United States v. Cook

• Decision Date: 25 November 1970
• Docket Number: No. 17128.,17128.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Earle T. COOK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

432 F.2d 1093 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Earle T. COOK, Defendant-Appellant.

No. 17128.

United States Court of Appeals, Seventh Circuit.

September 25, 1970.

Rehearing Denied November 25, 1970.

COPYRIGHT MATERIAL OMITTED

Ronald P. Alwin, Chicago, Ill., for defendant-appellant.

William J. Bauer, Thomas A. Foran, U. S. Attys., Jeffrey Cole, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Michael B. Nash, Richard G. Schultz, Asst. U. S. Attys., of counsel.

Before SWYGERT, Chief Judge, and CUMMINGS and PELL, Circuit Judges.

PELL, Circuit Judge.

The defendant, Cook, was charged in the United States District Court for the Northern District of Illinois in a two count indictment with violating 18 U.S.C. § 32 by placing on November 12, 1967 a destructive device on a civil aircraft with intent to damage the aircraft (Count I) and by causing damage to a civil aircraft (Count II). Judgment of conviction on each count was entered upon a jury verdict of guilty on February 6, 1968, and Cook was sentenced to twenty years on each count, the sentences to run concurrently. This is an appeal from the judgment of conviction and sentence.

It was conceded, accepting the evidence in the light most favorable to the government, that the evidence was more than adequate to support the verdict and Cook did not urge on appeal that the conviction was against the weight of the evidence. He does, however, in his appeal urge seven technical grounds for reversal, being in regard to certain claimed improper governmental procedures prior to the trial and certain judicial errors both at the pretrial and trial levels.

The evidence, to which further particularized reference will be made in connection with specific points raised, tended to establish the following factual situation.

Beginning some four years prior to the incident directly involved, Cook, who had some history of marital discord, made approaches to individuals to attempt to make arrangements for his wife to be killed. On some of these occasions, there was discussion of the development of a device to set off explosives. On November 12, 1967, Cook drove his wife to the airport where she was taking a plane to California. He first checked two bags for his wife with a skycap, receiving two stubs therefor. Cook then returned to his car and took out a third bag and checked it through another skycap. He then gave the stubs for two of the bags to his wife but did not give her the stub to the third bag in which a bomb was secreted. There were some 81 persons on the 727 jet plane. Some place over Colorado a bomb exploded in the baggage compartment depressurizing the aircraft, which was nevertheless able to proceed on to San Diego without further mishap.

The FBI commenced immediate investigation which included interviews with the spouses, friends and relatives of all the passengers on the plane. Cook was interviewed on November 14, 1967 and on November 17, 1967 he agreed to go to the FBI office in Chicago for an interview. While the interview was in progress, other FBI agents, acting upon a search warrant, removed a number of items from Cook's residence including a vise, pieces of wire and other electrical items. After the interview, which was terminated by Cook, he was driven back to his office at St. Charles, Illinois, where he was arrested and charged with the offenses involved herein. The FBI investigation indicated that the bag in which the bomb had exploded was the one involving the stub which Cook had not given to his wife. The total amount of the insurance payable if Mrs. Cook had been killed incident to a commercial air crash was $117,500.

DENIAL OF MOTION FOR DISCOVERY

The point on appeal most forcibly urged by Cook, and the one we deem most susceptible of requiring a reversal, arose out of the district court's ruling on a motion to produce.

On December 6, 1967, within the time extended by the court, Cook filed seven separate pretrial motions, none of which was accompanied by a brief or supporting authority in other form. The motion here involved is the motion for discovery which in its entirety reads as follows:

"Now comes the defendant, EARLE T. COOK, by his attorney, JACK G. STEIN, and respectfully moves this Court to enter an Order permitting defense counsel to inspect and copy results or reports of scientific and laboratory tests made of any evidence to be presented by the Government in its case against the defendant. The defendant further moves that the Court allow the defendant and such necessary experts as may be necessary to examine said evidence at a place and time agreeable to this Court."

On December 14, 1967, the government filed its answers to defendant's motions, which, inter alia, objected to the granting of the foregoing motion for discovery.

