United States v. Narciso

MEMORANDUM OPINION AND ORDER REGARDING DISCOVERY

PHILIP PRATT, District Judge.

During the months of July and August, 1975, 35 patients at the Ann Arbor Veterans Administration Hospital suffered a total of 51 cardiopulmonary arrests. An intensive epidemiological and criminal investigation was begun to determine the cause of these unexpected events. In June, 1976 a Grand Jury in this District returned an indictment charging the defendants with five counts of murder,

1

ten counts of unlawfully mingling a poison in the food and

*263

medicine of certain patients,

2

and conspiracy to commit those offenses.

3

Before turning to the precise issues before the Court, it is appropriate to discuss some of the aspects of this case in general terms so that the rulings which follow may be put in proper perspective.

The indictment presents charges that, in a most dramatic way, raise difficult issues of medicine and. law. The defendants are charged with a capital crime.

4

If convicted they could be sentenced to life imprisonment. The fact that the defendants were nurses at the Veterans Hospital at the time of these arrests has contributed to the intense public interest in the case.

5

Despite the eight month time interval between the arraignment and the scheduled commencement of trial, preparation has been time consuming and highly demanding. The list of complex, novel issues is quite lengthy. For example, during the course of the exhaustive pre-indictment FBI investigation new and intricate scientific tests were developed and hypnosis was employed in the process of questioning certain hospital patients. A determination as to the legal validity of either of these investigative techniques and the appropriate presentation of the issues has required extraordinary efforts by attorneys who are not well versed in the intricacies of chemistry and psychology. Nor is the case devoid of the more common problems in a criminal case. Motions with regard to the use of possible hearsay testimony, challenges to the accuracy of certain eyewitness testimony and extensive discovery motions have already been filed. These require substantial time commitments on both sides for proper preparation and presentation.

In addition to legal issues which must be resolved prior to the trial, there is a staggering amount of potential factual information which might be elicited at the trial. An exhaustive investigation by various federal agencies, continuing for approximately ten months, preceded the indictment in this case. The Ann Arbor Veterans Administration Hospital, site of the alleged crimes, is a

*264

430 bed acute-care institution which had a large staff and patient population. As is typical of acute-care hospitals, many of the staff and patients were no longer easily accessible after the incidents with which we are now concerned occurred. The task of fact gathering alone is a monumental one.

6

When combined with the preparation necessary for the legal motions discussed above, some of which involve complex and novel legal issues, some idea of the difficulty of the case can be gained. Current estimates for the length of the trial run from 4-6 months. What this amounts to is what some commentators describe as a “big” criminal case, see

Developments in the Law —Discovery,

74 Harv.L.Rev. 940, 1000 (1961), which will be very demanding for everyone involved.

Highly unusual cases of the type at bar are particularly appropriate for liberal discovery treatment. Numerous commentators have noted that increased pretrial discovery in criminal cases would help our trial courts achieve just decisions in a more efficient way. See, e. g.,

ABA Standards Relating to Discovery and Procedure Before Trial,

Part II, (1970);

Developments, supra,

at 1053-66:

“The belief that a criminal trial should be a balanced contest between adversaries has long been criticized as a ‘sporting theory of justice’ which is particularly inappropriate in light of the high stakes involved in criminal litigation . Insofar as the sporting theory suggests that broad disclosure is undesirable as an infringement upon the opportunity for ingenuity in the use of trial tactics, it would seem to conflict with the duty of the state’s prosecutor to seek results which are in accord with the facts rather than to achieve a record of indiscriminate convictions. If the use of discovery is likely to increase the probability that verdicts will be based on the facts rather than on clever trial maneuvers, its broad use in the criminal area would be desirable.”

Id.

at 1063.

Nonetheless our adversary system has traditionally afforded criminal defendants significantly less discovery than is available to a defendant in the civil law system. Damaska,

Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study,

121 U.Pa.L.Rev. 506, 533-6 (1973). Yet the recognition is growing that adjustments in the “sporting theory” are necessary if the adversary system is to reach verdicts that are consistently in accord with the underlying factual realities.

7

Even the authors of the Federal Rules of Criminal Procedure recognize this, for in commenting on the text of Rule 16 they said:

“The rule is intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge’s discretion to order broader discovery in appropriate cases.” 62 F.R.D. 307 -8 (1974).

Courts as well have, in certain limited cases of particularized need, exercised discretionary authority to order wide-ranging dis

*265

covery. In

U. S. v. Achtenberg,

459 F.2d 91 (8th Cir. 1972), the defendant, a student who was accused of setting fire to a campus ROTC building, requested the transcripts of Grand Jury testimony. In granting the request, the court said,

“A need for discovery because of the numerous potential witnesses and the fact that the student witnesses had scattered after the school year were asserted. Defendant’s contention was that the government had superior ability through the FBI to contact possible witnesses and that the time and expense of defendant in obtaining interviews with the many prospective witnesses would be prohibitive.”

Id.

at 96 .

In part, the

Achtenberg

court relied on the Supreme Court’s observation in

Dennis v. U. S.,

384 U.S. 855, 873 , 86 S.Ct. 1840, 1851 , 16 L.Ed.2d 973 (1966) that,

“In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact.”

In the case at bar, there is one additional factor to consider. One of the defendants is represented by appointed counsel. In addition to bearing the cost of the trial itself and the investigation of the alleged offense, the government is responsible for much of the cost of the defense as well under the Criminal Justice Act, 18 U.S.C. § 3006A. While this fact does not infringe on the Constitutional protections afforded a defendant in a criminal case and established law must not be ignored, it does suggest a persuasive reason for eliminating a duplication of effort and cost for which the government must pay. In short, the particular facts of this case persuade the Court that insofar as the law permits, maximum discovery should be ordered.

DISCUSSION

The defense has filed extensive discovery motions. In an effort to facilitate the discovery process the Court conducted several conferences akin to the Omnibus Hearings used in several United States District Courts around the country,

Cf.

37 F.R.D. 95 (1965).

8

These conferences resulted in substantial voluntary and mutual discovery.

9

There remain, however, several issues on which the parties are unable to agree. Accordingly, this opinion will resolve the discovery disputes which remain as to:

1. The discoverability of statements allegedly made by the defendants to third persons, not government agents, which are in the possession of the government;

2. The discoverability of certain FBI 302 forms;

10

*266

3. The discoverability of any overt acts not named in the indictment which will be relied upon at trial;

4. Whether certain FBI 302 forms never seen by the U.S. attorneys are discoverable under the dictates of

Brady v. Maryland,

373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963).

I.

Under the authority of F.R.Cr.P. 16(a)(1)(A) the defendants seek discovery of statements allegedly made by them to individuals not employed by the government, which are in the possession and control of government attorneys. The government asserts that such statements are manifestly beyond the purview of the rule and thus undiscoverable. The Rule in relevant portion provides,

“Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements 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; the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent . . . ”

There is some judicial opinion in support of the defendants’ position. The most detailed analysis of the problem is found in

U. S. v. Feinberg,

371 F.Supp. 1205 (N.D.Ill. 1974);

rev’d. in part

502 F.2d 1180 (7th Cir. 1974);

cert. denied,

420 U.S. 926 , 95 S.Ct. 1122 , 43 L.Ed.2d 396 (1975). In

Feinberg

the trial judge faced the identical issue presented here and determined that the literal interpretation of the rule, and the one most consistent with its purpose, was that “disclosure may be ordered of statements made by a defendant regardless of to whom they were made.”

