Earl Warren: John Joseph Killian versus United States. Mr. Rothstein, you may proceed with your argument.
David B. Rothstein: Thank you, sir. Mr. Chief Justice, may it please the Court. This proceeding comes on to be heard upon the grant of a petition for certiorari to the Court of Appeals for the Seventh Circuit limited to two questions. The questions as we conceive of them are set forth in the petitioner's brief on page 2. Briefly, question number one is whether it is within the discretion of a trial judge to excuse production of documents of expenditures made by informer witnesses a foundation for such production having been laid in accordance with Title 18 Section 3500. And the Government having offered in lieu thereof a schedule of amounts received or paid to the witnesses and the dates of payments. Second question is whether jury instructions properly define membership and affiliation -- membership in an affiliation to the Communist Party because the two questions lend themselves, we think, very nicely to a division of argument. I propose to discuss the first question, my associate, Mr. Pollitt, will discuss the second question. The proceeding, if the Court please, was initiated by the filing of a two-count indictment in November 1955 in the District Court seating in Chicago, Illinois alleging a false swearing in violation of Title 18 Section 1001 by the filing of a false non-communist affidavit in the Chicago Office of the National Labor Relations Board on December 11, 1952. Count I alleges that the defendant was in fact a member of the Communist Party and Count II alleges that the defendant was in fact affiliated to that party. As the Government suggests in its brief, Section 9 (h) pursuant to which the affidavit was filed has been repealed and a substitute bill enacted it, I think having a similar purpose for which the maximum penalty at least in terms of imprisonment he violated his one year. The defendant in this proceeding has been convicted twice. Each time he was sentenced to serve a term of five years upon the membership count and three years upon the affiliation count of the sentences to run concurrently. The first conviction was reversed by the Court of Appeals upon the petition of the defendant for rehearing, specifically upon the authority of Jencks versus the United States without further comment by the Court of Appeals, Jencks having comedown while the appeal was pending. The second conviction was affirmed by the Court of Appeals. As we view the record, the case for the Government rested in a large part upon the testimony of witnesses, Sullivan and Ondrejka. Each was employed by the Government to join the Communist Party for the purpose of reporting their activities and the activities of those with whom they would become associated therein to the Federal Bureau of Investigation. For their service, each was paid with a monthly salary. In addition, Sullivan received a monthly expense allowance and some reimbursement. He signed receipts for the moneys received by him for the expense allowance salary and reimbursement. Ondrejka reported his expenses to an agent orally, who at the time, he made the reports, made written memoranda of the saying. By ruling of the trial court, the defendant at the trial was precluded from inquiring it to the contents of the receipts signed by Sullivan from ascertaining whether Ondrejka signed receipts when he was paid or the contents of the saying. Because Ondrejka was the only Government witness who testified concerning defendant's alleged connection with the Communist Party from April 1951 through August 1953 including the affidavit period, his testimony, we believe, was crucial to the Government -- case for the Government. At the trial, if the Court please, the defendant moved for production of witness statements. In addition, defendants specifically moved for its production of statements of expenditures made by Ondrejka the Government agents orally and noted by these agents at the time and receipts if any, given by the witness in payment thereof.
John M. Harlan II: Did he make that motion also with respect to Sullivan?
David B. Rothstein: No, sir. With respect to Sullivan, the only motion made was the production of statements. The Government failed to produce the receipts signed by Sullivan and with respect to Ondrejka, he'd offered only a schedule of payments made to Ondrejka showing only the dates of payment and the amounts received as we understood the Government offer there as we understand the record. In the face of the Government opposition, the trial judge did not order a production of the documents. With respect to Ondrejka, the Government never produced the receipts signed by Sullivan. It was on this date of the record that we came to this Court. Now, for a number of years as again as we read the record and I think has conceded by the Government in its brief, government attorneys had read the trial court and the Court of Appeals to believe that all of the requested documents existed was specifically the documents requested with respect to Ondrejka existed. There was no question about the fact that the receipts signed by Sullivan existed because they was -- they were in the record. And that the receipt signed by Ondrejka did not itemize the expenses reimbursed. The problem of their production has been decided in two courts upon these assumptions.
John M. Harlan II: Do you claim that nondisclosure or whatever you choose to call at that representation was made as a result of bad phase in the part of the Government or any (Inaudible)
David B. Rothstein: I do not mean to suggest that the representation insofar as it was made by the Assistant District Attorney assigned to the case, who is now by the way and incidentally a District Judge of the United States, was other than in good faith. Now, I confine my statement to the attorneys in the case. And I -- and again, I should add another reservation. I make no statement with respect to personnel other than the attorneys because I have no factual basis upon in which to base anything other than to say that the facts were not disclosed. Am I being clear, sir?
John M. Harlan II: When you say the attorney, you mean the assistant of the United States Attorney representing the Government?
David B. Rothstein: I -- I'm afraid --
John M. Harlan II: You say you made no statement other than with respect --
David B. Rothstein: No, no.
John M. Harlan II: -- to the attorneys?
David B. Rothstein: Let me try it again, sir. I -- I am not suggesting nor do I intend to suggest that the Assistant District Attorney assigned to the case and the Assistant Attorney General assigned to the case did not make the statements that they made to the Court in good faith. And I confine my statements to exactly those two gentlemen. The Government now concedes that the statement of expenditures written by the agents from Ondrejka's oral reports could be and that the receipts given by Sullivan and Ondrejka are statements within the meaning of Section 3500 of the Title 18, I believe. In addition however, in its brief file within the past two weeks, the Government also states for the first time that the statements no longer exist, that is to say the memorandum made by the agents who made them contempt -- contemporaneously with the time they took the oral statements from the witness Ondrejka. The Solicitor General tells us that he is told that the agents made handwritten personal notes of amounts reported to them by Ondrejka that the notes where destroyed immediately after the receipts were prepared in the normal of course of operations. Hence, contrary to representations previously made for the lower courts, we are know -- now told that it -- no, no, no. In contrary to the representations previously made to the lower courts, we are now also told that the receipts or at least some of them are itemized in the trial court, the Assistant District Attorney or then Assistant District Attorney said that he was under the impression that the receipts were not itemized. And I think --
Hugo L. Black: What did you say is the date of this last statement filed by the Solicitor General?
David B. Rothstein: Within the past two weeks, sir, when they filed their brief.
Hugo L. Black: Informer of the brief?
David B. Rothstein: Yes, sir. It's in the brief.
Felix Frankfurter: February 16th, excuse me.
David B. Rothstein: It's on Page 26 of the Government brief.
Hugo L. Black: (Inaudible) of the last brief.
Felix Frankfurter: Let me just say -- the last page --
David B. Rothstein: Page 26.
Felix Frankfurter: It is November 23?
David B. Rothstein: I beg your pardon, sir?
Felix Frankfurter: September 27, is that right?
David B. Rothstein: Well, it couldn't have been, sir.
Felix Frankfurter: September 27, 19 --
David B. Rothstein: A week ago, Wednesday was when the Government brief was filed.
Felix Frankfurter: (Inaudible)
David B. Rothstein: The gray copy.
Earl Warren: September 27, that was filed?
Felix Frankfurter: September 27.
Hugo L. Black: I have the one file, September 27. If that's the one you're seeking about.
Earl Warren: Page 26 is this.
Felix Frankfurter: Yes.
David B. Rothstein: Now, that's right. About two weeks ago.
Earl Warren: Yes, we get it.
David B. Rothstein: In consequence, we are now confronted with two new, we suggest and separate problems. One, the effect of the destruction of the statements. Two, the effect of the failure of the trial court to order production of the receipts in the light of the concessions and new disclosures by the Government. It purported aid of a solution to the problems presented as we can concede the problems. The Government now suggests the limited remand for the purpose of determining whether the trial court committed irreversible error by refusing to order the production of the receipts, an error for which the Government is in part responsible and to determine the fact as to the destruction of the statements. We disagree. And our disagreement is predicated upon the following reasons. We assume that the Solicitor General is now accurately stating the facts with respect to the destruction as told him by others. This suppression of evidence by destruction however, may not lightly be passed over by characterizing these notes as the Solicitor General does in his personal notes. We suggest that notes of an interview made by an investigating agent acting within the scope of his authority and in the performance of his duties are not personal notes, they are Government records.
John M. Harlan II: Does it appear in the record whether the destruction was before or after Jencks?
David B. Rothstein: According to the statement made in its -- in his brief by the Solicitor General, the notes were destroyed before Jencks and that is to say, immediately after the receipts were prepared and that would be necessarily before Jencks. However, may I suggest, sir, that that would not excuse to their destruction in our view because even before Jencks, it seems to us that a -- the Government was obliged to preserve those records for a reasonable period of time and I wouldn't pretend to be able to guess the reasonable period of time they accept to suggest that the minimum time would be the period of -- of the statute of limitations during which any person who is mentioned in those notes and who might possibly had convicted a -- might possibly charged with the commission of a crime might have been indicted. Because even before Jencks, as I understand the law, if -- on cross-examination upon the trial of such an indictment, a conflict could have be developed in the testimony of the witness where he would then be entitled to the production of those documents, as I understand, Gordon versus the United States. And I don't think that the investigating agency should unilaterally decide that these notes are no longer valuable or that they're valueless.
Potter Stewart: Now, with -- were these notes meet the definition of a statement under the statute, the so-called “Jencks statute”?
David B. Rothstein: I believe they would in accordance with the representations made in this brief, the brief we're talking about.
Potter Stewart: Well, is it -- is it indicated that they were signed or otherwise adopted by the witness?
David B. Rothstein: It is not indicated that they were signed or otherwise adopted and is --
Potter Stewart: Indicated that they were substantially verbatim report?
David B. Rothstein: Of the --
Potter Stewart: Verbatim transcription of what he said?
David B. Rothstein: I'm --
Potter Stewart: Are those the two tests, I -- I don't have the statute in front of me that those --
David B. Rothstein: That's --
Potter Stewart: -- and that's what I remember of it.
David B. Rothstein: The -- it is indicated in the Government brief that they are substantially verbatim and that the Government in its brief says that they were there after transcribed to typewritten receipts. Now, I don't know what precisely is meant by that -- by transcribed in the Government brief.
Potter Stewart: That would be an important and is an important question here, isn't it? Whether or not these so-called “personal notes” which a -- a characterization with which I understand you to disagree, whether or not these notes are statements under the terms of Section 3500 of the Criminal Code.
