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UNITED STATES v. MCCARTHY

October 31, 1968

UNITED STATES of America,
v.
Jack McCARTHY, James Plumeri, a/k/a Jimmy Doyle, Leonard Russo, and David Wenger, Defendants



The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

 Defendants are charged with conspiracies to bribe an officer of an employee pension benefit fund with intent to influence the officer's decisions respecting mortgage applications submitted to the fund. Each indictment covers a separate mortgage application. Defendant David Wenger, an officer of the fund, is charged in the second count of 68 Cr. 467 with receiving a bribe to influence his decision on a mortgage application.

 These motions seek a bill of particulars, discovery and inspection, severance, suppression of evidence, dismissal of the indictments, and production of a witness. We consider them in order.

 BILL OF PARTICULARS

 The motion for a bill of particulars under Fed.R.Crim.P. 7(f) demands from the government such information as dates and places when each defendant entered the conspiracy; the substance of the conspiracy agreement, if oral, or a copy, if in writing; specifications of the manner in which the conspiracy operated; and evidence which might tend to exculpate the defendants or cast doubt on the credibility of government witnesses or on the validity of the charges in the indictments. Defendants also seek the names of those who made the payments listed in the overt acts, the names of witnesses to such payments, and the names of any informers.

 The purpose of a bill of particulars is to aid the accused in preparation of his defense, to prevent surprise at trial and to permit the accused, "after judgment, * * * to plead the record and judgment in bar of a further prosecution for the same offense." *fn1" It is not intended, however, to give defendants a preview of the government's case. *fn2"

 The exact dimensions of this conspiracy, like most others, may never be known. Secrecy and concealment are the hallmarks of conspiracy. *fn3" Granting particulars concerning the formation of the conspiracy, the place and date of each defendant's entrance into the conspiracy, the substance, or a copy, of the conspiracy agreement, and specifications of the manner in which the conspiracy operated would unduly limit the government's proof at trial. Moreover, if defendants were given the minutiae they seek, the slightest discrepancy between the particulars and the evidence at trial would open the door to defendants' attempts to confuse the jury. *fn4" Finally, it would be "tantamount to a preview of * * * [the government's] case in advance of trial and compel a disclosure of its evidence * * *." *fn5"

 Turning to the remaining items, defendants seek with a dragnet any evidence which might exculpate any defendant or cast doubt on the credibility of government witnesses or on the validity of the charges in the indictments.

 Disclosure of exculpatory evidence is the government's obligation wholly apart from a demand for particulars. *fn6" A demand for exculpatory evidence is, therefore, unnecessary. Moreover, the dragnet approach stamps these demands as an impermissible fishing expedition. *fn7"

 Particulars seeking the names of witnesses have almost uniformly been denied. *fn8" The names of informers are privileged. Their identity need not be disclosed until defendants show that disclosure is relevant, necessary and helpful to the defense. *fn9" No such showing is made here. Defendants are entitled, however, to the names of persons who paid money to the defendants at the times and places alleged in the overt acts. *fn10"

 The government has consented to provide: "(a) the names of co-conspirators known to the government; (b) the dates, times and places of the overt acts alleged insofar as they are known; and (c) the title, office, and relationship of defendant David Wenger to the Central States, Southeast and Southwest Area, Pension Fund." These particulars will afford defendants ample opportunity to prepare for trial, prevent surprise and avoid the danger of double jeopardy.

 The motions for bills of particulars are denied, except that the government shall provide the names of those who paid money to defendants, as alleged in the overt acts, and except insofar as the government has consented.

 DISCOVERY AND INSPECTION

 All defendants, with the exception of Plumeri, move in the broadest possible language for discovery and inspection under Rule 16(a) of their own statements or confessions. McCarthy, for example, seeks "all written or recorded statements or confessions made by this defendant * * * including, but not limited to, matters which may appear in the grand jury minutes, logs, transcripts of, or on any tapes of, any electronic surveillance pertaining to this defendant, any co-defendant, or informer or co-conspirator." The demands of the others are more limited.

 All defendants proceed on the assumption that the 1966 amendments to Rule 16 make such disclosure automatic. Neither Russo nor McCarthy has given any reason for discovery and inspection other than the passage of time between the overt acts alleged and the indictment itself. Wenger, however, states that discovery and inspection are necessary to enable him to object to the admission of the statements at trial, or, if admissible, to rebut them.

 It is difficult to find in the language of Rule 16 the basis for defendants' assumption that disclosure of a defendant's own statements is automatic. Before the amendments, there was sharp controversy on the subject of whether a defendant was entitled to his own statements at all. *fn11" Amended Rule 16(a) states on its face that the court may order such disclosure. *fn12" This permissive, rather than mandatory, language clearly calls for the exercise of discretion. *fn13" "The term 'discretion' denotes the absence of a hard and fast rule. * * * When invoked as a guide to judicial action it means a sound discretion, that is to say, a discretion exercised not arbitrarily or wilfully, ...


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