United States v. Schneiderman

• Citation: 106 F. Supp. 731
• Decision Date: 06 May 1952
• Docket Number: Cr. A. No. 22131.
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. SCHNEIDERMAN et al.

106 F. Supp. 731

UNITED STATES v. SCHNEIDERMAN et al.

Cr. A. No. 22131.

United States District Court S. D. California, Central Division.

May 6, 1952.

Walter S. Binns, U. S. Atty., Norman Neukom, Ray H. Kinnison, Asst. U. S. Attys., Los Angeles, Cal., Lawrence K. Bailey, Sp. Asst. to the Atty. Gen., for plaintiff.

Ben Margolis, Los Angeles, Cal., for defendants Oleta O'Connor Yates and Albert Jason Lima.

Norman Leonard, San Francisco, Cal., for defendants Loretta Starvus Stack, Ernest Otto Fox, also known as Ernest Otto Fuchs, and Frank Carlson, also known as Solomon Szkolnick.

Leo A. Branton, Jr., Los Angeles, Cal., for defendants Henry Steinberg, Ben Dobbs, also known as Benjamin Isgur, and Carl Rude Lambert.

A. L. Wirin, Los Angeles, Cal., for defendants Al Richmond, also known as Abraham Richman, Rose Chernin Kusnitz, and Frank Efroim Spector.

Alexander H. Schullman, Los Angeles, Cal., for defendants Philip Marshall Connelly and Dorothy Healey Connelly, charged as Dorothy Rosenblum Healey.

MATHES, District Judge.

Defendants are on trial by jury under an indictment charging conspiracy, 18 U.S.C. § 371, to commit offenses against the United States prohibited by the Smith Act, 54 Stat. 670, Act June 28, 1940, 18 U.S.C.(1946 ed.) § 10, 18 U.S.C.(1948 ed.) § 2385, "by * * organizing and helping to organize, as the Communist Party of the United States of America a * * * group of persons who advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence * * *."

One of the witnesses for the Government has testified on direct examination that he became a member of the Communist Party at Milwaukee, Wisconsin, where he engaged in various Communist Party activities and made written reports of such events to agents of the Federal Bureau of Investigation. Three of the reports relate to Communist Party gatherings concerning which the witness has testified in response to questions put by prosecution counsel. Defendants now move for an order directing the Government to produce these three reports for inspection and use by the defense upon cross-examination of the witness.

The United States Attorney opposes the motion to produce upon the ground that such documents "are to be regarded as confidential" by virtue of regulations designated as "Department of Justice Order No. 3229,"^* issued by the Attorney General under authorization of 5 U.S.C.A. § 22 which provides in part that: "The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department * * * and the custody, use, and preservation of the records, papers, and property appertaining to it."

The regulations relied upon are a part of "that body of public records of which the courts take judicial notice." Caha v. United States, 1894, 152 U.S. 211, 222, 14 S.Ct. 513, 517, 38 L.Ed. 415; 44 U.S.C.A. § 307. And having been held to constitute a valid exercise by the Attorney General of his authority under 5 U.S.C.A. § 22, Touhy v. Ragen, 1951, 340 U.S. 462, 463-464, note 1, 468-469, 71 S.Ct. 416, 95 L.Ed. 417, the regulations "have the force of law." Ex parte Reed, 1879, 100 U.S. 13, 22, 25 L.Ed. 538; Boske v. Comingore, 1900, 177 U.S. 459, 469, 20 S.Ct. 701, 44 L.Ed. 846; Ex parte Sackett, 9 Cir., 1935, 74 F.2d 922.

Exercising the discretion reserved to him in the regulations, the Attorney General, speaking through the United States Attorney at bar, takes the position that the Government cannot be required to produce for use by the defense "confidential" documents such as the three reports in question here.

The court has ordered the reports delivered under seal to the Clerk for inspection by the judge in camera to determine whether the documents have sufficient evidentiary value in any event to warrant disclosure to the defense. The Attorney General has complied with the order, and the reports have been marked as exhibits numbered for identification 729, 730 and 731, to be kept sealed pending further order of court. Cf. United States v. De Normand, 2 Cir., 1945, 149 F.2d 622, 625, certiorari denied, 1945, 326 U.S. 756, 66 S.Ct. 89, 90 L.Ed. 454, id. 1947, 330 U.S. 822, 67 S.Ct. 769, 91 L.Ed. 1272; United States v. Cohen, 2 Cir., 1945, 148 F.2d 94, certiorari denied, 1945, 325 U.S. 852, 65 S.Ct. 1087, 89 L.Ed. 1972; United States v. Ebeling, 2 Cir., 1944, 146 F.2d 254, 257; United States v. Schneiderman, S.D.Cal., 1952, 104 F.Supp. 405.

