The opinion of the court was delivered by: CARTER
The Issue and Facts Involved
Defendants, Peter Feilbogen, Allan Shapiro, Stephen Lichtman and Benson Sheinkin, were tried on a two count indictment. All four were charged with conspiracy to manufacture and possess methaqualone, and Feilbogen and Shapiro were charged with aiding and abetting the manufacture and possession of the controlled substance as well. After trial which began on May 14, 1980, and concluded on June 13, 1980, the jury found Feilbogen and Shapiro guilty on the substantive count, and Feilbogen, Shapiro and Lichtman guilty on the conspiracy count. The jury could not agree as to Sheinkin, and a mistrial as to him was declared.
At the trial Alfred Cavuto, Special Agent of the Drug Enforcement Administration ("DEA"), testified that he had made rough notes contemporaneous to the surveillances he had undertaken of the various defendants but had destroyed these notes once he had completed a handwritten draft of his formal reports. He stated that he wrote out his reports in longhand on a DEA form # 6, relying on the surveillance notes and his memory. Included in his reports were the observations of other DEA agents conveyed to Cavuto orally as to what they had seen. When a longhand draft was completed, it was given to a secretary for typing, and on receipt of the typed report from the secretary, both the handwritten notes and the handwritten draft were destroyed. Russell Williams, another DEA Special Agent, testified that he had made no contemporaneous notes but had prepared handwritten drafts of his formal reports, had sent these drafts to the typist and on receipt of a typed copy of his handwritten draft, he had shredded the pertinent draft. In apparent reliance on the views expressed in United States v. Anzalone, 555 F.2d 317, 321 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S. Ct. 732, 54 L. Ed. 2d 760 (1978); United States v. Mase, 556 F.2d 671, 676 (2d Cir. 1977), cert. denied, 435 U.S. 916, 98 S. Ct. 1472, 55 L. Ed. 2d 508 (1978); United States v. Bufalino, 576 F.2d 446, 448-50 (2d Cir.), cert. denied, 439 U.S. 928, 99 S. Ct. 314, 58 L. Ed. 2d 321 (1978); and United States v. Paoli, 603 F.2d 1029, 1036-37 (2d Cir.), cert. denied, 444 U.S. 926, 100 S. Ct. 264, 62 L. Ed. 2d 182 (1979), defendants moved for dismissal of the indictment or, in the alternative, to strike the agents' testimony.
The motion was brought on in the middle of the trial, and the matter was set down for hearing after trial, if necessary. Since three of the defendants were found guilty, hearing on the motion was required, and the hearing took place on June 23-24, 1980. Although, as indicated, a mistrial had been declared as to Sheinkin, he joined in the application of the other defendants to dismiss the indictment for the alleged misconduct of the DEA agents and participated in the hearing.
At trial and at the subsequent hearing, the evidence disclosed that the only rough contemporaneous surveillance notes in question were those taken by Cavuto, and that Cavuto had filed reports of all the surveillances involved, including the observations of all the other special agents, except for the surveillance of December 12, 1979, the report of which was written by Special Agent Russell Williams.
In addition to surveillance notes, defendants contended that interview notes were destroyed. Cavuto interviewed Richard Pedis, a government witness, who had identified Lichtman from a photographic display as a person who had made several purchases of equipment from the New York Laboratory Supply Co. where Pedis worked. Cavuto testified that he saw Pedis on two occasions, that he took no rough notes at the time of the interviews and that during the first or second interview he wrote out a receipt for Pedis for the original invoices Pedis had turned over to the government. Pedis testified that when he was interviewed by Cavuto, he saw him writing something down on paper. In reference to all the reports, the drafts attributed to Williams were prepared a few days after the events in question, but Cavuto's drafts at times post-dated the events by several weeks.
The defendants have offered as providing the bases for their entitlement to sanctions exhibits A and 3500 RR, 3501 I, 3501 J, 3501 K, 3501 L, 3501 M, 3501 N, 3502 NN, 3502 OO, 3514 A and 3514 B, the final reports of Cavuto and Williams in which all previously recorded rough notes or handwritten drafts had been destroyed. Except for exhibits A and 3500 RR, the reports concern investigations undertaken in this proceeding about which Cavuto, Williams or other DEA special agents testified at trial. All the reports in question were completed and filed by mid-January, 1980.
The first two reports, 3500 RR and Ex. A, recite the arrest of Donald Ciota in September, 1979, and summarize statements made by Ciota to government personnel at that time. Ciota was the government informer in this case, and the principal witness in the government's case against Shapiro and Feilbogen. Ciota was neither on trial nor under indictment in this proceeding. Thus, these two reports were made in connection with a separate indictment and putative prosecution and were not a part of the investigatory effort involved in the case against these four defendants.
3501 I is a report of the November 19, 1979 surveillance of Shapiro, including the time of his morning arrival at Kem Chemical Co., where Ciota worked, his exit carrying a package and his arrival at his office in Greenvale, New York and further surveillance until approximately 11:00 P.M. when Shapiro's car was seen in his garage in Valley College, New York. The report also contains Ciota's report to Cavuto about a November 20 conversation with Shapiro. Ciota testified at the trial about Shapiro's coming to Kem Chemical on November 19, and the conversation with him on November 20.
3501 J is a report that Ciota advised Cavuto that on November 28, 1979, Shapiro had made various purchases of chemicals from Kem Chemical. The circumstances surrounding these purchases were related by Ciota from the witness stand at trial.
3501 K is Cavuto's report of a conversation Ciota had with Shaprio on December 7, 1979, about which Ciota testified at trial.
3501 L is a report of the December 28, 1979, and January 2, 1980 meetings of Allan Shapiro with Ciota. The report recites what Ciota reported to Cavuto concerning what Shapiro told Ciota on those two occasions. At the trial, Ciota testified concerning these conversations.
3501 M is Cavuto's report of the December 18 surveillance of Shapiro entering Kem Chemical, leaving with Ciota, both carrying boxes, arriving at the Chemical Bank, dropping Ciota off at Kem Chemical, and driving to his office. The report further details the surveillance of Shapiro in the afternoon, driving from his office to Sizzler Steak House, the arrival of Sheinkin and Lichtman in a BMW, the two cars driving to a parking area in front of Shangri La diner, the transfer of the boxes from Shapiro's to Lichtman's car, the arrival of Feilbogen and all four sitting in Lichtman's car conversing, the departure of the three cars, the continued surveillance of Lichtman and ...