David B. Rothstein: Well, I believe they are. The Government concedes that they could be. And according the record made in the trial court, the witness said that he made oral reports which were written down by the agent as he made them. Now, that's as far as the record discloses the facts. Based on that, I -- I would suggest that they are. They don't have to be, as I understand the law, literal -- the literal verbiage of the agent but the substantial verb -- literal verbiage of the witness but the substantial verbiage of the witness.
Potter Stewart: Substantially verbatim, I think is what it constitutes.
David B. Rothstein: As I suggested, these are Government records not personal notes. And I don't think you can have this kind of transmutation of a Government record by simply characterizing them as Government -- as personal notes into something other than a Government record. For example, if the witness had deliberately overstated his expenses in his oral report to the agent, he might very well have been charged with making a false statement under the very same section for violation in which the defendant before the bar in this Court now stating his charge. He might then demand the production of those notes in his own behalf if he was so charged. I think that the defendant in this proceeding is similarly entitled to make a similar demand. Nor can we understand that the production of these notes ought to be excused because they were destroyed in the normal course of operations and that's the language in the Government brief on page 24. If they were destroyed as a matter of departmental policy, we believe, and not as a result of a mistake of an office clerk there that -- then the declaration of the rights of the defendant to inspect these documents is not less substantial but only highlighted. The Second Circuit has -- will -- recently held that when a suppression of evidence is caused by negligence as distinguished through a policy of conviction may not be upheld in a consolidated (Inaudible) case. The Government now asserts that even if the receipts are statements then it will argue in the trial court, if limited remand the order, that they were unrelated to the testimony of the witness since they could only be used by the witness for the purpose of testing the credibility of the witness upon an issue collateral to the guilt or innocence of the defendant. Assuming that I have stated this part of the Government argument correctly, there were at least several answers to this assertion in our judgement. First, every time a litigant places a witness upon the witness stand, we think that he places the whiteness's credibility as a witness in issue without more. Second place, may I suggest to the Court that credibility is very important. That in a little novel “Star Wormwood” Judge Curtis Bok, if I pronounced his name correctly, it disperse the story of a murder trial which took place in Pennsylvania with his own comments concerning the nature of a trial in which he said among other things in his comments that the lawyers stock and trade his credibility. But I think perhaps that's an exact statement of the fact, credibility is important. And defendants are entitled in criminal emphases to test that credibility to the -- through the use of statements as defined in 3500 because only the defense is adequately equipped to determine the use that maybe made of such statements. As we read cases, we find that reviewing courts are gen -- generally refused to speculate as to whether such documents could have been used effectively. Prosecutors it seems to us should do no less. Furthermore --
Hugo L. Black: Suppose you had known that the papers had been destroyed, would you had a right to offer that fact to the jury on your evidential principle as the destruction of evidence can be considered by them in determining the truth of what the witness were?
David B. Rothstein: Well, if Your Honor please, I think if I had known that those papers were destroyed, I think I would have gone a lot further than the trial court. I would've moved on the basis of their destruction in addition to other grounds that I did move to strike what's the testimony of the witness Ondrejka and of course its two and a half years ago and I try to think through an answer now. And I think now since -- that I might have stood right by that motion assuming it was overruled.
Hugo L. Black: Assuming it is your ruling, is in your judgement in the -- is an evidential rule which would have made the destruction of those papers, evidence to be offered by the jury which had the right to determine his guilt or his innocence, the destruction of papers, are they relevant?
David B. Rothstein: Well, without that by having briefs -- brief to subject sir and if you'll forgive an answer right off the top of my head, I think that could be shown in evidence.
Hugo L. Black: Is the Government asking here, that the matter be sent back to the jury?
David B. Rothstein: No.
Hugo L. Black: -- to determine whether or not demand guilty or innocent?
David B. Rothstein: The Government -- no, the Government has asked -- knows -- was asking that the matter be sent back to determine whether or not (a) the papers were in fact destroyed and (b) whether or not we were prejudiced by the failure to produce the receipts. And as I understand the Government's brief, that's all the Government's asking. But I think if I may suggest at this point, they ask too much.
Potter Stewart: It's not your position is it that -- that these statements could have been used as evidence?
David B. Rothstein: It is our position that's in this --
Potter Stewart: As evidence?
David B. Rothstein: As evid -- no -- no, pardon me, sir. It's our position that we're entitled to the production of these statements assuming they existed.
Potter Stewart: For your -- for your use is --
David B. Rothstein: For argument.
Potter Stewart: -- for the counsel that for cross-examination purposes?
David B. Rothstein: Yes, sir.
Potter Stewart: Never as evidence, isn't it right?
David B. Rothstein: I don't know. We might offer, it depends. I think we have a right to offer them if we desired to.
Potter Stewart: Is there anything in -- in the Jencks case or in the statute that suggest that?
David B. Rothstein: Not that I know of.
Potter Stewart: Or anything in the rule -- ordinary law of evidence that suggest that?
David B. Rothstein: I think there -- I think that the ordinary law of evidence, we may offer statements that --
Potter Stewart: You -- you have the witness on the stand and he's presumably of the prosecution or of witness in you're cross-examining?
David B. Rothstein: Certainly, so if the record's clear, we have to identify what were cross-examinee (Inaudible) so we offer the statement of defendant's Exhibit 1 for example for identification and then we proceed to cross-examine from the statement. I would suggest --
Potter Stewart: Using his prior inconsistent statement, assuming it is inconsistent, for the purposes of cross-examination.
David B. Rothstein: I would suggest again without any brief to the subject --
Potter Stewart: I have made (Voice Overlap) --
David B. Rothstein: -- particularly that it would be -- I could introduce those statements on trial because certainly a demonstrative piece of evidence is -- has a more compelling effect than oral testimony enhanced in personal injury cases, I'm told they're bringing all sorts per -- purview of the charge in maps and graphs and pictures and everything else.
Hugo L. Black: Was it your purpose in asking for the evidence, these statements merely to read it or to read it with the view if it justified it from submitting to the jury of trial statements that were not consistent of what had been said?
David B. Rothstein: The purpose in asking for the statements was so they would be available to our use to determine what use we might make of them.
Hugo L. Black: Now, the other point I have in mind is this. I had thought many times of the charges to the jury to dissipate that if you believe that the destruction of evidence was relevant you're entitled to consider that in connection with the fact of the case to determine the credibility of the witness or any other purpose for which it was admissible. When where you first informed that these papers had been destroyed?
David B. Rothstein: In the Government's brief, filed September 27th.
Hugo L. Black: 27.
David B. Rothstein: Just here two weeks ago, never heard of it before. Now, incidentally --
Felix Frankfurter: Could you -- could you, may I ask this?
David B. Rothstein: Yes, sir.
Felix Frankfurter: Am I to -- I'm right in inferring that there is no improprieties suggested by you regarding the lateness of the Government's coming forward with the suggestion that the -- regarding that the destruction are non-existing to destruction of the documents.
David B. Rothstein: All I attempted to suggest --
Felix Frankfurter: I just want to know whether you -- whether you make the point not of dilatoriness or lateness but that -- that there's something reprehensible in this late disclosure for what the Government concedes to be either the truth or the -- or circumstances indicating that the subject matter that are ought to be canvassed.
David B. Rothstein: Well, I don't know whether it's reprehensible or not sir but I think it certainly have been --
Felix Frankfurter: But I'm -- I'm not questioning that -- that you have a right to take a legal position because of that. But it may make a difference at least to me whether the lateness that the Government only now comes forward in itself to your mind has implications of -- of whatever it is, misconduct, I think Justice Harlan asked you about, misconduct or negligence or dilatoriness --
David B. Rothstein: I thought --
Felix Frankfurter: -- may not be irrelevant, I just want to know what you're position is.
David B. Rothstein: I thought that Mr. Justice Harlan referred to advertent misstatements and I -- no such thought. I think there was some negligence on the part of the Government because there's a lot of people working for the Government to come up with this late page.
Felix Frankfurter: Is the Government -- is the Government contravening the question that Justice Har -- Black put to you, namely if it had -- if -- that if there was destruction of documents usable for whatever purpose in a case whether for substantive uses as bearing on either proving or disproving some relevant issue or to discredit a witness, I don't care which, that the fact of destruction of the document in itself is a proper consideration for the jury as bearing upon the guilt or innocence of the defendant because it bears upon behavior of one party or the other with reference to the subject matter of the litigation.
David B. Rothstein: So far as I read the Government's brief, they have not commented upon that.
Hugo L. Black: They simply --
Felix Frankfurter: Have you raised that point? Have you raised the point regarding which in your briefs, I haven't looked that and I haven't looked the briefs of the either side. Have you raised the question that Justice Harlan or Justice Black interrogated you on, namely the -- the allowable inferences drawable by a jury because of the destruction of documents that are usable in a trial, I don't care for what purposes so long as relevantly usable.
David B. Rothstein: I believe not, sir. But that sir --
Hugo L. Black: Have you objected to -- insisted that you're entitled to a new trial rather than to sending it back to the jury or to the judge to pass on these questions?
David B. Rothstein: We have insisted that we're entitled to a new trial.
Hugo L. Black: You have objected that. And has the --
David B. Rothstein: Yes, sir.
Hugo L. Black: -- Government admitted that if evidence has been destroyed which is the contents of which you set out in its brief?
David B. Rothstein: As I read the Government's brief, the Government what -- what -- when?
Hugo L. Black: Does that show?
David B. Rothstein: No, no. No, pardon me sir, I think they (Voice Overlap)
Hugo L. Black: Have they -- had -- have they admitted as to what the contents of any of those papers were?
David B. Rothstein: No sir. I -- I realized that I was answering your question wrong. The Government has not admitted what the contents of the destroyed documents are. But the Government has set forth part of the content of two of the documents in existence that is to say, the Government set forth the content of -- of two receipts, a part of one and all of another at least in their brief. But the Government makes no statement as to what this -- what was contained in the destroyed memoranda.
Felix Frankfurter: So that -- is it fair to say that we haven't -- this Court has not before it either to the verbatim printing of the documents which have been destroyed evidently or a statement as to what they contain, can this Court, on the agreement between the parties of the concession of one other parties, tell the subject matter contained in the -- in the -- in the documents in controversy, have I made my question clear? Can we tell, like of either of the whole of statement or what is in the documents or concessions to what they -- is in them or what purpose they may have served the defendant?
David B. Rothstein: I think not, sir.
Felix Frankfurter: Now, the next question I want to know is there agreement is -- can we tell from this record the circumstances of the existence or non-existence of the documents called for?
