U.S. v. Cannone, 142

• Decision Date: 17 February 1976
• Docket Number: No. 142,D,142
• Citation: 528 F.2d 296
• Parties: UNITED STATES of America, Appellant, v. Frank S. CANNONE et al., Appellees. UNITED STATES of America, Appellant, v. Raymond D. MASCIARELLI and Lawrence Schultz, Appellees. ocket 75--1201.
• Court: U.S. Court of Appeals — Second Circuit

Page 296

528 F.2d 296

UNITED STATES of America, Appellant, v. Frank S. CANNONE et al., Appellees.

UNITED STATES of America, Appellant, v. Raymond D. MASCIARELLI and Lawrence Schultz, Appellees.

No. 142, Docket 75--1201.

United States Court of Appeals Second Circuit.

Argued Sept. 4, 1975.

Decided Sept. 26, 1975.

Rehearing and Rehearing En Banc

Denied Feb. 17, 1976.

Eugene Welch, Asst. U.S. Atty. (James M. Sullivan, Jr., U.S. Atty., N.D.N.Y., of counsel), for appellant.

Dante M. Scaccia, Syracuse, N.Y. (Love, Balducci & Scaccia, Syracuse, N.Y.), for appellees Masciarelli and McGrath.

James P. Shanahan, Syracuse, N.Y., for appellee Lawrence Schultz.

Before SMITH, HAYS and MESKILL, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

The United States appeals from an order entered by Judge Port in three criminal cases pending in the United States District Court for the Northern District of New York, requiring the pretrial disclosure of the names (and addresses) of all the government's witnesses and providing for the exclusion of the testimony of those witnesses not duly identified. The defendants contend that the order was within the court's discretion, and most of them also claim that the order is not appealable. ¹ The government contends that the order is appealable and that the court lacked authority to enter the order or, in the alternative, that the issuance of the order constituted an abuse of discretion. We hold that the order is appealable, that the court had authority to enter it, but that the record does not establish that under the circumstances of this case the order was within the allowable scope of the court's discretion. We reverse and remand.

Two indictments and twelve defendants are involved in this appeal. One indictment contains three counts charging eleven persons. Ten of these persons are charged in count one with conducting an illegal gambling business in violation of 18 U.S.C. §§ 2 and 1955 and in count two with conspiring to conduct such a business in violation of 18 U.S.C. § 371. The third count of the first indictment charges one of the ten and an eleventh with obstruction of justice by beating a grand jury witness in violation of 18 U.S.C. §§ 2 and 1503. The second indictment charges one of the defendants charged in the first indictment and a twelfth with unlawful use of interstate wire communication facilities in the business of betting, in violation of 18 U.S.C. §§ 2 and 1084(a). The four counts included in the two indictments have been ordered apportioned among three trials: a trial of the first two counts of the first indictment, a trial of the third count of the first indictment, and a trial of the single count of the second indictment.

On March 11, 1975, after various discovery motions relating to statements, recordings, and similar matters, a discovery order was entered in which the court inadvertently included an order for pretrial discovery of the names (and addresses) of the government's witnesses. ² The government promptly moved that this provision be reconsidered and stricken. In support of its motion, the government emphasized that two of the defendants were already charged with beating a grand jury witness, and it submitted to the court for in camera inspection materials purportedly evidencing two additional instances of attempts to influence witnesses. In opposition to the motion, the defendants contended that disclosure of the identity of the government's witnesses was necessary to the preparation of an adequate defense and that the accusation that two of the defendants had beaten a grand jury witness was unfounded. On April 18, 1975, after examining the materials submitted by the government, the court denied the government's motion, but, at the government's request, on May 1, 1975, the court amended its March 11 order by adding the provision that the testimony of any government witness whose identity was not disclosed would be excluded at trial. The government appealed the amended order on May 8, 1975.

The first question raised is the appealability of the order. We agree with the Sixth Circuit that such an order is appealable under 18 U.S.C. § 3731 because of its provision for the sanction of exclusion. ³ See United States v. Battisti, 486 F.2d 961 (6th Cir. 1973).

