United States v. Duardi

• Decision Date: 12 November 1974
• Docket Number: No. 23939-1.,23939-1.
• Citation: 384 F. Supp. 874
• Parties: UNITED STATES of America, Plaintiff, v. James S. DUARDI et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

384 F. Supp. 874

UNITED STATES of America, Plaintiff, v. James S. DUARDI et al., Defendants.

No. 23939-1.

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

November 12, 1974.

Bert C. Hurn, U. S. Atty., Gary Cornwell, Strike Force, Kansas City, Mo., for plaintiff.

Michael J. Drape, Kansas City, Mo., for Duardi.

Lawrence F. Gepford, Kansas City, Mo., for Brancato.

David R. Freeman, Federal Public Defender, Kansas City, Mo., for Bishop.

Patrick A. Williams, Tulsa, Okl., for King.

Roehm A. West, Tulsa, Okl., for Husong.

Stephen Jones, Oklahoma City, Okl., for Grayson.

MEMORANDUM AND ORDERS GRANTING DEFENDANTS' MOTION TO DISMISS GOVERNMENT'S SECTION 3575(a) NOTICE AND DENYING GOVERNMENT'S MOTION FOR LEAVE TO AMEND SAID NOTICE

JOHN W. OLIVER, District Judge.

I.

Pursuant to orders entered September 17, 1974, this case now pends on (1) defendants' motion to strike the government's original Section 3575(a) notice; and (2) the government's motion for leave to file an amended Section 3575(a) notice. For reasons we shall state in detail, defendants' motion to strike will be granted and the government's motion for leave to amend its original notice will be denied. Accordingly, a final order will be entered setting the case on the regular docket for imposition of final sentences.

Attention was first focused on the questions presented in Part III of our memorandum opinion of January 2, 1973, 384 F.Supp. 856. We concluded at that time that even though a particular defendant may be found to be a "special offender," within the meaning of § 3575(e), he may not properly be sentenced under that section unless he also may be found to be "dangerous," within the meaning of § 3575(f). We directed specific attention to the express requirement of subsection (f) that a defendant may be considered to be "dangerous" only if it may be determined that "a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant."

In order to get the questions presented in appropriate focus, we entered an order on January 2, 1973, which required the government to "prepare, serve, and file a statement of the evidence it intends to adduce in order to support a finding of dangerousness, as required by § 3575(f) of Title 18, United States Code." A second memorandum opinion was filed on February 28, 1973, 384 F.Supp. 861. That opinion, among other things, focused particular attention on whether the original § 3575(a) notice filed by the government complied with the express requirements of § 3575(a), which provides that the government's attorney shall set out "with particularity the reasons why such attorney believes the defendant to be a dangerous special offender." We also noted that the government, by its response filed January 23, 1973, purported to comply with our January 2, 1973 order to file a statement of the evidence it intended to adduce to support a § 3575(f) finding of dangerousness. We described that response generally as a statement of "various and sundry charges against the various defendants, some of which the government would attempt to support by hearsay upon hearsay and some of which related to criminal charges which pend trial in the State courts of Oklahoma." We directed attention to the government's "loose talk" which described the defendants as "organized crime offenders." On February 28, 1973, we entered an order which, among other things, directed that the government state whether it wanted to seek leave to amend its defective original § 3575(a) notice.

Our most recent memorandum opinion of September 17, 1974 outlined the circumstances and procedures under which further proceedings in connection with the government's effort to invoke the Sections 3575-3578 sentencing procedures was deferred in light of the parties' agreement that the tentative sentences, calling for the recommendation of the Director of the Bureau of Prisons, be imposed pursuant to § 4208(b), Title 18, United States Code. Our September 17, 1974 opinion was written after we had received the recommendation of the Director of the Bureau of Prisons in regard to each of the defendants involved and after it was apparent that the Director's recommendation in regard to each defendant was for a sentence considerably less than the five year maximum authorized for violations of the statute under which the defendants were convicted.

