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UNITED STATES v. TANNER
December 1, 1967
UNITED STATES OF AMERICA
JOSEPH ALFRED TANNER, LAWRENCE HENRY RICE, JACK ALTER PEARL, ALVIN JUNIOR CUPP, AND WALTER BERYL CHIPMAN, DEFENDANTS.
The opinion of the court was delivered by: Marovitz, District Judge.
Defendants' Pretrial Motions
This is a seven count indictment naming five defendants,
including Joseph Alfred Tanner, Lawrence Henry Rice, Jack
Alter Pearl, Alvin Junior Cupp, and Walter Beryl Chipman. It
essentially arises out of the alleged arson and bombing of the
vessel Howard L. Shaw, in the Calumet Harbor of Chicago, on or
about September 6, 1963. The various defendants are charged
with violating and conspiring to violate a number of federal
The alleged incident apparently arose from a longstanding
labor dispute for control of maritime labor in the Great Lakes
and St. Lawrence Seaway, involving the Seafarers'
International Union of Canada, the Seafarers' International
Union of North America, the Canadian Labor Congress, the
Canadian Maritime Union, and the Upper Lakes Shipping Co.,
Ltd. It appears from the papers supplied to this Court, that
defendant Cupp may be a Government witness in the case.*fn2
The other four defendants have jointly filed nine separate
pretrial motions, and individually the defendants press five
additional motions. All of the motions have been briefed by
the parties and are now ready for decision. We will consider
the motions at this time in seriatim fashion. For ease of
understanding, all of the motions except those specially
indicated have been filed jointly by defendants Tanner, Rice,
Chipman and Pearl.
Twelve separate grounds are asserted in support of this
motion. The first five essentially charge that the indictment
fails to adequately inform the defendants of the charges
against them, fails to charge any acts constituting an offense
against a federal statute, and is void because vague and
indefinite. In our opinion, the arguments are without merit
since each count of the indictment specifically sets forth the
elements of the offenses in the generic terms of the relevant
statutes, and in addition includes explicit facts relating
each of the defendants to the offenses charged. Count I, in
particular, lists 35 "Overt Acts" undertaken in furtherance of
the alleged conspiracy. Although the remaining counts are not
as particularized*fn3, they each constitute "a plain, concise
and definite written statement of the essential facts
constituting the offense charged," as is required by Rule 7(c)
of the Federal Rules of Criminal Procedure. The test of
sufficiency is met if the indictment contains the elements of
the offenses charged, and apprises the defendant of what he
must be prepared to defend against, so that in event of a
prosecution for the same offense, he may plead the instant
indictment in bar. Russell v. United States, 369 U.S. 769, 82
S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Smith,
209 F. Supp. 907 (N.D. Ill. 1962). Each of the counts of the
instant indictment states the approximate date of the alleged
offense, the acts which the defendants are charged with
committing, and the approximate place thereof. Such an
indictment is sufficient, and defendants' allegations are
For the same reasons mentioned above, the seventh ground
relied upon by defendants is rejected. Defendants therein urge
that the indictment merely alleges statutory violations in the
generic language of the statutes, and fails to descend to
particulars, citing for support United States v. Quinn,
365 F.2d 256, 262 (7th Cir. 1966). However, unlike in Quinn, the
instant indictment does sufficiently state the elements of the
offenses charged, and the manner in which they were committed.
Of course, an indictment may be sufficient to withstand a
motion to dismiss, and yet insufficiently inform the defendant
of the specific facts of the alleged offenses. In such cases,
the court may order the Government to supply a bill of
particulars. United States v. Ketchum, 320 F.2d 3, 8 (2d Cir.
1963). The instant defendants have requested such particulars,
and their motion will be considered infra.
In point six, defendant Chipman moves to dismiss based upon
a prior prosecution which did not relate factually to the
instant charges.*fn4 Nevertheless, he contends that the
events alleged in this indictment, which undisputedly occurred
prior to the trial in the other case,*fn5 should have been
charged in the earlier indictment, and that the Government has
demonstrated bad faith in delaying this indictment until 1967.
No authority is cited for this argument. The earlier case
has no factual relationship to the instant one, and defendant
Chipman concedes that double' jeopardy is not an issue. Nor is
any contention made that this indictment is barred by a
statute of limitations. In short, the argument has no basis
and is rejected.
In point eight, and in a separate "Motion to Dismiss Certain
Paragraphs and Counts of the Indictment" filed by defendant
Pearl, and adopted by his co-defendants, the contention is
made that Paragraphs 2 and 6 of Count I, and Counts II and IV,
should be dismissed. Defendants urge that in order to
constitute violations of the statutes mentioned therein, 18
U.S.C. §§ 81 and 1363, the unlawful acts must have
occurred within the special maritime and territorial
jurisdiction of the United States, and that the Calumet Harbor
is within the jurisdiction of Illinois, and not within the
maritime jurisdiction of the United States. Defendants have
submitted certain exhibits in support of their argument.
