United States v. Hall

Decision Date24 April 1975
Docket NumberCrim. No. 75-8.
Citation424 F. Supp. 508
PartiesUNITED STATES of America, Plaintiff, v. David HALL and W. W. Taylor, Defendants.
CourtU.S. District Court — Western District of Oklahoma
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William R. Burkett, U. S. Atty., James M. Peters, O. B. Johnston, III, Asst. U. S. Attys., Oklahoma City, Okl., for plaintiff.

D. C. Thomas, Richard F. McDivitt, Jack S. Dawson, Oklahoma City, Okl., David T. Austern, Washington, D. C., for Hall.

James P. Linn, John M. Johnston, Oklahoma City, Okl., Emmett Colvin, Dallas, Tex., for Taylor.

On Motion to Dismiss First Defendant February 11, 1975.

On Motions to Dismiss Second Defendant February 11, 1975.

DAUGHERTY, Chief Judge.

Defendants Hall and Taylor have filed Motions for Discovery and Inspection. Defendant Hall in his Motion also moves for the Production of Evidence Favorable to the Accused. Both Motions are supported by Briefs. The Plaintiff has filed its Response to said Motions.

Defendant Hall seeks to discover the following matters: (1) Written or recorded statements, confessions, or admissions made by himself, any co-defendant, or any unindicted co-conspirator; (2) Physical objects obtained in investigating the case which may be used as evidence or which could be used by Defendant for exculpatory purposes to include electronically recorded statements; (3) The identity of all persons who have knowledge of the case or who have been interviewed by Government agents, whether or not the Government plans to call such persons as witnesses in the case. In this regard, he seeks (a) written statements of persons the Government does not intend to call at trial, (b) Grand Jury testimony, (c) exculpatory material, and (d) Federal and State criminal records; (4) Scientific reports or results relating to fingerprints, handwriting, or electronic tests; (5) Tangible objects to be used at trial or obtained from Defendant; (6) Information from the United States Attorney as to: (a) whether information has been received from an informant, (b) if relevant information was presented to the Grand Jury which was not recorded, and (c) if it knows of information which would mitigate the punishment of Defendant if convicted; (7) That any Order pursuant to this Motion be on a continuing basis pursuant to Rule 16(g), Federal Rules of Criminal Procedure; and (8) That his requests be considered separately.

Defendant Taylor seeks to discover the following items: (1) Any notes or writings by any Defendant which is to be used as evidence; (2) Evidence to be introduced in nature of money, currency or checks relating to bribery, extortion, or conspiracy; (3) Tangible objects to be introduced at the trial; (4) Any statements or confessions made by any co-defendant which would incriminate or in the alternative exculpate Defendant Taylor; (5) Statements of other witnesses whether incriminating or exculpatory as to Defendant Taylor; and (6) any other exculpatory matters.

In its Response, the Government advises the Court that it has furnished to Defendants copies of transcripts of tape-recorded conversations involving all Defendants and copies of the actual tapes themselves. It further states that no other conversations of Defendants or other persons were recorded or overheard. It appears that a few poor quality tapes are at the Federal Bureau of Investigation Laboratory and will be furnished upon return.

The Government in its Response further denies it has the following requested items: (1) Written or recorded statements or confessions by either moving Defendant; (2) Exculpatory evidence except as noted in depth hereafter; (3) Any arrest and conviction or related records as to its witnesses; and (4) Any scientific reports or statements by experts.

The Government asserts certain requests by Defendant Hall are not supported by authority showing his entitlement to same and thus it declines to submit such information. Included in this response are: (a) Whether information was provided by an informant; (b) Whether certain Grand Jury testimony was not transcribed; (c) and Evidence which would tend to mitigate punishment in the event of a conviction.

