UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
November 15, 1967
UNITED STATES of America
Lowell M. BIRRELL, Defendant
The opinion of the court was delivered by: HERLANDS
HERLANDS, District Judge:
The indictment herein was filed on July 20, 1961. On April 23, 1964, defendant Birrell surrendered; pleading was adjourned at his request. On May 8, 1964, counsel was assigned to defendant by the Court; defendant pleaded not guilty. He was remanded to jail; at his request no bail was set.
On July 1, 1964, defendant moved for sixty days additional time for the filing of pretrial motions. On July 6, 1964, Judge Bryan granted an extension of time for the making of all motions to September 21, 1964.
On September 4, 1964, defendant moved for (1) dismissal of the indictment on the ground of taint and the production of grand jury minutes in connection with this motion; (2) dismissal of certain counts of the indictment or an order compelling the Government to elect one of the counts for trial; (3) striking certain allegations of the indictment as prejudicial surplusage; (4) a bill of particulars; and (5) discovery and inspection.
As to the foregoing motions, "(1)" was denied by Judge Wyatt on June 11, 1965. United States v. Birrell, 242 F. Supp. 191, 205 (S.D.N.Y.1965); "(2)" was denied by this Court on April 3, 1967. United States v. Birrell, 266 F. Supp. 539 (S.D.N.Y.1967); "(3)" was granted by this Court on the Government's consent; "(4)" was partially granted by this Court on January 19, 1967. United States v. Birrell, 263 F. Supp. 113 (1967); and "(5)" was, on September 21, 1964, marked off the calendar on consent of all counsel subject to restoration; was subsequently revived on August 29, 1967 and is (as supplemented by a demand for sixteen additional items for discovery and inspection) now before the Court for decision.
On September 9, 1964, defendant moved to suppress files seized on July 24, 1959 and on August 22, and 24, 1959. This motion was decided by Judge Wyatt in June and July, 1965. United States v. Birrell, 242 F. Supp. 191 (1965); 243 F. Supp. 36 (1965); 243 F. Supp. 38 (1965).
On September 27, 1966, Chief Judge Sugarman assigned the case to this Court for all purposes. Defendant then moved, on October 28, 1966, (1) to disqualify this Court under 28 U.S.C. § 144; (2) for an order directing the United States Attorney to file an inventory of the files seized on August 22 and 24, 1959; (3) for renewal and argument of the motions filed September 4, 1964 that had not yet been heard and decided. As to these motions, "(1)" was denied by this Court on January 9, 1967. United States v. Birrell, 262 F. Supp. 97 (S.D.N.Y.1967); "(2)" was denied by this Court on May 23, 1967. United States v. Birrell, 269 F. Supp. 716 (S.D.N.Y.1967); and "(3)", involving certain motions made originally on September 4, 1964, was dealt with as already set forth above in detailing the disposition of the September 4, 1964 motions. Of those motions only the motion for discovery and inspection (as supplemented) remains undecided.
On February 27, 1967, defendant moved for a pretrial evidential hearing to probe the genesis and evolution of the Government's prospective trial proof in order to have the Government demonstrate that its proposed trial evidence is uncontaminated by the suppressed records and clues or leads derived therefrom. The motion was denied by this Court on May 23, 1967. United States v. Birrell, 269 F. Supp. 716 (S.D.N.Y.1967).
On May 26, 1967, William J. Brennan, III, Esq., then defendant's assigned counsel, requested to be relieved of his assignment. Over the Government's opposition (Minutes of Pretrial Hearing, pp. 190, 194) the Court, on June 16, 1967, relieved Mr. Brennan and designated Charles N. Brower, Esq. as assigned counsel. Mr. Brennan agreed to make himself available to Mr. Brower for conference and consultation "so that Mr. Brower will be brought up to date not only on the proceedings themselves as they maybe reflected in the court records, but, more importantly, brought up to date in terms of Mr. Brennan's theories of the defense, considerations of tactics and strategy, which are important in any litigation, and any other matters that would assure to Mr. Birrell that he should have the most effective representation both on the facts and on the law." (Minutes of Pretrial Hearings, p. 222).
In addition, for the purpose of assuring the most effective representation of defendant and to aid Mr. Brower in discharging his duties, the Court appointed Anthony F. Marra, Chief of the criminal defense staff of The Legal Aid Society, to serve as counsel with Mr. Brower in behalf of defendant.
On June 16, 1967, the Court granted defense counsel until August 29, 1967 to make whatever motions they thought appropriate or necessary and set the case for trial on December 4, 1967. (Minutes of Pretrial Hearings, pp. 228, 234, 242, 261).
In a series of motions made returnable on August 29 and September 5, 1967, defendant applies for the following relief:
(1) the disqualification of the Court from proceeding further in indictments 61 Cr. 200, 61 Cr. 820, 61 Cr. 903 and 62 Cr. 307 because of personal bias or prejudice (28 U.S.C. § 144);
(2) a preliminary injunction restraining the United States Attorney, C. E. H. McDonnell, Trustee in Chapter X Reorganization of Equitable Plan Company and George C. Levin, Esq., Trustee in Chapter X Reorganization of Swan-Finch Oil Corporation, and all other persons "from entering, removing documents from, making photocopies of or in any other manner whatsoever using any of the files and other property seized from defendant Lowell M. Birrell on August 22 and 24, 1959, and presently lodged in Room 501 of * * * [the] United States Courthouse * * *";
(3) a pretrial hearing for the return of property unlawfully seized from defendant and suppressed for use as evidence against the defendant by orders of Judge Wyatt, June 11 and 25, 1965; and at such hearing to require the return of all such property "together with all copies, transcriptions, abstracts, excerpts, notes and other memorializations of such property * * *" and an itemized list of all property returned;
(4) an order pursuant to Fed.R.Crim.P. 12(b) and 48(b) dismissing the indictment in 61 Cr. 692 on the grounds that:
"(a) some of the defendant's property which was suppressed by the orders of the Honorable Inzer B. Wyatt, United States District Judge, dated June 11 and 25, 1965 has been lost, destroyed, mutilated, removed or otherwise made unavailable to defendant, and the remaining such property is in such a state of disorder, disarray and confusion that as a matter of law it is impossible for defendant to prepare for trial;
(b) as a matter of law the Government cannot establish that the evidence which it intends to introduce at the trial of this indictment is not tainted by any of the aforesaid suppressed property; and
(c) defendant has been deprived of his right to a speedy trial";
(5) an order pursuant to Fed.R.Crim.P. 6(b) and 12(b) dismissing the indictment in 61 Cr. 692 on the grounds that the grand jury was improperly selected, as Negroes, Puerto Ricans and others of lower socio-economic status were systematically and intentionally excluded from the array;
(6) an order pursuant to Fed.R.Crim.P. 15 permitting defendant to depose American Leduc Petroleums Limited and the Toronto Stock Exchange in connection with 61 Cr. 692;
(7) an order pursuant to Fed.R.Crim.P. 15 and 17:
(a) precluding the use of evidence in 61 Cr. 692 (American Leduc) that defendant was a fugitive from justice. Should such evidence be used, defendant seeks to introduce as evidence certain depositions on file with the Court and to depose certain additional named persons.
(b) barring evidence which tends to show that acts alleged in indictment 61 Cr. 692 were part of a common plan or scheme; and
(c) requiring the Government to elect those counts of indictment 61 Cr. 692 which will actually be tried against defendant;
(8) orders pursuant to Fed.R.Crim.P. 16 and 17(c) permitting defendant's discovery and inspection of thirty-two enumerated items in connection with 61 Cr. 692.
The many and diverse issues raised by these motions necessitate a recital of the relevant factual background as disclosed by the motion papers.
On April 15, 1957, a civil action was instituted in this Court by the Securities and Exchange Commission against Birrell and twenty-three other defendants. Birrell was subpoenaed to testify on October 7, 1957, but did not appear. Instead, defendant left the United States sometime during October 1957 and did not return until April 23, 1964.
Sometime during 1957, approximately forty-six filing cabinets containing from one million to two million documents were moved at defendant's request from New York City to Teaneck, New Jersey. Allegedly the files contained personal papers of Birrell, business records of the law firm of Birrell and Larson, and records of various corporations including Swan-Finch Oil Corporation and Equitable Plan Company. These documents were moved again early in 1959 to Bucks County, Pennsylvania, where they were placed in the custody of Jonathan D. Dunn, an attorney for the defendant.
In January 1958, the trustees in bankruptcy of Swan-Finch Oil Corporation and attorneys for the trustee in bankruptcy of Equitable Plan Company began searching for the records of their corporations. Finally, on August 20, 1959, the location of the records was revealed at an ancillary proceeding in bankruptcy pending in this Court. A search warrant was issued on August 22, 1959, based on an affidavit of an attorney in the ancillary proceeding. The affidavit of a postal inspector supported a second search warrant issued on August 24, 1959. Both warrants were executed and returned on the respective issue dates.
The seized records were first placed in the custody of the United States Marshal for the Eastern District of Pennsylvania. Sometime after November 10, 1959, they were deposited in the custody of the Clerk of the Court for the Southern District of New York. During this period of approximately three months, the records were neither inspected nor disturbed.
The removal of the records from the Eastern District of Pennsylvania was pursuant to two Court orders. The first, dated October 16, 1959, and filed on October 26, 1959, was issued by Judge Palmieri of the Southern District of New York. Judge John W. Lord of the Eastern District of Pennsylvania issued the second order, dated November 10, 1959. These orders directed the Marshal of the Eastern District of Pennsylvania to deliver the records to the custody of the Clerk of the United States Court for the Southern District of New York, subject to the further order of this Court.
