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United States v. Palermo


decided: August 18, 1958.



Before HINCKS, PICKETT and MOORE, Circuit Judges.

PICKETT, Circuit Judge.

The defendant, Anthony M. Palermo, a New York doctor, was convicted on each of three counts of an indictment charging him with wilfully attempting to evade and defeat his personal income taxes for the years 1950, 1951 and 1952, in violation of Section 145(b), Internal Revenue Code of 1939, 26 U.S.C.A. ยง 145 (b). During the course of the trial, a demand was made by the defendant for the production of a written memorandum prepared by Internal Revenue Agents sometime after a conference between them and a witness who subsequently testified for the Government at the trial.*fn1 The trial court denied the request on the ground that the memorandum was not of the character which was required to be produced under the provisions of Title 18 U.S.C.A. Section 3500.*fn2 The right of the defendant to inspect and use the memorandum is the single question presented by this appeal.

During the investigation of the defendant's income for the years in question, the Internal Revenue Agents took the sworn testimony of the accountant whose firm had prepared his tax returns. After the testimony was transcribed, the accountant again appeared before the agents to read and sign the transcript of his testimony. Some corrections were noted and an affidavit to effect the changes was made and executed. Shortly after the meeting was concluded, a memorandum of what had taken place at the meeting was prepared by the agents and placed in the Government files. It referred to the correction affidavit and stated that the witness gave further oral information in answer to questions. The additional information contained in the memorandum also concerned the preparation of defendant's tax returns and related to subject matters about which the accountant later testified. A copy of the sworn testimony and the supplemental affidavit, together with the witness' testimony before the grand jury, were delivered to defendant's attorneys.

We do not agree with defendant's contention that under the provisions of Section 3500 the memorandum should have been made available to him. The term "statement", as used in the Section, refers to "(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." It is quite apparent from the record that this memorandum was made from memory by one of the agents and was not intended to be a "substantially verbatim recital" of anything said by the witness. It was merely a summary of the agent's recollection of what had transpired at the meeting. The witness had not signed, adopted or approved it. It does not appear that the memorandum was a transcript of notes taken during the interview or that it purported to be a recorded verbatim recital, or nearly so, of what the witness had said. The declared purpose of the statute was "to provide for the production only of written statements previously made by a Government witness in the possession of the United States which are signed by him or otherwise adopted or approved by him, and any transcriptions or recordings of oral statements made by the witness to a Federal law officer, relating to the matter as to which the witness has testified." U.S.Code Congressional and Administrative News, 85th Congress, First Session, 1957, page 1862. This would include, we think, memoranda prepared by Government agents of oral statements made to such agents by Government witnesses, which are shown to be a substantially verbatim recital of oral statements contemporarily recorded by the agent.*fn3 The evident purpose of the statute is to limit the right of inspection for use in cross-examination to reasonably accurate or authenticated statements and reports, for which the witness, not the Government agent, is responsible. The document in question does not come within this category.

The defendant further contends that, even though production of the memorandum is not required by the provisions of Section 3500, he is, under the rule of Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103, entitled to have it produced for his use. In the Jencks case, Government witnesses who were in the employ of the United States made numerous written and oral reports to the F.B.I. concerning their activities with the Communist Party. The court held that the Government must produce for inspection all written reports of the witnesses and also the oral reports as recorded by the F.B.I., touching the events and activities to which they testified at the trial. There the Court was dealing with written and oral reports made to superiors, by former Communists who had been employed by the United States to do undercover work. It developed after the trial that much of the testimony given by one witness was recanted as deliberately false. The broad language used by the Court*fn4 was interpreted differently by lower courts and by attorneys.*fn5 The enactment of Section 3500 followed in the wake of this decision. Although the Committee reports indicate that the legislation was "not designed to nullify, or to curb, or to limit the decision of the Supreme Court insofar as due process was concerned," or to permit the prosecution to withhold competent and relevant statements and reports which might be of value to a defendant in the cross examination of a witness, its purpose was to provide a procedure and establish the rules and conditions under which trial courts shall direct the production of statements or reports of witnesses in the possession of the United States. Without considering whether there is a conflict between the Jencks decision and the requirements of Section 3500, we hold that the legislation is the exclusive standard in this field and controls the procedure to be followed in such cases.*fn6 Otherwise, the legislation is meaningless.Bergman v. United States, 6 Cir., 253 F.2d 933; Lohman v. United States, 6 Cir., 251 F.2d 951.


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