United States v. Turner

• Decision Date: 15 September 1967
• Docket Number: Crim. A. No. 12424.
• Citation: 274 F. Supp. 412
• Parties: UNITED STATES of America v. James E. "Bookie" TURNER, Gordon G. White, Sherill E. Penney, and George G. "Buddy" Hendricks.
• Court: U.S. District Court — Eastern District of Tennessee

274 F. Supp. 412

UNITED STATES of America v. James E. "Bookie" TURNER, Gordon G. White, Sherill E. Penney, and George G. "Buddy" Hendricks.

Crim. A. No. 12424.

United States District Court E. D. Tennessee, S. D.

June 8, 1967.

Memorandum and Order September 15, 1967.

COPYRIGHT MATERIAL OMITTED

J. H. Reddy, U. S. Atty., Chattanooga, Tenn., J. Frank Cunningham, Alfred King, Attys., Department of Justice, Washington, D. C., for plaintiff.

James F. Neal, Nashville, Tenn., John K. Morgan, Joe Wild, Jr., H. H. Gearinger, Crawford Bean, W. Corry Smith, Chattanooga, Tenn., for defendant.

MEMORANDUM

ROBERT L. TAYLOR, Chief Judge.

The Grand Jury charges that on or about January 1, 1963, James E. "Bookie" Turner, Gordon G. White, Sherill E. Penney, George G. "Buddy" Hendricks, and thirty-seven others named as co-conspirators but not as defendants, combined, conspired and agreed with each other and with divers other persons whose names are not known to the Grand Jury, to defraud the United States by manufacturing and otherwise handling nontaxpaid distilled spirits and traveled and willfully caused others to travel and use facilities in interstate commerce to carry on business enterprises involving nontaxpaid liquors.

Methods used to carry out the conspiracy are set forth in detail in the indictment as well as numerous overt acts allegedly committed in furtherance of the conspiracy.

Defendant Turner is charged in the second count of the indictment with willfully and knowingly causing and suffering the use of mobile radio transmitters assigned to the Chattanooga Police Department for transmission of communications other than those essential to official police activities of the said Department, contrary to the rule of the Federal Communications Commission made pursuant to 47 U.S.C. § 303(b), in violation of Title 47 U.S.C. §§ 301 and 501.

Various motions filed by the defendants will be considered in chronological order.

Defendants Penney and Hendricks have moved for a bill of particulars with respect to certain portions of the indictment. The indictment is explicit and they seek evidence rather than a specification of the charges which the Government is not required to furnish in advance of the trial. United States v. Birrell, D.C., 263 F.Supp. 113; United States v. Deliberto, D.C., 264 F.Supp. 181; Ray v. United States, D.C., 367 F.2d 258.

Penney and Hendricks have also moved to strike all of Paragraph 1 of Count 1 of the indictment following the words "the defendants" in line 4 on the ground that it improperly names the co-conspirators who were parties to the crime. It is the contention of the defendants that they should not be named in the indictment without being indicted; that by naming them without indicting them their constitutional rights under Article 1, Section 9, Clause 3 are violated. Defendants also say that the adding of these names is surplusage in the indictment and they should be stricken. If anyone has the right to complain of this procedure, it would be the parties who are named and not indicted rather than these defendants. It is not such surplusage as should be stricken. Dranow v. United States, 8 Cir., 307 F.2d 545.

The complaints of these defendants about admitting hearsay evidence in a conspiracy trial is without foundation. Parente v. United States, 9 Cir., 249 F.2d 752, 754.

The cases cited by these defendants to support their contentions are not decisive of the question under consideration in the present case.

These defendants also move to strike paragraphs 2 and 4 of Count 1 on the ground they do not charge the defendants with the commission of unlawful acts. This is not necessary. Many overt acts that are committed in pursuance of the conspiracy may be lawful. Only one overt act whether lawful or unlawful committed in pursuance to a conspiracy is sufficient.

These defendants also move to strike the overt acts alleged in the indictment because they are immaterial to them and they are not charged with having knowledge or control over such acts. Many of the acts relate to defendant Hendricks. However, if these defendants were parties to the conspiracy neither their knowledge nor their participation in the overt acts is required to make them guilty. Robinson v. United States, 93 U.S.App.D.C. 347, 210 F.2d 29; United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211.

