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UNITED STATES v. SMITH
October 23, 1962
UNITED STATES OF AMERICA, PLAINTIFF,
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.
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
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,
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
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
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