United States v. Wallace
| Decision Date | 06 July 1967 |
| Docket Number | No. 67 Cr. 392.,67 Cr. 392. |
| Citation | 272 F. Supp. 838 |
| Parties | UNITED STATES of America v. Herbert J. WALLACE, Herman D. Wallace, William J. Huggins, Walter I. Huggins, and William Moore, Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, by John R. Bartels, Jr., Asst. U. S. Atty., New York City, for the United States.
Irving Friedberg, and Murray A. Miller, New York City, for defendant Moore.
The defendant Moore, who is charged in the second count of a three-count indictment with unlawful receipt and possession of money stolen from a bank, 18 U.S.C. § 2113(c), moves pursuant to Rule 16, F.R.Crim.P., for production and inspection of (1) his prior statements to the Government and before the Grand Jury; (2) any similar statements given by his co-defendants; (3) all Jencks Act material pertaining to testimony to be given by Government witnesses at trial; (4) minutes of the Grand Jury which indicted; and (5) severance of Count 2 from the other two counts; and a separate trial.
Since Moore did not testify before the Grand Jury, his application for inspection of his own Grand Jury testimony needs no consideration. With respect to his prior statements to Government agents, in the absence of any showing of need other than his generally-expressed desire to examine such statements "in order to meet and defend his case properly", the Court declines to exercise its discretionary power under Rule 16(a) (1), F.R.Crim.P., to grant such inspection, for the reasons set forth in detail in United States v. Louis Carreau, Inc., 42 F.R.D. 408 (D.C., June 30, 1967). In the event, however, that the Government proposes to offer in evidence at trial, as part of the Government's own direct case-in-chief (as distinguished from using it for cross-examination purposes), any such prior statement made by Moore, the Government is directed to permit inspection by Moore at least one week before commencement of trial.
Inspection of prior statements given by Moore's co-defendants to the Government is denied for failure to make any showing of materiality or reasonableness as required by Rule 16(b), F.R. Crim.P.
Title 18 U.S.C. § 3500 authorizes the Court to order production of Jencks Act material "which relates to the subject matter as to which the witness has testified". (Emphasis added) Since such material need not be produced by the Government until conclusion of the direct testimony at trial of the witness with respect to whom it is sought, Moore's motion for such material at this time is premature and is denied without prejudice to its being renewed during trial.
In asking the Court to inspect the Grand Jury minutes "to determine whether the indictment of the said defendant was based on probable cause", Moore overlooks the fact that an indictment returned by a legally constituted Grand Jury is sufficient to call for a trial on the merits, in the absence of a showing that the Grand Jury had no evidence of probable cause. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); United States v. Ramsey, 315 F.2d 199 (2d Cir.), cert. denied, 375 U.S. 883, 84 S.Ct. 153, 11 L.Ed.2d 113 (1963). No facts are offered here in support of the motion, which appears to be based solely on the hope of finding lack of evidence upon examination of the minutes. Inspection upon such a flimsy, speculative basis would destroy the traditional secrecy attaching to the proceedings of the Grand Jury. See Rule 6(e), F.R.Crim.P. There being no showing of the existence of grounds for inspection, the motion is denied. The defendant's rights will be fully protected at trial.
The defendant's motion for a severance of Count 2 from the other two counts of the indictment is equally frivolous. As a general rule persons joined in the same indictment must be tried together, at least where a substantial...
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