The opinion of the court was delivered by: Robert L. Taylor, District Judge.
Before the Court for consideration is the motion of
defendant Kerner to continue the trial of the case if the
Government does not satisfy his request for particulars. Also
before the Court is a companion motion for an order compelling
the Government to provide forthwith greater particularization
than heretofore provided as to paragraph 11, Count 1, "under
the sanction of contempt for failure to comply."
The Grand Jury charged that it was part of the conspiracy
that shares of stock would be made available to Kerner and
". . . by a method constituting a personal
advantage to them, in order
to influence the good will and favor of Otto
Kerner, Jr., as Governor of the State of
Illinois, and of persons connected with his
administration, and by such influence, to cause
defendant Kerner and the persons connected with
his administration to act favorably in performing
their official and public functions, decisions,
actions, and duties with respect to matters
involving CTE, its tenants, lessees, subsidiaries
In a motion for particulars, Kerner asked for specification
of the "public functions, decisions, actions and duties" to
which the paragraph referred. We granted the request by an
order filed May 30, 1972.
The Government filed its compliance with that order on July
26, 1972. Therein it stated that, as Governor, Kerner had the
responsibility for appointing the Director of the Illinois
Department of Revenue who was responsible for the collection
of revenue from the horse and harness racing industry,*fn1
and for appointing the members of the Illinois Racing
Board*fn2 and the Illinois Harness Racing Commission that had
responsibility for awarding racing dates and otherwise
regulating the industry. It stated further that, as Governor,
Kerner was required to make decisions and to take actions
concerning legislation affecting the racing industry which the
Illinois General Assembly submitted to him. Additionally, he
was required to submit proposed legislation affecting the
racing industry to the General Assembly.
At the third pre-trial conference on October 24, 1972,
Kerner's counsel challenged the adequacy of that response for
the first time. He argued convincingly that there were
warehouses of legislative records concerning the years when
Kerner was Governor, thus making it impossible to prepare his
defense unless the Government identified the bills it contends
were affected by the alleged bribe. In our order of October
30, 1972, we expressed our opinion that the request that any
specific legislative or executive action which the Government
contends resulted from the alleged bribe be identified had
merit and the Government should supply the information.
The Government subsequently filed a statement contending (1)
that all appointments to the Illinois Racing Board and the
Illinois Harness Racing Commission, particularly the
appointment of defendant Miller as Chairman of the former,
were actions favorable to the specified racing interests; (2)
that forty-six specific bills introduced in the Illinois
General Assembly during Kerner's term as Governor were acted
upon by Kerner in a manner favorable to the aforesaid racing
interests; and (3) that both Kerner and Isaacs intervened with
members of the racing board and the harness commission on
behalf of these racing interests regarding the allocation of
racing dates. The statement also contains a fourth category of
actions which would seem to preserve the Government's right to
introduce proof of other executive or legislative acts.
The instant motion for greater particularization calls for:
"1. An identification of each appointment to
the Illinois Racing Board and the Illinois
Harness Racing Board which the government
contends was the result of a bribe; a statement
as to whether the appointee knew that he had any
obligation during his term of office to act
favorably toward the entities listed in the
government's Statement of Compliance and a
description of favorable action taken by such
appointee[s] during the term[s] of office.
"3. A statement identifying the particular
member[s] of the Racing Board and Harness Racing
Commission with whom Governor Kerner or Theodore
Isaacs is said to have `intervened'; the time or
approximate times of such intervention; the
identity of the entity on whose behalf the
intervention took place and a brief description
of the `intervention' referred to.
"4. A statement identifying the problems
referred to in the Statement of Compliance and
relating each particular problem to an identified
state regulatory agency. The statement should
include as well an identification of the person
or persons who allegedly acted at the direction
of Kerner and those who acted at the direction of
Isaacs, and it should also describe briefly, so
as to be recognizable, the decision made and how
it favored the Everett racing interests."
In his brief in support of these motions, counsel for Kerner
"The government's response to that order is
broken down into four numbered answers, each of
which escalates in evasiveness and obfuscation.
The conclusion is inescapable that the government
does not intend to comply with the Court's
orders, either because it cannot support its
allegations or because it wishes to deter the
defendant from preparing his defense. The result
of noncompliance is contemptuous and either
reason is inexcusable." (pp. 2-3)
"The first numbered response by the prosecutor
is better than the rest but only by contrast.
Objectively it is as much an avoidance of honesty
as the rest . . .
". . . [The United States Attorney's] sweeping
assertion sounds more Joseph McCarthy-esque than
responsible. This Court should, prior to trial,
make a relentless inquiry of Mr. Thompson to
ascertain whether he has any substance to the
contention he makes in this response." (p. 6)
The thrust of these motions is discovery of the Government's
proof. The function of a bill of particulars is to prevent
surprise or double jeopardy; it is not a discovery device. We
have previously ruled on that question in this case. See
347 F. Supp. 743, 762.
As counsel agreed at the hearing on January 20, 1972, the
cut-off date for pre-trial motions was March 20, 1972. Fifty
motions were filed prior to that date by defense counsel. We
ruled on most of these, including Kerner's request for
particulars as to ¶ 11, Count 1, in our order of May 30, 1972.
The Government complied with that ruling on July 26, 1972.
Kerner's counsel ignored the statement of compliance until
three weeks before the original trial date. Now three weeks
before the second ...