United States v. McCarthy

• Decision Date: 31 October 1968
• Docket Number: 68 Cr. 467,68 Cr. 477.
• Citation: 292 F. Supp. 937
• Parties: UNITED STATES of America, v. Jack McCARTHY, James Plumeri, a/k/a Jimmy Doyle, Leonard Russo, and David Wenger, Defendants.
• Court: U.S. District Court — Southern District of New York

292 F. Supp. 937

UNITED STATES of America, v. Jack McCARTHY, James Plumeri, a/k/a Jimmy Doyle, Leonard Russo, and David Wenger, Defendants.

68 Cr. 467, 68 Cr. 477.

United States District Court S. D. New York.

October 31, 1968.

COPYRIGHT MATERIAL OMITTED

J. Kenneth O'Connor, New York City, for defendant Jack McCarthy.

Maurice Edelbaum, New York City, for defendant James Plumeri; Philip R. Edelbaum, New York City, of counsel.

Gilbert S. Rosenthal, New York City, for defendant Leonard Russo.

Moses L. Kove, New York City, for defendant David Wenger.

Robert M. Morgenthau, U. S. Atty. for the Southern Dist. of New York, New York City, for United States of America; Paul K. Rooney, Asst. U. S. Atty., of counsel.

OPINION

MacMAHON, District Judge.

Defendants are charged with conspiracies to bribe an officer of an employee pension benefit fund with intent to influence the officer's decisions respecting mortgage applications submitted to the fund. Each indictment covers a separate mortgage application. Defendant David Wenger, an officer of the fund, is charged in the second count of 68 Cr. 467 with receiving a bribe to influence his decision on a mortgage application.

These motions seek a bill of particulars, discovery and inspection, severance, suppression of evidence, dismissal of the indictments, and production of a witness. We consider them in order.

BILL OF PARTICULARS

The motion for a bill of particulars under Fed.R.Crim.P. 7(f) demands from the government such information as dates and places when each defendant entered the conspiracy; the substance of the conspiracy agreement, if oral, or a copy, if in writing; specifications of the manner in which the conspiracy operated; and evidence which might tend to exculpate the defendants or cast doubt on the credibility of government witnesses or on the validity of the charges in the indictments. Defendants also seek the names of those who made the payments listed in the overt acts, the names of witnesses to such payments, and the names of any informers.

The purpose of a bill of particulars is to aid the accused in preparation of his defense, to prevent surprise at trial and to permit the accused, "after judgment, * * * to plead the record and judgment in bar of a further prosecution for the same offense."¹ It is not intended, however, to give defendants a preview of the government's case.²

The exact dimensions of this conspiracy, like most others, may never be known. Secrecy and concealment are the hallmarks of conspiracy.³ Granting particulars concerning the formation of the conspiracy, the place and date of each defendant's entrance into the conspiracy, the substance, or a copy, of the conspiracy agreement, and specifications of the manner in which the conspiracy operated would unduly limit the government's proof at trial. Moreover, if defendants were given the minutiae they seek, the slightest discrepancy between the particulars and the evidence at trial would open the door to defendants' attempts to confuse the jury.⁴ Finally, it would be "tantamount to a preview of * * * the government's case in advance of trial and compel a disclosure of its evidence * * *."⁵

Turning to the remaining items, defendants seek with a dragnet any evidence which might exculpate any defendant or cast doubt on the credibility of government witnesses or on the validity of the charges in the indictments.

Disclosure of exculpatory evidence is the government's obligation wholly apart from a demand for particulars.⁶ A demand for exculpatory evidence is, therefore, unnecessary. Moreover, the dragnet approach stamps these demands as an impermissible fishing expedition.⁷

Particulars seeking the names of witnesses have almost uniformly been denied.⁸ The names of informers are privileged. Their identity need not be disclosed until defendants show that disclosure is relevant, necessary and helpful to the defense.⁹ No such showing is made here. Defendants are entitled, however, to the names of persons who paid money to the defendants at the times and places alleged in the overt acts.¹⁰

The government has consented to provide: "(a) the names of co-conspirators known to the government; (b) the dates, times and places of the overt acts alleged insofar as they are known; and (c) the title, office, and relationship of defendant David Wenger to the Central States, Southeast and Southwest Area, Pension Fund." These particulars will afford defendants ample opportunity to prepare for trial, prevent surprise and avoid the danger of double jeopardy.

