United States v. Walker, Crim. A. No. 80-486.

Decision Date07 May 1981
Docket NumberCrim. A. No. 80-486.
PartiesUNITED STATES of America v. Herman E. WALKER, Jr.
CourtU.S. District Court — Eastern District of Louisiana





John P. Volz, U. S. Atty., Michael Schatzow, Asst. U. S. Atty., New Orleans, La., for United States of America.

Michael S. Fawer, E. Sue Bernie, Fawer & Greenbaum, New Orleans, La., for Herman E. Walker, Jr.

HEEBE, Chief Judge:

This cause came on for hearing on the defendant's motion to dismiss the bill of information filed against him by the United States Attorney for the Eastern District of Louisiana. The defendant urges two grounds in support of his motion: (1) the government's evidence at trial will necessarily vary from the allegations set out in the information and this variance requires dismissal of the information; and (2) the government's filing of this bill of information, which followed its refusal to permit the federal grand jury for this district to vote whether to return an indictment on the same evidence that the government will introduce at trial under this information, constitutes prosecutorial vindictiveness or misconduct in violation of the Due Process Clause. Because this Court finds no merit to either of the defendant's arguments, his motion to dismiss is denied.


The parties vigorously dispute the factual basis surrounding this controversy as well as what facts, their relevance and weight, are before this Court or that this Court can recognize for the purposes of this motion. Therefore, in order fully to understand the dispute involved in this motion, it is necessary to set out the factual dispute between the parties.

The defendant avers that this entire controversy grew out of an Internal Revenue Service investigation conducted by IRS Special Agent William Kostrzewski, Jr., into the conduct of one of the defendant's patients. Kostrzewski visited the defendant's office in order to enlist the defendant's cooperation in the investigation by permitting Kostrzewski to examine one of the defendant's patient's files. During the conversation between Kostrzewski and the defendant, Kostrzewski placed some of his own papers on the defendant's desk, which also contained the patient files on the person under investigation by Kostrzewski. After the defendant refused Kostrzewski's request for assistance, Kostrzewski gathered his own papers from the defendant's desk along with the patient files and began to exit the defendant's office. Fearful that his patient's files were in jeopardy of being taken, the defendant then forcibly retook the patient files from Kostrzewski. Shortly thereafter, Kostrzewski left without the patient's files.

Kostrzewski later filed a complaint against the defendant, accusing him of committing a forcible assault upon a federal employee engaged in the performance of his duties in violation of 18 U.S.C. § 111 (1976). The defense counsel then informally discussed the possibility of disposing of this matter without a trial on the merits with an Assistant United States Attorney who stated he would agree to a deferred prosecution plan. The defendant rejected this proposal because he believed he had not violated any law. Consequently, the Assistant United States Attorney submitted the matter to the federal grand jury for this district for its consideration.

During the course of the grand jury's investigation, the defendant voluntarily testified before the grand jury. According to the defendant, after he offered his testimony, a "clamor" arose within the grand jury room from which "because of the volume of the voices within, it was evident that the grand jurors were putting the Assistant United States Attorney to task for accusing Dr. Walker of some wrongdoing." The Assistant United States Attorney then later informed the defense counsel that he was not going to ask the grand jury to vote on an indictment notwithstanding the fact that the grand jury had before it all of the relevant evidence concerning the matter in controversy. Instead, the government filed a bill of information against the defendant, charging him with the use of a threat of force to impede an agent of the Internal Revenue Service in the performance of his duties, a misdemeanor violation of 26 U.S.C. § 7212(a) (1976). After the government filed its bill of information, the defendant filed suit in federal court to require the government to submit the evidence before the grand jury to a vote. The defendant's motion was denied, and he has filed an appeal of that decision, rendered by a different court of this district, to the Fifth Circuit Court of Appeals.

The government contends most of the facts set out by the defendant are wholly irrelevant to the issues presented by this motion and responds to the factual contentions made by the defendant only for the purpose of setting the record straight.

According to the government, agent Kostrzewski went to the defendant's office already possessing certain documents previously furnished to Kostrzewski by one of the defendant's employees. These documents pertained to the bills that had been paid to the defendant by one of his patients who was then under investigation by the IRS, and the documents did not contain any medical information relating to that, or any other, patient of the defendant's. The defendant's employee had provided Kostrzewski with the documents but declined to sign an affidavit concerning these bills prepared by Kostrzewski without the defendant's permission. The employee orally informed Kostrzewski, however, that the information found in the affidavit was accurate.

Kostrzewski met with the defendant at the request of the defendant's employee who had previously provided Kostrzewski with the material he already possessed. Kostrzewski did not request any additional documentation from the defendant during this meeting and, particularly, did not request to obtain or see any of the defendant's patient's medical files. When he was preparing to leave the defendant's office, Kostrzewski gathered only his own papers that he had brought with him to the defendant's office and took none of the medical files or records of any of the defendant's patients. The defendant then took from Kostrzewski the documents that had been provided to Kostrzewski by the defendant's employee as well as the affidavit Kostrzewski had prepared in his own handwriting.

The government also disputes several of the defendant's contentions regarding the events that occurred after Kostrzewski left the defendant's office. The government denies that Kostrzewski himself filed the complaint against the defendant. Moreover, the government states that the grand jury began its investigation into this matter, and the first witness testified before that grand jury, before the Assistant United States Attorney and defense counsel began any negotiations or discussions as to whether this matter could or should be resolved informally, and prior to the entry into this case of the present defense counsel. The government also disputes the defendant's contention that there is no additional evidence to support the charge set out in the bill of information and also states that while the government did at one time represent to the defendant that the grand jury had all the relevant evidence before it, the government no longer holds that position. Finally, the government argues that the defendant's conclusions regarding the subject matter and substance of the "clamor" that arose within the grand jury's chambers are sheer speculation, as is the defendant's opinion that the failure of the grand jury to return a true bill after voting on the question would have disposed of this case.


The defendant's first argument proceeds in four basic steps. First, the use of force to impede the efforts of an Internal Revenue Service officer in the discharge of his duties constitutes a felony violation of 26 U.S.C. § 7212(a) but the obstruction of an IRS agent by only the threat of force constitutes only a misdemeanor violation. Second, proof that the defendant used force to impede Kostrzewski, irrespective of whether the defendant also employed the threat of force to impede Kostrzewski, by itself prevents the government from obtaining a conviction under the misdemeanor provisions of § 7212(a) because, as a matter of statutory interpretation, the phrase in § 7212(a) "only by threats of force" automatically elevates a defendant's crime from a misdemeanor to a felony whenever any proof of the use of force is established and thereby erases any misdemeanor conviction otherwise obtainable through proof of the threat of force alone. Third, the evidence is indisputable that the defendant actually used force against Kostrzewski. Therefore, this difference between what the government can and must demonstrate at trial to obtain a misdemeanor conviction and what the evidence at trial will invariably establish constitutes a "variance" requiring dismissal of the outstanding bill of information. This argument is flawed in several respects.


The defendant argues that the outstanding bill of information must be dismissed because "the probata cannot possibly support the allegata if this case is brought to trial." Defendant's Motion to Dismiss Information at 6. This variance requires dismissal because the proof at trial will necessarily establish that the defendant committed a felony which cannot be charged by bill of information.1 This Court must deny the defendant's motion on this ground because it is not ripe for consideration at this time.

Rule 12(b) of the Federal Rules of Criminal Procedure permits a defendant to raise by a pretrial motion "any defense, objection, or request which is capable of determination without the trial of the general issue." Under Rule 12(b), "a defense is thus `capable of determination' if trial of the facts surrounding the commission of the alleged...

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