Needelman v. United States – Oral Argument – April 25, 1960

Media for Needelman v. United States

Audio Transcription for Oral Argument – April 26, 1960 in Needelman v. United States

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Earl Warren:

Number 278, Harry Needelman, Petitioner, versus United States.

Mr. Warren.

Herbert A. Warren, Jr.:

Mr. Chief Justice, may it please the Court.

This case is before the Court upon a writ of certiorari to the Court of Appeals for the Fifth Circuit.

The questions presented, stated briefly are as follows.

First, whether the contemporaneous notes of a government agent made during the course of his investigation are producible under the statute, Title 18, Section 3500 where that government agent takes the witness stand and testifies as to his investigation as a witness for the Government.

There’s also presented the question as to whether or not the rule announced by this Court in Goldman versus United States to the effect that the trial judge has the discretion to deny production and inspection of the contemporaneous notes and memoranda of government agents where the government agents have refreshed their recollection from such notes but have not done so on the witness stand, whether such rule has been overruled by this Court in the case of Jencks versus United States.

As an adjunct to the questions, there’s also presented the question of whether or not the action of the trial court in this particular case in denying production of the contemporaneous notes of the government agent could be characterized as harmless error.

As to the facts of the case, the petitioner who has a position was first indicted along with a druggist on a charge of conspiracy to violate the provisions of Title 26, Section 4705 (a), that is a conspiracy to sell certain narcotic drugs without the requisite written orders as prescribed by the statute.

That case was tried and resulted in a mistrial.

After the mistrial, a second indictment was returned against the petitioner solely naming him in 15 substantive counts charging in each of the counts that he sold or caused to be sold the narcotics not in the manner prescribed by the statute.

The two cases were consolidated for trial.

After the trial on the conspiracy charge, but prior to the trial on the consolidated cases, counsel for the petitioner moved the court on order requiring the Government to produce certain documents and included in that motion a request for the contemporaneous notes of the narcotic agent, Rudd setting forth in the motion that the Agent Rudd had testified at the first trial and had — and his testimony shown that the notes related to his investigation and as to the events which he’s testified to in the first trial.

The motion was denied in all material respects as far as this case is now concerned.

The case proceeded to trial.

And now that motion is not an issue here, is it?

Herbert A. Warren, Jr.:

It is not an issue here although I might state in passing that it is my belief that the motion made would come under the provisions of the statute, but it’s solely presented to the Court today.

We are relying upon the fact that the motion was renewed during the course of the second trial.

The case proceeded to trial at the close of the Government’s case.

The court granted a motion for judgment of acquittal as to the conspiracy cases.

At the end of the — all of the evidence in the case, the petitioner again moved for a judgment of — of acquittal.

The trial court denied the motion commenting that in his view, it was a very slender case, but he thought that there was enough to go to the jury.

The jury returned a verdict of guilty as to each of the 15 substantive counts.

A motion for new trial was made and was granted as to five of the counts which were substantly — subsequently dismissed by the Government.

During the course of the trial, the agent — narcotic agent Rudd while on the stand testified on cross-examination that he had made copious notes during the course of his investigation and that he had refreshed his recollection from such notes prior to coming to court to testify.

There was — after Agent Rudd had testified on direct, cross and redirect, a recess was taken.

After the recess, this appears in the record.

The court makes the statement, “I will deny the request for the notes because they may concern many things.

You may see the case report.”

The case proceeded on as I’ve said to the conclusion and a finding of guilty by the verdict as to each and by the jury as to each of the 15 substantive counts.

Felix Frankfurter:

Would you mind at this point to state what the case before was or is?

Herbert A. Warren, Jr.:

Yes, sir.

The case report has been filed by the Government as an exhibit in this case.

Now, the case report was not made a part of the evidence at the trial.

I did not try the case, but I have consulted counsel who did represent the defendant.

I have showed him the transcript of record with the case report as filed by the Government.

He says to the best of his recollection that is what was handed him — to him.

Earl Warren:

You mean the case — when you say filed by the Government, did counsel for defendant have this set of trials?

Herbert A. Warren, Jr.:

It was presented to him at trial.

Yes, sir.

Felix Frankfurter:

What — but what was it?

What was — can you tell us that?

Herbert A. Warren, Jr.:

Yes.

Yes, sir.

It appears in the record starting at page 138.

It appears that it is in effect a trial brief of the testimony to be presented by the various witnesses in the case.

It is composed by narcotic agent Rudd signed by him and agent Waters and it relates as the testimony that the prospective witnesses for the Government will give when they are called.

Felix Frankfurter:

Were this elicited through a bill of — for a bill of particulars or how did it —

Herbert A. Warren, Jr.:

No, sir, it arose —

Felix Frankfurter:

How — what was the vehicle for bringing it to the attention of counsel for defendant?

Herbert A. Warren, Jr.:

The — the counsel for the defendant had requested the contemporaneous notes and memoranda of the agent Rudd.

Felix Frankfurter:

Yes, I understand that.

Herbert A. Warren, Jr.:

The court said, “I will deny your request for the notes.

You may see the case report.”

Then —

Felix Frankfurter:

So, how did the judge know there was a case report?

Herbert A. Warren, Jr.:

I don’t know, sir.

Felix Frankfurter:

That presumes that the matter must have been somewhere of it before the judge and in — and certainly —

Herbert A. Warren, Jr.:

Yes, sir.

Felix Frankfurter:

— was a consideration in his denial of the motion for the — for the refreshing notes.

Felix Frankfurter:

Is that right?

Herbert A. Warren, Jr.:

That’s right, sir and that is not reported in the record.

Felix Frankfurter:

Now, can you tell me what use if any was made of the case report by defendant’s counsel?

Herbert A. Warren, Jr.:

None.

Felix Frankfurter:

None?

Herbert A. Warren, Jr.:

None.

It proved absolutely useless.

The record will reflect that there is no cross-examination of the agent Rudd based upon anything that came from the case report.

Felix Frankfurter:

You can’t say it’s useless if it simply didn’t think served any of his purposes?

Herbert A. Warren, Jr.:

That’s right, sir.

And it was not used as far as the record here reflects.

William J. Brennan, Jr.:

Does the record indicate whether the notes, request to which was made were examined by the trial judge?

Herbert A. Warren, Jr.:

No, sir.

We must assume that they were not because the judge said, ”That they may concern many things.”

William J. Brennan, Jr.:

It would appear that this case report purported it to be prepared from any notes?

Herbert A. Warren, Jr.:

No, sir I cannot say that it does.

The Government does contend that it does show that it was prepared from the contemporaneous notes but I cannot say that it was because I’ve never seen the notes.

