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April 18, 1974


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


On April 8, 1974, I entered a judgment dismissing the instant indictment as to the defendant Blackburn Jackson because of the Government's wilful refusal to comply with a pretrial order entered December 18, 1973 and for the additional reason that Jackson has been denied the speedy trial guaranteed him by the Sixth Amendment to the Constitution of the United States. Because the case involves important questions regarding the authority of district courts to engage in meaningful pretrial supervision of potentially lengthy or complex criminal cases, I write this opinion recognizing that post judgment explanations are treacherous things.*fn1 In doing so, however, I wish to state that much of what is said here has been previously stated to counsel for the parties in the case (See, e.g., Tr. Pro. April 5, 1974.)

The history of the case and the circumstances attendant the entry of the pretrial order which the Government has refused to honor should be stated in full before addressing the issues involved.


Insofar as the defendant Jackson is concerned, this prosecution originated on November 9, 1972 with the return of a five-count indictment charging him with mail theft in violation of 18 U.S.C. § 1708 which was docketed in this court as No. 72 CR 855 and assigned to my colleague, Judge Richard McLaren. Jackson was promptly arraigned, pretrial discovery proceedings were ordered and the cause was set for trial February 26, 1973.

On February 23, 1973, the trial date was vacated and a pretrial conference was ordered for March 9. At that pretrial conference Judge McLaren was advised that the Government anticipated the return of a new indictment which would name additional defendants and would supersede the then pending indictment. Accordingly, 72 CR 855 was continued until April 26, 1973 when it was dismissed on the Government's motion.

In the meantime, on March 13, 1973, indictment 73 CR 193 was returned and assigned to Judge McLaren. It is in 12 counts. Count one alleges an 18 U.S.C. § 371 conspiracy to commit mail theft and to forge Government checks, in violation of 18 U.S.C. § 1708 and 495. The remaining 11 counts charge either mail theft or forgery of Government checks. The indictment alleges a multi-defendant conspiracy to steal welfare and Social Security checks from the mail, forge endorsements thereon and negotiate them through a grocery store owned by Jackson. The other participants are alleged to be Linda Lloyd, Sandra Johnson (now deceased), Sherman Priddy, Tommie Williams, John Smith and Fred Jackson (who is said to be an un-indicted co-conspirator).

By May 18, 1973, all defendants had been arraigned and pleaded not guilty. In the meantime, at the request of the Government, discovery of 1200 handwriting exemplars was ordered from defendants Jackson and Lloyd.*fn2 The cause was set for trial June 11, 1973. On that date, for reasons not disclosed by the docket, it was continued for trial until September 10, 1973. Prior to that September date, the case was reassigned to me as a part of my initial calendar of approximately 190 civil cases and 25 criminal cases.

There were older cases on my calendar which had been set for trial in September. Accordingly, I vacated the September 10 trial date and held status reports in the case on September 5 and November 5. At the September 5 hearing, I was advised by the Government that the defendants Jackson and Lloyd had not complied fully with the earlier order directing them to furnish handwriting exemplars. I ordered them to do so by October 5, and so far as I am aware, they did.

During the course of the status reports, I was advised by the Government that the trial would be quite lengthy in view of the number of defendants and the large number of checks involved in respect to which the Government would be obliged to prove authenticity, mailing, non-receipt by the intended payees, possession by one or more of the defendants, forgery of endorsements, and a comparison of the handwriting of the alleged forged endorsements with that of certain of the defendants.

By November 5, 1973, my calendar had started to shape up. I set the case for trial on January 8, 1974. That was the date that the new January, 1974 jury was to report. Several weeks of trial time were blocked out for the case. Shortly thereafter, on November 9, 1973, I ordered the cause set for a pretrial conference on December 18, 1973. See Rule 17.1, Fed.R.Crim.Pro.

The December 18 pretrial conference was attended by five attorneys representing the five remaining defendants (Sandra Johnson had died) and counsel for the Government. At the outset there was an oral request by counsel for the Government for a continuance of the January 8, 1974 trial date. As I recall the grounds for the continuance were that the Assistant United States Attorney assigned to the case could not meet the January 8 setting. If the case had proceeded to trial in January, it would have been necessary to reassign it to another assistant prosecutor. As the minute order entered on that date reflects, all of the defendants other than Blackburn Jackson agreed to the continuance. He, having been under indictment by that time for more than 13 months, objected, stating that he would be ready for trial on January 8 and demanded trial. On the Government's motion, the cause was continued for trial to April 15, 1974.*fn3

During the pretrial conference, the Government again stated that the trial of the case would be time consuming because of the large number of checks and witnesses involved. The estimated numbers of each hovered at 100. Experienced defense counsel sat and listened to the description of what lay ahead. In these circumstances the following order was entered:

  ". . . discovery ordered closed March 1, 1974; on or
  before April 1, 1974 all parties shall submit
  pretrial materials to the trial judge consisting of
  stipulation of uncontested facts; agreed statement of
  contested issues; list of witnesses to be called by
  the parties, exhibits to be offered by the parties —
  pre-marked with copies of documents attached; trial
  briefs stating facts parties expect to prove and the
  theories of liability, together with authorities
  based thereon and authorities with respect to all
  anticipated evidence questions; suggested voir dire
  examination of the jury; suggested instructions [on]
  contested issues of fact. . . ."*fn4

In addition, a final pretrial conference was scheduled for April 8, 1974.*fn5

No objection to the pretrial order was voiced at the conference by counsel for any party, although counsel for the Government did observe that it was unusual and might provoke some interest in the office of the United States Attorney.

In the ensuing 3 1/2 months no objections were made. On the other hand, during that period, I did receive the advice of counsel for the Government and counsel for two of the defendants that they were contemplating changing their pleas to guilty.*fn6

On April 1, 1974, counsel for defendant Blackburn Jackson appeared at my chambers with his pretrial materials pursuant to the December 18 order. He stated that he was prepared to file the materials but had been advised by counsel for the Government that the Government was unwilling to comply with certain portions of the order. I instructed him to withhold his materials until he was assured that they would be met with reciprocity. He has, since then, filed the materials and they comply fully with the order.

At 4:21 p.m. on April 1, 1974, the due date for the pretrial materials, three and one-half months after the entry of the pretrial order, and without notice to the defendants or notice to or leave of court, the Government filed with the central filing office of the Clerk of the Court, a motion for "clarification" of the December 18, 1973 order. In that motion, for the first time, the Government asserted that "absent a showing of materiality and necessity . . . [a] district court is not authorized by the Federal Rules to order discovery of the Government's list of witnesses or theory of prosecution." The motion concluded that the Government sought "clarification of the order so as to be in a position to determine whether to obtain appellate review."

When the motion for "clarification" came to my attention on the morning of April 3, I instructed my minute clerk to notify the parties that I would hear them at 2:00 p.m. that afternoon. At that hearing the Government stated that the "clarification" which it desired was whether the court would make available to the defendant the names of the anticipated witnesses for the Government and the Government's theory of the case. In a colloquy which, I regret, was somewhat heated on my part, I made clear that I expected the Government to serve upon counsel for the defendants copies of any materials ...

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