The motions for bills of particulars are denied, except that the government shall provide the names of those who paid money to defendants, as alleged in the overt acts, and except insofar as the government has consented.

DISCOVERY AND INSPECTION

All defendants, with the exception of Plumeri, move in the broadest possible language for discovery and inspection under Rule 16(a) of their own statements or confessions. McCarthy, for example, seeks "all written or recorded statements or confessions made by this defendant * * * including, but not limited to, matters which may appear in the grand jury minutes, logs, transcripts of, or on any tapes of, any electronic surveillance pertaining to this defendant, any co-defendant, or informer or co-conspirator." The demands of the others are more limited.

All defendants proceed on the assumption that the 1966 amendments to Rule 16 make such disclosure automatic. Neither Russo nor McCarthy has given any reason for discovery and inspection other than the passage of time between the overt acts alleged and the indictment itself. Wenger, however, states that discovery and inspection are necessary to enable him to object to the admission of the statements at trial, or, if admissible, to rebut them.

It is difficult to find in the language of Rule 16 the basis for defendants' assumption that disclosure of a defendant's own statements is automatic. Before the amendments, there was sharp controversy on the subject of whether a defendant was entitled to his own statements at all.¹¹ Amended Rule 16(a) states on its face that the court may order such disclosure.¹² This permissive, rather than mandatory, language clearly calls for the exercise of discretion.¹³ "The term `discretion' denotes the absence of a hard and fast rule. * * * When invoked as a guide to judicial action it means a sound discretion, that is to say, a discretion exercised not arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of a judge to a just result."¹⁴

There have been some differences of views as to what constitutes grounds for the exercise of the court's discretion under Rule 16(a). The evolution of the amended rule is thoroughly analyzed and expounded by my brother Mansfield in United States v. Louis Carreau, Inc., 42 F.R.D. 408, 413 (S.D. N.Y.1967). We think, with him, that pretrial discovery of a defendant's own statements must be grounded on a showing of good cause, i. e., necessity for the statement in advance of trial in the interest of justice under the circumstances of the particular case.¹⁵

Defendants have failed to show good cause for disclosure here. The mere passage of time is not good cause.¹⁶ The other reason given is an asserted need to determine whether objections can be made to the admissibility of certain statements, or, if admissible, to prepare to rebut them. These arguments are untenable. Surely, a lawyer should be able to make appropriate objections to such evidence when it is offered upon the trial, either spontaneously or after a brief recess to afford a reasonable opportunity to study the material and confer with his client, just as with other statements or documentary evidence. We see no valid reason for treating defendants' possible admissions or impeaching statements any differently from other inculpatory evidence. The claimed need to see such statements in advance in order to prepare to rebut them is little more than open notice of an intention to tailor testimony to fit the statement. The motions to discover and inspect defendants' own statements are therefore denied.

Defendant Russo also moves for discovery and inspection of his co-defendants' statements, admissions and confessions. He cites no authority, statute, rule or case for this proposed excursion into the government's evidence. Nor does he give any reason why it is necessary. The motion is denied.

Defendants Russo and McCarthy move under Rule 16(b) for an inspection and copying of all books, papers, documents or tangible objects which have any relation to the indictments. Again, defendants have chosen the dragnet approach. Rule 16(b) requires that there be a "showing of materiality to the preparation of * * * the defense and that the request * * * be reasonable." Defendants have ignored those requirements altogether. Accordingly, the motion is denied.

Defendant McCarthy moves under Rule 6(e) for an order directing the government to produce "a complete transcript of the Grand Jury minutes" upon which the indictments are based. The reason given for this proposed invasion of grand jury secrecy is that "the testimony of a single witness was primarily the basis" for the indictments. Even if the indictments were based on the testimony of a single witness, we see no reason why that fact compels disclosure of the grand jury minutes. It certainly does not amount to a showing of "particularized need," as required by Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). If the same witness testifies at trial, defendants will be afforded an opportunity then to examine the witness' grand jury testimony for purposes of cross-examination.¹⁷ Accordingly, the motion for the discovery of the grand jury minutes is denied.

All defendants seek disclosure of whether they were the objects of any electronic surveillance. The government was...