The trial judge has never seen them and they were not preserved in the record.

Felix Frankfurter:

So we don’t know anything about this.

All — I mean as far as the record shows, is there — well, let me ask this question.

Is there anything in the record that tells us more, that tells us anything about the notes, the nature of — except the nature of how they were made and for what purpose, what the judge’s knowledge was or wasn’t with reference to the notes, what the judge’s knowledge was or wasn’t with reference to the case report on the basis on which he ruled that you may have seen the case report?

Is there anything in the record?

Herbert A. Warren, Jr.:

All we have in the record is the motion for production made between the two trials where the defense asked for the contemporaneous note of the Agent Rudd —

Felix Frankfurter:

Yes.

Herbert A. Warren, Jr.:

— specifying in the motion that they had been referred to in the prior case.

That they did relate to the testimony of the Agent Rudd.

Then we have the testimony of the Agent Rudd that he did make copious notes during the course —

Felix Frankfurter:

Yes.

Herbert A. Warren, Jr.:

— of his investigation and he did refer to those notes to refresh his recollection.

Then we have solely the statement out of the court that he would deny the request for the notes because they may involve many things, you may see the case report.

Herbert A. Warren, Jr.:

That is all there is.

Felix Frankfurter:

But we don’t know — we don’t know anything except those — there are those un-illuminating few words as to what went on as this — at the short recess.

Herbert A. Warren, Jr.:

No, sir.

Felix Frankfurter:

— why he ruled against the motion to produce the notes and why he said you may have this — the case report, the presentation of which or the projection of which into the case we know nothing about.

Is that right?

Herbert A. Warren, Jr.:

That’s right, sir.

Or admit — does it appear that the judge said they could have the case report?

Herbert A. Warren, Jr.:

Yes.

Felix Frankfurter:

Yes.

Herbert A. Warren, Jr.:

Court has —

What page is that?

Herbert A. Warren, Jr.:

Here it is.

Felix Frankfurter:

Page 93.

Herbert A. Warren, Jr.:

93, sir.

“I will deny the request for the notes, because they may involve many things.

You may see the case report.”

Yes.

Herbert A. Warren, Jr.:

Now, with reference to the case report, I would like to point out to the Court that it is dated October 31st, 1955.

The first indictment in this case as appears from page 1 of the record was returned on October the 18th, 1955.

So the indictment had already been returned before the case report was ever prepared.

Now, the primary issue as far as the — the author Anderson saw the petitioner in this case turned upon his good faith and dispensing the prescriptions.

It was the evidence of the Government to prove that he had gone on a vacation to Europe that he had left numerous signed prescriptions with his nurses, with instructions to dispense them to certain persons upon solely the payment of a certain fee.

Dr.Needelman denied giving any such request.

It was his evidence that they had been left there because he had two doctors assisting him in his practice to its — yet had not been licensed to practice and that the prescriptions were to be dispensed only upon their say so.

One of the main points as far as his good faith is concerned is that the agent Rudd in his testimony stated that when he interviewed the petitioner, the petitioner stated to him that he knew that the persons involved were narcotic addicts.

Dr. Needelman denied that he ever made any such state — statement and denied that they were in fact narcotic addicts.

Now, as far as the first question is concerned, it is our position that the contemporaneous notes of an agent made during the course of his investigation are producible under the statute when the agent takes the stand and testifies as a witness for the Government.

Felix Frankfurter:

What — what is there in the record or what are the — what references can you give us in the record which indicate the nature of these notes in the sense of when they were made, what they purported to be, etcetera, etcetera?

Herbert A. Warren, Jr.:

The cross-examination of agent Rudd where he stated that the —

William J. Brennan, Jr.:

What page is this?

Herbert A. Warren, Jr.:

Page 88.

Question, “You made copious notes did you not at the time you started the investigation of this case and made several notes?”

“Yes, sir.”

“And you have refreshed your recollection from the notes that you made, refreshed your memory.

Before coming to testify, you refreshed your memory by reference to those notes, did you not?”

That is on page 88, a little of two-thirds all the way down the page.

Felix Frankfurter:

“Well, you made copious notes at the time you started the investigation of this case.”

Does that state notes of whose — whose statements or what statements or?

Herbert A. Warren, Jr.:

No, sir.

And in our view it makes no difference.

If the agent takes the witness stand and testify —

Felix Frankfurter:

It would make a lot of difference under the statute.

Herbert A. Warren, Jr.:

The — I’ll say this that —

Felix Frankfurter:

It makes all the difference in the world under the statute.

Herbert A. Warren, Jr.:

The notes must be relevant to his testimony.

Felix Frankfurter:

Pardon me?

Herbert A. Warren, Jr.:

The notes must be relevant to the facts that he testified to at the trial.

Felix Frankfurter:

And I feel, indicates the relation between the — the person from whom statements or the references statements are made and the recording.

Herbert A. Warren, Jr.:

We’re not seeking production of the notes as in — as a statement of a third person, as was the case in the Palermo case recently decided by this Court.

We’re taking the position that the agent himself is the witness.

These notes which he made are sought as his own statement, not as a statement of some other person.

Felix Frankfurter:

Well, that’s why it’s not within 3500?

Herbert A. Warren, Jr.:

I think very definitely it is, Your Honor, but then the language —

Felix Frankfurter:

It was made by a government witness or prospective to an agent.

You mean these are notes made — he is the witness and he makes these notes to himself about himself.

Herbert A. Warren, Jr.:

He makes the notes concerning the events that he’s testified to at the trial.

Felix Frankfurter:

Yes, I know but you have to read the statute.

Herbert A. Warren, Jr.:

Alright, sir.

If you’ll look —

Felix Frankfurter:

Made by government witness or prospective witness through an agent of the Government —

Herbert A. Warren, Jr.:

How —

Felix Frankfurter:

— which means that the agent takes down a statement made to him by somebody else.

Herbert A. Warren, Jr.:

That is the language of Subsection (a) of the statute but that restriction is not placed in Subsection (b) of the statutes.

Subsection (b) says only after a witness called by the United States has testified on direct examination.

The court shall in a motion of the defendant order the United States to produce any statement they see in it.

Felix Frankfurter:

Of the witness (Voice overlap) —

Herbert A. Warren, Jr.:

Of the witness, yes sir, as hereinafter defined.

Now, I’ll direct your attention to the provisions of Subsection (e), and the interesting fact that in defining the term “statement” under Subsection (e), it refers solely to Subsections (b), (c), and (d) and does not refer to Subsection (a) which is limited solely —

Felix Frankfurter:

But it dealt with all that in — in Palermo.

