United States v. Ball

Citation547 F. Supp. 929
Decision Date16 June 1981
Docket NumberNo. CR-2-81-9.,CR-2-81-9.
PartiesUNITED STATES of America, Plaintiff, v. Jay BALL, Defendant.
CourtU.S. District Court — Eastern District of Tennessee

COPYRIGHT MATERIAL OMITTED

Guy W. Blackwell, Asst. U. S. Atty., Greeneville, Tenn., for plaintiff.

W. Gordon Ball, Newport, Tenn., and A. Benjamin Strand, Jr., Dandridge, Tenn., for defendant.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

The defendant moved pretrial, "* * * pursuant to T.C.A. §§ 40-2044, 40-2441, and the due process clause of the Fourteenth Amendment of the United States Constitution, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) * * *," for an order requiring certain discovery of the prosecution. Such motion lacks merit and hereby is

DENIED.

The aforecited provisions of the Tennessee Code Annotated provide no authority for discovery in a United States District Court. Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and its progeny created no right of federal pretrial discovery.* United States v. Moore, C.A. 6th (1971), 439 F.2d 1107, 1108; see Weatherford v. Bursey (1977), 429 U.S. 545, 559, 97 S.Ct. 837, 845, 51 L.Ed.2d 30, 426; United States v. Clevenger, D.C. Tenn. (1978), 458 F.Supp. 354, 3563.

ON MOTION FOR CONTINUANCE

A grand jury on April 6, 1981 returned a 10-count indictment against the defendant Mr. Jay Ball who was at all times pertinent hereto under the supervision of probation officers of this Court, charging that on or about certain dates alleged in each count thereof and within the jurisdiction of this Court he sold certain described motor vehicles which were parts of and constituted interstate commerce, when he knew each such motor vehicle was stolen. See 18 U.S.C. § 2313. In the absence of his retained counsel, who was then engaged in a protracted criminal trial in the Middle District of Tennessee, Mr. Ball appeared on April 16, 1981 for arraignment on such indictment. The Court entered his pleas of not guilty to each such count and assigned trial thereon, as requested by his counsel, to commence Monday, May 18, 1981. It was estimated then that such trial would require 5 days.

After the conclusion of the aforesaid trial in the Middle District of Tennessee, the motion of the defendant for certain discovery was denied. See memorandum opinion and order herein of April 29, 1981, 547 F.Supp. 931. He moved on May 6, 1981, 547 F.Supp. 931, for a continuance of trial, and in such motion suggested that the trial will require 2 weeks, as opposed to 5 days; the defendant's attorney asserted therein also that he lacks adequate time to prepare a defense for his client, specifically because "the discovery material will not be available until the 11th day of May, 1981." The defendant also moved for subpoenas to issue and be served at government-expense on certain named witnesses.

Furthermore, the Court is advised informally that the respective attorneys for the government and this defendant are in discussion of a possible plea-agreement. Rule 11(e), Federal Rules of Criminal Procedure. There was no notification to the Court of the existence of any such agreement at the arraignment of the defendant; although no other time, prior to trial, was fixed by the Court for pretrial motions, etc.; and good cause has not been shown for the failure of the required notification, see Rule 11(e)(5), Federal Rules of Criminal Procedure.

It was requested informally also on May 6, 1981 that disclosure of the agreement be made in open court on May 7, 1981, at which time neither the presiding judge nor the official court reporter assigned to this Division will be available. The Court is confronted with the national observance of a holiday on May 25, 1981 and the standing date for a memorial service for deceased state judges and attorneys on the afternoon of May 27 following. In addition, a 3-week trial of a civil action, which has been long-delayed and long-assigned, is to commence in another Division of this Court on June 1.

If notice of such an agreement, as is in discussion, is given the Court, the Court is authorized to defer decision on its acceptance or rejection until having had opportunity to consider, Rule 11(e)(2), Federal Rules of Criminal Procedure, the presentence report, Rule 32(c)(2), Federal Rules of Criminal Procedure. The defendant may give written consent for such presentence report to be made and for the Court to inspect it upon the notice of the agreement, see Rule 32(c)(1), Federal Rules of Criminal Procedure.

"* * * No continuance will be allowed except for good cause shown and by order of the Court." Local Rule 7. The issue of the defendant's guilt or innocence on each count does not appear to be complex; he will be shown beyond a reasonable doubt to have sold within this Court's jurisdiction each respective motor vehicle which was a part of and constituted interstate commerce about the time alleged with knowledge that it was stolen or he will not be so shown beyond a reasonable doubt; he should know whether he did or did not do this in each instance. He has had counsel of his choice under retainer at least since his indictment, probably prior thereto; the fact that "Gordon Ball and Associates", his chosen counsel, made no arrangements for pretrial preparation herein while Mr. Ball, Esq. was involved (by appointment, the Court notices judicially) in another trial in another District is not deemed to provide good cause for the requested continuance.

