United States v. Weingartner

• Decision Date: 04 October 1979
• Docket Number: Crim. No. 79-332.
• Citation: 485 F. Supp. 1167
• Parties: UNITED STATES of America v. George WEINGARTNER, Defendant.
• Court: U.S. District Court — District of New Jersey

485 F. Supp. 1167

UNITED STATES of America v. George WEINGARTNER, Defendant.

Crim. No. 79-332.

United States District Court, D. New Jersey, Criminal Division.

October 4, 1979.

Warren S. Robins, Sp. Atty., Newark Strike Force, Robert J. DelTufo, U. S. Atty., D. New Jersey, Newark, N. J., for plaintiff.

Leonard Meyerson, Miller, Hochman, Meyerson & Schaeffer, Jersey City, N. J., for defendant.

OPINION

COOLAHAN, Senior District Judge.

Defendant George Weingartner is charged in this three-count indictment with violations of 18 U.S.C. § 922(h)(1),¹ which makes unlawful the receipt of firearms shipped or transported in interstate commerce by a person under indictment for an offense punishable by imprisonment exceeding one year. Specifically, it is alleged that defendant received firearms (previously in interstate carriage) during December, 1977 (Count I), May, 1978 (Count II), and June, 1978 (Count III); and, that at those times, defendant was under indictment in this District for violations of 18 U.S.C. §§ 371, 1503, 2512(1)(a),² (Criminal No. 74-313, hereinafter "1974 indictment").

Presently before the Court is defendant's omnibus pre-trial motion, F.R.Crim.P. 12(b). Defendant moves that we dismiss the instant indictment, hold a Franks hearing³ on the truthfulness of certain portions of the search warrant affidavit, and suppress evidence seized pursuant to various warrants based on that affidavit. Defendant also requests a bill of particulars, wherein he principally seeks information concerning the Government's decision to dismiss the 1974 indictment.

Most of the facts pertinent to consideration of the motions sub judice relate to the history of proceedings under the 1974 indictment. On Friday, September 28, 1979, on the Government's motion pursuant to F.R.Crim.P. 48(a), this Court (per my Brother, The Honorable H. Curtis Meanor) signed an Order dismissing the 1974 indictment against Weingartner. It is uncontested that the reason asserted therefor was the unavailability of key Government witnesses. We also take note of defendant's contention that on or about June 26, 1979, the Office of the United States Attorney declared that it did not intend to pursue prosecution of one of Weingartner's co-defendants under the 1974 indictment.⁴

During the late spring and summer of 1979, Weingartner voluntarily testified five times before the grand jury in connection with this and other somewhat related investigations. Each time defendant appeared, he was duly informed that he was a target of the investigation(s), and he was further informed of his applicable rights. On August 16, 1979, in pertinent parts, Weingartner testified:

"Mr. Weingartner We have all talked about indictment 74-313 here. I was indicted in 1974, and have not asked for one postponement. That's why I'm so concerned about a Grand Jury because at that time, unaware that I was that we could speak before a Grand Jury like I am today, I just went down and refused to answer questions and we got indicted and yet this indictment, and I am sure Mr. Robins the prosecutor knows about it and everyone else, is going to be dismissed. Sic.

"Mr. Robins Just to make the record, Mr. Robins does not know whether the indictment will be dismissed."

Appendix to the Government's Brief in Opposition to Defendant's Various Pre-Trial Motions (hereinafter "Gov't Br., App."), Transcript of Grand Jury Proceedings, August 16, 1979, at 42.

It is also noteworthy that the record substantiates the Government's assertion that Weingartner never challenged the validity of the 1974 indictment. See Gov't Br., App., Affidavit of Warren S. Robins, Special Attorney, ¶ 3. Indeed, the docket of Criminal No. 74-313 (and that of a related case, Criminal No. 74-314, in which Weingartner was not a co-defendant,) reveal that the delay in bringing Criminal No. 74-313 to trial was occasioned by numerous pre-trial motions, competency and taint hearings, and subsequent stays and appeals to the Third Circuit.

The following seemingly important events also warrant our attention. During his initial grand jury appearances, Weingartner expressed a desire to play his tape recordings of certain conversations. On August 2, 1979, he indicated that he had five tapes he wished the grand jury to hear, one of which contained a conversation between Weingartner and two (formerly undercover) Government Agents investigating this and other suspected offenses. In order to avoid wasting the grand jurors' time, the foreman directed that Weingartner first play his tapes for the prosecuting attorneys in their office, so that the prosecutors could preliminarily assess (and thereafter advise the grand jury of) the audibility and relevancy of the tapes. Gov't Br., App., Transcript of Grand Jury Proceedings, August 2, 1979, at 24-27.

