United States v. Isaacs

• Decision Date: 19 April 1973
• Docket Number: No. 71 Cr. 1086.,71 Cr. 1086.
• Citation: 364 F. Supp. 895
• Parties: UNITED STATES of America v. Theodore J. ISAACS and Otto Kerner, Jr.
• Court: U.S. District Court — Northern District of Illinois

364 F. Supp. 895

UNITED STATES of America v. Theodore J. ISAACS and Otto Kerner, Jr.

No. 71 Cr. 1086.

United States District Court, N. D. Illinois, E. D.

Motion to Sequester Jury October 30, 1972.

Motion to Continue December 19, 1972.

Order on Motion for New Trial April 19, 1973.

COPYRIGHT MATERIAL OMITTED

James R. Thompson, U. S. Atty., Samuel K. Skinner, First Asst. U. S. Atty., Chicago, Ill., Darrell McGowen, Dept. of Justice, Washington, D. C., Steven Kadison, Asst. U. S. Atty., Chicago, Ill., for the Government.

Paul Connolly, Williams, Connolly & Califano, Washington, D. C., Warren D. Wolfson, Chicago, Ill., for defendants.

MEMORANDUM

ROBERT L. TAYLOR, District Judge.

Before the Court for consideration is the motion of defendant Kerner to continue the trial of the case if the Government does not satisfy his request for particulars. Also before the Court is a companion motion for an order compelling the Government to provide forthwith greater particularization than heretofore provided as to paragraph 11, Count 1, "under the sanction of contempt for failure to comply."

The Grand Jury charged that it was part of the conspiracy that shares of stock would be made available to Kerner and Isaacs:

". . . by a method constituting a personal advantage to them, in order to influence the good will and favor of Otto Kerner, Jr., as Governor of the State of Illinois, and of persons connected with his administration, and by such influence, to cause defendant Kerner and the persons connected with his administration to act favorably in performing their official and public functions, decisions, actions, and duties with respect to matters involving CTE, its tenants, lessees, subsidiaries and affiliates."

In a motion for particulars, Kerner asked for specification of the "public functions, decisions, actions and duties" to which the paragraph referred. We granted the request by an order filed May 30, 1972.

The Government filed its compliance with that order on July 26, 1972. Therein it stated that, as Governor, Kerner had the responsibility for appointing the Director of the Illinois Department of Revenue who was responsible for the collection of revenue from the horse and harness racing industry,¹ and for appointing the members of the Illinois Racing Board² and the Illinois Harness Racing Commission that had responsibility for awarding racing dates and otherwise regulating the industry. It stated further that, as Governor, Kerner was required to make decisions and to take actions concerning legislation affecting the racing industry which the Illinois General Assembly submitted to him. Additionally, he was required to submit proposed legislation affecting the racing industry to the General Assembly.

At the third pre-trial conference on October 24, 1972, Kerner's counsel challenged the adequacy of that response for the first time. He argued convincingly that there were warehouses of legislative records concerning the years when Kerner was Governor, thus making it impossible to prepare his defense unless the Government identified the bills it contends were affected by the alleged bribe. In our order of October 30, 1972, we expressed our opinion that the request that any specific legislative or executive action which the Government contends resulted from the alleged bribe be identified had merit and the Government should supply the information.

The Government subsequently filed a statement contending (1) that all appointments to the Illinois Racing Board and the Illinois Harness Racing Commission, particularly the appointment of defendant Miller as Chairman of the former, were actions favorable to the specified racing interests; (2) that forty-six specific bills introduced in the Illinois General Assembly during Kerner's term as Governor were acted upon by Kerner in a manner favorable to the aforesaid racing interests; and (3) that both Kerner and Isaacs intervened with members of the racing board and the harness commission on behalf of these racing interests regarding the allocation of racing dates. The statement also contains a fourth category of actions which would seem to preserve the Government's right to introduce proof of other executive or legislative acts.

The instant motion for greater particularization calls for:

"1. An identification of each appointment to the Illinois Racing Board and the Illinois Harness Racing Board which the government contends was the result of a bribe; a statement as to whether the appointee knew that he had any obligation during his term of office to act favorably toward the entities listed in the government's Statement of Compliance and a description of favorable action taken by such appointees during the terms of office.