Herbert A. Warren, Jr.:

Yes sir, you dealt with — that in Palermo as far as a statement given by a witness to a Government agent where the witness is on the stand and you’re seeking from the Government, the statement which that particular witness gave to a Government agent.

Felix Frankfurter:

And we’ve also —

Herbert A. Warren, Jr.:

That is —

Felix Frankfurter:

— said that that’s an exclusive statute and not a — and not a puzzle statute.

Herbert A. Warren, Jr.:

Yes.

You said it was an exclusive statute so far as statements given by Government witnesses to Government agents is concerned.

But that is not the situation here —

Felix Frankfurter:

I’m not dealing how it is with the other question outside of the statute?

I’m — my questions are restricted to —

Herbert A. Warren, Jr.:

Yes sir.

Felix Frankfurter:

— the application of the statute.

Herbert A. Warren, Jr.:

Right, sir.

Felix Frankfurter:

And I speak on the face of it, it doesn’t apply to this situation.

Herbert A. Warren, Jr.:

And it’s our contention that under Subsection (b) and the other portions of the statute that it does apply and it is within the literal language of the statute.

May I suggest that the reason for Subsection (a) is to show that Congress is adopting a policy so that it would leave no doubt but that statements given by a witness to the Government are then subject to an — claim of evidentiary privilege by the Government.

The fact that they are really the statement of the witness might lead you to think that the evidentiary privilege cannot be granted.

Congress makes that clear.

If that statement of the witness is transmitted to the Government and becomes in the possession of the Government, the claim can then be asserted.

But under Subsection (b) —

Felix Frankfurter:

But these statements weren’t delivered to the Government or to anybody, even notes, like the notes that you and I make if we hear something or —

Herbert A. Warren, Jr.:

That’s right.

Felix Frankfurter:

— before we hear something with reference to hearing it, even notes to ourselves —

Herbert A. Warren, Jr.:

Right, sir.

Felix Frankfurter:

— by calling yourself up on the telephone.

Herbert A. Warren, Jr.:

Right, sir.

And —

William J. Brennan, Jr.:

Mr. Warren, let me see if I follow you.

I would — I gather you’re saying that the literal language of Subdivision (b) after a witness called by the United States has testified on direct examination.

The court shall in the motion of the defendant order the United States to use any statement and they don’t have to find of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.

Herbert A. Warren, Jr.:

Yes, sir.

William J. Brennan, Jr.:

On the face of it, it includes these notes.

Herbert A. Warren, Jr.:

Yes sir.

William J. Brennan, Jr.:

And that statement is defined in (e) (1), a written statement made by said witness and signed or otherwise adopted or approved by him.

Herbert A. Warren, Jr.:

Right, sir.

William J. Brennan, Jr.:

Also literally applied at least —

Herbert A. Warren, Jr.:

Right, sir.

William J. Brennan, Jr.:

— would include these notes.

Is that your argument?

Herbert A. Warren, Jr.:

That is my argument.

Yes, sir.

And now —

Felix Frankfurter:

That means any estimate, any — any characterization, any profiles that the Government agent have to having a very good impression with somebody makes — makes for himself — to himself, as to the piece of literature comes within the Jencks Act, is that it?

Herbert A. Warren, Jr.:

That is my position as far as the first point is —

Hugo L. Black:

Was this an essay?

Herbert A. Warren, Jr.:

I beg your pardon, sir?

Hugo L. Black:

Was this an essay or was it supposed to be a statement of what a witness had told him?

Felix Frankfurter:

No, no, no.

Herbert A. Warren, Jr.:

There was notes —

Felix Frankfurter:

It wasn’t that, was it?

Herbert A. Warren, Jr.:

His recordings of the events that transpired during the course of his investigation.

Felix Frankfurter:

Where was does statement, where does any evidence say that?

Herbert A. Warren, Jr.:

I cannot —

Felix Frankfurter:

If these were recordings of what the witness told him.

Herbert A. Warren, Jr.:

When I used the word recording I mean the fact that he made notes which constitute recordings.

Felix Frankfurter:

But you don’t know what about what because it says he made copious notes at the time he started the investigation.

It doesn’t say he made notes of what, Dr. Needelman told him.

Herbert A. Warren, Jr.:

I’ll admit that if — the notes maybe entirely irrelevant but that is no basis for denying their production under the statute.

Felix Frankfurter:

Well, I understand that.

All I’m saying is there’s nothing in the record to indicate that these were recordings of statements made to the agent by Dr.Needelman, is that correct?

Herbert A. Warren, Jr.:

That is correct, sir.

Hugo L. Black:

What was he testifying about?

Herbert A. Warren, Jr.:

He was testifying as to his conversation with Dr. Needleman primarily.

Hugo L. Black:

And what did you say he was using the notes for?

Herbert A. Warren, Jr.:

He said that he had refreshed his recollection before coming to testify.

Hugo L. Black:

To testify and he was testifying, was it irrelevant testimony in the case?

Herbert A. Warren, Jr.:

Yes, sir.

Hugo L. Black:

And — and you asked that the memorandum he had made from which he was refreshing his recollection as to the testimony which he gave.

Herbert A. Warren, Jr.:

That is correct, sir.

Felix Frankfurter:

And for all you know, the notes might be, this is my child’s birthday and that’s why I’ve fixed the date in which I talked with Needleman, is that right?

Herbert A. Warren, Jr.:

That is correct and there will be —

William J. Brennan, Jr.:

Now he presently testifies that.

Hugo L. Black:

Is there anyway you can find out about that except to get the notes?

Herbert A. Warren, Jr.:

No, sir.

William J. Brennan, Jr.:

That’s the point.

Herbert A. Warren, Jr.:

That’s the entire point of it.

We don’t know but under the statute, and the statute was designed to prevent such a situation by — first of all, all we have to show is that he did make a prior statement, made notes which are irrelevant to his testimony.

We asked for a production of those notes.

Then the Government must take affirmative action and say the notes are not relevant to what the witness has testified to.

Felix Frankfurter:

But before you come to that, the statute lays down what kind of recordings or what they must be.

Herbert A. Warren, Jr.:

Yes, sir.

And I — under the literal language of (b), it is our position that the notes of the agent —

William J. Brennan, Jr.:

I suppose if he wrote them in his own handwriting, he must have approved.

Herbert A. Warren, Jr.:

Absolutely, and the fact that he referred to them and refreshed his recollection is a further indication that he did adopt them and approved them as being his own.

Hugo L. Black:

Well, if they were not relevant to what testimony he is giving, what right do the Government have to let him refresh his recollection from something that had nothing to do with the case?

