United States v. Tanner, 67 CR 30.

Decision Date01 December 1967
Docket NumberNo. 67 CR 30.,67 CR 30.
Citation279 F. Supp. 457
PartiesUNITED STATES of America v. Joseph Alfred TANNER, Lawrence Henry Rice, Jack Alter Pearl, Alvin Junior Cupp, and Walter Beryl Chipman, Defendants.
CourtU.S. District Court — Northern District of Illinois

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Edward V. Hanrahan, U. S. Atty., Lawrence E. Morrisey, Gerald Werksman, Asst. U. S. Attys., Chicago, Ill., for the Government.

Maurice Edelbaum, New York City, William S. Evans, Detroit, Mich., Matthew Salita, Chicago, Ill., for defendant Tanner.

William S. Evans, James F. Finn, Detroit, Mich., John J. Cogan, Chicago, Ill., for defendant Rice.

Robert Healey, Camden, N. J., Abraham Glasser, New York City, Matthew Salita, Chicago, Ill., for defendant Pearl.

William S. Evans, Detroit, Mich., Matthew Salita, Chicago, Ill., for defendant Cupp.

Newton B. Schwartz, Houston, Tex., John Powers Crowley, Chicago, Ill., for defendant Chipman.

MEMORANDUM OPINION

MAROVITZ, District Judge.

Defendants' Pretrial Motions

This is a seven count indictment naming five defendants, including Joseph Alfred Tanner, Lawrence Henry Rice, Jack Alter Pearl, Alvin Junior Cupp, and Walter Beryl Chipman. It essentially arises out of the alleged arson and bombing of the vessel Howard L. Shaw, in the Calumet Harbor of Chicago, on or about September 6, 1963. The various defendants are charged with violating and conspiring to violate a number of federal statutes.1

The alleged incident apparently arose from a longstanding labor dispute for control of maritime labor in the Great Lakes and St. Lawrence Seaway, involving the Seafarers' International Union of Canada, the Seafarers' International Union of North America, the Canadian Labor Congress, the Canadian Maritime Union, and the Upper Lakes Shipping Co., Ltd. It appears from the papers supplied to this Court, that defendant Cupp may be a Government witness in the case.2 The other four defendants have jointly filed nine separate pretrial motions, and individually the defendants press five additional motions. All of the motions have been briefed by the parties and are now ready for decision. We will consider the motions at this time in seriatim fashion. For ease of understanding, all of the motions except those specially indicated have been filed jointly by defendants Tanner, Rice, Chipman and Pearl.

1. Motion to Dismiss

Twelve separate grounds are asserted in support of this motion. The first five essentially charge that the indictment fails to adequately inform the defendants of the charges against them, fails to charge any acts constituting an offense against a federal statute, and is void because vague and indefinite. In our opinion, the arguments are without merit since each count of the indictment specifically sets forth the elements of the offenses in the generic terms of the relevant statutes, and in addition includes explicit facts relating each of the defendants to the offenses charged. Count I, in particular, lists 35 "Overt Acts" undertaken in furtherance of the alleged conspiracy. Although the remaining counts are not as particularized3, they each constitute "a plain, concise and definite written statement of the essential facts constituting the offense charged," as is required by Rule 7(c) of the Federal Rules of Criminal Procedure. The test of sufficiency is met if the indictment contains the elements of the offenses charged, and apprises the defendant of what he must be prepared to defend against, so that in event of a subsequent prosecution for the same offense, he may plead the instant indictment in bar. Russell v. United States, 369 U.S. 769, 82 S. Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Smith, 209 F.Supp. 907 (N.D. Ill.1962). Each of the counts of the instant indictment states the approximate date of the alleged offense, the acts which the defendants are charged with committing, and the approximate place thereof. Such an indictment is sufficient, and defendants' allegations are without merit.

For the same reasons mentioned above, the seventh ground relied upon by defendants is rejected. Defendants therein urge that the indictment merely alleges statutory violations in the generic language of the statutes, and fails to descend to particulars, citing for support United States v. Quinn, 365 F.2d 256, 262 (7th Cir. 1966). However, unlike in Quinn, the instant indictment does sufficiently state the elements of the offenses charged, and the manner in which they were committed. Of course, an indictment may be sufficient to withstand a motion to dismiss, and yet insufficiently inform the defendant of the specific facts of the alleged offenses. In such cases, the court may order the Government to supply a bill of particulars. United States v. Ketchum, 320 F.2d 3, 8 (2d Cir. 1963). The instant defendants have requested such particulars, and their motion will be considered infra.