From November 1959 until July 1961, the files remained in the custody of the Clerk of this Court. The records were inspected and photocopied, pursuant to court order, by various attorneys in the above-mentioned bankruptcy proceedings, representatives of the Attorney-General of the State of California, and the District Attorney of the City of Los Angeles. However, no inspection or photocopying of the records by any representative of the United States Attorney for the Southern District of New York occurred during this period.
In July 1961, the records were transferred from a file room in the Clerk's office to the file room of the United States Attorney (Room 501). Judge Palmieri approved the transfer in order to insure the completeness and maintain the integrity of the files. Custody of the records, however, remained with the Clerk of the Court. Representatives of the United States Attorney's Office and investigators from the Securities and Exchange Commission then began inspection and inventory of the documents.
In 1961 and 1962, six federal indictments were returned against defendant.
These charges include, inter alia, violations of the Securities Act of 1933 (15 U.S.C. § 77a et seq.), the Securities Exchange Act of 1934 (15 U.S.C. § 78a et seq.), the mail fraud statute (18 U.S.C. § 1341), and the transportation of stolen property in interstate commerce (18 U.S.C. § 2314). Bench warrants for the arrest of defendant, issued as to each indictment, were executed upon Birrell's return to the United States on April 23, 1964.
Birrell was arraigned on April 23, 1964. As the fixing of bail was adjourned at defendant's request, he was placed in custody. On February 11, 1965, bail was set at $150,000 by Judge Weinfeld of this Court. On June 28, 1965, bail was reduced to $50,000. It was reduced to $15,000 on July 27, 1965; and defendant, after posting this amount, was released on August 4, 1965.
Late in 1964, defendant moved for suppression and return of the records seized on August 22 and 24, 1959. On June 11, 1965, Judge Wyatt ordered the seized records suppressed for use as evidence against defendant, ruling that the affidavits underlying the search warrants were insufficient to establish probable cause. United States v. Birrell, 242 F. Supp. 191, 201 (S.D.N.Y.1965). By subsequent order, Judge Wyatt ordered restored to defendant those records of which Birrell could establish ownership. The Court expressed the opinion that the burden of proof was properly placed on defendant because: "(a) movant knows more about the property than anyone else and (b) he delayed more than five years in making the present motion." United States v. Birrell, 243 F. Supp. 38, 41 (S.D.N.Y.1965).
Pursuant to Judge Wyatt's order, defendant moved, on October 25, 1965, for the return of the suppressed property. This motion was adjourned for two weeks in order that defendant, chapter X trustees in bankruptcy of Swan-Finch and Equitable Plan, and the Government might confer and agree on the return of the files. Eventually, the motion was referred to Chief Judge Ryan of this Court, who denied it on December 15, 1965, because defendant had disregarded the procedure outlined in Judge Wyatt's order.
The Government moved, on December 2, 1965, for the appointment of a single Judge to handle 61 Cr. 692, the American Leduc indictment, pursuant to Rule 2 of General Rules of United States District Courts for the Southern and Eastern Districts of New York. Chief Judge Ryan announced that all but emergency matters should be deferred pending the appointment of a Rule 2 Judge. On September 27, 1966, Judge William B. Herlands was named Rule 2 Judge for the American Leduc indictment.
1. MOTION TO RECUSE
Defendant moves, pursuant to 28 U.S.C. § 144,
to disqualify District Judge William B. Herlands from criminal cases 61 Cr. 200, 61 Cr. 820, 61 Cr. 903 and 62 Cr. 307 (and possibly New York County Supreme Court indictment 2490-59) on the ground that Judge Herlands (hereinafter "the Court") has a personal bias or prejudice against defendant. Motions of defendant in these actions seeking the return of property suppressed as evidence, pursuant to the July 1, 1965 order of Judge Wyatt, were referred to the Court on August 28, 1967.
According to defendant, the first sentence in a prior opinion in an unrelated civil suit shows bias or prejudice on the part of the Court. In Re Equitable Plan Co., 185 F. Supp. 57 (S.D.N.Y.) modified, Ings v. Ferguson, 282 F.2d 149 (2d Cir. 1960), disposing of a motion to quash subpoenas duces tecum, begins as follows:
"This action is another chapter in the attempt to unravel the affairs and make whole the victims of Lowell Birrell, presently a fugitive from justice under indictment for crimes arising out of his financial activities." (185 F. Supp. at 58)
This same contention was the basis of a prior motion by defendant to disqualify the Court from presiding over 61 Cr. 692, the American Leduc indictment. United States v. Birrell, 262 F. Supp. 97 (S.D.N.Y.1967). The Court denied this request on the grounds (1) that defendant had overlooked the statutory requirement of stating "the facts and the reasons" for his belief that bias or prejudice existed, presenting, instead, mere conclusions; and (2) that the Court had simply expressed "relevant judicial opinion" and showed no extra-judicial or personal bias or prejudice. The single quoted sentence, the Court pointed out, occurred "in a totally extraneous case in which the Court summarized the relevant context of the dispute before it, in reliance upon the then uncontroverted record." United States v. Birrell, 262 F. Supp. 97, 100 (S.D.N.Y.1967).
The rationale of the Court's prior opinion applies to the instant motion. The present moving affidavit is as inadequate as defendant's former affidavit.
The Court is aware of its duty not to recuse itself when there is no sound reason to do so. In the absence of persuasive circumstances calling for recusation, this obligation is even greater when inordinate delay in the administration of criminal justice would result from such a disqualification.
Such a result would occur here because precisely the same relief demanded by these motions - the return of the suppressed property - is requested in an identical motion in the American Leduc case, which the Court is required to decide.
Defendant also cites as evidence of bias certain remarks made by then Assistant United States Attorney Gerald Walpin in the sentencing proceedings of defendants in United States v. Garfield et al., 61 Cr. 360 before the Court in 1962 and 1963 (Defendant's Affidavit of Prejudice, pp. 3-6). There is no claim that any opinions or statements about defendant were made by the Court; nor is there any claim that the Court acquiesced in or agreed with any statements or opinions made by the Government in these proceedings. Rather, it appears that defendant contends that the Court's hearing of these remarks is sufficient to show personal bias or prejudice. Mere exposure to unfavorable remarks or statements made in the course of adversary proceedings is not enough to show bias or prejudice on the part of the Court against defendant. Were that so, few judges could escape disqualification. Cf. United States v. Weldon, 384 F.2d 772, (2d Cir., Oct. 30, 1967).
Defendant finally contends that certain conduct of the Court after it was assigned as the all purpose judge herein indicates personal bias or prejudice (Defendant's Affidavit, pp. 7-9). Defendant points to the Court's action at the pretrial conference of October 14, 1966, scheduling hearings on numerous pretrial motions despite notification that defendant was filing an affidavit of prejudice.
The efforts of the Court to expedite the trial herein does not evidence bias or prejudice. It is the trial judge's duty to prevent a defendant from utilizing an affidavit of prejudice for the sole purpose of delaying and otherwise unjustifiably embarrassing the administration of justice. United States v. Murphy, 19 F. Supp. 987, 988 (W.D.Mo.1937). See also Rosen v. Sugarman, 357 F.2d 794, 797-798 (2d Cir. 1966) (Friendly, J.).
Defendant also points to certain statements of the Court as indications that these motions would be decided unfavorably to him. Whether examined singly or together, these statements are legally insufficient to show personal bias or prejudice. Defendant repeatedly submits quotations out of context and ignores the requirement that "[the] fair meaning of any remark must be interpreted in the light of the context in which it is uttered". Foster v. Medina, 170 F.2d 632, 633 (2d Cir. 1948) cert. denied, 335 U.S. 909, 69 S. Ct. 412, 93 L. Ed. 442 (1949).
Moreover, disqualification based on alleged bias and prejudice cannot be predicated on tentative opinions of the Court based on the papers and testimony before it.
For the reasons heretofore stated, defendant's motion is hereby denied. So ordered.
2. MOTION FOR PRELIMINARY INJUNCTION
Defendant seeks to enjoin the United States Attorney, the Chapter X Trustees of Swan-Finch Oil Corporation and Equitable Plan Company and all other persons from entering or making any use whatsoever of the files seized on August 22 and 24, 1959, pending the determination of a motion for the return of said property. (Motion number 3, infra.)
The Government is precluded by Judge Wyatt's suppression order of June 11, 1965 from offering any of these files into evidence. On the other hand, the trustees are not subject to any such retraint. Indeed, they are using the documents in various civil proceedings, including one now pending in this Court in which Lowell Birrell is named as a party defendant. McDonnell v. American Leduc et al., Civ.No. 137-160. This latter litigation is now actively in the pretrial stage; and attorneys of the Equitable Plan trustee are marking as exhibits photocopies of documents in the suppressed files and using them in the deposing of prospective witnesses.
Defendant asserts that the injunctive relief sought is necessary in order to prepare properly for trial, to preclude the prosecution from a cumulative means of discovery beyond that provided for in the Federal Rules of Criminal Procedure, to safeguard his Fifth Amendment privilege against self-incrimination, and to preserve the Court's ability to grant the ultimate relief demanded - return of the suppressed property.
