United States v. Vignera
| Decision Date | 09 December 1969 |
| Docket Number | No. 69 Cr. 425.,69 Cr. 425. |
| Citation | 307 F. Supp. 136 |
| Parties | UNITED STATES of America, v. Michael VIGNERA, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Robert M. Morgenthau, U. S. Atty., Southern District of New York, New York City, for the United States; Walter M. Phillips, Jr., Asst. U. S. Atty., of counsel.
Joshua N. Koplovitz, New York City, for defendant.
Defendant Vignera was indicted on 2 counts of conspiracy to rob a bank, 16 counts of bank robbery and 3 counts of receiving proceeds therefrom. At trial Vignera was acquitted of all 16 counts relating to the substantive act of bank robbery. As to the remaining counts, the 2 for conspiracy and the 3 for receiving bank robbery proceeds, the jury was unable to reach a unanimous verdict. The Government now moves, prior to a second trial on these 5 counts, for an order requiring Vignera to provide a handprinting exemplar tracking the words of a note given a bank teller during the course of a robbery.
Defendant resists this motion upon five grounds.
1. That despite Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), requiring him to write the "very words of the hold-up note" is violative of his Fifth Amendment rights. However, the Second Circuit, in United States v. Doe, 405 F.2d 436, 438 (1968) has specifically rejected this contention.
2. That laches is a good defense. He claims that the Government seeks this exemplar on the eve of the second trial without any attempt to excuse its failure to make an earlier application. He complains that since he is "repeatedly barred" from making motions after an initial time period following arraignment has passed unless he can establish a good reason for its untimeliness, the Government should be held to a similar standard.
Defendant is not "repeatedly barred" or severely restricted in the time allowed for making motions. See Rule 12(b) (2) and (3), F.R.Crim.P. Motions more strictly limited as to time are those pursuant to Rules 7 and 16, F.R.Crim.P. Even these motions, though untimely, may still be considered. United States v. Federman, 41 F.R.D. 339 (S.D.N.Y. 1967); 8 Moore's Federal Practice ¶ 16.04.
Most importantly, the Government is here attempting to ascertain a physical characteristic of defendant. As is the case with fingerprints or height and weight, it is an item or piece of information that can properly be taken from defendant when he is in the Government's custody. This is not the type of information discoverable under either Rule 7 or 12, and procedure by way of motion is normally unnecessary. The Government brings on its request by motion at this time primarily to insure compliance. Thus, the Government's motion is not barred because of untimeliness.
3. That the time of...
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United States v. Rogers
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