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UNITED STATES v. FISHEL

February 16, 1971

UNITED STATES of America
v.
Bernard FISHEL, Defendant


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

The defendant, Bernard Fishel, is charged with bribing and giving a gratuity to David Nadler, an Internal Revenue Service agent, who had been assigned to audit the tax returns of two corporations in which the defendant had an interest, and whose returns the defendant had signed. Apparently, Mr. Fishel and his accountant, Henry Sol, a recently-deceased co-defendant named in the within indictment, first met with Agent Nadler on May 24, 1968. It is undisputed that shortly thereafter Inspector Murphy of the Internal Revenue Service recorded three conversations of the defendant, Mr. Sol and Agent Nadler which took place on June 13, July 1 and July 22, 1968. In July of 1969, the defendant moved for discovery of these tape recordings. Although the Government consented to such discovery, it appears that when the defendant's attorney sought to inspect the three tapes, he was informed that the June 13 and July 1, 1968 tapes could not be located. Defendant now moves to dismiss the indictment or, in the alternative, for an order suppressing the tape recording of July 22, 1968.

 Movant contends that since the missing tapes would demonstrate that he was legally entrapped by Agent Nadler, the loss thereof seriously prejudices his right to a fair trial. The Government, on the other hand, denies that the defendant was entrapped and contends that he has not factually demonstrated any prejudice to his defense by the loss of the two tapes. Finally, the Government argues that Agent Nadler and Inspector Murphy will be available to testify at trial as to what actually occurred.

 In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215 (1963), the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material * * * to guilt * * * irrespective of the good faith or bad faith of the prosecution." This principle has been enunciated by several other appellate courts *fn1" which were able to review, after the trial, the information withheld from the defendant and the circumstance under which it had been withheld. This, of course, enabled the courts to assess whether the withheld information was favorable to the defense and, if so, whether it was likely that serious prejudice had resulted from the Government's conduct. Unfortunately, since the tape recordings at issue herein are missing, this Court can neither determine their contents nor the prejudice, if any, their loss has caused the defendant. Although the affidavit of Inspector Murphy, filed in opposition to this motion, denies that any entrapment occurred on June 13 and July 1, 1968, his recollection is based upon a report that he prepared on November 29, 1968, some five months after the conversations took place. Moreover, since the affidavit further states that no entries were made on the evidence log for the tapes between October 2, 1968 and November 6, 1969, it is fair to assume that the report was probably prepared from memory. Finally, with respect to Inspector Murphy's claim that no entrapment occurred, this is a conclusion with regard to a legal issue which the defendant has a right to have resolved by a court and jury, and not by the Government.

 Movant primarily relies on three cases in arguing that the indictment should be dismissed. However, I find this authority factually distinguishable from the issues before me and therefore not controlling. In United States v. Apex Distrib. Co., 270 F.2d 747 (9th Cir. 1959) and United States v. Nardolillo, 252 F.2d 755 (1st Cir. 1958), the Government refused to turn over to the defendants reports and statements of its witnesses, despite an order to do so by the court. Of course, in the present circumstances, the Government is unable to comply with the court's discovery order; it is not refusing to do so. Furthermore, these two appellate courts were able to determine what evidence had been witheld from the defendants and the prejudice that could have resulted therefrom. If the Government were wilfully withholding these tapes from Mr. Fishel, then, of course, a much stronger argument for dismissal of the indictment would exist.

 The third case relied upon by movant is United States v. Heath, 147 F. Supp. 877 (D. Hawaii 1957), appeal dismissed, 260 F.2d 623 (9th Cir. 1958), wherein a defendant who was charged with wilful evasion of income tax voluntarily gave the Government documents which allegedly would have disproved his wilful intent. The Government, however, lost the documents and thereby deprived the defendant of what was apparently his only defense. The court held that under such circumstances, there was no alternative but to dismiss the indictment, since the defendant could not receive a fair trial without the lost documents. A similar result was reached in Trimble v. New Mexico, 75 N.M. 183, 402 P. 2d 162 (1965), in which the police had searched the appellant's home after a homicide and had seized a copy of a letter and a tape recording, both of which were relevant to the defendant's claim that the killing had been done in self-defense. Since the police had lost the letter and had returned the tape in an inaudible condition, the court relied heavily on the statement above from Brady v. Maryland, supra, and the reasoning in United States v. Heath, supra, and dismissed the indictment. These cases are, of course, distinguishable from the present situation, since the Government has not lost or spoiled the defendant's evidence. In the instant case, however, if the jury were permitted to hear only the tape of the actual bribe, I think it likely that it would be so prejudiced that the defendant would be unable to have a fair trial on the entrapment issue.