The present motion involves the reconciliation of important competing interests and policies: the right of a defendant in a criminal case to a fair and impartial trial vis-a-vis the right of the Chapter X trustee, representing many large and small creditors, to vindicate pecuniary and economic rights in an expeditious manner. The Court is sensitively aware that its duty to insure the fairness of the criminal proceedings before it demands adherence to standards higher than those required by due process, McNabb v. United States,
318 U.S. 332, 340, 63 S. Ct. 608, 87 L. Ed. 819 (1943), and even the "probability of unfairness" is to be prevented, In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1954). The ultimate issue before the Court is whether a practical accommodation of the rival interests and policies can be achieved; or whether vindication of the rights of the defendant justifies and compels resort to the drastic remedy of an inter-court injunction.
The power of a criminal court to enjoin concurrent civil proceedings involving the same subject matter was recognized in United States v. Simon, 262 F. Supp. 64 (S.D.N.Y.1966), rev'd, 373 F.2d 649 (2d Cir. 1967), cert. dismissed, sub nom. Simon v. Wharton, 386 U.S. 1030, 87 S. Ct. 1485, 18 L. Ed. 2d 591 (1967). A civil action for damages had been brought in the Eastern District of New York by a reorganization trustee against an accounting firm alleging a conspiracy to despoil assets. Subsequently, an indictment based on the same transaction was returned in the Southern District of New York against certain named members of the firm charging them with violations of the Securities Exchange Act of 1934. The defendants in the criminal proceeding moved to enjoin the trustee from taking their depositions in the civil action until the completion of the criminal trial. The District Court, in enjoining the taking of depositions for a ninety-day period, cited two authorities: the "All Writs" Act
and the federal criminal court's inherent equity jurisdiction or supervisory power over the administration of criminal justice. Since the scope of pretrial discovery is much broader in civil than in criminal proceedings, the Court found that the deposing of the defendants would enable the Government to obtain "a full disclosure of the . . . [defendants'] case while relying on the rules to prevent disclosure of its own * * *" (262 F. Supp. at 73-74). Therefore, the probability of unfairness in the criminal trial justified the resort to injunctive relief.
In reversing the order of the District Court, the Court of Appeals for the Second Circuit assumed, without deciding, that a federal criminal court has power to issue an inter-court injunction. The Court, however, found this case inappropriate for such relief because it was not shown that civil discovery would interfere with the criminal trial or the preparation of the defense. The defendants' rights were protected by the availability of the privilege against self-incrimination in the civil proceedings.
We recognize that, in appropriate circumstances, a federal criminal court has the power to enjoin concurrent civil proceedings
in order to prevent unfairness in the criminal trial. The inherent power of a federal court to supervise the administration of criminal justice
and the explicit mandate of the Federal Rules of Criminal Procedure provide sufficient bases for such relief.
Under Fed.R.Crim.P. 57(b), where "no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute".
Moreover, to prevent unfairness in criminal proceedings, a federal court clearly has the power to affect persons not party to the criminal action. Rea v. United States, 350 U.S. 214, 217, 76 S. Ct. 292, 100 L. Ed. 233 (1956); Go-Bart Importing Co. v. United States, 282 U.S. 344, 355, 51 S. Ct. 153, 75 L. Ed. 374 (1931); In re No. 32 East Sixty-Seventh Street, 96 F.2d 153 (2d Cir. 1938). See also, Ex parte Lennon, 166 U.S. 548, 17 S. Ct. 658, 41 L. Ed. 1110 (1897); City of Fresno v. Edmonston, 131 F. Supp. 421, 427 (S.D.Cal.1955).
The extreme remedy of an inter-court injunction should be employed only "in exceptional circumstances". Interference with proceedings in another court should be avoided where other adequate remedies are available. United States v. Simon, 373 F.2d 649, 653 (2d Cir.), cert. dismissed, sub nom. Simon v. Wharton, 386 U.S. 1030, 87 S. Ct. 1485, 18 L. Ed. 2d 591 (1967); D'Ippolito v. American Oil Co., 272 F. Supp. 310 (S.D.N.Y. Aug. 18, 1967). Furthermore, in the absence of prejudice to the criminal defendant, the Court must insure the right of the trustee to litigate his civil action in an unhindered and expeditious manner.
Defendant relies on United States v. Simon, supra and United States v. American Radiator & Standard Sanitary Corp., 272 F. Supp. 691 (W.D.Pa. August 8, 1967) as authority for the issuance of injunctive relief in the instant case. We do not agree. The present case is factually distinguishable because of an illegal search and seizure. Since the seized files - the subject matter of the present motion - are suppressed for use as evidence against the defendant, all clues and leads derived therefrom are likewise inadmissible as fruit of the poisonous tree. Therefore, any evidence adduced by the trustee through the use of the suppressed files in the civil suit is inadmissible in the criminal trial.
The inability of the Government to utilize evidence so obtained by the trustee invalidates defendant's claim that his privilege against self-incrimination is or may be violated.
The charge that the United States Attorney is obtaining a cumulative means of discovery is likewise rejected. While in Simon and American Radiator,15 the prosecution might use civil discovery to obtain disclosure of the defendant's case, no such unfairness occurs in the instant case.
Defendant's bare assertion that "Insofar as the trustees * * * proceed to ferret out documents from defendant Birrel's files and to conduct investigations and formal or informal examinations of witnesses * * * evidence is being amassed which is and has been available to the government prosecutor", (Memorandum of Law in Support of Defendant's Application for Order to Show Cause With Stay, p. 4), is unsupported by the record before this Court. There is no factual showing of evidence received by the Government from the trustees. Indeed, the United States Attorney has repeatedly avowed his intention to rely on independently obtained, untainted evidence. In the absence of any proof to the contrary, we must accept this oft-repeated representation as true, at least at this juncture.
Defendant complains proper trial preparation will be impossible unless all other parties are temporarily enjoined from removing, photocopying and using the impounded documents. He asserts that during the eight-year sojourn of these files in the United States Court-house many documents have been lost, mutilated and misplaced. He seeks a protective order to preserve the integrity of the files and to allow him an opportunity to use them. Moreover, he argues that the continuation of the status quo will prevent the Court's granting the ultimate relief requested - the return to defendant of "all original documents and copies thereof". (Defendant's Memorandum, pp. 7-8.)
Whether documents in the impounded files have been lost or damaged is a question we need not decide here. The moving papers are replete with conflicting statements and contentions on this issue. In any event, prohibiting the trustees, the only persons presently examining the files, from temporarily removing, photocopying and using the documents now cannot undo any alleged past damage.
The Court is unpersuaded that proprietary or constitutional rights of defendant are being undermined by the trustees' continued access to and use of the files pending decision on the motion for return of property (Number 3, infra.) It is undisputed that defendant has had and continues to have untrammeled access to the impounded files to prepare his defense. He has refrained from using them in the exercise of his own free choice.
The trustees, on the other hand, would be seriously prejudiced if injunctive relief were granted. In contrast to the situation in United States v. Simon, supra, the trustees' civil litigation is in the advance pretrial stages. Photocopies of many documents from the impounded files have already been marked as exhibits in that action. Enjoining use of the documents would delay the civil litigation. This court will not impair the jurisdiction of another coordinate court except "in exceptional circumstances", not apparent here. In the absence of actual or probable prejudice to defendant, neither logic nor precedent supports emasculation of the rights of civil litigants and the undermining of jurisdiction of a sister federal district court.
One must note that in United States v. Simon, supra, the case upon which defendant relies so heavily, the defendants sought sole custody of their own files in order to properly prepare for trial. In rejecting the defendants' demand, the District Court found "no likelihood that the defendants' preparation for trial will be unduly hampered by the * * * continuation of the present arrangement with respect to the Lybrand documents". (262 F. Supp. at 78.) While in Simon, the documents were the property of the defendants, in the instant case, the respective proprietary rights of the defendant and those of Chapter X trustees in the impounded files have not yet been adjudicated.
Finally, the Court is not persuaded that Judge Wyatt's suppression order expunged the jurisdictional basis for the several access orders to the impounded files granted since October 16, 1959 by Judge Palmieri. On the contrary, Judge Wyatt's order of July 1, 1965, specifically provides that: "a. the property will remain in the custody of the Clerk of this Court, subject to further order of this Court, as provided in the order of this Court made by Judge Palmieri under date of October 16, 1959 * * *". United States v. Birrell, 243 F. Supp. 38, 41 (S.D.N.Y.1965). This order, representing the law of the case, is binding on us.
Defendant's motion for injunctive relief is hereby denied. So ordered.
3. MOTION FOR RETURN OF DOCUMENTS
Defendant demands a pretrial evidential hearing to adjudicate ownership of the documents in the impounded files and to return to him those papers to which he can demonstrate that he has a possessory interest. The forty-six cabinets and other files are now in the custody of the Clerk of the Court and, for purposes of storage, are located in Room 501 of the Courthouse, a room also used by the United States Attorney for keeping files.
Defendant asserts that, if the documents continue to be retained in their present quarters, he will be unable adequately to prepare for trial and that various of his constitutional rights will be prejudiced, including, inter alia, the privilege against self-incrimination (Fifth Amendment), the right to due process of law (Fifth Amendment) and the right to the assistance of counsel (Sixth Amendment).
