United States v. Anderson, No. 72-1069.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtWINTER and RUSSELL, Circuit , and MURRAY
Citation481 F.2d 685
Docket NumberNo. 72-1069.
Decision Date26 June 1973
PartiesUNITED STATES of America, Appellee, v. William N. ANDERSON et al., Appellants.

481 F.2d 685 (1973)

UNITED STATES of America, Appellee,
William N. ANDERSON et al., Appellants.

No. 72-1069.

United States Court of Appeals, Fourth Circuit.

Argued February 8, 1973.

Decided June 26, 1973.

481 F.2d 686
481 F.2d 687
481 F.2d 688
Philip A. Baer, Huntington, W. Va. (Baer & Napier, Robert H. Burford and Beckett, Burford & James, Huntington, W. Va., on brief) for appellants

Robert B. King, Asst. U. S. Atty. (John A. Field, III, U. S. Atty., on brief) for appellee.

Before WINTER and RUSSELL, Circuit Judges, and MURRAY, District Judge.

481 F.2d 689

DONALD RUSSELL, Circuit Judge:

The defendants were convicted by a jury of violating Section 241, 18 U.S.C., which makes it a crime for two or more persons to conspire to injure any citizen in the free exercise or enjoyment of his federal constitutional rights. The prosecution arose out of a primary election in Logan County, West Virginia. The offense involved the alleged "stuffing" of the ballot box with illegal ballots at one of the voting precincts during such election. The defendants have appealed. We find no error in the trial below and affirm.


The defendants level their first attack against the indictment itself. According to their argument, the indicment consisted of "only legal conclusions", was "totally devoid of any allegation of fact constituting or describing the offense intending (sic) to be charged", and was defective for failure "to allege that the conspiracy related to votes for candidates for Congress and the United States Senate." Even a hasty reading of the indictment, however, demonstrates that this claim is, to use the defendants' own phrase, "totally devoid" of merit. The indictment explicitly alleged that the election was "held within the State of West Virginia for the purpose of nominating candidates for the offices of United States Senator, Representative to Congress, and various state and county public offices."1a

It identified the election precinct where the alleged conspirators proposed to accomplish their illegal acts (i. e., "the Mount Gay precinct") and described with as much particularity as the indictment in United States v. Saylor (1944) 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341, the wrongful acts intended to be accomplished by the conspirators in such precinct (i. e., "to cause fraudulent and fictitious votes to be cast in said precinct"). The indictment thus stated an offense under Section 241 with as much precision as was required. Fields v. United States (4th Cir. 1955) 228 F.2d 544, 545-546, cert. denied, 350 U.S. 982, 76 S.Ct. 468, 100 L.Ed. 850; United States v. Morado (5th Cir. 1972) 454 F.2d 167, 169.


In addition to their motion to dismiss on the ground of defective indictment, the defendants filed successive motions for a bill of particulars, for a preliminary hearing, for access to the grand jury testimony, for copies of all statements of any of the defendants in the possession of the Government, and finally "for full disclosure as provided under the Omnibus Hearing Project",1 including "all documents and exhibits expected to be used in the said trial", any records or statements in the Government's files that will "tend to exculpate, absolve or exonerate any one of the defendants," and "a list of anticipated witnesses expected to be used, together with a sentence summary of their testimony." They predicated their motion "for full disclosure" on the assertion "that the indictment is so vague and indefinite that it is impossible adequately to prepare a defense or properly advise their clients", a claim which represented substantially the basis for their motion to dismiss and a claim which we have already found without merit. The defendants made no claim of "particularized need" in their other motions. In opposing the motions, the Government stated that it had in its possession no written statements of the defendants and that it had no "exculpatory

481 F.2d 690
material" in its files.2 All of the motions were denied by the District Court. We find no error in such denials, and discuss them seriatim.

(a) Motion for a Bill of Particulars

A motion for a bill of particulars is addressed to the sound discretion of the trial court, and, absent a showing of abuse of discretion, the ruling of the trial court will not be disturbed on appeal. United States v. Dulin (4th Cir. 1969) 410 F.2d 363, 364; United States v. Baggett (5th Cir. 1972) 455 F.2d 476, 477; United States v. Cooper (10th Cir. 1972) 464 F.2d 648, 654; United States v. Gray (8th Cir. 1972) 464 F.2d 632, 635. Ordinarily, the function of a bill of particulars is not to provide "detailed disclosure of the government's evidence in advance of trial" but to supply "any essential detail which may have been omitted from the indictment." Dillen v. Wainwright (5th Cir. 1971) 449 F.2d 331, 332; United States v. Cansler (7th Cir. 1969) 419 F.2d 952, 954; Hemphill v. United States (8th Cir. 1968) 392 F. 2d 45, 49, cert. denied 393 U.S. 877, 89

