Campbell v. United States (373 U.S. 487)/Opinion of the Court

This case, involving questions under the so-called Jencks Act, 18 U.S.C. § 3500, is before the Court for the second time. When it was first here, we held inadequate the procedure employed by the trial court for ascertaining whether notes taken by Federal Agent John F. Toomey, Jr., at his interview with Dominic Staula-a key government witness at petitioners' trial for bank robbery-or the Interview Report compiled by Toomey from his notes, were producible statements within the meaning of § 3500(e)(1) or (e)(2). 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428. We declined to order petitioners' convictions vacated, but remanded 'to the trial court with direction to hold a new inquiry consistent with this opinion * *  * (and) supplement the record with new findings *  *  * .' 365 U.S., at 98-99, 81 S.Ct., at 428, 5 L.Ed.2d 428. On remand the trial judge held a hearing at which Toomey but not Staula testified. Toomey gave the following testimony: On the day following the robbery he interviewed Staula privately. Staula was a depositor of the bank and had been an eyewitness to the crime. Toomey took longhand notes of the interview, which were 'complete * *  * with respect to the pertinent information' given by Staula, although not a complete, word-for-word transcription of what he had said. Toomey then recited back to Staula the substance of his account, referring to his notes, and Staula said that Toomey had got it straight. Staula did not read or sign the notes. About seven hours later Toomey, after rearranging his notes to accord with the chronology of Staula's account, dictated the Interview Report, relying primarily on his notes but also on memory. After checking the transcribed report against the notes and finding it accurate, he destroyed the notes.

On the basis of this testimony and the record of Staula's testimony at petitioners' trial, the trial judge held that neither the notes nor the Interview Report was producible under the Jencks Act. 206 F.Supp. 213. On appeal, the Court of Appeals expressed dissatisfaction with the judge's conduct of the hearing but accepted his ruling that the Interview Report was not producible. 9 Cir., 296 F.2d 527. However, the court held that the status of the notes could not be adequately determined without fresh testimony from Staula. Accordingly the court, while retaining jurisdiction of the appeal generally, ordered a further hearing before a district judge other than the trial judge, with both Staula and Toomey to testify, for a determination 'whether Staula signed or otherwise adopted or approved the notes.' Id., 296 F.2d, at 534.

At this hearing Staula testified that he had not read or signed Toomey's notes but had told Toomey that what the latter had repeated back to him was, to the best of his knowledge, what had happened. Toomey amplified his earlier testimony. On this record the second district judge concluded, 199 F.Supp. 905, that Toomey's oral presentation to Staula had 'not merely adhered to the substance (of the notes) but so far as practical to the precise words,' id., 199 F.Supp., at 906; that Staula had adopted this presentation; that the Interview Report was 'almost in ipsissima verba the narrative (Toomey) had just checked with Staula,' id., 199 F.Supp., at 907; and that therefore the report was producible as 'a written statement made by said witness and * *  * adopted *  *  * by him.' 18 U.S.C. § 3500(e)(1).

The Court of Appeals then filed a supplemental opinion in which it accepted the second district judge's findings but held that the report was neither a written statement approved by Staula nor a copy of such a statement, and hence did not come within § 3500(e)(1). 303 F.2d 747. We granted certiorari and leave to proceed in forma pauperis. 371 U.S. 919, 83 S.Ct. 295, 9 L.Ed.2d 229. We reverse. We agree with the second district judge that the Interview Report was producible under § 3500(e)(1); consequently, we do not reach the other issues tendered by petitioners.

In Campbell I, we posed the following questions to frame the hearing on remand:

'Did Toomey write down what Staula told him at the interview? If so, did Toomey give Staula the paper 'to read over, to     make sure that it was right,' (as Staula had testified at the      trial) and did Staula sign it?

'Was the Interview Report the paper Staula described or a     copy of that paper? In either case, as the trial judge ruled,     the Interview Report would be a producible 'statement' under      subsection (e)(1).' 365 U.S., at 93, 81 S.Ct., at 426, 5      L.Ed.2d 428.

We now know that the 'paper Staula described' was Toomey's interview notes, and that Staula adopted Toomey's oral presentation based on the notes. Plainly, if Toomey in making the oral presentation was in fact reading the notes back to Staula, the latter's adoption of the oral presentation would constitute adoption of a written statement made by him, namely, the notes. See United States v. Annunziato, 293 F.2d 373, 382 (C.A.2d Cir., 1961); United States v. Aviles, 197 F.Supp. 536, 556 (D.C.S.D.N.Y.1961). The producibility of the Interview Report under § 3500(e)(1) would therefore seem to depend upon the answers to two questions: whether Toomey's oral version of the notes may fairly be deemed a reading back of the notes to Staula; and whether the Interview Report may fairly be deemed a copy of the notes.