David B. Rothstein: We can tell from this -- from the record itself?
Felix Frankfurter: Yes.
David B. Rothstein: Apart from the briefs?
Felix Frankfurter: Yes.
David B. Rothstein: From the record itself, you cannot tell except to -- except to say that the records exist. The record -- the record itself indicates that the writ -- that the documents do exist.
Felix Frankfurter: Well, let me -- let me -- I want to ask a final question but to make clear the basis of it. If I understood your answers to -- to a question as to -- of mine, we cannot, from this record, know what the subject matter or the contents of the subject matter of the documents that you've called for, is that right?
David B. Rothstein: Now we know that the documents reflect payments to the witnesses and that's all.
Felix Frankfurter: We don't know the circumstances under which the content of the document was derived, the question that Justice Stewart asked a little while ago.
David B. Rothstein: We don't --
Felix Frankfurter: We don't whether they do or do not fall within 3500 or rather we have no basis for judging that, have we?
David B. Rothstein: Well, I think we have to say that the receipts forward in 3500 based on the record made in the trial court.
Felix Frankfurter: Well that's an -- that's an answer that you -- that you say we can --
David B. Rothstein: Yes.
Felix Frankfurter: -- meet your claim that you ask for documents not produced by the Government and not accounted for by saying they do not exist, is that right?
David B. Rothstein: That is correct, sir.
Felix Frankfurter: Would you say have the relevance which we say come within Section 3500 and which you further say are relevant to your right and I should say almost duty to cross-examine the credibility of a witness?
David B. Rothstein: I do say so, sir, that we -- that fact can be determined from this record.
Speaker: Was that an objection (Inaudible)
David B. Rothstein: Yes, sir.
Speaker: (Inaudible)
David B. Rothstein: I think not as to their receipts, sir.
Felix Frankfurter: Yes but (Inaudible) about it but what if they come within 3500?
Hugo L. Black: On page 24, the Government says, in fact we have been informed by the F.B.I. agents involve no such written reports exist today and nor did they exist at the time of the trial. Agent, we are told, merely made handwriting personal notes of the amount spent by Ondrejka or expenses which they have transcribed to the receipts later signed by Ondrejka when he received reimbursement. Personal notes were destroyed immediately in the normal course of operation or the personal notes he is talking about there is a personal note that shows what this man had put down with reference to expenditures of witness, Ondrejka?
David B. Rothstein: That is as I understand the situation, sir.
Hugo L. Black: And is it your contention that those are relevant?
David B. Rothstein: Yes, sir and that they could not be personal notes.
Hugo L. Black: And now you're waiving here by you objecting to the -- sending this case back to the judge instead of the jury? Are you waiving your right -- any right to argue that this case, if it's sent back at all, it should be sent back to the jury on the basis of the destruction of relevant papers, would be high limit to you (Inaudible) are you waiving that?
David B. Rothstein: No, sir.
Felix Frankfurter: Now, can you --
David B. Rothstein: Or at least I didn't -- pardon me.
Felix Frankfurter: No, pardon me, go on.
David B. Rothstein: At least I didn't intend to.
Felix Frankfurter: Well, I didn't think you did.
David B. Rothstein: Yes sir.
Felix Frankfurter: Mr. Rothstein --
David B. Rothstein: Excuse me.
Felix Frankfurter: -- from what Justice Black read, on the basis of what he read, can you say -- why do you say they couldn't be personal notes?
David B. Rothstein: Well, I -- it's utterly inconceivable to me that an -- an agent --
Felix Frankfurter: I'm not denying it. I just want to know why you say that.
David B. Rothstein: That's simply on a basis, he demands -- acting within the scope of his authority when he take -- when he makes these notes and supposing --
Felix Frankfurter: But personal notes in the sense of Section 3500 doesn't mean that it has to -- that he's on a joyride.
David B. Rothstein: Well, I --
Felix Frankfurter: Personal notes in that sense mean the notes he took place purposes that are not to be attributed under Section 3500 to the witness.
David B. Rothstein: I -- I --
Felix Frankfurter: Those are very different things.
David B. Rothstein: I -- I think I understand what Your Honor is saying. But again I say --
Felix Frankfurter: I'm saying no more than Justice Stewart inquired of a little while ago.
David B. Rothstein: But I can only repeat what I said earlier. Supposing in the course of this interview, the witness had said, “I had spent $400 on some item for which I seek reimbursement” when in fact he had spent $40.
Felix Frankfurter: Well, I'm not -- I'm not saying that there isn't a basis for cross-examination.
David B. Rothstein: Yes, sir.
Felix Frankfurter: What I am trying to find out is, I'm in the dark, I'm trying to find out whether you say the record substantiate of a concession by the Government that we have here the non-production of documents which incontrovertibly fall within Section 3500.
David B. Rothstein: I -- I believe it does, sir.
Felix Frankfurter: Alright.
John M. Harlan II: Could I clarify my mind on one thing. We've got two classes of documents here. Number one, the reports which were destroyed, the Government says it were made by these informers or witnesses to the F.B.I. --
David B. Rothstein: The --
John M. Harlan II: -- is that right?
David B. Rothstein: -- the oral notes taken by the --
John M. Harlan II: The notes taken by the F.B.I. or the agent representing the witnesses' reports of expenditures.
David B. Rothstein: At one with it, sir.
John M. Harlan II: One with it.
David B. Rothstein: Yes, sir.
John M. Harlan II: Now, the second class of document is a matter of the receipts.
David B. Rothstein: Yes, sir.
John M. Harlan II: There is nothing to show at the present time whether or not the information that would have been in the reports was all included in the receipts which are still in existence, am I correct?
David B. Rothstein: There's nothing in the record as such.
John M. Harlan II: It might develop from a further showing that although the reports are destroyed, still the receipts that are in evidence contain the identical information as to the character of expenditure -- the date of expenditure that would have been found in the reports.
David B. Rothstein: I have to admit such possibility, sir. But of course, I'm in the dark also with respect to that.
John M. Harlan II: I'm just --
Hugo L. Black: Supposed they did, would that bar you from showing to the jury that they have destroyed these records --
David B. Rothstein: I think --
Hugo L. Black: -- that was relevant and for inferences could be drawn one way or the other by the jury of whether they had been lawfully destroyed?
David B. Rothstein: Again without having to brief the subject, I think not. Mr. Chief Justice, may I make one more suggestion and then sit down in favor of Mr. Pollitt. The -- finally, the procedures suggested by the Government in its brief are the limited remand with an analysis of a 700-page record to square off the denied statements with the 700-page record as -- plus some of the exhibits would place a -- would be a torturous procedure and would place a great -- greater burden upon the trial court than a new trial particularly if I may suggest that it may not be important and in fact it's maybe unimportant, since the trial judge who heard two of -- the trial, both trials is now sitting the Court of Appeals permanently and it would probably have to go to a new trial judge whose -- before whom the record was not made and who has not understand from the cold face of the record, some of the nuisances that go into any trial. May I -- would that, sir, retire?
Basil R. Pollitt: May it please the Court. The trial court's instructions to the jury which define membership and affiliation are set out on page 38 to 40 of our brief. Our first comment on these instructions is that they completely confused the two issues before the jury whether or not defendant had been a member of the Communist Party and whether or not defendant had been affiliated to the Communist Party. Because the trial court charged on page 40 of our brief briefly stated affiliation is charged in the second count of the indictment means a relationship which is equivalent or equal to that of membership in all but name. Now, the Government concedes that this is error. It concedes that affiliation and membership are not the same thing. So that as far as we can see this concession in and out of itself advice requires that there be a reversal.
Potter Stewart: Well now, isn't the Government's position and perhaps I'm mistaken about this that if there was error, it was an error favorable to the defendant.
Basil R. Pollitt: As far as the affiliation charge was concerned, that's correct, Your Honor. But the -- when the Government concedes that affiliation and membership are different and the trial judge charged the -- the same thing then I think they're conceding far more than they realize.
Potter Stewart: Well now the conviction was on both, was in -- on each --
Basil R. Pollitt: The conviction was on both.
Potter Stewart: --on each?
Basil R. Pollitt: Now, the jury was in the position and --
Potter Stewart: And concurrent sentences were imposed, were they not?
Basil R. Pollitt: No, five years for membership, three years for affiliation.
Potter Stewart: Consecutive? Consecutive sentences?
Basil R. Pollitt: Concurrent but --
Potter Stewart: I thought they were concurrent?
Basil R. Pollitt: (Inaudible) that point. I'm sorry.
Potter Stewart: No, they were concurrent were they not? Conviction on each account, concurrent sentences imposed, isn't that correct?
Basil R. Pollitt: Yes, sir.
Potter Stewart: And the Government does not certainly concede that there was any error in the charge as to membership, does it?
Basil R. Pollitt: They --
Potter Stewart: I know that you say --
Basil R. Pollitt: No.
Potter Stewart: -- there was.
Basil R. Pollitt: No.
Potter Stewart: But we're not talking about--
Basil R. Pollitt: They concede --
Potter Stewart: -- Government concede.
Basil R. Pollitt: -- that this portion of its instructions with error and I say --
Potter Stewart: The portion has two affiliations.
Basil R. Pollitt: That affiliation and membership were equivalence. It occurs in the apportion as to affiliation. But I say it doesn't matter where it occurred in that instruction.
Potter Stewart: But I'll be interested in hearing your argument.
Basil R. Pollitt: Because when the jury was instructed that membership was equal to affiliation or rather than affiliation was equal to membership, they are two sides but it's one equation. They were also instructed the reverse that membership was equal to affiliation. So in effect, the jury was given no fundamental basis for distinguishing between the two crimes and they could have convicted the defendant of affiliation on evidence and membership or they could have convicted the defendant membership on evidence of affiliation.
Felix Frankfurter: Now, let me ask you --
Basil R. Pollitt: Yes, sir.
Felix Frankfurter: -- I want to clarify this. Suppose there'd been merely an account, account for affiliation --
Basil R. Pollitt: Yes,sir.
Felix Frankfurter: -- would you have grounds to complain?
Basil R. Pollitt: Yes, I would, Your Honor, on the following basis that this trial involved, what is perhaps the most difficult issue in the criminal courts, to get a clear thinking, straight thinking jury which is the issues of communism. And when the -- although the Government concedes that the charge may have been erroneous, the Government contends that it was -- we were helped by it. Apparently -- and my summary is they say it was confused but not confusing. We think that in -- that under any event, a defendant is entitled to a jury that is not confused.
