United States v. Penix, CR-81-29-D.
| Decision Date | 01 April 1981 |
| Docket Number | No. CR-81-29-D.,CR-81-29-D. |
| Citation | 516 F. Supp. 248 |
| Parties | UNITED STATES of America, Plaintiff, v. Jimmy Lee PENIX, also known as "JP"; Richard Christensen; Alan Russell Varley, also known as "Rusty"; Jerry P. Napolitan; Roy W. Pilling, Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
COPYRIGHT MATERIAL OMITTED
Larry D. Patton, U. S. Atty. by Teresa Black, Asst. U. S. Atty., Oklahoma City, Okl., for plaintiff.
Garvin Isaacs, Oklahoma City, Okl., for defendant Pilling.
On February 6, 1981, the grand jury returned an Indictment against the above named Defendants wherein Defendant Roy W. Pilling (hereinafter "Movant") is charged with one count of violating 21 U.S.C. § 963 by conspiring to import cocaine HCL, a schedule II controlled substance, into the United States from Peru in violation of 21 U.S.C. § 952 and with one count of violating 21 U.S.C. § 843(b) by using a telephone to facilitate said conspiracy. Presently before the Court are numerous pretrial Motions filed by Movant to which the government has responded. The Court will consider the pending Motions seriatim.1
In this Motion, Movant asks that his attorney be allowed to conduct an individual sequestered voir dire of prospective jurors in this case in order to determine whether the jury will be fair and impartial. Movant contends that such a procedure is necessary in this case due to possibly prejudicial pretrial publicity that Movant has received. The government opposes the instant Motion on the grounds that the procedure suggested by Movant would unduly waste the Court's time and contends that Movant has not shown that the publicity has been so extensive as to justify the relief sought.
The Court agrees with the government. Other than his conclusory allegations, Movant has made no showing that the relief he seeks in this Motion is necessary. Furthermore, the Court is of the opinion that the examination of prospective jurors conducted by the Court pursuant to Rule 24, Federal Rules of Criminal Procedure, will adequately develop any knowledge or prejudice concerning this case that a prospective juror may have as a result of pretrial publicity about this case. If it appears that supplemental questions are in order at voir dire, the Court will entertain defense counsel's request for the same at that time. Therefore, the Court finds and concludes in its discretion under Rule 24, supra, that the instant Motion should be overruled.
In this Motion, Movant seeks all information compiled by the government on prospective jurors. In its response, the government indicates that it does not have the information sought by Movant in this Motion. On this basis, the Court determines that the instant Motion should be overruled.
In this Motion, Movant seeks an Order allowing defense counsel to inspect, reproduce and copy all records and papers used during the selection of the panel of prospective members of the petit jury to be used in this case. Movant contends that the information he seeks in this Motion is necessary in order to permit his attorney to determine whether the selection of the jury panel in this case was in accordance with law. The government does not oppose this Motion insofar as the same seeks examination of records kept by the Clerk.
In Test v. United States, 420 U.S. 28, 95 S.Ct. 749, 42 L.Ed.2d 786 (1975) (per curiam), the United States Supreme Court held that 28 U.S.C. § 1867(f), which is part of the Jury Selection and Service Act of 1968, as amended, 28 U.S.C. § 1861 et seq., gives a litigant an unqualified right to inspect jury lists in order to aid parties in the preparation of motions challenging jury selection procedures. Therefore, the Court determines that Movant is entitled to disclosure of the items he seeks in the instant Motion. Accordingly, the instant Motion should be granted and this Order is authority for the Clerk to allow Movant or his attorney to inspect the records or papers used by the Clerk in connection with the petit jury selection process in this case as set out in Local Court Rule 30, as amended on January 30, 1981.2
In this Motion, Movant asks the Court to submit an information sheet to each potential juror prior to commencement of the voir dire proceedings in this case. A copy of the proposed information sheet is attached to the instant Motion. The government opposes the instant Motion.
Examination of the proposed information sheet reveals that most of the questions contained therein involve areas of inquiry normally developed by the Court in its voir dire procedure. Supplemental questions concerning any areas not covered by the Court may be requested by defense counsel at voir dire. Therefore, the Court determines in its discretion that the instant Motion should be overruled.
MOTION IN LIMINE (PRIOR BAD ACTS)
In this Motion, Movant moves the Court to instruct government counsel and her representatives and witnesses to refrain from making any reference at trial to any alleged crime or misconduct by Movant or any other defense witness, other than those acts specifically set out in the Indictment herein, until such time as a hearing can be conducted outside the presence of the jury to determine the admissibility of said alleged crime or misconduct. The government responds that it does have evidence of uncharged illegal acts by the Movant which the government believes will be necessary to introduce at trial. The government further states that it agrees to instruct its witnesses not to testify to such acts until the Court has ruled on admissibility and that the government will advise the Court and seek a ruling prior to eliciting such testimony. However, the government opposes the instant Motion in its present timing and contends that the matters presented in this Motion are properly handled during trial.
The Court agrees with the government. Therefore, the instant Motion should be overruled at this time subject to reconsideration upon presentation to the trial judge should the need for the requested determination of admissibility arise during the course of the trial in this case.
In this Motion, Movant asks the Court to order the government to turn over its case file in this matter to Movant for the reason that there has been a disclosure of the prosecution's work product to third parties which waives any work product privilege. The government opposes the instant Motion on the grounds that Movant has presented no authority which requires the government to turn over its entire case file to Movant.
At the outset, the Court notes that Rule 16(a)(2), Federal Rules of Criminal Procedure, specifically exempts the materials sought by Movant in this Motion from pretrial disclosure. Furthermore, Movant has not presented the Court with any authority (nor is the Court aware of any such authority) to support his contention that pretrial disclosure of the requested case file materials is required when the government waives any work product privilege it may have regarding such materials. Under these circumstances the Court determines that the instant Motion should be overruled.
In this Motion, Movant requests an extension of time in which to file additional Motions in this case. The Court determines that this Motion should be overruled subject to reconsideration upon Movant's presentation to the Court of any additional motions he may desire to file in this case.
In this Motion, Movant requests an enlargement of time until February 23, 1981, in which to file pretrial motions in this case. However, this request is now moot. Furthermore, this request is encompassed in the Court's ruling on the preceding Motion. Therefore, the Court determines that the instant Motion should be overruled.
In this Motion, Movant asks that his attorney be permitted to conduct an examination of the prospective jurors in this case, or in the alternative, that his attorney be allowed to supplement the Court's examination of the jurors.
In accordance with the Court's rulings above in connection with Movant's various Motions pertaining to prospective jurors in this case, the Court determines that the instant Motion should be overruled in its entirety at this time. However, the Court will entertain any request for supplemental voir dire examination of prospective jurors as conducted by the Court at the time of trial.
In this Motion, Movant seeks a severance and separate trial from his co-defendants due to statements made by co-defendants to law enforcement officers. The government responds that the instant Motion should be denied as Movant has shown no grounds for a severance.
Rule 8, Federal Rules of Criminal Procedure, provides:
Decisions as to whether to grant a severance are within the sound discretion of the trial court. United States v. Kelley, 635 F.2d 778 (Tenth Cir. 1980).
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...F.Supp. 1040, 1042 (D.Kan. 1990); United States v. Countryside Farms, Inc., 428 F.Supp. 1150, 1154 (D.Utah 1977); United States v. Penix, 516 F.Supp. 248, 254-55 (W.D.Okl.1981). If it appears during the course of trial that the government has failed to produce evidence that is "material to ......
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