The Government does not object to the return of any of the impounded documents, except for those previously marked as court exhibits in other proceedings. The Government firmly reiterates that it will not use upon the trial any of the suppressed documents nor any clues, leads or information derived from such documents. It does, however, insist that, as a prerequisite to the return of any papers, defendant must satisfy his burden of proof of ownership of specific papers whose return is sought, as explicitly prescribed by Judge Wyatt's order of July 1, 1965. Of salient importance is the Government's contention that the Court should not, at this time, hold evidential hearings on the issues posed by defendant's motion because such hearings would consume many months and would delay the trial scheduled to start on December 4, 1967 and estimated to require only ten days for the prosecution's case.
The Chapter X trustees are deeply concerned with preserving their access to the records. Their argument, supported by uncontrovertible facts, is that the records are vital to actively pending civil litigation and that, therefore, the files should remain in the court's custody.
The Court must accommodate these competing interests in a manner that will safeguard the defendant's right to a fair trial and his other constitutional rights and, at the same time, protect the legitimate interests of the Chapter X trustees. This dual objective can best be achieved by deferring until after the trial a fullscale evidential hearing to resolve the question of defendant's ownership of the documents and their return to him.
The Court hereby orders the files to remain in the custody of the Clerk of the Court but orders the files to be transferred from Room 501 to Rooms 607K and 607L of the Courthouse.
Defendant is hereby granted free and untrammeled access to the files in said rooms both day and night. He will be enabled to arrange and collate documents in whatever manner he sees fit as well as to photocopy any records he desires to remove or to introduce as evidence at the trial or to use in any manner or for any purpose at the trial.
No one will be permitted to examine or make a record of any papers so handled by defendant. No representative of the Government will be allowed to enter said rooms or to utilize the files therein pending the completion of the trial.
The right of defendant and his attorneys to confer privately with witnesses in said rooms in conjunction with the records will be completely safeguarded at all times.
Upon request of defendant's attorneys, the Court will arrange to furnish them with separate locked filing cabinets (to which they will have exclusive access) in which they may store collated records for use in preparing for trial and during the trial.
The Chapter X trustees are the only persons aside from defendant who will be allowed access to the files. Such access will, however, be subject to the close supervision of the Court and will be permitted in such manner and at such times as will not in the slightest degree impinge upon, hinder or obstruct defendant's efforts to prepare for trial.
A direct representative of the Court will be available at all times whenever access is sought to said rooms to ensure prompt and effective execution of the Court's directives as set forth herein and to guarantee full protection of defendant's rights.
The Court's representative will perform the additional function of making sure that none of the documents is destroyed or removed from the said rooms, subject to defendant's privilege of having photocopies made.
This procedure will furnish additional assurance that the records will remain intact until they are distributed eventually to their rightful owners. Furthermore, it will insulate defendant against possible allegations that he has added, destroyed or removed papers from the impounded files. This aspect of the integrity of the files is particularly significant because, in the event of a conviction, the Court will conduct a post-trial hearing at which the Government must demonstrate the untainted character of its trial proof.
Defendant, however, asserts that Rule 41(e) of the Federal Rules of Criminal Procedure
requires that a motion for the return of property be determined and all unlawfully seized evidence be returned prior to trial. The Court is not persuaded that such an approach is compulsory.
The policy that there be minimal delay and interference with the trial of a criminal indictment supports the general rule that a hearing under Rule 41(e) should be held in advance of trial.
The present case, however, presents the unusual feature that persons other than and in addition to defendant claim ownership of many of the suppressed items. As already indicated, the large number of papers involved - variously estimated at from one to two million - and the warmly contested nature of this adversary hearing, plainly demonstrate that the proceeding to unravel the tangled skein of proof and to adjudicate the ownership of each and every document will unavoidably consume many months.
Far from furthering the purpose underlying Rule 41(e), a pretrial hearing, in the particular circumstances of this case, would serve only to vitiate this policy by inordinately postponing the trial, in a long-pending proceeding already deaccelerated by delays to a standstill.
The rule and its equitable antecedents invest the Court's power with flexibility as to the timing of hearings.
Pertinent to this element of the scheduling of hearings is the proposition that, even though property is suppressed for use as evidence, a defendant in a criminal case is not automatically entitled to its return. Where suppressed evidence is "otherwise subject to lawful detention" because of the rights of others, defendant cannot compel its return before trial.
That defendant is indigent and represented by court-assigned counsel is, of course, a fact that must be considered in determining the timing of any hearing. The Court is sensitively aware of the following admonition by the Supreme Court:
"It is a serious imposition upon appointed counsel to require dissipation of energy and time in preliminary skirmishing. Moreover, the delay occasioned by this extended interim proceeding is itself offensive to the ideal of speedy administration of criminal justice." Coppedge v. United States, 369 U.S. 438, 457, 82 S. Ct. 917, 927, 8 L. Ed. 2d 21 (1962) (Stewart, J., concurring).
To require the Court and defendant's assigned counsel at this time to engage in months of pretrial hearings to determine the ownership of the suppressed documents - an issue entirely unrelated to the substantive merits of the indictment - is neither good law nor good sense. Unnecessary further delay in commencing the trial of this indictment, returned over six years ago, is "offensive to the ideal of speedy administration of criminal justice".
Defendant also requests more specifically the immediate return of approximmately fifty percent of the impounded records. During oral argument, the attorney for the trustee of Equitable Plan Company frankly stated that he had no interest in approximately one-half of the documents, representing the so-called Bohack and Dupont files. These are the files encompassed within defendant's specific request.
The records in question are not physically separated from the general mass of documents. They are distributed throughout the file cabinets. As with the other impounded files, protracted hearings would have to be held in order to determine which particular papers the trustees do not claim. The Court declines to engage in lengthy pretrial hearings on collateral matters and thereby to delay the commencement of the trial. The procedure for the immediate return of these documents is prescribed by Judge Wyatt's order: "* * * application to the Court based on the written agreement thereto of the United States Attorney, of the Trustee of Swan-Finch Oil Corporation, and of the Trustee of Equitable Plan Company * * *" United States v. Birrell, 243 F. Supp. 38, 41 (S.D.N.Y.1965).
Defendant demands "all copies, transcriptions, abstracts, excerpts, notes and other memorializations" of the impounded documents. In view of the Court's postponement of the hearing for the return of the records until after the trial, it is unnecessary to pass upon this demand at this time. Defendant will be entitled to the return of the copies and originals of all documents to which he proves ownership at that post-trial hearing. See, e.g., Goodman v. United States, 369 F.2d 166, 168 (9th Cir. 1966); United States v. Kraus, 270 F. 578, 581 (S.D.N.Y.1921) (L. Hand, J.)
Opposing defendant's motion for the return of copies, the Government argues that, under the authority of Walder v. United States, 347 U.S. 62, 65, 74 S. Ct. 354, 98 L. Ed. 503 (1954), the suppressed evidence may nevertheless be used to impeach the testimony of defense witnesses as to collateral matters. Although the Walder doctrine has been approved by the Court of Appeals for the Second Circuit in the factual context of the particular cases considered by it,
other recent decisions have cast doubt upon its continuing vitality.
Because the precedential authority of Walder has been so seriously attenuated and because the trend of current constitutional developments points in another direction, this Court respectfully declines to follow Walder. The Government should be restricted to using untainted evidence in the impeachment of witnesses just as it is similarly restricted in making out its direct case.
In the majority of criminal cases, it would be more appropriate to defer making such a ruling until the trial. However, in view of the vast number of suppressed documents with which we are concerned, fairness to defendant persuasively suggests that the ruling be made as early as possible. Cf. McNabb v. United States, supra.
Defendant's motion for the return of documents is denied without prejudice to a renewal thereof after the trial. So ordered.
4. MOTION TO DISMISS THE INDICTMENT
A. Negligent Suppression of Evidence
Defendant charges that the government's negligence as custodian of the impounded files has resulted in the loss of material and relevant documents and has left those remaining in such a state of disorder that the indictment must be dismissed. Defendant demands a pretrial evidential hearing to probe this issue fully.
The prosecutor's negligent suppression of material evidence tending to exculpate the defendant compels the Court to take remedial action, either by granting a new trial
or by dismissing the indictment.
In United States v. Consolidated Laundries, 291 F.2d 563 (2d Cir. 1961), the trial judge had ordered the Government to turn over to the defense all documents in its possession relating to a certain prosecution witness' testimony. The Government, however, negligently failed to produce one file during the trial. The Court of Appeals for the Second Circuit found that the Government was "custodian of . . . [these papers] for its own benefit" and through negligence had breached its duty "to keep the evidence of which it was custodian in such manner that it would be available for use upon the trial by all parties". (291 F.2d at 570.) Concluding that the negligently suppressed evidence was material to the defense, the Court reversed the conviction and ordered a new trial.
In United States v. Heath, 147 F. Supp. 877 (D.Hawaii 1957), appeal dismissed, 260 F.2d 623 (9th Cir. 1958), defendant, in a prosecution for income tax evasion, had voluntarily turned over some of his books and records to the Internal Revenue Service. Defendant moved for discovery and inspection of his papers in the Government's possession but the Government was unable to produce some of defendant's records. Finding that the lost documents were "relevant to the charges in the indictment and necessary for the preparation of the defense", the Court ordered the indictment to be dismissed. (147 F. Supp. at 878.)
Defendant's position is that the policy and rationale of these illustrative decisions require the dismissal of the indictment. On the other hand, the Government, in distinguishing the above-cited cases, points out: that the Clerk of the Court and not the prosecutor has had and has custody of the documents; that various civil litigants have used these files since November 1959 and, therefore, responsibility for any alleged loss is diffuse; that no representative of the United States Attorney's Office or the Securities and Exchange Commission inspected the records until July 1961; and that, rather than being negligent, the Government has exercised the utmost care with respect to the documents.