Felix Frankfurter: Is that's the very (Inaudible) what I get out of your statement is that the charge is -- is insupportable -- unsupportable because the jury did not get adequate guidance.
Basil R. Pollitt: Yes, Your Honor.
Felix Frankfurter: No matter what -- what the --- it's so cloudy and so confused that the jury wasn't properly guided that it should be, is that right?
Basil R. Pollitt: That's right, one minute --
Felix Frankfurter: Not on your theory of the equation, not under (Inaudible)
Basil R. Pollitt: No, no, but particularly, it's -- we regard that affiliation -- one minute the jury is sitting there.
Felix Frankfurter: Well, then the concession of the Government is immaterial, from your point of view, they claim that the Government --
Basil R. Pollitt: It simplifies my arg --
Felix Frankfurter: -- you got more than you were entitled to. You challenge that because you say what you are entitled to was a clear guiding charging and you didn't get that period.
Basil R. Pollitt: What we're entitled to is the law.
Felix Frankfurter: Alright. Whether it is more or less, it wasn't enough because it didn't guide.
Basil R. Pollitt: Right. Our next question in these instructions, if the trial court --
Felix Frankfurter: Would you mind -- would you mind stating -- calling attention to the specific language that you think is so cloudy that the jury even of conscience of intelligent jury wouldn't know what -- had to decide.
Basil R. Pollitt: Yes. On page 40 in the first paragraph of our -- of our -- of our brief, the trial court charged the jury that affiliation was short of membership. Then the trial court, and I must add Your Honor in defense, the trial court he had the -- this (Inaudible) suggesting of the Department of Justice.
Felix Frankfurter: Did what?
Basil R. Pollitt: That these instructions were suggested by the Department of Justice.
Felix Frankfurter: Well, I don't think that's a good defense.
Basil R. Pollitt: Then the -- two paragraphs about ten lines down, he charged them it was the equivalent of membership. So you have, in one breath he is telling them they're short of membership and the next breath, he's telling them the same thing of membership. Now, there's another point on this. Not only that this confuse the status of affiliation but the jury now is confused as to what is membership because the guide that they were given, the measuring stick turns out to be a telescope.
John M. Harlan II: That I don't understand.
Basil R. Pollitt: Well, Your Honor --
John M. Harlan II: Assume that the membership charge was alright and that the --
Basil R. Pollitt: I find that hard, Your Honor, but I'll --
John M. Harlan II: Well, assume it -- assuming you haven't invest yourself to that yet. But that the affiliation charge if it was stood alone as ambiguous, I don't understand how anything that said there could affect the membership charge.
Basil R. Pollitt: Well, Your Honor, fundamentally in a two-count indictment such as this, the jury has two statuses before them which are -- they will inevitably contrast and compare. That's why I referred to the affiliations charge as -- which incorporate, by the way the definition of membership, that's why I referred to the instruction on affiliation as a measuring stick. But the fact is that this measuring stick which the jury was bound to use was the telescope going in up and down like this, short of membership, close to membership, equivalent to membership. And back again because the jury doesn't forget everything they hear.
John M. Harlan II: Well, if the -- as to the first part of the charge of -- the affiliation is something -- is diluted membership, that doesn't affect that membership charge assuming that its effect, and if you take the second part of the charge which internally may be inconsistent, and assume that membership and that the affiliation is no different from membership, that doesn't confuse the membership charge, does it?
Basil R. Pollitt: Well yes, if they are told that affiliation -- that membership is diluted membership, I certainly it affect -- think it affects the membership charge, things equal to the same thing or equal to each other, Your Honor. I don't think that this was in a real sense of any kind of guidance to the jury at all.
Felix Frankfurter: Mr. Pollitt.
Basil R. Pollitt: Yes, Your Honor.
Felix Frankfurter: As far as I'm concerned, I'm very sympathetic to claims of unclear charges and that they fail in the most essential thing from my point of view is the jury and -- and the effectiveness in the jury trial, namely proper guidance from the trial judge because you've concerned yourself with this problem. Have you -- what -- what decisions are there of this Court in which we reverse convictions because the charges are too muddy and too cloudy into one guidance.
Basil R. Pollitt: But the one that comes to mind I believe is (Inaudible)
Felix Frankfurter: At least, I know that case. I happen to know that case. That is a very -- that was a very specific thing. In there, there was a charge -- well alright, I accept that. Any other that you know of? That was a -- that was a flagrant case where the jury had been out a long time and then they were called back and the final --
Basil R. Pollitt: Well, I believe --
Felix Frankfurter: -- impact of the court's charge was all muddy when he said, “No juries could understand what they were talking about”. Any others?
Basil R. Pollitt: I have none.
Felix Frankfurter: I think we've been very nitwit but merit in courts had been very relaxed in enforcing what I regard as a prerequisite of effective juries.
Basil R. Pollitt: Well, part of it is inevitable that it's hard to reaffirm error on an appellate record. It's very rarely that we have such a (Inaudible) and it --
Felix Frankfurter: No, but when the question is raised as you raise it now, the question as I understand that you're raising is, never mind how favorable it was, it wasn't favorable because it didn't give the jury proper guidance particularly in the field of prosecution where guidance is most essential.
Basil R. Pollitt: Well, Your Honor, I'll say on this that a -- a trial with an issue of communism differs. Ordinarily, defendant in criminal trial, his counsel, whether he is guilty or innocent, is hoping that he can appeal to the humanitarian instincts of the jury and the equity of the jury. And here however, where this issue is involved, we have to rely on clear thinking because if it gets muddled, all the prejudices of the community come pouring in. Turning briefly to the definition of membership, we have two principle of objection -- two principal objections to this. One is the indicia which the trial court gave the jury as to memberships. We maintain that these indicia which are taken from Section 5 of the Communist Control Act of 1954, that this indicia set forth in 38 -- page 38 and 39 our brief, open the door to guilt by association, the whole doctrine of parallelism, and a doctrine which I consider even more evil, the doctrine that because an act made in the opinion of the jurors have a tendency to advance communism. Therefore, the defendant is a communist. So, most particularly, You Honors, these comes from indicia number 11 whether or not the defendant has indicated any -- to any manner, there is a nice precise instruction to give the jury, and to any degree, a willingness to develop or advance the objectives, not the Communist Party, but the objectives of the Communist Party. In other words, if the Communist Party is for public school integration for whatever reason and the defendant is for public school integration and a jury man is against public school integration and thinks that the Communist advised to support our traditional American principles. Then by those facts, the jury man is permitted to derive that the defendant is a communist. Now, I say that this is a -- an invalid inference and the trial court had no right to permit the jury by the instructions to make such an inference.
Potter Stewart: Now, he didn't -- after all, I'm sure you'll agree that -- that item number 11 which appears on page 39 of your brief and which I gather counts in the statute, he made that that must be read in the context of his instructions. And he very clearly said that the very most that they might take that into consideration, isn't that correct?
Basil R. Pollitt: That's right, they said -- all he said one isolated act, isolated act.
Potter Stewart: If -- as if this -- you would agree that it's important to read the entire instructions I'm sure, would you not?
Basil R. Pollitt: Of course, I would.
Potter Stewart: And particularly the --
Basil R. Pollitt: Well, in paragraph --
Potter Stewart: -- it comes before this itemized list of 12 factors and the paragraph becomes afterwards.
Basil R. Pollitt: Yes, and I think the paragraph becomes before and the paragraph become -- after it, terrible. Because he told them that although isolated acts weren't conclusive, they could be used at some evidence. So then you have the whole question --
Felix Frankfurter: Is that an inconsistency? That's --
Basil R. Pollitt: It's -- it's a practical inconsistency --
Felix Frankfurter: If you tell the appellant --
Basil R. Pollitt: -- Your Honor when you're dealing with the jury.
Felix Frankfurter: You tell a jury it isn't conclusive but you may consider it. I suppose that's start -- that's a start factor of -- of almost any litigation. The way you got incompetent -- way of --
Basil R. Pollitt: Yes.
Felix Frankfurter: -- interfering of events or occurrences or so on that you -- that you may use it but it isn't the last word.
Basil R. Pollitt: Well, I -- you can say, you can examine all the evidence to which is the normal duty of a juror. I say by emphasizing to the jury that they could pick and choose some of these evidences as -- even if isolated, even if isolated as evidence of guilt that the judge -- particularly, in the circumstances of that instruction.
Felix Frankfurter: The deduction I draw from your statement, is it -- one has to read the whole charge?
Basil R. Pollitt: Yes, Your Honor, and what I haven't given you in my brief, I am sure that the Government --
Felix Frankfurter: Suppose we (Inaudible)
Basil R. Pollitt: -- has given to in theirs. One more point, and then I'll try to reserve some time, which is -- that the definition of membership in a Communist Party was couched, Your Honors, as a purely subjective relationship. It's described as a desire on the part of the individual that belong to the party. And a recognition by the party that he is a member with no requirements of any external acts of belonging. In other words, the jury was directed to inquire solely into a state of mind. And the Government concedes in its brief that this was a subjective definition. And they -- well, first of all, at the subjective definition, as showing the required -- element for mutuality which every membership has, its deficient because even if the person desired to be a member, then it was impossible for him to have achieved a state of mutuality until he was informed or knew that the Communist Party recognized him as a member.
Felix Frankfurter: What was there in the record which justified the court in making from charging that recognition by the parties that he was a member, was that just taken out of the blue?
Basil R. Pollitt: No, we submit it's this form -- it's a form of instruction which is submitted by the Government in a number of cases.
Felix Frankfurter: I'm -- I'm -- my question was this.
Basil R. Pollitt: I'm sorry.
Felix Frankfurter: My question was, what was there before the juries which justify the court in saying, "Recognition charge is ought to be abstract”, one of the great vices of American charges so that they are most of them just mumbo jumbo abstractions.
Basil R. Pollitt: There was --
Felix Frankfurter: Now, what was there in the record --
Basil R. Pollitt: There was some evidence in the record Your Honor of acts of membership at one time or another.
Felix Frankfurter: Well then that isn't objective and you got more than a mere --
Basil R. Pollitt: (Voice Overlap)
Felix Frankfurter: -- in appealing.
Basil R. Pollitt: As far as the evidence but the jury doesn't --
Felix Frankfurter: I know but a charge is directed to what the jury had heard the day before or the two days before, charges on the abstraction, their comments on what took place in the course of the trial.