We think these questions properly are ones of fact, the determination of which by the district judge may not be disturbed unless clearly erroneous. 'Final decision as to production must rest, as it does so very often in procedural and evidentiary matters, within the good sense and experience of the district judge guided by the standards we have outlined, and subject to the appropriately limited review of appellate courts.' Palermo v. United States, 360 U.S. 343, 353, 79 S.Ct. 1217, 1225, 3 L.Ed.2d 1287. Cf. id., 360 U.S., at 360, 79 S.Ct., at 1228-1229, 3 L.Ed.2d 1287 (concurring opinion); Hance v. United States, 299 F.2d 389, 397 (C.A.8th Cir., 1962); United States v. Thomas, 282 F.2d 191 (C.A.2d Cir., 1960). 'The inquiry (is) a proceeding necessary to aid the judge to discharge the responsibility laid upon him to enforce the statute. * *  * The statute *  *  * implies the duty in the trial judge affirmatively to administer the statute in such way as can best secure relevant and available evidence *  *  * .' 365 U.S., at 95, 81 S.Ct., at 427, 5 L.Ed.2d 428. To determine the accuracy with which Toomey's oral presentation and Interview Report reproduced his notes was preeminently a task for a nisi prius, not an appellate, court. It required the ad hoc appraisal of one of the 'myriad' 'possible permutations of fact and circumstance', Palermo v. United States, supra, 360 U.S., at 353, 79 S.Ct., at 1225, 3 L.Ed.2d 1287, present in such cases; it may well have depended upon nuances of testimony and demeanor of witnesses; and it concerned a subject, rulings on evidence, which is peculiarly the province of trial courts.

For the purpose of applying the clearly-erroneous standard in the instant case, we deem controlling the findings of the second district judge. As the Court of Appeals correctly held, the first hearing did not conform to our mandate in Campbell I because Staula was not called to testify; and the hearing was unsatisfactory in other respects. Moreover, while Toomey's testimony at the second hearing did not contradict his earlier testimony, it was considerably more detailed. Also, we perceive no basic inconsistency between the factfindings made at the first hearing and those made at the second, although the later findings were more elaborate. Finally, we read the supplemental opinion of the Court of Appeals as having accepted the later findings as controlling and based its decision upon them.

In so doing, the Court of Appeals implicitly concluded that the later findings were not clearly erroneous. That conclusion was surely sound. Although there may well be small differences as among the notes, oral presentation, and Interview Report, it is not seriously suggested that there was a material variance or inconsistency among them. And the district judge was entitled to infer that an agent of the Federal Bureau of Investigation of some 15 years' experience would record a potential witness' statement with sufficient accuracy as to obviate any need for the courts to consider whether it would be 'grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness' own.' Palermo v. United States, supra, 360 U.S., at 350, 79 S.Ct., at 1223, 3 L.Ed.2d 1287. We cannot say, therefore, that the second district judge's finding that the Interview Report was a copy of a written statement made and adopted by Staula was clearly erroneous.

Our holding today only gives effect to the 'command of the statute (which) is * *  * designed to further the fair and just administration of criminal justice *  *  * .' Campbell I, 365 U.S., at 92, 81 S.Ct., at 425, 5 L.Ed.2d 428. Petitioners-Alvin R. Campbell and Arnold S.C.ampbell, brothers, and Donald Lester-were convicted of a serious crime and sentenced to long prison terms. At their trial, held four months after the bank robbery, Staula testified that there had been three robbers. One, who had worn 'a white shirt with short sleeves,' Record, Campbell I, No. 53, October Term 1960, p. 141, he said resembled Lester. Another, who 'had on a blue suit,' id., p. 142, he said resembled Arnold Campbell. The third he had glimpsed '(a)t the vault,' id., p. 170, but could not describe. The Interview Report, however states that Staula 'did not observe a third man in the bank.' Of the two he did observe, one is described as wearing a '(d)ark blue suit' and '(w)hite shirt'; but at the trial, when asked whether he remembered 'what kind of a shirt, if any, the man in the blue suit was wearing,' Record, supra, p. 148, Staula answered: 'No, because I saw him from the side. I didn't see the front of him. I didn't see his shirt.' Ibid. And in the description in the report of the second man Staula observed, there is no mention of his wearing 'a white shirt with short sleeves'; he is only described as 'wearing gray chino pants,' and the report adds that Staula 'only observed the man * *  * for an instant and could give no further description of him.' Surely fairness in federal criminal procedure, which the Jencks Act was enacted to secure, Campbell I, 365 U.S., at 92, 81 S.Ct., at 425, 5 L.Ed.2d 428, demands that this Interview Report, reasonably found to be an accurate copy of a written statement made the day after the robbery by Staula and adopted by him as his own, be producible for impeachment purposes.

The judgment of the Court of Appeals and the judgments of conviction are vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Judgment of Court of Appeals and judgments of conviction vacated and case remanded with directions.

Mr. Justice CLARK, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.