Palermo v. United States
Palermo v. United States
Opinion of the Court
delivéred the opinion of the Court.
• Petitioner was convicted of knowingly and willfully evading the payment of income taxes for the years 1950,' 1951 and 1952. A substantial part of the alleged evasion was failure to report income from dividends. Among the Government’s exhibits at trial was a record, presum-'
Prior to the trial, on July 16, 1956, during the course of an interrogation by agents of the Internal Revenue Service, Sanfilippo had been unable to recall when the dividend record had been received. More than a month later, August 23, 1956, Sanfilippo had met with revenue agents to verify and sign the transcript of his earlier testimony. At this meeting he executed a supplementary affidavit reciting that he wished to clarify his original answers and that he remembered that his firm had not received the dividend record until after revenue agents had begun their investigation of petitioner’s tax returns. A memorandum of the conference at which this affidavit was executed was made by one of the agents present. On cross-examination of Sanfilippo the defense demanded and received various documents including the transcript of the July 16 interrogation and the August 23
Accurate analysis of these problems as a basis of their appropriate solution requires due appreciation of the background against which the statutory terms must be projected.
Exercising our power, in the absence of statutory provision!, to prescribe procedures for the administration of justice in the federal courts, this Court, on June 3, 1957, in Jencks v. United States, 353 U. S. 657, decided that the defense in a federal criminal prosecution was entitled, under certain circumstances, to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses. . These statements were therefore to be turned over to the defense at the time of cross-examinátion if their contents related to the subject -matter of the witness’ direct testimony, and if a demand had been made for specific statements which had been written by the witness or, if orally made, as recorded by
The decision promptly gave rise to sharp controversy and concern. The day following our opinion the House of Representatives was told that the decision in Jencks posed a serious problem of national security and that legislation would be introduced: 103 Cong. Rec. 8290. The same day H. R. 7915, the first of eleven House bills dealing with what became the Jencks problem, was introduced in the House.
1. Subsection (a) requires that no statement of a government witness made to an agent of the Government'and in the Government’s possession shall be turned over to the defense until the witness has testified on direct examination. This section manifests the general statutory aim to restrict the use of such statements to impeachment. Subsections (b), (c) and (d) provide procedures for the production of “statements,” and for the consequences to the, Govérnment of failure to produce. Subsection (e) restrictively defines with particularity. the term “statement” as used in the three preceding sections. The suggestion that the' detailed statutory procedures restrict only the production of the type of statement described in subsection- (e), leaving all other statements, e. g., non-verbatim, ■ non-contemporaneoqs records of oral statements, to be produced under pre-existing rules of procedure as if the statute had not been passed at all, flouts the whole history and purpose of the enactment. It would-mock Congress to attribute to it an intention to surround the production of the carefully restricted and most trustworthy class of statements with detailed procedural safeguards, while allowing more dubious' and less
To be sure, the statute does not, in so many words, state that it is the exclusive, limiting means of compelling for cross-examination purposes the production of statements of a government witness to an agent of the Government. But some things too clearly evince a legislative enactment to call for a redundancy of utterance. One of the most important motive forces behind the enactment of this legislation was the fear that an expansive reading of Jencks would compel the undiscriminating production of agent’s summaries of interviews regardless of their character or completeness. Not only was it strongly feared that disclosure of memoranda containing the investigative agent’s interpretations, and impressions might reveal the inner workings of the investigative process and thereby injure the national interest, but it was felt to be grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness’ own rather than the product of the investigátor’s selections, interpretations and interpolations. The committee reports of both Houses and the floor debates clearly manifest the intention to avoid these, dangers by restricting production to those statements •specifically defined in the bill.
2. Since the statutory, procedures are exclusive they constitute the rule of law governing the production of the statement at issue in this case and it becomes necessary to determine the scope and meaning of the statutory definition of “statement” contained in (e). Clause (1) of (e) permits the production of “a written statement made by said witness and signed or otherwise adopted or approved by him . . . .” Although some situations may arise, creating peripheral problems of construction, its import is clear. Clause (2) widens the definition of “statement” to include “a stenographic, mechanical, electrical, or other 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.” Clearly this provision allows the production of mechanical or stenographic recordings of oral state
However, such a finding is only the beginning of the task of construction. It is clear that Congress was con- • cerned that only those statements which could properly be called the witness’ own words should be made available to the defense for purposes of impeachment.
It is also the function of the trial judge to decide, in light of the circumstances of each case,, what, if any, evi
In light of these principles the case before us is clear. Both the District Court and the Court of Appeals correctly held that the sole standard - governing production of the agent’s memorandum of his conference with Sanfilippo was 18 U. S. C. § 3500. The district judge and a unanimous Court of Appeals held that the statement was not within the definition of statement in (ej as properly understood by them. We have examined the statement and the record and find that the determination of the two courts below was justified and therefore must be sustained.
