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November 5, 1975

Edward PASTOR and Martin Weiner, Defendants

The opinion of the court was delivered by: MOTLEY


 MOTLEY, District Judge.

 Defendants in this case have moved to compel the Government to produce " all statements purportedly made by the defendants upon which the Government intends to rely at the trial of this case." (Letter of October 28, 1975 from Richard H. Kuh) (emphasis in original). They do not, at this time, seek "the entire statements of witnesses, nor for attribution to particular witnesses, but merely seek copies of (or the gravamen of) all statements allegedly made by the defendants upon which the Government will rely." (Id. ; emphasis in original).

 Apparently, the Government has agreed to produce statements allegedly made by defendant Pastor to Drug Enforcement Administration agents, but has resisted the production of statements allegedly made by the defendants to non-governmental third parties during the course of the conspiracy, contending that such statements are "3500 material" (18 U.S.C. § 3500) which need not be produced until trial. Defendants argue that the plain language of Rule 16(a) of the Federal Rules of Criminal Procedure requires that the Government produce the requested materials, and relies on a series of cases dealing with the scope of Rule 16(a) and -- to a certain extent -- with its interaction with 18 U.S.C. § 3500. In rejoinder, the Government argues that U.S. v. Percevault, 490 F.2d 126 (2d Cir. 1974) is dispositive of the issue in this case and requires that defendants' motion be denied.

 The precise point of contention appears to be whether a liberal reading of Rule 16(a) entitles the defendant in a criminal trial, before trial, to inspect and copy statements made by him that are contained in statements made by non-governmental third parties which are within the possession, custody or control of the Government, and upon which the Government intends to rely at trial. The court concludes that the defendants are not entitled to such discovery.

 Percevault, supra, dealt with a somewhat different question, specifically whether Rule 16(a) entitled the defendants to pretrial discovery of the statements of prospective witnesses which would be treated at trial as the defendant's own statements through the vicarious admission exception to the hearsay rule. Reversing the District Court, the Court of Appeals held that the language of Rule 16(a) did not permit such liberal discovery, especially in view of the strictures of 18 U.S.C. § 3500. However, the court did not have before it the specific question raised in this case, where the statements sought are those of the defendant himself, as allegedly related by a third party.

 The precise issue here involved was thoroughly discussed in U.S. v. Feinberg, 371 F. Supp. 1205 (N.D.Ill.1974), a case in which Judge Marshall concluded that the defendant was entitled to such discovery. However, the Court of Appeals for the Seventh Circuit reversed this decision in a persuasive opinion, U.S. v. Feinberg, 502 F.2d 1180 (1974). The Court cited with approval, inter alia, U.S. v. Dorfman, 53 F.R.D. 477 (S.D.N.Y.1971), aff'd, 470 F.2d 246 (2d Cir. 1972), in which Judge Gurfein had refused to allow pretrial discovery of witnesses' written statements which purportedly contained oral statements made to them by the defendant.

 In concluding that 18 U.S.C. § 3500 barred pretrial discovery of the requested statements, the Court of Appeals in Feinberg also referred to the recent amendment to Rule 16 of the Rules of Criminal Procedure, which are now scheduled to become effective on December 1, 1975. As proposed by the Supreme Court and enacted into law, Pub.L.No.94-64, 89 Stat. 370, the revised Rule 16(a)(1)(A) will require the Government to "permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government; the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent; and recorded testimony of the defendant before a grand jury which relates to the offense charged."

 Both the notes of the Supreme Court's Advisory Committee, 62 F.R.D. at 307, and the Congressional legislative history of the revision, see 1975 U.S.Code Cong. and Admin. News 1368, 1390, make clear that even this limited provision represents an expansion of the scope of pretrial discovery available to criminal defendants under existing federal law. To the extent that the law may differ among the circuits, there presently appears to be no clear warrant in the Second Circuit for granting discovery beyond the scope of that which will be permitted by the amended Rule 16 as of December 1. However, it would seem unduly restrictive, in view of the fact that trial of this case will occur well after December 1, to grant any less discovery than that which will soon be clearly permissible under amended Rule 16.

 Accordingly, the Government is ordered to produce any and all materials to which defendants are entitled under the provisions of amended Rule 16 as set forth, supra. The Government is not required to produce the substance of oral statements purportedly made by the defendants and contained in statements of third parties except as provided by the provisions of amended Rule 16.