But these matters need not be decided prior to trial. The
Government must have the opportunity to prove the allegations
made in the indictment. If from the evidence it appears that
defendants' contention is well taken, it may be renewed in a
motion for judgment of acquittal at the close of the
While on the subject, the remainder of the allegations in
the "Motion to Dismiss Certain Paragraphs and Counts of the
Indictment" relate only to defendants' version of the "facts."
We cannot pass on those arguments before hearing the evidence.
At this point there are no "undisputed facts," as defendant so
cryptically characterizes them. The above captioned motion
must be denied.
Point nine contends that the indictment is defective for
failure to allege the required intent to violate the statutes.
The argument is patently without merit, since each and every
count of the indictment, does, in fact, allege the requisite
intent, as defendants themselves can see.
Point eleven challenges Count I as being duplicitous since
it purportedly attempts to charge several separate and
distinct conspiracies and substantive offenses. The short
answer is that Count I charges a continuing conspiracy
beginning on or about April 1, 1963, and "continuing
thereafter until the date of the indictment." Each of the
activities mentioned was alleged to be "a part of the
conspiracy." A continuing conspiracy constitutes only a single
offense and only one offense can be proved by Count I. The
defendants' argument is rejected.
Point 12 charges that Court I is void because it fails to
allege "where" in interstate commerce the activities alleged
in paragraphs one and four took place. It is true that the
indicated paragraphs of Count I generally allege that
defendants transported and traveled in interstate commerce
with certain proscribed purposes, without specifically
asserting where in commerce such activities occurred. But
those omissions do not render the indictment defective. If
anything, they are items to be obtained via a bill of
particulars, and then only if the court, in its discretion,
thinks they are necessary objects of such a motion.
Defendants' objections to Count I are overruled.
Finally, the Government concedes the merit of defendants'
attack on Count Six, which is found in point ten of the motion
to dismiss, and that Count is accordingly dismissed.
Except as to Count Six, all of defendants' reasons in
support of the motion to dismiss are found to be unsupported
in law, and the motion is accordingly denied.
2. Motions to Sever of Defendants Tanner, Rice and Chipman
The above named defendants have moved to sever each of their
cases for trial. Several grounds are asserted. First, on
information and belief, they each allege that one or more
co-defendants has given a written or oral confession or
statement which implicates each of the movants. It is
contended that if said statement is offered in evidence,
although not admissible against any defendant but the one
making it, it would be prejudicial to the other defendants.
Furthermore, the moving defendants might be unable to cross
examine the declarant because of the latter's Fifth Amendment
privilege against self-incrimination.
Although technically, confessions or statements are only
offered in evidence against the declarant, and the judge is
obliged to so instruct the jury, several cases have considered
it reversible error to deny a severance where the effect of
admitting the statement at a joint trial is to indelibly
prejudice the other defendants. As was stated by our Circuit
Court in United States v. Haupt, 136 F.2d 661, 672 (7th Cir.
1943), and still the law today:
"True, as the government asserts, such statements
were offered in evidence only against the
defendant by whom made, and the court instructed
the jury accordingly. A reading of these
statements, however, leaves no room for doubt but
that they were damaging not only as to the
defendants against whom offered but as to all
others. We doubt if it was within the realm of
possibility for this jury to limit its
consideration of the damaging effect of such
statements merely to the defendant against whom
they were admitted. We have equal doubt that any
jury, or for that matter any court, could perform
such a herculean feat."
Other cases adhering to the Haupt rationale have been
Schaffer v. United States, 221 F.2d 17, 19, 54 A.L.R.2d 820
(5th Cir. 1955), Barton v. United States, 263 F.2d 894, 898
(5th Cir. 1959), and Rogers v. United States, 304 F.2d 520, 523
(5th Cir. 1962). See United States v. Boyce, 340 F.2d 418 (4th
But the Haupt severance rule should not be applied
automatically. The circumstances of each case must be examined
to set if the co-defendants are or would be prejudiced by the
proffered statement. For example, in United States v. Miller,
340 F.2d 421, 423 (4th Cir. 1965), the court held that under
the circumstances of the case, a severance was not warranted.
Cf. Carter v. United States, 304 F.2d 881 (5th Cir. 1962).
