The opinion of the court was delivered by: DOOLING
Defendants were indicted on March 24, 1971, in three counts. The first count charged them with conspiring to commit mail and wire frauds and to harbor a person wanted on a Federal warrant issued upon a charge of parole violation. Broadly, the charge of the indictment was that the defendants had formed a scheme to defraud those seeking and those granting mortgage loans by forming a straw company having no real assets which would for a fee issue commitment or "take-out" letters by which it bound itself to purchase construction loan mortgages made by lending institutions. Such commitment letters were meant to enable prospective borrowers to obtain mortgage financing for construction projects which the lending institutions would not otherwise finance because of their unwillingness to make long term real estate mortgage loans. The fraud consisted in defrauding prospective borrowers of the fees they paid for the worthless commitment letters and defrauding the lending institutions by inducing them to lend in reliance on the worthless commitment letters. The conspiracy count contained the allegations descriptive of the scheme, Count 2 specifically charged the commission of the wire fraud, and Count 3 specifically charged the harboring offense.
A central figure in the alleged conspiracy was one Edward Wuensche. Wuensche was not named as a defendant; he was charged as a co-conspirator, and he was the Government's principal and indispensable witness. Wuensche was the person allegedly harbored by the defendants. It was charged that the defendants had furnished Wuensche with false identification papers so that he could under the name of Williams act as an officer of the straw company formed to issue the commitment letters without risk of arrest. A parole violation warrant had been issued for Wuensche's arrest in July of 1968. The period covered by the indictment is September 1, 1968, to August 31, 1969.
All of the defendants were convicted on Counts 1 and 2 and all were acquitted on Count 3, the harboring charge.
Defendants have moved to set aside the adverse verdicts and for a new trial on the ground that the Government failed, after request, to make available to them one Catherine Wuensche, a potential witness whose whereabouts were known to the Government but not to the defendants, and who at the times in question was living with the witness Edward Wuensche, had been married to him, and was, apparently, living with Wuensche at Government expense and under Government protection.
At the trial, during the cross-examination of the witness Edward Wuensche, counsel for the defendant Emmons demanded that the Government produce Catherine Wuensche or disclose her whereabouts so that she could be subpoenaed. Government counsel, insisting on an in camera statement, advised the Court out of defendants' hearing that Mrs. Wuensche was a British National and outside the United States and could not be compelled to attend. (Tr. 429A) The reason assigned for making an in camera statement was to secure the safety of the witness Wuensche and that of his wife. At a later stage in the trial there was an indication by counsel that some stipulation could or might be made to cover certain testimony that Mrs. Wuensche might have been expected to give. However, that program failed when the testimony of the Government witness Gold, in the stated opinion of defense counsel, indicated that Mrs. Wuensche might have specific knowledge which would enable her to be a witness to facts in the case.
After the evidence closed counsel for defendant Emmons requested a charge that the jury may infer from the with-holding of a witness within a party's control that the testimony would be unfavorable to the party failing to call the witness (Tr. 1442). Reference was made to the witness Wuensche's testimony that he was living in protective custody at Governmental expense and that Mrs. Wuensche, as she had become, was living with him (Tr. 414-416). It was argued that presumptively Mrs. Wuensche was as available as was her husband (Tr. 1454). Government counsel, still apparently unwilling or conceiving himself unable to disclose more, indicated that it was simply the fact that Mrs. Wuensche was unavailable as a witness. After further discussion the charge dealing with governmental failure to call a witness was presented to counsel and discussed substantially in the form in which it was later charged (Tr. 1783-1784) and defense counsel were asked whether they were waiving the whole question of the availability of Mrs. Wuensche if the charge was given (Tr. 1473). Counsel promptly declined to waive. It was pointed out then that defendants were certainly entitled to the charge on the failure of the Government to produce the witness in the absence of a concrete showing that the witness was unavailable to the Government for production (Tr. 1484). It was suggested that a telephonic interview between the witness and defense counsel might be arranged by the Government to enable the defense to determine whether they wished to call Mrs. Wuensche as a witness, the Government having indicated that it was persuaded that it could neither compel her appearance nor bring about her voluntary appearance (Tr. 1488-1489). Counsel for defendant Emmons insisted that he wanted the uncalled witness charge, saying that there certainly must be power to coerce the witness's appearance, and, if not, that her whereabouts should be disclosed so that the defense could see to managing her appearance (Tr. 1489-1490). After consultation the Government offered to provide a telephonic link for any or all of the defendants to speak to Mrs. Wuensche or to forward any communications to her that counsel wished under appropriate safeguard of their secrecy; Government counsel declined, however, to disclose her address, stating that Mrs. Wuensche had asserted to members of the Government that her life had been threatened by one of the defendants and that as a consequence she had no intention of placing herself anywhere near him (Tr. 1493-1494). Counsel for defendant Emmons then suggested that the charge be given as requested, pointing out that the responsibility of the defense was to present live testimony and not a substitute for it, and that Government counsel had really said nothing except that they would not produce the witness and could not do so (Tr. 1494-1945). The Government offered to join defense counsel in recording a telephone interview with Mrs. Wuensche and reading it to the jury, or in having her testimony 'phoned to the jury, in effect, by having her examined by telephone, or presented to the jury through a tape recording of an examination conducted by telephone, which then could be played to the jury. Counsel for defendant Emmons rejected the suggestion arguing that it failed to accord Sixth Amendment rights (Tr. 1496). When the Government again urged the absence of any security measures for the witness, it was argued in answer that the Government ought to be able to secure her during her testimonial period at least (Tr. 1506-1507).