Herbert A. Warren, Jr.:

That’s right, sir.

The fact remains that he did refresh his recollection.

Charles E. Whittaker:

Was he having — doing — was that done in the court?

Herbert A. Warren, Jr.:

The refreshing of the recollection?

Charles E. Whittaker:

Yes.

Herbert A. Warren, Jr.:

No, sir.

Charles E. Whittaker:

They were in that notes and never in the court.

Herbert A. Warren, Jr.:

As far as we know they were never in court.

No, sir.

Could I ask you —

Potter Stewart:

Why did — excuse me.

Could I ask you a subsidiary question?

Herbert A. Warren, Jr.:

Sure.

Was any request made from the notes that were denied, production was denied.

Any request made, the judge to take a look at them?

Herbert A. Warren, Jr.:

No, sir.

It was not and it’s our position that the defendant did everything that he was required to do either under the statute or under the Jencks case.

Because if this comes under the statute, you get them automatically.

Herbert A. Warren, Jr.:

That’s right.

I think if you considered under the statute.

If you have to fit it under the Goldman rules, assuming Jencks doesn’t extend this far, then you are in the realm of discretion are you not?

Herbert A. Warren, Jr.:

That’s right.

And in that event, the absence of any request or production after the judge said he would deny the motion becomes irrelevant circumstances.

Herbert A. Warren, Jr.:

Yes, sir.

Potter Stewart:

Was it conceded or — that the — these notes were in the possession of the Government at the time of the trial?

Herbert A. Warren, Jr.:

Only by the fact that the agent said that he had refreshed his recollection from the notes before coming to testify.

William J. Brennan, Jr.:

And he, I gather was what, a narcotics agents?

Herbert A. Warren, Jr.:

He was a narcotics agent.

Yes, sir.

Potter Stewart:

Because under the statute, under the literal terms of the statute, can they — in order to qualify, they must be in the possession of the United States.

Herbert A. Warren, Jr.:

Yes and I think by virtue of the fact that they were in the possession of an agent —

Potter Stewart:

His possession.

Herbert A. Warren, Jr.:

— of the United States, it would be deemed to be within the possession of the United States.

Potter Stewart:

Well, exactly in the possession of the United States at the time the demand is made is — would be the relevant time, will it?

Herbert A. Warren, Jr.:

Yes, sir.

Potter Stewart:

Now, one other question.

Where — where are the notes now?

They’ve been destroyed or —

Herbert A. Warren, Jr.:

I do not know, sir.

Potter Stewart:

Is — they’re not in the record?

Herbert A. Warren, Jr.:

They’re not in the record.

Potter Stewart:

In anyway or even as a —

Herbert A. Warren, Jr.:

None.

Potter Stewart:

None.

So there’s no way to know unless the Government tell us.

Herbert A. Warren, Jr.:

There’s absolutely no way to know.

That’s right.

Charles E. Whittaker:

But one time that the notes were taken?

Herbert A. Warren, Jr.:

I contend that I think it’s obvious from the record that the Agent Rudd as he was conducting his investigation was making notes as to the events as they transpired as to what he saw, what he found, what the witnesses told him.

And that is the type of note that we are seeking and of course that is the type of note which would be valuable to the case and — in this case.

Felix Frankfurter:

And for all we know, he has made the notes of people whom he — whom he talked with before every his suspicion was directed to Needleman, is that right?

Herbert A. Warren, Jr.:

I don’t think —

Felix Frankfurter:

For all we know —

Herbert A. Warren, Jr.:

— we could say that.

Felix Frankfurter:

What?

Herbert A. Warren, Jr.:

I don’t believe we could say that by virtue of the fact that he said that he had refreshed his recollection from the notes before coming to testify.

Felix Frankfurter:

Yes, but you might, you refresh your recollection by the fact that it was a, that it was the hardest day for — what is it yesterday?

Felix Frankfurter:

April 23rd and he’s still in Washington.

Herbert A. Warren, Jr.:

That’s right.

William J. Brennan, Jr.:

But I gather one of our discovery theory that none of us knows what’s in those notes.

Herbert A. Warren, Jr.:

That’s right.

William J. Brennan, Jr.:

And when he said he refreshed his recollection from them, they related to his investigation.

The judge didn’t look at them and no one has ever seen them.

Herbert A. Warren, Jr.:

That is correct.

Felix Frankfurter:

And was it — was the counsel for the defendant refuted from — from what is and asking him for this that you put down, what the defendant said to you?

Did you — are these notes on your conversations with Needleman?

Did this judge shut off that line of inquiry?

Herbert A. Warren, Jr.:

No, he did not shut it off.

It’s still our position that the only thing that the defendant has to do is request production of a statement of the witness.

Charles E. Whittaker:

You — this —

Herbert A. Warren, Jr.:

Then —

Charles E. Whittaker:

It’s just a statement of the witness.

Herbert A. Warren, Jr.:

I — within the literal —

Charles E. Whittaker:

From the meaning of the statute.

Does that —

Herbert A. Warren, Jr.:

Yes, sir, I think it is.

A written statement made by the witness, in making notes, the notes are written, signed or otherwise adopted by him.

The fact that the witness referred to the notes to refresh his recollection, I believe is certainly an adoption and approval by him of those particular notes.

Felix Frankfurter:

But — but really, Palermo, said the adoption and approval must be of the recorded statements, whose statements they purport to be.

Herbert A. Warren, Jr.:

Where you are —

Felix Frankfurter:

We talk about literal as though there’d been no decision or opinion in Palermo.

Herbert A. Warren, Jr.:

No, Palermo, I’d like to emphasize, does not involve this situation at all.

And Palermo, a government witness was on the stand.

What was requested was the statement which that particular Government witness had given to a Government agent.

And this Court decided it was not within the purview of the statute because it was a summary, could not be barely attributed to the witness, and it would be unfair to impeach him with someone else’s statement.

Felix Frankfurter:

And what you’re trying here was to search the truthfulness of the statement of the narcotic agent in relation to Needelman in the light of what Needelman purportedly had said to him.

Herbert A. Warren, Jr.:

That’s right

Felix Frankfurter:

And the counsel for the defendant laying out the slightest foundation for suggestion that these notes were recordings of statements made, contemporaneously by Needelman to the agent.

Herbert A. Warren, Jr.:

The government agent had said that he made the notes during the course of his investigation.

That the —

Felix Frankfurter:

But investigation precedes any kind of talk with Needelman.

Herbert A. Warren, Jr.:

I do not limit — I say we’re entitled to the entire notes of the agent as far they relate to anything that he has testified to, and I do not limit it solely to his testimony as to his conversations with Dr. Needelman.