In point six, defendant Chipman moves to dismiss based upon a prior prosecution which did not relate factually to the instant charges.4 Nevertheless, he contends that the events alleged in this indictment, which undisputedly occurred prior to the trial in the other case,5 should have been charged in the earlier indictment, and that the Government has demonstrated bad faith in delaying this indictment until 1967.

No authority is cited for this argument. The earlier case has no factual relationship to the instant one, and defendant Chipman concedes that double jeopardy is not an issue. Nor is any contention made that this indictment is barred by a statute of limitations. In short, the argument has no basis and is rejected.

In point eight, and in a separate "Motion to Dismiss Certain Paragraphs and Counts of the Indictment" filed by defendant Pearl, and adopted by his codefendants, the contention is made that Paragraphs 2 and 6 of Count I, and Counts II and IV, should be dismissed. Defendants urge that in order to constitute violations of the statutes mentioned therein, 18 U.S.C. Sections 81 and 1363, the unlawful acts must have occurred within the special maritime and territorial jurisdiction of the United States, and that the Calumet Harbor is within the jurisdiction of Illinois, and not within the maritime jurisdiction of the United States. Defendants have submitted certain exhibits in support of their argument.

But these matters need not be decided prior to trial. The Government must have the opportunity to prove the allegations made in the indictment. If from the evidence it appears that defendants' contention is well taken, it may be renewed in a motion for judgment of acquittal at the close of the Government's case.

While on the subject, the remainder of the allegations in the "Motion to Dismiss Certain Paragraphs and Counts of the Indictment" relate only to defendants' version of the "facts." We cannot pass on those arguments before hearing the evidence. At this point there are no "undisputed facts," as defendant so cryptically characterizes them. The above captioned motion must be denied.

Point nine contends that the indictment is defective for failure to allege the required intent to violate the statutes. The argument is patently without merit, since each and every count of the indictment, does, in fact, allege the requisite intent, as defendants themselves can see.

Point eleven challenges Count I as being duplicitous since it purportedly attempts to charge several separate and distinct conspiracies and substantive offenses. The short answer is that Count I charges a continuing conspiracy beginning on or about April 1, 1963, and "continuing thereafter until the date of the indictment." Each of the activities mentioned was alleged to be "a part of the conspiracy." A continuing conspiracy constitutes only a single offense and only one offense can be proved by Count I. The defendants' argument is rejected.

Point 12 charges that Court I is void because it fails to allege "where" in interstate commerce the activities alleged in paragraphs one and four took place. It is true that the indicated paragraphs of Count I generally allege that defendants transported and traveled in interstate commerce with certain proscribed purposes, without specifically asserting where in commerce such activities occurred. But those omissions do not render the indictment defective. If anything, they are items to be obtained via a bill of particulars, and then only if the court, in its discretion, thinks they are necessary objects of such a motion. Defendants' objections to Count I are overruled.

Finally, the Government concedes the merit of defendants' attack on Count Six, which is found in point ten of the motion to dismiss, and that Count is accordingly dismissed.

Except as to Count Six, all of defendants' reasons in support of the motion to dismiss are found to be unsupported in law, and the motion is accordingly denied.

2. Motions to Sever of Defendants Tanner, Rice and Chipman

The above named defendants have moved to sever each of their cases for trial. Several grounds are asserted. First, on information and belief, they each allege that one or more co-defendants has given a written or oral confession or statement which implicates each of the movants. It is contended that if said statement is offered in evidence, although not admissible against any defendant but the one making it, it would be prejudicial to the other defendants. Furthermore, the moving defendants might be unable to cross examine the declarant because of the latter's Fifth Amendment privilege against self-incrimination.

Although technically, confessions or statements are only offered in evidence against the declarant, and the judge is obliged to so instruct the jury, several cases have considered it reversible error to deny a severance where the effect of admitting the statement at a joint trial is to indelibly prejudice the other defendants. As...

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