United States v. Schneiderman

• Decision Date: 23 April 1952
• Docket Number: Cr. No. 22131.
• Citation: 104 F. Supp. 405
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. SCHNEIDERMAN et al.

104 F. Supp. 405

UNITED STATES v. SCHNEIDERMAN et al.

Cr. No. 22131.

United States District Court, S. D. California, C. D.

Filed April 23, 1952.

Nunc Pro Tunc January 11, 1952.

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

Ben Margolis, Los Angeles, Cal., for defendants, Oleta O'Connor Yates, Mary Bernadette Doyle, 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, fifteen in number, stand charged with conspiracy to commit offenses against the United States, 18 U.S.C. § 371 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 * * * advocating and teaching the duty and necessity of overthrowing the Government of the United States by force and violence * * *."

In preparing their defense to that indictment defendants have caused the Clerk to issue a subpoena duces tecum pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., directing plaintiff and the United States Attorney to bring to the trial

"All documents, books, papers and objects (except memoranda prepared by Government counsel, and documents or papers solicited by or volunteered to Government counsel which consist of narrative statements of persons or memoranda of interviews), obtained by Government counsel, in any manner other than by seizure or process, (a) in the course of the investigation by the Grand Jury or Grand Juries which returned indictments herein, and (b) in the course of the Government's preparation for the trial of these causes, if such books, papers, documents and objects, (a) have been presented to the Grand Jury or Grand Juries; or (b) are to be offered as evidence on the trial of the defendants herein, or any of them, under said indictments."

Defendants have also filed a motion pursuant to Rule 17(c) for "an order fixing a time and place prior to the trial * * * for the production and inspection of the * * * documentary evidence" described in the subpoena duces tecum.

The Government has countered with a motion to modify the subpoena upon the ground inter alia that "compliance would be unreasonable" within the meaning of Rule 17(c). Specifically, the Government moves to modify the subpoena to such extent as may be necessary to provide "adequate safeguards * * * to protect against disclosure of the identity of informants * * *."

It is conceded that the United States Attorney has permitted the defense to inspect without contest a large number of documents. Indeed the Government contends it has now responded fully to the subpoena duces tecum, by permitting inspection of all except writings "which cannot now be identified without danger of disclosing the identity of confidential informants * * * and documents intended for use as impeaching or rebuttal documents."

The court has ordered these excepted writings delivered under seal to the judge for examination in camera 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, and the questions now for determination are (1) whether defendants' motion for inspection in advance of trial should be granted as to the writings in dispute and (2) whether the subpoena duces tecum should be modified to the extent requested.

It is to be noted, as counsel for defense points out, "no claim is made * * * that the documents in question involve any state secrets cf. 8 Wigmore, Evidence § 2378 (3d ed. 1940), defense information or matters affecting the national security" cf. Zimmerman v. Poindexter, D.C.Hawaii, 1947, 74 F.Supp. 933. Nor is inspection sought to be denied by reason of any executive or administrative regulation or order, see Touhy v. Ragen, 1951, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417; Boske v. Comingore, 1900, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846; Ex Parte Sackett, 9 Cir., 1935, 74 F.2d 922.

The Government invokes here the public policy favoring protection from disclosure of the identity of one who serves as an informer to law enforcement officials. See Scher v. United States, 1938, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151; Vogel v. Gruaz, 1884, 110 U.S. 311, 316, 4 S.Ct. 12, 28 L.Ed. 158; 8 Wigmore, Evidence § 2374, 3d ed. 1940. But the "confidential informants," whose identity inspection of the disputed writings might disclose, are persons who may have testified before the grand jury which returned the indictment and will probably be called at the trial to lay evidentiary foundation for introduction of the documents. Thus they promise ultimately to become "something more" than mere informers. Cf. Sorrentino v. United States, 9 Cir., 1947, 163 F.2d 627; Wilson v. United States, 3 Cir., 1932, 59 F.2d 390. And of course their "confidential" character cannot survive their expected appearance as witnesses at the trial.

Defendants urge that in these circumstances they are entitled as of right to inspect the documents in question under the authority of Bowman Dairy Co. v. United States, 1951, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879, since the subpoena at bar is "in the precise form and content" of the subpoena involved there. Such an interpretation of the opinion in that case would enlarge the holding as to what is "subject to subpoena" into a holding as to what may be inspected prior to trial.

In the Bowman opinion, after pointing out that Rule 16 of the Federal Rules of Criminal Procedure provides "a limited right of discovery," the Court declares that: "It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest terms. * * * Rule 17 (c) was not intended to provide an additional means of discovery. Its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials." Id. 341 U.S. at page 220, 71 S.Ct. at page 679.

As observed in the opinion of the Court of Appeals, Id., 7 Cir., 1950, 185 F.2d 159, 162-163: "The history of the development of Rule 16 shows that the limitations appearing therein were deliberately inserted." Furthermore, the notes of the Advisory Committee appended to Rule 16, 18 U.S. C.A. p. 224 state that even with respect to the limited discovery therein provided: "The entire matter is left within the discretion of the court." See United States v. Schiller, 2 Cir., 1951, 187 F.2d 572, 575.

What a defendant may move to "inspect and copy or photograph" pursuant to Rule 16 is expressly limited to material "obtained from or belonging to the defendant or obtained from others by seizure or by process," and such inspection is conditioned ex vi termini "upon a showing that the items sought may be material to the preparation of * * * defense and that the request is reasonable." What additional material may be subjected to a defendant's inspection prior to trial depends upon proper interpretation of the last sentence of Rule 17(c): "The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys."

The sentence just quoted appeared in the preliminary draft of the rules as the last sentence of proposed Rule 20(b), and the appended note of the Advisory Committee explains: "The last sentence provides for a method by which the court may permit either side to inspect subpoenaed documents or objects under the supervision of the court. It is inserted in the interests of fairness and for the purpose of preventing delay during the trial, particularly in cases where numerous documents may have been subpoenaed." Federal Rules of Criminal Procedure — Preliminary Draft pp. 104-105, 107-108 (1943).

It seems clear then that whether materials subject to subpoena are to be produced and inspected prior to trial rests within the discretion of the trial court. Adopting a characterization from Mr. Chief Justice Marshall, defendants' motion to inspect is addressed "to the discretion of the court * * * not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles." United States v. Burr, C.C.Va., 1807, 25 Fed.Cas. pages 30, 35, No. 14,692 d.

Proper exercise of discretion in dealing with the problem here requires that the public policy favoring protection of the identity of informers be weighed against the defendants' interest in an inspection of the documents preparatory to trial. See Langnes v. Green, 1931, 282 U.S. 531, 541, 51 S.Ct. 243, 75 L.Ed. 520; Dixie Cup Co. v. Paper Container Mfg. Co., 7 Cir., 1949, 174 F.2d 834, 836, certiorari denied, 1949, 338 U.S. 867, 70 S.Ct. 142, 94 L.Ed. 531. This involves a balancing of the inconvenience of disclosure in advance of trial against the inconvenience of preparing the defense without benefit of inspection. Cf. Shores v....