"2. A statement of the specific action taken by the governor with respect to each of the forty-six bills listed in response numbered `2' of the Statement of Compliance which is alleged to be the `favorable' action relied upon to support the contentions of ¶ 11 of Count I of the Indictment; a brief description of the nature of the bill and a brief statement as to the manner by which the government contends the bill was of benefit to the Everett racing interests, and a statement as to whether the particular action taken by the governor is contended to be the result of a bribe.

"3. A statement identifying the particular members of the Racing Board and Harness Racing Commission with whom Governor Kerner or Theodore Isaacs is said to have `intervened'; the time or approximate times of such intervention; the identity of the entity on whose behalf the intervention took place and a brief description of the `intervention' referred to.

"4. A statement identifying the problems referred to in the Statement of Compliance and relating each particular problem to an identified state regulatory agency. The statement should include as well an identification of the person or persons who allegedly acted at the direction of Kerner and those who acted at the direction of Isaacs, and it should also describe briefly, so as to be recognizable, the decision made and how it favored the Everett racing interests."

In his brief in support of these motions, counsel for Kerner states:

"The government's response to that order is broken down into four numbered answers, each of which escalates in evasiveness and obfuscation. The conclusion is inescapable that the government does not intend to comply with the Court's orders, either because it cannot support its allegations or because it wishes to deter the defendant from preparing his defense. The result of noncompliance is contemptuous and either reason is inexcusable." (pp. 2-3)

"The first numbered response by the prosecutor is better than the rest but only by contrast. Objectively it is as much an avoidance of honesty as the rest . . .

". . . The United States Attorney's sweeping assertion sounds more Joseph McCarthy-esque than responsible. This Court should, prior to trial, make a relentless inquiry of Mr. Thompson to ascertain whether he has any substance to the contention he makes in this response." (p. 6)

The thrust of these motions is discovery of the Government's proof. The function of a bill of particulars is to prevent surprise or double jeopardy; it is not a discovery device. We have previously ruled on that question in this case. See 347 F.Supp. 743, 762.

As counsel agreed at the hearing on January 20, 1972, the cut-off date for pre-trial motions was March 20, 1972. Fifty motions were filed prior to that date by defense counsel. We ruled on most of these, including Kerner's request for particulars as to ¶ 11, Count 1, in our order of May 30, 1972. The Government complied with that ruling on July 26, 1972. Kerner's counsel ignored the statement of compliance until three weeks before the original trial date. Now three weeks before the second trial date they raise the issue again and tie it to a motion for a continuance. This time the motion is totally lacking in merit.

Accordingly, it is ordered that these motions be, and the same hereby are, denied.

MEMORANDUM

ON MOTION TO SEQUESTER JURY

Before the Court for consideration is the Government's motion to sequester the jury from the time of its selection to the return of the verdict. The defendants oppose sequestration principally on the ground that it would prejudice them to be tried by a jury that was sequestered for an extended period spanning the Thanksgiving-Christmas holiday season. But see, United States v. Holovachka, 314 F.2d 345, 352-353 (C.A.7, 1963). Counsel for defendant Kerner has stated to the Court that he will not move for a mistrial or a new trial on the ground that a juror was exposed to prejudicial publicity during the course of the trial.

The matter has given the Court an unusual amount of difficulty. The Court recognizes that sequestration works a hardship on the jury, especially at this time of year. The Court sought to avoid this problem and exerted considerable effort to persuade counsel to try the case last summer, free from holiday pressures. Unfortunately, because of the numerous records involved and other factors requiring much time and study in preparation for trial, it was not feasible to set the case at an earlier date.

Where, as here, the defendants are public figures and there are pronounced feelings among the citizenry concerning the case, the Court believes that the possibility of one or more jurors being approached for one side or the other is great. The Court recognizes that the attorneys in this case are highly reputable and would condemn such an approach by anyone. However, their condemnation would not prevent a mistrial. Any private communication with a juror, direct or indirect, concerning a matter he is trying, is presumptively prejudicial. To avoid a new trial, the Government must clearly show that the contact was harmless to the defendant. Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1953), 350 U.S....