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UNITED STATES v. TANNER

December 1, 1967

UNITED STATES OF AMERICA
v.
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.

          MEMORANDUM OPINION

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 statutes.*fn1

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.

1. Motion to Dismiss

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 subsequent 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 without merit.

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 Government's case.

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 Cir. 1964).

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 provides:

  "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 trial."

The Advisory Committee's Note accompanying the amendment cites the Schaffer and Barton cases as reasons for the rule, and states:

  "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 this time.

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

The defendants seek to discover and inspect ten categories of items. The Government has indicated that it does not possess any written or transcribed oral statements given or made by the moving defendants to agents of the Government. But pursuant to Rule 16(b) of the Criminal Rules,*fn7 we direct the Government to permit copying and inspection of all documents turned over by the moving defendants to agents of the Government during the course of the investigation leading to this indictment. Even though defendants make no showing of "materiality" or "reasonableness," these items, if any exist, very likely would be material to the instant charges, and fundamental fairness requires that the defendants have access to them. As recognized by the Advisory Committee's Note to the amended Rule 16, the defendants are not obliged to specify with particularity the documents sought, if they are unaware of what particular items the Government may possess.

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 ...


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