United States v. Hall, 3539.

• Court: U.S. District Court — Western District of Kentucky
• Writing for the Court: George Boston, Bowling Green, Ky., for defendant, Horace Greeley Miles, Jr
• Citation: United States v. Hall, 153 F.Supp. 661 (W.D. Ky. 1957)
• Decision Date: 22 July 1957
• Docket Number: No. 3539.,3539.
• Parties: UNITED STATES of America, Plaintiff, v. Ernest H. HALL, Horace Greeley Miles, Jr., Defendants.

153 F. Supp. 661

UNITED STATES of America, Plaintiff, v. Ernest H. HALL, Horace Greeley Miles, Jr., Defendants.

No. 3539.

United States District Court W. D. Kentucky, Bowling Green Division.

July 22, 1957.

J. Leonard Walker, U. S. Atty., and William B. Jones, Asst. U. S. Atty., Louisville, Ky., for plaintiff.

Bell & Orr, Bowling Green, Ky., for defendant, Ernest H. Hall.

George Boston, Bowling Green, Ky., for defendant, Horace Greeley Miles, Jr.

SWINFORD, District Judge.

On May 21, 1957, the grand jury at Bowling Green returned an indictment charging the defendants under 18 U.S. C.A. § 371 with a conspiracy to violate 18 U.S.C.A. § 1010. The defendants were not before the court and process was issued for their appearance. On the following day, May 22, the defendants and their attorneys appeared in open court. The court fixed bond for their appearance and by agreement of the parties the case was assigned for July 8, 1957, for arraignment.

On July 8, 1957, the defendants appeared before the court with their attorneys and entered a motion to dismiss the indictment on the ground that it did not state facts sufficient to constitute an offense within the meaning of the statute. The motion to dismiss was considered by the court and overruled. The court formally arraigned the defendants and they entered pleas of not guilty to the charges contained in the indictment.

The defendants then filed a motion to be permitted to inspect records contained in the file of the case in the possession of the United States. To the motion the United States at the time offered no objection. The court considered the motion and upon request was informed that the file in the case was in the possession of an agent of the Federal Bureau of Investigation, whom the court understood at the time was present in the courtroom, and that the files were in the office of this agent on the third floor of the court building and just a few steps above the courtroom wherein court was being held.

The court sustained the motion and specifically orally stated that the defendants were not entitled by the order to examine the whole file and investigation conducted by the United States in preparation of its case. The defendants were entitled only to have presented to them the statements of persons or summation by the agent of statements made to them by persons who were to be called as witnesses on the trial of the case and which statements were at present in the possession of the agents or attorneys of the United States.

By agreement of the parties the case was set down for trial by jury for Wednesday, July 17, 1957, at 1:00 p. m.

It was the understanding of the court at the time this order was entered that the defendants and their attorneys would have access to the statements referred to by calling at the office of the Federal Bureau of Investigation on the third floor of the building in which court was being held on the second floor.

On July 10 the attorneys for the defendants called in the chambers of the judge of this court and stated that the agent would not permit them to see the statements of the witnesses as directed by the order. Also, on the same date, the United States Attorney, who was in his office in Louisville, telephoned the judge of this court and talked with him on the phone stating that the United States could not comply with the order or permit the attorneys or the defendants to see the statements of proposed witnesses as he was directed by the Attorney General in Washingon to decline to permit such inspection and examination.

We now come to the hour of trial which was set at the request of the United States and by agreement of the parties without offering objection for this date, to wit, July 17, at 1:00 p. m.

The ruling of the court on the motion to inspect the documents was based on the decision of the Supreme Court in the case of Clinton E. Jencks v. U. S., 77 S. Ct. 1007. That case seems to either overrule or greatly enlarge the rule which has heretofore been followed in the trial courts as laid down in Goldman v. U. S., 316 U.S. 129, 62 S.Ct. 993, 86 L. Ed. 1322 and Olmstead v. U. S., 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944. The Supreme Court now seems to have reached a conclusion which many of the judges, by their dissenting opinions in former cases, have apparently anticipated; that is, to reduce to an absolute minimum the possibility of a defendant being taken by surprise by the testimony of a government witness during the trial of the case. The decision in the Jencks case is so reasonable and fair that this court sought to follow it both in the letter and in the spirit. It must be noted that the order guarded against a "broad or blind fishing expedition among documents possessed by the Government on the chance that something impeaching might turn up." 77 S.Ct. 1012 Nor was it a "demand for statements taken from persons or informants" not to be offered as witnesses.

