United States v. Fine
| Decision Date | 04 May 1976 |
| Docket Number | No. 70-CR-126 W.D.,70-CR-126 W.D. |
| Citation | 413 F. Supp. 740 |
| Parties | UNITED STATES of America, Plaintiff, v. David Sylvan FINE, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
David C. Mebane, U. S. Atty., Madison, Wis., for plaintiff.
Shellow & Shellow, by James Shellow, Stephen Glynn, Milwaukee, Wis., for defendant.
DECISION and ORDER
In a separate decision, I ruled on several motions of the defendant David Fine to dismiss various counts of the indictment in this action. The defendant and the government have also filed a number of motions which deal with discovery matters, including a motion for a bill of particulars. The defendant has also submitted a motion to suppress certain evidence. This decision will deal with these motions. Several other motions were filed by the defendant, but the court has been informed that these motions have been voluntarily resolved by the government and the defendant, withdrawn by the defendant, or otherwise held in abeyance at the request of the defendant.
The government has filed a motion for an order directing the defendant to furnish voice exemplars in the form of a telephone communication recorded by the Madison police department on August 24, 1970, warning of the existence of a bomb in the Army Math Research Center. The government has stated that the purpose of the requested exemplars is "for use as a comparison in determining the identity of the caller involved materially in the crimes charged."
The defendant filed a motion for disclosure, to determine whether the government already possessed recordings of the defendant's voice, and in response to that motion the government has stated that aside from the tape recorded telephone message with which the exemplars would be compared, "there are no known tape or other voice recordings of defendant Fine within the possession of the Government." The defendant has filed a motion for a pretrial evidentiary hearing to determine the admissibility of voice spectrograms, commonly referred to as "voiceprints," prior to any ruling by this court on the government's motion for production of voice exemplars. The government's motion for production of voice exemplars will be granted, and the defendant's motion for a prior evidentiary hearing will be denied.
The defendant raises fourth and fifth amendment objections to an order compelling him to produce voice exemplars, but he admits in his brief that these objections have been conclusively rejected in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Rogers, 475 F.2d 821 (7th Cir. 1973). The defendant's remaining objection is that the use of voice spectrograms as a voice identification procedure is insufficiently established to have gained general acceptance among speech scientists, that testimony relating to such a procedure is therefore not admissible at trial, and that accordingly, voice exemplars would not be relevant at trial and should not be produced.
The defendant's objections to the production of voice exemplars are without merit, and his request for a determination of the admissibility of voice spectrogram evidence is premature. As the government notes in its brief:
The government's motion for an order requiring the defendant to produce voice exemplars will be granted, and the defendant's motion for a prior evidentiary hearing will be denied.
The defendant has filed a motion for the entry of an order requiring the government to produce for inspection and copying any and all statements allegedly made by co-conspirators, whether indicted or not, and whether made during the pendency of the alleged conspiracy and in furtherance of it, or made after the termination of the alleged conspiracy to law enforcement officials. This motion will be granted.
Under Rule 801(d)(2)(E), Federal Rules of Evidence, the statement of a co-conspirator of a party, made during the course and in furtherance of a conspiracy, and offered against that party, is not inadmissible as hearsay. Therefore, the defendant contends, statements of alleged co-conspirators, for all practical purposes, become the statements of the defendant himself and should be discoverable by the defendant as though they were his own statements. See Rule 16(a)(1)(A), Federal Rules of Criminal Procedure. This view of the relationship between Rules 801(d)(2)(E) and 16(a)(1)(A), was rejected in United States v. Percevault, 490 F.2d 126 (2d Cir. 1974).
However, in turning down the defendant's analysis the court in Percevault applied reasoning which is applicable only to co-defendants or co-conspirators who are prospective government witnesses at trial. This reasoning is similar to that in United States v. McMillen, 489 F.2d 229, 231 (7th Cir. 1972), which states:
Accordingly, the defendant's motion for the production of statements of alleged co-conspirators, other than those who are prospective government witnesses, will be granted.
The defendant has filed a motion for an order "requiring the Government to provide, substantially prior to trial, all statements of persons that the Government intends to call as witnesses at the trial." A similar motion for the production of a transcript of the testimony of those witnesses who appeared before the grand jury has been filed.
