United States v. Feeney

• Decision Date: 07 October 1980
• Docket Number: Crim. A. No. 80-CR-54.
• Citation: 501 F. Supp. 1324
• Parties: UNITED STATES of America, Plaintiff, v. James FEENEY, Defendant.
• Court: U.S. District Court — District of Colorado

501 F. Supp. 1324

UNITED STATES of America, Plaintiff, v. James FEENEY, Defendant.

Crim. A. No. 80-CR-54.

United States District Court, D. Colorado.

October 7, 1980.

Joseph F. Dolan, U. S. Atty., Susan R. Roberts, First Asst. U. S. Atty., Denver, Colo., for plaintiff.

Daniel J. Sears, Denver, Colo., for defendant.

Verner, Liipfert, Bernhard & McPherson by Stuart F. Pierson, Washington D. C., for intervenor.

MEMORANDUM OPINION

WINNER, Chief Judge.

As explained in my opinion of September 5, 1980, a copy of which is attached, this case is before me on the second prong of Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and on motion for new trial. Obeying my understanding of the command of the United States Supreme Court, I am permitting inquiry into all matters which may impact favorably to defendant on the sentence to be imposed. Another judge ruled that certain evidence was not relevant to guilt, but I deem the evidence to be quite relevant to sentencing, and, if some of the conversations on tape are uncoded, it may be that although their relevance would not appear before deciphering, the conversations may indeed be relevant to guilt, but that remains to be decided.

Defendant claims that his activities were known to, and were condoned and encouraged by the United States Department of Justice; that prominent persons engaged in illegal activities; that defendant participated in the monitoring of his own conversations with others with the aid and assistance of Department of Justice officials and that presentation of his defense and presentation of testimony in mitigation of punishment has been thwarted by government officials and other persons of prominence. As I have had occasion to explain before, this matter the government says is quite sensitive is a situation of the government's own making. It elected to prosecute defendant, and, when it did, defendant's due process rights became dominant. I have explained to the prosecution that it can, if it wishes, dismiss this case, but so long as I must decide defendant's fate, I shall provide him with all of the rights I think are guaranteed him by the Constitution and by the United States Supreme Court.

It is my intent to permit defendant to present all evidence which is relevant to his sentencing, and, although it is my desire to protect ongoing investigations and grand jury proceedings insofar as possible, it must be remembered that Grand Jury material has been disclosed as it had to be under 18 U.S.C. § 3500, and that disclosure broke the seal of secrecy as to it. Congress has so decreed. Moreover, the interests of justice demand that full inquiry be made into the truth or falsity of the averments of defendant, because, if true, they are in mitigation of sentence and, if uncoded, they may bear on the granting of a new trial on some or all of the counts on which he stands convicted.

In the course of on the record discussions concerning setting this matter for hearing, an invitation was extended to all interested public officials to participate. It appeared that defendant wished to call, among others, Philip B. Heyman, Assistant Attorney General, United States Department of Justice. A subpoena was served on him, but before it was even served, the government filed a motion to quash saying that he is precluded from providing information because of 28 C.F.R. 16.21 and because defendant didn't tell Mr. Heyman in advance what he was going to be asked about. It would be Valhalla for a private lawyer to be able to get a preview of an adverse witness' cross-examination. Defense counsel promptly filed an affidavit explaining the scope of the inquiry, at least part of which I think is probably relevant to this proceeding.

Moreover, during the course of the hearing, Department of Justice witnesses have refused to answer because of a direction they have received from the Deputy Attorney General to keep secret information which, by Department of Justice ipse dixit, is classified as immune from judicial process because of an "ongoing investigation." These agency directives of secrecy pose that which is for me a very difficult question. If an agency or its officials can decide what will and what will not be subject to disclosure in a court of the United States, functioning of the courts can be frustrated. I did not rule on the direction given the witnesses to refuse to answer, and I have asked for briefs from all interested parties, although, as I shall explain presently, it may be that I will not reach the question.

I say that because of an ancient rule of law which probably would not apply had the Department of Justice not demanded that some of its officials be excused from testifying and that others be permitted to refuse to answer relevant questions. Before that position was taken by the Department of Justice, the witnesses were equally available to both parties, but now it is crystal clear that they are not and the appropriate evidentiary inferences or presumptions come into play. See, Gillett v. Gillett, 168 Cal.App.2d 102, 335 P.2d 736; Barringer v. Arnold, 358 Mich. 594, 101 N.W.2d 365; State v. Raible (Ohio App.) 117 N.E.2d 480; Hinton v. Waste Techniques Corp., 243 Pa. Super. 189, 364 A.2d 724.

