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UNITED STATES v. SMITH

October 23, 1962

UNITED STATES OF AMERICA, PLAINTIFF,
v.
EVERETT A. SMITH, AKA "WARPY," AKA "SMITTY"; ENOCH F. VEAZEY, AKA "POSSUM"; ABRAHAM KAUFFMAN, AKA "ABE"; AND WALTER P. GROESSER, DEFENDANTS.



The opinion of the court was delivered by: Juergens, District Judge.

    An eleven count indictment was returned against the defendants Everett A. Smith, aka "Warpy," aka "Smitty"; Enoch F. Veazey, aka "Possum"; Abraham Kauffman, aka "Abe"; and Walter P. Groesser.

Count I charges all of the defendants with violation of Section 1084, Title 18 United States Code.

Counts II and III charge defendant Smith with violation of Section 1084, Title 18 United States Code.

Counts IV and V charge the defendant Smith with the violation of Section 1952, Title 18 United States Code.

Count VI charges the defendant Veazey with violation of Section 1084, Title 18, United States Code; and Count VII charges the same defendant with violation of Section 1952, Title 18 United States Code.

Count VIII charges the defendant Kauffman with violation of Section 1084, Title 18 United States Code; and Count IX charges this defendant with violation of Section 1952, Title 18 United States Code.

Counts X and XI charge the defendant Groesser with violation of Section 1084, Title 18 United States Code.

Defendant Smith filed his motions for bill of particulars; to suppress evidence; for production of documentary evidence and objects under Rule 17(c) of the Federal Rules of Criminal Procedure, Title 18 U.S.C.; for discovery and inspection under Rule 16, Title 18 U.S.C.; for severance, to strike; and to dismiss the indictment.

The motions will be considered in order.

The purpose of a bill of particulars is to inform the defendant of the crime for which he must stand trial. It is not to be used to compel the disclosure of how much the government can prove and how much it cannot, nor to foreclose the government from using proof it may develop as the trial approaches. The rule is that if a defendant is not sufficiently informed by an indictment of the nature and cause of the accusations made against him and is fearful that upon trial he will be surprised by the evidence of the government, he can apply for a bill of particulars which the trial court, in the exercise of a sound legal discretion, may grant or refuse as the ends of justice require. Mellor v. United States, 8 Cir., 160 F.2d 757.

Discovery in criminal proceedings is not comparable to discovery in civil cases because of the nature of the issues, the danger of intimidation of witnesses and the greater danger of perjury and subornation of perjury. The defendant must find his compensation in the presumption of innocence and in the high burden of proof which the prosecution must meet. United States v. Malinsky, 1956, D.C., 19 F.R.D. 426.

The indictment here reveals that the charges against the defendant are pleaded in detail and the details pleaded are sufficient to give him notice of the charges against which he is to defend.It is likewise sufficient to enable him to plead acquittal or conviction in bar of any future prosecution for the same offense. The acts for which the charges are made are set out at length. Careful scrutiny of the indictment leads to the conclusion that it is sufficient and that a bill of particulars is not warranted. The motion for bill of particulars will be denied.

Next, defendant Smith moves to suppress as evidence all items seized from his person and from his 1960 Parkwood Chevrolet station wagon on November 15, 1961 and to suppress all evidence obtained as a result of leads supplied by such search and seizure for the reasons that the two warrants issued on November 14, 1961 for the searches and seizures were invalid in that they weren't issued upon probable cause; that the affidavits upon which they were based did not state sufficient facts to establish probable cause; that the searches and seizures were unlawful and not incident to an arrest and in violation of the Fourth and Fifth Amendments of the Constitution of the United States. The defendant further asks that the United States be ordered to return the items seized.

On November 14, 1961 United States Commissioner Elvira Fellner issued a search warrant directed to Frank R. Hudak, or Donald B. Yerly, or any other special agent of the Intelligence Division of the Internal Revenue Service, commanding them to search the person named in the warrant, namely, John Doe, alias "Warpy," alias Everett Smith, for property specified in the warrant and further ordered that the search be conducted in the daytime and if the property be found to seize it, leaving a copy of the warrant and a receipt for the property taken, and to prepare a written inventory of the property seized, to return the warrant and bring the property before the commissioner within ten days of the date of issuance. The property was described in the warrant as bookmaking records and wagering paraphernalia, consisting of bet slips, run-down sheets, recap sheets, books, memoranda, tickets, pads, tablets, papers, sporting events pool cards, racing forms, scratch sheets, money used in or derived from a wagering operation, and divers other wagering paraphernalia.