Title 18, United States Code, § 3500, provides that the statements of witnesses need not be produced until such time as the witnesses have testified. The government has stated that it will "agree to the procedure utilized in the case of United States v. Balistrieri, 346 F.Supp. 366 336, 388 338 (E.D.Wis.1972), by furnishing copies of the witnesses' statements twenty-four (24) hours prior to their appearance on the witness stand." In Balistrieri, the government was directed to produce such statements for the defendants' inspection and copying 24 hours "before the start of the trial." 346 F.Supp. at 338. Where the trial is a short one, the 24 hour period is substantially the same whether it runs from the start of the trial or before the witness is called to testify. In the case at bar, the time span may be significantly different, and the better rule is the measurement of 24 hours before the witness is called to testify.
The defendant requests that the Balistrieri procedure be utilized by the court in this action, but that it be applied earlier than in Balistrieri, due to the large number of witnesses and the complexity and length of the trial expected in this action. I am not persuaded that the trial management technique utilized in Balistrieri is inadequate to the needs of the defendant in the case at bar. Accordingly, the government will be directed to produce all statements of persons that the government intends to call as witnesses 24 hours before the witness is called to testify.
Grand jury testimony of government trial witnesses on the subjects about which they testified at the trial is available to a defendant as a matter of right. United States v. Amabile, 395 F.2d 47, 53 (7th Cir. 1968); United States v. Cullen, 305 F.Supp. 695 (E.D.Wis.1969). As a matter of sound trial management, grand jury testimony of prospective government witnesses should be disclosed 24 hours in advance of the calling of the witness. Balistrieri and Cullen, supra.
However, the defendant seeks not only the grand jury testimony of prospective government witnesses but that of all witnesses before the grand jury — "those witnesses who appeared before the grand jury and upon whose testimony this indictment was returned." Furthermore, the defendant seeks disclosure substantially earlier than is provided in Balistrieri and Cullen. None of the cases upon which the defendant relies suggests that a defendant is entitled to a transcript of the testimony of all grand jury witnesses, or to grand jury transcripts substantially in advance of trial.
The defendant has filed a motion to permit him to copy discovery material furnished to him by the plaintiff. The government opposes "a broad court order directing the unlimited copying of Federal investigative files," but it has suggested no governmental interest which would be impaired by allowing defendant to copy any material disclosed to him through the discovery process in this action, and I am aware of none. Such copying, of course, would be undertaken at the defendant's expense and during the government's normal working hours. For the above reasons, the defendant's motion to permit copying of discovery material will be granted.
In its response to the defendant's motion to dismiss the indictment in this action, the government requested a protective order providing:
"All material disclosed to the defendant...
To continue reading
Request your trial
-
US v. Gallo
...1977), aff'd, 598 F.2d 1101 (7th Cir.1979), cert. denied, 444 U.S. 840, 100 S.Ct. 79-80, 62 L.Ed.2d 52 (1979); United States v. Fine, 413 F.Supp. 740, 743 (W.D.Wisc.1976); United States v. Bloom, 78 F.R.D. 591, 618 In view of this history, Percevault must be construed to apply only to co-co......
-
United States v. Hubbard
...not specified in the indictment. The Court grants this request to the extent of approximate specifications. See United States v. Fine, 413 F.Supp. 740, 746 (W.D.Wis.1976). The government objects to the defendants' requests numbered 6, 7f, 10b, 15g, 15h, 16b(i), 16b(iv), 24, 31j, and 33b, on......
-
United States v. Bronk, 84-CR-54-S.
...order was contrary to controlling precedent and an abuse of his discretion. In support of that argument, they cite United States v. Fine, 413 F.Supp. 740, 743 (W.D.Wis.1976) (Gordon, J. sitting by designation), a case in which the court held that statements by the defendant's alleged co-con......
-
United States v. Rogers
...1069, 1077 (5th Cir.1979); Thevis, 474 F.Supp. 117, 125; United States v. Hubbard, 474 F.Supp. 64, 81 (D.D.C.1979); United States v. Fine, 413 F.Supp. 740, 746 (W.D.Wis.1976); United States v. Burgio, 279 F.Supp. 843, 846 (S.D.N.Y.1968). As stated in Thevis, "to do otherwise is to guarantee......