Opinion
No. 67 Cr. 245.
July 26, 1967.
Robert M. Morgenthau, U.S. Atty., S.D.N.Y., by Frank Tuerkheimer, Asst. U.S. Atty., for the Government.
Moses L. Kove, New York City, for defendants.
Defendants' motion to inspect and copy or photograph pursuant to Rule 16(a) of the Federal Rules of Criminal Procedure, is granted.
The defendants made a motion to "inspect and copy or photograph "any relevant * * * written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the government * * *."
The government answered that there are no written statements made by the defendants and that the only written statements in its possession are those of Agents of the Internal Revenue Service entitled Memoranda of Conference, made a day to six weeks after interviews of the defendants and prepared from longhand notes taken during the interviews.
The defendants allege that such statements are within the purview of Rule 16(a) and are subject to discovery by the defendants. The government, on the other hand, alleges that these statements may become available to the defendants only pursuant to Section 3500 of Title 18 of the United States Code and that this production under those circumstances must await the testimony of the pertinent witness.
However, it has been held that where a government agent's memorandum sets forth in detail and at length, the substance of statements attributed to the defendant, even if it is not verbatim, it is a recorded summary of statements attributed to the defendant in the possession, custody or control of the government and is subject to inspection by the defendant pursuant to Rule 16(a). United States v. Scharf, 267 F. Supp. 19 (S.D.N Y 1967).
Therefore, this court orders the United States Attorney's office to turn over to the defendants, for the purpose of inspection and copying, any part, and only that part, of any government agent's memorandum which sets forth in detail and at length, the substance of statements attributed to the defendant.
So ordered.