U. S. v. Feinberg, supra,

at 1211. Aside from the language of the rule itself, the district court’s opinion notes that one of the purposes of the rule is to apprise the defendant of statements he may not always be aware of which are in the possession of the government. This approach to the problem has found favor elsewhere.

U. S. v. Walk,

533 F.2d 417 (9th Cir. 1975) (dissenting opinion);

U. S. v. Morrison,

43 F.R.D. 516 (N.D.Ill.1967);

U. S. v. Baker,

262 F.Supp. 657, 671-2 (D.D.C. 1966). See also views of Representatives Holtzman and Drinan, H.R. 94-247, 1975 U.S.Code Cong, and Admin.News, 706.

The government’s position finds support in

U. S.

v.

Walk, supra; U. S. v. Pollack,

175 U.S.App.D.C. 227 , 534 F.2d 964 (1976). These decisions read the Rule to limit such statements to those obtained by the government

directly

from the defendant and not through any third party. The rationale of these cases is (1) consistency with the Jencks Act, and (2) avoidance of the possibility of revealing statements that are too far removed from the supposed source to be reliable.

The intermediate position is that while statements made by defendants to third persons, not agents of the government, may come within the ambit of the rule, they are discoverable only as provided for by the Jencks Act, 18 U.S.C. § 3500 .

U. S. v. Callahan,

534 F.2d 763 (7th Cir. 1976);

U. S.

v.

Feinberg,

502 F.2d 1180 ;

U. S. v. Kenny,

462 F.2d 1205 (3rd Cir. 1972);

U. S. v. Pastor,

419 F.Supp. 1318 (S.D.N.Y.1976);

U. S. v. Smith,

405 F.Supp. 144 (E.D.Pa.1975);

U. S. v. Dorfman,

53 F.R.D. 477 (S.D.N.Y. 1971),

aff’d.

470 F.2d 246 (2d Cir. 1972). This approach is bottomed on F.R.Cr.P. 16(a)(2) which provides that “statements made by government witnesses or prospective government witnesses” may not be discovered except as provided for in the Jencks Act.

11

It is premised on the desire

*267

of Congress to protect potential witnesses from threats of bribery or coercion and to protect government files against unwarranted and excessive intrusions.

U. S. v. Walk, supra; U. S. v. Feinberg,

502 F.2d 1180 ,

supra.

In

U. S. v. Wilkerson,

456 F.2d 57 (6th Cir. 1972),

cert. denied,

408 U.S. 926 , 92 S.Ct. 2506 , 33 L.Ed.2d 337 (1972), the Court of Appeals for this Circuit ruled that a statement in an FBI memorandum recording a conversation with a government witness which included a confession by the defendant was discoverable only through the Jencks Act. The court went on to say, however, that the government’s answer to defendants’ request for the production of any relevant statements made by the defendant was lacking in candor:

“The better response would have been to say that the Government did have a statement from a witness who was to be called to testify, and that this statement concerned admissions made by the defendant to the witness at a previous time, but that the statement of the witness, in the Government’s view, was not producible under Rule 16(a).”

U. S.

v.

Wilkerson, supra,

at 61 .

Accord: U. S.

v.

Feinberg,

502 F.2d 1180 ,

supra.

See

U. S. v. Cannone,

528 F.2d 296 (2nd Cir. 1975).

In light of the foregoing, the Court concludes that Rule 16(a)(1)(A) does encompass statements made by the defendants, regardless of to whom they were made.

12

However, the Jencks Act governs the discoverability of such statements as were made to government witnesses. As to statements made to persons not government witnesses, known to the government, those statements are discoverable. If the government is aware of any such statements not recorded on the non-witness 302 forms that have been turned over to the defense counsel, it is hereby ordered to provide those forthwith. As to such third party statements in the possession of the government of prospective witnesses, the government is ordered to provide the defense, forthwith, with

1. The fact of such a statement;

2. Whether a recordation of such statement exists in any form whatsoever;

3. The name and address of the individual to whom the statement was made; and

4. The date on which and place where the statement was made.

These orders are made under the Court’s discretionary power to control discovery granted under Rule 16.

13

Should the government present valid written reasons, an appropriate protective order will be issued.

II.

The major area of contention between the parties concerns the discoverability of the FBI 302 forms. There are three categories of 302 forms with which the Court is concerned: (1) 302’s in the possession of government attorneys relating to government witnesses; (2) 302’s relating to individuals whom the government does not intend to call; and (3) 302’s in the possession of the FBI, relating to individuals not prospective government witnesses which have

*268

never been seen by any U.S. attorney at all. The defense has, in effect, requested discovery of all such 302 forms in the government’s possession. As indicated previously, the government has agreed to provide the defense with 302 forms in the second category. As to the other categories, the government asserts that they are not discoverable because they do not come within the parameters of the Jencks Act. This discussion will first concern itself only with 302’s relating to prospective government witnesses.

14

The Jencks Act, 18 U.S.C. § 3500 ,. provides that no

statements

or

reports

made by prospective government witnesses in the possession of the government may be discovered until the witness completes direct examination.

15

The government claims that 302 forms are not “statements” within the meaning of the Act. The Act defines a “statement” as

“(1) a written statement made by said witness and signed or otherwise adopted or approved by him;

(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is substantially a verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement ’. . .” 18 U.S.C. § 3500 (e).

The government represents, and the experience of the Court confirms, that in this District the overwhelming majority of witness statements are memorialized in FBI 302 forms or their equivalent. It is usually the case that a government agent speaks with a potential witness and then returns to the office and dictates a report from either his notes or his memory. These reports are generally provided routinely at trial as Jencks material, albeit excised to delete the conclusions of the interviewing agent.

The Supreme Court first construed the definition of “statement” as used in the Jencks Act in

Palermo v. U. S.,

360 U.S. 343 , 79 S.Ct. 1217 , 3 L.Ed.2d 1287 (1959). In

Palermo ,

the defense sought discovery of a 600 word memorandum which summarized parts of a three and one-half hour conversation. The Supreme Court affirmed the trial court’s refusal to permit discovery of the statement. In the course of holding that the report was not a “statement” within the meaning of the Jencks Act, the Court said, the Jencks Act

“. . . was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital. Quoting out of context is one of the most frequent and powerful modes of misquotation. We think it consistent with this legislative history, and with the generally restrictive terms of the statutory provision, to require that summaries of an oral statement which [1] evidence substantial selection of material, or [2] which were prepared after the interview without the aid of complete notes and hence rest on the memory of the agent, are not to be produced.” 360 U.S. at 352-3 , 79 S.Ct. at 1225 .

The Court noted that,

“In expounding this standard we do not wish to create the impression of a ‘delusive exactness.’ The possible permutations of fact and circumstance are myriad. Trial courts will be guided by the indicated standard, informed by fidelity to the congressional purpose we have outlined.” 360 U.S. at 353 , 79 S.Ct. at 1225 .

Thus,

Palermo

provides the Court with a general standard which it must apply to the facts of the case before it.

*269

The Court has the obligation to inquire into the circumstances of the making of these statements to determine if they come within Jencks.

Goldberg v. U. S.,

425 U.S. 94 , 96 S.Ct. 1338 , 47 L.Ed.2d 603 (1976);

Campbell v. U. S.,

365 U.S. 85 , 81 S.Ct. 421 , 5 L.Ed.2d 428 (1961). The focus of the inquiry has been variously characterized, but it is clear that the inquiry depends on “the good sense and experience of trial judges” subject to appellate review.

