United States v. Fancher

• Decision Date: 08 June 1961
• Docket Number: Crim. 10204.
• Citation: 195 F. Supp. 448
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Margaret FANCHER.

195 F. Supp. 448

UNITED STATES of America v. Margaret FANCHER.

Crim. 10204.

United States District Court D. Connecticut.

June 8, 1961.

Harry W. Hultgren, Jr., U. S. Atty., Hartford, Conn., for the United States.

Joseph P. Cooney, Hartford, Conn., for defendant.

TIMBERS, District Judge.

Defendant Margaret Fancher moves, pursuant to Rules 16 and 17(c), Fed. R.Crim.P., 18 U.S.C., for production, discovery and inspection of documents prior to trial.

Margaret Fancher was indicted in September 1960 on two counts of willful tax evasion with respect to the years 1954 and 1955. Int.Rev.Code of 1954, § 7201, 26 U.S.C. § 7201.

In February 1960, her husband, Morris Fancher, had been indicted (Crim. No. 10,018) on three counts of willful tax evasion with respect to the years 1953, 1954 and 1955. Int.Rev.Code of 1939, § 145(b), 53 Stat. 62, 26 U.S.C. § 145(b); Int.Rev.Code of 1954, § 7201, 26 U.S.C. § 7201. On June 3, 1960, at the conclusion of a jury trial in the case against Morris Fancher, the Court ordered a mistrial when the jury was unable to agree upon a verdict.

After the indictment of Margaret Fancher in September 1960, the Government moved to consolidate for trial the indictment of Morris Fancher (for a retrial) and the indictment of Margaret Fancher. Rule 13, Fed.R.Crim.P. The Court granted the motion to consolidate, pointing out that the tax returns in issue were joint returns signed and filed by both defendants and that the transactions referred to in the two indictments are therefore identical, except that the charge against Morris Fancher with respect to the year 1953 is not included in the indictment against Margaret Fancher. United States v. Fancher, D.C.D. Conn.1960, 195 F.Supp. 634.

Margaret Fancher now moves for the production, discovery and inspection of the following documents:

(1) All papers obtained from her;

(2) All papers obtained from third parties by seizure or by process;

(3) Any signed statement of the defendant given to the Internal Revenue Service or any branch or agent thereof;

(4) Any unsigned oral but transcribed statement given to the Internal Revenue Service.

By a subpoena duces tecum made returnable at the time of argument of the instant motion, defendant subpoenaed J. Robert Murphy, Chief of the Intelligence Section, Internal Revenue Service, Hartford, Connecticut, to produce "all documents voluntarily turned over to the Government by third parties, including bank records, property records, statements of account and any other records having to do with the financial transactions of this defendant."¹

Papers Obtained from Defendant

The Government is directed to produce, and to permit defendant or her counsel to inspect and copy, all papers which the Government has obtained from defendant, such papers being among those expressly described in Rule 16.

Although the papers referred to in this branch of defendant's motion are not designated other than "papers obtained from defendant", undoubtedly the Government knows what papers it has obtained from defendant; accordingly, under the circumstances here present, more specific designation is not required. United States v. Greater Blouse, Skirt & Neckwear Contractors' Association, Inc., D.C.S.D.N.Y.1959, 177 F.Supp. 213, 224; United States v. Kidwell, D.C.W.D.Mo. 1953, 14 F.R.D. 399, 400.

Moreover, the Court holds that defendant has made a sufficient showing of materiality and reasonableness, in compliance with the requirements of Rule 16, to justify the granting of this branch of defendant's motion.

Papers Obtained from Third Parties by Seizure or by Process

The Government is directed to produce, and to permit defendant or her counsel to inspect and copy, all bank records, property records, statements of account and records of financial transactions with defendant which have been obtained from others by seizure or by process and which relate to defendant.

Such records, having been sufficiently designated under the circumstances here present, are among those expressly described in Rule 16. Adequate showing of materiality and reasonableness has been made. United States v. Greater Blouse, Skirt & Neckwear Contractors' Association, Inc., supra, 177 F.Supp. at page 224; United States v. Parr, D.C. S.D.Tex.1955, 17 F.R.D. 512, 515, appeal dismissed 5 Cir., 1955, 225 F.2d 329, affirmed 1956, 351 U.S. 513. 76 S.Ct. 912, 100 L.Ed. 1377.