One Court of Appeals has "* * * deemed the following factors highly relevant in assessing claims of inadequate preparation time: the quantum of time available for preparation all footnote references are omitted from this quotation, the likelihood of prejudice from the denial, the accused's role in shortening the effective preparation time, the degree of complexity of the case, and the availability of discovery from the prosecution. It had also explicitly considered the adequacy of the defense actually provided at trial, any skill and experience of the attorney, any pre-appointment or pre-retention experience of the attorney with the accused or the alleged crime, and any representation by other attorneys that accrues to his benefit. * * *" United States v. Uptain, C.A. 5th (1976), 531 F.2d 1281, 1286-12873. With the exception of the final consideration mentioned above, the defendant Mr. Ball's situation appears to this Court to be favorable to a denial of a continuance.

Nevertheless, the Court is amenable to a consideration of any plea-bargaining upon which the prosecution and defense may have agreed, the acceptance by the Court of which would resolve its current scheduling predicament, PROVIDED the defendant wishes to and does give his consent now, in writing, to the advance preparation by a probation officer of this Court of a presentence report and its inspection by the Court immediately upon notice of the agreement. "* * * Rule 32 * * * clearly permits the preparation of a presentence report before a guilty plea or conviction * * *," Gregg v. United States (1969), 394 U.S. 489, 491, 89 S.Ct. 1134, 1136, 22 L.Ed.2d 442, 4461, "* * * to aid the judge in deciding whether to accept a plea agreement, and to expedite the imposition of a sentence when the defendant has indicated that he may plead guilty * * *" by agreement. Wright's Federal Practice and ProcedureCriminal (1980 Supplement to volumes 1, 2 & 3) at p. 513, § 523, n. 34.1.

Therefore, upon the filing with the clerk of this Court of such written consent, the clerk will notify the summoned-jurors not to report for jury-duty on Monday, May 18, 1981, but to report, instead, at 12:30 o'clock, p. m., Tuesday, May 19, 1981. The Court will accept notice of any plea-bargaining agreement at that same hour on Monday, May 18, 1981, if same is offered. In the absence of such consent by midnight, May 7, 1981, the motion for a continuance will be denied, and the jury will report as earlier notified on May 18, 1981.

ON ADMISSIBILITY OF EVIDENCE

The prosecution herein applied for permission to cross-examine the defendant Mr. Jay Ball regarding his prior convictions in this Court 12 years ago of violating the federal internal revenue laws pertaining to liquor and, if required after such cross-examination, to introduce evidence thereof. It is claimed it is entitled so to do on the authority of Rules 609(a), (b), Federal Rules of Evidence, under the circumstances.

Such evidence is not barred by the time-limit of Rule 609(b), supra. The Court notices judicially from its own records in United States of America, plaintiff, v. Jay V. Ball, et al., defendants, criminal action no. 7045, this district and division, that Mr. Ball was released from confinement from the prior conviction therein less than 10 years ago, viz., on October 10, 1972, and commenced then his period of probation to follow such release. Therefore, if at all, the proposed evidence may be received only under the provisions of Rule 609(a)(1), Federal Rules of Evidence.

The Court notices further judicially from its foregoing record that the crimes of which Mr. Ball was convicted were punishable, and one was punished, by imprisonment in excess of one year under the law under which he was convicted. The remaining question, accordingly, is whether the probative value of admitting this evidence outweighs its prejudicial effect to the defendant. Idem.

For the purpose of making this determination, the interests of justice appearing to so require, the Court conducted a hearing on the preliminary question stated out of the hearing of the jury. Rule 104(c), Federal Rules of Evidence. The prosecuting attorney made a brief recital of the circumstances to buttress its contention...

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6 cases
  • State v. Binet
    • United States
    • Connecticut Supreme Court
    • April 10, 1984
    ...v. Bitting, supra, 162 Conn. 10-11, 291 A.2d 240. "Evidence has probative value if it tends to prove an issue." United States v. Ball, 547 F.Supp. 929, 934 (E.D.Tenn.1981). "The probative value of evidence is merely its tendency to persuade the trier of fact on a given issue." United States......
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    ...admissible under Rule 609(a)(1) because less than 10 years had elapsed since the defendant's release from prison); United States v. Ball, 547 F.Supp. 929, 933 (E.D.Tenn.1981) (government seeks to introduce conviction under Rule 609(b), district court "notices judicially from its own records......
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    ...when the movant failed to show that reasonable efforts could not have produced a witness with personal knowledge); United States v. Ball, 547 F.Supp. 929 (E.D.Tenn.1981) (evidence will have probative value if it tends to prove an issue in dispute). What may or may not be a reasonable effort......
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    ...on Evidence, 3rd Ed., Sec. 185, at 541. Evidence has probative value if it tends to prove the issue in dispute. United States v. Ball, 547 F.Supp. 929 (E.D.Tenn.1981). The statement of Davis was "more probative" because it was the only evidence available to prove many of the essential eleme......
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