 On Motion To Dismiss Indictment

 Defendants were originally indicted on July 31, 1975 and charged in four counts with violating the Federal Controlled Substances Act *fn1" and in a separate count with conspiracy so to do. *fn2"

 Thereafter, on February 11, 1976, a new and different Grand Jury returned a superseding indictment. The second indictment charged an additional substantive violation of the Controlled Substances Act allegedly occurring about the time that the other substantive charges occurred.

 In addition, the superseding indictment made certain other changes. In Count 1, the conspiracy count, the superseding indictment alleges that the conspiracy took place in "the Southern District of New York and elsewhere". The original indictment had charged that the conspiracy occurred in the Southern District of New York. In Overt Act 5 of Count 1, the alleged number of phendimetrazine tablets was changed to read "one million" instead of "two million" as originally charged. Overt Act 6 in the new indictment deleted a reference to Philadelphia as the place where the alleged forgery of a signature took place. The date in Overt Act 7 was changed to read, "In or about 1974, at the APA Transport terminal in Philadelphia", instead of "In or about 1973, in the APA Transport terminal in Philadelphia," originally alleged. In Count 2 "100,000 phendimetrazine tablets" was changed to read "100,000 phendimetrazine capsules" in the second indictment. In Count 3, "In or about September, 1973" was changed to read in the superseding indictment, "In or about September, 1973" was changed to read in the superseding indictment, "In or about August 1973", and the number of phendimetrazine tablets was changed to read "2,000,000 phendimetrazine tablets" in lieu of "250,000." In Count 4, the original indictment reads, "From October 1973 up to and including June 1974" defendants obtained possession of "980,000 phendimetrazine tablets" in the Southern District of New York, whereas the superseding indictment changed the dates to read, "In or about September and October 1973", and the number of tablets was changed to read "250,000 phendimetrazine capsules."

 Defendants made an oral motion to dismiss the superseding indictment on February 18, 1976 on the ground that the indictment had been returned by a Grand Jury which had been presented with hearsay evidence in violation of the Second Circuit's decision in United States v. Estepa, 471 F.2d 1132 (1972). Defendants also relied upon United States v. Gallo, 394 F. Supp. 310 (D.Conn.1975).

 The Assistant United States Attorney, in response to the motion, candidly advised the court on the record substantially as follows: When the matter was presented to the original Grand Jury, Charles Fernald, an alleged unindicted co-conspirator, testified before the Grand Jury concerning nine separate transactions. Other witnesses were also presented to the original Grand Jury. In presenting the matter to a new and different Grand Jury in February 1976, the jury heard only one live witness. That witness was Charles Fernald who testified regarding a 10th transaction only. The Grand Jury was presented with a transcription of Charles Fernald's testimony before the original Grand Jury regarding the other nine transactions. The Assistant United States Attorney frankly admitted that he failed to advise the Grand Jury specifically that it was free to question Charles Fernald about his prior testimony. The Assistant did ask the jury whether it had any questions for Mr. Fernald, but he did not make clear to the jury that it was free to demand live testimony before it from Mr. Fernald rather than rely upon the cold record. The Grand Jury had no questions for Mr. Fernald and returned the superseding indictment.

 In United States v. Estepa, supra, the Second Circuit ruled: "We have previously condemned the casual attitude with respect to the presentation of evidence to a grand jury manifested by the decision of the Assistant United States Attorney to rely on testimony of the law enforcement officer who knew least, rather than subject the other officers, or himself, to some minor inconvenience" (at 1135).

 The Second Circuit admonished that, "When the framers of the Bill of Rights directed in the Fifth Amendment that 'No person shall be held to answer for a capital, or other infamous crime, unless on a presentation or indictment of a Grand Jury,' they were not engaging in a mere verbal exercise" (at 1136).

 It also reminded United States prosecutors that "The importance of avoiding undue reliance upon hearsay before a grand jury is heightened by this circuit's view that an indictment constitutes a finding of probable cause and avoids the need for a preliminary hearing under F.R.Cr.P. 5(c)" (at 1136).

