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UNITED STATES v. LEICHTFUSS

August 9, 1971

UNITED STATES OF AMERICA
v.
THOMAS FREDERICK LEICHTFUSS. UNITED STATES OF AMERICA V. LINAS MINTAUTAS. UNITED STATES OF AMERICA V. MICHAEL JOHN TARIO.



The opinion of the court was delivered by: Campbell, Senior Judge.

      MEMORANDUM AND ORDER

The defendants in these cases have been indicted for violation of the Military Selective Service Act of 1967 ("The Act").*fn1 These cases are not factually related, but are decided together because substantially identical pretrial motions have been presented in each case. These are but three of approximately 150 cases which have been assigned to me pursuant to a general order of this court referring to my calendar all cases involving a violation of the Selective Service laws. Pursuant to this general order it is my responsibility to accept the return of indictments brought under the Selective Service laws; to accept pleas of guilty and impose sentence where such a plea is entered; and, where a plea of not guilty is entered, to rule upon all pretrial motions and to generally supervise pretrial discovery. After the disposition of all pretrial motions each case is assigned by lot to the active judges of this court under the provisions of our General Rules relating to the assignment of cases. See Rule 10, General Rules, Northern District of Illinois.

The posture of the present motion is best understood by a brief explanation of the discovery practice in this district as established by our Local Rules of Criminal Procedure. Discovery is now initiated not by motion but by a simple request. Local Criminal Rule 2.04 provides that upon request by defendant's attorney the United States Attorney shall:

  "(1) Permit defendant's attorney to inspect and copy
  or photograph any relevant written or recorded
  statements or confessions made by the defendant, or
  copies thereof, within the possession, custody or
  control of the government, the existence of which is
  known, or by the exercise of due diligence may become
  known to the attorney for the government;
    (2) Permit defendant's attorney to inspect and copy
  or photograph any relevant results or reports of
  physical or mental examinations, and of scientific
  tests or experiments made in connection with the
  case, or copies thereof, within the possession,
  custody or control of the government, the existence
  of which is known, or by the exercise of due
  diligence may become known to the attorney for the
  government;
    (3) Permit defendant's attorney to inspect and copy
  or photograph any relevant recorded testimony of the
  defendant before a grand jury;
    (4) Permit defendant's attorney to inspect and copy
  or photograph books, papers, documents, tangible
  objects, buildings or places which are the property
  of the defendant and which are within the possession,
  custody or control of the government;
    (5) Permit defendant's attorney to inspect and copy
  or photograph the Federal Bureau of Investigation
  Identification Sheet indicating defendant's prior
  criminal record;
    (6) Permit defendant's attorney to inspect, copy or
  photograph any evidence favorable to the defendant;"

The information required to be turned over under this Rule is, of course, routinely granted whenever requested by motion and it is the purpose of our Local Rule to relieve the court and counsel of the time consuming and pointless effort of obtaining this information by formal motion. As to matters not the subject of automatic discovery, the defendant must, within ten days of arraignment, request the information at a conference with the Assistant United States Attorney assigned to the case. At the conference the parties are required to attempt to satisfy any remaining requests for discovery "in a cooperative atmosphere without recourse to the Court." Local Rule 2.04(c). For further explanation of the background, purposes and mechanics of the Rule see, MacCarthy and Forde, "The New Local Criminal Rules for the Northern District of Illinois." 1 Loyola U. (of Chi.) L.J. 51, 67-73 (1970); MacCarthy and Forde, "Discovery In Criminal Cases Under the New Local Rules of the Federal Court" 52 Chi. Bar Rec. 41 (1970). I add only the comment that in my experience working with our new Rules, their proper application has substantially reduced the needless work previously related to pretrial discovery in criminal cases.

In the cases presently before me all of the information required by the Rule has been given to defense counsel and conferences have been held and further requests have been satisfied. Therefore, the motions I am confronted with relate only to such further discovery as the government has refused.

