dissenting.
In this case an FBI Agent, John F. Toomey, Jr., conducted a 30-minute interview of Dominic Staula, a witness to the bank- robbery involved. The Special Agent asked Staula some questions and while they were being answered jotted down notes. Upon completion of the interview the Special Agent orally recited to Staula the substance of the interview, ■ refreshing his memory from his notes as he did so. He then asked Staula if the recitation was correct and received an affirmative reply. This was at noon. About nine o’clock that night the Special Agent transcribed the report on a dictating machine for subsequent typing, using the note's, as well as his memory, for the dictation. After the report was *498typed by a secretary, working entirely from the transcription, he checked its accuracy and then destroyed the notes.
The Court holds the “oral recitation” to be “a written statement made by said witness [Staula] and . '. .. adopted ... by him,” within the purview of 18 U. S. C. § 3500 (e)(1). It reaches this result via a construction reminiscent .of the Rube Goldberg cartoons, basing its holding upon the following conclusions: (1) the Special Agent may be fairly deemed to have read his notes back to Staula, since “it is not seriously suggested that there was a material variance or inconsistency”; (2) Staula approved and thereby adopted this “reading” of the. notes; and (3) the Special Agent reduced the notes to narrative in his interview report which, as the trial court found, was “almost in ipsissima verba the narrative” the Special Agent had recited to Staula. The Court thus transmutes the interview report into a written statement made by Staula and adopted by him and strikes down the conviction' because the interview report was not produced at the trial upon the request of the defense.
This conclusion, however, will not bear analysis. Even though Staula’s approval ofthe oral recitation as correct be deemed arguendo an. adoption by him, the oral recitation, nevertheless, was not ■ a written statement within the meaning of the- Jencks Act, 18 U. S. C. § 3500. The interview report of the Special Agent was written by the agent, not Staula, and was never approved by Staula ■ in its written form. ' The statute applies, to “a written statement made by said witness.” At the very least the “written statement”- referred to by the Act is one which is, if not written by the witness, adopted by him in its final written form. The notes to which the'agent referred in preparing his report do not rise to the dignity of a statement. They were, as’the trial court found, “jottings” of the Special Agent in aid of his memory for purposes of *499later dictating his formal report. These notes were not in narrative form, they were not read to Staula by the Special Agent, nor did Staula read them himself or initial or sign them. The Special Agent merely recounted to Staula a narrative of the events which the latter had described. It is true that in só doing he referred to his notes from time to time, but the evidence is clear that the notes Were not included verbatim in this recitation. Every lawyer — indeed every layman experienced in the taking of interviews — knows full well that it is extremely unlikely that any two narratives, even though prepared from identical notes, will be alike. • Likewise the common experience of all of us belies the conclusion that the interview report, was “almost in ipsissima verba the narrative” recited by the Special Agent to Staula. But even, if it were, the statute does not cover a written report such as we have here, prepared from the agent’s memory, as well as his notes, some nine hours subsequent to the interview and neither read by or to the witness npr shown to him prior to what the Court terms his “adoption” of it.
The Court reads the trial court’s .findings as holding that' the Special Agent, in presenting the information for Staula’s comments after the interview, adhered to the precise words of the notes, so far as practical. But the testimony is to the contrary and is unequivocal.* It then *500holds that this finding is not clearly erroneous. But the simple answer to this is that the finding has no support in the record. In addition, there are three vital flaws in the adoption of this inference — and that is all that it is — that the oral narrative to Staula was identical to that related nine hours later in the interview report. The trial judge stated what jvas said to be Toomey’s testimony that “anyone who heard Staula and had Toomey’s jottings would have dictated the same words.” (Emphasis supplied.) 199 F. Supp. 905, 907. But-this oyerlooks (1) the limitation Toomey put on the word “anyone” i. e., anyone who had “the same knowledge of the case”; (2) that. Toomey did not say that the interview report was in “the same words” as the narrative to Staula but twice *501repeated in. his testimony that the language of the interview report was “substantially the same thing” he had related to Staula; and (3) the notes made by Toomey had not been “just checked with Staula,” ibid., for it had been nine hours since Toomey had even seen him. Hence the findings of the Court of Appeals were entirely correct and those of the trial judge clearly erroneous. This is made as clear as crystal in the concurring opinion of Judge Aldrich. As he said, it would be a “surprising coincidence” that “the checking back with a witness at noontime of a consolidation of jottings and memory, and the dictation of a report in the evening, would result in the *502identity inferred by the court.” 303 F. 2d 747, 751. Even the expertise of an experienced Special Agent of the FBI does not rescue such a conclusion from beyond credulity.