 In failing to advise the Grand Jury that it could question Mr. Fernald regarding his prior testimony or have him testify before them as to those transactions, the Grand Jury which returned the superseding indictment may well have been misled as to "the shoddy merchandise they [were] getting so they [could] seek something better if they wished." United States v. Estepa, at 1137.

 The court finds that in this case the Assistant United States Attorney unwittingly violated the direction of the Second Circuit that the Grand Jury not be deceived as to the shoddy merchandise it was getting.

 In United States v. Gallo, supra, my brother Zampano correctly observed, as the courts have previously held, that the accused has a right to have a Grand Jury make the charge on its own judgment. This includes the right to have the Grand Jury make its own evaluation of the credibility of an important Government witness. The court agrees that what effectively occurred here was a rubber stamp action by the second Grand Jury. United States v. Gallo, at 314.

 As my brother Zampano further pointed out in Gallo, in United States v. Umans, 368 F.2d 725 (2d Cir. 1966), the Second Circuit specifically mandated that hearsay evidence should only be used when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge. Mr. Fernald was present and could easily have testified before the second Grand Jury. The prosecutor admittedly did not enlighten the Grand Jury as to the hearsay quality of the bulk of the evidence they were receiving. The prosecutor also failed to advise the Grand Jury that Mr. Fernald could be questioned by them concerning his prior testimony or testify regarding all other transactions so that they might evaluate his credibility.

 Finally, the prosecutor's action here resulted, unwittingly, in depriving defendants of Jones Act, "3500 material," which would have emanated from testimony of Mr. Fernald before a second Grand Jury. Cf. United States v. Ramirez, 482 F.2d 807, 813 (2d Cir. 1973). As the Second Circuit said in United States v. Borelli, 336 F.2d 376 (1964), the Government ought not to be allowed to deprive a defendant of his right to impeachment by contradiction.

 For all of the foregoing reasons the motion to dismiss the second indictment must be granted.

 ON OMNIBUS MOTION [May 11, 1976]

 Defendants Edward Pastor and Martin Weiner have presented the court with an omnibus motion supplementary to their previous omnibus motion, which was filed on January 5, 1976. The requests embodied in this more recent motion will be dealt with seriatim.


 Defendants have moved, pursuant to Rule 12, Fed.R.Crim.P., and on the authority of United States v. Strewl, 99 F.2d 474 (2d Cir. 1938), cert. den., 306 U.S. 638, 59 S. Ct. 489, 83 L. Ed. 1039, reh. den., 306 U.S. 668, 59 S. Ct. 590, 83 L. Ed. 1063 (1939), for an order dismissing the original indictment in this case, 75 Cr. 753, which was filed on July 31, 1975, and which has been "superseded" by another indictment, 76 Cr. 253, which was filed on March 12, 1976. Both indictments allege that defendants conspired to violate Sections 812, 841(a)(1), 843(a)(2), and 843(a)(3) of Title 21, United States Code, and that they committed certain substantive offenses in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2. The superseding indictment differs from the original indictment in that it contains one additional substantive count and makes changes in several dates, numbers, places and other items.

 The crucial passage from the Strewl case, relied upon by defendants, is as follows (at 477):

"It is true that if the defendant has pleaded to the first indictment, the court will ordinarily quash it to insure his protection from double jeopardy (United States v. Maloney, Fed.Cas.No.15,713a); but it does not here appear that Strewl had ever pleaded to the first indictment, and if he had, it would make no difference, because in any event an order was necessary."

 In opposing this motion, the Government, in turn, relies on the following passage from Strewl (at 477), part of which precedes and part of which follows the previous quotation:

"The 1934 indictment was not quashed by the indictment of 1937. The order which 'found' it 'insufficient' did not attempt to dismiss it; and although a second indictment is often said to 'supersede' the first, it does not dispose of it without an express quashal. . . . As things were, both indictments stood and the prosecution was free to elect on which to proceed."