Upon the filing of these motions for additional discovery I ordered the filing of briefs in support and in opposition thereto and set the cause for oral argument. Thorough briefs relating to all issues raised in the motions were filed by counsel for these defendants and by the government. I also heard lengthy oral argument on the issues. Because it was anticipated by the government and the criminal bar of this district that the disposition of these motions would necessarily govern the disposition of similar motions to be filed in numerous other pending cases, I thought it necessary to make a rather complete analysis of these issues. To supplement my own research I appointed the Federal Defender Program of our court Amicus Curiae for the purpose of filing a brief relating to the issues presented in the pending motions. Pursuant to that order the Federal Defender Program, by its Director Terence F. MacCarthy, Thomas D. Decker and Joseph Beeler, filed a most comprehensive and scholarly brief, which together with its appendix runs well over 200 pages and thoroughly considers each issue presented in the motions before me. I extend my sincere thanks to the Defender Program and these counsel for their considerable efforts in this undertaking. The response of the government, while perhaps less voluminous, was equally enlightening.

Predictably, the Amicus has called for broad if not complete discovery in these cases. In this regard I should state that I generally share this view. I believe it most unfortunate that discovery in criminal cases has lagged so far behind the progressive developments we have experienced in civil discovery.*fn2 In civil cases I employ a simple two word order to resolve all discovery disputes: — "exchange files!" As the authors of the above cited Article appearing in the Chicago Bar Record have noted, I have recently been applying this same simple order in criminal cases and find its application equally productive. Based on my experience I submit that complete discovery in criminal cases results in fairer, more orderly trials and a substantial increase in the number of guilty pleas. With this experience in mind I take up consideration of the motions presented in these cases.

Discovery Voluntarily Granted

In its brief, and in oral argument, the government has correctly stated that it has fully complied with all of the requirements for voluntary disclosure as required by Local Rule 2.04 and has even attempted to substantially comply with my much broader general order to "exchange files."

Specifically, in compliance with Rule 2.04(a) the government has provided or offered to provide each defendant with the following where available:

  (2) The results or reports of physical or mental
  examinations and scientific tests. (These consist of
  medical and security records.)
  (3) Any recorded testimony of a defendant before a
  Grand Jury.
  (4) Any books, papers, documents or tangible objects
  which are the property of a defendant.

(5) Any available arrest record of a defendant.

(6) Any evidence favorable to a defendant.

Commendably, the United States Attorney has also expressed his willingness to produce certain documents in all cases and others, "whenever defense counsel * * * shows the reasons from his file for the discovery requests." He urges, however, that this court should compel only minimum discovery, complimented by "guidelines" for solution of certain other limited specific issues, thus permitting the bulk of discovery questions to be resolved on an ad hoc, case-by-case basis. While there is certain merit to the suggested approach, I believe that, because of the many pending cases which will be decided in accordance with the resolution of the issues in these cases, sound judicial administration requires a ruling on all issues presented in these cases. In so doing, I now order discovery in all cases of all documents which the government has commendably offered to provide upon request. These consist in the main of all documents in the Selective Service file relating to the defendant and which are forwarded to the office of the United States Attorney by the Selective Service System. See also Appendix A of this opinion which sets forth a "Table of Forms Normally Provided to the Defense," an appendix to a brief of the United States Attorney herein.

INFORMATION SOUGHT BY THESE DEFENDANTS

In addition to the above described documents contained in the registrant's Selective Service File and which have been disclosed, the defendants seek substantial additional discovery some of which may be described as "general discovery," that is, similar to that sought in any criminal case. The remainder of their requests seeks information possessed by the Selective Service System, but not contained in the file of a registrant.

GENERAL DISCOVERY

Under the caption "General Discovery" are numerous requests which are common to most criminal cases and are not unique to Selective Service cases.

Evidence Favorable to Accused.

The duty of the government to advise an accused of any evidence it may possess which may be favorable to the defendant's case and relates to the issues of guilt, innocence or punishment is expressed in the Supreme's Court landmark decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While such evidence is here sought by motion, the obligation in Brady is not dependent upon a pretrial request for such evidence. Rather, Brady and subsequent decisions, notably Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967), impose an affirmative duty upon the prosecutor to disclose favorable evidence regardless of whether such evidence has been formally requested by the defendant.

