United States v. Greco, 162

• Decision Date: 12 January 1962
• Docket Number: No. 162,Docket 27166.,162
• Citation: 298 F.2d 247
• Parties: UNITED STATES of America, Appellee, v. John D. GRECO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

298 F.2d 247 (1962)

UNITED STATES of America, Appellee, v. John D. GRECO, Defendant-Appellant.

No. 162, Docket 27166.

United States Court of Appeals Second Circuit.

Argued November 16, 1961.

Decided January 12, 1962.

Certiorari Denied March 19, 1962.

John D. Roeder, New York City (Garey & Garey, New York City, on the brief; Jacob J. Rosenblum and Anthony J. Obadal, New York City, of counsel), for defendant-appellant.

Gerald E. Paley, Asst. U.S. Atty., S. D. of N. Y., Brooklyn, N. Y. (Robert M. Morgenthau, U. S. Atty., for the S. D. of N. Y., on the brief; Arthur I. Rosett, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before MOORE, SMITH and HAYS, Circuit Judges.

Certiorari Denied March 19, 1962. See 82 S.Ct. 831.

MOORE, Circuit Judge.

Defendant, John D. Greco, appeals from a judgment of conviction entered by the district court after a trial without a jury under an indictment charging defendant with transporting and receiving stolen Canadian securities in violation of 18 U.S.C. §§ 2314 and 2315, and with conspiring with his codefendant, Edward B. Loree, to commit these offenses in violation of 18 U.S.C. § 371. Loree pleaded guilty prior to trial and was the government's principal witness.

Loree testified that early in April, 1958, Greco, whom he had met previously, proposed that Loree sell some Canadian bonds for him; that at a second meeting Greco told him that the bonds were stolen; that Greco in New York delivered to him Canadian bonds in the face amount of $36,500, which Loree subsequently took to Miami, Florida; and that he (Loree) was arrested by the FBI in Florida with the bonds in his possession.

Greco did not take the stand. The only witness called by the defense was a disbarred attorney who was serving a prison term for larceny. He testified that he talked to Loree a few days after Loree was arrested; that Loree told him that he knew Greco and that Greco had been arrested also; that Greco had nothing to do with the "hot" bonds; but that he (Loree) intended to take full advantage of Greco's arrest in an attempt to get himself out of the mess.

Although other grounds for reversal are argued, appellant's principal ground is the alleged failure of the Government to produce certain handwritten notes made by FBI agents during interviews with Government witnesses Loree and DeKoninck. So many factual situations, each slightly different from the others, have been (and are being) presented to the courts since the enactment of the so-called Jencks Act (18 U.S.C. § 3500) that it would be expected that every fact possibility would have been adjudicated by now. Any such hope is obviously unrealistic and would show a failure to appreciate the resourcefulness and imagination of the legal mind and able defense counsel. Because these factual variations have formed the basis for the various decisions in this field, a rather detailed review of the facts must be made. Any attempt in this case to review all the decisions on the subject and to give to the trial judges, present and future, an infallible guide to all rulings on Jencks Act questions is quickly abandoned as highly presumptuous and impossible, tempting though it be.

Loree was apprehended in Miami by Agents of the FBI on April 22, 1958, and was immediately interviewed. Handwritten notes (not verbatim statements) were taken by the Agents. From these notes more complete reports of the interview were subsequently prepared. Two documents relating to this interview were produced and given to appellant, one (Exh. 2 id.) an unsigned statement of Loree, dated April 22, 1958, and the other (Exh. 6 id.) consisting of two FBI office memoranda (one of nine pages), dictated May 9, 1958, and dated May 14, 1958. The key fact is found in the stipulation of defense counsel that the FBI Agents would have testified that these two exhibits reflected the contents of the notes and that the notes were destroyed after the reports were completed. There was no testimony contradictory of this fact.

In addition, the government delivered to defense counsel during Loree's cross-examination other statements relating to Loree's interview and a twenty-page transcription of his grand jury testimony. As to the witness DeKoninck, the Agent's testimony was similar. He made notes, dictated statements, compared the reports with his notes and after he saw that the reports (Exhs. 4 and 8) fully reflected the material in the notes, he destroyed the notes. There was no proof that the handwritten notes came within the purview of paragraph (e) (1) or (2) of Section 3500 — in fact, the Agent testified that he did not take a verbatim statement. Another Agent gave similar testimony as to another report (Exh. 3 id.) dealing with Loree.

Apparently having found nothing in the mass of material turned over by the government to weaken the witnesses' testimony and choosing to give no weight to the Agents' testimony of accuracy in transcription, appellant seeks to have the court assume that in the destroyed handwritten notes, there must have been a veritable gold mine of cross-examination material. In so arguing, appellant raises the same question urged upon the Supreme Court in Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed. 2d 428 (1961), namely, "that destruction of notes without regard to the circumstances should be so regarded i e., as non-compliance under § 3500" (p. 98) 81 S.Ct. p. 428. But just as the Supreme Court concluded that "this Campbell record affords us no opportunity to decide this important question of the construction of subsection (d)," so is it to be doubted that Greco provides a proper vehicle.

In Campbell, the Supreme Court was concerned over the absence of facts concerning the "Interview Report" which the trial judge did not deliver to defense counsel. The Court, therefore, remanded for further inquiry limited to the circumstances surrounding the preparation of the "Interview Report," stressing the availability of the Agent who was not called. Here all material elements found lacking in Campbell are present. The Agents principally involved presented themselves for cross-examination; as to others, defense counsel stipulated to the facts they would recite. Reports or statements were not withheld by the trial judge or the government. All material in existence covered by Section 3500 and much not included therein was made available to the defense.

There is no...