Cook filed no response as far as the record shows to the government's objections nor as far as we can determine took any other action to attempt to convince the court that the government's objections to the granting of the motion were invalid.

On December 19, 1967, the district court made the following order:

"Defendant\'s motion that he and such experts as may be necessary is sic given leave to examine any physical evidence which the government intends to introduce in its case against the defendant priot sic to January 10th at a place mutually agreeable to the government and the defendant. The defendant\'s motion to permit counsel to inspect and copy results or reports of scientific and laboratory tests made of any evidence to be presented by the government in this case against the defendant is denied at this time without prejudice."

Because of the ultimate result we reach in this opinion, it is necessary to give some particularized attention to the government's answer objecting to the granting of the motion. The answer first pointed out that local Rule 13 of the district provided that any party filing a contested motion calling for a decision of the court should file citations of authority and that under the rule the court on its own motion might strike a motion not supported by a memorandum. The court here did not, at least in terms, purport to strike the motion because of noncompliance with the local rule. As the government's answer conceded, Cook was apparently relying on Rule 16(a) of the Federal Rules of Criminal Procedure,¹ and it could not ordinarily be expected that a necessity existed for a district judge to have cited to him by way of memorandum the Federal rules. However, Rule 16(a) was substantially amended effective as of July 1, 1966 and at the time of the ruling on the discovery motion, approximately a year and a half later, there were judicial indications that both under Rule 16(a) and 16(b) a showing of materiality and reasonableness was necessary although this requirement was contained only in 16(b). These authorities were cited to the court by the government.

While subsequent interpretation of Rule 16(a) has now reached the place that it is generally conceded, upon application, the discovery provided for therein should be granted as a matter of right (1 Wright, Federal Practice and Procedure p. 501 (1969)), nevertheless, it is equally clear that in 1967 this construction, although somewhat inevitable, had not been reached. Therefore, it would appear that Cook would have been well-advised to have complied with local Rule 13 and when objections were lodged by the government to the granting of the motion, it then being apparent that the motion might not be routinely granted, authority opposing the position of the government certainly should have been cited.

In its answer opposing the granting of the motion, the government next emphasized that the rule used the language, "the court may order" citing Peek v. United States, 321 F.2d 934, 941-942 (9th Cir. 1963), cert. den. 376 U.S. 954, 84 S.Ct. 973, 11 L.Ed.2d 973 (1964), and Ginsberg v. United States, 257 F.2d 950, 956 (5th Cir. 1958). Both cases involved the application of Rule 16 prior to 1966 and under the rule as it then existed both cases properly stated that the matter of allowance of discovery was discretionary with the judge.

No doubt, technically, it may be stated that the granting of relief to the movant under Rule 16(a) is still a matter within the discretion of the court, nevertheless it also appears under the present interpretation of Rule 16(a) if the motion is in proper form and timely made, a denial of the motion would be an abuse of discretion. Indeed, this court has stated in United States v. Isa, 413 F.2d 244, 248 (7th Cir. 1969), that a defendant has "the right to an order" permitting him to inspect under Rule 16(a) absent a showing by the government under 16(e) dealing with protective orders. This court in Isa (at p. 248) quoted with approval from United States v. Projansky, 44 F.R.D. 550 (S.D.N.Y. 1968), "it is wholly different, and wholly unsupportable, to say the Government may sit back, invoke the old generalities, and conceal from the defendant * * * unless the defendant shows some kind of `particularized need' almost never identified by the prosecution because it is almost never possible to imagine, let alone reply."

It has also been stated by one respected authority that to obtain discovery under Rule 16(a) the defendant must show that the items sought are "relevant" in contrast to the showing of materiality and reasonableness necessary under 16(b). 8 Moore, Federal Practice § 16.031, pp. 16-17 (2d ed. 1969).

While it is true in construction of statutes, and presumably also in the construction of federal rules, that the word "may" as opposed to "shall" is indicative of discretion or a choice between two or more alternatives, the context in which the word appears must be the controlling factor. A good statement on the subject is contained in Thompson v. Clifford, 132 U.S.App.D.C. 351, 408 F.2d 154, p. 158 (1968), where the court stated:

"`May\'

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