Affirmed.
APPENDIX A TO OPINIÓN OF THE COURT.
SUMMARY OF LEGISLATIVE HISTORY DEMONSTRATING THE INTENT OF THE CONFERENCE MEASURE TO RETAIN AS A PRIMARY PURPOSE OF THE ACT A PROHIBITION OF PRODUCTION OF ALL STATEMENTS NOT DESCRIBED IN SUBSECTION (E). (SEE PP. 350-351, ANTE.)
The bills as they went to Congress contained explicit provisions making them exclusive. For example, the Senate. bill provided in subsection (a): v.-
“In any criminal prosecution brought by the United States, no statement or report of a Government witness or prospective Government witness (other than the defendant) made to an agent of the Government which is in the possession of the United States shall be the subject of subpena,- or inspection, except, if provided in the Federal Rules of Criminal Procedure, or as provided in paragraph (b) of this section (Emphasis added.) 103 Cong. Rec. 16130.
The House bill contained a similar provision.
Although the last phrase of this section was dropped out when the section was rewritten to eliminate reference to the Federal Rules of Criminal Procedure, see 103 Cong. Rec. 16488; H. R. Rep. No. 1271, 85th Cong., 1st Sess., there is no indication that its omission was intended
What small debate there was following the Conference Report supports the conclusion that no change in the exclusiveness of the bill was intended. For example, Senator O’Mahoney, introducing the conference measure, stated that, “[t]here was some fear upon the part of the Department of Justice that the. Senate bill would create a greater latitude for the examination of irrelevant reports of agents. The language which was devised by the conferees has cleared up the doubts . . . .” 103 Cong. Rec. 16487. See also 103 Cong. Rec. 16488-16489. In the House, Representative Keating, one of the Conferees, explained that “The conferees provided that the only statements a defendant could see, and then only in the courtroom were those actually signed or formally approved by the witness or a stenographic verbatim recital of a statement made by a witness which is recorded contemporaneously with the making of such oral statement.
APPENDIX BvTO OPINION OF THE COURT.
PARTIAL SUMMARY.OF LEGISLATIVE HISTORY BEARING "ON THE PROPER CONSTRUCTION OF ^SUBSECTION .(E).
(SEE PP. 351 AND 352, ANTE.)
The original Senate bill,' as passed by' the. Senate, allowed the production of “any transcriptions or records of oral statements made by the witness to an agent of the Government . . . .” See 103 Cong. Rec. 16130. During the course of the Senate debate an amendment had "been offered to limit this provision to mechanical transcriptions or recordings. See 103 Cong. Rec. 15930-15931. This amendment was. rejected after Senator O’Mahoney, sponsor of the legislation, had argued that it would leave the bill too “limited.” “All we are asking,” he stated, “is that the records which are . relevant and competent,"-' which deal with.the oral statements made by Government witnesses whom the Government puts on the stand, with respect to the matters concerning which., they testify, be made available.” 103 Cong. Rec. 15932. Thus thé bill as it. left the Senate was clearly not confined to, automatic reproductions of oral statements/although its . further reach was not explicitly demarcated.
The House bill, as passed, allowed only the production of written statements signed by the witness or otherwise adopted ’ or approved. 103 Cong. Rec. 16125. The present language ¿merged from the Conference.
Senator O’Mahoney, sponsor of the original Senate bill and one of the Senate Conferees; in submitting the conference bill,'made it clear that (e) “would include a memo
“. . . what has been done with the so-called records provision is to tie it down, to those cases in which the agent actually purports to .make a substantially verbatim recital of an oral statement that the witness has made to him — not the agent’s own comments or a recording of his own ideas, but a substantially verbatim recital ,of an oral statement; which the witness has made to him, and as transcribed by him; is that correct?” Ibid.
Senator O’Mahoney replied, “Precisely.” Thus although the Senate history indicates that the bill was restricted to. a “substantially verbatim recital,” it is apparent that the Act was not designed to be restricted to mere mechanical transcription
The proceedings in the House are less clear. It is true that Representative Keating, one of the House Conferees, did say that only stenographic verbatim recitals need be produced. 103 Cong. Rec. 16739. But this was said in reply to Representative Celler’s statement that the conference measure was as liberal as the original Senate bill. Representative Geller was also a House Conferee. The. report of the:House Managers, signed by all the House Conferees, after pointing out that the term “statement” had been defined in the bill,'stated:
“It is believed that the provisions of the bill as agreed to by the conferees are in line with the standard enunciated by Judge George H. Moore of the. eastern district of Missouri in . . . U. S. v. Anderson . . . which is set forth at page 14552 [sic] of the daily Congressional Record of August 26, 1957.” H. R. Rep. No. 1271, 85th Cong., 1st Sess. 3.
