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UNITED STATES v. PAGEAU

November 30, 1981

UNITED STATES of America, Plaintiff,
v.
Stephen PAGEAU and Leonard Welch, Defendants



The opinion of the court was delivered by: MINER

MEMORANDUM-DECISION and ORDER

I.

 BACKGROUND.

 Defendants are Corrections Officers employed by the New York State Department of Correction at the Clinton Correctional Facility. In the indictment they are charged with depriving John Eng, an inmate of the facility, of rights protected by the Constitution and laws of the United States, in violation of 18 U.S.C. § 242. Specifically, it is alleged that defendants "... did, aiding and abetting each other, willfully strike, beat and assault John Eng ..." on July 5, 1980. Claiming to be in possession of a certain videotape depicting the alleged incident, the Government moved for a pretrial determination respecting the admissibility of that evidence. Defendants objected to the holding of a pretrial evidentiary hearing and moved to exclude the videotape or its sound portion. In the event that a hearing were held, they sought disclosure of the grand jury testimony of certain named and unnamed witnesses who testified to the authenticity of the tape, of the names and addresses of the witnesses who had custody of it, and of all documents relating to its chain of custody. Defendants' motion also included a demand for a transcript of the grand jury testimony of John Eng, production of Mr. Eng's prison record and a bill of particulars.

 II.

 THE RIGHT TO A PRETRIAL DETERMINATION OF ADMISSIBILITY.

 A motion respecting the admissibility of evidence made prior to trial must be determined prior to trial, unless the Court, for good cause, directs that it be deferred for determination until trial or until after the verdict; however, deferral is prohibited if a party's right to appeal would be affected adversely. Rule 12(e) Fed.R.Crim.P. Defendants argued that the issue of admissibility of the videotape was not capable of determination without a trial of the general issue and that a pretrial hearing would require duplication of a substantial part of the trial. United States v. Barletta, 644 F.2d 50 (1st Cir. 1981). Since the videotape in question was only one item of evidence, albeit an important one, the Court found that the question of its admissibility was not bound up with the trial of the general issue and that a substantial part of the trial would not be duplicated. Pretrial determinations of admissibility are favored, especially where, as here, the Government's right to appeal from the determination would be barred by the attachment of double jeopardy after the commencement of trial. United States v. Appawoo, 553 F.2d 1242 (10th Cir. 1977); United States v. Winnie Mae Mfg. Co., 451 F. Supp. 642 (C.D.Cal.1978); 18 U.S.C. § 3731. Accordingly, the Court directed that a pretrial hearing be held for the purpose of determining the admissibility of the videotape.

 III.

 THE ISSUE OF CLOSURE OF THE PRETRIAL HEARING.

 Following the Court's determination to conduct a pretrial evidentiary hearing regarding the admissibility of the videotape, defendants moved to exclude the public and the press from the hearing, asserting that the necessary viewing of the tape would prejudice their right to a fair trial. Although they argued generally that this prejudice would arise in the context of the exposure of the tape to prospective jurors, they offered no specific evidence of potential harm. While it has been held that there is no independent Sixth Amendment right on the part of the public to attend pretrial hearings, Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1978), it would appear that First Amendment requirements mandate some minimum demonstration that pretrial publicity will jeopardize a fair trial and that moreover, alternatives less burdensome than closure are not available. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980); United States v. Edwards, 430 A.2d 1321 (D.C.App.1981). Since defendants made no showing of potential harm whatsoever, and since a less restrictive means to guarantee a fair trial, namely the voir dire examination of prospective jurors, is available, this Court denied the motion for closure after a showing of the tape in camera. However, because no determination as to the admissibility of the tape was made during the hearing, and the tape was not received in evidence at that time, the public and the press were denied the right to inspect and copy it. See In re Application of National Broadcasting Co., Inc., 635 F.2d 945 (2d Cir. 1980).

 IV.

 THE USE OF GRAND JURY TESTIMONY AT THE HEARING.

 Defendants contended that they were entitled to the grand jury testimony of certain witnesses in connection with their challenge to the authenticity of the videotape at the pretrial hearing. Their reliance on the Jencks Act in support of that contention was misplaced, for the statute does not require the discovery or inspection of a prior statement by any Government witness "... until said witness has testified on direct examination in the trial of the case." 18 U.S.C. § 3500. Clearly, a pretrial hearing on the admissibility of evidence is not a trial, and the Court therefore denied the discovery requested. See United States v. Ramirez, 506 F.2d 742 (5th Cir. 1975); see also United States v. Spagnuolo, 515 F.2d 818 (9th Cir. 1975).

 With respect to their application to obtain a copy of the entire grand jury testimony of John Eng, the alleged victim, defendants asserted that they have a "particular need" for this information, because only Eng and the United States Attorney have knowledge of the events occurring outside the view of the video camera. Rule 6(e)(3)(C)(i) Fed.R.Crim.P. The testimony at the hearing indicated that there are others who have this knowledge, and defendants have failed to establish a need particularly related to their defense. United States v. Frumento, 405 F. ...


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