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UNITED STATES v. LEICHTFUSS
August 9, 1971
UNITED STATES OF AMERICA
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.
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
(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
(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
(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
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.
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
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:
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
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
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.
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 ...