United States v. Caesar
| Decision Date | 11 December 1973 |
| Docket Number | No. 73-Cr-180,73-Cr-183,73-Cr-191.,73-Cr-182,73-Cr-186,73-Cr-180 |
| Parties | UNITED STATES of America, Plaintiff, v. Jacqueline M. CAESAR, Defendant. UNITED STATES of America, Plaintiff, v. Eddie Lee DAVIS a/k/a Big Daddy et al., Defendants. UNITED STATES of America, Plaintiff, v. Eddie Lee DAVIS a/k/a Big Daddy and William Daniel Whiting a/k/a Will, Defendants. UNITED STATES of America, Plaintiff, v. Francine HARDEN, Defendant. UNITED STATES of America, Plaintiff, v. Eldon Langton PAGE, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
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David B. Bukey, U. S. Atty. by D. Jeffrey Hirschberg, Milwaukee, Wis., for plaintiff.
Schwartz, Schwartz, Roberts & Cairo by Jay Schwartz, Racine, Wis. (79-Cr-180, 73-Cr-182, 73-Cr-183, 78-Cr-186), Wokwicz, Baumgartner & Anderson by Thomas W. Anderson, Kenosha, Wis. (73-Cr-180, 73-Cr-182, 73-Cr-183, 73-Cr-186), Aul & Tesch by Joseph E. Tesch, Milwaukee, Wis. (73-Cr-182 & 73-Cr-191), for defendants.
DECISION AND ORDER
These cases resulted from a grand jury investigation. The subjects of the investigation, according to the government, included allegations of "(1) conspiracy 18 U.S.C. § 371; (2) interstate transportation in aid of racketeering/prostitution 18 U.S.C. § 1952(a)(3); and (3) interstate transportation of females for the purposes of prostitution 18 U.S.C. § 2421 et seq.", among others.
Approximately fifty separate formal motions have been filed by the defendants. Many of these motions, however, are identical to each other and are simply repeated in each case. Those common motions will be resolved first, with the motions having less than universal applicability treated later.
Several discovery motions have been filed in each case, along with motions for leave to inspect grand jury minutes. The government has advised the defendants that they are free to examine its entire file and has promised to disclose any relevant information coming to its attention in the future. It has also made the grand jury minutes available to counsel, subject to an agreed protective order. It is apparent, therefore, that these motions have become moot and need not be granted.
Motions to compel the production of government witnesses and to compel disclosure of wiretaps have been filed in each case. The government, while not conceding the defendants' position, has agreed to produce its witnesses according to a program tendered to defense counsel. It has also agreed to provide an affidavit relating to wiretaps. See In Re Korman v. United States, 486 F.2d 926 (7th Cir., decided June 8, 1973). I have been informed by way of an affidavit submitted by an assistant United States attorney that defense counsel are satisfied with these arrangements. Consequently, these motions need not be granted either.
The final motions common to each case seek dismissal of the indictments because of the prosecutor's alleged misconduct before the grand jury. It is urged that the following conduct on the part of the prosecutor resulted in possible bias toward the defendants: (1) his questions to witnesses concerning drug usage, previous arrests and reluctance to testify; (2) his warnings to witnesses as to the effect of giving perjured testimony; and (3) his questions about allegedly irrelevant matters.
Since a person charged by a grand jury is entitled to an impartial grand jury, the defendants contend that these indictments should be set aside. Excerpts of the grand jury minutes have been filed with the motions and are relied upon as support for the assertions made. I have examined such excerpts and the arguments of the defendants. It is my conclusion that dismissal is not warranted; the defendants have failed to demonstrate that the grand jury's indictments resulted from bias. As in Beck v. Washington, 369 U.S. 541, 555, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962), the challenged conduct of the prosecutor does not approach "irregularity of constitutional proportions."
The questions challenged were addressed to witnesses, not to the principal defendants. The prosecutor's questions were arguably aimed at demonstrating the witnesses' credibility and their relationship to the principals in the alleged endeavors being investigated. While I express no opinion on the attitude of the prosecutor or the propriety of his approach to the witnesses, I do find that the minute excerpts are devoid of evidence that the grand jurors were coerced or intimidated into returning true bills. See United States v. Wells, 163 F. 313 (D. C.Idaho 1908).