Ordinarily, in ruling on defendants' motions for such evidence it would suffice to merely cite our Local Criminal Rule 2.04 discussed above which requires disclosure of such evidence upon request. In fact, in the opening pages of its brief the government acknowledges the Rule and states that such evidence is "always produced," a representation I believe to be accurate.

The motions in these cases, however, go beyond the usual Brady request and seek production of "all reports, memoranda, documents and evidence relating to this case, including all § 3500 statements and Form 302 reports, if any * * *." In other words, relying on the Brady principle, defendants seek to review all evidence of any kind in the possession of the government to determine if any of that evidence is "favorable to their cause." The basis of their request is that defense counsel and not the government should determine what evidence is favorable to the defendant and that defense counsel can make such a determination only after reviewing all of the evidence. As an alternative proposition, the defendants urge that all of the government's evidence should be reviewed by the court in camera and the court will then make the determination as to what evidence may be favorable to the defendant.

In considering the proposed alternatives I find myself in agreement with the Amicus in concluding that both are "unacceptable," and that in final analysis the interests of all would best be served if we continue to rely on the judgment and integrity of the government to determine what, under Brady, it has a duty to disclose.*fn3

Grand Jury Testimony.

The defendants seek an order requiring the government to produce for inspection by defendant and his attorney or in the alternative to submit to the court for in camera inspection, the recorded testimony of each witness who testified before the grand jury concerning the events alleged in the indictment. In support of this request the defendants state: (a) the grand jury testimony may prove helpful or even necessary for defendants to properly evaluate the evidence and present defenses; (b) the testimony may prove necessary to proper preparation for and cross-examination of trial witnesses who testified before the grand jury; and (c) there is no compelling necessity for secrecy.

Discovery and inspection of a defendant's own testimony before a grand jury is of course required by Rule 16(a)(3), Fed.R.Crim.P., and by our Local Criminal Rules. Rule 2.04. As to other grand jury witnesses, Rule 6(e), Fed.R.Crim.P., limits production to cases where there is "a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." There is no such showing here.

As pointed out by the Amicus Curiae, however, courts have granted discovery of grand jury testimony in numerous situations where "the ends of justice require it." See Dennis v. United States, 384 U.S. 855, 869-870, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). In its brief it correctly states: "Discovery of the testimony of witnesses who appeared before the grand jury has developed, not because of or in relation to Rule 6(e), but is rather the product of judicial decisions in the main ignoring the Rule." The Dennis case redefined what has developed to be a "particularized need" prerequisite to obtaining discovery of grand jury testimony and courts have ordered disclosure in a growing number of cases. See United States v. Amabile, 395 F.2d 47 (7th Cir. 1968), vacated on other grounds sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969); Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476 (D.C. Cir. 1968); National Dairy Products Corp. v. United States, 384 F.2d 457 (8th Cir. 1967); United States v. Youngblood, 379 F.2d 365 (2nd Cir. 1967).

In Amabile, our Seventh Circuit Court of Appeals held that defendants are entitled to the grand jury testimony of a government witness as to the subject matter about which he testified at trial, except where the government can show some reason for denial of such discovery. As the government points out, this places the production of grand jury testimony in the same status as § 3500 statements. And, while it has long been my practice to require pretrial disclosure of § 3500 statements, see United States v. Hilbrich, 232 F. Supp. 111, 119 (N.D.Ill. 1964), aff'd, 341 F.2d 555 (7th Cir. 1965), this is not a standing practice among judges in this court. Furthermore, in Selective Service cases seldom does a witness who testified before the grand jury testify at trial so no useful purpose would be served by production before trial in these cases. I therefore decline to require pretrial disclosure at this time. After the cases are assigned for trial the judge to whom the case is assigned can determine whether disclosure should be made prior to trial or only after the witnesses have testified.

Names and Addresses of Potential Witnesses.

The defendants have requested an order requiring the government to disclose all names and addresses of potential witnesses upon whose testimony the government will rely at trial. In opposing this request, the government states that discovery of the names of witnesses is inappropriate in a criminal case, citing United States v. Chase, 372 F.2d 453 (4th Cir. 1967): United States v. Wolfson, 294 F. Supp. 267 (D.Del. 1968); United States v. Lavery, 161 F. Supp. 283 (M.D.Pa. 1958). The government also adds that it is "well known * * * that the witnesses in Selective Service cases are always a clerk of the local board or some other Selective Service employee, and the F.B.I. agent who arrested the defendant."