481 F.2d 691
S.Ct. 176, 21 L.Ed.2d 149. The information sought by the defendants in their motion was the entire range of evidence on which the Government relied, including the names of all witnesses to be used by the Government. Denial of such a disclosure, "whether requested by motion for Bill of Particulars under Rule 7(f), or by a motion for discovery under Rule 16(b), Federal Rules of Criminal Procedure", will not be considered an abuse of discretion on appeal. United States v. Baggett, supra (455 F.2d at 477). Particularly is this true where the Government, while resisting the broad scope of the motion, expresses, as it did in this case, its willingness "to provide the defendants with more details" should the defendants "frame their inquiries in such form that they may be answered without calling upon the Government to divulge its entire case." The defendants made no effort to take advantage of this offer of the Government. These circumstances in particular preclude a successful contention by the defendants that the trial court abused its discretion

(b) Demand for a Preliminary Hearing

Nor can a defendant demand a preliminary hearing after indictment, which was the posture of the prosecution when the defendants moved for a preliminary hearing. Section 3060(e), 18 U.S.C.; United States v. Mackey (4th Cir. 1973) 474 F.2d 55, 57; United States v. Farries (3d Cir. 1972) 459 F. 2d 1057, 1061, cert. denied 409 U.S. 888, 93 S.Ct. 143, 34 L.Ed.2d 145; United States v. Coley (5th Cir. 1971) 441 F.2d 1299, 1301; United States v. Chase (4th Cir. 1967) 372 F.2d 453, 467, cert. denied 387 U.S. 907, 87 S.Ct. 1688, 18 L. Ed.2d 626; Braxton v. Peyton (4th Cir. 1966) 365 F.2d 563, 565, cert. denied 385 U.S. 939, 87 S.Ct. 306, 17 L.Ed.2d 218.3 The purpose of a preliminary hearing is not to provide a discovery mechanism for the defendant, though this may be a collateral or incidental benefit from the hearing, but merely to determine "whether probable cause exists to bind an accused for action by a grand jury." United States v. Chase, supra, 372 F.2d at 467; United States v. Mackey, supra, 474 F.2d at 57; United States v. Brumley (10th Cir. 1972) 466 F.2d 911, 915; cf., Ross v. Sirica (1967) 127 U.S.App. D.C. 10, 380 F.2d 557.4 After indictment, a preliminary hearing "would be an empty ritual". Barber v. United States (4th Cir. 1944) 142 F.2d 805, 807, cert. denied 322 U.S. 741, 64 S.Ct. 1054, 88 L.Ed. 1574; Sciortino v. Zampano

481 F.2d 692
(2nd Cir. 1967) 385 F.2d 132, 133, cert. denied 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 872; United States v. Daras (9th Cir. 1972) 462 F.2d 1361, 1362, cert. denied 409 U.S. 1046, 93 S.Ct. 545, 34 L.Ed.2d 497; Crump v. Anderson (1965) 122 U.S.App.D.C. 173, 352 F.2d 649, 655-656; Dillard v. Bomar (6th Cir. 1965) 342 F.2d 789, 790, cert. denied 382 U.S. 883, 86 S.Ct. 176, 15 L. Ed.2d 123; Vincent v. United States (8th Cir. 1964) 337 F.2d 891, 896, cert. denied 380 U.S. 988, 85 S.Ct. 1363, 14 L.Ed.2d 281, reh. denied 381 U.S. 947, 85 S.Ct. 1775, 14 L.Ed.2d 713.5

(c) Discovery of Grand Jury Testimony

Except for his own testimony, a defendant is not entitled of right to pre-trial access to the testimony before the grand jury: The obligation of the Government is merely to make available to the defendant the testimony of a witness before the grand jury at the conclusion of the direct testimony of such witness at trial and then only if the defendant shows a "particularized need" for such disclosure.6 This was our holding in United States v. Johnson (4th Cir. 1969) 419 F.2d 56, 59, cert. denied 397 U.S. 1010, 90 S.Ct. 1235, 25 L. Ed.2d 423.7 Even where a defendant alleges a "particularized need" (which the defendants have not done in this case), the denial of access at trial will be disturbed on appeal only if the finding by the trial court against the claim of "particularized need" was clearly erroneous. United States v. Bryant (4th Cir. 1966) 364 F.2d 598, 600; Posey v. United States (5th Cir. 1969) 416 F.2d 545, 557, cert. denied 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127, reh. denied 397 U. S. 1031, 90 S.Ct. 1267, 25 L.Ed.2d 544. This ruling conforms with the Jencks Act, as amended in 1970, Section 3500(e)(3), 18 U.S.C.8 and is in line with the majority rule as established in the several circuits. United States v.

481 F.2d 693
Daras (9th Cir. 1972) 462 F.2d 1361, 1362, cert. denied 409 U.S. 1046, 93 S.Ct. 545, 34 L.Ed.2d 497; United States v. Quintana (10th Cir. 1972) 457 F.2d 874, 878, cert. denied 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130; United States v. Doe (1st Cir. 1972) 455 F.2d 1270, 1274; United States v. Harflinger (8th Cir. 1970) 436 F.2d 928, 935, cert. denied 402 U.S. 973, 91 S.Ct. 1660, 29 L. Ed.2d 137; United States v. Bass (8th Cir. 1973) 472 F.2d 207, 210; see, also, Proposed Amended Rule 16 (VI) (3), Federal Rules of Criminal Procedure, 48 F.R.D., at 590

(d) Motion for Full Disclosure as Part of Omnibus...

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