United States v. Birrell

Decision Date15 November 1967
Docket NumberNo. 61 Cr. 692.,61 Cr. 692.
PartiesUNITED STATES of America v. Lowell M. BIRRELL, Defendant.
CourtU.S. District Court — Southern District of New York

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Robert M. Morgenthau, U. S. Atty., for Southern District of New York, for United States of America; Stephen L. Hammerman, Stephen F. Williams, Asst. U. S. Attys., of counsel.

Charles N. Brower, New York City, for defendant, Lowell M. Birrell.

Anthony F. Marra, New York City, for defendant, Lowell M. Birrell.

Paul M. Wolsk, Martin Portnoy, New York City, of counsel.

Menahem Stim, New York City, for defendant, Lowell M. Birrell.

George C. Levin, New York City, for Trustee of Swan-Finch Oil Corp.

Thacher, Proffitt, Prizer, Crawley & Wood, New York City, for trustee of Equitable Plan Co.; Robert S. Stitt, New York City, of counsel.

OPINION

HERLANDS, District Judge:

The indictment herein was filed on July 20, 1961. On April 23, 1964, defendant Birrell surrendered; pleading was adjourned at his request. On May 8, 1964, counsel was assigned to defendant by the Court; defendant pleaded not guilty. He was remanded to jail; at his request no bail was set.

On July 1, 1964, defendant moved for sixty days additional time for the filing of pretrial motions. On July 6, 1964, Judge Bryan granted an extension of time for the making of all motions to September 21, 1964.

On September 4, 1964, defendant moved for (1) dismissal of the indictment on the ground of taint and the production of grand jury minutes in connection with this motion; (2) dismissal of certain counts of the indictment or an order compelling the Government to elect one of the counts for trial; (3) striking certain allegations of the indictment as prejudicial surplusage; (4) a bill of particulars; and (5) discovery and inspection.

As to the foregoing motions, "(1)" was denied by Judge Wyatt on June 11, 1965. United States v. Birrell, 242 F.Supp. 191, 205 (S.D.N.Y.1965); "(2)" was denied by this Court on April 3, 1967. United States v. Birrell, 266 F.Supp. 539 (S.D. N.Y.1967); "(3)" was granted by this Court on the Government's consent; "(4)" was partially granted by this Court on January 19, 1967. United States v. Birrell, 263 F.Supp. 113 (1967); and "(5)" was, on September 21, 1964, marked off the calendar on consent of all counsel subject to restoration; was subsequently revived on August 29, 1967 and is (as supplemented by a demand for sixteen additional items for discovery and inspection) now before the Court for decision.

On September 9, 1964, defendant moved to suppress files seized on July 24, 1959 and on August 22, and 24, 1959. This motion was decided by Judge Wyatt in June and July, 1965. United States v. Birrell, 242 F.Supp. 191 (1965); 243 F.Supp. 36 (1965); 243 F.Supp. 38 (1965).

On September 27, 1966, Chief Judge Sugarman assigned the case to this Court for all purposes. Defendant then moved, on October 28, 1966, (1) to disqualify this Court under 28 U.S.C. § 144; (2) for an order directing the United States Attorney to file an inventory of the files seized on August 22 and 24, 1959; (3) for renewal and argument of the motions filed September 4, 1964 that had not yet been heard and decided. As to these motions, "(1)" was denied by this Court on January 9, 1967. United States v. Birrell, 262 F.Supp. 97 (S.D.N.Y.1967); "(2)" was denied by this Court on May 23, 1967. United States v. Birrell, 269 F. Supp. 716 (S.D.N.Y.1967); and "(3)", involving certain motions made originally on September 4, 1964, was dealt with as already set forth above in detailing the disposition of the September 4, 1964 motions. Of those motions only the motion for discovery and inspection (as supplemented) remains undecided.

On February 27, 1967, defendant moved for a pretrial evidential hearing to probe the genesis and evolution of the Government's prospective trial proof in order to have the Government demonstrate that its proposed trial evidence is uncontaminated by the suppressed records and clues or leads derived therefrom. The motion was denied by this Court on May 23, 1967. United States v. Birrell, 269 F.Supp. 716 (S.D.N.Y.1967).

On May 26, 1967, William J. Brennan, III, Esq., then defendant's assigned counsel, requested to be relieved of his assignment. Over the Government's opposition (Minutes of Pretrial Hearing, pp. 190, 194) the Court, on June 16, 1967, relieved Mr. Brennan and designated Charles N. Brower, Esq. as assigned counsel. Mr. Brennan agreed to make himself available to Mr. Brower for conference and consultation "so that Mr. Brower will be brought up to date not only on the proceedings themselves as they maybe reflected in the court records, but, more importantly, brought up to date in terms of Mr. Brennan's theories of the defense, considerations of tactics and strategy, which are important in any litigation, and any other matters that would assure to Mr. Birrell that he should have the most effective representation both on the facts and on the law." (Minutes of Pretrial Hearings, p. 222).

