United States v. Price

• Decision Date: 03 March 1978
• Docket Number: Crim. No. 78-CR-4.
• Parties: UNITED STATES of America, Plaintiff, v. Ernest PRICE, Defendant.
• Court: U.S. District Court — District of Colorado

448 F. Supp. 503

UNITED STATES of America, Plaintiff, v. Ernest PRICE, Defendant.

Crim. No. 78-CR-4.

United States District Court, D. Colorado.

March 3, 1978.

Nancy E. Rice, Asst. U. S. Atty., Denver, Colo., for plaintiff.

Bryan Morgan, Denver, Colo., for defendant.

OPINION AND ORDER

KANE, District Judge.

This opinion is too long. I apologize for its length but I simply didn't have time to write a shorter one.

The indictment in this case reads as follows:

The Grand Jury charges that:

Between, on or about September 1, 1976, and December 5, 1977, in the State and District of Colorado, Ernest Price did knowingly embezzle and convert to his own use money and property of the Bureau of Indian Affairs, which is an agency of the Department of Interior, a department of the United States, the value of which exceeds $100.00, all in violation of Title 18, United States Code, Section 641.

On January 20, 1978, the defendant tendered a plea of not guilty to that charge. At the time of arraignment counsel for the government and the defendant were ordered to meet in accordance with the general order of this district which reads as follows:

Unless otherwise ordered by the court in ruling on a motion filed by the government under Rule 16(d)(1), F.R.Cr.P., all information available to a defendant under Rule 16(a), F.R.Cr.P. shall be supplied routinely by the government at the offices of the United States Attorney within seven days after arraignment. A defendant need file no motion to obtain such information. If such information is accepted by defendant, subparagraphs (b) and (c) of Rule 16, F.R.Cr.P. apply to the parties. Motions under Rules 12 and 14 F.R.Cr.P. shall be filed within ten days after arraignment unless otherwise ordered by the court.

In addition, the defendant was ordered to file any motions he might have within ten (10) days following the arraignment. In accordance therewith on January 30, 1978, defendant filed a motion to suppress evidence and statements and a motion for a bill of particulars. A hearing on said motions was held on February 17, 1978. At the hearing the government disclosed that the defendant had made no statements to law enforcement officers and that no statements would be introduced. Accordingly, the motion to suppress statements was denied. The portion of the motion to suppress relating to the suppression of documents was argued and briefed fully. The government related that it had in its possession bank records obtained from the First National Bank of Cortez, Colorado. In accordance with United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), that portion of the motion to suppress was likewise denied. With respect to the motion for a bill of particulars the government indicated that it would produce a bill of particulars provided the defendant would advise with greater clarity which aspects of the crime charged remained imprecise or indefinite. In addition, the government stated in its response to defendant's motions that it believed that no testimony was required; that it would have one of the agents of the Federal Bureau of Investigation available to testify concerning the lack of statements and the method used to obtain the bank records and, further: that the government would "respectfully object and decline to name any witnesses as being outside the purview of Rule 16 of the Federal Rules of Criminal Procedure, Rule 17 of the Local Rules, and the dictates of the Tenth Circuit as set forth in United States v. Pennick, 500 F.2d 184 (10th Cir. 1974), cert. den. 419 U.S. 1051, 95 S.Ct. 629, 42 L.Ed.2d 647 (1974)" and other cases decided by the Tenth Circuit prior to that date as well as two cases from the Western District of Oklahoma decided subsequent thereto.

Irrespective of the foregoing, the government prepared, with defense counsel's concurrence, a stipulated statement of facts which said that if called to testify Jim Bristol, an agent of the Federal Bureau of Investigation assigned to Durango, Colorado, would confirm that in the course of his investigation of the crime, subsequently referred to in the indictment, he contacted Joe Otero, the Superintendent of the Bureau of Indian Affairs, Towaoc, Colorado, whom he thought to be the co-signator for account number X-XXXX-X in the name of Price's Laundromat and Car Wash. The stipulation further related that Mr. Otero, at the request of Agent Bristol, contacted Wayne Glazner, the President of the First National Bank of Cortez, Colorado, where the above numbered account was kept. Mr. Otero advised Glazner that he would like to see the checks which had been drawn on the Price's Laundromat and Car Wash account as well as the monthly statements. Following this telephone conversation both Agent Bristol and Mr. Otero visited the bank and viewed the bank records. At the request of Agent Bristol and Mr. Otero, Mr. Glazner voluntarily made copies of the records and presented them to the two men.

