United States v. Lonardo, 15681-15684.

• Decision Date: 09 September 1965
• Docket Number: No. 15681-15684.,15681-15684.
• Citation: 350 F.2d 523
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dominic C. LONARDO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mario John GUERRIERI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Peter MANOS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard A. STEWART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

350 F.2d 523 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. Dominic C. LONARDO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Mario John GUERRIERI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Peter MANOS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Richard A. STEWART, Defendant-Appellant.

Nos. 15681-15684.

United States Court of Appeals Sixth Circuit.

September 9, 1965.

James J. Carroll, and Gerald S. Gold, Cleveland, Ohio, for Dominic C. Lonardo.

Gerald S. Gold, Cleveland, Ohio, for Richard A. Stewart.

Nathaniel R. Jones, Asst. U. S. Atty., Cleveland, Ohio, Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, on brief, for appellee.

Before O'SULLIVAN, PHILLIPS and EDWARDS, Circuit Judges.

EDWARDS, Circuit Judge.

The United States is

"* * * a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).

Defendants-appellants were found guilty by a jury on one of two counts of a federal indictment charging them with falsely representing themselves to be FBI agents in violation of Title 18 U.S.C. § 912. A federal judge in the Northern District of Ohio sentenced them to the custody of the Attorney General for three years, with three months of such custody to be served in jail, and sentences to be suspended thereafter with defendants placed on five years probation.

Defendants appeal. Having been convicted for employing illegal means to achieve a lawful purpose, they now assert that their convictions were secured by the government by illegal means.

Defendants Lonardo and Guerrieri were agents of a bonding company which had written a $50,000 bond for one Joseph Arrington and a $25,000 bond for one Alfred Oponowicz. Both of these latter had previously been charged with armed robbery of a bank. When neither of them appeared for trial, defendants undertook to locate them in order to avoid the penalty of forfeiture of the total of $75,000 in bonds.

It appears that defendant Lonardo learned that a man named Louis Gaye was a close associate of Arrington's and was assisting in purchasing a car for Arrington. On the evening of February 8, 1963, assisted by defendant Stewart, Lonardo waited near the car lot until Gaye picked up the certificate of title and drove away. Lonardo and Stewart followed, forced Gaye to stop his car, and at pistol point, forced Gaye and his passenger, Betty Flonnoy, to get into the Lonardo car. Subsequently, these two defendants were joined by defendant Guerrieri and defendant Manos.

For several hours thereafter Gaye and Flonnoy were questioned by defendants in automobiles and at Gaye's apartment. Ultimately Gaye made a phone call in defendants' presence to Arrington which led to his capture, trial and conviction. The testimony indicated that when Gaye's car was stopped, and at various other times, defendants displayed pistols. Gaye and Flonnoy at trial testified that defendants repeatedly identified themselves as FBI agents. This defendants denied — but the jury quite apparently believed Gaye and Flonnoy on this point. Defendants also testified to contacts with various members of the Cleveland Police Department before and during the events of February 8, which they apparently regard as sanction of their extraordinary¹ conduct.

After Arrington's arrest and return to Cleveland on March 15, 1963, Gaye and Miss Flonnoy were interviewed by Agent O'Hara of the FBI. An FBI stenographer took notes of the interview and transcribed them.

Subsequently, Agent O'Hara employed the transcripts in making out formal FBI interview reports — called 302 Reports — of these witnesses' testimony. Thereafter defendants were indicted for falsely posing as FBI agents.

A week and a half before trial of the defendants Agent O'Hara removed the copies of the stenographic transcripts from the file of the United States Attorney and destroyed them. The agent testified that destruction of "interview notes" was in accordance with FBI procedures once the formal interview reports had been made out.

At trial defendants' counsel sought and received permission under the Jencks Act, Title 18 U.S.C. § 3500, to inspect the 302 Reports and to use them for purposes of cross-examination. He also sought the original stenographic transcripts for the same purpose. These, of course, were not available to be produced, since they had been destroyed.

