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UNITED STATES v. FEINBERG

March 1, 1974

UNITED STATES OF AMERICA
v.
BERNARD FEINBERG. UNITED STATES OF AMERICA V. JOHN C. THOMPSON. UNITED STATES OF AMERICA V. LOUIS A. KOPPLE. UNITED STATES OF AMERICA V. FRANK J. KUTA.



The opinion of the court was delivered by: Marshall, District Judge.

MEMORANDUM OPINION

Three of these four criminal cases are pending on motions by the Government for reconsideration of orders granting pretrial discovery of statements made by the defendants. The fourth case is pending on defendant's motion for similar discovery. The challenged orders and the pending motion were entered or made pursuant to the provisions of either Rule 7(f) or 16(a) of the Federal Rules of Criminal Procedure. In each case the Government asserts that pretrial discovery of statements made by the defendant to persons other than government agents is not authorized by the Rules and violates the restrictions on pretrial discovery prescribed by the Jencks Act (18 U.S.C. § 3500(a)) and authoritative decisions interpreting the Act (including decisions of the Court of Appeals for the Seventh Circuit). The Government has stated that if the orders are not modified, it will seek interlocutory review by way of mandamus or pursuant to 18 U.S.C. § 3731. Because of the commonality of the contentions raised by the Government and the importance of those contentions to the administration of criminal justice in the federal courts, I have considered the cases together. Brief descriptions of the cases and the particular discovery granted or sought are germane to the contested issues.

In No. 73 CR 370, defendant Bernard Feinberg is charged with violations of 18 U.S.C. § 1341 by use of the mails in furtherance of a scheme to defraud the citizens of Cook County, Illinois, of taxes on certain real properties located in the county. According to the allegations of the indictment, Feinberg, who is the owner of the subject properties, falsely represented or caused to be represented to county taxing authorities that the properties were vacant when he knew they were improved and occupied by tenants, and submitted to the taxing authorities City of Chicago building permits regarding the properties which he knew had been altered or modified after their issuance, all to the end that he fraudulently obtained substantial reductions in the assessed valuation of the properties which, in turn, reduced the ad valorem taxes levied against them. The indictment proceeds to allege use of the mails in furtherance of the scheme.

In No. 73 CR 646, the defendant John C. Thompson, former Chicago Director of the Equal Opportunity Division of the United States Department of Housing and Urban Development, is charged with violating 18 U.S.C. § 201(c)(1) by soliciting and accepting a $3,000 bribe from one Ross in connection with Thompson's official approval of affirmative action programs submitted with applications for Federal Housing Administration loan insurance for three housing projects.

In No. 73 CR 778, defendant Louis A. Kopple is charged with violations of 21 U.S.C. § 841(a)(1) by the distribution of large quantities of amphetamines and barbiturates. Although not alleged in the indictment, it is undisputed that Kopple is a licensed physician of fifty years experience. Furthermore, his counsel has represented to the court that Kopple is 77 years old and shows marked signs of beginning senility and has difficulty in recalling any of the transactions alleged in the indictment.

In 74 CR 22 (superseding 73 CR 490), defendant Frank J. Kuta is charged in a multi-count indictment with the obstruction of commerce by means of extortion in violation of 18 U.S.C. § 1951, mail fraud in violation of 18 U.S.C. § 1341 and the filing of false income tax returns in violation of 26 U.S.C. § 7206(1). Kuta was an alderman of the 23rd Ward of the City of Chicago and as such a member of the Chicago City Council. Stripped of its verbiage the indictment alleges that Kuta extorted payments from three persons named Gaw, Vanchieri and Allen in respect to amendments to the Chicago Zoning Ordinance as it applied to properties which they desired to develop. Although not alleged in the indictment, it is undisputed that Kuta is an attorney licensed to practice law in Illinois.

The cases have a common thread which, in my judgment, supports the discretionary relief I have granted. Unlike criminal cases in which there is a dispute as to either the conduct or the identity of the accused, it is fair to anticipate here that the Government's proof will readily establish that the defendants performed some or all of the acts with which they are charged: Feinberg sought and obtained tax reductions; Thompson received a payment from Ross; Kopple possessed and distributed drugs; and Kuta received payments from Gaw, Vancheri and Allen. The transactions are not, however, unlawful in and of themselves. The gravamen of each charge is the alleged purpose, knowledge or intent of each defendant at the time of his alleged conduct.

In these circumstances, we can assume that the Government will seek to prove the defendants' alleged unlawful states of mind by resort to statements made by the defendants before, during or after the subject transactions. Furthermore, it is not unlikely that the statements will be attributed to the defendants by persons who participated in those transactions. Of course, the requisite state of mind can, in certain circumstances, be inferred from the conduct itself. But if statements by the defendants reflecting their states of mind are available to the Government, we know they will be used, and they will constitute a significant part of the Government's case.*fn1

It was in light of the foregoing that defendant Feinberg (charged with mail fraud regarding real estate taxes) sought, by way of a motion for bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, the following:

  "5. Does the Government rely upon any oral statements
  of the defendant to support the charge in the several
  counts of the indictment?
  "6. If the answer to request No. 5 is in the
  affirmative, state with respect to each such
  statement, if there was more than one,
    "(a) The name and address of the person to whom the
    statement was made,

"(b) The date on which the statement was made,

"(d) The substance of the statement,

    "(g) Whether a written memorandum or verbatim
    transcript of the oral statement was made, and, if
    so, whether the Government has possession of the
    memoranda or transcript."

I granted the motion. Thereafter, upon the Government's motion to reconsider, I treated Feinberg's motion as one for discovery under Rule 16 making clear that "the defendant, however, is only entitled to his statements or the substance thereof. The substance of a Government witness' statement, unrelated to an alleged statement of the defendant, may be excised. Indeed, rather than display a pre-existing document, it is sufficient for these purposes that the Government, in narrative form, state the contents of defendant's alleged statements, the persons to whom the statements were made and the dates of the statements." The Government has again requested reconsideration of my order in view of its stated purpose to refuse to comply therewith provoking either a proceeding in mandamus or an interlocutory appeal pursuant to 18 U.S.C. § 3731. Feinberg has also requested, for reasons hereinafter stated, that I return to a Rule 7(f) bill of particulars approach to his request rather than a motion for discovery pursuant to Rule 16(a).

Thompson (charged with accepting a bribe regarding approval of an F.H.A. affirmative action program), by a motion for discovery and inspection pursuant to Rule 16, requested an order that he be permitted "to inspect and copy, or photograph, any and all recorded or written statements . . . made by any persons having knowledge of the facts . . . within the possession, custody or control of the Government. . . ." I denied that request except "to the extent that statements of other persons [contained] statements of the defendant." The Government has moved that I reconsider that order.

Kopple (charged with unlawful distribution of drugs) has moved for discovery pursuant to Rule 16 of "any memoranda, transcripts or writings in Government possession containing inculpating relevant statements, admissions or confessions purportedly made by defendant during the transactions alleged in Counts 1 through 7 of this indictment." In the motion Kopple states, "The defendant seeks to learn what it is he is supposed to have said to government agents or third parties during the transactions alleged in this indictment. It is only in that way that he can begin to prepare a defense against the charges of the indictment." In addition, Kopple has pending a motion for bill of particulars pursuant to Rule 7(f) in which he requests, "What are the inculpating relevant statements, admissions or confessions purportedly made by the defendant during the transactions alleged ...


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