Felix Frankfurter:

I’m not denying that you might have been entitled to the — to these notes.

I’m suggesting you’re wholly outside the basis for making the automatic production of the notes through the Jencks statute.

My questions are entirely directed to that.

Herbert A. Warren, Jr.:

Yes, sir.

Felix Frankfurter:

Not at all a judgment anymore than anybody else can tell what’re in these notes.

I’m suggesting that’s not the necessary foundation laid for what the Jencks statute requires.

Herbert A. Warren, Jr.:

As far as the — along that line going to Jencks case itself, the action of the defense counsel in that case was a request that the trial judge examined the particular statement involved to see if they could be produced for his inspection, and that was all that he did.

Now, I think that just so under the same reasoning of the Jencks case, that’s all that’s necessary to be shown is that the witness has made a prior statement or prior notes relevant to his present testimony.

Once that is done, then he has established the basis for the production of the notes, under the statute, under the Jencks case itself.

The next move is then up to the Government to protect itself by asking the trial court to examine the notes and to excise any irrelevant portions before they are delivered to the defendant.

Now, proceeding to the next question as to the effect of the Goldman case and the effect to the Jencks case upon the Goldman case, first of all we noted that the Fifth Circuit in deciding this case, decided first of all that the notes were not within the scope of the statute, because as the Fifth Circuit said, the statute relates to formal statements, and statements which would be admissible in evidence.

Now, this Court and Palermo discarded both grounds, and said that the particular statements, that formality was not an issue in determining the producbility of the notes and the fact that they would not be admissible in evidence was also not a fact that could be considered.

So the basis of the Fifth Circuit in ruling that the notes were not within the statute did not conform with the ruling of this Court in Palermo.

The Fifth Circuit then proceeded to say that the rule of Goldman was not overruled by Jencks and that the trial court had the discretion to deny the request for the notes even though the witness had refreshed his recollection from the notes before coming to testify.

Now, in Goldman, I think it’s important to note the basis for the request of the contemporary notes of the agents.

I think that in that case as I read it, the basis of the request was founded solely upon the assumption that because the agent had refreshed his recollection with the notes, that they should be produced.

In the Jencks case, the basis for the production of the statements of the witness was the fact that the witness at a time when his memory was precious had made a statement, a record of the events which transpired, that the value of such a contemporaneous statement to the defense in impeaching the witness could not be overestimating.

The fact that the witness had already testified relieved any qualms the Court may feel as far as secrecy of government reports and investigative reports are concerned.

So, that even though the witness may not have referred to his report before coming to trial or had not referred to his report while he was in the courtroom.

That fact would not prevent the production of the prior statement of the witness.

So to that extent, I say that Jencks did overrule Goldman.

To make myself perhaps a little clearer, we say that if a witness has made a prior statement as to an event about which he is now testifying, if the defense has that prior statement available to him, he has a weapon at his command for impeaching the present testimony of that witness.

I think the basis for the ruling in the Jencks case is that it’s only fair that those prior statements be afforded to him.

Goldman, perhaps still has some vitality if the witness is refreshing his recollection from statements which are not his own.

He is referring to some photograph, or some report of someone else.

Herbert A. Warren, Jr.:

Then perhaps the trial court does have discretion as to whether or not the materials used for refreshing recollection should be produced.

In other words, what you’re saying if I get your argument is that to the extent that there, the statute doesn’t apply to, the extent in saying Jencks was broader — the Jencks ruling was broader than what the statute undertook to do, is that it?

Herbert A. Warren, Jr.:

I — I — my position first of all is that in this particular case, the contemporaneous notes of the agent are covered by the specific —

Yes, I understand that.

Herbert A. Warren, Jr.:

— language of the statute.

I say secondly that if you interpret the statute as relating solely to reports of witnesses given to government agents that the principles of Jencks would require the production of the contemporaneous notes of a Government agent.

And for the very the same reason, that the reports were required to be produced in Jencks.

That is the fact that the agent has made at a time when his memory was fresh a recordation of the event by which he is now testifying.

And since he has testified, there’s no basis for any evidentiary privilege to be claimed by the Government.

Or turning around the other away, that the statute, Congress undertook to deal with Jencks only partially.

Herbert A. Warren, Jr.:

Yes.

If — I still say — I’d still have to say —

Yes, I understand that.

Herbert A. Warren, Jr.:

Yes.

But I mean, if you’re — if you’re not right on that, then your position is, that Congress did not, in the Jencks statute, deal with all of Jencks.

Herbert A. Warren, Jr.:

That’s right, sir.

Yes.

Herbert A. Warren, Jr.:

One point about the question of harmless error.

This — this Court in the Rosenberg case decided last term, decided that even though the trial court was in error in not requiring a production under the statute of a particular document that it would be characterized as harmless error by virtue of the fact that the same information contained in the documents sought to be produced was already possessed by defense counsel.

That can not be said in this present case because we do not have the notes before us, we do not know what was in the notes, we do not know if the notes conform with the case reports, and we do not know if they conform with the testimony of the Agent Rudd.

Now, the case of Holmes versus United States in the Fourth Circuit which is cited in our brief, I’m pleased to say it takes the same position as the petitioner in this case.

First of all, that the notes, reports and memoranda of a government agent are within the literal meaning, literal wording of the statute, 18 U.S.C.Section 3500.

It goes further and says that since the notes were not preserved in the record that the court had not examined the notes, could not say as this Court did in Rosenberg that the defense was already possessed in the same information which they would’ve received at the document they produced.

Therefore, they could not characterize the error as harmless and reverse the case.

A similar case of Bradford versus United States, the Ninth Circuit involved the contemporaneous notes of an agent.

The court looked at the notes, but did not preserve the notes in the record, handed them back to the agent.

The Court of Appeals for the Ninth Circuit in applying the Jencks case said that is was error not to require the production of those notes because they were shown to be relevant to the testimony given by the agent.

And they could not say that it was harmless error because again, the notes had not been preserved in the record, they could not look at them and say that defense counsel was already possessed of the information wich he would have received.

So our position just in a nutshell is, an agent has made a prior statement, a prior record of an event which has transpired and has now become very important as to the guilt or innocence of the party being prosecuted.

The agent has testified.

Herbert A. Warren, Jr.:

There’s no further reason for the Government to assert that such prior statement of that agent should not be produced.

If it is produced, it is relevant to his testimony.

The value to the defense cannot be overestimating, particularly if that prior statement does not now conform to his present testimony.

A simple justice, I think would require that the document be made available to the defense.