Penney and Hendricks seek discovery and inspection of their own statements under Rule 16 F.R.Cr.P., which request is granted. Under the interpretation of that rule by various courts, including the Supreme Court, it is a better practice to give a defendant a copy of his own statement. Cicenia v. LaGay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523. The statements made by their co-defendants or alleged co-conspirators are not discoverable. Neither is the testimony of them before the grand jury. See Rule 16 F.R.Cr.P. Cicenia v. LaGay, supra; United States v. Johnson, D.C., 215 F.Supp. 300.

Rule 16(b) of the Federal Rules of Criminal Procedure does not authorize the discovery or inspection of statements made by government witnesses or prospective witnesses—other than the defendants to agents of the government, except as provided in 18 U.S.C. § 3500. United States v. Baker, D.C., 262 F.Supp. 657.

James E. Turner has moved for severance and a separate trial from other defendants or at least from Penney and Hendricks pursuant to Rule 14 of the Federal Rules of Criminal Procedure. As a general rule persons jointly indicted should be tried together. Hall v. United States, 83 U.S.App.D.C. 166, 168 F.2d 161, 4 A.L.R.2d 1193; United States v. Kahaner, D.C., 203 F.Supp. 78. A single trial, however, may not be had at the expense of a defendant in getting a fair trial. A fair trial is the paramount object in all situations. Schaffer v. United States, 5 Cir., 221 F.2d 17. A separate trial should be granted only when it appears that a joint trial will prejudice one or more of the defendants, as there is a public interest in avoiding duplicitous, time-consuming second trials. Defendant is entitled to a separate trial only upon a showing that his rights will be prejudiced by one trial. The fact that a co-conspirator has given an incriminatory statement is not sufficient alone for a separate trial. Nor is hostility between defendants sufficient for a separate trial. The fact that one defendant wants to save himself at the expense of another is not conclusive upon the issue. The ultimate test is whether the jury can follow admonitory instructions of the Court and appraise independent evidence against each defendant solely upon the defendant's own acts, statements and conduct.

Turner asserts that there is a likelihood that defendants Penney and Hendricks will not take the stand and this will force counsel for Turner to draw the jury's attention to their failure to take the stand by emphasizing that if they took the stand they would exonerate the defendants (In that connection, counsel for Penney and Hendricks each stated during the argument on these motions here today that they had not decided and would not finally decide until all the proof is in as to whether Penney and Hendricks, one or both, will or will not take the witness stand.); that Turner is a law-enforcement officer while Penney and Hendricks have long police records which would create an atmosphere of guilt by association; that the defendants may have made admissions that would incriminate Turner which would not be admissible if Turner were tried alone and that because there are four defendants and more than forty-one co-conspirators it would be impossible for the Court and jury to separate the issues and proof and abide by limitations on the admissibility of evidence and that the cumulative effect of all of these grounds would result in prejudice to the defendant Turner.

Defendant in support of his contention relied upon the cases of United States v. DeLuna, 308 F.2d 140 (C.A.5) and United States v. Echeles, 352 F.2d 892 (C.A. 7). Counsel for each side analyzed each of these cases during the oral argument. They grew out of narcotics transactions. The Echeles case involved a lawyer who represented Arrington who entered an alibi plea as a defense, claiming he was in Arkansas at the time of the crime. Echeles placed on the stand two motel operators from Arkansas who testified to Arrington's presence in Arkansas at the pertinent time and produced what they said were Arrington's motel registration cards. Later in the trial, the motel operators changed their story and testified as Government witnesses that the registration cards were filled out in Arrington's home after they were told by Echeles to identify them as the cards of their motel. Arrington then testified that the cards were prepared in his home, but also testified that Echeles had nothing to do with falsifying the records. Arrington pleaded guilty the following day and again testified that Echeles had nothing to do with preparing the cards or with the perjured testimony.

Thereafter, Echeles and Arrington were indicted for suborning, and endeavoring to suborn, perjury of the motel operators. Echeles moved for severance on the ground that in a joint trial he would be unable to call Arrington as his witness. The motion was denied and the upper court reversed saying:

"At this juncture we hold merely that, having knowledge of Arrington's record testimony protesting Echeles' innocence, and considering the obvious importance of such testimony to Echeles, it was error to deny the motion for a separate trial." (Emphasis added.)

The decision in that case stands on the particular facts involved in the case as indicated by the quoted language from the Court. It is not decisive of the case under consideration.

In the DeLuna case, DeLuna and Gomez were jointly charged with a narcotics violation. Each hired his own attorney. Gomez moved for severance. The motion for severance was denied. Gomez and his family...