The Court need not decide, at this time, whether the Government was in fact the custodian of the files and, if so, whether it was negligent with respect to the security of the records. At this stage of the case, defendant has failed to make an adequate factual showing that documents material to his defense which were in the impounded files at the time of the illegal search and seizure are now missing.
Defendant's moving papers contain much conclusory language declaring important records lost. But only one of the affidavits submitted by defendant purports to be based upon personal knowledge of one who actually witnessed the state of the records prior to the seizure and at the present time.
In this affidavit, Curtis Carter Whitney avers that various documents which he believes were in Bucks County in 1959 are now missing. The force of this belief is, however, blunted by his further statement: "I have not, however, made a thorough search of the files at Foley Square for these items". (Affidavit of Curtis Carter Whitney, p. 5, attached to defendant's supplemental affidavit).
Controverting defendant's position, Robert S. Stitt, Esq., attorney for the Chapter X trustee of Equitable Plan Company - who was actually present at the time of the search and seizure - has given impressive testimony before this Court that "these records are complete and they are in the same shape as they were when originally brought into custody". (Record of Argument, August 29, 1967, p. 509). Mr. Stitt, moreover, pointed out that the impounded files never contained all relevant and known records. (Record of Argument, August 29, 1967, pp. 507-508).
In view of these conflicting factual averments, the Court cannot conclude on the moving papers before it that documents are indeed missing. Immediate dismissal of the indictment is, therefore, not justified.
Nor has defendant sufficiently shown why a pretrial hearing is needed. No specification has been made of prospective witnesses who might supply additional facts as to the state of the documents. Defendant blandly urges that such a hearing be held in order to subpoena witnesses, particularly attorneys for various civil litigants, who are "reluctant to volunteer affidavits". (Supplemental Memorandum, p. 38). Defendant's moving papers do contain detailed statements by these attorneys. It is not clear what new facts might be adduced by holding an evidential hearing.
In the absence of a more specific showing of need, the Court is reluctant to delay the trial further by holding a lengthy pretrial hearing. Such a hearing is likely to last longer than the trial itself because defendant will first be required to prove that documents in the files at the time of the seizure are now actually missing. In view of the magnitude of the records, such an inquiry will unquestionably be protracted.
Assuming, arguendo, that the Court should find that documents are missing and that this condition is attributable to governmental misfeasance or nonfeasance, the issues of materiality and relevancy of the missing documents would then have to be decided. Such issues cannot be resolved in vacuo: disclosure of both the Government's and defendant's cases would furnish a realistic frame of reference within which the significance of missing documents, if any, can be adjudged.
In a prior ruling on defendant's motion for a pretrial evidential hearing on the related issue of taint, this Court outlined the desiderata favoring a post-trial rather than a pretrial hearing. United States v. Birrell, 269 F. Supp. 716, 727-728 (S.D.N.Y.1967). These considerations are equally applicable in determining the timing of a hearing on the issue of negligent suppression.
In addition to involving a vast expenditure of judicial time, a pretrial hearing might not fully resolve the questions of the materiality and relevancy of any lost documents. The Government has represented that it has a witness pool of undefined size, from which particular persons will be called as the exigencies of the trial require. Consequently, any disclosure by the Government at a pretrial hearing would be only tentative. Should there be a shift in the Government's trial strategy, supplemental hearings either during or after trial would have to be held. It is desirable to avoid such a fragmented approach.
Another salient factor militating against the holding of a hearing before trial is the real possibility that defendant's right to a fair trial may be prejudiced. If, in order to show materiality and relevancy, defendant discloses his entire defense and his motion to dismiss is denied, the prosecution would obtain an unfair advantage at the trial in chief. That a similar disclosure of the prosecution's case would result is of no corresponding impact; the resources and flexibility of the Government are much greater than those possessed by any criminal defendant.
The Court concludes that defendant's motion to dismiss the indictment should be denied without prejudice to its renewal at trial. In the suppositious event of conviction, a post-trial hearing can be held if the Court deems it necessary, to fully explore this issue. The issues of materiality and relevancy can then be examined in the context of the trial record. Should it be found that negligent suppression of material evidence has occurred, the Court can order the appropriate relief, such as dismissal of the indictment or a new trial. Of course, in the event of acquittal, the need for such a hearing would be mooted.
The Court naturally is reluctant to subject the defendant to the formalities of an unnecessary trial. In the present case, however, defendant has not demonstrated that the trial will be an empty and futile gesture. In any event, full protection of defendant's rights can be achieved by deferring any hearing until after trial.
Defendant's motion based upon alleged negligent suppression of evidence is denied without prejudice to its renewal at or after trial. So ordered.
B. Taint From The Suppressed Records Pervades The Government's Case
Defendant contends that dismissal of the indictment is necessitated because the Government will be unable to prove beyond a reasonable doubt that its trial evidence has a completely untainted and independent origin.
The Government has repeatedly represented that it intends to rely on lawfully obtained and uncontaminated evidence. The Court cannot rule as a matter of law that the Government will not fulfill its obligation. See, e.g. United States v. Harrison, 265 F. Supp. 660, 662 (S.D.N.Y.1967); United States v. Avila, 227 F. Supp. 3, 8 (N.D.Cal.1963).
Defendant's motion based on alleged taint is denied without prejudice to its renewal at or after trial. So ordered.
C. Denial of A Speedy Trial
Accusing the Government of materially delaying the trial, defendant claims that he has been deprived of his Sixth Amendment right to a speedy trial. Defendant argues that a pretrial hearing is necessary to determine this issue.
The right to a speedy trial is considered to be defendant's personal right; it is deemed waived unless promptly asserted. A defendant must demand a speedy trial in order to preserve his Sixth Amendment right. United States v. Lustman, 258 F.2d 475, 478 (2d Cir.), cert. denied, 358 U.S. 880, 79 S. Ct. 118, 3 L. Ed. 2d 109 (1958); United States v. Maxwell, 383 F.2d 437, (2d Cir., August 8, 1967). The defendant at bar, never having demanded a speedy trial, has waived this Sixth Amendment right.
The demand rule, consistently followed in this circuit, serves the salutary purpose of insuring that the right to a speedy trial is not employed "as a sword for defendant's escape, but rather as a shield for his protection". Note, The Right to a Speedy Criminal Trial, 57 Colum.L.Rev. 846, 853 (1957). The requirement of a demand is premised "on the almost universal experience that delay in criminal cases is welcomed by defendants as it usually operates in their favor". United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir. 1963). Precedent and policy require the denial of defendant's motion.
Other circumstances strengthen that conclusion. Defendant has not shown that the six-year delay since the indictment was returned on July 20, 1961 is attributable to the Government. It would appear quite convincingly, at least on the present record, that defendant's own acts were the primary factor in the delay.
From July 20, 1961 until April 23, 1964 - the period between indictment and arrest - defendant was residing in Brazil. Whether defendant could have returned voluntarily to the United States during this time is a question that need not be decided at this time. There is no evidence before the Court on the basis of which the Government could be blamed for the pre-arrest delay of almost three years. Defendant's assertion - that the Government prevented him from returning to the United States - is unsupported by a single affidavit of any person having personal knowledge. This same contention was categorically rejected by the referee in the disbarment proceeding brought against defendant by the Association of the Bar of the City of New York in 1961. The referee's finding was subsequently approved by the Appellate Division of the New York State Supreme Court. In the Matter of Birrell, 13 A.D.2d 220, 215 N.Y.S.2d 293 (1st Dept. 1961).
Since defendant's return to the United States, the trial of the indictment has been delayed over three years. Of this period, however, it is clear that approximately thirty-three months' delay was brought about either by defendant's numerous and, in some respects repetitive, motions or his temporary inability to proceed because of change of counsel. The Sixth Amendment does not proscribe all delay but only unreasonable delay; "and a defendant cannot exploit a delay which is attributable primarily to his own acts or to which he has consented." United States v. Lustman, supra, 258 F.2d at 477.
The remaining ten months of delay was caused by the suspension of proceedings, except for emergency matters, from December 1965 until September 1966 pending the appointment by the chief district judge of a Rule 2 judge. Because the case-load in this district is extremely heavy, there are times when the Rule 2 assignment of a complex and protracted case (like the present one) must await the availability of a trial judge. Under all of the attendant circumstances of the case, the Court cannot conclude that this delay is undue. Defendant's actions have delayed the commencement of the criminal trial for thirty-three months. Moreover, if defendant was, in fact, a fugitive from justice, he is responsible for almost three years of additional delay.
In any event, this defendant's claim is barred by the demand rule, as was that of the defendants in United States v. Lustman, supra, and United States v. Maxwell, supra, where there were unreasonable delays of four and five years respectively.
Defendant's motion to dismiss based upon alleged denial of a speedy trial is denied. So ordered.
5. MOTION TO DISMISS BECAUSE OF ALLEGED DEFECTS IN THE GRAND JURY SELECTION
Defendant moves to dismiss the indictment on the ground that the grand jury did not represent a fair cross-section of the community in the Southern District of New York. He asserts that Negroes, Puerto Ricans and members of the so-called lower socio-economic strata of the community have been systematically and intentionally excluded from the array.
