United States v. McGinnis

• Decision Date: 15 May 1972
• Docket Number: Crim. No. 71-H-378.
• Citation: 344 F. Supp. 89
• Parties: UNITED STATES v. Forest McGINNIS.
• Court: U.S. District Court — Southern District of Texas

344 F. Supp. 89

UNITED STATES v. Forest McGINNIS.

Crim. No. 71-H-378.

United States District Court, S. D. Texas, Houston Division.

May 15, 1972.

Anthony J. P. Farris, U. S. Atty., Hays Gorey, Jr., Sp. Atty., U. S. Dept. of Justice, Carl Walker, Jr., Asst. U. S. Atty., Houston, Tex., for plaintiff.

Morton L. Susman, Susman & McKissick, Houston, Tex., for defendant.

MEMORANDUM AND ORDER

CARL O. BUE, Jr., District Judge.

This case was filed after a superseding indictment had been returned against the defendant, which indictment was substantially similar to the original indictment in an action of the same style, Criminal No. 71-H-204. Pursuant to Court Order of January 4, 1972, all Orders, Motions, Memoranda and Subpoenas heretofore filed in Criminal No. 71-H-204 were deemed to have been filed and have the same force and effect as if filed in the instant action. This case is now before the Court on consideration of such Motions, and of Motions subsequently filed in Criminal No. 71-H-378.

Defendant has filed a lengthy discovery motion in Criminal No. 71-H-378 which is materially the same as the previous discovery motion, and in large part requests information which the government has no objection to supplying. The government has agreed, upon Order of this Court, to make disclosure as to information requested in parts II, III and V to the extent that the government now is in possession of such information or will in the future become possessed of such information. Accordingly, defendant's Motion for Discovery, parts II, III and V, is granted. Part I, to the extent that it requests discovery of the defendant's own testimony before the Grand Jury has already been granted by Order of this Court, November 22, 1971.

Part I of defendant's motion, as it pertains to testimony of witnesses before the Grand Jury other than the defendant himself, must be denied. It is true that the defense is entitled to the Grand Jury's minutes of a witness' testimony after the jury's functions are ended, but only upon a showing of particularized need, Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); James v. United States, 416 F.2d 467, 476 (5th Cir. 1969), cert. denied, 397 U.S. 907, 90 S.Ct. 902, 25 L. Ed.2d 87 (1970); Posey v. United States, 416 F.2d 545, 557 (5th Cir. 1969), cert. denied, Snowden v. U. S., 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127, reh. denied, 397 U.S. 1031, 90 S.Ct. 1267, 25 L.Ed.2d 544 (1970); White v. United States, 415 F.2d 292, 294 (5th Cir. 1969), cert. denied, 397 U.S. 993, 90 S.Ct. 1128, 25 L.Ed.2d 400 (1970); Stassi v. United States, 401 F.2d 259, 265 (5th Cir.), vacated and remanded on other grounds sub nom., Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969). Thus, when a request is made during the course of trial for the purposes in cross-examination of a witness of impeachment, testing credibility or refreshing recollection, the Courts have found a sufficient showing of particularized need. See the cases cited supra.

But it is also true that the courts recognize a "long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts," Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L.Ed.2d 973 (1966); United States v. Proctor & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). Thus, in Cargill v. United States, 381 F.2d 849, 853 (10th Cir. 1967), a perjury case, the court denied pre-trial motions seeking the production of the Grand Jury proceedings of several witnesses, where the requests were in most general terms, would have required broad pre-trial discovery, and where such requests were based only on the assertion that "such disclosure would serve the ends of justice or aid in the preparation for trial."

The Fifth Circuit Court of Appeals views discovery of Grand Jury testimony as governed by Rule 6(e) Fed.R. Crim.Proc., James v. United States, 416 F.2d 467, 476 n. 1 (5th Cir. 1969), cert. denied, 397 U.S. 907, 90 S.Ct. 902, 25 L. Ed.2d 87 (1970), which rule permits the court, in its discretion, to order disclosures "preliminary to or in connection with a judicial proceeding." However, this Court of Appeals also makes it perfectly clear that a showing of particularized need is a prerequisite to breaching the secrecy of the Grand Jury minutes, particularly where the request is made prior to trial. Id.; United States v. Barson, 434 F.2d 127, 129 (5th Cir. 1970), aff'g the decision on remand, 439 F.2d 128 (5th Cir. 1971); United States v. Anzelmo, 319 F.Supp. 1106, 1128 (E. D.La.1970).