If it’s the same as the agent’s testimony, no harm is done to the Government.

If it’s different then we do have the further step in ascertaining the truth of what actually occurred at the time that the agent made that record.

Potter Stewart:

In the Fourth Circuit case and the Ninth Circuit case, Holmes and Bradley, are the names right?

Herbert A. Warren, Jr.:

Right.

Potter Stewart:

Where the — where the so called statement of the same nature as those involved here, memoranda or memorandum written presumably for the —

Herbert A. Warren, Jr.:

Yes.

Potter Stewart:

— writers on that — they alone?

Herbert A. Warren, Jr.:

Yes, the Holmes case refers to them as the reports and memoranda of the agent.

The Bradford case refers to them as the notes of the agent.

Potter Stewart:

As to where the report would — might imply that this was something to be communicated, be reported to somebody else, might it not?

Herbert A. Warren, Jr.:

It might.

Yes, sir.

But in our view, the fact of communication is of no importance whatsoever unless the witness is someone other than the government agent who has communicated a statement to the government agent, and it is now in the possession of the Government.

The main point is that this government agent, at a time when his memory was fresh, made a record of the events as they transpired.

That is the important thing.

If he just stuck it in his pocket, never looked at it again until the time of trial, it’s just as important to the defense to have that statement to show that his present testimony does not conform to the report that he made when his memory was fresh.

Potter Stewart:

Did the two — those two Courts of Appeals that rely on the — on the literal provisions of a 35 — Section 3500 (b)?

Herbert A. Warren, Jr.:

The Holmes case relied upon the literal provisions.

The Holmes case also pointed out that this Court in the Palermo case did — was not confronted with a situation involving the notes of the agent, where the agent is himself the witness.

Under the Bradford case, they did mention the Palermo case and the statute.

However, they decided it upon the basis of the Jencks case rather than the statute, and noted that when it went back for trial that the procedures prescribed by the statute would be followed.

How long was the jury out in this case as to —

Herbert A. Warren, Jr.:

I don’t know, sir.

The record doesn’t show?

Herbert A. Warren, Jr.:

The record does not show it, no, sir.

I will — I’d like to emphasize again to the court that even in the trial judge’s opinion, it was a very slender case.

I noticed that.

Herbert A. Warren, Jr.:

If there are no further questions from the Court, I would reserve the rest of my time for rebuttal.

Earl Warren:

You may, just go ahead.

Mr. Davis.

Oscar H. Davis:

Mr. Chief Justice and may it please the Court.

As counsel has said, the only question which is before the Court is whether petitioner was entitled to receive the notes of the narcotic Agent Rudd, who testified as one of the government’s witness.

I would like to summarize what the Government’s position is because I think that though counsel has implicitly accepted it on argument today, his briefs had gone more far field.

Our position is that a defendant is not entitled to receive the un-communicated personal notes of a government agent testifying as a government witness.

We do not take the position, which we think was true in both the Bradford at least just a part of the materials, and certainly wholly in the Holmes case that a report made by an agent to his superiors or to other agents of the Government such as the case report which was produced in this case, is not producible because it is the product of a — of a Government agent’s position.

William J. Brennan, Jr.:

So may I ask then, Mr. Davis?

Is that to say that if these notes, whatever they were, had been delivered by this particular narcotics agent to his superior for safety, examination or what have you.

You would not say that the statute did not cover him?

Oscar H. Davis:

That’s right, because we would say then that by handing them over, I think not for safe keeping, but for examination, he was in — he was making a report to another government agent.

He was — he was telling the government agent, “Here is something that I’ve discovered, I want you to note that.”

William J. Brennan, Jr.:

Notes, just put in the —

Oscar H. Davis:

— in the — in the department’s —

William J. Brennan, Jr.:

— files.

Where they’re available to examination by his superior (Voice Overlap).

Oscar H. Davis:

That would be a different case.

William J. Brennan, Jr.:

Well, would that be one of communication?

Oscar H. Davis:

I’m not sure about that.

I — I’m — I’m not certain whether — if they will put them in — in department’s files, it might be because then they would be used by people including the United States Attorney in preparing for the case and other Government officials.

But here we think, we have a case which does not — go to that point.

William J. Brennan, Jr.:

Well, I know you’ve developed but I don’t quite understand why you put a distinction based on —

Oscar H. Davis:

Well I — I —

William J. Brennan, Jr.:

Then you take it particularly if it’s not more than — put it and then —

Oscar H. Davis:

No, because —

William J. Brennan, Jr.:

— and you require (Voice Overlap) —

Oscar H. Davis:

— when — when — I — I was trying to develop that either today or tomorrow, because we think there’s a great distinction as I will to try to point out that when a man writes something for himself, which he might just right down, one little jotting which reveals to him a whole mass of material because he’s only talking to himself, as Justice Frankfurter indicated.

There’s a great deal of difference when he’s writing for somebody else.

Oscar H. Davis:

When he leaves the private world that is in — own internal memory and so on, and he has to communicate to other people.

But when —

William J. Brennan, Jr.:

I just thought that — I’d just telling here is none of his notes, what’s in these notes.

Oscar H. Davis:

Well, and our — and our point on that is, that it was open to the defense counsel to ask many more question of — of the agent, that he — than he did ask.

And to ask for in camera inspection which he did not ask.

Now, I will say this to the Court that we would not make an argument based on the fact that these notes were un-communicated personal notes if we knew that they had been communicated to the Government.

We had made an inquiry.

We had been assured by the agent that these notes were retained in his personal possession, given to no other person in the Narcotics Bureau, or to the United States Attorney or his assistant.

William J. Brennan, Jr.:

Have you found out whether they still exist or not?

Oscar H. Davis:

I haven’t, Your Honor.

Earl Warren:

If he had made — if he had made a request for an in camera inspection of them, would he have been entitled to it?

Oscar H. Davis:

If the Court would have been entitled to — to —

Earl Warren:

No, I say if — if counsel had made the request for — for the Court to make an in camera inspection of it, would — would he been — had been entitled to have that?

Oscar H. Davis:

I think — I think that he would have first had to ask questions about, whether these notes were communicated to other people.

What kind of notes they were.

How were they made?

What do they deal with?

Were they made on the run?

Were they elaborate notes, or were they just mere fragmentary jottings and so forth.

Were they communicated to anybody else?

And whose custody had then been kept?

These are all questions which counsel could have asked with — without knowing anything more about these notes than the members of the Court, know now.

And then if a proper foundation had been laid, as a result of these questions and he had then asked the Court to — to inspect the notes in camera, depending upon the result of the — of the agent’s answers, the Court would have or would not have granted inspection.

