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
In a given case in determining whether discretion should be
exercised in favor of or against pretrial production and
discovery under Rule 17(c), it is necessary to keep in mind
that although Rule 17(c) and Rule 16 have
related purposes, they have different functions and
applications. One of the practical objectives of 17(c) is to
provide a means for sifting, in advance of trial, documents to
be offered in evidence where they are multitudinous. A guard
must be established against action under Rule 17(c) which,
contrary to its spirit and purpose, is aimed at discovery. The
purpose of a subpoena duces tecum is to enable a party to
obtain evidence at the trial to use in support of his case and
not to pry into the case of his adversary.
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
sought may be material to the preparation of his
defense and that the request is
reasonable. * * *"
This rule provides for the discovery of documents or tangible
objects, obtained from or belonging to the defendant or
obtained from others by seizure or by process, after a showing
that the request is reasonable and that the items sought may
be material to the preparation of the defendant's case. United
States v. Louie Gim Hall, D.C., 18 F.R.D. 384.
Before a defendant is entitled to inspection and copying or
photographing of designated books, papers, documents, etc.,
there must first be a showing that the items requested are
material and that the request is reasonable. In order to make
such a showing, something more is required under the rules
than mere allegations on the part of the defendant.
The motion here requests all books, papers, documents and
objects, obtained from or belonging to the defendant or
obtained from others by seizure or by process. It does not
designate any documents or things but is a mere naked request
for all documents. The defendant has made no showing that his
request is reasonable as is required by the rules. He seeks to
have the door opened in order to discover the government's
evidence and the details of the government's case. He is not
entitled to such evidence except upon a showing that the ends
of justice cannot otherwise be served. Here there has been no
such showing. United States v. Taylor, 1960, D.C., 25 F.R.D.
The defendant's motion for discovery and inspection under
Rule 16 will be denied.
The defendant Everett A. Smith has filed his motion for
severance, wherein he asks for a separate trial from the other
defendants and asserts in support thereof that evidence in
this cause may
be introduced by the government which may be inadmissible
against this defendant but which may be admissible against one
or more of his co-defendants, all to the prejudice of this
defendant; that the jury will be unable to distinguish the
alleged acts of this defendant from the alleged acts of his
co-defendants; and that this defendant, as well as his
codefendants, will obtain a fairer and more impartial trial if
he is tried alone.
Rule 14 of the Federal Rules of Criminal Procedure, Title 18
"If it appears that a defendant or the
government is prejudiced by a joinder of offenses
or of defendants in an indictment or information
or by such joinder for trial together, the court
may order an election or separate trials of
counts, grant a severance of defendants or
provide whatever other relief justice requires."
An application for severance is addressed to the sound
discretion of the court. Opper v. United States, 1954,
348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101. In deciding such
application the court must determine whether the alleged
prejudice to the defendant's being joined and tried with other
defendants overbalances possible prejudice to the government
which might result from a separate trial. United States v.
Dioguardi, 1956, D.C., 20 F.R.D. 10.
Where proof of the charges against all of the defendants is
largely dependent upon the same evidence and the alleged acts
are of the same or similar character, severance should not be
granted except for the most cogent reasons. A trial of many
defendants may be conducted with care and decorum so that the
court may place whatever safeguards commend themselves in its
efforts to afford each defendant a separate and impartial
consideration of his case.
By exercising care in charging the jury and marshaling
evidence at the end of the trial, the trial judge can
materially aid the jury in successfully considering each
defendant separately. United States v. Bonanno, 1959, D.C.,
177 F. Supp. 106
Joinder of defenses and defendants is prescribed by Rule 8
of the Federal Rules of Criminal Procedure, Title 18 U.S.C.
Rule 8 provides in pertinent parts as follows:
"(a) Joinder of Offenses. Two or more offenses
may be charged in the same indictment or
information in a separate count for each offense
if the offenses charged, whether felonies or
misdemeanors or both, are of the same or similar
character or rare based on the same act or
transaction or on two or more acts or
transactions connected together or constituting
parts of a common scheme or plant.
"(b) Joinder of Defendants. Two or more
defendants may be charged in the same indictment
or information if they are alleged to have
participated in the same act or transaction or in
the same series of acts or transactions
constituting an offense of offenses. Such
defendants may be charged in one or more counts
together or separately and all of the defendants
need not be charged in each count.
Where two or more defendants are indicted for a joint
transaction, it is inadvisable to split up the case into many
parts for separate trials in the absence of very strong and
cogent reasons therefore. This is especially true in
conspiracy charges from the very nature of the case. Davenport
v. United States, 9 Cir. 1958, 260 F.2d 591.