490 F.2d 126 (2nd Cir. 1974), 613, United States v. Percevault

Docket Nº:613, 73-2633.
Citation:490 F.2d 126
Party Name:UNITED STATES of America, Appellant, v. Henry C. PERCEVAULT et al., Defendants-Appellees.
Case Date:January 08, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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490 F.2d 126 (2nd Cir. 1974)

UNITED STATES of America, Appellant,


Henry C. PERCEVAULT et al., Defendants-Appellees.

No. 613, 73-2633.

United States Court of Appeals, Second Circuit.

January 8, 1974

Argued Dec. 7, 1973.

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Richard L. Shanley, Dept. of Justice (Robert A. Morse, U.S. Atty., E.D.N.Y., Denis E. Dillon, Alan R. Naftalis, Attys., Dept. of Justice, on the brief), for appellant.

Eleanor Jackson Piel, New York City, for defendant-appellee Percevault.

Frank E. Freeman, Miami, Fla., for defendants-appellees Rubinson and Cohen.

Before KAUFMAN, Chief Judge, and WATERMAN and FEINBERG, Circuit judges.


In this appeal, taken prior to trial, we are called on to consider several novel questions pertaining to discovery in criminal cases. The government appeals, pursuant to 18 U.S.C. § 3731, from an order by Judge Weinstein suppressing and excluding from introduction at the forthcoming trial of United States v. Dennis Carroll et al. statements of prospective witnesses which the government has refused to disclose to the defense. Fed.R.Crim.P. 16(g). Despite this court's leadership in the movement toward liberalized rules of criminal discovery, United States v. Youngblood, 379 F.2d 365, 368-370 (2d Cir. 1967); United States v. Giampa, 290 F.2d 83 (2d Cir. 1961); cf. Dennis v. United States, 384 U.S. 855, 874, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), we must reverse Judge Weinstein because we believe he exceeded his statutory authority.


Since the discovery stage in this criminal case has been quite prolonged and because the underlying prosecution is rather complex, it will serve clarity to turn first to the litigation that preceded Judge Weinstein's order. On April 4, 1973, Henry Percevault was named with sixteen other individuals and one corporation in a three count indictment charging conspiracy (18 U.S.C. § 371) and substantive securities law violations in connection with the sale of shares in Fleurette, Incorporated. (15 U.S.C. §§ 77q(a), 77x, 78j(b)). In addition to the co-defendants, four unindicted co-conspirators were named in the indictment. 1 Since the filing of the indictment, eight defendants have pleaded guilty to various counts and may testify for the government; four defendants are fugitives; and the charges against one defendant have been dismissed. Accordingly, only five defendants-- Henry Percevault, George Cohen, Norman Rubinson, Leonard Kozman, and Equity Financial Trading Corporation-- are currently awaiting trial.

On May 21, 1973, the lengthy process of discovery began when defendant Percevault, aided by able appointed counsel, filed a motion for severance and discovery in which he requested, inter alia, production of all confessions or statements of co-defendants as well as copies of all recorded statements made to the Securities and Exchange Commission and to the grand jury. After additional requests for disclosure were made, supported by memoranda of law and full argument, Judge Weinstein issued an order on October 10, 1973 (amended on October 26, 1973, 61 F.R.D. 338, in which he directed the government prior to trial to permit Percevault 2 to:

inspect and copy or photograph any relevant written or recorded statement or confession made (1) by the defendant Percevault, or

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(2) by any co-defendant, or (3) by any co-conspirator during the course and in furtherance of the conspiracy charged which the government intends to introduce against the defendant Percevault as his admission.

In his amended order of October 26, Judge Weinstein directed similar discovery of:

any relevant written or recorded statement or confession made by a co-conspirator after the conspiracy terminated, including grand jury testimony, reporting a statement that the government intends to introduce against the defendant Percevault as his admission because it was made by a co-conspirator in the course of and in furtherance of the conspiracy charged. 3

During the course of oral argument before us, the government represented that it does not have in its possession any statements, including wiretaps, made during the lifetime of the conspiracy, and that it has not suppressed any exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Moreover, we have been advised that the government has turned over to the defense all statements made by the five defendants who are awaiting trial and by several other defendants originally named in the indictment who will not be testifying for the prosecution. The only items the government has refused to disclose are those described by the chief Department of Justice attorney on the case in a letter to Judge Weinstein dated October 29, 1973, as:

written or oral statements or confessions made after the conspiracy terminated by co-conspirators, including co-defendants, whom the Government intends to call as witnesses at the trial . . ..

The government contends that the Jencks Act (18 U.S.C. § 3500) prohibits a district judge from compelling disclosure of a government witness' statements before the witness testifies at trial and thus, the Department's letter of October 29 is on firm ground.

Judge Weinstein, obviously dissatisfied with the strictures of the Jencks Act, made an effort to blaze new trails in the field of criminal discovery. He declared the Jencks Act inapplicable in the instant case and determined that the statements of co-conspirators, even those who are going to testify for the government, could, instead, be discovered under Fed.R.Crim.P. 16(a)-- a provision which ordinarily governs the production of only those statements made by a defendant.


The Jencks Act, 4 which is the exclusive vehicle for disclosure of statements

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made by government witnesses, Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), was intended to serve several purposes. On the one hand, it protects the rights of a defendant by requiring the court to give the defendant access to relevant prior statements of a witness after the witness has testified at trial (18 U.S.C. § 3500(b)). On the other hand, the prosecution cannot be compelled to disclose statements of the witness before he has testified on direct examination (18 U.S.C. § 3500(a)). This unique but limited discovery device represents a legislative determination that access to a witness' statements could be useful in impeaching a witness but was not intended to be utilized in preparation for trial. Palermo v. United States, supra, 360...

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