Two specific procedures are challenged: the use of voter registration lists as the primary source of names of grand jurors and the practice of the jury clerk to excuse prospective jurors who demonstrate that such service would cause undue financial hardship.
The method by which grand jurors are selected in the Southern District of New York has been examined and approved in numerous decisions in this circuit. Both of defendant's contentions have been reviewed and rejected. United States v. Kelly, 349 F.2d 720, 778-779 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S. Ct. 1467, 16 L. Ed. 2d 544 (1966); United States v. Bowe, 360 F.2d 1, 7 (2d Cir.), cert. denied, 385 U.S. 961, 87 S. Ct. 401, 17 L. Ed. 2d 306 (1966); United States v. Agueci, 310 F.2d 817, 833-834, 99 A.L.R.2d 478 (2d Cir. 1962), cert. denied, sub nom. Guippone v. United States, 372 U.S. 959, 83 S. Ct. 1013, 10 L. Ed. 2d 11 (1963); United States v. Greenberg, 200 F. Supp. 382 (S.D.N.Y.1961); United States v. Van Allen, 208 F. Supp. 331, 335-336 (S.D.N.Y.1962).
The use of voter registration lists as the primary source for jurors has been consistently upheld as constitutional since "it does not discriminate against any identifiable racial, social or economic group". United States v. Bowe, supra, 360 F.2d at 7. Those persons who are not registered to vote do not constitute such an identifiable group because it is "undisputed that in New York registration is available to all qualified persons, with strict legal prohibition against discrimination based on race, sex, religion, national origin or wealth. United States v. Van Allen, supra, 208 F. Supp. at 335-336.
The excusing of prospective jurors because of financial hardship has also received judicial approval. United States v. Flynn, 216 F.2d 354, 386-387 (2d Cir. 1954). Moreover, it has been repeatedly recognized that "as a practical matter and subject to proper supervision by the District Courts, jury officials must be vested with a large measure of discretion to determine whether a particular individual should or should not be excused from jury service." United States v. Kelly, supra, 349 F.2d at 779.
Since defendant has failed to set forth any facts which have not been fully considered and rejected in prior cases, the principles of stare decisis compel this Court to deny defendant's motion to dismiss. So ordered.
6. MOTION TO TAKE DEPOSITIONS
A. Toronto Stock Exchange: Defendant's Request to Take Deposition
Fed.R.Crim.P. 15(a) reads, in part: "If it appears that a prospective witness may be unable to attend or prevented from attending a trial * * *". The reasonable interpretation of the foregoing provision is that the movant must submit some factual basis, either in the form of evidence or good hearsay, reasonably implying that the "prospective witness may be unable to attend or prevented from attending a trial".
In the present case, no such showing - however liberally the motion papers are construed in favor of defendant - has been made either in the moving affidavit of defendant's attorney or in his supplemental affidavit. The latter (at pp. 26-27) simply contains his ipse dixit: "clearly the Toronto Stock Exchange * * * will be 'unable to attend or prevented from attending" " the trial.
The naked fact that the Toronto Stock Exchange is located in Canada does not, by and of itself, constitute an adequate basis for the inference that it "may be unable to attend" within the meaning of Rule 15(a). A contrary interpretation would mean that Rule 15(a) should be applied as automatically authorizing the taking of the deposition of any foreign prospective witness upon the mere allegation that the witness is located in a foreign country, assuming that the other requirements of Rule 15(a) have been satisfied.
Rule 15(a) contemplates, according to the Advisory Committee Notes, that in criminal cases depositions will be used "only in exceptional situations," (Advisory Committee's Note to Rule 15(a)); that is, Rule 15(a) does not constitute a mandatory automatic provision requiring the Court to order the deposition of any foreign witness.
Interpreting Rule 15(a), in a somewhat different though analogous factual context, Chief Judge Aldrich in In re United States, 348 F.2d 624, 625 (1st Cir. 1965) pointed out:
"He [the defendant] made no showing with respect to their [the prospective witnesses'] ability or inability to attend the trial except the bare assertion that they might not be able to appear."
The Court of Appeals, vacating the order below granting defendant's motion to take the depositions, declared that the District Court's "interpretation of Rule 15(a)" was "plainly wrong" because, inter alia, its order "made the provision regarding inability to attend the trial meaningless for all practical purposes". (348 F.2d at 626).
The statement in defendant's attorney's supplemental affidavit (p. 27) that "certainly none [of the six prospective deponents including the Toronto Stock Exchange] have volunteered to come at their own expense" is a far cry from a factual showing that the Toronto Stock Exchange may be unable to attend. Rule 15(a) does not require the prospective witness to volunteer to come to the trial nor does it require the prospective witness to come to the trial at its own expense. The circumlocution or innuendo employed by defendant's attorney skirts the material requirement of Rule 15(a) that it must be made to appear that the "prospective witness may be unable to attend or prevented from attending" the trial.
Moreover, the present motion could have been made long ago, instead of being filed on August 29, 1967 as one of a large number of other motions. Cf. United States v. Whiting, 308 F.2d 537, 541 (2d Cir. 1964), cert. denied, sub nom. Crowe v. United States, 372 U.S. 909, 83 S. Ct. 722, 9 L. Ed. 2d 718 (1965).
It should be pointed out that a separate motion by defendant, made concurrently with the instant motion, for discovery and inspection has been granted to the extent, inter alia, that defendant is permitted discovery and inspection of all records, documents, correspondence and underlying agreements relating to American Leduc obtained by the Government from the Toronto Stock Exchange.
In the exercise of its discretion, United States v. Whiting, supra, at 541, the Court hereby denies the application to take the deposition of the Toronto Stock Exchange. So ordered.
B. American Leduc Petroleums Ltd; Defendant's Request to Take Deposition
Defendant's request to depose American Leduc must also be denied because he has failed to make any factual showing that the "prospective witness may be unable to attend or prevented from attending a trial". Moreover, no showing has been made that the witness has consented or will consent to be deposed, as required by Rule 15(a). United States v. Whiting, supra, at 541. In fact, it would appear that American Leduc has refused to cooperate with defendant.
Defendant's request to depose American Leduc Petroleums Ltd. is hereby denied. So ordered.
7. MOTION TO PRECLUDE CERTAIN EVIDENCE AND TO NARROW THE SCOPE OF THE INDICTMENT
Defendant moves, pursuant to Fed.R.Crim.P. 15 and 17.1 to preclude the introduction of evidence at the trial (1) that defendant was a fugitive from justice and (2) that the acts alleged in the present indictment were part of a common plan or scheme.
Neither of the two rules cited by defendant - dealing with depositions and pretrial conferences - provides any basis or authority for the relief requested. Indeed, defendant has repeatedly stated during the oral argument that he is not requesting that a pretrial conference be held to consider these matters. (Record of Argument, August 30, 1967, pp. 667, 670, 673). Under the particular circumstances, the Court will not make a premature or anticipatory ruling as to the admissibility of this kind of evidence, which may or may not be offered. In the absence of unusual circumstances, such a determination must await the trial.
Defendant seeks to depose four named persons presently residing in Brazil, who allegedly are in a position to give testimony favorable to defendant with respect to the controverted issue of defendant's fugitive status. Once again, defendant has not submitted facts tending to show that the prospective witnesses "may be unable to attend or prevented from attending a trial". This request must be denied because of defendant's failure to comply with one of the indispensable requirements of Fed.R.Crim.P. 15. In Re United States, supra, 348 F.2d at 625.
Defendant also seeks permission to introduce into evidence at the trial the depositions of five named persons now on file with the Clerk of the Court. This request is premature because Fed.R.Crim.P. 15(e) specifically provides:
" At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears: That the witness is dead; or that the witness is out of the United States * * *; or that the witness is unable to attend or testify because of sickness or infirmity; or that the party offering the deposition has been unable to procure the attendance of the witness by subpoena * * *."
Defendant's motion is, therefore, denied without prejudice to its renewal at the trial. If defendant seeks to introduce a part or all of a deposition into evidence upon the trial, the Court will then rule on its admissibility.
Finally, defendant seeks to compel the Government to elect which counts of the indictment it will actually try. In a prior opinion, this Court denied a similar request by defendant. United States v. Birrell, 266 F. Supp. 539 (S.D.N.Y.1967). Defendant has not indicated in the slightest why or how this present demand possesses any greater merit. See United States v. Ketchum, 320 F.2d 3, 8 (2d Cir.) cert. denied, 375 U.S. 905, 84 S. Ct. 194, 11 L. Ed. 2d 145 (1963); United States v. Binstock, 37 F.R.D. 13, 16 (S.D.N.Y.1965).
Accordingly, defendant's motion is denied. So ordered.
8. MOTION FOR DISCOVERY AND INSPECTION
This motion (originally filed on September 4, 1964, revived by notice dated October 28, 1966 and supplemented by an additional notice and affidavit, sworn to August 18, 1967) seeks discovery and inspection of thirty-two items, "(a)" to "(ff)".
The motion is disposed of as follows:
This item is consented to by the Government.
This item is not within the possession, custody or control of the Government. Moreover, no showing has been made as to the materiality of the minutes of meetings held after the year the indictment was filed, 1961. This item is denied.
The Government consents to the inspection of the annual reports of American Leduc for the years 1954, 1955, 1957 and 1958, which are the only documents relating to Leduc's financial condition in the Government's possession, custody or control. The other portions of this item are denied.
