United States v. Hilbrich

• Decision Date: 20 July 1964
• Docket Number: No. 62 CR 625.,62 CR 625.
• Citation: 232 F. Supp. 111
• Parties: UNITED STATES of America, Plaintiff, v. Robert Dewey HILBRICH and Nicholas Jacop Uselding, Defendants.
• Court: U.S. District Court — Northern District of Illinois

232 F. Supp. 111

UNITED STATES of America, Plaintiff, v. Robert Dewey HILBRICH and Nicholas Jacop Uselding, Defendants.

No. 62 CR 625.

United States District Court N. D. Illinois, E. D.

July 20, 1964.

COPYRIGHT MATERIAL OMITTED

James P. O'Brien, U. S. Atty., John Peter Lulinski, Chief Asst. U. S. Atty., Appellate Div., John Powers Crowley and William O. Bittman, Asst. U. S. Attys., for the United States.

Robert A. Helman, Chicago, Ill., for appellant Hilbrich.

George L. Saunders, Jr., Chicago, Ill., for appellant Uselding.

CAMPBELL, Chief Judge.

This case is now returned to me pursuant to a remand order by the Court of Appeals. The remand order recites that the mandate was issued in accordance with the suggestion of government counsel. By the mandate it is:

"ORDERED that the district judge who presided over the trial conduct an inquiry pursuant to 18 U.S.C. § 3500 directed to the existence of any notes of Government counsel related to interviews with Government witnesses and of any statements of such witnesses taken by Government agents, and if they are determined to have existed, to conduct further inquiry as to whether they constitute statements under § 3500, and if they are statements, whether it was prejudicial to the defendants not to have received them; also to inquire into the destruction of any such statements if such destruction occurred; to make findings of fact on all those issues, and to have certified to this court the record of such inquiry and findings."

The defendants herein were, during April of 1963, before me tried by jury and found guilty of armed robbery of a Federal Insured Savings and Loan Association. They were represented at the trial by Jerome Rotenberg, Esq., and Martin Gerber, Esq., respectively. I appointed counsel of such prominence and ability because of their criminal trial experience and excellent reputation as members of the Bar of this Court. The government was equally well represented at the trial by Assistant United States Attorney William O. Bittman, a veteran of many criminal trials, ably assisted by Assistant United States Attorney Douglas Brown.

By the wording of the mandate I am now directed to "* * * conduct an inquiry pursuant to 18 U.S.C. § 3500 * * *" (hereinafter referred to as the Act). Inasmuch as the Act, commonly referred to as the Jencks Act, does not specifically provide for such inquiry procedure¹ I must read and interpret the mandate as having reference to the "is it or is it not a statement" procedure referred to and approved by the Supreme Court in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959) and Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961).

At the onset of this memorandum I wish with all respect to express my opinion that the in camera inquiry I have conducted pursuant to the mandate was from the record clearly unnecessary and the request of Government Appeals Counsel therefor thoroughly unwarranted and an imposition upon the Court of Appeals and this Court. In obedience and respect to the Court of Appeals I of course did conduct the inquiry ordered.

I called as witnesses the four attorneys who took part in the actual trial. I questioned them under oath, in camera, and caused a transcript of their testimony to be prepared, which transcript I tender herewith respectfully to the Court of Appeals. Copies of the transcript and of this Memorandum are also being sent to the United States Attorney and to defendants' appellate counsel.

Findings of Fact and Conclusions of Law Pursuant to Mandate.

From the in camera testimony of the participating trial attorneys, the transcript of the trial and by longhand trial notes recorded in a bound volume at the time of the trial, I now make the following findings and conclusions in accordance with and in answer to the Mandate:

Neither prior to nor at the time of trial were there in existence "* * any notes of Government counsel relating to interviews with Government witnesses * * *". Although some of the witnesses called by the government during the trial were in fact interviewed by one or both Assistant United States Attorneys, there were no notes taken at the time of or subsequent to such interviews.