U. S. v. Stephens,

492 F.2d 1367 (6th Cir. 1974). Generally, the Court must determine if the contents of the 302 were read to and approved by the potential witness, were signed by him or was a contemporaneously recorded, substantially verbatim recital.

Campbell v. U. S., supra.

In more general terms, Justice Stevens said that the inquiry should be directed to determining whether the circumstances are such that it would be fair to permit either party to use the statement at trial to refresh recollection or impeach credibility.

Goldberg v. U. S., supra,

425 U.S. at 114 , 96 S.Ct. 1338 (concurring opinion).

16

When

Campbell

came to the Supreme Court for the second time,

Campbell v. U. S.,

373 U.S. 487 , 83 S.Ct. 1356 , 10 L.Ed.2d 501 (1963), the majority held that a statement copied from notes which had been read to and approved by a government witness came within the definition of “statement” provided by 18 U.S.C. § 3500 (e)(1). In upholding the trial court’s determination that the oral reading of the notes was for the witnesses’ approval and that the interview report was an accurate copy of the then destroyed notes, the Supreme Court said,

“The district judge was entitled to infer that an agent of the Federal Bureau of Investigation of some 15 years’ experience would record a potential witness’ statement with sufficient accuracy as to obviate any need for the courts to consider whether it would be ‘grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness’ own.’

Palermo v. United States, supra,

360 U.S. at 350 , 79 S.Ct. 1217 .”

Campbell v. U. S.,

373 U.S. at 495, 83 S.Ct. at 1361.

Given these general guidelines, the Court is of the opinion that in the case at bar the 302 forms relating to potential government witnesses presumptively come within the Jencks Act as either statements approved by witnesses or substantially verbatim recital of such statements. After viewing numerous such statements in other cases, as well as some of the records and investigative techniques utilized by the FBI in this case, the Court is convinced that it would be a rare instance when the reports would either

“(1) evidence substantial selection of material, or

(2) which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent . . . ”

Palermo v. U. S., supra,

360 U.S. at 353 , 79 S.Ct. at 1225 .

Thus, the

Palermo

standard for prohibiting production is not normally met. Given the expected number of witnesses in this case (well in excess of 100), and the normally thorough practice of FBI agents in interviewing, this presumptive approach is the most feasible. Were the Court to hold hearings into the discoverability of each and every 302 form involved, the already severe docket problems of this Court would become completely unmanageable. This decision also comports with the Congressional purpose to promote, rather than hinder, discovery. The Court will, however, be vigilant to protect the rights of the government and its witnesses. In particular cases of real need, the government may present a 302 form together with a request for a protective order which will be granted if the interests of justice so dictate. The Court will also insure, and all attorneys in the case will be expected to assist in .this undertaking, that examination of witnesses will not be sidetracked unnecessarily into inquiries using the words of FBI agents,

*270

instead of the witnesses themselves. To decide otherwise would, however, make it too easy for the government to immunize from discovery material that Congress clearly intended to be made available to a defendant, merely by varying the technique of interrogation. The Court is concerned that the rights of defendants may be restricted unnecessarily by a reliance on form over substance.

U. S. v. Lewis,

167 U.S. App.D.C. 232, 236, 511 F.2d 798, 802 (1972);

Cf. U. S. v. Morrison, supra,

43 F.R.D. at 519 .

The government next argues that if the 302 statements are found to come within the Jencks Act, they are made expressly discoverable only

after

the witness has finished testifying on direct examination. The statute does so provide. 18 U.S.C. § 3500 (a). The statute also provides that,

“Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial.” 18 U.S.C. § 3500 (c).

Thus, in view of the complexity of the case and the large number of witnesses, strict adherence to the schedule imposed by the Jencks Act can be expected to lengthen the trial considerably beyond its currently projected four to six month length. Needless to say, the recesses occasioned by delayed production of Jencks Act material, caused by the necessity of giving defense counsel time to assess the 302s so that adequate assistance of counsel can be afforded, will seriously hamper the efficient, orderly and fair conduct of the trial. The subject of the trial will be difficult enough for the parties, the Court and jurors to assimilate without the added hindrance of numerous delays.

Courts have long recognized that they have inherent power not limited by statute or rule to insure that due process of law is provided and that criminal trials are fair and efficient.

U. S. v. Jackson,

508 F.2d 1001 (7th Cir. 1975);

U. S. v. Cammisano,

413 F.Supp. 886 (W.D.Mo.1976); 17.

S. v. Germain,

411 F.Supp. 719 (S.D.Ohio 1975);

U. S. v. Winchester,

407 F.Supp. 261 (D.Del. 1975). Such power has traditionally been used sparingly. • However, this case presents the Court with a truly extraordinary situation. It has been recognized that delays in the trial process because of repeated recesses can interfere with the fair administration of criminal justice.

U. S. v. Goldberg,

336 F.Supp. 1 (E.D.Pa.1971). More significantly, denial of the information requested here, because of an overly strict adherence to the Jencks Act raises potential deprivations of due process and effective assistance of counsel. See

Palermo v. U. S.,

360 U.S. 343 , 79 S.Ct. 1217 , 3 L.Ed.2d 1287 (Brennan J., concurring);

U. S. v. Moceri,

359 F.Supp. 431 (N.D.Ohio 1973). Both of these problems present themselves in this case in ways that are much more immediate than in any of the reported cases this Court has examined.

It is axiomatic that when fundamental constitutional guarantees are involved, the statutes of Congress must give way to the enforcement of the constitutional right. In

U. S. v. Nixon,

418 U.S. 683 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974), the Supreme Court held that a presumptive privilege “fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution

. must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that ‘the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer.’

Berger v. United States,

295 U.S. [78] at 88, 55 S.Ct. 629 , 79 L.Ed. 1314 . We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The

*271

very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.” 418 U.S. at 708-9 , 94 S.Ct. at 3108 .

While the Chief Justice was referring in

Nixon

to the necessity of producing evidence at trial, the principle is the same: when two principles of law conflict with one another the criminal justice system demands that the principle favoring greater discovery in favor of the accused must prevail, particularly where, as here, the principle favoring disclosure is of constitutional origin.

Upon consideration, the interests of due process of law, effective assistance of counsel and the fair and efficient conduct of criminal trials require that in the very particular facts of this case, the time restrictions of the Jencks Act be overridden. It is to be stressed that this ruling is limited in nature and is compelled by the constitutional considerations referred to. Therefore, the government will be required to turn over to the defendants by January 10, 1977 FBI 302 forms relating to the anticipated testimony of potential government witnesses. Any requests for protective orders must be filed with the Court by that date in lieu of production to the defense. It is expected that all defense counsel will cooperate with the Court to insure an orderly, fair trial within the parameters set forth above.

III.

The defendants have requested production of all FBI 302 forms in the possession of the government which have never been examined by government counsel. The government responds that 50-60 per cent of the reports collected by the FBI in their investigation of this case fall within this category. They assert that in accordance with its statutory and professional responsibility the FBI has turned over to the U. S. Attorney’s office all relevant reports. While the government accepts and even embraces the dictates of

Brady v. Maryland, supra,

it asserts, without having examined them, that no

Brady

material exists in this last category of 302 forms.