I mean it would not have — would or would not have taken them into his own bosom to see whether they should be made available to the defense counsel.

Earl Warren:

Did he ask — he did ask the witness what — what appeared to be a very material thing about — about these fraudulent prescriptions and how many were filled and so forth.

And —

Oscar H. Davis:

Yes, we —

Earl Warren:

— witness answered that, “Well I can’t tell you unless I refresh my memory from my notes.”

Oscar H. Davis:

No, they were other notes, Mr. Justice.

Earl Warren:

I beg your pardon, with those notes —

Oscar H. Davis:

Not —

Earl Warren:

— that he took?

Oscar H. Davis:

Well, they were — he wasn’t — he didn’t say from his notes, I think they were the proscriptions themselves that he wanted to.

The only thing that appears about the notes, Mr. Chief Justice, is on the page 88, the lines which were read by — by defense, by petitioner’s counsel.

That’s — that and the motion which was made and denied on the page 93 are the only foundation or the only effort made by the defense counsel in this case to find out what the notes were about, what they dealt with, what kind they were, whether they were a narrative statement, whether they were just jottings, whether they were keywords like yesterday that — that had one word might reveal to some people.

People differ in their personalities and in their — their note-taking habits.

One word reveals a whole lot to somebody and — and other people are very much more careful, or — or shall I say more (Inaudible).

Earl Warren:

Let’s say he put it direct to me.

He said that the question by Mr. Roberts, “Let me ask you Mr. Rudd, excluding the (Inaaudible) proscriptions, do you recall that you found that there were 118 proscriptions issue?

Oscar H. Davis:

Where — where is that Mr. Chief —

Earl Warren:

That’s on page 83, at the top of page 83 —

Oscar H. Davis:

Yes.

Earl Warren:

— about four lines from the top.

“Do you recall that you found that were 118 proscriptions issued out of Dr. Needelman’s office, where in that period of time, and only 57 were filled by Medical Arts Pharmacy?”

Answer, “Before I can answer that question, I would have to examine the list of the figures in my report.

Oscar H. Davis:

Well the report —

Earl Warren:

“Now, you are saying something about 67 and 157 or 80, or something.

The number could be off, but I have you given you an estimate of the whole business excluding the (Inaudible) 30 or 40.

If you want me to examine my files, I will examine them and give you the figures.”

Oscar H. Davis:

That reference was to the case report which is a 22-page, single-space report which was made available to the defense attorney.

It’s 22 pages long, it’s a very elaborate document, it is on file in the — in the clerk’s office.

We have reprinted in the — in the record just the portion, beginning at page 138 just the portion of that case before it that summarizes the anticipated testimony of agent Rudd himself.

The preceding portions of the — of the report go at great length into the various exhibits that — that were appended to the report, the type of the documents that the agent had taken or it examined.

And then he — he then goes on and summarizes at great length, the — the testimony of the various witnesses not only himself, all the other witnesses, whom he expected that the United States could call at the trial.

And he includes his own anticipated testimony.

It goes beginning at — at the top part of page 138, it goes all the way to page 146 which is a summary or a statement of what Agent Rudd would himself testify to

Hugo L. Black:

Who wrote this phrase?

Oscar H. Davis:

The agent himself.

This is the agent’s report which was made available to the defense counsel, and as counsel has said, it wasn’t in our view, excuse me, by cross-examination by the defense.

Potter Stewart:

Mr. Davis, this motion that was denied as you pointed out, in page 93 of the record, can you tell us, that’s all there is (Voice Overlap) —

Oscar H. Davis:

That’s all there is.

Potter Stewart:

Is the motion, the one appear on the page 8 of the record?

Oscar H. Davis:

No, sir.

That’s a motion before trial.

Page 8 is the — is a motion which was made before trial in this case, on the — on this.

You see, first, there was a trial on the conspiracy —

Potter Stewart:

Yes.

Oscar H. Davis:

— in that which would — led to a mistrial.

Potter Stewart:

Yes.

Oscar H. Davis:

Then there was a later substantive indictment which was consolidated with the conspiracy indictment for retrial.

This motion was made prior to that retrial on the conspiracy indictment —

Potter Stewart:

That is the one on page 8.

Oscar H. Davis:

Page 8.

Potter Stewart:

Prior to the action.

Oscar H. Davis:

And it was denied.

Potter Stewart:

And?

Oscar H. Davis:

And there is no question, before the Court as to that the propriety of the denial of that motion —

Potter Stewart:

Of that —

Oscar H. Davis:

— which was before a trial.

Potter Stewart:

Alright.

Now, do we know of what the motion was that was denied on page 93?

Oscar H. Davis:

We know nothing more.

We know nothing more than — than appears in the record.

And before the close of the day, I would like to say that in the view of the Government, it is incumbent on the defense and on the appellant and on the petitioner in this — in this Court to — to present these issues in a way in which they can be decided either by the trial court or the appellate court.

That has been the rule which has been followed I think since the beginning of appellate proceedings that the party who is the moving party, the party who wants to attain — obtain some evidence or the party who was the appealing party.

You seek some —

William J. Brennan, Jr.:

Well may I ask, Mr. Davis, at page 93.

I would understand there’s an omission?

Oscar H. Davis:

No.

William J. Brennan, Jr.:

That there’s some —

Oscar H. Davis:

That’s all there is in the — in the record.

That’s all there is.

William J. Brennan, Jr.:

I know that that’s all there is.

But because a short recess of that, then this followed denial of motion protects the notes.

And my —

Oscar H. Davis:

That —

William J. Brennan, Jr.:

— question is, was there during that recess a motion for production of notes, colloquy thereon, which was not reproduced

Oscar H. Davis:

Mr Justice, the — this print, is based upon a mimeograph in the Court of Appeals which is based upon the reporter’s testimony of this trial.

And that’s all we have.

The word denial for the — of motion for production notes, was I think inserted by the clerk of this Court at the printing.

William J. Brennan, Jr.:

Oh, is that in this Court?

Oscar H. Davis:

I think it was inserted by the clerk (Voice Overlap) —

Felix Frankfurter:

Where is this in the print?

Potter Stewart:

It’s 93.

Hugo L. Black:

93.

Felix Frankfurter:

The —

Hugo L. Black:

It’s not in that, in record there.

Oscar H. Davis:

I think — I think not, sir.

Felix Frankfurter:

Isn’t there anything?

Oscar H. Davis:

There’s nothing except what you see here.

Therefore —

Alright.

Oscar H. Davis:

— and a short recess was taking place.

Felix Frankfurter:

No, no, no.

What — what I want to know is what — what is then the stenographic administrative trial which indicates the motion was denied?

