US v. Risk, Cause No. IP 86-106-CR.

• Citation: 672 F. Supp. 346
• Decision Date: 09 February 1987
• Docket Number: Cause No. IP 86-106-CR.
• Parties: UNITED STATES of America, Plaintiff, v. John T. RISK, Defendant.
• Court: United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)

672 F. Supp. 346

UNITED STATES of America, Plaintiff, v. John T. RISK, Defendant.

Cause No. IP 86-106-CR.

United States District Court, S.D. Indiana, Indianapolis Division.

February 9, 1987.

U.S. Atty., Indianapolis, Ind., for plaintiff.

Don A. Tabbert, Philip R. Melangton, Jr., Indianapolis, Ind., for defendant.

ENTRY

BARKER, District Judge.

This matter is before the court on the following ten motions filed by the defendant: 1) the motion for an evidentiary hearing on all other motions, 2) the request for oral argument on all other motions, 3) the request for notice of the Government's intention to use any evidence that is discoverable under Rule 16 of the Federal Rules of Criminal Procedure, 4) the motion to produce, 5) the motion to dismiss, 6) the motion for a bill of particulars, 7) the motion to suppress evidence, 8) the motion for discovery and inspection, 9) the motion for disclosure of Brady information or, alternatively, the motion for in camera inspection of such information, and 10) the motion to continue the February trial date. The motions have been fully briefed by the parties.

The court, being duly advised in the premises, now 1) DENIES IN PART and GRANTS IN PART the motion for an evidentiary hearing, 2) DENIES the request for oral argument, 3) DENIES for mootness the request for notice of intent to use Rule 16 evidence, 4) DENIES the motion to produce, 5) GRANTS IN PART and DENIES IN PART the motion to dismiss, 6) DENIES IN PART and GRANTS IN PART the motion for a bill of particulars, 7) withholds a ruling on the motion to suppress, pending an evidentiary hearing, 8) DENIES the motion for discovery and inspection, 9) DENIES the motion for disclosure of Brady information and the alternative motion for in camera inspection of such information, and 10) DENIES the motion for continuation of the February trial date.

The reasons for the court's rulings are set forth in the attached memorandum.

Memorandum

I. Background

On October 3, 1986, the Grand Jury indicted the defendant, John T. Risk, for twice failing to file currency transaction reports and willfully aiding, inducing, and causing the failure to file those reports, for twice knowingly and willfully concealing a material fact from the Internal Revenue Service, and for making a false entry in a bank statement with intent to defraud the bank. The indictment charges the defendant with those violations in five separately enumerated counts.

From the briefs submitted by the parties, it appears that the charges are based at least partially on the following facts: On December 5, 1985, a person who called himself Steven Baker, but who in fact was Special Agent Steve Weida of the Internal Revenue Service (hereinafter referred to as "Baker"), entered the main branch of Merchants National Bank. Baker presented a check drawn on Merchants National Bank by Raffensperger, Hughes & Co., Inc., and payable to Steven A. Baker in the amount of $58,677.33 to be cashed. Baker was given $9,677.33 in currency and five cashier's checks for $9,800.00 each. Baker than cashed each of those cashier's checks at five other branches of Merchants National Bank on that same calendar day.

Similarly, on December 24, 1985, the same Steven A. Baker entered the main branch of Merchants National Bank and wrote a check on his own account payable to "cash" in the amount of $15,000.00. Baker was given $9,000.00 in currency and a cashier's check for $6,000.

There is no indication in the present record of what specific role the defendant, John T. Risk, played in these transactions. For example, the court has no knowledge of the defendant's position at the bank or the defendant's knowledge of the specific transactions conducted by Baker. However, because these facts are unnecessary to resolve the pending motions, the court now turns to the motions and discusses each of them in turn.

II. Discussion

A. Motion for Evidentiary Hearing

The defendant moves the court for an evidentiary hearing on all of the other motions. The Government did not respond to this motion. The court concludes that an evidentiary hearing would not be helpful in resolving most of the motions, but is required in resolving the motion to suppress. Therefore, the court DENIES this motion as an independent request, but GRANTS the motion for an evidentiary hearing with respect to the motion to suppress. The motion to suppress is discussed in more detail below.