Brady

is emphatically a duty on the prosecutor to disclose evidence. No authority has been presented to the Court that agents of the FBI, who are not attorneys nor officers of the Court, are legally competent nor that the prosecutorial duty is delegable to them. Here the defense has made particularized requests for

Brady

material. As observed in

U. S. v. Agurs,

427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976), “if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge.” The

Agurs

court noted that a prudent prosecutor will resolve doubt in favor of disclosure.

In view of the nature of the request, and considering the fact that the U. S. attorneys in charge of this case have consistently refused to examine this material themselves, the Court will order that it be made available to defense counsel for their examination. In view of the government’s assertion that none of this material is relevant, there can be no likely damage to the government’s case. Nor in view of the assertion of the government should the Court be compelled to sift through this huge mass of material. An appropriate protective order can easily be drafted to protect the privacy of the persons interviewed.

IV.

Finally, the government declines to identify, in response to a request in a bill of particulars, the overt acts to be relied upon by the government at trial which are not named in the indictment. More specifically, the defendants seek to discover which, if any, of the other 36 respiratory arrests which occurred during the alleged conspiracy period will be relied upon. A district court has broad’ discretion to compel or decline to compel answers to bills of particular.

Will v. U. S.,

389 U.S. 90 , 88 S.Ct. 269 , 19 L.Ed.2d 305 (1967);

Wong Tai v. U. S.,

273 U.S. 77 , 47 S.Ct. 300 ,

*272

71 L.Ed. 545 (1927); F.R.Cr.P. 7(f). As indicated while the indictment charges 15 respiratory arrests, in actuality 51 occurred at the Hospital during the relevant period. The medical records relating to the 15 charged arrests are voluminous. There is no reason to doubt that the medical records of other patients suffering such arrests will be less so. In order to be effective, defense counsel need to know which, if any, of the other 36 arrests they must concern themselves with and prepare for at trial. In view of the possible delays at trial if the defense is surprised, and the fact that investigation of all 36 other arrests would impose undue costs on the defense and the government

17

the Court will require the government to provide the defense with a list of the names of patients suffering arrests which the government will prove at trial, including the date and time of the alleged arrest.

The foregoing determinations, it should be emphasized, are reached with particular regard to the facts of this unusual case. It is the Court’s considered judgment that the discovery ordered here must take place if a fair and expeditions trial is to be had.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO STRIKE

The above named defendants in this criminal action have moved to strike the non-murder, poisoning counts

1

of the indictment against them and the overt acts related to such counts.

2

These counts charge the defendants with mingling poison and conspiring to mingle poison with the food or medicine of certain persons with intent to injure them in violation of the Michigan criminal law, M.C.L.A. 750.436, and the federal Assimilative Crimes Act, 18 U.S.C. § 13 . It is the defendants’ contention that such acts may be brought as a criminal violation under the federal assault statute, 18 U.S.C. § 113 (under one or more of its subsections) and therefore, by the very terms of the Assimilative Crimes Act, the federal offense must be charged and the state provisions are inapplicable. The government resists such a motion, relying primarily on the thesis that even if these acts could be charged under the federal assault statute, they are better described by and fit more precisely within the terms of the state statute, and may be charged pursuant to the Assimilative Crimes Act.

DISCUSSION

As an initial precept, the Court must reject the government’s contention that these acts could be charged under

either

the state poisoning statute or the federal assault statute and that the prosecution has discretion to choose the statute which best suits its theory and strategy of the case.

The Assimilative Crimes Act provides: “Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of anv act or omission which, although not made punishable hv anv enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State. Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.” (Emphasis added).

The government would read this underscored language to indicate the Congressional intention that the Assimilative Crimes Act would apply unless a statute of Congress expressly forbade, in legal terms, the precise act at issue. Thus, under the government’s view, as long as the state statute brought to bear through the Assimilative Crimes Act presents a “different theory” than an arguably relevant federal statute, an indictment under the state statute is permissible.

Accord: Fields v. U. S.,

438

*273

F.2d 205 (2nd Cir. 1971);

cert. denied,

403 U.S. 907 , 91 S.Ct. 2214 , 29 L.Ed.2d 684 (1971).

Shirley v. U. S.

404 F.Supp. 675 (E.D.Tenn.1975);

U. S. v. Chapman,

321 F.Supp. 767 (E.D.Va.1971);

U. S. v. Jones,

244 F.Supp. 181 (S.D.N.Y.1965);

aff’d. on other grounds,

365 F.2d 675 (2d Cir. 1966). The defendants, on the other hand, contend that the plain meaning of the statute is that as long as

any

enactment of Congress prohibits the acts charged under state law and the Assimilative Crimes Act, a federal court is jurisdictionally limited only to the federal statute. Thus, in the defendants’ view, if the “generic” conduct charged in the indictment is prohibited by an Act of Congress, the government may proceed only under the federal statute.

Accord: U. S. v. Butler,

541 F.2d 730 (8th Cir. 1976);

U. S. v. Big Crow,

523 F.2d 955 (8th Cir. 1975);

cert. denied,

424 U.S. 920 , 96 S.Ct. 1126 , 47 L.Ed.2d 327 (1976);

U. S. v. Word,

519 F.2d 612 (8th Cir. 1975);

cert. denied,

423 U.S. 934 , 96 S.Ct. 290 , 46 L.Ed.2d 265 (1976);

U. S. v. Olvera,

488 F.2d 607 (5th Cir. 1973);

cert. denied,

416 U.S. 917 , 94 S.Ct. 1625 , 40 L.Ed.2d 119 (1974);

U. S. v. Patmore,

475 F.2d 752 (10th Cir. 1973);

U. S. v. Robison,

376 F.Supp. 1024 (D.Hawaii 1974).

The Supreme Court’s few decisions interpreting the Assimilative Crimes Act give no definitive answer to the question posed.

See

Note, Federal Assimilative Crimes Act, 70 Harv.L.Rev. 685, 692 (1957). Most recently, the Court held that the Assimilative Crimes Act is constitutional insofar as it makes state laws enacted after the 1948 codification of 18 U.S.C. § 13 applicable to federal reservations.

U. S. v. Sharpnack,

355 U.S. 286 , 78 S.Ct. 291 , 2 L.Ed.2d 282 (1958). Since it was not faced with the precise question before the Court now, it is not surprising that there is little guidance in that opinion. The Court merely observed that:

“Congress thereby made it clear that, with the exception of the enlarged list of offenses specifically proscribed by it, the federal offenses in each enclave were to be identical with those proscribed by the state in which the enclave was situated.” 355 U.S. at 290 , 78 S.Ct. at 294 . See

Franklin v. U. S.,

216 U.S. 559 , 30 S.Ct. 434 , 54 L.Ed. 615 (1910).

Some indication of what was intended by “offenses specifically proscribed” is found in

Williams v. U. S.,

327 U.S. 711 , 66 S.Ct. 778 , 90 L.Ed. 962 (1946). In

Williams

a person had been convicted of statutory rape committed on an Indian reservation. Arizona law made the age of consent 18, federal law, 16. The Court held that a conviction under the Arizona statute and the Assimilative Crimes Act could not be had where the victim was between the ages of 16 and 18 because several federal statutes governed the “precise acts” of the defendant and the Court would not countenance the redefinition and enlargement of such federal statute as fornication, adultery, and rape. In a footnote, the Court elucidated its reasoning in terms applicable to the case at bar.