Basil R. Pollitt: If you have a purely subjective definition and we have the same problem but we do with condition number 11. Again, you're not tying the thing down in time and space here, constructing the sort of can't be in the thing in itself, and the jury is left completely free to attach any factual objective circumstances to membership, which as I said before in the circumstances of today's world, it means you open the door to a verdict based on prejudice and hypothesis.
Earl Warren: Mr. Maroney.
Kevin T. Maroney: Mr. Chief Justice, and may it please the Court. I would like just to preliminarily take three or four minutes to outline how the general production of document problem was handled at the trial. Three witnesses testified on behalf of the Government concerning the petitioners' membership in the Communist Party. Two of those witnesses --
Felix Frankfurter: Would you, may I trouble you at the outset, would you be good enough to state the environment of the circumstances in which this question arose at the trial.
Kevin T. Maroney: Yes, sir.
Felix Frankfurter: Would you do that?
Kevin T. Maroney: Yes, sir.
Felix Frankfurter: (Inaudible) not have us started, at least, haven't started in its brief, what preceded this that was relevant to -- to understanding the full context of this?
Kevin T. Maroney: As the witnesses, Sullivan and Ondrejka, both concluded the direct examination, motions were made for production of all statements. In those motions, there were several --
Felix Frankfurter: Made by them.
Kevin T. Maroney: Made by the defense. There were several such motions.
Felix Frankfurter: A motion to produce all the documents of those two witnesses?
Kevin T. Maroney: All the statements.
Felix Frankfurter: In relation to the defendants?
Kevin T. Maroney: Yes, sir.
Felix Frankfurter: Alright.
Kevin T. Maroney: The motions were overly broad as I think the Court of Appeals points out in its opinion. They took the position that they were entitled to all statements made by the witnesses to the F.B.I. or to any Government agency during the period covered by the testimony of those particular witnesses. Moreover, they requested at the trial court to turn over all such statements to the defense on excised. The trial court rather than grant such a broad motion, order that the Government turnover to the defense all statements which have anything to do with their direct testimony and that was done. I think we can limit our discussion primarily to the witness Ondrejka because I think this -- will be apparent from my discussion that whatever disposition is made by the court as to the situation with respect to Ondrejka will also control the situation with respect to Sullivan.
Earl Warren: Are they same (Inaudible)
Kevin T. Maroney: They -- they have slight variances, Your Honor. For example, with respect to Sullivan, there was no motion specifically made for the production of his receipts whereas with respect to Ondrejka, there was a specific motion for production of the receipts. At the conclusion of Sullivan's direct testimony and during cross-examination on three different occasions, they moved generally for the production of all statements that he had made to the F.B.I. for the period covered by his testimony. The trial court however, ordered the Government to produce all statements which have anything to do with his direct testimony. Now, with res --
Earl Warren: Now, what -- what was the response to that? Did.
Kevin T. Maroney: --Now --
Earl Warren: -- they produce?
Kevin T. Maroney: Yes, sir. Now, with respect to Ondrejka --
Earl Warren: No, Sullivan, did they produce anything?
Kevin T. Maroney: The Government -- they did produce, yes, sir.
Earl Warren: Everything for Sullivan.
Kevin T. Maroney: Statements which related to the direct testimony. And with respect to Ondrejka at the conclusion of his direct examination and upon order of the court, the Government produced 24 statements -- reports that he had made to the F.B.I. concerning the activities about which he had testified on direct examination. Those statements, all 24 of them were submitted to the court, in camera, the court examined the statements and excised in -- in certain instances, I think with respect to most of the reports, certain items which were not related to the direct testimony. Now --
Potter Stewart: There's no quarrel at -- now, is there --
Kevin T. Maroney: No sir.
Potter Stewart: -- what was excised?
Kevin T. Maroney: This -- this Court -- no, sir, this Court denied the petition for certiorari in that respect.
Potter Stewart: -- (Voice Overlap) this issue was not before us?
Kevin T. Maroney: That's right, sir. Now for the first time then, this is -- the Government has complied with the order of the court to produce these statements. The court has excised and they've been turned over to the defense then cross-examination commenced. And for the first time, it was elicit from the witness Ondrejka, the fact that he had been paid while he was working in connection with the Federal Bureau of Investigation and while he was making reports to the Bureau concerning his Communist Party activities. He acknowledged readily that he received payment for services and that he received payment for certain of his expenses. He specified the amounts that he was paid. He also related on cross-examination the types of expenses for which he would be reimbursed such as the purchase of party literature, travel expenses in connection with attending certain Communist Party meetings that were out of town, contributions to Communist Party fund drives, that type of thing. He itemized those upon cross-examination. He also stated, in response to cross-examination, that he would report these expenses or certain of the expenses, the principal expenses to the agent of the F.B.I. orally. It was his recollection that the agent would jot them down on a pad, the expenses and that at a subsequent time, apparently a few days or week later, the agent would then pay him what the expenses had been and on occasion for where the -- the services had been. I think with respect to Ondrejka, he received generally for in the beginning, $25 a month plus expense money and later on I think he was getting $50 a month for his services. Now --
Potter Stewart: Count upon payment and the witness Ondrejka would sign a receipt, would he not?
Kevin T. Maroney: Well that is so, we -- we -- we know that. However, that question was asked on cross-examination, did you sign receipts in the trail courts?
Potter Stewart: And that was subjected to --
Kevin T. Maroney: He was subjected to and the trial court sustained the objection
Potter Stewart: So that fact is not a -- prior to the matter of records in that stage?
Kevin T. Maroney: That's right, sir. Now upon the witness giving that information, the defense asked the trial court. They made another general motion for production of additional statements that concerned the subject matter of the cross-examination of the witness, some additional matters that had been brought out on cross-examination. This is in the record in the tran -- transcript of the 546 and 547. And as part of this general motion which again asked for more narrative statements a move for an order to produce the report of expenditures by this witness for which he received reimbursement and the receipts which this defendant states he signed to evidence payments of those expenditures. Defendant request that these reports be delivered to counsel for the defendant on excised for further use in further cross-examination at the election of the defendant. The Government objected to the -- to the motion.
Felix Frankfurter: Would you mind reading that again, what the counsel urge?
Kevin T. Maroney: If I -- actually, Your Honor the motion runs --
Felix Frankfurter: You mean -- you mean the (Inaudible)
Kevin T. Maroney: -- for almost three pages.
Felix Frankfurter: I know not the full text but what you regarded as the crucial demands? You see we haven't got printed record of these statements.
Kevin T. Maroney: Yes, sir. "The -- the defendant now", this begins on 546 and it -- and it goes over to 548 and I'll be skipping as I go a little bit, "The defendant now moves for an order upon the Government to produce for the inspection of the defendant, all statements in the form as we have previously defined it, whether they be handwritten or typewritten --
Felix Frankfurter: Previously defined, does that the one that were deemed too broad?
Kevin T. Maroney: Well I think, what they're referring to there is all statements whether mechanically recorded or --
Felix Frankfurter: Yes, as previously defined, it made in this motion or in a prior motion?
Kevin T. Maroney: Prior motions.
Felix Frankfurter: Which was granted?
Kevin T. Maroney: Yes, sir.
Felix Frankfurter: Alright.
Kevin T. Maroney: Granted in part?
Felix Frankfurter: Yes, (Inaudible)
Kevin T. Maroney: “Whether written or typewritten or results of interviews with the agents of the Federal Bureau relating to the testimony of this witness upon cross-examination insofar as he testified that he reported to the Federal Bureau concerning the activity, he says his wife engaged in and other people.” That was elicited on cross-examination. Now then defendant moves further for an order upon the Government to produce for the inspection of the defendant for using further cross-examinations. The report of expenditures by this witness for which he received reimbursement and the receipts which this defendant states he signed to evidence payments of these expenditures. I think that's inaccurate that he stated he signed. It is a fact, but of course he was subjected to and the --
Hugo L. Black: It is a fact brought.
Kevin T. Maroney: -- concluding part of this -- pardon me Your Honor?
Hugo L. Black: I did not attempt to say that it is in fact simple.
Kevin T. Maroney: Well --
Hugo L. Black: I didn't quite understand what you're --
Kevin T. Maroney: In -- in his motion, he's -- he refers to the fact that he signed statements of some kind to evidence payments. My observation was, and I think that was an error because it did not so state the court having objected or the court having sustained an objection to the question, "Did you sign receipts?" On -- on the other hand, I state that it is the fact. He did sign receipts. Then the motion concluded --
Hugo L. Black: Are they the ones that are lost or destroyed?
Kevin T. Maroney: Oh, no, sir. No, sir.
Hugo L. Black: You haven't come to that yet?
Kevin T. Maroney: No, sir, not yet. Defendant request that these reports be delivered to counsel for the defendant on excised and for further use to cross-examination. The Government objected to the motion on the basis that -- that receipts were administrative records of the Government that they weren't statements within the meaning of the Jencks statute since they had no content. They didn't speak. I think the idea was as that they were narrative statements of the witness. That they didn't, that they were remote, they didn't relate to his direct testimony. However, the Government offered to produced to the defense a schedule of payments, schedule which had been prepared by the Federal Bureau of Investigation which itemized month by month the amounts paid and whether for services for expenses. The defense counsel upon that proper by the Governor inquired, and this is on 551 in the transcript, with the schedule contained, if I may ask, the items for which reimbursement was made. And the Assistant United States Attorney replied, "I do not believe that they do and it is my impression that neither do the receipts. I know that the schedule contains the dates of payments and the amounts from the beginning to the end”.
Earl Warren: Did the schedule, Mr. Maroney, break down the expenses as to date and so forth or did it just say so much -- so much for salary and so much for expenses?
Kevin T. Maroney: It was in that form Your Honor and I think it's broken down month by month.
Earl Warren: Yes.
Kevin T. Maroney: In other words, April 1951 --
Earl Warren: Yes.
Kevin T. Maroney: -- $25 salary under the salary column or --
Earl Warren: Yes.
Kevin T. Maroney: Yes, salary and maybe $15 under the expenses.
Earl Warren: But they didn't say so many dollars expenses for -- for the day he was visiting with --
Kevin T. Maroney: No,sir.
Earl Warren: X or Y or anything that kind.
Kevin T. Maroney: No, sir.
Felix Frankfurter: Would you mind telling cutting through all the ticket of words? What it is regarding the disbursements made by the Government to an informing witness? What it is that the -- that the defendants asked and that the Government was ready to give and what he receives for duty?
