United States v. DePugh, 22263-4.

• Decision Date: 17 January 1967
• Docket Number: No. 22263-4.,22263-4.
• Parties: UNITED STATES of America, Plaintiff, v. Robert Bolivar DePUGH et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

266 F. Supp. 417

UNITED STATES of America, Plaintiff, v. Robert Bolivar DePUGH et al., Defendants.

Nos. 22263-4.

United States District Court W. D. Missouri, W. D.

January 17, 1967.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

F. Russell Millin, U. S. Atty., Calvin K. Hamilton, Asst. U. S. Atty., Kansas City, Mo., for plaintiff.

William H. Costello, William J. Gilwee, Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER OVERRULING DEFENDANT DePUGH'S MOTION FOR NEW TRIAL

ELMO B. HUNTER, District Judge.

This matter is presently before the Court on a motion for new trial filed on behalf of defendant Robert Bolivar DePugh. A consolidated brief in support of the motions for new trial on behalf of defendants DePugh, Walter P. Peyson, and Troy Haughton has been filed and the government has filed a consolidated brief in opposition to the three motions for new trial. This order deals solely with defendant DePugh's motion for new trial

At the outset, the Court takes note of the well settled principle that motions for new trial are not favored and should be granted only with great caution, United States v. Costello, 255 F.2d 876 (2d Cir. 1958). Where a defendant has had a fair trial substantial justice does not require that he be given a second one, McCroskey v. United States, 339 F.2d 895 (8th Cir. 1965). Therefore the Court has approached the various points raised in the motion for new trial with a view toward determining whether defendant received a fair trial.

Defendant DePugh's motion sets forth 14 numbered grounds, some of which contain subpoints, for a new trial. Many grounds set out by defendant DePugh in his motion for new trial have been previously briefed by the parties and expressly ruled upon by the Court in memorandum orders prior to the trial and are a part of the record of this case. The Court has considered each point raised and finds that none is well founded.

Point 1 raised by defendant is that the Court erred in refusing to require the government to disclose the substance of the conversation between defendant DePugh and defendant Haughton alleged in Overt Act 15 of Count I of the indictment. In its order of October 24, 1966, the Court ruled that the government was not required to disclose the substance of the conversation, citing United States v. Covelli, 210 F.Supp. 589 (N.D.Ill. 1962). The court in the Covelli case, which was cited to this Court by defendant, did not require the substance of conversations to be divulged. It is well established that the motion for a bill of particulars is directed to the sound discretion of the trial court and absent any abuse of discretion, the trial court's ruling will not be disturbed on appeal, Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927), Blackwell v. United States 244 F.2d 423 (8th Cir. 1957). Therefore defendant's contention that he was "entitled" to this information cannot be said to be an accurate statement of the law. The Court also considers it particularly significant that defendant does not state either in his motion or in the suggestions in support thereof that he was in any way prejudiced or taken by surprise as a result of the Court's ruling on this point. Nor, in the Court's opinion, could such a showing be made. The alleged conversation was one in which the defendant himself was a participant. Further, when the witness for the government, Jerry Brooks, testified with regard to such conversation no effort was made by way of cross-examination, or otherwise, to dispute either the fact that there was such a conversation or that the substance of it was other than that to which the witness testified.

The function of a bill of particulars is to render an indictment sufficiently specific to apprise a defendant of the nature and cause for the accusation in order that he may prepare for trial, that he may be spared surprise at trial, and that after trial he may be able to plead the record and judgment in bar of a further prosecution for the same offense, United States v. Haskins, 345 F.2d 111 (6th Cir. 1965). The bill of particulars also limits the scope of the government's proof at trial, see Haskins, supra. The Court's ruling that the substance of the alleged conversation need not be divulged in no way defeated the purpose of a bill of particulars.