The issues being framed by the parties, the Court makes the following rulings on the Motions for Discovery and Inspection:

STATEMENTS BY DEFENDANTS

The Government has responded that it has no written or recorded statements or confessions from Defendants Hall and Taylor and on this basis such request is denied. The request by both of these Defendants is broad enough to include any statements made by Co-defendant Mooney, who has previously entered a Plea of Guilty to the Conspiracy Count of the Indictment in the instant case. Rule 16(a), supra, allowing a defendant to obtain copies of statements or confessions appears to specifically relate to the moving Defendant's own statements. The moving parties have failed to support their request as to statements or confessions by Mooney with legal authority. The Courts have held that statements of co-defendants are not discoverable under Rule 16(b), supra. United States v. Randolph, 456 F.2d 132 (Third Cir. 1972), cert. den., 408 U.S. 926, 92 S.Ct. 2507, 33 L.Ed.2d 337; United States v. Mahany, 305 F.Supp. 1205 (N.D.Ill.1969); United States v. Fassler, 46 F.R.D. 43 (S.D.N.Y.1968); United States v. Westmoreland, 41 F.R.D. 419 (S.D.Ind. 1967). The request is denied as to any statements of Co-defendant Mooney.

EXCULPATORY EVIDENCE

The Government advises it has no evidence which could be considered exculpatory with the possible exception of statements contained in a particular tape-recorded telephone conversation which it advises it has furnished Defendants.

In its Response, the Government tendered to the Court for in camera examination all reports of the investigative agency involved in this case. The Court declines to examine these reports. The situation is analogous to the matter considered in Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) which involved grand jury testimony. The Court stated:

"Trial judges ought not to be burdened with the task or the responsibility of examining sometimes voluminous grand jury testimony in order to ascertain inconsistencies with trial testimony."

Likewise, a trial judge ought not to be burdened with the task of examining investigative reports of Government agencies to determine if exculpatory material is contained therein. This responsibility is that of the prosecution. On the foregoing basis the Motions requesting exculpatory evidence are denied.

IDENTITY OF WITNESSES

The Motions being considered herein request many items which are dependent on the Government disclosing the identity of its witnesses or prospective witnesses. In United States v. Gleeson, 411 F.2d 1091 (Tenth Cir. 1969) the Court stated:

"It is well settled in this circuit that in non-capital cases an accused is not entitled to be furnished a list of the names of government witnesses."

Among the numerous cases following this point are Nipp v. United States, 422 F.2d 509 (Tenth Cir. 1970) and United States v. Baca, 494 F.2d 424 (Tenth Cir. 1974). Those requests contained in Defendants' Motions to include identity of witnesses, statements of same, and arrest and criminal records of witnesses are thus denied except it is noted that the Government has advised in its Response that it knows of no arrest or criminal records of its witnesses.

TANGIBLE EVIDENCE

The Government in its Response agrees to allow Defendants to inspect or obtain copies of all tangible evidence it plans to offer as evidence. This will be accomplished as set out hereafter.

GRAND JURY TESTIMONY

Defendant Hall has filed a separate Motion relating to Grand Jury testimony and therefore issues relating to such will not be considered in the instant Order.

INVESTIGATIVE INFORMATION

Some of the material or items requested, in particular the request seeking identity of persons interviewed by Government agents in investigating this case and statements of such persons who will not be called as witnesses in this case, constitutes a request for discovery of internal Government documents made by Government agents. Such material is specifically excluded from pretrial discovery in Rule 16(b), supra, which provides:

"Except as provided in subdivision (a)(2), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses (other than the defendant) to agents of the government except as provided in 18 U.S.C. § 3500."

The Government correctly objects to such requests on the basis the Rule specifically excepts from discovery items contained in internal government investigative reports. The requests relating to these items to include whether informants were used are denied. United States v. Stephens, 315 F.Supp. 1008 (W.D.Okl.1970). United States v. Marth, 42 F.R.D. 432 (S.D.N.Y. 1967).

Defendant Hall's request that its Motion be deemed continuing is not acted upon by the Court as the request is for a procedure which operates automatically...

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