United States v. Chase

• Citation: 309 F. Supp. 430
• Decision Date: 24 February 1970
• Docket Number: No. 69 CR 364.,69 CR 364.
• Parties: UNITED STATES of America, Plaintiff, v. Frederick Joseph CHASE et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

309 F. Supp. 430

UNITED STATES of America, Plaintiff, v. Frederick Joseph CHASE et al., Defendants.

No. 69 CR 364.

United States District Court, N. D. Illinois, E. D.

February 24, 1970.

COPYRIGHT MATERIAL OMITTED

Thomas A. Foran, Chicago, Ill., for plaintiff.

Patrick J. Hughes, Jr., Chicago, Ill., for Gian Fillippo Pietra.

William C. Cunningham, Chicago, Ill., for Joseph Edward Mulligan, Frederick Joseph Chase, John Alfred Loll, Charles Thomas Smit, and William Patrick Sweeney.

Anthony P. Locricchio, St. Clair Shores, Mich., for William Anthony Durkin, Charles George Fullenkamp, Edward Augustine Gargan, Edward Charles Hoffmans, Margaret Ann Katroscik, Charles Louis Muse, Linda J. Quint, and Nicholas J. Riddell.

No attorney for John J. Phillips.

MEMORANDUM AND ORDER ON DEFENDANTS' PRETRIAL MOTIONS

ROBSON, District Judge.

This indictment arises out of the ransacking of the Selective Service Area South Headquarters, Local Boards 48 and 60 through 92, located at 2355 West 63rd Street, Chicago, Illinois, on May 25, 1969. The fifteen defendants¹ herein are charged in Count I of a four-count indictment with damage to government property exceeding $100 in value, in violation of 18 U.S.C. § 1361. Count II charges the defendants with removal, mutilation, and destruction of government records and documents, in violation of 18 U.S.C. § 2071. Count III charges the defendants with hindering and interfering by force and violence with the administration of the Military Selective Service Act of 1967, in violation of 50 U.S.C. App. § 462(a). Count IV charges the defendants with conspiring to commit the offenses contained in the three substantive counts, and alleges that five overt acts were committed in furtherance of the conspiracy. 18 U.S. C. § 371. The conspiracy count also alleges that as a part of the conspiracy ". . . the defendants would contact certain news reporters and notify them to be at certain times in certain places in order to obtain a story of significance." The defendants have moved this court to dismiss the indictment, for recusation of the trial judge, for a lengthy continuance of the trial date, and for disclosure of any electronic surveillance pertaining to this case. For the reasons set forth below, this court is of the opinion the motions should be denied in part and granted in part. This court further finds it necessary to enter an order on its own motion to insure a trial free of prejudicial publicity.

MOTION TO DISMISS THE INDICTMENT

The defendants first assert that the indictment should be dismissed on the grounds that it is vague, indefinite and states conclusions rather than facts. However, a reading of the indictment indicates that is not the case. Each count employs the relevant statutory language, and sets forth the time, place, offense charged, and names of the individuals accused. Count IV alleges a conspiracy to commit the offenses charged in the three other counts. It is alleged in Count IV that the defendants contacted newspaper personnel and committed five other overt acts in furtherance of the conspiracy to commit the offenses specified in the three substantive counts. The overt acts alleged explain the nature of the conspiracy, and include preparations allegedly made by named defendants in furtherance of the conspiracy. A conspiracy count is sufficient if it identifies the offenses which the defendants allegedly conspired to commit. United States v. Kahn, 381 F. 2d 824, 829 (7th Cir. 1967), cert. den. 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967), reh. den. Sachs v. United States, 392 U.S. 948, 88 S.Ct. 2272, 20 L.Ed.2d 1413 (1968). The indictment plainly and concisely sets forth the essential facts constituting the offenses charged, and therefore meets the standards of Rule 7(c), Federal Rules of Criminal Procedure.

The defendants further contend that Counts I and II charge the same offense. Count I charges willful damage to government property, and that the damage exceeds $100 in value, in violation of 18 U.S.C. § 1361. Count II charges willful removal, mutilation, and destruction of government documents and records, in violation of 18 U. S.C. § 2071. The defendants assert that the Government should elect to proceed under only one of these two counts. However, offenses are not the same for purposes of double jeopardy simply because they arise out of the same general course of criminal conduct. United States v. Bruni, 359 F.2d 807, 809 (7th Cir. 1966), cert. den. 385 U.S. 826, 87 S. Ct. 59, 17 L.Ed.2d 63 (1966); United States v. DeSapio, 299 F.Supp. 436 (S.D. N.Y.1969). Offenses are identical only when the evidence required to support a conviction upon one of them would be sufficient to warrant a conviction upon the other. United States v. Bruni, supra; United States v. Friedland, 391 F. 2d 378, 381 (2nd Cir. 1968). Evidence proving removal, mutilation or destruction of government records and documents would not necessarily be sufficient to prove damage to government property exceeding $100 in value. Nor would the converse be true. Therefore, Count I and Count II do not allege the "same" offense.

