United States v. Pastor, No. 75 CR. 753

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: MOTLEY
• Citation: 419 F. Supp. 1318
• Parties: UNITED STATES of America v. Edward PASTOR and Martin Weiner, Defendants.
• Docket Number: 76 CR. 253 and 76 CR. 145.,No. 75 CR. 753
• Decision Date: 26 May 1976

419 F. Supp. 1318

UNITED STATES of America
v.
Edward PASTOR and Martin Weiner, Defendants.

Nos. 75 CR. 753, 76 CR. 253 and 76 CR. 145.

United States District Court, S. D. New York.

November 5, 1975.

On Motion to Dismiss Indictment February 19, 1976.

On Omnibus Motion May 11, 1976.

On Subsequent Motion to Dismiss May 26, 1976.

419 F. Supp. 1319

COPYRIGHT MATERIAL OMITTED

419 F. Supp. 1320

COPYRIGHT MATERIAL OMITTED

419 F. Supp. 1321

Thomas J. Cahill and Robert B. Fiske, Jr., U. S. Attys. by John Timbers, Asst. U. S. Atty., New York City, for U. S

Kuh, Shapiro, Goldman, Cooperman & Levitt, P. C. by Richard H. Kuh, Andrew R. Cooper, Peter Lushing, New York City, for Edward Pastor.

Eckell, Sparks, Vadino, Auerbach & Monte by W. Donald Sparks, Media, Pa., for Martin Weiner.

MEMORANDUM OPINION AND ORDER

MOTLEY, District Judge.

Defendants in this case have moved to compel the Government to produce "all statements purportedly made by the defendants upon which the Government intends to rely at the trial of this case." (Letter of October 28, 1975 from Richard H. Kuh) (emphasis in original). They do not, at this time, seek "the entire statements of witnesses, nor for attribution to particular witnesses, but merely seek copies of (or the gravamen of) all statements allegedly made by the defendants upon which the Government will rely." (Id.; emphasis in original).

Apparently, the Government has agreed to produce statements allegedly made by defendant Pastor to Drug Enforcement Administration agents, but has resisted the production of statements allegedly made by the defendants to non-governmental third parties during the course of the conspiracy, contending that such statements are "3500 material" (18 U.S.C. § 3500) which need not be produced until trial. Defendants argue that the plain language of Rule 16(a) of the Federal Rules of Criminal Procedure requires that the Government produce the requested materials, and relies on a series of cases dealing with the scope of Rule 16(a) and—to a certain extent—with its interaction with 18 U.S.C. § 3500. In rejoinder, the Government argues that U. S. v. Percevault,

419 F. Supp. 1322

490 F.2d 126 (2d Cir. 1974) is dispositive of the issue in this case and requires that defendants' motion be denied

The precise point of contention appears to be whether a liberal reading of Rule 16(a) entitles the defendant in a criminal trial, before trial, to inspect and copy statements made by him that are contained in statements made by non-governmental third parties which are within the possession, custody or control of the Government, and upon which the Government intends to rely at trial. The court concludes that the defendants are not entitled to such discovery.

Percevault, supra, dealt with a somewhat different question, specifically whether Rule 16(a) entitled the defendants to pretrial discovery of the statements of prospective witnesses which would be treated at trial as the defendant's own statements through the vicarious admission exception to the hearsay rule. Reversing the District Court, the Court of Appeals held that the language of Rule 16(a) did not permit such liberal discovery, especially in view of the strictures of 18 U.S.C. § 3500. However, the court did not have before it the specific question raised in this case, where the statements sought are those of the defendant himself, as allegedly related by a third party.

The precise issue here involved was thoroughly discussed in U. S. v. Feinberg, 371 F.Supp. 1205 (N.D.Ill.1974), a case in which Judge Marshall concluded that the defendant was entitled to such discovery. However, the Court of Appeals for the Seventh Circuit reversed this decision in a persuasive opinion, U. S. v. Feinberg, 502 F.2d 1180 (1974). The Court cited with approval, inter alia, U. S. v. Dorfman, 53 F.R.D. 477 (S.D.N.Y.1971), aff'd, 470 F.2d 246 (2d Cir. 1972), in which Judge Gurfein had refused to allow pretrial discovery of witnesses' written statements which purportedly contained oral statements made to them by the defendant.

