United States v. Leichtfuss

• Citation: 331 F. Supp. 723
• Decision Date: 09 August 1971
• Docket Number: 71 CR 74.,71 CR 71,No. 71 CR 66,71 CR 66
• Parties: UNITED STATES of America v. Thomas Frederick LEICHTFUSS. UNITED STATES of America v. Linas MINTAUTAS. UNITED STATES of America v. Michael John TARIO.
• Court: U.S. District Court — Northern District of Illinois

331 F. Supp. 723

UNITED STATES of America v. Thomas Frederick LEICHTFUSS.

UNITED STATES of America v. Linas MINTAUTAS.

UNITED STATES of America v. Michael John TARIO.

Nos. 71 CR 66, 71 CR 71, 71 CR 74.

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

August 9, 1971.

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William J. Bauer, U. S. Atty., Theodore T. Scudder, Asst. U. S. Atty., for the United States.

Richard K. Means, Chicago, Ill., for defendants.

Federal Defender Program by Terence F. MacCarthy, Director and Thomas D. Decker, Chicago, Ill., with Joseph Beeler, Chicago, Ill., of counsel, amicus curiae.

MEMORANDUM AND ORDER

CAMPBELL, Senior Judge.

The defendants in these cases have been indicted for violation of the Military Selective Service Act of 1967 ("The Act").¹ These cases are not factually related, but are decided together because substantially identical pretrial motions have been presented in each case. These are but three of approximately 150 cases which have been assigned to me pursuant to a general order of this court referring to my calendar all cases involving a violation of the Selective Service laws. Pursuant to this general order it is my responsibility to accept the return of indictments brought under the Selective Service laws; to accept pleas of guilty and impose sentence where such a plea is entered; and, where a plea of not guilty is entered, to rule upon all pretrial motions and to generally supervise pretrial discovery. After the disposition of all pretrial motions each case is assigned by lot to the active judges of this court under the provisions of our General Rules relating to the assignment of cases. See Rule 10, General Rules, Northern District of Illinois.

The posture of the present motion is best understood by a brief explanation of the discovery practice in this district as established by our Local Rules of Criminal Procedure. Discovery is now initiated not by motion but by a simple request. Local Criminal Rule 2.04 provides that upon request by defendant's attorney the United States Attorney shall:

"(1) Permit defendant's attorney to inspect and copy or photograph any relevant written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known to the attorney for the government;

(2) Permit defendant's attorney to inspect and copy or photograph any relevant results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the case, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known to the attorney for the government;

(3) Permit defendant's attorney to inspect and copy or photograph any relevant recorded testimony of the defendant before a grand jury;

(4) Permit defendant's attorney to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places which are the property of the defendant and which are within the possession, custody or control of the government;

(5) Permit defendant's attorney to inspect and copy or photograph the Federal Bureau of Investigation Identification Sheet indicating defendant's prior criminal record;

(6) Permit defendant's attorney to inspect, copy or photograph any evidence favorable to the defendant;"

The information required to be turned over under this Rule is, of course, routinely granted whenever requested by motion and it is the purpose of our Local Rule to relieve the court and counsel of the time consuming and pointless effort of obtaining this information by formal motion. As to matters not the subject of automatic discovery, the defendant must, within ten days of arraignment, request the information at a conference with the Assistant United States Attorney assigned to the case. At the conference the parties are required to attempt to satisfy any remaining requests for discovery "in a cooperative atmosphere without recourse to the Court." Local Rule 2.04(c). For further explanation of the background, purposes and mechanics of the Rule see, MacCarthy and Forde, "The New Local Criminal Rules for the Northern District of Illinois." 1 Loyola U. (of Chi.) L.J. 51, 67-73 (1970); MacCarthy and Forde, "Discovery In Criminal Cases Under the New Local Rules of the Federal Court" 52 Chi. Bar Rec. 41 (1970). I add only the comment that in my experience working with our new Rules, their proper application has substantially reduced the needless work previously related to pretrial discovery in criminal cases.