Consistent with the understanding under which the Section 4208(b) sentences were imposed, we entered appropriate orders on September 17, 1974, which provided (1) that the government could, if it so desired, file a motion seeking leave to file a proper amendment to its presently defective § 3575(a) notice; and (2) granting defendants leave to file a motion to strike both the original and the amended notice, should one be filed. Both motions were filed and those pend for determination.

II.

The government's motion for leave to amend its original notice, filed September 30, 1974, attached as an exhibit a proposed "Amended Notice." The proposed amended notice is directed against only defendants Duardi, Brancato, Bishop and King. The government's suggestions in support of its current response to our orders of September 17, 1974, included a motion, which will be granted, to dismiss its original notice against defendants Grayson and Husong.¹

In the earlier memorandum opinions to which we have made reference, and which we expressly incorporate at this place by this reference, we determined that the government's original notice was fatally defective because (a) it made no mention whatever of the essential element of dangerousness as required by § 3575(f), and (b) the government totally failed to meet the requirement of § 3575(a) (2) that the government attorney set out with particularity the reasons why the government attorney believed a particular defendant to be a dangerous special offender.

In its effort to cure those defects, the government's proposed amended notice would add, as a new paragraph 5, a conclusory statement that each defendant is dangerous within the meaning of the definition stated in § 3575(f). In addition, the government, in purported compliance with the requirements of § 3575(a)(2), simply copies, word for word, those portions of the government's response of January 23, 1973 to our order of January 2, 1973, which relate to the four defendants against whom the government would seek to have sentenced under the procedures provided in Sections 3575-3578. Thus, the government's response of January 23, 1973, which we discussed quite fully in our earlier opinions, is injected back into this case as an integral part of the proposed amended notice which the government seeks leave to file in order to trigger the Sections 3575-3578 special sentencing procedures.

The portion of the government's response of January 23, 1973, as it related to defendant Bishop, now incorporated in the government's proposed amended notice, states in substance that Bishop was convicted in the District of Kansas on May 5, 1971 of interstate transportation of forged securities, that he was given concurrent five year sentences on the multiple counts there involved, that the execution of those sentences was suspended and Bishop placed on probation for a period of three years. Reference was then made to the fact that probation was revoked by Judge O'Connor on October 24, 1972, because of Bishop's unauthorized travel to Oklahoma, his use of assumed names, and his possession of firearms on such visits. The government adds that Bishop was convicted of a Missouri felony charge for a July 4, 1972 burglary for which he was given a three year sentence on May 31, 1974.²

The proposed amended notice then incorporated that portion of the January 23, 1973 response which stated that "on March 16, 1972 Clifford Bishop did shoot Jess C. Roberts with the intent to kill." The testimony that the government's principal trial witness would give in connection with that matter is then stated in detail. It is further stated that "Roberts had seen Bishop prior to this shooting incident, had been on a trip from Oklahoma to Denver and Kansas City, during which defendant King had informed Bishop and Roberts that federal law enforcement officials were investigating their activities." The next prior occasion on which Roberts had seen Bishop and King included an occasion when defendant Husong was present at which time Roberts allegedly had been accused of trying to "back out of the illegal arrangement which is the subject matter of the present conviction."

The portion of the government's response of January 23, 1973 incorporated in the proposed amended notice in regard to defendant King states that the government would offer evidence establishing that King lured Roberts to a point where Bishop was "lying in wait to murder Roberts and then assisted in disposing of Roberts' apparently dead body." The same testimony that Bishop, King and Husong accused Roberts of attempting to back out of their illegal arrangement would also be offered against defendant King.

As noted above, the portion of the response of January 23, 1973 in regard to defendants Grayson and Husong is omitted in its entirety from the proposed amended notice. It is significant to note, however, that neither Grayson nor Husong was considered by the government in its January 23, 1973 response to be "dangerous" because they were public officials. The government's original position was based on the theory that it would offer evidence in regard to defendant Grayson which would indicate his "knowledge of the details of the shooting, and necessarily some complicity with the assailants." A similar contention was made in regard to defendant Husong. The government's January 23, 1973 response stated that its intended evidence would establish "complicity in the murder scheme by Husong."

The portion of the January 23, 1973 response...