It is clear that federal courts have the power to require the government to disclose the names of potential witnesses where this information is necessary or useful in the defendant's preparation for trial. See Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); see also United States v. White, 370 F.2d 559 (7th Cir. 1966). Certainly there is nothing "inappropriate" about ordering such a request in a criminal case. Some States specifically provide for the discovery of the names and addresses of witnesses. See Ill.Rev.Stat. ch. 38 § 114-9 (1969). Moreover the proposed amendment to the Federal Rules of Criminal Procedure, in my opinion, will soon require the government to disclose the names and addresses of all government witnesses. The proposed amendment to Rule 16 provides:

    "(vi) Government Witnesses. Upon motion of the
  defendant the court may order the attorney for the
  government to furnish to the defendant a written list
  of the names and addresses of all government
  witnesses which the attorney for the government
  intends to call at the trial together with any record
  of prior felony convictions of any such witness which
  is within the knowledge of the attorney for the
  government. Names and addresses of government
  witnesses shall not be subject to disclosure if the
  attorney for the government certifies that to do so
  may subject the witness or others to physical or
  substantial economic harm or coercion. Where a motion
  for discovery of the names and addresses of witnesses
  has been made by a defendant, the government may move
  the court to perpetuate the testimony of such
  witnesses in a hearing before the court or a United
  States magistrate, in which hearing the defendant
  shall have the right of cross-examination.

  A record of the witness' testimony shall be made and
  shall be admissible at trial as part of the
  government's case in chief in the event the witness
  has become unavailable without the fault of the
  government or if the witness has changed his
  testimony." (48 F.R.D. at 589).

While the proposed amendment provides only that a court "may" order production of a list of witnesses, in my opinion the courts will continue to interpret the word "may" in Rule 16 as "shall". See United States v. Isa, 413 F.2d 244 (7th Cir. 1969); MacCarthy and Forde, 1 Loyola U. (Chi.) L.J. supra, at 69-70.

The American Bar Association Proposals on Minimum Standards for Criminal Justice also require a prosecutor to disclose the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial, together with their relevant written or recorded statements. ABA Standards Relating to Discovery and Procedure Before Trial § 2.1(a)(i).

I see no justification for withholding the names and addresses of government witnesses in these cases. As the government itself points out the only witnesses in most cases will be a Selective Service clerk from the Local Board and perhaps the F.B.I. agent who arrested the defendant. Certainly there is no apparent threat that disclosure of the identity of these witnesses prior to trial will subject the witness to physical or economic harm or to threats designed to make him unavailable to testify or to influence him to change his testimony. If in any case the government has reason to believe that there is a danger of witness intimidation of any kind it may seek a "protective order" to restrict, defer or deny disclosure of the names of its witnesses. See rule 16(e) Fed.R.Crim.P. As to the availability and use of protective orders, I fully agree with the suggestion of the Amicus when it states: "Possibly the most significant contribution to the 1966 amendments to rule 16 was the inclusion of subdivision (e) `protective orders'. It is probably the least utilized subdivision of the rule as well." The obvious purpose of the amended Rule 16 was to expand discovery. Appreciating this fact, the advisory committee felt it necessary and appropriate to control possible abuses in connection with broad discovery by including the "protective order" provisions found in subdivision (e). However, the government seldom seeks the protection contemplated. The Amicus suggests the obvious reasons why "protective orders" are so seldom sought. Courts are either not liberally interpreting Rule 16 so as to occasion government requests to employ subdivision (e) — a conclusion supported by a reading of the ABA Standards, supra, or most cases do not justify a protective order predicated upon realistic fears of "a particular danger of perjury or witness intimidation, for protection of information vital to national security, and the protection of business enterprises from economic reprisals." Rule 16(e). It is my personal belief that the interests of justice will best be served when courts adopt a general policy of broad discovery in criminal cases except where the government seeks, with factual support, a protective order. Such a salutary development will in my opinion also substantially improve the administration of our court system.