In addition, for the purpose of assuring the most effective representation of defendant and to aid Mr. Brower in discharging his duties, the Court appointed Anthony F. Marra, Chief of the criminal defense staff of The Legal Aid Society, to serve as counsel with Mr. Brower in behalf of defendant.

On June 16, 1967, the Court granted defense counsel until August 29, 1967 to make whatever motions they thought appropriate or necessary and set the case down for trial on December 4, 1967. (Minutes of Pretrial Hearings, pp. 228, 234, 242, 261).

In a series of motions made returnable on August 29 and September 5, 1967, defendant applies for the following relief:1

(1) the disqualification of the Court from proceeding further in indictments 61 Cr. 200, 61 Cr. 820, 61 Cr. 903 and 62 Cr. 307 because of personal bias or prejudice (28 U.S.C. § 144);

(2) a preliminary injunction restraining the United States Attorney, C. E. H. McDonnell, Trustee in Chapter X Reorganization of Equitable Plan Company and George C. Levin, Esq., Trustee in Chapter X Reorganization of Swan-Finch Oil Corporation, and all other persons "from entering, removing documents from, making photocopies of or in any other manner whatsoever using any of the files and other property seized from defendant Lowell M. Birrell on August 22 and 24, 1959, and presently lodged in Room 501 of * * * the United States Courthouse * * *";

(3) a pretrial hearing for the return of property unlawfully seized from defendant and suppressed for use as evidence against the defendant by orders of Judge Wyatt, June 11 and 25, 1965; and at such hearing to require the return of all such property "together with all copies, transcriptions, abstracts, excerpts, notes and other memorializations of such property * * *" and an itemized list of all property returned;

(4) an order pursuant to Fed.R.Crim. P. 12(b) and 48(b) dismissing the indictment in 61 Cr. 692 on the grounds that:

"(a) some of the defendant's property which was suppressed by the orders of the Honorable Inzer B. Wyatt, United States District Judge, dated June 11 and 25, 1965 has been lost, destroyed, mutilated, removed or otherwise made unavailable to defendant, and the remaining such property is in such a state of disorder, disarray and confusion that as a matter of law it is impossible for defendant to prepare for trial;
(b) as a matter of law the Government cannot establish that the evidence which it intends to introduce at the trial of this indictment is not tainted by any of the aforesaid suppressed property; and
(c) defendant has been deprived of his right to a speedy trial";

(5) an order pursuant to Fed.R.Crim. P. 6(b) and 12(b) dismissing the indictment in 61 Cr. 692 on the grounds that the grand jury was improperly selected, as Negroes, Puerto Ricans and others of lower socio-economic status were systematically and intentionally excluded from the array;

(6) an order pursuant to Fed.R.Crim. P. 15 permitting defendant to depose American Leduc Petroleums Limited and the Toronto Stock Exchange in connection with 61 Cr. 692;

(7) an order pursuant to Fed.R.Crim. P. 15 and 17:

(a) precluding the use of evidence in 61 Cr. 692 (American Leduc) that defendant was a fugitive from justice. Should such evidence be used, defendant seeks to introduce as evidence certain depositions on file with the Court and to depose certain additional named persons.
(b) barring evidence which tends to show that acts alleged in indictment 61 Cr. 692 were part of a common plan or scheme; and
(c) requiring the Government to elect those counts of indictment 61 Cr. 692 which will actually be tried against defendant;

(8) orders pursuant to Fed.R.Crim.P. 16 and 17(c) permitting defendant's discovery and inspection of thirty-two enumerated items in connection with 61 Cr. 692.

The many and diverse issues raised by these motions necessitate a recital of the relevant factual background as disclosed by the motion papers.2

On April 15, 1957, a civil action was instituted in this Court by the Securities and Exchange Commission against Birrell and twenty-three other defendants. Birrell was subpoenaed to testify on October 7, 1957, but did not appear. Instead, defendant left the United States sometime during October 1957 and did not return until April 23, 1964.

Sometime during 1957, approximately forty-six filing cabinets containing from one million to two million documents were moved at defendant's request from New York City to Teaneck, New Jersey. Allegedly the files contained personal papers of Birrell, business records of the law firm of Birrell and Larson, and records of various corporations including Swan-Finch Oil Corporation and Equitable Plan Company. These documents were moved again early in 1959 to Bucks County, Pennsylvania, where they were placed in the custody of Jonathan D. Dunn,...

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