United States v. Covelli, 60 CR 331.

• Decision Date: 21 November 1962
• Docket Number: No. 60 CR 331.,60 CR 331.
• Citation: 210 F. Supp. 589
• Parties: UNITED STATES of America, Plaintiff, v. Gerald COVELLI et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

210 F. Supp. 589

UNITED STATES of America, Plaintiff, v. Gerald COVELLI et al., Defendants.

No. 60 CR 331.

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

November 21, 1962.

James P. O'Brien, U. S. Atty., for plaintiff.

George F. Callaghan, Chicago, Ill., for defendants.

WILL, District Judge.

The United States has moved to vacate the order of this Court of October 2 insofar as it requires the furnishing of (1) the names and addresses, if any, of co-conspirators who were not known to the Government at the time the indictment herein was returned but have since become known, (2) the names, if any, of persons who were present at conversations alluded to in overt acts 1, 7 and 8 of Count I of the indictment, and (3) the time, place, persons present and nature of any overt acts which could have been included in the indictment but were not and which will be testified to at the trial. Apparently it is the Government's position that by furnishing the foregoing information it discloses its list of witnesses as well as its entire case.

While there have been varying judicial interpretations of the office of a bill of particulars in a criminal case, in the final analysis the matter is one which is left largely to the sound discretion of the trial judge. Wong Tai v. United States, 1927, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545. As a guideline in the exercise of this discretion, however, the Court is impressed with the following language from United States v. Smith, D.C.W.D.Mo.1954, 16 F.R.D. 372, 374-375, an opinion by former Justice Whittaker during his tenure as a federal district judge:

"* * * Its proper office `is to furnish to the defendant further information respecting the charge stated in the indictment when necessary to the preparation of his defense, and to avoid prejudicial surprise at the trial', and when necessary for those purposes, is to be granted even though it requires `the furnishing of information which in other circumstances would not be required because evidentiary in nature', and an accused is entitled to this `as of right'. * * * It seems quite clear that `where charges of an indictment are so general that they do not sufficiently advise defendant of the specific acts with which he is charged, a bill of particulars should be ordered.' * * *

"This must necessarily be true when we realize that there is no discovery means in criminal cases, such as provided by the civil rules for civil cases, and that the only means open to a

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