 The Government cites two cases in which the court upheld the admission into evidence of less than the entire tape recording or transcript. United States v. Maxwell, 383 F.2d 437 (2d Cir. 1967); United States v. Knohl, 379 F.2d 427 (2d Cir. 1967). In Maxwell, supra, a contemporaneously prepared summary of an entire tape had been admitted into evidence in lieu of the lost tape. In Knohl, supra, a re-recording of a lost tape had been admitted into evidence. Although these appellate courts indicated that it had not been improper for the Government to delete inaudible, irrelevant and repetitive portions from tapes or transcripts, they did not state that the Government could pick and choose its evidence from among three tape recordings discoverable by the defendant and then offer only one of the tapes without providing an acceptable substitute for those that had been lost. Of course, the Government does not contend herein that the lost tapes contained only inaudible, irrelevant and repetitive material.

 In sum, while there does not appear to be any authority directly in point on the issue now before the Court, *fn2" the tenor of the cases cited by the defendant, as well as United States v. Brady, supra, and a number of other cases where the Government had negligently withheld evidence favorable to the defendant, *fn3" e.g., United States v. Consol. Laundries Corp., 291 F.2d 563 (2d Cir. 1961), suggest that in order to insure the defendant a fair trial, and in order to avoid the possibility of serious prejudice to him from the admission of only one of three tapes, it would be wiser to suppress the sole, remaining tape. The Government can hardly complain about the suppression of the one tape now in its possession, since while it had possession of all of the tapes, it had a duty to keep them in such a manner that they would be available for use upon trial by all parties. United States v. Consol. Laundries Corp., supra at 570. In addition, since the Government has argued that the defendant is not prejudiced by the loss of the two tapes because Agent Nadler and Inspector Murphy are both available to testify as to what actually transpired, no prejudice will result to the Government if the remaining tape is suppressed. In this manner, the credibility of the witnesses for both parties will be before the jury, which will be able to assess all of the evidence without having been prejudiced by hearing only the tape wherein a bribe allegedly was recorded.

 Accordingly, and for the foregoing reasons, the defendant's motion to dismiss the indictment is denied, and his motion to suppress the tape recording is granted, unless the defendant at trial either refers to or attempts to elicit from any witness the fact that such recordings were made by the Government and were subsequently lost, in which event the defendant may be found to have opened the door to the admission of the tape suppressed hereby.

 So ordered.

 PRE-INDICTMENT AND POSTINDICTMENT DELAY

 Defendant further moves pursuant to the Sixth Amendment to the United States Constitution and Fed. R. Crim. P. 48(b) for an order dismissing the within indictment, alleging that he has been deprived of his right to a speedy trial and that there has been unnecessary delay by the Government in bringing him to trial.

 The two-count indictment underlying the instant motion charges that on July 22, 1968 the defendant and his deceased co-defendant, Henry Sol, offered a bribe and gratuity to an Internal Revenue Agent in violation of Section 201, subsections (b)(2) and (f), respectively, of Title 18 of the United States Code.

 Although movant was arrested on July 22, 1968 -- the date the alleged bribe and gratuity were offered -- he was not indicted until approximately eleven months thereafter, on June 16, 1969. It should be noted, however, that between July 22, 1968 and June 16, 1969 (the dates of arrest and indictment, respectively) the defendant was never incarcerated, and was at all times represented by counsel of his own choosing. Further, and of equal significance, is the fact that after ...


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