Items (d), (e), (f), (h), (j), (l), (n)
These items are denied except to the extent that the Government has consented thereto. Defendant has failed to make the requisite showing required by Rule 16(b) that the records sought are material to the preparation of his defense and that his request is reasonable. Moreover, defendant's requests are so broadly phrased that the Government understandably claims that it is virtually impossible to determine whether or not the Government has such documents in its possession, custody or control.
The Government's aforesaid consent covers the records relating to American Leduc, J. A. Winston & Co. and S. A. Brooks & Company, to the extent that such records are in the possession of the United States Attorney.
Items (g), (k), (m)
The Government has consented to these items. Accordingly, they are granted.
This item is denied. The moving affidavit of defendant's then attorney, sworn to September 1, 1964 (page 6), simply states that said attorney "believes that they [Items (a) to (p)] are material to the preparation of the defense of Lowell M. Birrell". In view of defendant's failure to submit even a minimal showing of materiality and reasonableness of the request as required by Rule 16, this item is denied.
This item is denied for the reason that it represents an omnibus request without any showing of materiality. It would also appear that this item covers documents seemingly within the exception of "internal government documents" and, as such, exempt from a defendant's right of discovery under Rule 16(b).
This item is denied inasmuch as the transcripts of testimony sought fall within the exception that Rule 16(b) does not authorize the discovery or inspection of statements made by prospective Government witnesses to agents of the Government, except as provided in the Jencks Act, 18 U.S.C. Section 3500.
Items (q), (s), (t), (u), (z), (bb), (cc)
These requests are denied except to the extent hereinafter indicated.
With respect to Item (q) in so far as that item relates to testimony and statements by defendants other than Birrell, they come within the exception in Rule 16(b), that the Rule does not authorize the inspection of statements made by prospective Government witnesses or agents of the Government, except as provided in the Jencks Act. To the extent that Item (q) relates to testimony and statements of Birrell himself, he has failed to make any showing of need. Birrell has simply made a bare request without any elaboration or explanation or reference to circumstances that should induce the Court to exercise its discretion by granting the particular request. Accordingly, (q) is denied in all respects.
Item (s) is denied for the same reasons expressed with respect to Item (q).
Item (t) seeks the results obtained by the Government from "the use of electronic devices" used in the investigation of the defendant or any of the other defendants with reference to American Leduc. This item is denied in view of the representation made by the Government in the Supplemental Affidavit of Assistant United States Attorney Hammerman, sworn to September 19, 1967, page 28, paragraph 65.
Item (u) is denied for the reason that Rule 16(b) does not authorize the discovery or inspection of statements made by prospective Government witnesses to Government agents, except as provided in the Jencks Act.
Item (z) is denied for the reason that it represents an improper attempt to obtain the Grand Jury testimony of all witnesses through the medium of pre-trial discovery. Under the currently prevailing rule, the Grand Jury testimony of a Government witness is producible in the same manner as Jencks Act statements.
Item (bb) is denied for the reason that the requested material is producible in accordance with the procedure prescribed by the Jencks Act.
Item (cc) is denied for the reason that it falls within the exception of Rule 16 (b) relating to reports, memoranda or other reports of internal documents made by Government agents in connection with the investigation of the case.
This item is granted to the extent that the Government consents to making available to the defendant the requested material if and when any results or reports of scientific tests or experiments made in connection with this case come within the possession, custody or control of the Government.
This item is granted to the extent that the Government consents to the discovery and inspection of the documents referred to in said item and which are in existence and in the possession, custody or control of the Government.
This item is granted to the same extent that Item (v) has been granted.
This item is granted to the same extent that Item (v) has been granted.
The demand set forth in this item is denied. It is a dragnet request for all evidence in the Government's possession or control "favorable to or tending to exculpate or establish any defenses to prosecution of defendant". The denial of this demand is predicated upon the rationale expounded in such cases as United States v. Cobb, 271 F. Supp. 159 (S.D.N.Y.1967); United States v. Gleason, 265 F. Supp. 880 (S.D.N.Y.1967); United States v. Leighton, 265 F. Supp. 27, 35 (S.D.N.Y.1967); United States v. Manhattan Brush Co., Inc., 38 F.R.D. 4 (S.D.N.Y.1965). See also, 34 F.R.D. 155, 171-173 (1963).
This item is denied in all respects as an unjustified dragnet attempt to compel the Government to reveal the names and addresses of all its prospective trial witnesses.
Item (dd) is hereby granted to the extent that defendant is granted discovery and inspection of all records, documents, correspondence and underwriting agreements relating to American Leduc Petroleums Limited obtained by the Government from the Toronto Stock Exchange; and it is so ordered. Compliance with this order shall take place with all deliberate speed at the United States Court House, Foley Square, during regular business hours and the defendant shall be afforded reasonable opportunity to copy or photograph any such records and to make extracts therefrom.
This item is hereby granted to the extent that defendant shall be permitted to conduct a discovery and inspection of all papers and records within the possession, custody or control of the Government concerning transactions in the common stock of American Leduc Petroleums Limited which, at any time, were kept by or on behalf of Norris Allen Limited, Hydro Fiscal Co., and S. J. Brooks & Company; and it is so ordered. Compliance with this order shall take place with all deliberate speed at the United States Court House, Foley Square, during regular business hours, and the defendant shall be afforded reasonable opportunity to copy or photograph any such records and to make extracts therefrom.
Item (ff) is denied for the reason that defendant has failed to make the requisite showing of materiality to the preparation of his defense and that the request is reasonable. Moreover, the policy underlying the provision in Rule 16(b) which excepts discovery and inspection of internal government documents is applicable to information obtained by our Government agencies from foreign law enforcement agencies.
The foregoing opinion setting forth the Court's disposition of defendant's motion for discovery and inspection constitutes an order.
This appendix to the opinion consists of a chronology prepared jointly by counsel for the Government and the defense at the Court's request.*
CHRONOLOGY OF PROCEEDINGS RE 61 CR. 692 AND NEW YORK
COUNTY SUPREME COURT INDICTMENT 2490/1959
October 4, 1957 * Birrell served with subpoena to testify in SEC
v. Swan-Finch Oil Corporation
November 20, 1957 * Bench warrant issued for arrest of Birrell in
connection with SEC v. Swan-Finch Oil Corporation
January 2, 1958 * Swan-Finch Oil Corporation petition under Chap-
ter X filed in the Southern District of New York
December 2, 1958 * Equitable Plan Company petition for ancillary
relief under Chapter V filed in the Southern Dis-
trict of New York
July 1, 1959 Indictment 2490/1959 filed in New York Coun-
ty Court of General Sessions
July 24, 1959 Defendant's files seized from office of Jonathan
Dunn, Esq., Furlong, Pennsylvania
August 22, 1959 Defendant's files seized from office of Jonathan
Dunn, Esq., Furlong, Pennsylvania
August 24, 1959 Defendant's files seized from premises under
control of Jonathan Dunn, Esq., at Schulberg
Farm, New Hope, Pennsylvania
October 16, 1959 Judge Palmieri enters order directing transfer
of files seized August 22 and 24, 1959 from the
Eastern District of Pennsylvania to the custody
of the Clerk of the United States District Court
for the Southern District of New York and
granting access to various private parties and
November 10, 1959 Judge Lord of the Eastern District of Pennsyl-
vania enters order directing transfer of the
files seized August 22 and 24, 1959 from the
Eastern District of Pennsylvania to the custody
of the Clerk of the United States District Court
for the Southern District of New York and
granting access to various private parties and
December 23, 1959 * Disbarment petition before Appellate Division,
First Department, served on Birrell
January 5, 1960 * Notice of appearance filed for Birrell in disbar-
January 20, 1961 Judge Palmieri signs order on affidavit of attorneys
Equitable Plan Company trustee
authorizing removal of "numerous" unspecified
original documents from files seized from defendant
as set forth above and their delivery
for use by Securities and Exchange Commission
March 28, 1961 * Birrell disbarred by Appellate Division, First
July?, 1961 * Judge Palmieri orally authorizes United States
Attorney to take possession of and to inspect
defendant's files seized as set forth above
July 20, 1961 Indictment 61 Cr. 692 (American Leduc) filed
in this Court and issuance of bench warrant for
arrest of Birrell ordered
August 11, 1961 All defendants except Birrell plead not guilty to
American Leduc indictment
April 23, 1964 Defendant Birrell surrenders and is arrested;
appears in Southern District and pleading adjourned
at his request
May 8, 1964 William B. Pennell, Esq. assigned as counsel to
defendant Birrell; defendant Birrell pleads not
guilty to all counts; remanded to jail (at defendant's
request no bail set)
May 8, 1964 Defendant moves for order directing removal of
alleged paid informer Chester Zochowski, a/k/a
"Sureshot" Chester Gray, from cell of
defendant at Federal Detention Headquarters
May 12, 1964 After a hearing Judge Tyler denies motion of
defendant for removal of "Sureshot" Chester
