The opinion of the court was delivered by: COSTANTINO
By way of an indictment filed in this court on June 30, 1970, the Government charges that the Executive Board of the Seafarers International Union met on August 27, 1962 to create a special political action fund -- Seafarers Political Activity Donation (SPAD). The Government further charges that SPAD was nothing more than a device used by the union to conceal unlawful political contributions.
In furtherance of the conspiracy, the Government alleges that the defendants, through SPAD, received contributions from seamen scattered throughout the world and made unlawful political contributions totaling more than $750,000 in connection with federal elections in the years 1964 through 1968.
Now, ten years after the alleged beginning of the conspiracy and four years after the last wrongful act charged in the indictment, the defendants move for dismissal. Basically, the defendants set forth two grounds for dismissal -- failure of the Government to comply with the pretrial orders of this court and for want of a speedy trial. In order to conserve judicial time and energy, the court will rule on both branches of this motion in bar.
Failure to Comply with Pretrial Disclosure Orders
As the court and parties know all too well, this criminal prosecution has been the subject of lengthy pretrial proceedings before two judges of this court.
These proceedings have resulted in orders granting most of the defendants' requests under rules 7(f), 16 and 17 and providing them with information that they, as well as the court believed to be essential to informing them of the crime with which they are being charged in addition to providing information necessary to defense preparation. In moving dismissal, the defendants argue that the Government has disregarded the orders of this court by supplying answers that are partially incomplete and at times at variance with each other.
The Government, on the other hand, contends that even though some of the court's orders went beyond what the Government believed case law required, nevertheless, it argues it has complied in good faith and to the best of its ability. Further, the Government suggests the defendants' objections are little more than challenges to the quantum and quality of the evidence the Government will educe at trial rather than being valid objections to the Government's compliance with the court's orders. After listening to the oral arguments of very able counsel and upon rereading the voluminous record, the court must grant this branch of the defendants' motion.
At the December 15, 1971 hearing on the defendants' pretrial motion and in a written order filed by the court on January 25, 1972, the Government was directed and redirected on March 23, 1972 to provide answers to bill of particulars requests designated as I-A, I-B, I-C, III-B, III-C, III-G(ii), III-I(ii)-(v) and III-M. These requests were designed to inform the defendants of: (1) the composition of the SPAD fund; (2) the circumstances surrounding contributions to SPAD, and (3) overt acts not listed in the indictment upon which the Government intended to offer proof on trial. After examining the Government's responses in each of these three topic headings, non-compliance is manifest.
At the outset, the Government theorized that SPAD was merely the alter ego of the union itself. See Indictment Count 17. Consequently, from the Government's viewpoint, it served no purpose to categorize the type of monies collected in the fund since any act of SPAD would in itself be deemed an act of the union, and therefore, be proscribed by the statute. See note 1 supra. Later, during an informal hearing before Judge BARTELS, the Government stated it was not certain who had contributed to the fund but refused, in any case, to categorize the type of monies in the fund. On December 15, 1971 this court directed the Government to furnish in a bill of particulars information concerning the fund's composition. A response came on February 10, 1972 and consisted of two representations by the Government: first, it had no information other than that which it learned from the union's cash receipts and, second, that it did not allege "other monies collected from members of the Union" or "other monies collected from persons required to pay or tender Union membership obligations" to be sources of SPAD fund monies. Then, after being redirected by the court to respond, on April 24, 1972, the Government answered that some of the money in the fund came from dues, union assessments, fines, penalties, " other monies collected from members " and " other monies collected from persons required to tender or pay union membership obligations," with the bulk of the fund coming from involuntary contributions. Moreover, the Government claimed it had no data on what portion of the fund was attributable to each of the categories nor did it explain its inclusion 22 months after the filing of the indictment of two categories of sources that were specifically excluded 20 months after filing the indictment.
Again responding, though still offering no explanation for expanding its list of alleged sources, the Government reaffirmed its inability to provide information concerning the amount of monies collected annually on a category basis. The Government, instead, continued to rely on a chart it furnished showing for the years 1966-1968 the source and amount of SPAD receipts for each union membership classification. The Government also noted the prior disclosure of its position on the voluntariness or involuntariness of SPAD contributions as keyed to the various union membership classes.
In light of these arguments, the court has no choice but to find inexplicable inconsistencies in the Government's responses. Further, the court finds the Government's failure to state the amount of monies attributable to each alleged category is in itself noncompliance with the court's order. Obviously, for the Government to state in good faith that some of the monies in the fund were attributable to each category directly implies that, at bare minimum, the Government must have information to show at least one contribution for each category in at least one of the years covered by the indictment. Yet, the Government professes it has no data that will provide this information. Clearly, contradictory responses cannot even be raised to the level of colorable compliance. Thus, on the issue of fund composition, the Government has failed to comply with the court's pretrial orders.
With respect to contributions deposited in the SPAD account chargeable to other monies collected from members of the union as well as from persons required to pay or tender union membership obligations, the court directed the Government to particularize the circumstances under which these monies were collected. In its original February 1972 response, the Government did not furnish these particulars because it represented that it did not allege either of these categories to be sources of SPAD funds. Changing its position two months later, the Government referred the defendants to a computer printout from the union's electronic data tapes.
The Government argues that the computer printouts provide the defendants with a complete and informative record of each transaction resulting in a contribution to the SPAD account -- name of the seaman, his book number and membership classification, the port of payment together with the amount of payment and the identity of the port agent, in addition to the receipt number of the payment. Further, the Government notes, it attached explanations of the port and port agent codes utilized in the printouts. Arguing on a different plane, the Government also contends the defendants' reliance here on language used by this court in its memorandum and order of March 30, 1972 is misplaced. The Government points out that the language used by the court related to request III-M concerning overt acts rather than relating to requests dealing with the circumstances surrounding contributions to SPAD.
The Government's response fails to comply with the orders of this court. Its response particularized neither the conversations nor the circumstances surrounding contributions made to the SPAD account. Though the Government is correct in stating that the language quoted from the court's memorandum and order dealt specifically with request III-M, it is also unquestionable that the court on that point was dealing with the very nature of the computer printout data. Surely information the court expressly found not in compliance with a direction to give the circumstances involved in one type of transaction cannot be held to be compliance with a similar order respecting other transactions.
The history of the Government's responses on this order are similar to its responses on the two previous orders. After the Government was directed to furnish the overt acts upon which it intended to rely, it turned over to the defendants a carton of computer printouts containing approximately 24,000 names and recording approximately 76,000 transactions resulting in contributions to SPAD. Additionally, the Government set forth eight alleged transactions with paraphrases of the conversations at the time of the transactions. When the court specifically held these responses not to be in compliance with the court's prior order, the Government pared its list to 14 pages of computer data involving 120 different seamen. The Government also increased from eight to 22 the number of transactions covered in nonprintout form.
These changes, however, do not affect the basic nature of the original response; a response held not to be in compliance with the court's orders. But, more importantly, this court warned in its March 30, 1972 memorandum and order that it would not be sufficient merely to reduce the number of transactions alleged to be overt acts. The court suggested to the ...