In a sense this case is a modern version of Barbara Tuchman's Distant Mirror because this case is almost a replay of a part of the legend of the West. Many people are too young to know anything about the Teapot Dome scandal, but it dealt with Wyoming oil reserves, and the most vital of all of the meetings of the alleged conspirators took place in Pueblo, Colorado. The Teapot Dome scandal resulted in the conviction of the only cabinet officer ever convicted pre-Watergate. Secretary of the Interior Fall was convicted of accepting a bribe from Sinclair, but Sinclair, tried to another jury, was acquitted on the charge of giving it.

Reports of the case are replete with names familiar to Colorado legend-Blackmer, Humphreys and Admiral (then Commander) Shafroth. Thus, I find it somewhat eerie that this 55-year old scandal provides a rule of law applicable to today's claim of right to refuse to disclose information. The case is reported as Mammoth Oil Co. v. United States, (1927) 275 U.S. 13, 48 S.Ct. 1, 72 L.Ed. 137, and the government was represented by Owen J. Roberts. Justice Butler delivered the unanimous opinion of the seven justices who participated in the case. This is what the Court said as to the failure of a party to call witnesses within that party's control:

"Familiar rules govern the consideration of the evidence. As said by Lord Mansfield in Blatch v. Archer (Cowper 63, 65): `It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.' The record shows that the Government, notwithstanding the diligence reasonably to be expected, was unable to obtain the testimony of Blackmer, O'Neil, Stewart, Everhart, or Osler in respect of the transaction by which the Liberty Bonds recently acquired by the Continental Company were given to and used for Fall. And the record contains nothing to indicate that the petitioners controlled any of them, or did anything to prevent the Government from obtaining their testimony, or that they or the evidence they might have given was within petitioners' power. But the failure of Sinclair to testify stands on a different basis. Having introduced evidence which, uncontradicted and unexplained was sufficient to sustain its charge, the United States was not required to call the principal representative of the company. His silence makes strongly against the company. It is as if he personally held the lease, were defendant, and failed to testify. The guiding considerations by which the proper significance of such silence is to be ascertained were well stated by Chief Justice Shaw in the celebrated case of Commonwealth v. Webster, 5 Cush. 295, 316: `Where, for instance, probable proof is brought of a state of facts tending to criminate the accused, the absence of evidence tending to a contrary conclusion is to be considered,-though not alone entitled to much weight; because the burden of proof lies on the accuser to make out the whole case by substantive evidence. But when pretty stringent proof of circumstances is produced, tending to support the charge, and it is apparent that the accused is so situated that he could offer evidence of all the facts and circumstances as they existed, and show, if such was the truth, that the suspicious circumstances can be accounted for consistently with his innocence, and he fails to offer such proof, the natural conclusion is, that the proof, if produced, instead of rebutting, would tend to sustain the charge. But this is to be cautiously applied, and only in cases where it is manifest that proofs are in the power of the accused, not accessible to the prosecution.' While Sinclair's failure to testify cannot properly be held to supply any fact not reasonably supported by the substantive evidence in the case (Northern Railway Company v. Page, 274 U.S. 65, 74), it justly may be inferred that he was not in position to combat or explain away any fact or circumstance so supported by evidence and material to the Government's case. Runkle v. Burnham, 153 U.S. 216, 225 14 S.Ct. 837, 38 L.Ed. 694; Kirby v. Tallmadge, 160 U.S. 379, 383 16 S.Ct. 349, 40 L.Ed. 463; Bilokumsky v. Tod, 263 U.S. 149, 154 44 S.Ct. 54, 68 L.Ed. 221; Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 111 47 S.Ct. 302, 71 L.Ed. 560; Clifton v. United States, 4 How. 242, 247 45 U.S. 242, 11 L.Ed. 957; Missouri, K. & T. Ry. Co. v. Elliott, 102 F. 96, 102. As to facts appearing to have been within the knowledge or power of Sinclair, we find that the evidence establishes all that it fairly and reasonably tends to prove."

Mammoth Oil dealt with presumptions to be applied against private...