In the cases presently before me all of the information required by the Rule has been given to defense counsel and conferences have been held and further requests have been satisfied. Therefore, the motions I am confronted with relate only to such further discovery as the government has refused.

Upon the filing of these motions for additional discovery I ordered the filing of briefs in support and in opposition thereto and set the cause for oral argument. Thorough briefs relating to all issues raised in the motions were filed by counsel for these defendants and by the government. I also heard lengthy oral argument on the issues. Because it was anticipated by the government and the criminal bar of this district that the disposition of these motions would necessarily govern the disposition of similar motions to be filed in numerous other pending cases, I thought it necessary to make a rather complete analysis of these issues. To supplement my own research I appointed the Federal Defender Program of our court Amicus Curiae for the purpose of filing a brief relating to the issues presented in the pending motions. Pursuant to that order the Federal Defender Program, by its Director Terence F. MacCarthy, Thomas D. Decker and Joseph Beeler, filed a most comprehensive and scholarly brief, which together with its appendix runs well over 200 pages and thoroughly considers each issue presented in the motions before me. I extend my sincere thanks to the Defender Program and these counsel for their considerable efforts in this undertaking. The response of the government, while perhaps less voluminous, was equally enlightening.

Predictably, the Amicus has called for broad if not complete discovery in these cases. In this regard I should state that I generally share this view. I believe it most unfortunate that discovery in criminal cases has lagged so far behind the progressive developments we have experienced in civil discovery.² In civil cases I employ a simple two word order to resolve all discovery disputes:— "exchange files!" As the authors of the above cited Article appearing in the Chicago Bar Record have noted, I have recently been applying this same simple order in criminal cases and find its application equally productive. Based on my experience I submit that complete discovery in criminal cases results in fairer, more orderly trials and a substantial increase in the number of guilty pleas. With this experience in mind I take up consideration of the motions presented in these cases.

Discovery Voluntarily Granted

In its brief, and in oral argument, the government has correctly stated that it has fully complied with all of the requirements for voluntary disclosure as required by Local Rule 2.04 and has even attempted to substantially comply with my much broader general order to "exchange files."

Specifically, in compliance with Rule 2.04(a) the government has provided or offered to provide each defendant with the following where available:

(1) Any written or recorded statement or confession made by a defendant within the possession of the government. (These would generally be contained in the defendant's Selective Service file which is made available to him.)

(2) The results or reports of physical or mental examinations and scientific tests. (These consist of medical and security records.)

(3) Any recorded testimony of a defendant before a Grand Jury.

(4) Any books, papers, documents or tangible objects which are the property of a defendant.

(5) Any available arrest record of a defendant.

(6) Any evidence favorable to a defendant.

Commendably, the United States Attorney has also expressed his willingness to produce certain documents in all cases and others, "whenever defense counsel * * * shows the reasons from his file for the discovery requests." He urges, however, that this court should compel only minimum discovery, complimented by "guidelines" for solution of certain other limited specific issues, thus permitting the bulk of discovery questions to be resolved on an ad hoc, case-by-case basis. While there is certain merit to the suggested approach, I believe that, because of the many pending cases which will be decided in accordance with the resolution of the issues in these cases, sound judicial administration requires a ruling on all issues presented in these cases. In so doing, I now order discovery in all cases of all documents which the government has commendably offered to provide upon request. These consist in the main of all documents in the Selective Service file relating to the defendant and which are forwarded to the office of the United States Attorney by the Selective Service System. See also Appendix A of this opinion which sets forth a "Table of Forms Normally Provided to the Defense," an appendix to a brief of the United States Attorney herein.

INFORMATION SOUGHT BY THESE DEFENDANTS

In addition to the above described documents contained in the registrant's Selective Service File and which have been disclosed, the defendants seek substantial additional discovery some of which may be described as "general discovery," that is, similar to that sought in any criminal case. The remainder of their requests seeks...