“. . . only continuous, narrative statements made by the witness recorded verbatim, or nearly so, and does not include notes made'during the course of an investigation (or reports compiled therefrom) which contain the subjective impressions, opinions/ or conclusions of the person or persons making such notes.” 103 Cong. Rec. 15940.
This standard, explicitly incorporated into the House Report, has a dual significance. It not only goes beyond mechanical or stenographic statements, in defining the statements which must be made available to the defense, but indicates that once beyond that point a very restrictive standard is to be applied.
We reject the Government’s contention that, at trial, petitioner asserted only that the statute did not cover his. request for production, and failed to assert that, if the statute was applicable, the memorandum could be produced under its terms. We find that objection to the interpretation of the statute was adequately made.
103 Cong. Rec. 8327. The other House bills were H. R. 8225, 103 Cong. Rec. 9572; H. R. 8243, 103 Cong. Rec. 9746; H. R. 8335, 103 Cong. Rec. 10181; H. R. No. 8341, 103 Cong. Rec. 10181; H. R. 8388, 103 Cong. Rec. 10403; H. R. 8393, 103 Cong. Rec. 10403; H. R. 8414, 103 Cong. Rec. 10547; H. R. 8416, 103 Cong. Rec. 10547; H. R. 8423, 103 Cong. Rec. 10547; H. R. 8438, 103 Cong. Rec. 10589.
Many of the cases in .the lower federal courts after Jencks and prior to the enactment of. the statute are collected in the statement of the Attorney General contained in H. R. Rep. No. 700, 85th Cong., 1st Sess., and in S. Rep. No. 569, 85th Cong., 1st Sess. See also S. Rep. No. 981, 85th Cong.; 1st Sess.; 103 Cong. Rec. 15939-15941.
The statute provides:
“(a) In any criminal prosecution brought, by the United States, no statement or report in the possession of the United States which wás made by a Government witness or prospective Government witness (other than the defendant) to an agent of the ■ Government' shall be the subject of subpena, discovery, ór inspection until said witness has testified on direct examination in the trial of the case.
“(b) After á witness called by the Ui " ed States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United • States which relates to- the subject matter as to which the witness has testified. If the entire' contents of any such statement relate to- the subject matter of the testimony of the witness, the court shall Order it to be delivered directly to the defendant for his examination and use.
“(c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate*348 to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from- the defendant and the defendant objects to such withholding, and the trial is continued'to an adjudication •of the guilt of the defendant, the entire text of such statement shall be preserved by the United States and, in. the event the defendant appeals, shall be made available to the appellate court for the purpose of determining-the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this' section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine ■to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial..
“(d) If the United States elects not to comply with an order of the court under paragraph (b) or (c) hereof to deliver .to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.
“(e) The term ‘statement,’ as used in subsections (b), (c), and (d) of this section in relation to.any witness called by the United States, means—
“(1) a written statement made by said witness and signed or otherwise adopted .or approved by him; or
“(2) a stenographic, mechanical, electrical, or other 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.”
See, e. g., H. R. Rep. No. 700, 85th Cong., 1st Sess.; S. Rep. No. 569, 85th Cong., 1st Sess.; S. Rep. No. 981, 85th Cong., 1st Sess. The statements in the reports are frequent and clear. There are many like expressions on the floor of both chambers. For example, there was a lengthy debate in the Senate over an amendment which would have restricted the type of statement which could be produced beyond the limitations already incorporated in the Senate bill. The ■entire debate proceeded on the explicit assumption that only those
See legislative history summarized in Appendix A, post, p. 356:
See legislative history summarized in Appendix B, post, p. 358.
See, e. g., 103 Cong. Rec. 16739. See also many statements to the same effect in the House and Senate Reports.
See legislative material' cited and quoted in Appendix B, post, p. 358.
Of course the statute does not provide that inconsistency between the statement and the witness’ testimony is to be'a relevant consideration. Neither is it significant whether or not the statement is admissible as evidence.
The statute as interpreted does not reach any constitutional barrier. Congress has the power to prescribe rules of procedure for the federal courts, and has from the earliest days exercised that power. See 37 Harv. L. Rev., at 1086 and 1093-1094, for a collection of such' legislation. The power of this Court to prescribe rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress. See Funk v. United States, 290 U. S. 371,
The statement- consists of a brief agent’s summary, of approximately 600 words, of a conference lasting 3% hours. It was made up after the conference and consists of several brief statements of information given by Sanfilippo in response to questions of the agent. The typed agent’s memorandum is clearly not a' virtually verbatim narrative of' the conference but represents the agent’s selection of those items of information deemed appropriate for inclusion in the-memorandum. Thus by applying the governing standard set forth at pp. 352 and 353, supra, it is clear that the lower courts did not err in refusing to hand the statement over to the defense.