 As the Government points out, the prescription in Strewl, that the trial court should quash a "superseded" indictment if the defendant has already "pleaded" to it, is, strictly speaking, dictum; Strewl himself had not "pleaded" to the first indictment. Moreover, the concern for double jeopardy problems expressed in the quotation is meaningful only if the rule is read to require dismissal of a superseded indictment when a defendant has pleaded guilty to the first indictment and thus has been put in jeopardy on that charge. The ordinary rule is that jeopardy only "attaches" in a criminal case when a petit jury is empaneled and sworn, Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975); United States v. Glover, 506 F.2d 291, 294 (2d Cir. 1974), or, in a non-jury case, when the trial judge begins to hear evidence in the case. United States v. Jenkins, 490 F.2d 868, 875 (2d Cir. 1973), aff'd, 420 U.S. 358, 95 S. Ct. 1006, 43 L. Ed. 2d 250 (1975). The fact that a defendant has pleaded not guilty to a now superseded indictment does not create any possibility of double jeopardy which requires dismissal of the first indictment at this time. If the Government should attempt to try him on the first indictment after he had already been tried on the second (superseding) indictment, he could clearly raise the defense of double jeopardy at that later date. It is undoubtedly for this reason that the prevailing practice in this judicial district is to require dismissal of superseded indictments only after a conviction or plea on the superseding indictment.

 Defendants' only other argument against preservation of the original indictment is that "there is no rational basis for artificially keeping [it] alive", and that it is not a "true charge" but merely "a mode of keeping this matter open while [the Government] tinkers with a series of other charges." This is clearly an insubstantial contention, for which defendants have cited no authority. The Government has the right -- and indeed the obligation -- to go to trial with an indictment which the prosecutor feels accurately represents the circumstances constituting the alleged criminal activity. This court is certainly unable to say that there could be no rational basis for preservation of the original indictment.

 The motion to dismiss the original indictment, 75 Cr. 753, is, accordingly, denied.


 Defendants have also moved for an order dismissing the second superseding indictment, 76 Cr. 253, because of allegedly improper statements or comments by the Government attorneys before the grand jury and because of the nature of the evidence presented to the grand jury. Disposition of this branch of their motion must await further inquiry into the grand jury proceedings.

 However, defendants have also moved preliminarily, pursuant to Rule 6(e), Fed.R.Crim.P., for an order directing disclosure to them of all proceedings before the grand jury which returned the instant superseding indictment, including those proceedings which antedated the return by that same grand jury of a "No True Bill". In the alternative, they ask that those minutes be disclosed to the court for in camera inspection. Inasmuch as the Government has consented to such an in camera inspection, no further discussion of this request is necessary. The requested minutes will be delivered to the court no later than May 12, 1976.

 Defendants have made a further request, however, which is vigorously opposed by the Government. Based upon the history of the Government's attempts to obtain superseding indictments in this case, as outlined briefly below, defendants ask for a hearing to determine "whether any comments were made, and, if so, the content thereof, by the Government attorneys to the Grand Jury or to any Grand Jurors that were not recorded or transcribed and which may have influenced the decision of the Grand Jury or individual Grand Jurors in their deliberations."

 On February 11, 1976, a grand jury, different from the grand jury which had returned the original indictment in July of 1975, returned a superseding indictment identical to the instant indictment. After it had appeared to the court, through admissions of the Assistant United States Attorney assigned to the case, that the evidence presented to this grand jury had consisted in large part of readings of the transcript of prior testimony before the previous grand jury, this court dismissed the indictment so returned for improprieties more fully set forth in the court's opinion dated February 19, 1976. On the following day, apparently after receiving further presentation by the Government, the same grand jury which had voted the February 11 indictment voted not to return a new indictment, but rather to return a No True Bill. At the time the No True Bill was filed on February 20, 1976, however, the foreman of the grand jury requested that the Part I judge either direct the defendants to appear in an identification lineup, or order that a photographic identification be held. Upon the judge's order, additional evidence was thereafter presented to the same grand jury, and the second superseding indictment, now before the court, was returned and filed on March 12, 1976.

 Based upon this chronology, defendants advance two theories on which they base their request for further inquiry into the prosecutor's conduct before the grand jury. In the first place, they apparently argue that the prosecutor's conduct in obtaining the first superseding indictment (now dismissed) and the speed with which the prosecutor sought to obtain the subsequent indictment both suggest that he may have again utilized the same questionable practices which led to this court's prior dismissal. This court's in camera examination of the grand jury transcripts will be adequate to reveal whether hearsay was utilized, whether the grand jurors were advised that they were receiving hearsay evidence, and whether the jurors were advised that they could question any witnesses concerning any previous testimony which they may have delivered to another grand jury.