Gray upon representation of Government that
it will cooperate in seeking such removal
May 28, 1964 Defendants Gilbert, Winston, and Irving and
Albert Bernstein change not guilty plea to guilty
with respect to counts 15, 24, 25 and 32; sentencing
adjourned without date and no presentence
July 1, 1964 Defendant moves for sixty days additional time
for filing of pretrial motions
July 6, 1964 After a hearing Judge Bryan grants motion for
extension of time, all motions to be returnable
by September 21, 1964, and all papers to be
served on the United States Attorney by September
September 4, 1964 Defendant moves for (1) dismissal of indictment
on ground of taint and production of grand
jury minutes in connection therewith; (2) dismissal
of counts 2 through 16 of the indictment,
or order compelling the Government to elect
which one of counts 1 through 16 it intends to
try, on the ground that such counts all charge
one and the same offense; (3) order striking
certain surplusage; (4) a bill of particulars;
and (5) certain discovery and inspection
September 9, 1964 Defendant moves for order suppressing for use
as evidence and returning to him files seized as
set forth above on July 24, 1959 and August 22
and 24, 1959
September 11, 1964 Defendant moves for order sealing files seized as
set forth above and located in Room 501 of the
Courthouse pending determination of motion for
suppression and return
September 21, 1964 Five motions (all except that for suppression and
return of files) regarding American Leduc indictment
marked off calendar on consent of all
counsel subject to restoration pending determination
of motion for suppression and return
September 22, 1964 After a hearing Judge Murphy denies defendant's
motion seeking to seal files pending determination
of motion for suppression and return
October 1, 1964 Conference of defendant's counsel and United
States Attorney before Judge Herlands in Chambers
from 10:45 A.M. to 1 P.M. to discuss defendant's
position that if his motion for suppression
and return were to come before Judge Herlands
as scheduled defendant would move to recuse
pursuant to 28 U.S.C. § 144; same afternoon
United States Attorney requests and defendant
consents to six day adjournment of motion
at which time it would come before Judge Cannella
October 19, 1964 Motion to suppress and return seized files argued
before Judge Cannella
October 27, 1964 Defendant requests of Judge Cannella opportunity
to submit certain affidavits in support of
motion for suppression and return; Judge Cannella
denies motion for suppression and return
without prejudice to its renewal on or before
November 16, 1964 to be heard on November 30,
October 30, 1964 Defendant pleads not guilty to New York County
November 16, 1964 Defendant's motion for suppression and return
November 30, 1964 Defendant's motion for suppression and return
argued before Judge Wyatt
January 6, 1965 Defendant moves for suppression and return of
evidence in New York County case
February 11, 1965 Defendant's bail fixed by Judge Weinfeld at
March 8, 1965 Defendant's motion in New York County case
for suppression and return of evidence denied
by Judge Schweitzer, holding that issue need not
be decided at that time
April 20, 1965 Upon application of New York County District
Attorney, without notification to defendant,
Judge Palmieri enters orders requiring United
States Marshal to bring defendant to Room 501
on April 22, 1965 and "on every weekday thereafter
on which defendant requests to be present"
and permitting defendant to inspect his
seized files there
April 22, 1965 Defendant moves in New York County case to
inspect grand jury minutes or dismiss indictment
April 27, 1965 Defendant moves to vacate, set aside and expunge
April 20, 1965 orders of Judge Palmieri
May 10, 1965 After a hearing held May 3, 1965 Judge Croake
denies defendant's motion to vacate, set aside
and expunge aforesaid orders of Judge Palmieri
May 19, 1965 Defendant moves in New York County case to
dismiss certain counts of indictment as being
June 1, 1965 Defendant again moves to vacate, set aside and
expunge ex parte orders of Judge Palmieri entered
April 20, 1965
Defendant files affidavit of prejudice with respect
to Judge Palmieri pursuant to 28 U.S.C. § 144
June 3, 1965 Defendant's motion in New York County case
to inspect grand jury minutes or dismiss indictment
denied by Judge Silverman
June 7, 1965 Defendant's second motion to vacate, set aside
and expunge ex parte orders of Judge Palmieri
entered April 20, 1965 comes on to be heard before
Judge Cannella, who refers it to Chief Judge Ryan
June 8, 1965 Defendant's motion in New York County case
to dismiss certain counts of indictment as being
repetitive denied by Judge Silverman
Defendant moves for appointment of law firm,
attorney or attorneys to relieve William B. Pennell,
Esq. on certain indictments including American
June 11, 1965 Defendant's motion for suppression of his files
as evidence seized August 22 and 24, 1959 granted
by Judge Wyatt (242 F. Supp. 191)
June 15, 1965 Defendant's motion for relief of William B.
Pennell, Esq. is denied by Judge Cannella without
prejudice in that it appears premature since
Judge Wyatt's suppression order may result in
termination of prosecution
Defendant moves for reduction of bail from
$150,000 to $5,000.
June 21, 1965 Government moves for reargument of Judge
Wyatt's suppression order
June 25, 1965 Government's motion for reargument of suppression
order is granted and upon reargument Judge
Wyatt adheres to decision of
June 11, 1965 (243 F. Supp. 36)
June 28, 1965 Defendant's motion for reduction of bail is
granted by Judge Cannella to extent of reducing
bail to $50,000, subject to further application
being made within a reasonable time if such bail
cannot be raised
Hearing held before Judge Wyatt on that portion
of the motion for suppression and return which
related to seizure of July
24, 1959, and argument heard
with respect to return of documents
seized August 22 and 24, 1959 already ordered
July 1, 1965 Defendant's motion for suppression and return
of files seized July 24, 1959 denied by Judge
Wyatt and Judge Wyatt enters order establishing
procedure for return of files seized August
22 and 24, 1959 previously ordered suppressed
(243 F. Supp. 38)
Defendant moves for reduction
of bail from $50,000 to $5,000
July 6, 1965 Defendant's motion for relief of William B.
Pennell, Esq. is renewed and heard along with
motion for reduction of bail from $50,000 to $5,000
by Judge Bryan
July 7, 1965 After conference before him held July 2, 1965
Chief Judge Ryan enters orders identical with
the orders previously entered ex parte by Judge
Palmieri April 20, 1965
July 27, 1965 Defendant's motion for reduction of bail from
$50,000 to $5,000 is granted by Judge Bryan to
extent of reducing bail to $15,000
July 30, 1965 Defendant released on $15,000 bail
October 14, 1965 Defendant by counsel representing him in New
York County case moves in this Court for order
returning to him certain of the files previously
ordered suppressed by Judge Wyatt
October 25, 1965 Defendant's motion by counsel in New York
County case for return of certain of the suppressed
documents is heard by Judge Cannella,
who orders defendant, Government and trustees
to attempt to reach agreement on return of files
and pending such negotiations adjourns motion
October 27, 1965 Defendant's motion for relief of William B. Pennell,
Esq. is granted
November 8, 1965 William J. Brennan, III, Esq. is appointed by
Judge Bryan to represent defendant
December 2, 1965 Government moves for appointment of judge to
case for all purposes pursuant to Rule 2
December 8, 1965 Government's motion for appointment of Rule
2 judge heard by Chief Judge Ryan
December 13, 1965 Motion of defendant by counsel in New York
County case previously adjourned by Judge Cannella
from October 25, 1965 and adjourned twice
thereafter is referred by Judge Tenney to Chief
December 15, 1965 Chief Judge Ryan denies motion of defendant
by counsel in New York County case previously
heard by Judge Cannella October 25, 1965
December 27, 1965 Harold Rothwax, Esq. sends letter to Chief Judge
Ryan regarding his order of December 15, 1965
September 27, 1966 Chief Judge Sugarman appoints Judge Herlands
to case for all purposes pursuant to Rule 2
October 17, 1966 Pretrial conference is held before Judge Herlands
October 28, 1966 Defendant moves to disqualify Judge Herlands
pursuant to 28 U.S.C. § 144, moves for order
directing United States Attorney to file an inventory
of the files seized from defendant August
22 and 24, 1959 and renews motion filed
September 4, 1964
January 4, 1967 Defendant's motion to disqualify Judge Herlands is heard
January 9, 1967 Defendant's motion to disqualify Judge Herlands
is denied (262 F. Supp. 97)
January 10, 1967 Defendant's motion to dismiss counts 2-16 of
the indictment is heard by
Judge Herlands; defendant's motion
for a bill of particulars is submitted
to Judge Herlands; the Government consents
to the motion seeking to strike certain surplusage;
defendant's motions for discovery and
inspection and for an inventory are adjourned
January 19, 1967 Defendant's motion for a bill of particulars is
granted by Judge Herlands only to the extent to
which Government has consented (263 F. Supp.
February 15, 1967 Pretrial conference held before Judge Herlands
February 27, 1967 Defendant moves for pretrial hearing with respect
to question of taint
March 14, 1967 Defendant's motions for an inventory and pretrial
taint hearing argued before Judge Herlands
April 3, 1967 Defendant's motion to dismiss counts 2 through
16 of the indictment or to compel the Government
to elect one of those counts for purposes
of trial is denied by Judge Herlands without
prejudice to renewal at conclusion of the Government's
direct case at trial (266 F. Supp. 42, at 53)
May 23, 1967 Defendant's motion for an inventory and pretrial
taint hearing is denied by Judge Herlands
May 26, 1967 Conference held before Judge Herlands to discuss
application of William J. Brennan, III, Esq.
to be relieved
June 16, 1967 Pretrial conference held before Judge Herlands
June 22, 1967 Defendant moves for enlargement of bail limits
to continental United States (excluding Alaska
and Hawaii) and Provinces of Alberta, Ontario
and Quebec in Canada; motion granted by Judge
Herlands to extent of continental United States;
pretrial conference held before Judge Herlands
June 29, 1967 William J. Brennan, III, Esq. relieved and
Charles N. Brower, Esq. appointed by Judge
Herlands in his stead