Prior to and at the time of trial there were not in existence "* * * statements of such witness taken by Government agents * * *" which had not, prior to trial and pursuant to my ruling been turned over to counsel for the defendants. (In this regard I understand and interpret the term "statement" to mean § 3500 statements as this term is defined in sub-section (e) thereof. By "such witnesses" I understand and interpret the Court to have reference to witnesses called by the government at the trial).

At the time of trial what might have been original § 3500 statements which were taken of many of the government witnesses by agents of the Federal Bureau of Investigation were no longer extant. These statements I learned at the trial had in each instance been destroyed by the agent who conducted the interview subsequent to his reducing the same to a full written statement known as an "interview report" and produced at the trial for defendants. Such destruction of the interview notes I find was in accordance with good business and office practice and was a procedural policy of the Federal Bureau of Investigation. It was not done in bad faith or with the intention or result of denying the instant defendants any rights they might otherwise have had pursuant to § 3500. The interview reports were "copies" (Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 hereinafter referred to as Campbell II) of the interview notes and as such were § 3500 statements and all such reports were pursuant to my trial order fully delivered to the defendants as is clearly evident from a reading of the trial transcript.

The foregoing findings clearly do not warrant a further finding as to the possible existence of "harmless error". However, if they should be so construed I do hereby conclude as a matter of law that any non-production of the agents' original notes due to their matter of course destruction would fall within the Rosenberg "harmless error" rule. (Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304). Briefly stated the rule is applicable in situations such as this where although related Act notes are not turned over in compliance with a proper defense motion, said failure of compliance is "empty of consequence" in that "no relevant purpose could have been served" and "no advantage to the petitioner was denied by witholding it"; e. g. where "the very same information was possessed by defendant's counsel or would have been available were error not committed". See also United States v. Thomas, 2 Cir., 282 F.2d 191 (1960).

Upon careful reflection and study of the transcript it becomes painfully apparent to me that the Assistant United States Attorney in making his aforesaid suggestion to our learned Court of Appeals was either ignorant of the record or deliberately misled that Court. I prefer of course to choose ignorance rather than venalty. However, I cannot condone and let go unmentioned such inadequate representation of the government before so important a tribunal. I am sure that our present United States Attorney who was not in office at the time of this appeal will see to it that this does not happen again.

I resent and here protest the inference of government appeal counsel that as the trial judge I did not satisfactorily or accurately discharge the duty imposed upon me by this Act.² I protest further the imposition by the same counsel upon our learned Court of Appeals, in permitting that Court to assume as it had every right to expect, that it was being well advised by him as to the facts and the law. Clearly such is not the situation here.

All of the findings required to be made by the mandate and made herein had already been made and were to be found within the trial transcript. It is quite possible of course that my rulings at the time of trial were improper and not in keeping with a higher tribunal's more accurate appraisal of the state of the law, but nonetheless the findings now requested and conclusions thereon were made (and are, I believe, factually supported by the record.) If I was in error, I am sure the case will be duly reversed and remanded. However, the facts I am now required to determine have already been determined and are to be found in the transcript of the trial.

In support of the foregoing and to classify this apparent obfuscation of the record by the Assistant United States Attorney, I deem it appropriate here to do what he should have done and call the Court of Appeals attention to the following facts. As to the existence of any interview notes, supposedly taken by government counsel in interview with government witnesses, every government witness, without fail, who answered affirmatively when asked if he or she was interviewed by the Assistant United States Attorneys testified that the Assistant United States Attorneys did not take any notes.³ The reason for such emphatic denial of note taking by all of the witnesses is understandable in light of the Assistant United States Attorney's practice of calling this fact—i. e. that no notes are being taken—to the attention of prospective witnesses at the time of interview.⁴

In addition to the testimony of the witnesses, Assistant United States Attorney Bittman (trial transcript p. 1424) made the buttressing representation in open court that although he and Brown did, as the witnesses testified, interview witnesses, they reduced nothing from these interviews to writing. Defendants' counsel in no way questioned or raised issue with the testimony of the witnesses or the representation of the Assistant United States Attorney.

Although the instant record contains witness testimony which is in addition to and in corroboration of government counsels'...