The opinion of the court was delivered by: BARTELS
Motion by defendants Arthur D. Herrick and New Drug Institute, Inc. to dismiss the indictment as against them or, in the alternative, to suppress all evidence or leads therefrom upon the grounds that (1) they were deprived of effective assistance of counsel because of the United States Attorney's unlawful intrusion into the counsels of the defense, and (2) the Government's use of the record of a 'Hearing Before Report of Criminal Violation' was a deprivation of their right to counsel, to a fair trial and against self-incrimination.
Defendants, with others, are charged in a fifty-eight count indictment with conspiracy (18 U.S.C. § 371), mail fraud (18 U.S.C. §§ 1341 and 2), false advertising by television (18 U.S.C. §§ 1343 and 2) and misbranding of drugs (21 U.S.C. §§ 331(a), 333(b), and 18 U.S.C. § 2), which charges constitute felonies under the United States Code.
On June 14, 1960, prior to the present Federal indictment, the same defendants with the exception of Herrick and Saul Miklean, were charged in the Criminal Court of New York City, New York County, in a 134-count indictment with State crimes of conspiracy and false and misleading advertising which under the New York statute constitute misdemeanors. Both indictments arose out of alleged misrepresentations as to the effectiveness of 'Regimen' tablets, a drug sold as an aid to weight reduction. The element of intent is essential to the Federal offense but is unessential to the State offense.
On February 13, 1962, after the filing of the State charges but prior to the present Federal indictment, the United States Government instituted a civil libel action against defendants John Andreadis and Drug Research Corporation (of which Andreadis was president and sole stockholder) within this district, seeking the condemnation of certain quantities of 'Regimen' tablets on the ground that they were misbranded. At that time Assistant United States Attorney Martin R. Pollner represented the Government. Subsequently, on November 4, 1963, after the civil libel action was terminated, Pollner was transferred to the Criminal Division of the United States Attorney's Office and authorized to present the indictment and represent the Government in the present case.
Apparently, while these two defendants were preparing for the defense in the civil libel proceeding, they were also preparing for the New York criminal case. In connection with the libel action Pollner during the period from August to October, 1963, subpoenaed a number of individuals for the purpose of taking their depositions, among whom were the defendants Andreadis and Herrick and several persons who had been retained as medical or scientific experts by them in the State criminal case for the purpose of planning, assisting and preparing the case for the defense. According to Pollner's affidavit, which was not contradicted, the Government was advised early in the case that the scientific proof offered in the State case would be offered in the Federal civil case. Pursuant to the Federal Food, Drug, and Cosmetic Act, the Government seized and condemned a quantity of misbranded tablets in the civil libel proceeding in which only the defendant Drug Research Corporation and its president John Andreadis were defendants. The depositions in that case were taken pursuant to Rule 26 of the Federal Rules of Civil Procedure, 28 U.S.C., according to which their counsel received notice of and was present at each deposition.
On three separate occasions and before three different judges, counsel for the defense attempted by motion to either vacate the notice to take deposition or terminate the deposition.
Upon these occasions the Court was made aware of the existence of the State criminal proceeding and the fact that certain doctors and witnesses would be examined with respect to scientific and chemical tests conducted for the defense and the procedures followed with respect thereto. In fact, Judge Rayfiel, over the objections of counsel, ordered Andreadis to answer certain questions concerning clinical and laboratory tests made with respect to the drug. In addition to counsel for Andreadis and Drug Research Corporation who were at all of the examinations, counsel for Kastor, Hilton, Chesley, Clifford and Atherton, Inc. was present during the testimony of three of the witnesses, and defendant Herrick, who was also examined, served during the examination as his own counsel. Four of the doctors examined were represented by counsel and some of the other witnesses were advised of their right to counsel and their Fifth Amendment rights before the examination. None of the witnesses except the defendants who were examined, are claiming that their Fifth and Sixth Amendment rights were violated. When Dr. Roberts, who was retained by defendants as an expert witness in both cases, was examined, Joseph Stone, the Assistant District Attorney handling the New York criminal case, was expressly authorized to be present by Andreadis and Drug Research Corporation upon the theory that the defenses in both cases would be the same.
On January 8, 1964, pursuant to Section 335 of Food, Drug and Cosmetic Act, 21 U.S.C., the Food and Drug Administration issued to defendant Herrick a notice entitled 'Notice of Hearing', according to which an informational hearing was held by the Administration on January 13, 1964, at which Herrick was given an opportunity to explain voluntarily the circumstances in connection with the alleged violation of the Food, Drug and Cosmetic Act for the purpose of enabling the Administration to determine whether or not the matter would be referred to the Department of Justice for prosecution. At that hearing he was not interrogated but he gave a transcribed statement.
Defendants' Claim of Intrusion into Counsels of the Defense and Involuntary Self-Incrimination.