After initially failing to make such arrangements, Weingartner was again directed by the foreman of the grand jury to do so. Gov't Br., App., Transcript of the Grand Jury Proceedings, August 16, 1979, at 9-12. On August 21, 1979, Weingartner, accompanied by one Richard DeScissio, came to the prosecutor's office where Weingartner played several tapes in the presence of the prosecuting attorney, Mr. DeScissio, and the two (formerly undercover) Government Agents. Defendant initially objected to playing his tapes in the presence of the two Government Agents (who were supposedly parties to some of the recorded conversations), but eventually he agreed to do so. Gov't Br., App., Transcript of Grand Jury Proceedings, August 23, 1979, at 33.

Each of defendant's motions shall be considered in turn.

I. MOTION TO DISMISS THE INDICTMENT

Defendant makes a four-pronged attack on this concededly facially valid indictment. First, he urges that 18 U.S.C. § 922(h)(1) is unconstitutional as applied. Second, he asserts that the prosecutor's failure to inform the grand jury of the dismissal or potential dismissal of the underlying 1974 indictment constituted gross usurpation of the discretionary power of the grand jury not to return an indictment. Third, even if the prosecutors' actions do not warrant dismissal, defendant further argues that "fundamental fairness" requires that the Court quash the instant indictment because it was returned after the dismissal of the underlying indictment. Finally, defendant contends that the presence of the two formerly undercover Government Agents during the preliminary playing of Weingartner's tapes constituted an unauthorized disclosure of a grand jury proceeding in violation of Rules 6(d), 6(e), F.R.Crim.P. Each of his arguments shall be considered seriatim.

a. Constitutionality of 18 U.S.C. § 922(h)(1) As Applied

Defendant offers a triad of theories supporting his argument that this statute is unconstitutional as applied. Only two of his theories, however, require complete textual consideration:⁵ first, that the statutory scheme operates to deny Weingartner equal protection; and, second, that the statute contains an irrebuttable presumption.

1. Equal Protection

Unlike the Fourteenth Amendment, the Fifth Amendment does not contain an express Equal Protection Clause. The fundamental principle of equal protection under the law, however, is inherent in the Fifth Amendment's Due Process Clause. Mathews v. De Castro, 429 U.S. 181, 182 n. 1, 97 S.Ct. 431, 432 n. 1, 50 L.Ed.2d 389 (1976). As stated in Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964): "while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is `so unjustifiable as to be violative of due process.'"⁶

Thus, although the protections afforded by the Fifth and Fourteenth Amendments "are not always coextensive," Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976), equal protection challenges to federal laws and regulations generally have been tested with the standards developed under the Equal Protection Clause of the Fourteenth Amendment. See, e. g., Shapiro v. Thompson, 394 U.S. 618, 642-43, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); United States v. Wynde, 579 F.2d 1088, 1093 (8th Cir.), cert. denied, 439 U.S. 871, 99 S.Ct. 204, 58 L.Ed.2d 184 (1978); United States v. Craven, 478 F.2d 1329, 1338-40 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973); United States v. Thoresen, 428 F.2d 654, 658 (9th Cir. 1970).

Under settled equal protection doctrine, a statute that neither impermissibly infringes on the exercise of a fundamental right nor distinctly disadvantages a suspect class of persons is upheld so long as there is any rational basis underlying the statutory scheme.⁷ E. q., Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312 & nn. 3-4, 96 S.Ct. 2562, 2566 & nn. 3-4, 49 L.Ed.2d 520 (1976); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 1287, 36 L.Ed.2d 16 (1973); Hurtado v. United States, 410 U.S. 578, 590, 93 S.Ct. 1157, 1164, 35 L.Ed.2d 508 (1973). This rational basis test "does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all. . . . It is enough that the State's action be rationally based and free from invidious discrimination." Dandridge v. Williams, 397 U.S. 471, 486-87, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970) (citation omitted). It "employs a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one." Massachusetts Bd. of Retirement v. Murgia, supra, 427 U.S. at 314, 96 S.Ct. at 2567. Thus, the challenged statute will not be overturned "unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purpose that the Court can only conclude that the legislature's actions were irrational." Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979).

Defendant recognizes that earlier...