The opinion of the court was delivered by: LASKER
Russell Bufalino, Michael Sparber, Herbert Jacobs and Joseph Lapadura are charged in a two count indictment with using extortionate means to collect extensions of credit from one Jack Napoli and conspiracy to do the same in violation of 18 U.S.C. § 894. They move to suppress all evidence, including Nagra tape recordings, transcripts thereof and testimony, with respect to three conversations between Napoli and one or more of the defendants on the ground that the F.B.I. agent in charge of the investigation intentionally destroyed a duplicate set of recordings of those same conversations made by the use of a Kel transmitting device. In addition, Sparber and Bufalino move for divers relief based on their suspicion of other improper government action in the conduct of the investigation.
A. The Destruction of the Kel Tapes
An evidentiary hearing was held in two parts on May 5 and May 9, 1977. The government presented the testimony of Stephen F. Edwards, the agent who destroyed the Kel tapes, and Paul Ginsberg, an expert in audio engineering. The defendants presented no witnesses. The facts, which are not disputed, are as follows.
On three occasions during the course of the investigation which resulted in the pending indictment, Edwards equipped Napoli, a government informant, with recording devices and taped conversations between Napoli and various individuals, including the defendants Bufalino, Sparber and Jacobs. These conversations took place, for the most part, in and near the Vesuvio Restaurant on West 48th Street in Manhattan. They form a vital part of the government's case.
On each occasion Napoli was outfitted with a Nagra tape recorder and a Kel transmitter, and the two units operated simultaneously. The Nagra device is a self-contained tape recording unit. The Kel transmitter, as its named implies, is only a transmitting device, through which Napoli's conversations were monitored by F.B.I. agents at several nearby locations. The agents at several nearby locations. The agents recorded the Kel transmissions as they were broadcast over radio receivers.
All three conversations were recorded on the Nagra machine. The F.B.I. agents made a single recording of the Kel transmission of the first conversation, which took place on April 12, 1976, on a Sony cassette located in a truck parked several hundred feet from the Vesuvio Restaurant. They made two recordings of the Kel transmission of the second and third conversations, on April 16th and 20th, one on the Sony cassette, which was in a surveillance car, and one on an SK 8 tape recorder located in the suitcase of a surveillance agent who was inside the restaurant.
Agent Edwards, who personally monitored all three conversations, listened to all of the tapes. (Tr. 75) He played each of the Nagra tapes as well as the single Kel recording of the 12th and the two Kel recordings of the 20th on the day they were made. He played the two Kel recordings of the conversation of the 16th several days after that date. With regard to each of the three conversations, Edwards listened at least once to all of the recordings at one sitting, one after the other.
He testified that for each conversation the Nagra recording was "far superior" to any of the Kels. (Tr. 79-80) The latter, he said, were "largely inaudible." (Tr. 79) This result conformed to his experience in previous situations where duplicate recordings had been made in that the Nagra recordings were consistently more audible than recordings of Kel transmissions.
Edwards testified that his principal purpose in using the Kel transmitter was to monitor the conversations and be able to step in to protect Napoli in the event of danger. He stated that the taping of the Kel transmissions was strictly a secondary, back-up procedure "to have something salvageable" in the event the Nagra device malfunctioned. (Tr. 104) Having compared the recordings and found the Nagras to be superior, Edwards concluded that there was "absolutely no use for [the Kel recordings]." (Tr. 80) He believed it to be standard F.B.I. procedure to destroy such tapes, and after consulting with brother agents who confirmed that this was the thing to do, he disposed of them. This was, as best Edwards could recall, about a week or so after they were made.
Although Edwards was in constant contact with the United States Attorney's Office, and in fact forwarded the Nagra tapes to the Assistant handling the investigation within a day or two of their making (Tr. 141), he never informed the office that the Kel transmissions had been taped or that the tapes had been destroyed. These facts first came to light when Edwards was asked by defense counsel whether the transmissions had been taped at a pretrial conference on November 18, 1976.
The government's expert, Ginsberg, testified that Nagra recording equipment is in all respects superior to the Kel device and that, assuming proper functioning, Nagra recordings are accordingly consistently more audible and reliable than those made on Kel machinery. It is, of course, not disputed, however, that there were at least some audible passages on the Kel recordings. Further, it cannot be said with certainty that there were no portions of the conversations audibly recorded through the use of the Kel machine which were inaudible on the Nagra tapes, although Edwards did testify that he recalls no such instances and believes none to have existed. See note 1, supra.
The defendants argue that Edwards' deliberate destruction of tape recordings which are clearly discoverable under Fed.R.Cr.P. 16 and fall within the Jencks Act, 18 U.S.C. § 3500, requires suppression of all remaining evidence regarding the three conversations. The government responds that such relief is unwarranted where, as here, the destroyed tapes were, at best, grossly inferior duplications of the Nagra material, all of which has been carefully preserved and made fully available to the defense, and the destruction, though intentional, was in good faith. In these circumstances, the government argues, the defense should be required ...