The next question is whether the district court had the discretion to enter an order requiring the government to disclose the identity of its witnesses. As the government concedes, nowhere in the United States Code or the Federal Rules of Criminal Procedure are district courts explicitly authorized or forbidden to order pretrial disclosure of government witnesses in non-capital cases. As far as this question is concerned, however, we reject the government's contention that the trial court had no general discretion to require the disclosure of the identity of the government's witnesses. See United States v. Richter, 488 F.2d 170, 173--74 (9th Cir. 1973):

It is recognized that wide latitude is reposed in the district court to carry out successfully its mandate to effectuate, as far as possible, the speedy and orderly administration of justice. 'A federal court has the responsibility to supervise the administration of criminal justice in order to ensure fundamental fairness.' United States v. Baird, 414 F.2d 700, 710 (2d Cir. 1969), cert. denied, 396 U.S. 1005, 90 S.Ct. 559, 24 L.Ed.2d 497 (1970). It would be ill-advised to limit improvidently this inherent power for fear of misuse. The firing point of the legal system is with the trial judge who is best situated to administer the law and protect the rights of all. Such discretion is not limitless, but appellate review provides a proper check. Therefore, we are not disposed to hold that the district court may never order the government to divulge names of prospective witnesses.

The general discretion of district courts to compel the government to identify its witnesses is acknowledged widely, although the source of this discretion is subject to some disagreement. ⁴

The government's arguments in support of its contention that district courts lack general discretion to compel the disclosure of the identity of government witnesses are not persuasive. First, apparently relying on the maxim inclusio unius est exclusio alterius, the government argues that Congress' requirement of pretrial disclosure of the identity of government witnesses in capital cases under 18 U.S.C. § 3432 demonstrates that Congress intended no such disclosure in non-capital cases. At most, however, even assuming Congress to be a totally consistent body, the enactment of § 3432 and of no other specific provisions for pretrial disclosure of government witnesses indicates that Congress did not intend that district courts be compelled to order such disclosure in non-capital cases--an indication which is by no means inconsistent with district courts possessing the discretionary power to order such disclosure.

The government's second argument is equally dubious. The government contends that 18 U.S.C. § 3500(a) and a parallel provision in Fed.R. Crim.P. 16(b), which prohibit the compulsory pretrial disclosure of statements of government witnesses, somehow evidence Congress' intent that district courts not have the discretion to compel the pretrial disclosure of the names of government witnesses. Ironically, however, application here of the maxim inclusio unius est exclusio alterius, implicitly invoked by the government in its first argument, supports the argument that Congress elected not to restrict the courts' power to compel pretrial disclosure of the identity of government witnesses (in non-capital cases).

The government's final line of argument is perhaps the most dubious of all. It centers on two of Congress' recent alterations of the proposed amendments to the Federal Rules of Criminal Procedure. Specifically, Congress deleted Proposed Rule 16(a)(1)(E), 62 F.R.D. 305 (1974), which would have mandated pretrial disclosure of the names of government witnesses upon defense demand, and made a conforming change in Proposed Rule 16(d)(1), 62 F.R.D. 307 (1974), which would have enabled the government in some instances to obtain a protective order against disclosure demands made pursuant to Proposed Rule 16(a)(1)(E). 121 Cong.Rec. H 7681 (daily ed. July 28, 1975). The government argues first that the fact that these amendments were initially proposed indicates that district courts at that point did not have the authority to compel disclosure of the identity of government witnesses. This argument is clearly without merit. In the first place, the contemporaneous opinions of the sponsors of these proposed amendments are not legally determinative of the present power of district courts. Secondly, the proposed amendment provided for a general right to discovery of government witnesses on the part of defendants, not discretionary judicial power to compel such discovery. And even if it had provided for discretionary power of this sort, often legislatures codify non-statutory law or recodify ambiguous statutory law. Without a trace of misgivings about this first argument, the government proceeds to make the additional one that Congress' deletion of Proposed Rule 16(a)(1)(E) somehow buttresses the government's contention that district courts do not have the authority to compel pretrial disclosure of the identity of its witnesses. Once again, the government appears to manifest the belief that the current opinions of Congress are in some way determinative of the legal power of federal courts. Perhaps, the government ignores the fact that, although Congress has acted on the proposed amendments to the Rules, these amendments, with one immaterial exception, will not take effect until December 1, 1975. Even if these amendments were assumed to be currently in effect and even if Congress were assumed to have the power under the Constitution to restrict the courts' authority to require pretrial...