Point 2 raised by defendant is that the Court erred in refusing to require the government to disclose the name of the person or persons who manufactured the machine guns mentioned in Overt Acts 4, 6, and 13 of Count I of the indictment. What has been said in regard to point 1, supra, is equally applicable here. Again, particularly significant is the complete failure of defendant to even allege that he was in any way prejudiced by the Court's ruling, and there is, of course, no showing of any kind which would indicate defendant was prejudiced. In view of the voluntary action on the part of the government in making available for inspection by defendant all of the firearms in its possession, the Court does not believe that defendant could have been prejudiced by the Court's ruling. Furthermore, the identity of the person or persons who manufactured the particular machine guns mentioned in Overt Acts 4, 6, and 13 was certainly not a critical element in this case. The gist of Count I is that defendant, along with other alleged conspirators, conspired to do numerous things, among which were: to transfer and make firearms without paying the required tax, and to receive and possess firearms which had not been registered.

Point 3 raised by defendant is that the Court erred in refusing to require the government to answer the request of defendant's motion for a bill of particulars as to whether or not the persons designated as "other persons" in Overt Act 15 of Count I were acting at the instance of the government at the time of the meeting alleged in that overt act. When the Court ruled on that point it clearly pointed out that it took into consideration the matters set out by the Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed. 2d 639 (1957). The Court did require the government to furnish the names and addresses of the "other persons" to the extent it had such knowledge and the government did so. With this information defendant was in a position to interview the persons named in order to determine which one, if any, was aiding the government and could have by appropriate questioning or investigation, or both, determined whether that person was acting at the instance of the government at the time of the meeting alleged in the overt act. Failing in that defendant also had the opportunity to ask the question on cross-examination of any of the witnesses the government called who had information regarding the overt act alleged. Of those "other persons" in Overt Act 15 the government called only Jerry Brooks as a witness. Defendant did not seek by way of cross-examination whether he was acting at the instance of the government at the time of the alleged overt act. The direct testimony of Jerry Brooks certainly did not indicate that he was acting at the instance of the government at that time, and in light of the opportunity for full and complete cross-examination afforded the defendant, it cannot now be asserted that he was so acting and that the earlier ruling of the Court was error and grounds for a new trial. There is not a scintilla of evidence that Brooks was acting at the instance of the government at the time in question, and defendant not only has failed to make any showing of prejudice, he has not even alleged he was surprised or in any way prejudiced by the ruling.

As to the "other persons", other than Brooks, none of them were called as witnesses in the case. Defendant also had their names and addresses before trial and was in a position to independently determine the answer to the question posed to the government. In any event, since none appeared as witnesses in the case it is inconceivable that defendant could have been prejudiced by the Court's ruling that the government need not disclose whether they were acting at the instance of the government at the time in question. Nor has defendant even alleged prejudice.

Point 4 raises another matter on which the Court entered a written order after considering extensive briefs prior to the trial of the cause. Defendant contends that the Court erred in refusing to strike from the indictment all reference to 26 U.S.C. § 5841 for the reason that said section has been declared unconstitutional (Fifth Amendment, self-incrimination) and that to require a defendant to defend against a charge of possession of a firearm which no one has registered so embarrasses and confounds defendant that he could not prepare his defense. Reference is made to § 5841 of Title 26 in Counts I and III. In each count reference is made to § 5841 only in connection with 26 U.S.C. § 5851, and nowhere is defendant charged with violating § 5841. The language of § 5851 is in terms of possessing a firearm which has not been registered as required by § 5841 (the registration section of the chapter), and it is violation of this portion of § 5851 which is charged in Count III and conspiracy to violate this portion of § 5851 which is charged in Count I. This portion of § 5851 has been construed on numerous occasions and has been held constitutional when construed to mean it is unlawful to possess a firearm which no one has registered, Frye v. United States, 315 F.2d 491 (9th Cir. 1963), cert. den. 375 U.S. 849, 84 S.Ct. 104, 11 L.Ed.2d 76 (1963); Starks v. United States, 316 F.2d 45 (9th Cir. 1963), Castellano v. United States, 350 F.2d 852 (10th Cir. 1965), cert. den. 383 U.S. 949, 86 S.Ct. 1207, 16 L.Ed.2d 211 (1966). These cases recognize the distinction between prosecution for the defendant's failure to register a particular firearm (§ 5841) and prosecution for possession of a firearm which no one has ever registered ...