At the time of argument of this motion, the Government urged that the Jencks Act, 71 Stat. 595 (1957), 18 U. S.C. § 3500 (Supp.1957), precluded defendant from obtaining in advance of trial the records sought under this branch of defendant's motion. The Court holds that the Jencks Act is not here applicable; the "statement or report in the possession of the United States which was made by a government witness or prospective government witness (other than the defendant) to an agent of the government", referred to in 18 U.S.C. § 3500, does not embrace existing records obtained by the Government from third parties by seizure or process. Palermo v. United States, 1959, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287; Comment, The Jencks Legislation, 67 Yale L.J. 674, 692 (1958).

Statement of Defendant Given to Government

There is a split of authority as to whether a defendant, under Rule 16 or Rule 17(c), may obtain production, discovery and inspection prior to trial of a statement given by him to the Government.

Appellate Court Decisions

Appellate courts have discussed the relationship between the pre-trial discovery provisions of Rule 16 and the provisions of Rule 17(c) for subpoenaing before trial, or before offering in evidence, designated books, papers, documents or other objects for inspection.² Some few appellate courts have dealt with the problem of whether a defendant in a criminal case should be furnished before trial with a statement given by him to the Government.³ The Court of Appeals for this Circuit has recognized but has not ruled on the question.⁴

District Court Decisions

District courts are sharply divided on the question. Some have ordered such statements given to defendants prior to trial;⁵ others have refused to do so.⁶

The leading cases are United States v. Peace, D.C.S.D.N.Y.1954, 16 F.R.D. 423, in which Judge Weinfeld ordered a defendant's statement produced under Rules 16 and 17(c) (but denied inspection of a co-defendant's statement under Rule 17(c)), and United States v. Peltz, D.C.S.D.N.Y.1955, 18 F.R.D. 394, in which Judge Herlands denied production of a defendant's statement under Rules 16 and 17(c). Both are carefully reasoned decisions by able judges. Each sets forth his respective point of view persuasively and with conviction. Each has attracted a fair share of followers among other judges who have given thoughtful attention to the problem which is as perplexing as it is critical in the administration of criminal justice.

The Weinfeld Rule

If forced to choose between the competing views, this Court would be disposed, absent a showing of extraordinary prejudice to the Government, normally to order produced before trial a statement which had been given by a defendant to the Government. In doing so, this Court would adhere substantially to the views expressed by Judge Weinfeld in the Peace case — the Weinfeld Rule, for short.

The Weinfeld Rule appeals to this Court for several reasons. It places a premium upon cooperation between an accused and the authorities, making available to one who voluntarily furnishes information adverse to his own interest a copy of his statement, if not at the time of signing (when normally it should be furnished), then certainly prior to trial.⁷ It places in proper perspective the Government's chief objection to producing such a statement — fear of perjury — by noting that to assume a defendant will commit perjury strips him to that extent of the presumption of innocence, overlooks the effect of cross-examination if in fact the statement was given voluntarily and disregards the sanctions for perjury.⁸ It recognizes that a criminal trial, in which vital interests of the defendant, of the Government and of the public are delicately balanced, should not be treated "as a game of combat by surprise."⁹ The Weinfeld Rule, as its distinguished draftsman so appropriately states, "would enhance, rather than diminish, the dignity of the administration of law" and is "in accord with enlightened administration of criminal justice."¹⁰

Connecticut District Court Practice

In this district the problem has not heretofore been dealt with in a reported decision. Until the Court of Appeals for this Circuit has the occasion to rule upon the question, this Court will continue to adhere to the practice which has been followed in this district for some years, namely, in the exercise of the Court's discretion,¹¹ to grant or deny a motion to produce such a statement in accordance with the circumstances of the particular case.¹²

Among the factors to be considered in the exercise of the Court's discretion, are:

(a) Nature of case — its complexity, period of time covered, number of persons and multiplicity of transactions involved.¹³

(b) Defendant's age, physical and mental condition, extent of education and character.

(c) Circumstances under which statement was obtained from defendant — particularly as bearing upon its voluntary character¹⁴ — including

(i) Proximity to time of arraignment;

(ii) Advice to defendant regarding necessity of giving a statement;

(iii) Whether defendant was informed of purpose for which statement was sought and that it might be used against him in court;

(iv) Whether defendant was represented by counsel or was informed that he was entitled to be so represented.

(d) Likelihood, in view of nature of case, that furnishing defendant with copy of his statement will be conducive to perjury.¹⁵

(e) Extent to which trial time will be saved by pre-trial production of defendant's statement.¹⁶

(f) Point of time, with relation to

...