Oscar H. Davis:

This is all there is.

This is the (Voice Overlap) —

Felix Frankfurter:

But you’ve just said, this was inserted by our clerk.

Oscar H. Davis:

Just to — just the — the line, denial of motion for production.

Felix Frankfurter:

Now, I ask again.

Felix Frankfurter:

Was there a denial of a motion in the —

Oscar H. Davis:

The next sentence —

Felix Frankfurter:

— stenographic minutes?

Oscar H. Davis:

The next sentence of the Court, “I will deny the request for the notes.”

William J. Brennan, Jr.:

Well, where is the request for the notes to which they defined they — they filed request.

Oscar H. Davis:

There — there is nothing, Mr. Justice.

William J. Brennan, Jr.:

Well, there must have been a request denied.

Oscar H. Davis:

We’ll admit, it was apparently made off the record, not taken down by the recorder, either in chambers or without the jury being —

William J. Brennan, Jr.:

Well, may I ask because you have already answered Justice Stewart that the motion at page 8 was denied.

Oscar H. Davis:

That’s right.

William J. Brennan, Jr.:

I don’t find it in the record any action of the Court denying that motion.

Oscar H. Davis:

Yes.

The next page.

William J. Brennan, Jr.:

Where?

Oscar H. Davis:

Page 9.

At the bottom that the motion for production —

William J. Brennan, Jr.:

Oh yes.

Oscar H. Davis:

— inspection.

William J. Brennan, Jr.:

Yes, thank you.

Felix Frankfurter:

I’m — I’m sorry, that was just the caption there for the headline.

Oscar H. Davis:

That’s right, I — I yes, Mr. Justice, the headline was just considered.

Tom C. Clark:

That’s in not in the (Inaudible)

Oscar H. Davis:

I believe not.

Felix Frankfurter:

Does — does our clerk in putting this, the running, the printed lines?

Oscar H. Davis:

I don’t know, Mr. Justice.

Felix Frankfurter:

Direct examination —

Oscar H. Davis:

I think some (Voice Overlap) —

Felix Frankfurter:

I suppose those (Voice Overlap) —

Oscar H. Davis:

For the — for these subdivisions.

Felix Frankfurter:

(Voice Overlap) would you mind looking that up — would you mind looking that up

Oscar H. Davis:

Yes.

Felix Frankfurter:

In your smallest view of what there is, the stenographic —

Oscar H. Davis:

We don’t have the stenograph —

Felix Frankfurter:

Well, what there is with this —

Oscar H. Davis:

We have —

Felix Frankfurter:

(Voice Overlap) this is current here —

Oscar H. Davis:

— Yes.

Felix Frankfurter:

— to review what was before the Court of Appeals.

Oscar H. Davis:

Well the reason I say —

Felix Frankfurter:

When the Court of Appeals was reviewing what was before the District Court.

Oscar H. Davis:

The reason I say that I think the clerk put in that catch line is that on Saturday, I came up and looked at the original record and that is included in pencil in the — in the — that phrase “denial of motion is included” in pencil and in the other– in the Court’s copies —

William J. Brennan, Jr.:

Well, Mr. Davis, that — that — It would appear that during this recess, there was some kind of motion made and there must have been some argument attached to it.

Oscar H. Davis:

I presume so, but I presume —

William J. Brennan, Jr.:

And we get ruling but we don’t get the — the motion, we don’t know what the forms of request was?

Oscar H. Davis:

That is right.

William J. Brennan, Jr.:

All of the omissions, do you suggest, the deficiency is just here and you conspire to prevent that.

Oscar H. Davis:

I think it’s impossible to have that because I think that what you have is the full stenographic print.

William J. Brennan, Jr.:

And it was not recorded.

Oscar H. Davis:

I think it was not recorded by the stenographer.

I think there was not just an —

Felix Frankfurter:

And it’s more than —

Oscar H. Davis:

— an omission.

Felix Frankfurter:

It’s more than that.

Of course the stenographer couldn’t record anything that didn’t take place.

There was no request by the defendant counsel that has — appear on the record.

For these — in these reasons, we’ve made this and this motion.

Oscar H. Davis:

That’s right.

Felix Frankfurter:

And that was denied, we accept.

Oscar H. Davis:

There is —

Felix Frankfurter:

There’s nothing to prevent that being done.

Oscar H. Davis:

There is nothing and — and the rule of this Court has always been and the rule of all other courts, as far as I know.

That it is incumbent on the party who — who wishes to obtain evidence to lay the foundation, make sure that the — the record reveals his position and the — and — and to see that it gets into the record for appellate proceedings.

Felix Frankfurter:

And if —

Oscar H. Davis:

And that was not done.

Felix Frankfurter:

And for the very good reason that it — that if other things had been done, the Court Appeals might have reached another result.

Oscar H. Davis:

That — that’s right.

And in fact — in — in a case called Palmer against Hoffman in this Court in 318 U.S. which was an earlier case involving production of reports not in that case to the Government but to the other side’s counsel.

The Court held in the second part of its opinion 318 U.S. at page 116 that the petitioner who had not got into the record the document that he claimed should have been a — he should been allowed inspection of had to bear the burden of the fact that — that the Court couldn’t pass upon it, and that the Court couldn’t pass upon it, because he had not got it put into the record.

This petitioner did not get — put into the record the note, or make an effort to do — do so.

In the Ninth Circuit case, the Bradford case to which counsel referred, the judge refused to put it in the record.

He gave it back to the government agent.

He said he wouldn’t put into the record and of course if that happened, the petitioner has protected himself.

He has done what he could.

But this petitioner did not make any effort to — to have the judge put — see this document or put it into the record and preserve it for the use of this Court or the Court of Appeals.

Now —

Earl Warren:

I’ve already —

Hugo L. Black:

Does the bureau — does the Bureau of Public — pubic regulation with regards to the reports that have to be made by its agents.

Oscar H. Davis:

I don’t believe so, the Bureau of Narcotics.

Hugo L. Black:

Yes.

Oscar H. Davis:

I don’t believe so, but we are — we have in part —

Hugo L. Black:

Just — or public regulations or references —

Oscar H. Davis:

How —

Hugo L. Black:

— the corrector shall be kept of investigations of cases —

Oscar H. Davis:

I — I believe not.

There maybe internal working arrangements.

But I do understand this, because we made inquiry that personal notes of this kind can be retained by the agent, and need not be sent on to his superior’s or his agents.

And as I said before, we have been told by this agent that he did retain these notes.

So we’re not arguing a false issue and we talked saying that these notes were privately retained and not omitted.