“Arizona’s definition of rape and the punishment that Arizona prescribed for its commission differ from those relating either to rape or carnal knowledge under the Federal Criminal Code. These differences well illustrate the confusing variation from the definition of a federal crime and from provision for its punishment which would have to be considered if indictments were permitted under the Assimilative Crimes Act for every act committed within a federal enclave and which might come within a State’s enlargement of the same offense.” 327 U.S. at fn. 11, 66 S.Ct. at fn. 11, p. 781.

The legislative history of the Assimilative Crimes Act is consistent with this restrictive view of the Act’s reach. Originally the Act was passed as Section 3 of the Act of 1825 to fill voids in the then extremely skeletal Federal Criminal Code. Justice Story, author of the Act said of it

“The criminal code of the United States is singularly defective and inefficient . . Few, very few, of the practical crimes (if I may so say) are now punishable by statutes, and if the courts have no general common-law jurisdiction (which is a vexed question), they are wholly dis-punishable. The state courts have no jurisdiction of crimes committed on the high

*274

seas, or in places ceded to the United States. Rapes, arsons, batteries, and a host of other crimes may in these places be now committed with impunity. . These are cases where the United States have an exclusive local jurisdiction. And can it be less fit that the Government should have power to protect itself in all other places where it exercises a legitimate authority? That Congress has power to provide for all crimes against the United States is incontestible.” Quoted in

U. S.

v.

Press Publishing Co.,

219 U.S. 1, 12 , 31 S.Ct. 212, 215 , 55 L.Ed. 65 (1910).

Times have changed considerably, since Justice Story’s day. The Federal Criminal Code has expanded greatly. Indeed, unlike the early 19th century, Congress now has provided specific statutes dealing with assaults. 18 U.S.C. § 113 . In commenting on the relationship between federally defined sex crimes and the Assimilative Crimes Act in

Williams v. U. S., supra,

the Supreme Court said:

“The interesting legislative history of the Assimilative Crimes Act discloses nothing to indicate that, after Congress has once defined a penal offense, it has authorized such definition to be enlarged by the application to it of a State’s definition of it.

It has not even been suggested that a conflicting State definition could give a narrower scope to the offense than that given by Congress.

3

We

believe that, similarly, a conflicting State definition does not enlarge the scope of the offense defined by Congress. The Assimilative Crimes Act has a natural place to fill through its supplementation of the Federal Criminal Code without giving it the added effect of modifying or repealing existing provisions of the Federal Code.” 327 U.S. at 718 , 66 S.Ct. at 782 . (Emphasis supplied).

The reasoning the government would have the Court adopt is best exemplified by the case of

Fields v. U. S., supra.

In

Fields

the Second Circuit Court of Appeals upheld the conviction of a man who was accused of shooting with intent to kill, wound and maim under the Assimilative Crimes Act and an Ohio statute. Noting that the government could have proceeded under the federal assault statute, the court nonetheless upheld the conviction saying

“where the state statute proved a theory essentially different from that provided in the federal statute, the government can proceed under either statute . what the government may not do is proceed under the state statute when the precise act is prohibited by a federal statute.”

Fields v. U. S., supra

at 207-8.

The difference the

Fields

court found was that federal law prohibited assaults while Ohio law prohibited certain batteries, thus fitting the facts of the case “more precisely”

This approach does violence to both the plain wording and the purpose of the Assimilative Crimes Act. The Act plainly is not operative when “any enactment of Congress” speaks to the conduct charged. The legislative history, dating back to the very beginnings of the Act, shows that it was intended to be interstitial in character. State crimes were to be assimilated when

nothing

in the federal criminal code spoke to the allegedly criminal conduct. The fact that the federal criminal code is now more extensive than formerly does not change this legislative purpose. Should it so desire, Congress could easily delete the phrase in the Act that refers to “any enactment” and replace with words that clearly adopt the construction the government urges here. Until it does so, the Court is persuaded that

U. S. v. Butler, supra,

and the cases therein are correct. If the generic conduct with which a defendant is charged is prohibited by

any

act of Congress, a federal court is without jurisdiction to entertain a charge under the Assimilative Crimes Act. Were it otherwise, the Act would simply be a device enabling prosecutors a wider choice of possible charges than that provided in

*275

the federal criminal code, a policy decision not entrusted to the courts.

For the reasons stated above the Court cannot accept the government’s primary argument in opposing this motion. This, however, does not end the inquiry. For while the defense assumes and the government concedes that the acts of poisoning as charged under this indictment constitute a federal assault, this Court can accept such an assumption uncritically only at its peril. The coverage of the federal assault statute is a question of law which is not subject to stipulation of the parties, but rather must be decided by the Court.

The issue at hand is whether it was the intent of Congress that any of the provisions of the federal assault statute should apply to an act of poisoning, particularly under the proofs and theory which the government intends to present in the present case. Unfortunately there is a dearth of legislative history relating the intent of Congress (if any intent was manifested) when that section was passed. The Court is, therefore, relegated to the task of construing the intent of the legislature with little historical assistance.

Some guidance was given in

U. S. v. Turley,

352 U.S. 407 , 77 S.Ct. 397 , 1 L.Ed.2d 430 , where the Court said:

“We recognize that where a federal criminal statute uses a common-law term of established meaning without defining it, the general practice is to give that term its common-law meaning.” 352 U.S. at 411 , 77 S.Ct. at 399 .

But the Court in that case went on to conclude that the term “stolen”

had

no accepted common-law meaning. It then stated:

“Freed from a common-law meaning, we should give ‘stolen’ the meaning consistent with the context in which it appears. . It is, therefore, appropriate to consider the purpose of the Act and to gain what light we can from the legislative history.” 352 U.S. at 413 , 77 S.Ct. at 400 .

In this case the defense contends that “poisoning” has uniformly been held to constitute an assault or assault and battery at common law,

4

citing several state decisions in support of this contention. Although not cited by the defendants, the Court also notes that 6A C.J.S.

Assault and Battery

§ 70 states that:

“administering poison or any other harmful drug or substance to a person, with intent to inflict injury, amounts to an assault and battery."

For several reasons, however, this Court is not persuaded by this argument. In the first instance the cited case law can be countered with other state decisions to the contrary.

See People v. Sanford,

65 Mich. App. 101 , 237 N.W.2d 201 (1975);

Madden v. State,

1 Kan. 340 (1862). The statement in C.J.S. is supported by case law from only three states, all mentioned by defendant.

Secondly the older cited cases in several instances conflict with the present legal view within the respective states. Thus, while

Carr v. State,

135 Ind. 1 , 34 N.E. 533 (1893) supports the view that “an assault is involved in the unlawful infliction of an injury by administering poison,” the state has an explicit poisoning statute, Ind.Stat. § 35-1-57-1, very similar in form to that of Michigan.

This fact leads to the final reason for the Court’s conclusion, namely that whatever the scope of “assault” under the criminal “common law,” the criminal common law has almost universally been discarded by or subsumed under state statutory criminal codifications, which control both the scope and nature of criminal acts and their punishment.

5

To the extent that state criminal codes and their periodic revision now represent the evolution of the criminal common law, one can.find no uniform treatment of the criminal act of administering poison. A survey of state criminal law in 40 of the 50 states reveals three separate

*276

approaches to criminalizing the act of poisoning. Some states have separate poisoning statutes, apart and distinct from assault statutes; others have assault and assault and battery statutes, which specifically mention poisoning under a certain degree of the crime, (i. e., aggravated assault); in the last group of states there is no explicit mention of poisoning in the criminal code and it is presumed (or made clear) that the act is covered by the assault provision. There is no clear majority among these groups to indicate the prevailing view regarding the nature of the crime of poisoning.