The defendants assert that offenses set forth in the Selective Service Act preempt general offenses against government property and documents. Based upon this assumption, the defendants conclude that indictment for the offense of interfering with the administration of the Selective Service Act necessarily precludes indictment for damage to the property of a Selective Service office or for the removal, mutilation or destruction of Selective Service records. However, the offense of interference with the administration of the Selective Service Act requires proof of facts not necessary to show damage to government property, nor to show removal, mutilation or destruction of government records or documents. Therefore, Count III alleges an offense separate and distinct from those alleged in Counts I and II. Joinder of these offenses in separate counts is proper under Rule 8(a), Federal Rules of Criminal Procedure, since the offenses alleged arose out of a series of connected acts. Furthermore, joinder in one indictment of offenses arising out of the three particular statutes involved here is a common practice. See Tillman v. United States, 406 F.2d 930 (5th Cir. 1969); United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969); United States v. Eberhardt, 417 F.2d 1009 (4th Cir. 1969).

Count IV of the indictment charges the defendants with conspiring to commit the substantive offenses alleged in the other three counts. The general conspiracy provision, 18 U.S.C. § 371, is invoked. The defendants contend that in a conspiracy charge involving an offense under the Selective Service Act, only the conspiracy section of that Act, 50 U.S.C. App. § 462(a), is applicable. It is further asserted by the defendants that a person may not be charged with both a substantive offense and conspiracy under the Selective Service Act. The defendants do not give any basis for this conclusory allegation, other than the fact that the conspiracy provision is expressed disjunctively from the substantive offenses contained in 50 U.S.C. App. § 462(a). However, all the substantive offenses contained in Section 462(a) are listed in the disjunctive. There is no reason in law why separate offenses, composed of varying elements, cannot be charged in different counts merely because they are contained disjunctively in the same statute. Commission of one offense does not offer immunity from prosecution for other offenses because they are all contained in the same statute. It is a well-established principle that substantive and conspiratorial acts are separate and distinct offenses. United States v. Jones, 334 F. 2d 809, 811 (7th Cir. 1964), cert. den. 379 U.S. 993, 85 S.Ct. 707, 13 L.Ed.2d 613 (1965). Therefore, the defendants' conclusion that they may not be charged with both conspiring to interfere with the administration of the Selective Service Act and with committing the substantive offense itself is without merit. Furthermore, the conspiracy section of Section 462(a) applies only to offenses contained in that section. Cf. Singer v. United States, 323 U.S. 338, 65 S.Ct. 282, 89 L.Ed. 285 (1945). The conspiracy alleged in Count IV involves two statutory offenses not proscribed by the Selective Service Act, i. e., 18 U.S.C. § 1361 and 18 U.S.C. § 2071, and therefore the conspiracy provision of Section 462(a) is inapplicable. For these reasons, this court concludes that the general conspiracy provision, 18 U.S.C.A. § 371, is appropriate and Count IV is legally sufficient. The motion to dismiss the indictment is denied.

MOTION FOR "RECUSATION OF THE TRIAL JUDGE"

The defendants move for "recusation of the trial judge" pursuant to 28 U.S.C § 455. The motion charges that this court "is so related to and connected with counsel for the United States, the plaintiff herein, so as to render it improper for him to sit as trial judge" in this matter. In support of this conclusion, the defendants rely upon contempt citations issued by this court against two spectators present in the courtroom on June 5, 1969, the day upon which the defendants were arraigned. The spectators, Joanne Malone and Patricia Kennedy, were self-declared supporters of the defendants in this case. The contemner Malone demonstrated and expressed her contempt not for this court personally, but rather for courts in general. On February 10, 1970, the same Joanne Malone was convicted upon three counts of burglary and malicious destruction of property belonging to the Dow Chemical Company. United States v. Meyer et al., United States District Court for the District of Columbia, Criminal Case No. 872-69, the Honorable John H. Pratt presiding. Three defendants and one of the attorneys were cited and sentenced for direct contempt of court at the conclusion of that trial.

The motion for recusation is replete with errors of fact which are a matter of record....