As we said in Palermo v. United States, 360 U. S. 343, 350 (1959), the Congress felt that it would “be grossly unfair to allow the defense to use statements to impeach á witness which could not fairly be said to be the witness’ own rather than the product of the investigator’s selections, interpretations and interpolations.” This is exactly what the Court is doing today. Extension of the statute to include such reports can only result in mischief, permitting a skillful defense lawyer to repudiate and destroy a witness and obstruct the administration of justice. I therefore dissent.
“Q. Did you, Mr. Toomey, write down what Mr. Staula told you at the interview?
“A. I took notes concerning the information that he fhrnished to me.” Cross-examination of Special Agent Toomey, Transcript of ■Record, p. 4.
i “Q. Mr. Toomey, did you give Mr. Staula the paper that you made your potes on to read over?
“[fob 12] A. I did not, sir.
“Q. Did you read it back to Mr. Staula?
*500“A. As I previously stated, I took notes and I did not read the notes back to him verbatim.” Ibid.
“The Court: The witness said he went over his n'otes.
“Did you mean to infer that you read your notes over [fol. 54] to Mr. Staula?
“The WitNess: No, sir, I did not.
“The Court: You looked at them and then you repeated what he said — you didn’t read them over to him?
“The Witness: No.
“The Court: He didn’t see them?
“The Witness: No, your .Honor.
“The Court: They were in your possession so he could not have done that.
“Q. There was the desk in the front of where both of you people were sitting?
“A. Yes.
“Q. Your notes contained the whole story supplied to you by Mr. Staula?
“A. That is correct.
“Q. And it was. vital, wasn’t it, Mr. Toomey, that' what was contained in your notes be Mr. Staula’s story?
“A. That is correct.
“Q. The method you employed to double cheek was to read your notes, of what Mr. Staula had-told you aloud and get Mr. Staula to *501agree with you that that was accurate — the information that you had for future use, that is so isn’t it, Mr. Toomey?
“[fol. 55] A. Not exactly. I did not read them back to the witness. I went over the story again, refreshing my memory by referring to my notes.
“Q. That is right — that is what your memory was, which was on the papers that you had recorded — and whatever you said came from those papers, that is so,, isn’t it ? t
“A. No, sir, not everything.” Id., at 19-20.
■ “Q. Now, of course, Mr. Toomey, with all your experience, investigating this bank robbery, it is so, isn’t it, that the most vital part of the entire interview was the question whether or not your notes meant' to Mr. Staula the same thing as they meant to you; that is so, isn’t it?
“Mr. Koen: I pray your Honor’s judgment.
“The Court: Well, he may answer that question.
“A. No.
“Q. Now isn’t it so, Mr. Toomey, that another vital part of your interview was whether or not the wellspring of all your knowledge regarding Dominic Staula was correct?
“A. Yes. '
“Q. As a matter of fact, after you had read back, it is so, isn’t it, sir, that .the most vital part of your entire effort taking notes, reading them back, was the question [fol. 327] whether or not Dominic Staula agreed with them?
“A. I didn’t read the notes back to him, sir.” Redirect examination of Special Agent Toomey, id., at 123.