Kevin T. Maroney: The Government was ready to give a -- a compilation that had been prepared which stated how much money had been paid month by month to each of these witnesses.
Felix Frankfurter: Total of, as the Chief Justice just brought out.
Kevin T. Maroney: Yes, sir.
Felix Frankfurter: Not -- not itemized?
Kevin T. Maroney: Not itemized and indicating whether or not the particular payment was for services or for expenses. Now, the expense listing did not say that $5 of the $15 was for attendings of the C.P. convention or what -- whatever.
Felix Frankfurter: They were bulk item, bulk (Inaudible)
Kevin T. Maroney: A bulk items. Yes, sir.
Felix Frankfurter: Now, what is it the defendants wanted?
Kevin T. Maroney: Now, the defendants wanted any reports that the witness had made concerning his expenditures and the receipts signed by the witnesses for moneys received from the F.B.I. for services and for expenses. Now, the Government --
Felix Frankfurter: Was there any controversy or any overt controversy between the Government and the defendant that the disclosures that the Government was ready to make as to the moneys it paid at the informers, both for salary and for expenses differed from that for which receipts were obtained?
Kevin T. Maroney: No, sir. There was no -- no suggestion that there was a difference.
Felix Frankfurter: But it was suggested by the defendant, did they call into question the -- the truthfulness, of the completeness of the Government readiness, the figures that the Government are ready to give or did give?
Kevin T. Maroney: No, sir, there was no suggestion that --
Felix Frankfurter: Then what is the controversy about just whether they were in fact receipts --
Kevin T. Maroney: And -- and as to --
Felix Frankfurter: -- is deposited with the F.B.I. or some other agency for the moneys which in a month the Government disclosed, is that right?
Kevin T. Maroney: That's right. And -- and the defense reasoning for refusing to reject the preferred schedule was that it didn't itemize the particularized expenses.
Earl Warren: I suppose though --
Hugo L. Black: May I ask you --
Earl Warren: I suppose though if the -- if the witness had said to the F.B.I. agent, "Now, I -- I expended $25 on one day because I was -- I was attending this convention and $20 the next day because I was in some other place”. And there was something in the testim -- in his testimony that conflicted with the -- with that.It would be very important to the defendant to know that, wouldn't it?
Kevin T. Maroney: It -- it might in the circumstances of --
Earl Warren: It might. Well it would.
Kevin T. Maroney: -- particular case. Yes, sir.
Earl Warren: It would, wouldn't it?
Kevin T. Maroney: I think in your hypothetical situation or a -- a case that it would.
Earl Warren: Well, if you just got the -- if you just got the -- the totals of the items that he gave to the agent, he wouldn't be getting very much, would he?
Kevin T. Maroney: Well, not -- not if there were documents which in fact were statements or our statements and which would do what Your Honor supposes in -- in the hypothetical would be accomplished. In other words --
Felix Frankfurter: Did the Government -- did the Government deny such hypothesis that the Chief Justice put to you?Did the Government say that the receipts are just as much in the large total as the figures he had given to you?
Kevin T. Maroney: That -- that's right, Your Honor. The --
Felix Frankfurter: What was it?
Kevin T. Maroney: -- the Government --
Felix Frankfurter: I -- you can't say it's right because I'm asking a question.
Kevin T. Maroney: Well -- well, the Government stated in reply to a question from defense counsel that the schedule is not itemized and neither do the receipts. And now --
William J. Brennan, Jr.: And that is not the fact (Inaudible)
Kevin T. Maroney: And -- and that we now find, unfortunately, is not the fact. And it is for that reason primarily. And -- and the reason that with the record in that state, the trial court denied the motion, I don't know that he did it because of that fact. And the Court of Appeals sustained or affirmed the conviction believing that could be the fact. Now, we now know in preparing our brief on the merits here that 9, 9 of the 123 receipts that are in existence and that are involved here do itemize in a cryptic form and we have tried to give the Court, now in page 26, I think, of the brief, an example of the nature of those nine receipts. Now, all the nine -- all those nine receipts are Ondrejka receipts. There are a total, I think, of 61 receipts that Ondrejka signed, most are in a standard receipt form. It says, "Received from special agent”, so and so “$25 for services during the month of April, signed, Michael J. Ondrejka”.
William J. Brennan, Jr.: Well, I gather the Government however, do I correctly understand that now concedes that for the purposes of production of the statute, this form of receipt is a statement.
Kevin T. Maroney: We concede that it is a statement Your Honor. We do not concede that these --
William J. Brennan, Jr.: That is irrelevant.
Kevin T. Maroney: -- particular statements --
William J. Brennan, Jr.: Yes.
Kevin T. Maroney: -- sufficiently relate to --
William J. Brennan, Jr.: That's right.
Kevin T. Maroney: -- the direct testimony -- that's right.
William J. Brennan, Jr.: That's what I understood it. And the reason you suggest sending it back for a hearing before the District Judge, if I understand it correctly, is that you want the opportunity to show that while these are statements within the statute, they are not related to the subject matter of the witnesses' testimony and for that reason and not for this.
Kevin T. Maroney: That's right, sir.
Potter Stewart: And that this --
Kevin T. Maroney: Plus (Voice Overlap)--
Potter Stewart: -- that even if related, it was not prejudicial error to exclude.
Kevin T. Maroney: And if -- if related in -- it's possible that in two or three particulars, as we pointed out here for example, a reference to an L.Y.L. meeting, might be said in a re -- remote sense to have been related to his testimony concerning an L.Y.L. meeting that if the Court were to decide that it did relate in that narrow or -- or very broad sense, our argument is that there was no prejudice thereby to the defendant because of the fact primarily that he had the narrative reports that the witness made to the F.B.I. concerning the activities about which he testified on cross-examination.
Potter Stewart: But these are arguments that you want to make to the District Court as I understand it, which court, we -- well unlike us, have the -- all these statements before us.
Kevin T. Maroney: That's correct. We don't --
Felix Frankfurter: Do you think --
Kevin T. Maroney: -- we don't make those arguments here Your Honor to -- in an effort to ask the Court to affirm here. We think that the state of the record is such, that it can only be fully developed and we think that in the peculiar circumstances of this particular case, it would be appropriate for this Court to remand to permit full develop of the record with respect to the situation in this particular --
Felix Frankfurter: You said a minute ago, Mr. Maroney, that the -- the trial court denied the motion for the production of these receipts, you don't know for what reason. Now, I suppose the reason you -- the reason you asked this Court to send it now back is because that certainly because its an easy assumption that he might have ruled otherwise had he known that 9 out of 123, but you said 9 out of -- and I don't question the figures before us, that 9 out of 123 receipts did particularize. And it's the most plausible assume that -- not assumption but most plausible consideration that he might say, “Well, I know bibliophiles who collected a manuscript, as a rule where there are some manuscripts get some more”. And so, if there are nine and these were overlooked in the first call, well how do you know of more careful pseudonym might deduce small or what you call cryptic disclosures might -- this defendant counsel might find cryptic -- some cryptic signs on their receipts, they're not suggesting that. Now in relation to that since we're dealing here with a -- with a trial in the federal court with all the so-called "supervisory authority" we are at to meet the irrelevant to inquire. How do you -- how does it come about that such an error was made? Is it that -- well, you have, in view with a lot of documents that out of the district. Would the District Attorney phone down and probably or write to the F.B.I. and slipped the General's office (Inaudible) the criminal division whatever it is and search would be made here and they would then be advised, can U.S. attorney would have a right to rely on that? Could you shed some light on that?
Kevin T. Maroney: Well, I think --
Felix Frankfurter: How do these things happen apart from the facts of human (Inaudible) explains a lot in this world?
Kevin T. Maroney: It is -- it is normal practice in -- in this type of case where there are informants testifying that the F.B.I. will prepare in advance a trial, one of these schedules of payments. And in addition, the -- the Bureau will ordinarily also prepare photostatic copies or at least one photostatic copy of the original receipts. Usually, they will be maintained more or less in -- in readiness just in case they should be called for because I think that it's clear to all of us that these are fairly peripheral types of statements. In other words -- of course, the narrative statements, the reports that the witness has made concerning his -- his activities in the party and about which is going to be called upon to testify, those are prepared by the trial attorneys in advance and they -- they confer with the F.B.I. on what should be exci -- what the Government should ask for excisions on and the concentration is on the narrative statements. However, I understand that here as in the usual case, the F.B.I. had prepared these photostatic copies. And that they were in the F.B. --
Felix Frankfurter: Of the receipts -- of the receipts?
Kevin T. Maroney: Of the receipts -- of the receipts. And that they were in the F.B.I. field office. I understand they were not in court. They didn't have in court, the -- the Government attorneys. And when this arose and the Assistant United States Attorney made this representation, he was doing it on the basis of information that he had received, I suppose, in conversations with other attorneys perhaps and maybe some F.B.I. agents working on the case. Now --
Felix Frankfurter: Well then that could be at some point by somebody, reference to the documents deposited in Washington, isn't that right? I don't mean to say that that's the --
Kevin T. Maroney: Well, I think these are usually kept in the field office.
Felix Frankfurter: Oh, they're kept in the field office, right.
Speaker: But I don't --
Felix Frankfurter: But many are somewhere these are deposited and U.S. attorneys and his assistants must've conferred with the responsible person in charge of these documents, isn't that right? Well, if not elucidating.
Kevin T. Maroney: Well, I think they probably asked the F.B.I. maybe even in memorandum form --
Felix Frankfurter: That's right (Inaudible)
Kevin T. Maroney: -- to procure or make photostatic copies in case we need them. Now, in this particular instance, I understand from --
Felix Frankfurter: From finish to this Mr. Maroney, he would ask a field office to prepare these and fit you as you said a minute ago, the attorneys would regard this as peripheral, he wouldn't actually say, "Let me see all these receipts, may it be deposited in the field office," and he probably would have some verbal or telephonic exchange with the field office and say what of -- what do these receipts show --
Kevin T. Maroney: That's right.
Felix Frankfurter: -- is that right?
Kevin T. Maroney: That's right.
Felix Frankfurter: That's the way the thing would happen and the field officer would tell him, "They just show the amounts”. And he may have gone through -- I'm speculating now --
Kevin T. Maroney: That could happen, Your Honor.
Felix Frankfurter: And he may have gone through 20 and 30 and saw nothing but the totals and therefore assume the other hundred had the same total, is that right?
