United States v. Maloney

• Court: U.S. District Court — Eastern District of Pennsylvania
• Writing for the Court: WEBER
• Citation: United States v. Maloney, 241 F.Supp. 49 (E.D. Pa. 1965)
• Decision Date: 13 May 1965
• Docket Number: Crim. No. 64-415.
• Parties: UNITED STATES of America v. Lawrence J. MALONEY.

241 F. Supp. 49

UNITED STATES of America v. Lawrence J. MALONEY.

Crim. No. 64-415.

United States District Court W. D. Pennsylvania.

May 13, 1965.

Gustave Diamond, U. S. Atty., Samuel J. Reich, First Asst. U. S. Atty., Pittsburgh, Pa., for plaintiff.

Harold Gondelman, Pittsburgh, Pa., for defendant.

WEBER, District Judge.

Defendant has been indicted for income tax evasion. By a Bill of Particulars the Government has listed certain witnesses who will testify that they paid money to defendant which he omitted to report as income. These witnesses had been previously arrested, indicted or convicted for federal violations, and defendant's counsel has filed a Motion ex parte Defendant to Strike Appearances of the United States Attorney and the First Assistant United States Attorney. He alleges in his motion that his investigation discloses that each of the witnesses named has been offered inducements to testify against the defendant. He, therefore, proposes to call the prosecuting attorneys as witnesses for the defense to attack the credibility of the government witnesses. He then recites that it would be prejudicial to the defendant if, after having been called as witnesses, the prosecuting attorneys were to be allowed to continue the conduct of the case. He adds that the Motion is made at this time so that the Government is apprised of his intention, and will be foreclosed from continuing the trial of the case upon the happening of these events.

While the defendant has the right to have compulsory process to obtain witnesses in his behalf under the Sixth Amendment to the Constitution of the United States and, therefore, to have subpoenas issued, the determination of whether or not to allow a witness to take the stand is a matter within the discretion of the Trial Judge.

The circumstances under which a Court will allow an attorney for a party, even a prosecuting attorney, to take the witness stand must be such that a compelling reason for such a move, contrary to the usual well-ordered rules for the conduct of a trial, are present. The Court may, without an abuse of discretion, refuse to allow the defense to call the prosecuting attorney as a witness on its behalf. Gajewski v. United States, 321 F.2d 261 (8th Cir. 1963); Hayes v. United States, 329 F.2d 209 (8th Cir. 1964).

We believe that the entire matter is premature. Whether or not defendant will call the United States Attorney at trial may very well depend upon the testimony developed at trial. We do not believe that counsel can state definitely at this time what will be required, particularly since defense counsel has indicated that the testimony which he will attempt to elicit is for the purpose of attacking the credibility of the government witnesses.

Defendant's Motion, unsupported by affidavits or other evidentiary material, does not disclose evidence that defendant intends to produce by these witnesses. It merely recites that the witnesses will be called "to ascertain what, if any, `deals' were made for and on...