The Court therefore, is left with the conviction that, as in

Turley, supra,

there is either no clear common law rule including poisoning within the concept of assault, or if such did at one time exist, it no longer has any application in reality. It then must turn to other indications of legislative intent, including the general context of the federal criminal statutes.

Although it is recognized “that in the absence of a plain indication of an intent to incorporate diverse state laws into a federal criminal statute, the meaning of the federal statute should not be dependent on state law,”

United States

v.

Turley, supra, Jerome v. United States,

318 U.S. 101 , 63 5. Ct. 483, 87 L.Ed. 640 (1943), this does not mean that state views should be totally ignored. The very existence of the Assimilative Crimes Act witnesses Congress’ awareness of pertinent state criminal codes and their applicability in federal actions. Looking at the state codes, one does find a fairly common thread that the act of wilfully poisoning another person must be treated as a serious felony and not merely as a misdemeanor. Therefore, some states explicitly or implicitly encompass this act within the felony of “aggravated assault,” or “assault with a dangerous weapon;” others, as indicated above, have separate felony provisions on poisoning. No state statute or recent decision has been found which punishes one for administering poison with intent to injure as a mere misdemeanor (i. e., simple assault) with little or no expectations of confinement in the sentence. Yet the defendants here would contend that the charged act of administering a drug to precipitate respiratory arrests can come within § 113(e): “simple assault (a misdemeanor), by fine of not more than $300 or imprisonment for not more than three months

The context of the federal criminal code under other prosecutable actions indicates that Congress did intend that the act of poisoning merit more serious consequences. Thus, under 18 U.S.C. § 1111 (a), any “murder perpetrated by poison” is described as a “willful, deliberate, malicious and premeditated killing” for which a convicted defendant “shall suffer death” (unless the jury qualifies the sentence).

6

It is considered equivalent to felony murder in seriousness, while any other murder is considered to be “murder in the second degree,” punishable by imprisonment “for any term of years . . . ” This Court believes it would have been inconsistent to elevate murder by poisoning to first degree murder yet provide the poisoning with intent to injure be considered a misdemeanor only. For these reasons this Court concludes that it was not Congress’ intent to include the administration of poisoning with intent to injure within the scope of § 113(e).

Equally clearly, the charged conduct is not comprehended by § 113(a) (assault with intent to commit murder); by § 113(b) (assault with intent to commit any felony except murder or rape) or by § 113(d) (assault by striking, beating or wounding). This leaves only § 113(c) as a potential federal assault charge for these actions.

Section 113(c) refers to “assault with a dangerous weapon, with intent to do bodily harm . . . ” The Bill of Particulars filed in this action by the government states that the defendants’ conduct relevant

*277

to the so-called “poisoning counts” of the indictment consisted of injecting a muscle relaxant drug into the intravenous tubing of hospital patients, using a syringe. The issue, therefore, is whether this specifically charged action would constitute an “assault with a dangerous weapon” under federal law.

It is recognized that it is the device’s latent capability, coupled with the manner of its use, which is determinative of whether an object can be characterized as a dangerous weapon.

U. S.

v.

Johnson,

324 F.2d 264 (4th Cir. 1963). Under such an expansive concept it is manifestly conceivable that a syringe or hypodermic needle could be used against the person of another as a “dangerous weapon.” It seems to this Court much more questionable when the syringe is injected, not directly into the person of another, but rather into a piece of tubing which is in turn connected to the patient. A syringe used for injecting is clearly not a dangerous weapon per se; but rather such a classification depends on what is being injected. In the traditional “dangerous weapon-assault” case, the dangerous weapon produces the injury. As charged here the syringe was merely a vehicle for effecting the entry of the muscle relaxant drug into the intravenous tubing. It is unclear at this stage whether the government intends to prove syringe injection piercing the wall of the tubing or injection through a disattached end of the tubing. The Court queries whether, if the latter, an eyedropper might not effect the same result. If so, would use of an eyedropper causing the same result make

it

a “dangerous weapon?” Clearly it is the “poison,” (the muscle relaxant in this case) which causes the injury. However, no federal case has been cited in which poison, per se, is considered to be a “dangerous weapon.”

The state views are conflicting in this regard. Some state laws implicitly include the use of poisoning within their “assault with a deadly (or dangerous) weapon” provision.

See

Ga.Code § 26-1302; La.Rev. Stat.Ann. § 14:33.1, § 14:34; Me.Rev.Stat. Tit. 17-A § 208, § 209; N.C.Gen.Stat. § 14-31. The majority of states, however, as mentioned above, have specific poisoning statutes or refer explicitly to poisoning as an example of “aggravated assault.”

Considering the lack of any express legislative intent, the absence of federal decisions on this issue, the lack of any clear indication that either the use of a syringe or the use of poison itself comprises a “dangerous weapon” within the meaning of § 113(c), the conflicting views of the several states and the availability of the Assimilative Crimes Act, this Court concludes, that as a matter of law, the specific acts charged do not constitute an “assault with a dangerous weapon” under the federal criminal code and the charge of the state poisoning counts pursuant to the Assimilative Crimes Act is, therefore, proper and correct.

Accordingly, defendants’ motion to strike the state poison counts is denied.

IT IS SO ORDERED.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO SUPPRESS TESTIMONY OF RICHARD NEELY

On the night of July 30, 1975, while a patient at the Ann Arbor Veterans Administration Hospital, Richard Neely suffered a respiratory arrest from which he subsequently recovered. He was questioned about the events occurring before the arrest by agents of the Federal Bureau of Investigation on August 20, 1975 and again on October 21, 1975. During both of those interviews Mr. Neely stated that he had no memory of any events just prior to the arrest. He viewed a group of several photographs, which did not include a picture of defendant Perez, at the second interview.

On December 16 and 17, 1975, Mr. Neely voluntarily submitted to interrogation while in an hypnotic state. On December 16, during a session lasting about one hour Mr. Neely narrated certain events he believed occurred the ,night of his respiratory arrest, and described in a vague way two individuals he believed were by his bedside that night but made no identification. Later, the night of December 16, while not in a

*278

hypnotic trance, Mr. Neely was visited by an FBI agent who encouraged him to tell everything he knew so that the perpetrators of crime could be brought to justice. The next day, during another hour-long hypnotic session, Mr. Neely again recounted certain events and described, in a vague way, certain individuals he felt were at his bedside just before the arrest. At the end of the session, after coming out of the hypnotic state, Mr. Neely was shown a group of photographs which did include the picture of defendant Perez. While he stated that he recognized Mrs. Perez as one of his nurses, he did not make any identification of an individual who he believed had been in his room immediately prior to the arrest.

On January 9,1976, while a patient at the hospital, Mr. Neely spontaneously told FBI agents that he knew who the individual in his room was. The agents again showed Mr. Neely the photographs exhibited to him on December 17. He immediately and unqualifiedly selected the photograph of defendant Perez.

In addition, Neely had several conversations with others in which he appeared to display a lack of memory of the pertinent events or the identification of persons other than the defendants. Thus, during the course of the hypnotic sessions he referred to a Caucasian nurse and a Mexican male employee being in his room immediately before the arrest. On December 17, 1975, after the hypnotic session, he identified a person who is not shown to have any connection with this case as one of the nurses who harmed him after he had been told she was a Filipino.

Pursuant to a court order, Mr. Neely’s deposition was taken in early October, 1976.