In concluding that 18 U.S.C. § 3500 barred pretrial discovery of the requested statements, the Court of Appeals in Feinberg also referred to the recent amendment to Rule 16 of the Rules of Criminal Procedure, which are now scheduled to become effective on December 1, 1975. As proposed by the Supreme Court and enacted into law, Pub.L.No.94-64, 89 Stat. 370, the revised Rule 16(a)(1)(A) will require the Government to "permit the defendant to inspect and copy or photograph: any relevant written or recorded statements 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; the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent; and recorded testimony of the defendant before a grand jury which relates to the offense charged."

Both the notes of the Supreme Court's Advisory Committee, 62 F.R.D. 307, and the Congressional legislative history of the revision, see 1975 U.S.Code Cong. and Admin. News 1368, 1390, make clear that even this limited provision represents an expansion of the scope of pretrial discovery available to criminal defendants under existing federal law. To the extent that the law may differ among the circuits, there presently appears to be no clear warrant in the Second Circuit for granting discovery beyond the scope of that which will be permitted by the amended Rule 16 as of December 1. However, it would seem unduly restrictive, in view of the fact that trial of this case will occur well after December 1, to grant any less discovery than that which will soon be clearly permissible under amended Rule 16.

Accordingly, the Government is ordered to produce any and all materials to which defendants are entitled under the provisions of amended Rule 16 as set forth, supra. The Government is not required to produce the substance of oral statements purportedly made by the defendants and contained in

419 F. Supp. 1323

statements of third parties except as provided by the provisions of amended Rule 16

SO ORDERED.

On Motion To Dismiss Indictment

Defendants were originally indicted on July 31, 1975 and charged in four counts with violating the Federal Controlled Substances Act¹ and in a separate count with conspiracy so to do.²

Thereafter, on February 11, 1976, a new and different Grand Jury returned a superseding indictment. The second indictment charged an additional substantive violation of the Controlled Substances Act allegedly occurring about the time that the other substantive charges occurred.

In addition, the superseding indictment made certain other changes. In Count 1, the conspiracy count, the superseding indictment alleges that the conspiracy took place in "the Southern District of New York and elsewhere". The original indictment had charged that the conspiracy occurred in the Southern District of New York. In Overt Act 5 of Count 1, the alleged number of phendimetrazine tablets was changed to read "one million" instead of "two million" as originally charged. Overt Act 6 in the new indictment deleted a reference to Philadelphia as the place where the alleged forgery of a signature took place. The date in Overt Act 7 was changed to read, "In or about 1974, at the APA Transport terminal in Philadelphia", instead of "In or about 1973, in the APA Transport terminal in Philadelphia," originally alleged. In Count 2 "100,000 phendimetrazine tablets" was changed to read "100,000 phendimetrazine capsules" in the second indictment. In Count 3, "In or about September, 1973" was changed to read in the superseding indictment, "In or about August 1973", and the number of phendimetrazine tablets was changed to read "2,000,000 phendimetrazine tablets" in lieu of "250,000." In Count 4, the original indictment reads, "From October 1973 up to and including June 1974" defendants obtained possession of "980,000 phendimetrazine tablets" in the Southern District of New York, whereas the superseding indictment changed the dates to read, "In or about September and October 1973", and the number of tablets was changed to read "250,000 phendimetrazine capsules."

Defendants made an oral motion to dismiss the superseding indictment on February 18, 1976 on the ground that the indictment had been returned by a Grand Jury which had been presented with hearsay evidence in violation of the Second Circuit's decision in United States v. Estepa, 471 F.2d 1132 (1972). Defendants also relied upon United States v. Gallo, 394 F.Supp. 310 (D.Conn.1975).

The Assistant United States Attorney, in response to the motion, candidly advised the court on the record substantially as follows: When the matter was presented to the original Grand Jury, Charles Fernald, an alleged unindicted co-conspirator, testified before the Grand Jury concerning nine separate transactions. Other witnesses were also presented to the original Grand Jury. In presenting the matter to a new and different Grand Jury in February 1976, the jury heard only one live witness. That witness was Charles Fernald who testified regarding a 10th transaction only. The Grand Jury was presented with a transcription of Charles Fernald's testimony before the original Grand Jury regarding the other nine transactions. The Assistant United States Attorney frankly admitted that he failed to advise the Grand Jury specifically that it was free to question Charles Fernald about his prior testimony. The Assistant did ask the jury whether it had any questions for Mr. Fernald, but he did not make clear to the jury that it was free to demand live testimony before it from Mr. Fernald rather than rely upon the cold record. The Grand...