At trial the United States contended that all that was destroyed were the notes of the agent after the notes had been transcribed and that the ultimate reports were produced. The government claimed that these "interview notes" of the agent were not the statements of the witnesses as contemplated by the Act.

Defendants, on the other hand, contended that what had been destroyed were the actual verbatim statements of the witnesses as given to a shorthand reporter and transcribed by her. They also contended that at least the Flonnoy statement was adopted and approved by the witness.

In this regard defendants rely upon the testimony of the FBI stenographer. This same witness also gave support to Miss Flonnoy's testimony that in her statement to the FBI she had referred to the Cleveland police contacts during the events of February 8, but that such references were eliminated in the final "302 Reports." Defendants contended that the original transcripts would have been valuable to them for purposes of cross-examination of Gaye and Flonnoy.

At the trial the District Judge took testimony dealing with the nature of the destroyed documents and apparently concluded that they were "statements" within the meaning of the Jencks Act. He did not, however, grant defendants' motions for striking the Gaye and Flonnoy testimony or for a mistrial, but devised an alternative sanction. He allowed cross-examination as to the nature of the documents and the method of their destruction before the jury and charged the jury that it could infer from the fact of destruction that the destroyed documents contained material unfavorable to the government's case.

In this appeal we are required first to determine whether or not the documents which were destroyed were "statements" within the meaning of the Jencks Act. If so, we must then determine whether or not the "sanction" employed by the District Judge meets the requirements of the Jencks Act.

As to the "statement" question, the Jencks Act, 18 U.S.C. § 3500,² provides in part:

"The term `statement\' * * * means * * * (2) a stenographic * * * recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement." 18 U.S.C. § 3500.

The two government witnesses, Gaye and Flonnoy, testified that at the first FBI interview a stenographer was present who took down what they said word for word. Each also testified that they later saw and read a transcript of the interview.

The government stenographer who took the statements which are in controversy testified as follows:

"Q Now, going to the time of March the 15th, when you were called in and Mrs. Flonnoy was making her statement, can you tell us — I am not asking you to recall what she said, but the manner in which this statement was taken; for instance, was it question and answer? Did the officers ask her a question and she give an answer, or was it just a rhetorical statement by her?

"A She was advised to tell it in her own words, so she would say — she would go on — maybe they would stop, and they would say, `Did you say this?\' and she would say, `No. I said this.\' That would clarify anything they didn\'t understand, but she did give it herself.

"Q You were taking it down, your notes, exactly from her voice, her statement?

"A Yes.

"Q At any time was the statement that Mrs. Flonnoy made paraphrased by one of the officers, for instance, did she go on and make a certain statement, and then the officer put it in his words so that you would put his words in your notes rather than what the witness, rather than what the witness, Flonnoy, said?

"A The only thing I can remember is grammar, you know, correcting grammar.

"Q You mean the officer would interpose and interfere and correct her grammar in the way she was telling it?

"A Yes, sir.

"Q Would he in any sense formulate any statement in his own words from what she said, and then dictate it to you, what he, in his words, interpreted her to say? I hope that is clear to you. In other words, did she make a statement and then the officer would, or dictate it to you, what you should put down in your notes as her statement?

"A As I stated before, the only thing I really remember is grammar, not really changing it.

"Q Your recollection is distinct. You took down word for word what the witness said?

"A Yes."

This witness also testified that the two statements covered thirty pages — about twelve pages to the Flonnoy statement and the balance in the Gaye statement.

This record convinced the trial judge that the destroyed transcripts were Jencks Act statements. He said:

"No Court is going to sit by and observe the destruction of a statement which comes within the Jencks Act the matter of a few days before trial, and simply accept it as a statement of fact, and accept it in the sense that the Jencks Act requires no further sanctions or compliance."

We believe he was correct in this conclusion. The testimony pertaining to the taking of the statements is sufficient for us to hold that these were "stenographic" transcripts which were "substantially verbatim" and "contemporaneously recorded" within the meaning of the Jencks Act, 18 U.S.C. § 3500(e) (2). From the testimony referred to we hold that the...