1

At the deposition, while under oath, Mr. Neely stated that he had known from the time of the arrest that it was Mrs. Perez who was in his room immediately prior to his arrest, but that he purposely did not tell the FBI about her in order to protect her. He testified that he had even gone so far as to pass over her picture knowingly without comment on three occasions when FBI agents displayed it to him for purposes of identification. He stated that he began to doubt his decision to say nothing about Mrs. Perez’ presence in his room during his conversation with the FBI agent the night of December 16, 1975. He testified at the deposition that he finally changed his mind on January 9, 1976, at which time he immediately informed the FBI of the true facts. Mr.. Neely stated that inasmuch as he remembered the events of the night in question all along, the hypnotic session had no effect on his memory.

Count I, paragraph 8, and Count VI of the Superseding Indictment allege that the defendants unlawfully poisoned Richard Neely on July 30, 1975. The defendants have moved to suppress all testimony by Richard Neely which purports to identify defendant Perez as the person present at his bedside just prior to his respiratory arrest. As grounds therefor the defendants assert that the pretrial investigative procedures employed by the FBI denied the defendants due process of law, relying on

Simmons v. United States,

390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968). The government responds that the photographic arrays presented to Mr. Neely were not violative of

Simmons

and that defendants’ attacks on the procedures employed are really attacks on Mr. Neely’s credibility which must be weighed by the jury as the trier of the facts.

The defendants’ motion raises perhaps the most unusual legal issues in this extremely complicated criminal case. There was not just one photographic identification in this case, but three. Overlaid on the question of whether one, or all, of the photographic displays were unduly suggestive is the fact that between the first and second photographic displays, the witness was placed under hypnosis for two separate

*279

one-hour sessions and questioned by federal agents familiar with the government’s investigation while in a trance state. Most unusual, however, is the fact that because of the deposition the Court has before it the entire testimony of Mr. Neely in advance of trial. Of necessity, as what will follow ; makes clear, the Court must not only scrutinize the identification procedures to determine if they violated any constitutional command, but must also examine the testimony of the witness Neely as a whole to determine in advance of trial, whether it must be stricken in its entirety.

I.

In the briefs and at oral argument on the motion, both parties analyzed the issue, initially at least, in terms of the two-pronged test of the suggestiveness of the photographic array and the resultant likelihood of irreparable misidentification as applied by the Courts of Appeals in the wake of

Simmons v. United States, supra.

E. g.,

United States v. Sutherland,

428 F.2d 1152 (5th Cir. 1970). While there are indeed differences between the picture of defendant Perez and the other photographs shown Mr. Neely, the cases discussing the issue of when a suggestive photographic display leads to an irreparable likelihood of misidentification are inapposite. Such cases involve situations where a crime had been committed by a person whose identity is unknown to the witness. E. g.,

United States v. Jennings,

528 F.2d 222 (6th Cir. 1975);

United States v. Scott,

518 F.2d 261 (6th Cir. 1975);

United States

v.

Clark,

499 F.2d 889 (6th Cir. 1974);

United States v. Cunningham,

423 F.2d 1269 (4th Cir. 1970) (all bank robberies);

United States ex rel. Phipps v. Follette,

428 F.2d 912 (2d Cir. 1970) (robbery). In the instant case the crime charged is of such a nature that it is not likely that Mr. Neely perceived that anything of a criminal nature was occurring immediately preceding his respiratory arrest. In addition, Mr. Neely had appreciable contact preceding the alleged criminal act with the individual whom he ultimately identified. At the time of the arrest, he knew Mrs. Perez and had known her for a period of time as one of the nurses who cared for him. Consequently, the photographic display, even if suggestive, cannot be said to have fixed in Mr. Neely’s mind the image of a person which had not been there before. Instead it was a vehicle that enabled Mr. Neely to attach a name to a person he previously knew and recognized but could not identify by name.

2

Once the focus of the inquiry shifts from the narrow confines of the propriety of the photographic display

3

to the constitutionality of the whole course of the interrogations conducted by the FBI of Mr. Neely, the issue becomes more intricate and complex. The Supreme Court has stated its concern that eyewitness identifications be those of the witness, not the product of governmental suggestion — intentional or unintentional, subtle or overt.

United States v. Wade,

388 U.S. 218, 229 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967). See

Simmons v. United States, supra; Stovall

v.

Denno,

388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967). The standard the Supreme Court has prescribed for excluding identification testimony due to undue governmental suggestión is that the movant show that the specific events leading to the identification were “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

Simmons v. United States, supra,

390 U.S. at 384 , 88 S.Ct. at 971. In so ruling the Supreme Court noted that the utilization of cross examination in exposing the potential for error in the case can substantially lessen

*280

the likelihood that a conviction will occur based on a misidentification.

4

Id.

Each side argues vigorously and has submitted testimony to show that the circumstances of this case do, or do not, give rise to a “very substantial likelihood of irreparable misidentification.” In addition to the facts outlined above, three experts testified concerning the issues presented by this motion.

5

Dr. Martin Orne, testifying as an expert in hypnosis on behalf of the defense, examined the tapes of Mr. Neely’s hypnotic interrogation to determine whether Mr. Neely’s memory could have been influenced by suggestions made during that session. He concluded that there were significant, unconscious cues and suggestions communicated to Mr. Neely by the FBI agents conducting the interrogation. As a basis for this opinion Dr. Orne pointed to the agents’ interest in only certain parts of Mr. Neely’s narrative. For example, he states that as a professional observer he felt that the FBI was interested in a Filipino woman and a single room. That interest led them in subtle, unintentional ways to communicate to Mr. Neely that they were not interested in a black man and a 20-bed room — subjects which Mr. Neely recalled under hypnosis. By communicating to Mr. Neely that interest, Mr. Neely was encouraged to provide an acceptable “memory” in response to questions asking him to imagine “who could have done this to you.” This form of the inquiry — instead of “who did you see” — in Dr. Orne’s opinion prompted Mr. Neely to fabricate a memory from his imagination in response to the context of the hypnotic session. Briefly stated, Dr. Orne’s explanation of the context of hypnosis is that for individuals, like Mr. Neely, who are subject to light trances, the communicated belief that the hypnotic experience will in fact cause certain results, leads to a strong pressure to provide validation and achieve the experience’s objective — in this case a memory. Dr. Orne’s conclusion is that Mr. Neely’s testimony is at least in part the product not of his own memory, but of fantasy formulated in response to subtle cues of the interviewers.

Dr. Herbert Spiegel testified as an expert in hypnosis on behalf of the government. Dr. Spiegel is the physician who conducted the hypnotic experience with Mr. Neely in December, 1975. He did not review the videotape of these sessions except as they were played in part in open court. Dr. Spiegel testified that hypnotism is a state of great attentive/receptive concentration. He stated that different individuals have different and fixed abilities to go into this trance state. Mr. Neely, in his opinion, is a person of low hypnotizability, does not have a rich fantasy life, but instead exercises his critical faculties before reaching conclusions, and it follows that he is not unduly subject to suggestion while in the hypnotic state. Dr. Spiegel was greatly impressed with the skill of the FBI agents at maintaining neutrality in the interrogation. In his opinion there were no subtle or overt suggestions made during the hypnotic interview that would not have been present in any kind of normal, daily social interaction. Since Mr. Neely was not, in his opinion, unduly receptive to suggestion, there was no danger that Mr. Neely’s statements and memories were not his own.