This court well recognizes the fact that to permit the defendants to explore the whole file without reservation is to seriously hinder the administration of justice and the preservation of an orderly society by protection from those who would seek to destroy it by crime or treason. Frequently information comes to the Department of Justice in a confidential way. The integrity of the Department of Justice and its agents must be respected and preserved. Promises to treat information as confidential is many times the only way in which material facts can be ascertained. Neither the Department nor its agents should be required to make those facts known to the defendants.

My interpretation of the opinion in the Jencks case is that it recognizes a fundamental principle of free government; that the rights of the individual must be preserved; that that government is best which protects the individual from his own government and that a criminal prosecution should be entirely devoid of any possibility of surprise to the defendant at the time of trial.

In the instant matter the court has very jealously guarded the confidences of the Department of Justice and directed that only those statements of persons who were to appear as witnesses could be examined by the defendants. This does not mean that the United States is limited in offering only those witnesses which have given statements, either signed or orally, and is in nowise similar to the requirements of a bill of particulars which places the United States in a strait jacket and limits it in its introduction of proof. I cannot understand why the United States would object to a full compliance with the order.

The rule laid down in the Jencks case for the guidance of trial courts is expressed in the following language taken from the the opinion:

"We now hold that the petitioner was entitled to an order directing the Government to produce for inspection all reports of Matusow and Ford in its possession, written and, when orally made, as recorded by the F. B. I., touching the events and activities as to which they testified at the trial. We hold, further, that the petitioner is entitled to inspect the reports to decide whether to use them in his defense. Because only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government's witness and thereby furthering the accused's defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less.

"The practice of producing government documents to the trial judge for his determination of relevancy and materiality, without hearing the accused, is disapproved. Relevancy and materiality for the purposes of production and inspection, with a view to use on cross-examination, are established when the reports are shown to relate to the testimony of the witness."

It seems clear to me that this language entirely dissipates any thought that the court must wait until the trial of the case and be actively engaged in the trial before the requirement to produce the documents can be made. There could be no reason for such a rule. The parties have notice of the date of trial. The idea of setting the case far in advance is to give them an opportunity to prepare for trial. If the trial of a case had to be interrupted in the middle of the trial for the examination of these statements, the court would necessarily then have to postpone or interrupt the progress of the trial for a reasonable time until the defendants had an opportunity to seek out, examine and subpoena witnesses that might rebut the statements.

Rules 16 and 17, Rules of Criminal Procedure, 18 U.S.C.A., are the methods by which documents may be brought into court for use at the trial. In discussing Rule 17(c) the court said in Bowman Dairy Co. v. U. S., 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879, that its chief innovation was to expedite the trial by providing the time and place before trial for the inspection of the subpoenaed material. It cited the case of U. S. v. Maryland & Virginia Milk Producers Ass'n, D.C., 9 F.R.D. 509. Pre-trial disclosures have been allowed in U. S. v. Peace, D.C.1954, 16 F.R.D. 423; U. S. v. Singer, D.C.1956, 19 F.R.D. 90; U. S. v. Schluter, D.C.1956, 19 F.R.D. 372, and in numerous other cases.

We next come to the question of much greater significance and that is whether or not a litigant can direct its agent to ignore an order of the court and defy the court that entered it. This is especially significant when the litigant is the people's agency for the protection of the people, the United States Government, and its agent is the head of the Department of Justice. It would seem more appropriate that the Department of Justice of the United States should recognize above all persons or agencies the fundamental proposition that in our form of government the orders of the court must be respected, and thereby set an example to uphold the integrity and sanctity of the court's orders rather than...