In the absence of a showing of conduct tantamount to coercion, the result sought by the defendants can only be achieved upon a demonstration that the competent evidence before the grand jury would not, by itself, support the indictments. United States v. Riccobene, 451 F.2d 586, 587 (3rd Cir. 1971). No serious argument to that effect is made here. Indeed, one defendant conceded in his brief that there was sufficient competent evidence before the grand jury. To dismiss the indictments because of the prosecutorial conduct described in these motions would be action taken, at best, on the basis of "vague and unsubstantiated doubts." United States v. Dooling, 406 F.2d 192 (2d Cir. 1969), cert. denied sub nom., Persico v. United States, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969). Vague and unsubstantiated doubts as to the possible bias of a grand jury towards those indicted are insufficient to justify dismissal of the indictments. United States v. Whitted, 454 F.2d 642, 646 (8th Cir. 1972), rev'g, D.C., 325 F.Supp. 520 (1971).
This case involves a two count indictment charging the defendant with having committed perjury before the grand jury. Although it is conceded that the questions to which false answers allegedly were given were factually specified in the indictment, it is contended that the indictment fails to describe how and in what respect those questions were material to the grand jury investigation. It is also argued that the prosecutor's questions were ambiguous and that the defendant's responses were mistaken or unresponsive, but not false.
The indictment mentions that possible violations of certain stated sections of the United States code were being investigated and that the questions allegedly falsely answered were material to that investigation. As stated in United States v. Rook, 424 F.2d 403, 405 (7th Cir. 1970), cert. denied, 398 U.S. 966, 90 S.Ct. 2180, 26 L.Ed.2d 550 (1970):
Thus, materiality must be proved at trial, as the government concedes, but it need not be alleged in an indictment with any greater degree of particularity than it is alleged here.
I also find that the defendant's other contentions with respect to the ambiguity of the questions or quality of the answers are insufficient to void this indictment. I am satisfied that the questions as stated in the indictment are not obviously ambiguous. Therefore, any misunderstanding as to the meaning of those questions or inadvertent error in the answers are properly raised as defenses at trial. United States v. Lattimore, 94 U.S.App.D.C. 268, 215 F.2d 847, 853 (1954).
The final motion in this case, as in 73-Cr-180, seeks dismissal of a perjury indictment because of its failure to specify how the questions involved were material. As previously indicated, that specific point was decided adversely to the defendant in Rook.
As in the previous cases, the form of the indictment is challenged here. It is urged that use of statutory language charging that the defendant "did knowingly transport in interstate commerce" a specific person for a stated prohibited purpose is insufficient. I disagree. The indictment also states the date, origin and termination of the alleged transportation. It sufficiently informs the defendant so that he can defend, and it adequately describes the charged conduct so as to operate as a bar against future prosecution for the same charge. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). The fact that part of the indictment utilized the statutory phrasing is not fatal.
The defendant also finds fault with the indictment because it charges that transportation was for the purpose of prostitution, debauchery and other immoral purposes while 18 U.S.C. § 2421 uses the word "or". In Bayless v. United States, 365 F.2d 694 (10th Cir. 1966), the court held that conjunctive charging under this statute is not fatal. See Cordova v. United States, 303 F.2d 454, 455 (10th Cir. 1962).
It is urged that Bayless should not be followed because a "split-juror effect" may already be reflected in the indictment and could not be corrected by instructions at trial. The argument is that there is no way of knowing whether a sufficient number of grand jurors agreed on any one of the purposes of transportation proscribed in the statute. I find that argument particularly unpersuasive however where, as here, the use of the conjunctive would indicate that the grand jurors agreed that transportation was for all proscribed purposes.
Finally, the defendant in this case seeks dismissal of the indictment on the basis of constitutional challenges to the grand jury system. He urges that use of a grand jury precludes him from a determination of probable cause by way of a preliminary examination. He also objects to the fact that he was unable to attend the grand jury session, offer testimony or cross-examine witnesses.
Although there certainly is merit to many of the current arguments critical of the grand jury concept, it remains a legitimate method of...
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