Kevin T. Maroney: That's right, sir. I -- I think that -- if --
Speaker: Well, this is an (Inaudible)
Kevin T. Maroney: -- of course if you weren't careful here, --
Felix Frankfurter: What --
Kevin T. Maroney: -- it would be easy --
Felix Frankfurter: What?
Kevin T. Maroney: -- to -- to come to the conclusion that these are straight receipts all the way through.
William J. Brennan, Jr.: Well, this isn't as simple as that Mr. -- just -- just (Inaudible) that receipts of the kind that you illustrate in that but might be have a very important bearing on the whereabouts of the Government witness on a particular day when he says it was on a certain place that's following about a certain thing. And it is difficult for me to understand why even if that was the procedure which kept the originals from the -- whoever tried the case, was it why something wasn't done about it? Why it was before the Court of Appeals? Certainly, you -- you had to know this issue was going to be before the Court of Appeals.
Kevin T. Maroney: Well, Your Honor, in -- in the Court of Appeals, the Government's brief was prepared I think partly here in Washington, partly in Chicago and the attorneys who worked on the brief relied strictly on the record as we did in the brief in opposition in this Court. And it was only when the Court grant a certiorari limited to these questions. I -- I think we, in our brief in opposition, we hardly mentioned receipts. Well, I think our argument, first of our argument on the production concerned, the narrative reports of the witness and -- and the questions that were raised thereon, the excisions and so forth. And it was -- in preparing the brief on the merits, that the attorney preparing the original draft, prepared a memorandum requesting from the F.B.I. copies of the receipts that are involved -- were involved in the case. And it's -- it was then and going through the receipts, it was found out that some of the receipts do itemize. I -- I might say that from my own experience, I think that it is a fairly unusual thing that receipts of informants do itemize in -- in this respect. Now, I -- I think this is one thing that possibly the trial court might inquire into and might take into consideration with respect to the obligation that the Government had at the trial here. He might inquire as to the general practice as to the prevailing situation and possibly taking into consideration the -- the diligence of the Government.
John M. Harlan II: Well, the (Inaudible) of the issue between you and your adversaries on this Jencks find is simply this, isn't it? But you say it ought to go back so that the Court -- whatever the District Court does, it comes back to this Court ultimately and the district attorney doesn't grant a new trial that we can then decide the case knowing what the facts are.
Kevin T. Maroney: That's right, sir.
John M. Harlan II: And your adversaries saying now, that kind of a -- investigation is not necessarily ought to reverse (Inaudible) of the trial now. That's the whole issue between you, isn't it on this?
Kevin T. Maroney: On this point, I think that essentially is the issue, Your Honor.
Earl Warren: Mr. Maroney, may I ask this. According to your latest brief, do I understand that the position of the Government is that it is normal practice for an informer of this kind to state to an agent of the F.B.I. what his expenses are, itemized -- itemizing them for him and then the -- the agent turns that amount in and immediately destroys the -- the record which would show what the informer told him were his expenses. Do I understand that's the normal practice?
Kevin T. Maroney: Where he is called upon to itemize to the agent or where he does is a practice itemized to the agent. It may be that the same procedure that was followed here is followed. But, for example, take Sullivan's receipts, he testified that his arrangement with the F.B.I. was that he received a certain amount of money. I think -- let's say $75 and the understanding with him was that $10 of that amount would be deemed to cover his expenses so that all of Sullivan's receipts or everyone of them just says received of special agents so and so $75 for services.
Earl Warren: Well, that's -- that's the same as any -- any officer when he gets a -- when he gets a voucher when he's paid for either his salary or his expenses, it comes in a bulk amount. It isn't -- it isn't itemized but I don't know of any -- any expenditure by any employee or the officer of the Government that doesn't require some itemization to be -- that's retained by the Government as evidence of the fact that -- that he actually made those expenditures. And I just want to know now if maybe their -- the way they deal with undercover agents but I'm just asking you if it is the practice to -- for the agents to -- to ask them what their expenses are and -- and for what purpose and then when he gets the information, destroys records immediately so there'd be no records available in the Government of that fact.
Kevin T. Maroney: Your Honor, I -- I think that this type of thing --
Earl Warren: The only reason I asked you that is because you say according to the regular factors, it was done here.
Kevin T. Maroney: Well, according to the regular practice?
Earl Warren: I so -- I so understood the -- your brief.
Kevin T. Maroney: I -- I said that according to my experience, it would be more unusual to have itemized receipts. As a matter of fact, I think it's --
Earl Warren: No, I'm not -- I'm not talking about --
Kevin T. Maroney: -- quite unusual to have itemized receipts.
Earl Warren: -- I'm not talking about receipts. I'm talking about the -- the information that the Government gets of what his expenditures are and you say that the only evidence the Government gets is what he told the agent. And then, after the -- the agent makes a memorandum of it and turns the gross amount in, he immediately destroys the -- the information that he got.
Kevin T. Maroney: Well, of course here where the -- where the informant apparently was called upon to itemize, the agent did make a few notes which -- which we think clearly, in the nature of things, would not amount to a statement under the -- under 3500. And on the basis of those notes, he would incorporate it in the receipts. Now, that's seems apparently what happened here so that there isn't a destruction of the records in a situation where the agent was asking and requiring the informant to itemize.
Earl Warren: Well, is it that --
Kevin T. Maroney: What -- what I -- what I meant to point out was that -- that it's probably the more usual procedure. I hate to generalize because I don't know how many informants there are or what the practices in -- in these respects in all cases are but --
Earl Warren: Well, there certainly would be some --
Kevin T. Maroney: Certainly, this is a very usual type of receipt. The -- the Sullivan receipt, it -- it says, “I received $75” and he is supposed to absorb if he has to pay $2 for literature or pay 50 cents for dues, he is supposed to absorb those ordinary expenses out of his -- out of his money --
Earl Warren: All I was trying to find out --
Kevin T. Maroney: -- his $75.
Earl Warren: -- all I was trying to find out, what is the practice? You stated what the practice was and you stated that these -- these notes were destroyed in accordance with practice.
Kevin T. Maroney: The notes?
Earl Warren: Now -- yes. Now, where -- where he does itemize it? Is he supposed to keep it, the agent, keep the -- keep the notes? Make -- the record he makes of it?
Kevin T. Maroney: In this -- in -- in this particular --
Earl Warren: No -- no, just tell me the practice. I know I don't -- not being (Voice Overlap)--
Kevin T. Maroney: Your Honor as I said, I hesitate to generalize an -- an appeal in which I certainly necessarily have a limited amount of knowledge which would only go to informants and witnesses with whom I have -- have -- have been acquainted.
Earl Warren: Well, didn't your brief say that this was done in accordance with practice?
Kevin T. Maroney: That's right, sir.
Earl Warren: Well then, what -- what do you base that on? Just tell us what you based that statement on and I won't go any further with it.
Potter Stewart: I think it's on page 24 of your brief, Mr. Maroney, the first whole paragraph, the last couple of sentences I think is (Inaudible)
Kevin T. Maroney: Yes. We -- we based it on the information that we have -- that we received from the Federal Bureau of Investigation asking what the procedure was with respect to these two witnesses as to the method of reporting expenses -- the method of recording expenses whether or not any oral or any notes of agents of expenses have been retained or what the situation is actually here with respect to the existence and non-existence of any statements or notes. And the F.B.I. advised us that neither Ondrejka nor Sullivan submitted written expense accounts. They also stated that in some instances, Ondrejka orally furnished the contacting agent with a breakdown of his expenses incurred during the pertinent period prior to the date of payment. The agent then prepared a receipt and in some instances, the breakdown of expenses was incorporated into the receipt and in some instances, the expenses were shown only as a lump sum. After the receipts were prepared, any notes, the contacting agents may have had were destroyed. In the case of Sullivan, no breakdown of expenses was maintained. And Your Honor, what -- what I have been trying to say is that in the usual situation, the informant receiving so much money per month is called upon to absorb his ordinary expenses. In -- in -- with respect to Ondrejka, he was apparently at a later time -- his -- his early receipts don't show any breakdown. They just show “received $25 for expenses”. There is no breakdown. It's only the last nine receipts covering about a two-year period.
Felix Frankfurter: You mean chronologically for that? You mean, whoever went through in these receipts went through a hundred and whatever nine (Inaudible) -- 114 and calmed down and sort of got tired and stopped, (Inaudible) in chronological or in physical order or whatever it is?
Kevin T. Maroney: I think -- well actually, that covers the period from June of 1950 to May of 1953.
Earl Warren: Was that the period in dispute here?
Kevin T. Maroney: Yes, sir, large -- largely that period. The early receipts of Ondrejka prior to 1950 don't show an itemization. Now, that runs for a -- during the year or beginning at September 1949 until May of 1950.
Earl Warren: But were those -- those --
Kevin T. Maroney: Then -- then apparently in June of 1950, he started itemizing and the agent incorporated the itemizations in the receipt were had he -- had not done as prior there, too.
Earl Warren: Well, the period -- the period where there was no itemization was not in -- was not in question here was it? And the -- and the indictments say that he was -- he was a -- a member of the party from such and such a time to such and such a time and wasn't that in the 1950's?
Kevin T. Maroney: That he was a member of the party on December 11, 1952.
Earl Warren: Yes.
Kevin T. Maroney: The day they executed the (Inaudible)
Earl Warren: 1952, yes.
Kevin T. Maroney: Well, I have to say that the whole period was involved because the Government's proof was that he had been a member for a few years prior to 1952 and he continued to be a member until 1953. And Ondrejka in his testimony spent that -- that crucial date of the execution in filing of the affidavit.
Earl Warren: Now, just one more question and I won't take anymore of your -- any more of your time. But I would like to ask you if these -- if these notes that were taken by the agent itemizing the expenses of -- of this witness are the notes that you referred to as the personal notes of the agent?
Kevin T. Maroney: Yes, sir. They would be -- as we understand the situation, the Ondrejka might be talking to an agent on the phone several days before they were -- they would get together. And he would mention that he had the following expenses and the agent would jot down a few notes as to what those expenses were. And those expenses apparently, were incorporated into the receipt that was prepared. Now sometimes, too apparent and of course, Your Honors will appreciate that these facts even we have not fully developed because there are many details that -- that could be developed here I think. Sometimes that they would meet and Ondrejka, at that point, would tell the agent what his expenses had been and the agent would let on the spot prepare a receipt, pay him the money and Ondrejka would sign the receipt. Now, we -- we think that in -- in the nature of thing, the -- the notes that an agent may have made while Ondrejka was listing or telling him what expenses he had incurred would only be what -- what I call a cryptic itemization. L.Y.L. party and the witness probably would've said in the -- in the middle of August, I went to a labor youth league party and we all had to contribute $2 and we had to buy this or that.
