United States v. Pierce

• Decision Date: 09 November 1917
• Citation: 245 F. 888
• Parties: UNITED STATES v. PIERCE et al.
• Court: U.S. District Court — Northern District of New York

245 F. 888

UNITED STATES v. PIERCE et al.

United States District Court, N.D. New York.

November 9, 1917

Frederick A. Mohr, of Auburn, N.Y., for the motion.

D. B Lucey, U.S. Atty., of Ogdensburg, N.Y.

RAY District Judge.

1. The counts of this indictment as to which a bill of particulars is demanded charge a continuing conspiracy to commit a crime or crimes against the United States and overt acts committed in pursuance and execution thereof. As to the times and places when and where the conspiracy was entered into, the indictment is sufficiently definite and specific-- as definite and specific as safely to the rights of the United States it can be made, and, clearly, it is so definite specific, and certain in these regards that the defendants are put on notice and cannot be harmed by reason of indefiniteness in the allegations. The place is the city of Albany, N.Y., and the time is each and every day from April 6, 1917, to the date of the indictment.

2. I do not think the United States attorney should be compelled to undertake to disclose the names of persons solicited by the defendants or the particular time or days when such solicitation took place, or to undertake to give the language used by defendants in making such solicitations further or more specifically than is set forth in the indictment. It is sufficient to put the defendants on notice as to what they must meet on the trial. The general substance of what is alleged to have been stated by them is set forth.

3 and 4. The same remarks apply to claims 3 and 4 of the notice or demand for a bill of particulars.

Generally the indictment gives the names of some of the persons to whom the pamphlets were given and distributed, and also states that the names of the persons solicited are to the grand jurors unknown. It is also stated that the various places in Albany-- that is, the particular places where the circulars were circulated and distributed by defendants-- are to the grand jurors unknown.

When the charges of an indictment are so general that they do not advise the defendant of the specific acts of which he is accused, the court may direct that a bill of particulars be furnished him so that he may properly prepare his defense. Kettenbach v. United States, 202 F. 377, 382, 120 C.C.A. 505. The granting or refusal of the bill of particulars rests in the sound discretion of the court. Rosen v. United States, 161 U.S. 29, 35, 16 Sup.Ct. 434, 480, 40 L.Ed. 606; Breese v. United States, 106 F. 680, 682, 45 C.C.A. 535. When a bill of particulars is once made and served, 'it concludes the rights of all parties who are to be affected by it; and he who has furnished a bill of particulars under it must be confined to the particulars he has specified, as closely and effectually as if they constituted essential allegations in a special declaration. ' Commonwealth v. Giles, 1 Gray (Mass.) 466, cited and approved in Dunlop v. United States, 165 U.S. 486, 491, 17 Sup.Ct. 375, 41 L.Ed. 799. In United States v. Adams Express Co. (D.C.) 119 F. 240, it is said:

'The office of a bill of particulars is to advise the court, or more particularly the defendant, of what facts, more or less in detail, he will be required to meet, and the court will limit the government in its evidence to those facts set forth in the bill of particulars.'

It is seen that this court ought not to direct a bill of particulars which if made and served may seriously limit and embarrass the government in its legal proof and result in shutting out evidence of certain pertinent facts not now fully known to the United States attorney. It is not to be presumed the United States will offer false or perjured testimony on the trial, and, in view of the nature of the case and of the charges made, it may be assumed the defendants know when and where they made speeches, if any solicitations, if any, and the nature and character thereof, and also the names of the persons solicited, if any particular person was solicited. I do not think the government should be compelled to disclose the names of its witnesses. It is charged in the indictment that August 26, 1917, the defendants made personal solicitations (meaning in aid and execution of the conspiracy charged) from 'various persons whose names are to the grand jurors unknown. ' If the names are unknown to the grand jurors, it is fair to presume such names are unknown to the United States attorney. The court should not require that officer to undertake to give information he does not possess or in default shut out competent proof on the trial. It is charged as an overt act that August 26, 1917, in and about the city of Albany, the defendants and each of them made public speeches in aid and execution of the conspiracy. The indictment gives the names of some...