However, in the instant case, the defendants merely allege
on information and belief that one of their co-defendants has
made a confession. The alleged confessor is not named. From
the material supplied in connection with defendant Pearl's
separate motion to dismiss, discussed in note two supra, it is
reasonable to assume that the defendants suspect defendant
Cupp of having made incriminating statements to the
Government. The Government has not acknowledged or denied that
it either has such a statement or intends to introduce it at
trial. At this stage, we would be unwarranted in granting a
severance on the basis of defendants' unsubstantiated
allegations. However, should the Government intend to
introduce such a statement at trial, we would order its
counsel to submit said statement prior to trial for an in
camera inspection by the Court. Indeed, defendant Chipman has
requested the court to order such an in camera disclosure, and
we will accede to his request. Thus if the Government does
intend to use any such statement at trial, we order it to
submit said statement for an in camera inspection prior to
trial. Our actions in this regard are taken pursuant to the
recent amendment to Rule 14 of the Criminal Rules which
"In ruling on a motion by a defendant for
severance the court may order the attorney for
the government to deliver to the court for
inspection in camera any statements or
confessions made by the defendants which the
government intends to introduce in evidence at
The Advisory Committee's Note accompanying the amendment cites
the Schaffer and Barton cases as reasons for the rule, and
"The purpose of the amendment is to provide a
procedure whereby the issue of possible prejudice
can be resolved on the motion for severance. The
judge may direct the disclosure of the
confessions or statements of the defendants to
him for in camera inspection as an aid to
determining whether the possible prejudice
justifies ordering separate trials. * * *"
The defendants' objection that they might be unable to
cross-examine the potential statement of any defendant will be
considered should the Government submit a statement for an
in camera inspection pursuant to our order.
An additional reason in support of defendants' motion is
that if a co-defendant should elect to become a witness in his
own behalf, the other defendants would be forced to testify or
they would suffer an adverse inference and comparison by the
jury, in violation of their rights under the Fifth Amendment.
However, we are aware of no case law which justifies a
severance upon such grounds. DeLuna v. United States,
308 F.2d 140, 1 A.L.R.3d 969 (5th Cir. 1962), does not support
defendants' position. DeLuna was a joint trial involving
defendants with mutually exclusive defenses. One defendant
testified in his own behalf, and the other did not. The court
held it to be prejudicial error for one defendant's counsel to
comment upon the other defendant's failure to testify, in view
of the circumstances of the case. The issue considered by
DeLuna does not address itself to the defendants' argument. It
merely raises, a problem which could conceivably arise at
sometime in the future. We cannot say, at this stage of the
proceedings, without a showing of real prejudice, that
defendants would suffer any adverse inferences by way of
comparison with a defendant who waives his privilege. To hold
otherwise, might in practice make obsolete the concept of a
joint trial, since in every joint trial
there is the possibility that some defendants would testify,
but not others.
A final argument in support of the motion to sever is the
suggestion by defendants Rice and Chipman that at least one of
the defendants has made exonerative statements, and would be
a necessary witness in their behalf at trial. But they argue,
citing United States v. Echeles, 352 F.2d 892 (7th Cir. 1965),
such defendant may assert his Fifth Amendment privilege,
thereby effectively denying to his co-defendants the benefit
of his favorable testimony.
Rice and Chipman offer nothing to support their arguments.
In Echeles, it appeared on the official record from a prior
trial that a co-defendant had made certain statements tending
to exonerate Echeles. The Echeles doctrine should not be
invoked automatically. Something substantial must be offered to
support a motion premised on Echeles.*fn6 We cannot grant a
severance on the bald assertion by defendants that someone has
made or might make exonerative statements in their behalf.
For all of the above reasons, we deny the motion to sever at
3. Motion of Defendant Chipman to Transfer
Defendant Chipman has moved, pursuant to Rule 21 of the
Criminal Rules, to transfer the trial of this case to the
Southern District of Texas, where he resides. Although he
generally alludes to certain unfair and prejudicial news
publicity which he contends would prevent him from obtaining
a fair trial in this District, he makes no showing that there
was in fact any publicity, or that if there was, it was
prejudicial in any way. Certainly the convenience of the
parties and witnesses would not be served by transferring this
case to Texas, even though it might suit Chipman's personal
convenience. Although Chipman states that he "reserves the
right to put on oral testimony" showing the extent of the
prejudicial publicity herein, we think he should already have
supported his motion by way of particularized affidavit. The
motion to transfer being unsupported by any factual averments,
it accordingly is denied.
Nevertheless, we will allow Chipman to furnish an affidavit
if he desires, and if it includes a sufficient showing of
prejudice, we would be willing to consider a motion for
vacation of our present ruling.
4. Motion for Discovery and Inspection
Even before Rule 16 was amended to allow more liberal
discovery, several courts have allowed defendants to discover
tangible property belonging to them which was in the
possession of the Government, where the material was otherwise
unavailable to the defendant. See e. g. United States v.
Rainey, 10 F.R.D. 431 (W.D.Mo. 1950); Colella v. United
States, 360 F.2d 792 (1st Cir. 1966); United States v. Miller,
249 F. Supp. 59 (S.D.N.Y. 1965). The amended Rule 16(b) does
not contain the former limitation that the material sought
must be obtained from or belong to the defendant. Thus it
appears that in the ...