On the same day a search warrant of similar import was issued by the same commissioner and commanded the search of one 1960 white Chevrolet station wagon, bearing 1961 Illinois license number EL 7220.

According to the returns, Donald B. Yerly executed both search warrants and made the search as commanded by each, prepared an inventory of the property taken and returned it to the commissioner.

Each of the search warrants was issued pursuant to the affidavits of various special agents of the Intelligence Division of the Internal Revenue Service of the United States, wherein they set forth facts upon which the requests for search warrants were made.

The court has examined the various affidavits, the search warrants and the returns thereof and finds that the returns of the searches were proper, that the search warrants were properly issued and that the affidavits state facts which fully justify the issuance of the warrants.

The information contained in the affidavits is based on personal knowledge and observation of the agents making them; examination of the affidavits discloses that there was probable cause for the issuance of the warrants.

The defendant's motion to suppress will be denied.

In his motion for production of documentary evidence and objects under Rule 17(c), Federal Rules of Criminal Procedure, Title 18 U.S.C. the defendant moves the court for an order directing that all books, papers, documents and objects designated in the attached subpoena be produced before the court at a time prior to trial and further directing that upon their production the defendant and his attorneys be permitted to inspect and copy said books, papers, documents and objects.

By his subpoena the defendant asks for (a) all books, papers, documents and objects seized from Everett A. Smith and from his 1960 Parkwood Chevrolet station wagon on November 15, 1961; (b) all books, papers, documents and objects seized from defendants Enoch F. Veazey, Abraham Kauffman and Walter P. Groesser on November 15, 1961, or on any other date; and (c) all books, papers, documents and objects obtained by the government from others which the government presented to the grand jury, expects to use as evidence at the trial, or is material to the trial or defense of this case.

Carl W. Feickert, United States Attorney in and for the Eastern District of Illinois, filed his motion to modify or quash parts of the subpoena. The United States Attorney asserts he is willing to produce in court on the day of trial all books, papers, documents and objects seized from Everett A. Smith or from his automobile and all books, papers, documents and objects which originally belonged to the defendant Smith but denies that he is entitled to the books, papers, documents and objects seized from his co-defendants.

Rule 17(c) is not a pretrial discovery procedure but is designed as an aid in obtaining evidence which a defendant can use at the trial. In allowing inspection, the trial court has much discretion, and the rule has been construed as sanctioning inspection only when good cause is shown. United States v. Malizia, 1957, D.C., 154 F. Supp. 511. The fact that subpoenaed material may be evidentiary and subject to production at the trial under a subpoena duces tecum does not mean that the defendant is entitled as a matter of right to pretrial production and inspection under the rule. Whether pretrial production and inspection will be required is discretionary.

While the court should be liberal in criminal actions in holding documents to be evidentiary for the purpose of permitting their production at the trial by subpoena, pretrial production and inspection, however, is a different matter, and it should be conditioned on some showing by the defendant that the subpoenaed documents have evidentiary, rather than discovery, value to him.

The defendant has failed to show that the materials sought under the subpoena are evidentiary in nature, has not set forth in his motion any reasonable grounds why the subpoenaed materials should be produced and consequently has presented no showing of good cause, which is a necessary and indispensable criterion in a request for pretrial production of documents under Rule 17(c).

The subpoena discloses that the defendant is on a fishing expedition by which he hopes to net all of the government's evidence, contrary to the purpose of Rule 17(c).

The court will in its discretion grant the motion of the United States Attorney to quash the subpoena as it pertains to pretrial discovery and the subpoena requesting pretrial discovery will be quashed.

Rule 16 of the Federal Rules of Criminal Procedure, Title 18 U.S.C. provides as follows:

    "Upon motion of a defendant at any time after
  the filing of the indictment or information, the
  court may order the attorney for the government
  to permit the defendant to inspect and copy or
  photograph designated books, papers, documents or
  tangible objects, obtained from or belonging to
  the defendant or obtained from others by seizure
  or by process, upon a showing that the items
  ...

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