It is urged in support of the pending motion that, notwithstanding the regulations of the Attorney General, defendants are entitled as of right to inspect the "F. B. I. reports" under authority of Bowman Dairy Co. v. United States, 1951, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879. On the other side the Attorney General contends that he is entitled as of right to withhold production and inspection and use of the reports under authority of the regulations.

In my opinion neither contention is sound. The matter is one which ex necessitate must rest within the discretion of the trial court. See Crosby v. Pacific S. S. Lines, 9 Cir., 1943, 133 F.2d 470, 475, certiorari denied, 1943, 319 U.S. 752, 63 S.Ct. 1166, 87 L.Ed. 1706; Shores v. United States, 8 Cir., 1949, 174 F.2d 838, 844-845; United States v. Schiller, 2 Cir., 1941, 187 F.2d 572, 575-576; United States v. Schneiderman, supra, 104 F.Supp. at page 408; Wigmore, Evidence, § 2379 (3d ed. 1940).

If a document material to the defense is of such a nature that the confidential information which it contains may be excised or by other means withheld from public disclosure without impairing the evidentiary value of the writing, the trial court will exercise discretionary powers to the end that the competing interests of both Government and defense may be satisfied. See United States v. Burr, C. C.Va., 1807, 25 Fed.Cas. 187, 190-193, No. 14694.

Where, however, the nature of the document or the character of its contents is such that the confidential information therein contained cannot fairly be withheld without diminishing the possible evidentiary value of the writing to the defense, then the court must determine in the exercise of discretion whether, notwithstanding the confidential information, the accused should be permitted to compel production of the document for use as evidence on behalf of the defense.

In United States v. Burr, supra, C.C.Va., 1807, 25 Fed.Cas. 187, 192, Id. 25 Fed. Cas. 30, No. 14692d, Mr. Chief Justice Marshall sat as Circuit Justice upon the trials of former Vice-President Aaron Burr charged with treason and high misdemeanor. The defense moved the court for an order directing issuance of a subpoena duces tecum to compel production of a letter then in the custody of the President, Thomas Jefferson.

The subpoena was awarded and, upon motion of the defense "that the cause should be continued until the letter should be produced," the venerable Chief Justice observed that "it is a very serious thing, if such letter should contain any information material to the defence, to withhold from the accused the power of making use of it. It is a very serious thing to proceed to trial under such circumstances. * * * The only ground laid for the court to act upon is the affidavit of the accused; and from that the court is induced to order that the paper be produced * * *. In regard to the secrecy of these parts which it is stated are improper to give out to the world, the court will take any order that may be necessary. I do not think that the accused ought to be prohibited from seeing the letter; but, if it should be thought proper, I will order that no copy of it be taken for public exhibition, and that no use shall be made of it but what is necessarily attached to the case. After the accused has seen it, it will yet be a question whether it shall go to the jury or not. That question cannot be decided now, because the court cannot say whether those particular passages are of the nature which are specified. All that the court can do is to order that no copy shall be taken; and if it is necessary to debate it in public, those who take notes may be directed not to insert any part of the arguments on that subject."

The court's discretionary power to compel production of a document in the custody of a government agency must be exercised in the light of the requirement of the Sixth Amendment that: "In all criminal prosecutions, the accused shall enjoy the right * * * to have compulsory process for obtaining witnesses in his favor * * *." U.S.Const. Amend. VI. This constitutional mandate extends to documentary as well as oral evidence, United States v. Burr, supra, 25 Fed.Cas. at page 30, 35; see also Wilson v. United States, 1911, 221 U.S. 361, 372, 31 S.Ct. 538, 55 L.Ed. 771; 8 Wigmore, Evidence, §§ 2191, 2193, 2200 (3d ed. 1940); 3 Wharton, Criminal Evidence, §§ 1105, 1106 (11th ed. 1935).

Proper exercise of judicial discretion in determining whether to compel production requires in every case that any public policy militating against public disclosure of the document be weighed against the interest of the accused in having the document for use in making a defense to the charge. See Langnes v. Green, 1931, 282 U.S. 531, 541, 51 S.Ct. 243, 75 L.Ed. 520. This involves a balancing of the inconvenience of public disclosure against the inconvenience of making a defense without the document. Cf. Shores v. United States, supra, 8 Cir., 174 F.2d at pages 844-845. The latter factor is to be measured largely by an appraisal of the probative or evidentiary value of the document — what possible use the defense could make of it for impeachment or other evidentiary purposes.

If the possible evidentiary value of a document to the defense is clearly negligible, the trial court might well be prompted to hold that the interest of the accused in the use of the writing as evidence is outweighed by some public policy, such as that which favors protection from disclosure...