In resisting disclosure of a list of its witnesses in these cases the government also argues that the disclosure of the identity of these witnesses (Local Board Clerk and F.B.I. agent) will be of little value to a defendant and that in many cases their identity is not known until just a few days before trial when it is determined which clerk will appear. There is merit to these arguments. But rather than refuse disclosure for these reasons, I believe the appropriate solution is to require disclosure a short time prior to trial. Accordingly, 30 days before trial the government is ordered to advise each defendant of the name and address of each witness who will be called to testify in support of the government's case.

Although not requested by the government, I suggest the propriety in these cases of requiring reciprocal discovery. Subparagraph (c) of Rule 16 specifically authorizes discovery by the government if the court grants defendant's motions for discovery under Rule 16(a) and (b), and the court may so condition its order of discovery. The discovery authorized in paragraph (c) is very appropriate in these cases. The Rule provides that the court may condition its discovery order by requiring that the defendant permit the government to inspect and copy or photograph scientific or medical reports, books, papers, documents, and tangible objects which the defendant intends to produce at trial and which are within his possession, custody or control. For the same reasons I have very liberally applied the discovery provisions to grant defendants a list of government witnesses, I condition such discovery upon the defendants providing the government with their lists of witnesses. Under no circumstances, however, will a defendant be required to disclose for inspection any "report, memoranda or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant or by the government or defense witness, or by prospective government or defense witnesses, to the defendant, his agents or attorneys." These materials are protected from disclosure by the specific provisions of Rule 16(c) and any order requiring their disclosure would of course have substantial constitutional implications.

This District has achieved remarkable success in attempts to improve judicial administration in the civil practice. It is generally recognized that during the last ten years while courts in every metropolitan area in the country were plagued with docket delay, we managed to maintain our position of current status. One of the innovations which has contributed to this position is our requirement by general order that all parties in every civil case file prior to trial, a final pretrial order which eliminates many of the non-essential and uncontested issues from litigation and also facilitates and greatly expedites routine court procedures such as the marking of documents and the proof of the authenticity of documents. Furthermore, it requires lawyers objectively to assess the merit and strength of their case and the possible advisability of settlement. I believe similar procedures must now, in so far as constitutionally possible, be applied in criminal cases, particularly if, as I urge above, the courts begin to authorize broad discovery to both sides of criminal cases in the same manner as in civil cases.

Accordingly, and upon the assumption that the government will accept the court's invitation to present a motion for reciprocal discovery, I hereby order that in all Selective Service cases counsel for the government and for the defendant shall submit to the court at least thirty days before trial, the following:

  A. A written stipulation or statement of any
     uncontested facts.
  B. Schedules of all exhibits which will be offered in
     evidence at the trial, except those defendant
     exhibits which have been excluded from this order.
     This schedule shall also contain an indication of
     those exhibits agreed to be admissible and the
     grounds for objecting to any others. Only exhibits
     so listed shall be offered in evidence at the
     trial except for good cause shown. All exhibits
     shall be properly marked and ready for
     introduction into evidence without delay.
  C. The names and addresses of all prospective
     witnesses. The qualifications of any expert
     witnesses shall be stipulated.

Statements of Persons Who Will Not Appear As Witnesses.

The defendants have requested an order requiring the government to disclose all statements of persons with information relative to the defendant or the facts alleged in the indictment who will not testify, or persons the government does not propose to call as witnesses.

It is clear from the response of the government, however, that generally no such statements exist in Selective Service cases. While this general representation may end the matter in most cases, there exists the possibility that in a few of the many cases to which this order is applicable, such statements do exist. Where the government has such statements, any which contains evidence favorable to the accused must be produced under the mandate of Brady v. Maryland. Any other statements should be produced by virtue of my directive to exchange files. I therefore order production of any statements of witnesses in the possession of the government, where the government is reasonably certain they will not be called to testify at trial.

Prosecutors' Notes.

The defendants also seek disclosure and inspection of "all notes or other forms of recordation, if any, of any attorney for the government taken at the time of or in any way related ...


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