In denying defendant's motion to suppress, I commented upon the statement of the government contained in its response to the effect that the government would decline to name any witnesses. I advised the government that the question of whether the disclosing of any witnesses is required is a matter to be determined in the exercise of the court's discretion and not a matter beyond the jurisdiction of the court to determine. (See Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964) and United States v. Pelley, 572 F.2d 264 (10th Cir. 1978). Following these comments I was asked by the government whether I would require the naming of any witnesses to be called at trial prior to the time of trial. I advised that the issue was not before me and that I would only make such ruling if a motion was filed and after a hearing at which both the defendant and the government would be provided with the opportunity to set forth those matters which in their respective beliefs counsel believed I should consider in reaching a decision. I was advised at that time by the government's counsel that the government would not provide such information and asked, more than once by the government's counsel, that I impose sanctions against the government. This I declined to do.

In view of the foregoing, the defendant asked for permission to file a motion for discovery requiring the prosecution to furnish defense counsel, in writing at least twenty (20) days prior to trial, with the names and addresses of all witnesses whose testimony the government would seek to introduce at trial. I granted the defendant permission to file such a motion which was received on February 21, 1978. The matter was set for oral argument on February 24, 1978 at 2:00 P.M. At 9:35 A.M. on that date the government filed a document entitled "Government's Answer to Defendant's Motion for Discovery and Sanctions." In the answer the government stated that it strongly opposed the motion; that the court has no discretion to enter such an order; and that should such an order be entered, the government would respectfully refuse to comply with its terms and conditions. In support of its position the government stated:

"The law is well settled in the Tenth Circuit that in the absence of a statutory or constitutional requirement, the accused is not entitled to be furnished a list of government witnesses in advance of trial except in the case of capital cases."

The rest of the government's answer was a series of quotations from various Tenth Circuit cases and some comment setting forth the government's interpretation of Nipp v. United States, 422 F.2d 509 (10th Cir. 1969), cert. den. 399 U.S. 913, 90 S.Ct. 2213, 26 L.Ed.2d 569 (1970) and its understanding of United States v. Pennick, supra. Noticeably absent from the government's answer was a response to the court's request that those factors which would be required or helpful in exercising judicial discretion be set forth with particularity.

By contrast defendant's motion set forth the following considerations:

(1) That the offense alleged in the indictment does not involve a crime of violence;

(2) That the defendant has never been arrested, much less convicted, for any offense involving violence in his life;

(3) That the bulk of evidence in this case will likely involve testimony relating to documents, which by their nature are not easily altered;

(4) That to defense counsel's knowledge, no possibility exists that supplying the witnesses names prior to trial will increase the likelihood that the prosecution's witnesses will not appear at trial, or will be unwilling to testify at trial;

(5) That the indictment alleges offenses occurring over some fifteen (15) months past making preparation of the defendant's defense complex and difficult;

(6) That the defendant has extremely limited funds with which to investigate and prepare his defense.

After setting forth these circumstances the defendant argued in his motion that:

". . . The court's discretion may be soundly exercised by requiring the government to disclose the witnesses' names and addresses, considering the balance of the public interest in protecting the flow of information to the government and the defendant's right to prepare his defense.

If counsel for the government refuses to comply with this order, as has been previously indicated on the record before this court, defense counsel requests this court pursuant to Rule 16(d)(2), Federal Rules of Criminal Procedure, to prohibit the government from introducing any evidence from any witnesses not disclosed twenty (20) days prior to trial, if the defendant makes timely objection thereto at trial in this cause."

At the 2:00 P.M. hearing on Friday, February 24, 1978, government's counsel was again requested to advise me of the considerations which should be included in my exercise of judicial discretion. Again, the government's attorney refused to comply with the request and again stated that the court had no...