privilege issue surfaced.

Production was aue without acknowledging

that the documents had just been prepared, even though from the face of the documents one could erroneously conclude that the documents were prepared contemporaneously. These errors were exacerbated by erroneous testimony at the evidentiary hearing given by the Special Agent, Revenue Agent, and AUSA, to which the Court now turns.

The second major area of concern to the Court involves the repeated untrue and incorrect testimony which occurred during the course of the proceedings. The impact of such testimony to this Court, sitting as fact-finder for the evidentiary hearing, cannot be underestimated. Based on the erroneous testimony given,

as uncovered during the hearing, the Court simply cannot put
its complete trust and confidence in certain Government witnesses.
Untrue testimony occurred in connection with the documents created
and altered after the motion to dismiss was filed, discussed

above.
Untrue testimony also occurred in connection with the
interview of Sandra Poe Wilkins on November 22, 1983, and with
the use of the typewritten memorandum subsequently prepared.
Other examples of such testimony will be set forth as the Court
continues to make its findings of fact. The sueer magnitude
of the erroneous testimony prejudiced the defendants and the

Court.

The Special Agent who was in charge of the investigation beginning in the Fall of 1983 took the witness stand for the

first time on June 12, 1984. This agent continued his testimony when the hearings resumed in September, 1984. The testimony was wrong in numerous respects. When the agent began to testify in June, the Omni defendants immediately sought to date the preparation of the ten documents. Hany of these documents were dictated, prepared, or modified by the agent within the month prior to his testimony. He repeatedly and vociferously, without hesitation or doubt, indicated several of the documents had been prepared in 1983. This testimony was incorrect. The agent also was unwilling to testify as to the dates of preparation of other documents. The Court finds that the agent must have been able to recall documents he nad prepared within several weeks of his testimony, and this testimony therefore was inaccurate, and misleading as well. As the evidence unfolded it became clear that at least nine, if not all ten, of the documents in question had been prepared no earlier than May, 1984.

Although tedious, it is necessary for the Court to recount some of the agent's untrue or misleading testimony with regard to the interview memoranda.

Defense counsel asked the Special Agent when Defendants' Exhibit 4, the memorandum of interview of William Green that occurred on September 15, 1983, was prepared. The agent responded:

"I can't say exactly. It wouldn't have been within a day or

two of the interview .

I don't recall specifically when it was prepared." The questioning continued:

Q: Well was it prepared since the first of the year
[1984]?

A:

I believe that this one was I believe that this particular memorandum was propably prepared sometime this year, but I can't be certain of that.

Q: Was it prepared since the return of the indictment in this case?

A: I believe it may have been, but again I can't say with certainty

Q: Was there a reason why this memorandum was prepared after the return of the indictment?

A: No, nothing particularly comes to mind as to why it would have been specifically after the indictment. This testimony was wrong and incomplete; the agent prepared the memorandum in Hay, 1984.

"This

Testimony was also incorrect with regard to the preparation of the memorandum of interview of Green that had occurred on August 24, 1983 (Defendants' Exhibit 5). When questioned about the date of its preparation, the Special Agent responded: memorandum, I believe, was actually prepared by [the Revenue Agent] and I am not certain when this one was prepared." fact, the Special Agent played a significant role in the editing process along with the Revenue Agent when the document was revised in May, 1984.

In

Defense counsel asked the Special Agent about the preparation of the Campoell interview memorandum (Defendants' Exhibit 6), which was later proven to have been generated by the agent on May 29, 1984, only two weeks prior to his testimony:

Q:

A:

When was this memorandum prepared?

Again, I can't say with certainty, Hr. Simon, as to an exact date. In this particular interview, I even had a problem narrowing it down as to some time.

It would have been, let me explain it this way il I
might, it wouldn't „ave been a way or two alter the
interview [which had been conducted on July 25, 1903].
It probably was several months after that, Jut I sellove
it was witnin say several ont.s of that interview.

This testimony was repeated on several occasions.

Defense counsel inquired aout the preparation of the seconu Wilkins interview memorandum (Defendants' Exhibit 7). The interview occurred on November 23, 1983. The agent testified wrongly about When the interview memorandum was prepared: "I think that this was [preparea] just prior to Thanksgiving weekend and that memoranuum was dictated, I would say, the following londay or Tuesday [November 28, or 25, 1983]." This particular document, in fact, was initially prepared between Hay 14 and Hay 18, 1984. Similar testimony was given with regard to the other Wilkins interview memorandum (Defendants' Exhibit 8), pertaining to the interview on November 22, 1533. When asked when the memorandum was dictated, the Special Agent testifieu: "Approximately the same time as the other memorandum [tle Noveler 23rd interview of Wilkins], I believe. This would have been within a couple of days of the following week. The I would say within approximately a week

memorandum was

of that time the memorandum was prepared." Defendants' Exhibit 8, in fact, was revised in May, 1984 from a preexisting memorandum. Similar misstatements were made with regard to the Redler

interview memoranda: "[Exhibit 91 was prepared relatively soon after the interview itself, within a week or ten days [September 14-17, 1583]." Furthermore, Exhibit 11

A:

would have been prepared probably at approximately the same time as [Exhibit 9] was prepared.

Q: So it was prepared approximately one year after
the date of the interview [i.e., August, 1963]?

A: I believe that is correct.

The agent, in fact, dictated both memoranda on liay 3, 1984.

Finally, the agent was asked by defense counsel about the preparation of the Russell interview memorandum based on a February 23, 1983 interview (Defendants' Exhibit 12). That memorandum

was,

1584.

in fact, prepared from a preexisting memorandum in liay,

A: I don't believe so. I believe this memorandum

was prepared prior to June of '83 and it is dated February 23, '83.

Q:

'83?

Sometime prior to June but approximately June of

2: No. I am saying between February and June of '83. The agent further failed to inform the Court of a preexisting memorandum.

The Government minimizes this testimony. According to the Government, the argument de by defendants is that the memoranda were "passed off" as contemporaneous. The Government states that this argument cannot be true. The Government supports its argument by noting that two of the memoranda show on their face that they are not contemporaneous and are, instead, compilations (2.4., Defendants' Exhibits 21 & 35). Although the Government likely did not intend to mislead defense counsel and the Court

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