N.Y.) aff'd 405 F.2d 691 (2d Cir. 1968) cert. denied 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969). While the presentation of hearsay testimony of an investigating officer in lieu of readily available testimony by direct witnesses is by no means a preferred procedure, it is neither unconstitutional nor inherently wrong. In the absence of some showing that the integrity of grand jury proceedings has been impaired, an indictment even if based exclusively on such testimony will not be overturned on appeal.⁴

Second, the appellants argue that the 1970 amendment to the Jencks Act, contained in the Organized Crime Control Act, P.L. 91-452, § 102, codified as 18 U.S.C. § 3500(e) (3), which expressly placed grand jury testimony within the definition of statements subject to discovery for the purposes of impeachment, undermines the continuing validity of Costello. They contend that since criminal defendants now have the right to obtain grand jury minutes containing testimony of government witnesses who later appear at trial, refusal of the government to call before the grand jury available witnesses who can testify directly to the facts of the alleged offense and whom the government plans to call at trial unfairly denies the defense potential Jencks Act material.

The appellants suggest that, in order to effectuate the Congressional policy reflected in the 1970 amendment, the courts should overturn indictments obtained through hearsay testimony. This suggestion misreads the legislative purpose for these amendments which is to undergird the truth finding process of criminal trials by making any existing prior statements made by a witness used by the government equally available to the defense and prosecution. However, no part of the Jencks Act has ever been construed to require the government to develop potential Jencks Act statements so that such materials can be combed in the hopes of obtaining impeaching inconsistencies.⁵ Indeed, we have held "the right of discovery of statements is not a guarantee that the statement is complete in all respects." Castillo v. United States, 409 F.2d 762, 765 (5th Cir. 1969). In an analogous area, we have also unequivocally refused to require the holding of preliminary examination under Fed.R.Crim.P. 5(c) in the face of assertions by defendants that it would benefit the development of their defense to have this pretrial insight to the government's proof and that the government had deliberately aborted such an examination by continuance until an indictment was obtained.⁶ United States v. Coley, 5 Cir., 441 F.2d 1299, cert. denied, 404 U.S. 867, 92 S.Ct. 85, 30 L.Ed.2d 111 (1971). We conclude that Costello is unaffected by the recent amendment to the Jencks Act.⁷

Taking a different approach, the appellants argue that their indictments were invalid because the grand jury did not have before it any probative evidence, either hearsay or direct, upon which to base the indictments. However, the majority opinion in Costello also squarely rejected the contention that appellate courts may review the sufficiency of evidence supporting an indictment. 350 U.S. at 363, 76 S.Ct. at 408-409. The appellants' reliance on the concurring opinion of Mr. Justice Burton in Costello and on dicta in the pre-Costello opinion of this court, Friscia v. United States, 5 Cir., 63 F.2d 977, 980, cert. denied, 289 U.S. 762, 53 S.Ct. 797, 77 L.Ed. 1505 (1933), is misplaced.⁸ We will not review the sufficiency of the evidence, if any, supporting the grand jury indictments in this case. See Cohen v. United States, 436 F.2d 586 (5th Cir.), cert. denied, 403 U.S. 908, 91 S.Ct. 2215, 29 L.Ed.2d 684 (1971); United States v. Gower, 447 F. 2d 187 (5th Cir.), cert. denied, 404 U.S. 850, 92 S.Ct. 84, 30 L.Ed.2d 88 (1971).

Witness Interviews and the Jencks Act

The appellants further contend that their rights under the Jencks Act were violated by the failure of the government to produce copies of statements made by government witnesses. As part of pre-trial investigation, FBI agents interviewed a number of persons involved in the car theft ring. During these interviews the agent took notes which were routinely destroyed after the agent had recorded his summary of the interview on a standard Form 302 report.⁹ The appellants assert that the now destroyed notes contained substantially verbatim recitals of oral statements by prosecution witnesses and therefore that the government violated the Jencks Act by failing to preserve and produce such notes at trial.

This claim is based on statements made by the government's witnesses during cross-examination that they observed investigating officers make extensive verbatim notes during the pretrial interviews. Since the inspection of the original notes was impossible, the court and defense counsel conducted voir dire examination of the investigating agents and the witnesses who had been interviewed to determine whether the notes were such "statements" as would have been required to be produced under the Jencks Act.¹⁰ In contradiction to testimony of the witnesses, the investigating officers testified that they did not take verbatim notes and, at the most, jotted down occasional key words and phrases used by the informants. The court thereupon found that "the notes that were made were not substantially verbatim recitals," and therefore were not "statements" within the meaning of 18 U.S.C. § 3500(e)(2).

The fact that investigators' notes contained occasional verbatim recitation of...