of the Government have been complied with voluntarily by the
Government. Likewise, copies of the report of the scientific
tests made on the drug described in the indictment and any waiver
of rights forms (Form 9-N) signed by the defendant have been
produced for the defendant. Three contested requests remain. In
request 3, the defendant asks that he be permitted to inspect and
copy all written statements concerning himself made by any of his
codefendants to the Government. Such statements are not
discoverable under Rule 16 of the Federal Rules of Criminal
Procedure, United States v. Westmoreland, 41 F.R.D. 419, 427
(S.D.Ind. 1967), or on any other basis, Morgan v. United States,
380 F.2d 686, 698-699 (9th Cir. 1967). Request 3 is therefore
In request 5, defendant Rattet asks for a list of witnesses
whom the Government expects to call at trial, and in request 6,
for copies of any F.B.I. arrest and conviction records of those
witnesses. Neither request is permitted under Rule 16 or on any
other basis except by statute in capital cases. Dean v. United
States, 265 F.2d 544 (8th Cir. 1959); United States v. Margeson,
261 F. Supp. 628, 629 (E.D.Pa. 1966); Hemphill v. United States,
392 F.2d 45, 48 (8th Cir. 1968). Requests 5 and 6 are therefore
MOTION FOR SEVERANCE
Defendant Rattet has moved for a severance. He does not contest
his joinder with the codefendants which clearly is proper here
under Rule 8(b) of the Federal Rules of Criminal Procedure since
the defendants are alleged to have participated in the same act
or transaction constituting an offense. He asserts, however, that
the joinder will prejudice his right to a fair trial.
Severance under Rule 14 of the Federal Rules of Criminal
Procedure is within the discretion of the trial court. United
States v. Kahn, 381 F.2d 824, 838 (7th Cir. 1967); Opper v.
United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101
(1954). Where proof of the charges against the defendants is
dependent on the same evidence, as is the case here, severance
should not be granted except for the "most cogent reasons."
United States v. Kahn, supra; United States v. Smith, 209 F. Supp. 907,
914 (E.D.Ill. 1962); United States v. Burgio, 279 F. Supp. 843,
845 (S.D.N.Y. 1968).
Defendant Rattet first alleges that statements of his
codefendants, inadmissible against him, may be admitted into
evidence against them to his prejudice. This allegation is
unsubstantiated, since the Government neither acknowledges nor
denies that it possesses statements from the codefendants. Thus
it would be unwarranted at this stage to grant a severance.
United States v. Tanner, 279 F. Supp. 457 (N.D.Ill. 1967).
Defendant Rattet next alleges that his codefendants may testify
on their own behalf, forcing him to testify so as to avoid
adverse inferences by the jury in violation of his privilege
against self-incrimination. This allegation is totally without
merit. A defendant in a criminal case has the absolute right to
testify or not. Defendant's argument, if sustained, would
eliminate joinder of any criminal defendants and would render the
Federal Rules of Criminal Procedure a nullity.
Defendant's final allegation is that he may wish to call
codefendants as witnesses and would be precluded from doing so at
a joint trial. This unsubstantiated allegation is insufficient to
require a severance. United States v. Kahn, supra, 381 F.2d at p.
841; Gorin v. United States, 313 F.2d 641 (1st Cir. 1963); Smith
v. United States, 385 F.2d 34 (5th Cir. 1967). The defendant
has not shown, nor even asserted, that the testimony of a
codefendant would exculpate him or that a defendant would be more
likely to testify and risk self-incrimination if tried
separately. United States v. Echeles, 352 F.2d 892, 898 (7th Cir.
1965). Therefore, the motion for severance is denied.
MOTION FOR EVIDENCE FAVORABLE TO THE DEFENDANT
Defendant Rattet has moved for an order upon the Government to
produce any favorable evidence pursuant to Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), including the
criminal records of certain witnesses who may testify against
him. As to the latter request, the Government need not disclose
its witnesses prior to trial, United States v. Manhattan Brush
Co., 38 F.R.D. 4, 7 (S.D.N.Y. 1965), and the criminal records of
such witnesses are likewise free from pretrial discovery under
Brady or on any other ground. Hemphill v. United States,
392 F.2d 45, 48 (8th Cir. 1968); United States v. Cobb, 271 F. Supp. 159,
162 (S.D.N.Y. 1967). As to the motion in general, the Government
indicates that it now has no such exculpatory evidence or
information but that it is aware of its obligations under Brady,
supra, and will tender such information if it is subsequently
acquired. The motion for exculpatory evidence is therefore
It is therefore ordered that the motion to dismiss the
indictment, the motion for discovery and inspection, the motion
for severance, and the motion for evidence favorable to the
defendant be, and they are hereby denied.
It is further ordered that the motion for a bill of
particulars, and the motion for disclosure of electronic
eavesdropping be, and they are are hereby granted in part and
denied in part as heretofore indicated.
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