Government counsel finally indicated to the defense that his information was that Mrs. Wuensche was not a United States national (Tr. 1507). Further discussion disclosed that the witness was neither a United States national nor within the continental United States, but beyond the process of the Court. At length counsel for the defendant Emmons explicitly and unequivocally applied for a subpoena to compel the attendance of Mrs. Wuensche as a witness (Tr. 1517-1520).
On the next court day it was reported that an effort had been made to serve a subpoena on Mrs. Wuensche with a tender to her of sufficient funds to cover her transportation to the court house, she had declined to accept the service and refused to abide by the command of the subpoena (Tr. 1556-1559). When the defense argued that there was no explanation for having the witness beyond reach of subpoena, Government counsel insisted that the extraterritorial location of the witness Wuensche and of Mrs. Wuensche reflected a decision of the McClellan Committee (Tr. 1565-1566). When counsel pointed out that there was no evidence and no public record of that fact (Tr. 1573-1574), the Court stated that if the defendants wanted a full dress investigation that it would request the Government to delay the trial and afford defendants an opportunity to take Mrs. Wuensche's deposition at some place other than her then place of refuge on the issue or her willingness to appear as a witness, the reason why she was where she was and what her apprehensions were (Tr. 1575). At that point counsel for defendant Emmons asserted that he was ready to sum up saying, "I was willing to concur in your suggestion originally about deferring the hearing and everything if it became necessary." Counsel indicated that he intended in summation simply to say that Mrs. Wuensche had not appeared to support her husband's testimony (Tr. 1577). All that was said was said by counsel for defendant Emmons in his summation (Tr. 1674);
"And, incidentally, you may have noticed that even though Wuensche testified without contradiction a couple of times that he was living with his wife and that apparently his wife didn't think enough of the story to come here and support it in any respect."
After verdict, as had been indicated earlier, the parties were invited to make any appropriate motion to determine the facts with respect to Mrs. Wuensche's availability as a witness, the explanation of her unavailability, if it existed, and, finally, whether she was testimonially qualified as a witness in the case and if so what the contents of her testimony would have been.
Accordingly under an order made after verdict and before judgment of conviction the testimony of Mrs. Wuensche was taken in London, England, by counsel for the Government and counsel for the defendant Emmons acting for himself, and the defendants Wolfson and Zavod. The testimony was taken on March 9, 1972, and filed in Court on April 6, 1972.
It appears from Mrs. Wuensche's testimony, accepting it as true in these respects, that she was a native of England (Tr. 2) and that she had never become a citizen of the United States by naturalization or otherwise and was travelling under a British passport as was her daughter (Tr. 81-84). She in substance confirmed that she had been subpoenaed to return and testify in the trial during November 1971 but had refused to do so, and had insisted that there was no one who had any power to make her return (Tr. 85-87).
She testified further that, having earlier been in Florida she, Mr. Wuensche and her daughter went from Florida to Washington during the period when Mr. Wuensche was testifying before the sub-committee of the Senate. During that period they were told that they were in protective custody and the marshals advised them that they were not to discuss anything with anyone and to remain in their rooms. After Mr. Wuensche had testified before the sub-committee they were told they could leave the United States and did leave from Washington. Mr. Wuensche bought the tickets in Mrs. Wuensche's presence at the airport in Washington. The marshals were present when the tickets were purchased and the marshals drove Mr. and Mrs. Wuensche and the latter's daughter, in a government vehicle to the airport and assisted them throughout the process of boarding the airplane ...