Defendant has not shown such a particularized need for "copies of said Grand Jury testimony well in advance of trial" by alleging a generalized credibility problem, and the need for trial preparation. Brady v. Maryland, 372 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) is not controlling on this issue except as to the production "of evidence favorable to an accused upon request . . . where the evidence is material either to guilt or to punishment . . . ." 372 U.S. at 87, 83 S.Ct. at 1196. In its reply to defendant's motion for discovery, counsel for the government recognizes the obligations imposed by the Brady decision, and states that "prior to trial, such evidence, if any, will be disclosed to the defendant." Accordingly, and except as noted herein, defendant's motion for discovery, Part I, is denied, see United States v. Cobb, 271 F.Supp. 159, 163 (S. D.N.Y.1967).

Having considered Part IV of defendant's motion, the Court believes the request for papers, documents and tangible objects in the possession of or reasonably available to the government, to the extent that such items include the papers, documents and tangible objects of Harry M. Carlton, should be granted. These records are of doubtless materiality to the preparation of the defense in this case, and are entirely reasonable for production. With the exception of the above noted material, defendant's requests under Part IV of his motion for discovery are denied, inasmuch as the blanket request made makes no attempt at a showing of materiality or reasonableness. The Court does not imply by this ruling that further discovery will not be ordered pursuant to a specific request and a showing of materiality.

Defendant has also requested an evidentiary hearing on the matters raised by his motion for discovery. Such request is denied.

Defendant has filed a motion to dismiss the indictments, alleging first, that the statute under which defendant stands indicted, 18 U.S.C. § 1623, is unconstitutional, and second, that the indictment does not state an offense against the laws of the United States.

Section 1623 of Title 18, United States Code, specifically eliminates the "two-witness rule" which is deeply rooted in history and which bars conviction for perjury solely upon the evidence of a single witness. It is urged that, to submit defendant to possible conviction for perjury on the uncorroborated testimony of one witness is to deny such defendant his right to a fair trial and to due process of law. The Supreme Court case of Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945), has been urged in support of this contention.

This Court finds no basis for holding Section 1623 of Title 18, in whole or in part, to be unconstitutional. The Weiler case does not require such a result. In fact, although the Supreme Court declined to abandon the two-witness rule, the decision was not without equivocation. The Court reasoned that (1) since there was an absence of legislation in derogation of such rule and (2) since the rule could not be rejected as wholly unreasonable, a decision to discard the rule should not be made:

Whether it the rule logically fits into our testimonial pattern or not, the government has not advanced sufficiently cogent reasons to cause us to reject the rule.

323 U.S. at 609, 65 S.Ct. at 550. It is critical to note that, nowhere in the opinion, did the Court find that the two-witness rule was constitutionally required.

Section 1623(e) provides that "proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence." Thus, this Court is given, by Congressional mandate, a sound basis for upholding the elimination of the two-witness rule such as was lacking in the Weiler decision.

Defendant urges as a second ground for dismissal of the indictment the proposition that the indictment does not state an offense against the laws of the United States. The Fifth Paragraph of the indictment charges that the testimony of the defendant set out in the Fourth Paragraph was false in that the $3,000 check in question "was not issued in order to repay a loan made to Harry M. Carlton by FOREST McGINNIS." The question thus presented in the defendant's motion is whether defendant's testimony permits the inference which the indictment charges was false, i. e., that the check was issued in repayment of a loan.

A number of courts have dealt with the problems raised by vague terms, equivocal questions and non-responsive answers. The danger, of course, is that a non-responsive answer may reflect a misunderstanding, not perjury, United States v. Cobert, 227 F.Supp. 915, 919 (S.D.Cal.1964), or may represent only a gratuitous falsehood, rather than a willful and false material declaration, United States v. Sweig, 316 F.Supp. 1148, 1164 (S.D.N.Y.1970), aff'd, 441 F.2d 114 (2d Cir.), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711 (1971).

An understanding of the principles to be applied in determining the sufficiency of the indictment can be obtained in related cases. In United States v. Cobert, 227 F.Supp. 915 (S.D.Cal.1964), the court dismissed the indictment because the term used by the questioner was so vague as to be misunderstood by the defendant. The court stated:

The test

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