Concurring Opinion
I concur in the result but see no justification for the Court’s ranging far afield of the necessities of the‘case in an opinion essaying obiter a general interpretation of the so-called “Jencks Act,” 18 U. S. C. (Supp. V) § 3500. Many more concrete cases must be adjudicated in the District Courts before we shall be familiar with all the problems created by the statute.
We of this Court, removed as we are from the tournament of trials, must be careful to guard against promulgating general pronouncements which prevent the trial judges from exercising their traditional responsibility. The Court’s opinion well observes that the hope for a fair administration of the statute rests in the final analysis with its responsible application in the federal trial courts.
Congress had no thought to invade the traditional discretion of trial judges in evidentiary matters beyond ■cheeking extravagant interpretations of our decision in Jencks v. United States, 353 U. S. 657, which were said to have been made by some lower courts. Indeed Congress took particular pains to make it clear that the legislation “reaffirms” that decision’s holding that a defendant on trial in a criminal prosecution is entitled to relevant and competent reports and statements in possession of the Government touching the events and activities as to which a government witness has testified at the trial. S. Rep. No. 981, 85th Cong., 1st Sess., p. 3. And see H. R. Rep. No. 700, 85th Cong., 1st Sess., pp. 3, 4. I see. no necessity in the circumstances of this case which calls for a decision whether § 3500 is the sole vehicle whereby production of prior statements of government witnesses to government agents may be made to the defense. Certainly nothing in the statute or its legislative history , justifies our stripping the trial judge of all discretion to make nonqualifying reports available in proper cases. Take the case of a memorandum of a government' agent simply stating that a person interrogated for several hours as to his knowledge of the defendant’s alleged criminal transactions, denied any knowledge of
No express language of the statute, forbids the production, after a witness has testified, of any statement outside the coverage of the definition in subsection (e), and certainly the legislative history is no adequate support for reading an absolute prohibition into it. It is true that until the Conference Report the bill contained a provision making it in terms exclusive; but this language was deleted in Conference. I should think this change would support' an inference-negating any absolute exclusivity. To Be sure, the change was not explained in the hurried floor discussions which followed the agreement in Conference, in the hectic closing days of the session,
The summary in this case does not present the question whether the statute requires the production óf a statement which records part of, but no.t the entire interview between the witness and the government agent. This is a problem which also should be left to the development of the interpretive case law, and in fact I do not read the Court’s opinion as essaying a definitive answer. It is a problem I suppose which would be raised by a stenographic, electrical or mechanical transcript of only part of an interview. There is nothing in the legislative history of the statute to indicate that a stenographic transcript of a 10-minute segment of an hour’s interview would not be producible under the statute. If such a transcript would be producible, how distinguish a substantially faithful reproduction, made by the interviewer from his notes or from memory, of any part of the interview? Since, as the Court’s opinion concedes, statements made up from -interviewer’s notes
I repeat that Congress made crystal clear its purpose only to check extravagant interpretations of Jencks in the lower courts while reaffirming the basic holding that a defendant on trial should be entitled to statements helpful in the cross-examination of government witnesses who testify against him. Although it is plain that some restrictions on production have been introduced, it would do violence to the understanding on which Congress, working at high speed under the pressures of the end of a session, passed the statute, if we were to sanction applications of it exalting and exaggerating its restrictions, in disregard of the congressional aim of reaffirming the basic Jencks principle of assuring the defendant a fair opportunity to make his defense. Examination of the papers so sedulously kept from defendant in this case and companion cases does not indicate any governmental interest, outside of the prosecution’s interest in .conviction, that is served by nondisclosure, and one may wonder whether this is not usually so. There inheres in an overrigid interpretation and application of the statute the hazard
In response to a case-put similar to the one given here, government counsel suggested that the primary remedy of the defendant was to call the interviewer. ' Of course this would only be adequate if the defense had some reason to believe that an interview of such character had taken place and if the witness recalled the interviewer’s name. Pressed further as to cases of the nonavailability of the interviewer, government counsel made it clear that “I would certainly not want to carry the burden of saying that in some extraordinary situation where there was no other possible way of getting hold of it- [the summary] that there might not be exceptions read into the statute — what I am talking about now is the normal, ordinary case.”
See H. R. Rep. No. 700, 85th Cong., 1st Sess., p. 4; S. Rep. No. 981, 85th Cong., 1st Sess., p. 3; 103 Cong. Rec. 15928, 15933, 16489.
Copies of a statement analyzing the conference version were not ‘even available to_the Senate due to .the press of time. Sec 103 Cong. Rec. 16488-16489.
Of course if the memorandum had been one falling within the statute, I need hardly add that the judge would have had no discretion to refuse to order its production to the defense, in the light of. the statute’s affirmative command.
I might say in passing that the Court’s emphasis on interviewer’s notes as a basis of producible interview records seems wholly devoid of any real support in the text of the statute or in the legislative materials cited by the Court.
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