 The only remaining question on this branch of defendants' motion is whether investigation of their second allegation of alleged prosecutorial misconduct before the grand jury merits the requested hearing. Defendants argue that the behavior of the grand jury on February 20, in returning a No True Bill and simultaneously requesting further identification procedures, is suggestive of either (1) prosecutorial pressure to vote precipitously, only one day after the preceding indictment had been dismissed, or (2) prosecutorial pressure, after the vote had been taken, to have the grand jury take more evidence and reconsider its failure to indict. Moreover, they suggest more generally that the whole course of the proceedings before the grand jury is "inherently unreliable".

 Determination of this question must begin with a consideration of Rule 6(e), which provides, in relevant part, that persons having knowledge of grand jury proceedings

"may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury."

 Thus, the showing of some valid grounds for a motion to dismiss is a precondition to a hearing revealing the grand jury proceedings.

 Defendants assert that "improper statements or comments by the Government attorneys to the Grand Jury that prejudice the [defendants]" constitute grounds for dismissing the indictment. It is true, as the Government notes, that the authority cited by defendants for this proposition, United States v. Daneals, 370 F. Supp. 1289, 1296 (W.D.N.Y.1974), does not deal with the specific problem of improper prosecutorial comments before the grand jury, but rather with an instance of off-the-record remarks by a Government employee who was improperly present at secret grand jury proceedings, in violation of Rule 6(d), Fed.R.Crim.P. And it is also true that the court in Daneals apparently relied upon the cumulative effect of that and other errors in grand jury proceedings to dismiss 150 selective service indictments which were returned in that District after four days of grand jury deliberation. However, despite the somewhat inapposite nature of the citation to Daneals, it seems conceivable to the court that some prosecutorial comments before the grand jury could be so clearly improper as to warrant dismissal of an indictment, if the defendants had been prejudiced thereby. The only question at this juncture is whether defendants have made a sufficient showing to warrant a hearing.

 The Government argues, first, that even if the prosecutor had urged the grand jury to vote precipitously, the defendants were not injured thereby, since the grand jury voted a "No True Bill" anyway. That is certainly true as to that one occasion; however, the broader inquiry suggested by defendants is whether the pressure hypothetically placed upon the grand jurors which was reflected in their February 20 action also led to a vote in favor of indictment on earlier (February 11) and later (March 12) occasions.

 The Government also argues, without citation of authority, that, even if the prosecutor attempted to persuade the grand jury to consider more evidence and to reconsider its return of "No True Bill", it had an absolute right to do so. While this may be true as a general principle, the clear implication of the defendants here is that the prosecutor went beyond merely requesting further consideration and exerted undue and improper pressure on a grand jury unwilling to indict. And the prejudice inuring to the defendants from any impropriety here is clear: they were again indicted. It is no answer to say, as the Government contends, that the defendants would have great difficulty in establishing any prejudice at a hearing because the same grand jury and another had already indicted them for virtually identical offenses. The court cannot rule, as a matter of law, that defendants could not show that they were prejudiced under these circumstances.

 While it is true that the "courts generally have been most cautious in invalidating indictments for alleged grand jury misconduct of the prosecutor," Beatrice Foods Co. v. United States, 312 F.2d 29, 39 (8th Cir. 1963), cert. den., 373 U.S. 904, 83 S. Ct. 1289, 10 L. Ed. 2d 199 (1963), this court is persuaded that defendants have made a sufficient showing of possible impropriety and resultant prejudice to warrant a hearing to investigate their allegations. See, United States v. Rintelen, 235 F. 787, (S.D.N.Y. 1916) (Augustus Hand, D. J.) In the court's view, the limited nature of the inquiry requested by defendants will not offend those considerations which have led to the general policy of secrecy for the grand jury proceedings. See, United States v. Procter & Gamble Co., 356 U.S. 677, 681 n.6, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958).

 The defendants' motion for a hearing is, accordingly, granted. The hearing will be held on Monday, May 17, and will be limited to the question whether there were any improper off-the-record remarks by the prosecutor. Testimony of Assistant United States Attorney Timbers and of the grand jury reporter will be received. The court's ruling that defendants have made the requisite showing to ...

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