B. Request for Oral Argument

The defendant requests an opportunity to orally argue the pre-trial motions he has submitted. The Government did not respond. The court concludes that oral argument would not be helpful in resolving the motions; therefore, the defendant's request is DENIED.

C. Request for Notice Regarding Rule 16 Information

The defendant requests that the Government give notice of its intention to use any evidence that the defendant may be entitled to discover under Rule 16 of the Federal Rules of Criminal Procedure. The defendant further requests that the Government specify and identify every item of evidence that it intends to use in its case in chief.

In response, the Government states that it has provided, and is continuing to provide, available material that is discoverable under Rule 16. The Government has also put the defendant on notice that all such material may be offered into evidence at trial.

In reply, the defendant provides no authority suggesting that the Government's response is inadequate, but merely asserts that a specific listing of each evidentiary item is "vital and important to his receiving a fair trial." The court holds to the contrary, finding that the Government's response fully satisfies the requirements of Rule 16. Therefore, the defendant's request for Rule 16 information and materials is DENIED for mootness, and the request for additional specificity on the part of the Government is overruled.

D. Motion to Produce

The defendant moves the court for an order requiring the Government to produce grand jury transcripts of likely Government witnesses, investigative reports from such witnesses, and grand jury transcripts and investigative reports from other persons that relate to evidentiary and factual matters that can be used by the defendant in his case in chief. In support of the motion, the defendant acknowledges that there is no requirement under the Jencks Act or the Federal Rules of Criminal Procedure requiring the Government to produce the requested information before any witness has testified. However, the defendant argues the pre-testimony disclosure is appropriate in this case because "the quantity of documents is very substantial" and because disclosure would be consistent with the spirit of the decision in United States v. Holmes, 722 F.2d 37 (4th Cir.1983).

In response, the Government asserts that all transcripts and investigative reports will be provided in due course and in compliance with the Jencks Act and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). And, in reply, the defendant argues that an assurance that material will be provided in "due course" is not sufficient to give the defendant confidence that the material will ever be produced.

The Jencks Act is clear:

In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

18 U.S.C. § 3500(a) (1982). This language leaves no room for judicial compulsion of pre-trial discovery of Jencks Act material. The Supreme Court stated as much in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959): "the detailed particularity with which Congress has spoken has narrowed the scope for needful judicial interpretation to an unusual degree. The statute clearly defines procedures and plainly indicates the circumstances for their application." Id. at 349, 79 S.Ct. at 1223. Thus, the court denies deny the defendant's motion to produce the materials before trial.

The case cited by the defendant, United States v. Holmes, 722 F.2d 37 (4th Cir. 1983), is consistent with this decision. In Holmes, the defendants were charged with conspiring to distribute cocaine and to possess cocaine with the intent to distribute. The defendants sought to obtain Jencks Act materials before the trial, and the district court ordered the material to be produced the day before trial. When produced, the material turned out to be "a stack of paper at least eight inches thick, including a thousand pages of testimony obtained from ten witnesses, a forty-five minute tape recording and other documents." 722 F.2d at 40. The defendants were given a sixteen minute recess following the testimony of the Government's first witness on the first day of trial, before being required by the court to begin cross-examination. The defendants were convicted on all counts.

The Court of Appeals reversed the convictions, concluding that the defendants were denied their rights under the Jencks Act, stating that "the Jencks Act contemplates not only the furnishing of the statement of a witness but a reasonable opportunity to examine it and prepare for its use in the trial." Id. at 40.

The Holmes decision could lead one to conclude that, in cases where the material being produced is voluminous, it should be produced more than one day before trial. The Holmes court did state: "In cases where there are many statements or where the bulk of witness statements is large, the government ... may even be ordered to deliver material at an earlier time so as to avoid lengthy delays before the beginning of cross-examination." Id. at 40.

However, such a conclusion is unwarranted when this language from Holmes is considered in context. Immediately before the above-quoted...