United States v. Manuel Zurita

369 F.2d 474

• Court: Court of Appeals for the Seventh Circuit
• Decided: December 20, 1966
• Docket: 15620_1
• Status: Published

Opinions

HASTINGS, Chief Judge.

Appellant, Manuel Zurita, was found guilty by a jury of violation of 18 U.S. C.A. § 2113(d)¹, bank robbery by the use of a dangerous weapon. Judgment of conviction was entered by the trial court, and Zurita was sentenced to serve a period not to exceed twenty-four years.

On appeal, it is asserted that the trial court erred in denying Zurita’s motion to produce a composite picture drawn by an FBI agent during an interview with two principal Government witnesses and that the trial court further erred in permitting the Government to cross-examine, on a collateral issue and over objection, one of Zurita’s witnesses, his wife.

On the evening of November 19, 1961, three men entered the residence of the branch manager of the Gary Trust and Savings Bank, Gary, Indiana, by means of a subterfuge. During the night, they held the manager and his wife hostage at gunpoint. The next morning, two of the men accompanied the manager to the bank and robbed it while the other man remained with the manager’s wife.

During the investigation of the robbery, the bank manager and his wife aided an FBI agent as he drew a composite picture of the robbers by means of their descriptions and adoption of features in photographs of other men. The bank manager’s wife testified:

“We had described the fellows as best we could — not together, individually — and then we looked at various pictures and we chose one, and perhaps it had a nose like one of the men, so we would mention that. We did this separately, though, we didn’t do this together. Then we would choose another one that perhaps had eyes that looked, or eyebrows that were the same shape; in this way he was able to draw some kind of a picture.”

During Zurita’s trial, the bank manager and his wife identified Zurita in open court as one of the robbers. Another defendant, who was indicted with Zurita, but who entered a guilty plea-prior to Zurita’s trial, also identified Zurita as an armed participant in the robbery.

The composite drawing of the FBI agent was not introduced in evidence by the Government. Zurita, arguing that the drawing was a statement of the bank manager ana his wife, requested the Government to produce it under 18 U.S.C.A. § 3500. This section, which was intended for impeachment purposes, in essence provides that in criminal prosecutions statements of a Government witness in the possession of the Government shall be made available to the defense, insofar as they relate to the testimony of the Government witness. The trial court, however, ruled that the drawing was inadmissible as not being within the definition of statements as found in 18 U.S. C.A. § 3500(e).

18 U.S.C.A. § 3500(e) defines “statement” as:

“(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or

“(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.”

The question of the producibility of drawings under § 3500 is novel, although a case in which there is some similarity of facts is Ahlstedt v. United States, 5 Cir., 325 F.2d 257 (1963). There the defense attempted to have the Government produce numerous photographs which were shown to Government agents in an unsuccessful attempt to identify the participants in a robbery. It was held that § 3500 did not apply to miscellaneous photographs.²

There can be no question that, literally, a drawing is not a written statement and is not a recording “which is a substantially verbatim recital of an oral statement.” But this does not resolve the question whether, notwithstanding a literal interpretation of the statutory language, a drawing may be the kind of information Congress intended to have produced under § 3500.

There is nothing in the cited cases or legislative history to indicate that § 3500 was ever conceived to reach drawings. The legislative history and Supreme Court interpretation of § 3500 disclose that Congress and the Supreme Court have considered § 3500 only in relation to verbal communications producible as such.

In Palermo v. United States, 360 U.S. 343, 355, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), the Supreme Court held that a six hundred word memorandum of a Government agent, selecting parts of a three and one-half hour interrogation of a Government witness, was not a statement within the reach of 18 U.S.C.A. § 3500.

Palermo was the Supreme Court’s first interpretation of § 3500, the so-called “Jencks Act”, legislation which was prompted by the Supreme Court’s decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). The Court in Palermo had occasion to explicate the construction:of the new statute at length. Reviewing the Congressional purpose and legislative history, the Court said:

“It is clear that Congress was concerned that only those statements which could properly be called the witness’ own words should be made available to the defense for purposes of impeachment. It was important that the statement could fairly be deemed to reflect fully and without distortion what had been said to the government agent. Distortion can be a product of selectivity as well as the conscious or inadvertent infusion of the recorder’s opinions or impressions. It is clear from the continuous congressional emphasis on ‘substantially verbatim recital,’ and ‘continuous, narrative statements made by the witness recorded verbatim, or nearly so * * * * * that the legislation was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital. * * *. We think it consistent with this legislative history, and with the generally restrictive terms of the statutory provision, to require that summaries of an oral statement which evidence substantial selection of material, or which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent’s interpretations or impressions.” Palermo, supra, 360 U.S. at 352-353, 79 S.Ct. at 1224-1225. [Emphasis added.]

