for an order dismissing the indictment against these
defendants prior to the time they take the stand.
The Government contends that the separation of powers
doctrine denies to the Judiciary the power to dismiss a
legally sufficient indictment because such matters are
reserved to the discretion of the Executive. See Goldberg v.
Hoffman, 225 F.2d 463 (C.A. 7, 1955); see also Hoffa, supra, at
310-312. The Court is of the opinion that the present
circumstances do not justify a dismissal. Accordingly, it is
ordered that this motion be, and the same hereby is, denied.
Defendant Kerner has moved for an order prohibiting the
introduction of hearsay evidence of his alleged
co-conspirators prior to the establishment by substantial
independent evidence that a conspiracy existed and that he
knowingly participated therein. He contends that cautionary
instructions are not a sufficient safeguard to prevent
prejudice in conspiracy cases. To support this proposition he
relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct.
1620, 20 L.Ed.2d 476 (1968) and Jackson v. Denno,
378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
We are not persuaded that these decisions are relevant to
any particular evidence that might be adduced in this trial.
Accordingly, it is ordered that this motion be, and the same
hereby is, denied.
ON MOTION FOR PRODUCTION OF MEMORANDA
Isaacs has moved for an order requiring the Government to
supply him with copies of any memoranda, summaries, or reports
concerning a conference at the Department of Justice with
attorneys for defendant Miller, who has been granted a
separate trial. The basis for this motion is his contention
that admissions made on behalf of Miller, an alleged
co-conspirator of Isaacs, are producible under Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
This contention assumes that the alleged admissions made on
behalf of Miller are exculpatory as to Isaacs. The Government
has previously acknowledged its Brady obligation. We have
previously considered the application of Brady on a motion by
defendant Miller. The same reasoning applies to the instant
motion. In addition, the Government has supplied Isaacs with
the requested material.
Defendant Isaacs also has moved for suppression of certain
alleged statements of Attorney Albert Jenner while
representing Isaacs in a conference with the Department of
Justice. The Government has indicated its intention to
introduce some of these statements as part of its
proof-in-chief. As grounds for this motion, Isaacs asserts:
(1) that neither Jenner nor Isaacs was informed that anything
said in the conference could be used against Isaacs in a
criminal prosecution; (2) that Jenner exceeded his authority
by making misstatements of fact based on information provided
to him by persons other than Isaacs; (3) that the power of
attorney Isaacs granted Jenner did not include the power to
make incriminatory misstatements of fact; and, (4) that the
use of the alleged Jenner admissions by the Government in its
proof-in-chief would violate Isaacs' constitutional rights.
Concerning the first ground, we note its similarity to the
issue raised by Isaacs in a previous motion to suppress. After
an evidentiary hearing on that motion, we found in effect that
Isaacs, who is a practicing attorney, was aware of the
admissions exception to the hearsay rule and of his right not
to incriminate himself. Jenner, who represented Isaacs at the
aforesaid hearing, is a noted expert on the law of evidence
and has served on the committee that proposed the new federal
rules of evidence. We are convinced that he also was aware of
the admissions exception and of the Fifth Amendment rights of
his client. In contrast, the case of Miranda
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), concerned uneducated persons. Thus, we view the first
ground as irrelevant to this case.
Concerning the second ground, the Court has read the
Memorandum of Conference prepared by a Government attorney in
attendance. This document discloses that on several occasions
Jenner made statements of fact based on notes in his files
that were prepared by someone else. It also discloses that he
made statements that he might have been authorized to make.
Should the admissibility of the alleged statements of Jenner
arise as an issue in the trial, consideration will be given it
at that time.
Concerning the third ground, the Court has read the written
power of attorney executed by Isaacs and agrees that the power
to make "incriminatory misstatements of fact" was not granted
to Jenner. However, this ground will not mature until the
Government identifies, as it has promised to do, those
statements it will seek to introduce and their purported
incriminatory effect is shown.
The fourth ground is also of such a speculative nature that
the Court will be unable to rule on it except as specific
questions are presented by the Government's proof-in-chief.
For the indicated reasons, this motion must be denied.
Isaacs has moved for severance from defendant Kerner on the
basis of the Government's statement that it intends to
introduce certain statements made by Kerner and his attorney
at a Justice Department conference. This motion appears to be
founded on the rule of Bruton v. United States, 391 U.S. 123,
88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Since the Government has
not identified the statements it will seek to introduce, this
motion is premature.
For the reasons heretofore given, it is ordered that each
motion be, and the same hereby is, denied.