Defendants claim that the evidence in support of the indictment was obtained in violation of their constitutional right to counsel and consequently a hearing should be held to ascertain whether such evidence was tainted and legally insufficient for the purpose of dismissing the indictment. A defendant charged with a crime has no right to challenge the adequacy or competency of the evidence supporting the indictment. Costello v. United States, 1956, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397. Consequently, he is not entitled to any preliminary hearing or an examination of the proceedings to determine the sufficiency of the evidence presented before a Grand Jury because its function is not to conduct a trial based upon admissible evidence but to explore the probability of the commission of a crime based upon relevant facts and information which may or may not be admissible into evidence. Lawn v. United States, 1958, 355 U.S. 339, 78 S. Ct. 311, 2 L. Ed. 2d 321; Holt v. United States, 1910, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021; United States v. Reed, Cir. Ct.N.D.N.Y.1852, 27 Fed.Cas. pp. 727, 738, No. 16,134. Defendants' remedy in case of tainted evidence is a motion to suppress but in such a case mere suspicion, innuendo, conjecture or conclusion will not suffice. See United States v. Weinberg, D.C.D.C.1952, 108 F.Supp. 567. The motion to dismiss must therefore be denied.
Much of defendants' brief is devoted to quotations from the depositions taken by Pollner in the civil libel case to establish the fact that his examinations constituted an intrusion on the counsels of defendants of their planning and preparing for the defense of the State court criminal case. Interwoven with the charge of unlawful intrusion is the claim of involuntary self-incrimination.
As to the alleged intrusion, defendants cite a number of authorities to the effect that any intrusion by the Government 'into the counsels of the defense' constitutes a violation of defendants' rights under the Fifth and Sixth Amendments.
This principle is well established and needs no reiteration. The difficulty arises in the application of the principle to the facts in this case. When a defendant or his counsel admits into the privacy of their relationship and consultation a third party witness, the privacy as a general rule is automatically destroyed. An analogous situation arises in the field of evidence in connection with the objection, based upon the attorney and client privilege, to testimony of a third party who was present at a conference between the attorney and client. The third party's presence destroys the privilege. Himmelfarb v. United States, 9 Cir. 1949, 175 F.2d 924.
A defendant has no right to expect that every expert or other witness who is interviewed, consulted or engaged by him or his attorney shall be frozen in his behalf as a witness and insulated against further examination by the Government simply because the witness was present at a conference between the defendant and his attorney. In addition, it does not appear from the record to what extent the defendants were present at the conferences of the witnesses and the attorneys.
Another reason exists why the depositions in this case are not tainted. The testimony was given pursuant to Rule 26 of the Federal Rules of Civil Procedure and was given voluntarily. This rule permits an examination of a relevant matter relating to the claim or defense and it is immaterial that the testimony is inadmissible if it might lead to evidence which is admissible. As the rule indicates, the testimony, however, must be relevant. Under subdivisions (b) and (d) of Rule 30 of the Federal Rules of Civil Procedure either a party or any person examined might either before or during the taking of the deposition move for a protective order to prevent inquiry into certain matters or to protect the party or witness from oppression. Upon a showing that the actual examination was being conducted in bad faith, the court has the power to terminate the deposition. No such motion was made either by the parties to the action or by any witness examined.
The fact that a criminal proceeding is pending in one court does not stifle discovery proceedings in a civil action in another court, particularly when the issues in both cases to a great extent overlap.
Otherwise every civil case which parallels a similar criminal case would be sterilized or consigned to limbo by reason of the pending criminal action. On the other hand, defendants in a criminal action have a right to insist upon their constitutional privileges and in such case the court in the civil and criminal actions has ample power to protect them. The conduct of these depositions was obviously a matter of common knowledge to all of the defendants who were involved in the State criminal case. Those who were examined, whether parties or only witnesses in the civil action, had ample remedies to protect their rights if they thought they were being infringed. Those witnesses who were not parties to either action were required to give only such testimony as did not violate their constitutional rights and in so doing they had no obligation to protect the constitutional rights of the defendants in the criminal case.
The gravamen of the intrusion cases is the invasion of the private and confidential relationship between attorney and client. There is no question that a defendant has a right to a private consultation with his attorney free from the presence of an informer. Otherwise his right to counsel and to a fair trial is violated. This privacy is not violated when the testimony is given pursuant to a court order and he, as a witness or a defendant, has an opportunity to object with respect to any potential violation of his constitutional rights. As far as defendants Herrick and New Drug Institute, Inc. are concerned, Herrick as a member of the Bar, acted as his own attorney and also as attorney for New Drug Institute, Inc. and defendants Andreadis and Drug Research Corporation were represented by an attorney. They cannot complain that they did not know their constitutional rights. The testimony of these defendants and witnesses was voluntary and open. There was no spying or eavesdropping. Their examination was neither an intrusion on their privacy of counsel nor involuntary self-incrimination. At ...