Earl Warren: You think that would make it personal?
Kevin T. Maroney: Well, I -- I think it's -- it's certainly.
Earl Warren: What would he use -- what would he use that information for? He'd use it to pay the man, wouldn't he?
Kevin T. Maroney: He'd use it to pay him and to later incorporate into the receipt --
Speaker: Yes, into the receipt.
Kevin T. Maroney: -- in certain instances --
Earl Warren: Now, how -- how --
Kevin T. Maroney: -- which he did.
Earl Warren: -- why do -- why do you classify that as personal?
Kevin T. Maroney: Well, I'd -- it's personal in the sense Your Honor that he is not making it to become a Government record. In other words, if in the course of an investigation, a detective jots down a telephone number that he gets from a -- from somebody he interviews or he jots down a license plate or he makes a few notes as to some leads he wants to follow, they're -- they're notes -- he certainly acting as a Government agent but they're -- they're not made to become a part of a Government file. They're -- they're notes that he makes for his -- for the performance of his personal duty.
Earl Warren: Personal duties?
Kevin T. Maroney: Personal, I mean they're -- they're on behalf of the Government but I mean they're his --
Earl Warren: And they're -- and they're made --
Kevin T. Maroney: -- personal obligation.
Earl Warren: -- they're made as the basis for paying a man Government money, are they not?
Kevin T. Maroney: That's right. But I -- but I think Your Honor --
Earl Warren: How come --
Kevin T. Maroney: -- that they are made much as if an attorney seating in a court, would jot down a few notes that he wants to -- to mention and argue something. Certainly, he is not making notes to go back and put in a file. And ordinarily, at the conclusion of the argument, he will probably throw them in a waste basket. They're -- they're notes that he makes to remind him of something. In -- in this -- in this case, I think it's clear that he probably made notes and then from the notes, he made these itemizations on receipts.
Earl Warren: Did he pay the money out and destroyed the notes which left him with no verification of any kind as to why he paid this money to this man?
Kevin T. Maroney: Well Your Honor, on -- on these nine receipts, there is a verification that these -- these itemizations, L.Y.L. party, party literature, things of that sort, this is the verification --
Earl Warren: Yes.
Kevin T. Maroney: -- that he secured from the informant.
Earl Warren: Would you say here that he destroyed the notes, the personal notes in a normal course of operation.
Kevin T. Maroney: That's right, sir.
Felix Frankfurter: Mr. Maroney, I take it you're just the -- the contents of the F.B.I. and what you tell us about their practice, isn't that right?
Kevin T. Maroney: Yes, sir.
Felix Frankfurter: And what you've read, I take it as what they have furnished you as your -- that it were your instructions or your -- as their -- as the basis of your response to any question that might be asked or any argument that you might make, is that right? What you've read a little while ago, 10 minutes ago.
Kevin T. Maroney: What I have -- what I have read --
Felix Frankfurter: Now, in the course of that, you said the notes or the practice of destroying the notes, would you mind referring to that? It's on the second page I think if you turn to page --
Kevin T. Maroney: Well --
Felix Frankfurter: -- something about destroying notes.
Kevin T. Maroney: The -- the agent then prepared a receipt and in some instances, the breakdown of expenses was incorporated into the receipt. And in some instances, the expenses were shown only as a lump sum. After the receipts were prepared, any notes the contacting agents may have had were destroyed.
Felix Frankfurter: Now, is that -- is that -- that -- about that, what I asked you, does that mean merely ad hoc with reference to this case or does that -- is that intended, as you understand it, as an expression of what the course of business is?
Kevin T. Maroney: As I understand it Your Honor, it's the course of business.
Felix Frankfurter: Course of business.
Kevin T. Maroney: That this kind of a note, especially the agent's original notes would not be normally retained.
Felix Frankfurter: Now, the other question I want to ask you is that -- do you happen to know whether the director of the F.B.I. must state as other Government official's statement that come before appropriations committee that -- that permitted appropriations committee the -- the expenditures made for informant -- informants?
Kevin T. Maroney: As to my understanding, he does not, Your Honor.
Felix Frankfurter: He does not.
Hugo L. Black: Is there a law -- I -- I was mentioning that -- I think that some special law probably, as I judged on what you said, which authorizes the F.B.I. to pay out mo --Government money to informants who claim they have expended in various places without having any record of it at all? That can be used by anybody else.
Kevin T. Maroney: It's -- it's my understanding, Your Honor, that there is a certain amount of money appropriated which does not have to be accounted for.
Felix Frankfurter: That's true --
Hugo L. Black: And that the law authorizes this? I may --
Kevin T. Maroney: The law --
Hugo L. Black: I may --
Kevin T. Maroney: Congress -- Congress has appropriated it for that purpose so that it doesn't have to be accounted for.
Felix Frankfurter: That's true of the F.B.I. and the C.I.A., isn't it?
Kevin T. Maroney: That's correct, sir.
Felix Frankfurter: And addressed (Inaudible)
Kevin T. Maroney: I think probably most law enforcement agency --
Felix Frankfurter: And the Government and the President's private fund, so-called “private fund”, the public credit.
Charles E. Whittaker: (Inaudible) and in this case have the notes until they got the receipt, of the receipts to describe or the -- the note to describe, is (Inaudible) only after the receipts.
Kevin T. Maroney: Well, at least after they were prepared the -- in other words, the notes might be used so that the -- just so the agent him -- for his only information as it did with Ondrejka. Now, if this were his particular practice with his particular informant that when the informant itemized for him, he would -- he then as he did here, trans -- transposed those original notes to the receipt itself and it became a part of the receipt. Apparently, with respect to other instances and other informants, there was no itemization possibly in some instances, none was requested. For example, Sullivan's arrangement whereby he understood that $10 of the money he received was to cover his ordinary expenses as -- as an informant or as a -- going around to the party meetings and buying literatures and so forth.
John M. Harlan II: Do you happen to know from a -- whether there's any difference on the practice on these notes now as between pre-Jencks, post-Jencks period is -- is what you read there from the F.B.I. related to pre-Jencks or post-Jencks?
Kevin T. Maroney: Well, not with respect to -- I'm not sure of the precise practice on notes of the expense -- expenses such as this. I'm sure that policy is to retain notes of interviews and things of that sort, as that -- whereas that -- that may not usually have been done in the past.
John M. Harlan II: Well, as you understand it, everything that we've been talking about here is pre-Jencks.
Kevin T. Maroney: Oh, this -- this entire situation is pre-Jencks. This case was tried prior to the -- first tried, prior to the Jencks decision and had been affirmed in the Court of Appeals when the Court of Appeals on rehearing. On the basis of Jencks reversed the first conviction so that everything that is involved here with respect to statements had to occur prior to the Jencks decision.
Hugo L. Black: Do I understand from your (Inaudible) and I think I gather and maybe it's right, maybe that's what our opinion held that no statement, no -- no evidence, written evidence from a Government record which is not a "statement" within the meaning of the Jencks rule can ever be summoned and brought into Court?
Kevin T. Maroney: No, sir.
Hugo L. Black: Well you seem to have concluded that each time with the statement with -- with this argument that is not a statement within the Jencks case.
Kevin T. Maroney: No, sir. We -- we concede that these are his statements because they're --
Hugo L. Black: What --
Kevin T. Maroney: -- assigned by the witness.
Hugo L. Black: -- what part of it? You said it would not be unless certain things could be shown to them.
Kevin T. Maroney: Well, if it were not signed by the witness. In other words, or -- or there was no evidence that he had adopted or signed that he had accepted it as his own words then I'd make the definition of the Jencks statute that it would have to be substantially verbatim would -- would apply. That's -- that's why I said --
Hugo L. Black: (Voice Overlap)
Kevin T. Maroney: -- that I don't think that the agents' notes would be statements because they -- they --
Hugo L. Black: Suppose their statement --
Kevin T. Maroney: -- I don't think they would be substantially verbatim.
Hugo L. Black: -- suppose that they were not signed by, what about that?
Kevin T. Maroney: If they were not signed?
Hugo L. Black: Yes.
Kevin T. Maroney: If they're not signed by the witness then I think the statute requires that the statement be substantially verbatim.
Hugo L. Black: And all be what?
Kevin T. Maroney: To be substantially verbatim.
Felix Frankfurter: Or adopted by him.
Kevin T. Maroney: Or -- or adopted. And -- and -- in other words, if they are just few notes of summarizing in keywords a conversation, that is not a statement under the Jencks statute. I think this Court has so held.
Hugo L. Black: But it's still a little difficult for me to understand even though papers may not be kept as they've known that they are going to be a witness, why statement relating to what they have done in connection with the activities which they will testify should be habitually destroyed?
Kevin T. Maroney: Well, Your Honor, I think it's important in this particular case to -- to understand that -- that these reports, if you want to call them reports, to the agent concerning expenses were not made with -- with the view in mind that the -- the informant was thereby reporting some activity --
Hugo L. Black: But he wanted --
Kevin T. Maroney: -- which would.
Hugo L. Black: but he wanted --
Kevin T. Maroney: -- would be incorporated into an investigative file. That -- that part of his -- those parts of his reports would be submitted in the form of a written statement. I think the witness is here, both of them testified that they reported on every activity they went to. That when they would go to a Communist Party meeting, when they went to a convention, that they would submit to the F.B.I. a written report, sometimes handwritten, sometimes they would orally report to the agent. The agent would then make a summary of what he -- the witness had told him. Those are the narrative statements which were produced here.
Hugo L. Black: What -- what statement -- what evidence do you think could show that this particular statement were not relevant?
Kevin T. Maroney: I think -- I think in the context in which we are now that probably in examination by the trial judge would be the appropriate way for that determination.
Hugo L. Black: I'm not talking about the weight, I'm talking about what do you think could be introduced that would show they were not relevant if you had relate to expense that he have incurred which he reported what he was doing in connection to this examination?
Kevin T. Maroney: I think an examination of the statements themselves will show that they do not relate to the subject matter of --
Hugo L. Black: Do not relate in what way?
Kevin T. Maroney: That they -- that they don't concern -- well they don't touch upon the activities about which he has testified on direct examination.
Earl Warren: We'll recess now, Mr. Maroney.