Section 3500(e) (1) is limited expressly to written statements, while § 3500(e) (2) is directed to recordings or reproductions of statements and not to representations of statements. Palermo teaches that the statutory language is not to be given a broad interpretation, for summaries by a Government agent, which may quite accurately reveal the substance or meaning of a Government witness’ statements, are not producible. Thus, even assuming a drawing fully faithful to a description, it is nonetheless not a recording or transcription of an oral statement, for it does not, as a summary does not, reproduce the statement. Rather, it merely contains and represents “the agent’s interpretations or impressions.”

Although the aim of the statute is the production of only those statements which fully reveal what was said to a Government agent, the means the statute employs to insure full revelation is recordation or reproduction. The test, therefore, is not identity of meaning or accuracy of representation, but substantial fidelity of recordation or reproduction. See Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963).

A picture may be worth a thousand words, but it does not record those words or reproduce them or, indeed, even indicate what they are. Drawing is selective and interpretive, and an artist, even when attempting to copy or to work from another’s direction, is not merely a stenographer with a peculiar system of shorthand. His work contains and reveals his impressions from information given to him.

While a composite drawing made from photographs and descriptions may be some evidence of words, it cannot be considered a recordation or reproduction of words. We do not doubt that such a drawing may, in certain circumstances, be an even better means of identification than verbal descriptions of witnesses. The question here, however, is not the best means of identification, but the meaning and reach of § 3500(e).

Although it may be reasonable to conclude that a drawing such as that in issue should be subject to production, particularly if approved by a witness, the ordinary use of the words of § 3500, and the emphasis of its coverage, in view of the legislative history³ and judicial interpretation, simply do not include drawings. If this is a defect or omission in the statutory language, the remedy is not with the court to expand the usual meaning of the words of the statute, but with Congress. We hold the composite drawing is not within the meaning of and is not producible under § 3500. The trial court did not err in so ruling.

A second ground of error is urged. The Government attorney was permitted, over objection and on cross-examination, to ask Zurita’s wife whether Zurita owned a 1954 Mercury, whether the Mercury was traded in on a 1960 Cadillac, and whether prior to November 19, 1961, Zurita had a 1954 Mercury at his disposal. All of these questions were answered negatively. While the questions were apparently asked for impeachment purposes, the Government failed to produce evidence as to Zurita’s ownership or possession of any car. It is asserted that the absence of impeaching evidence made the questions improper and that the effect of putting the questions prejudiced Zurita.

Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.A. provides that:

“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Respecting harmless error, the Supreme Court has said:

“And the question is, not were they [the jury] right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision. * * *.

* * * * * *

“ * * *. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 1247-1248, 90 L.Ed. 1557 (1946).

This standard has recently been succinctly reformulated by a distinguished jurist:

“An error is prejudicial, not harmless, if there is credible risk that it influenced the trier of fact to arrive at one finding when there was evidence in the record to support another.” Traynor, 29 U. of Chi.L.Rev. 223, 227 (1962).

Under this standard, we hold that error, if any, involved in permitting the Government to cross-examine Zurita’s wife as it did was harmless.

The evidence of Zurita’s guilt as reflected in the testimony of the bank branch manager, his wife and one of Zurita’s accomplices was overwhelming. Substantial justice has been done.

Max Cohen, a reputable member of the Gary, Indiana bar, represented appellant in this appeal under appointment by this court pursuant to the Criminal Justice Act of 1964. We commend Mr. Cohen for his able and effective services in this case.

The judgment of conviction is affirmed.

Affirmed.

1 . “Whoever, in. committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section [bank robbery or attempted bank robbery], assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.” 18 U.S.C.A. § 2113(d).

2 . See also United States v. Sopher, 7 Cir., 362 F.2d 523 (1966), wherein a transcript and tape recording were held not producible under § 3500.

3 . See Appendices A and B to the opinion of the Court in Palermo v. United States, 360 U.S. 343, at 356-360, 79 S.Ct. 1217, 3 L.Ed.2d 12S7 (1959). For the full legislative history of the Act, see 2 U.S.Code Congressional and Administrative News, p. 1861 (1957).