United States v. Carlton E. Bryant, United States of America v. William E. Turner ( 1971 )

McGOWAN, Circuit Judge

(concurring) :

I join in the court’s disposition of this appeal, but I am perhaps not as sanguine as my colleagues that the proceedings on remand will illuminate what happened here more completely than does the present record. Agent Warden, in his testimony at the suppression hearing, seems to me to have given a forthright and by no means incredible account of the events in question, and I doubt that further pursuit of the matter will add much to what we now know of the fate of the tape. This is not to say that the premises on which he proceeded were soundly conceived as a matter of law, but his conduct strikes me as far from having a sinister cast. Thus it is that we will, in all probability, continue to confront on essentially the same terms the issue we now faee, namely, whether the sanction of suppression is either necessary or appropriate under the circumstances revealed by this record.

Warden testified quite explicitly that he distinguished between tapes of conversations participated in by one of the Bureau’s own agents, on the one hand, and third-party informers, on the other. In the latter case, it was his practice to preserve the tape with care for future use as corroborating evidence at trial. In the case of his own men, his single purpose was to assure their personal safety in the exposed and dangerous position they occupied.¹ Once the danger was past, the tape, in his view, had no further use, since he did not consider it necessary as corroboration of the agent’s testimony at trial as to who said what. Tapes recorded in these circumstances were, so he testified, frequently erased and used again, and this might well have been what happened to the tape in question.²

When Agent Pope was placed in the hotel room by himself to meet with dangerous characters in the narcotics business, Warden, not surprisingly, thought it his responsibility to give him all possible protection. To this end, an adjoining room was taken, and a hole drilled in the wall. A listening device was placed in the hole, and agents in the next room listened by means of earphones. The device used was unitary in character, and, in addition to the individual earphones, its operation included recording on tape.³ If the overheard conversations took a turn which indicated personal danger to Pope, the agents in the adjoining room could move speedily to his aid. The tape, as Warden conceived it, was purely incidental to this objective, and had no further utility once the interview had terminated without harm to Pope.

What Warden failed to recognize was that the tape became a piece of real evidence having “materiality to the preparation of [appellant’s] defense” within the meaning of Rule 16(b), Fed.R.Crim. P. As such, it was clearly subject to discovery by the persons against whom Pope would testify at trial.⁴ Any knowledgeable lawyer would have told him that it should have been preserved against the possibility that such discovery would be sought, as it was here. The court’s opinion today rightly disavows for the future any notion that preservation serves no purpose or that it is not an obligation of law enforcement authorities. With notice so given, sanctions in the future will normally be operative. We still have to decide what to do about this case..

Although I doubt that further inquiry will enlarge materially our knowledge of Warden’s motivations or of what actually happened to the tape, it may be of some utility in ventilating how far the Bureau goes in providing prior legal planning and supervisory scrutiny of its investigative operations. If Warden did not have this kind of legal help, then this is only another instance of the deplorably familiar lack of forward legal planning in law enforcement. Corporations and private persons get into trouble when they forego this kind of assistance. So do public authorities.

The hearing on remand should also be informative as to why the prosecutor was not more alert to the legal significance of the existence or non-existence of the tape. Had he moved sooner, the tape might still have been found in Warden’s desk, unerased. When the matter was first raised seven months before trial, the prosecutor’s reaction was the stock one of automatically opposing discovery. Having succeeded in that misconceived gambit, he appears to have done nothing more. This, too, is not the kind of legal help that operational law enforcement personnel are entitled to have, even after the fact.

1 . The following testimony by- Agent Warden is illustrative of his repeated assertions regarding the function of surveillance :

“Question: Now, what was the purpose of your wanting to overhear conversations in the room [the undercover agent] occupied?

Answer: It was strictly for the protection of [the undercover agent]. « * *

* * * * *

Question: Now, when you originally set up this tape recorder, did you intend to use this for the purpose of gathering evidence against any particular person?

Answer: The only reason for using the tape recorder was to make sure to know what was going on and for the agent’s safety.”

He also testified that the persons with whom these large narcotics transactions were to be conducted were “known to carry weapons.”

2 . When asked what could have happened to the recording made here, Agent Warden responded,

“in the last year, we have had other investigations going on and it is very common practice, if you are not saving the tape, to run the tape through again, on the machine, and it erases and records.”

3 . The description of the recording mechanism indicates that it was a single operative unit composed of a sensitive microphone and earphone both connected to the recorder. The inquiry on remand may disclose that, at least with this particular type of unit, the microphone and hearing apparatus could not be utilized to perform a surveillance function independently of the recording component. If that is the case, it would go far in explaining why a recording was made even though the sole purpose of surveillance was to protect the agent.

4 . It may also fall within the ambit of Rule 16(a), although the latter sub-section does not, in my reading of it, fit this situation quite as comfortably as does 16(b). See United States v. Iovinelli, 276 F.Supp. 629, 631-632 (N.D.Ill.1967), In any event, the tape was clearly subject to discovery under the Rules of Criminal Procedure, and we need not, in my view, strain to find in the Constitution authority to compel its production or to impose the sanctions for failure to do so appropriate to the achievement of essential justice in this case.