The defense also presented the testimony of Dr. Dennis Walsh, a psychiatrist. Dr. Walsh interviewed Mr. Neely to determine Mr. Neely’s psychiatric state. He found a terminally ill patient who has been an alcoholic for many years.

6

He diagnosed Mr. Neely as having borderline personality organization and memory problems which are manifested in recent memory deficits. Dr. Walsh stated that Mr. Neely tends to per

*281

ceive people in absolutes — either all good or all bad. He also considered Mr. Neely to be a suggestible individual. One particular aspect of this suggestibility that emerged during the hypnotic interviews, according to Dr. Walsh, is that Mr. Neely, who idealizes the FBI as the embodiment of the good, felt tremendous pressure to please the agents by helping them in their investigation.

7

All of these factors lead Dr. Walsh to conclude that Mr. Neely’s memory is not a true memory but rather fragments of actual memory and fantasy blended together in response to Mr. Neely’s felt need to be helpful to the FBI.

The expert testimony presented to the Court conflicts in important ways. There is no real agreement as to the precise nature of hypnosis, the extent of Mr. Neely’s susceptibility to suggestion or the suggestiveness of the interview itself. There is, however, agreement among the experts concerning the possible conclusions the Court could reach about Mr. Neely’s testimony. The possibilities are:

T. Mr. Neely’s statement that he knew all along who had been in his room prior to the arrest but for private reasons had not told the FBI could be true. The hypnotic experience could have had no effect on Mr. Neely at all.

2. Mr. Neely was affected by the hypnotic experience. The hypnotic experience allowed Mr. Neely to delve into his memory and retrieve actually perceived memories that had been forgotten or repressed. If so, Mr. Neely is incorrect that he knew all along, but correct when he relates factual events.

3. Mr. Neely was affected by the hypnotic experience. Because of his own personality and the nature of the questioning, Mr. Neely fabricated a memory composed partly of real memories and partly of fantasy. If so, Mr. Neely is incorrect both as to his continual memory and as to the actual events he recounts.

Each of the experts agrees that

each

of the three alternatives listed above are possible.

8

The defense experts discount the probability of the first two alternatives and believe, for reasons discussed earlier, that Mr. Neely’s memory is the product of undue suggestion during the hypnotic interview and that it cannot be treated as reflecting real memories of actual events. The government expert discounts alternatives one and three and believes that the hypnotic experience was beneficial, that it was not unduly suggestive to Mr. Neely and that in fact Mr. Neely suffered a traumatic neurosis at the time of his respiratory arrest. The hypnosis enabled him to gradually begin to recapture fragments of his memory in a way that led him to believe — as a part of a necessary human personality defense mechanism— that he had never forgotten anything at all.

9

The Court necessarily considers each of these alternatives. It has viewed the videotapes of the hypnotic session and the deposition. Mr. Neely testifies as to one state of facts (alternative one above). The experts testify that any alternative is possible, including Mr. Neely’s deposition testimony, but that one or the other theory is more probable. Weighing the testimony and these opinions the Court cannot conclude that the hypnotic interrogation session together with the photographic array creates a “very substantial likelihood of irreparable misidentification.”

Simmons v. United States, supra,

390 U.S. at 384 , 88 S.Ct. at 971. The Court recognizes that there is a possibility of misidentification in these circumstances.

10

But that possibility

*282

does not measure up to the standard for exclusion set forth by the Supreme Court.

Simmons

imposes a heavy burden on a party seeking to exclude testimony from trial. The defendants here have failed to meet this burden. On these facts where the probabilities are closely in equipoise, the Court will not remove from the jury the function of finding the facts.

It is crucial to the understanding of the analysis above that we do not oversimplify, a danger that is enhanced by the nature and timing of the presentation of this issue and the foregoing analogizing of line-up and photograph identification procedures illustrated in

Simmons

and its progeny. Particular care should be taken that the Neely matter is not removed for scientific examination out of context and by the application of scientific tests of validity vis a vis legal tests of credibility. Thus, the additional testimony of witnesses such as Gauss and Pangle may be seen as factual support of the theory of defense experts, but does not, thereby, destroy the other two alternatives that all experts agreed could be accepted, particularly if other proofs are presented that tend to corroborate Neely’s testimony.

11

Some proofs of that nature are already in the record, e. g., Mrs. Perez was a nurse who was known to Neely and had access and opportunity to his bedside; while it can be argued that Neely formed a composite of a “Nancy,” it does not necessarily follow that he formed a composite of Mrs. Perez.

It is prudent then to recognize the differences between identification of a person under the

Simmons

principles and the relation of events by a witness. The former involves impermissibly suggestive procedures leading to the identification of an unknown person in a controlled setting (by design or not) that has a high potential for error. The testing of that situation is simpie and discrete and recognizes the weakness of adversarial procedures, such as cross-examination to relieve the danger. The relation of events, on the other hand, depends on many factors, e. g., the ability to observe, memory, interest, mental condition, probability and corroboration. Consequently, the resolution of that type of factual situation has traditionally been the function of the jury and relies on the strength of the adversarial process. Thus, we are led to the following issue.

II.

Even though the Court has determined that Mr. Neely’s testimony is not, as a matter of law, the product of unduly suggestive pretrial investigative techniques, there remains the question of whether his testimony is so incredible that it must be stricken. It is a well accepted general proposition of law that a verdict cannot be based “on evidence which cannot possibly be true, is inherently unbelievable, or is opposed to natural laws.”

Born v. Osendorf,

329 F.2d 669, 672 (8th Cir. 1964). See

Southern Pacific Co. v. Matthews,

335 F.2d 924 (5th Cir. 1964),

cert. denied,

379 U.S. 970 , 85 S.Ct. 668 , 13 L.Ed.2d 562 (1965);

Geigy Chemical Corp.

v.

Allen,

224 F.2d 110 (5th Cir. 1955) (Florida law).

Barbieri v. E. M. Young Co.,

82 R.I. 382 , 110 A.2d 263 (1954). Most commonly this rule is applied when a physically, verifiable fact directly contradicts crucial testimony necessary to sustain a verdict.

Solomon Dehydrating Co. v. Guyton,

294 F.2d 439 (8th Cir. 1961),

cert. denied,

368 U.S. 929 , 82 S.Ct. 366 , 7 L.Ed.2d 192 (1961).

Grant v. Cia Anonima Venezolana de Navegacion,

228 F.Supp. 232 (E.D.La.1964),

aff’d,

343 F.2d 757 (5th Cir. 1965);

Watkins v. Continental Can Co.,

225 F.Supp. 449 (M.D.N.C.1963),

vacated,

332 F.2d 423 (4th Cir. 1964);

Modla v. United

*283

States,

151 F.Supp. 198 (D.N.J.1957). For example, in

Southern Pacific Co. v. Matthews, supra,

the court held that the testimony of the plaintiff that he looked to the left and right three times as he approached a railroad crossing where an accident occurred but was unable to see the oncoming train was simply incredible because the crossing was in fact constructed so that a person exercising reasonable care would have seen the train. The rule applies in criminal, as well as civil cases.

Wood v. United States,

342 F.2d 708 (8th Cir. 1965).

The power to disregard testimony because of its inherent lack of believability is one that has been used sparingly.

Peters v. Fitzpatrick,

310 F.2d 704 (7th Cir. 1962). The courts have held that:

“Unless in the light of the circumstances the testimony is so inherently improbable and impossible of belief as in effect to constitute no evidence at all, it may not be disregarded in determining the sufficiency of the evidence to support the judgment.”

Hobart v. Hobart Estate Co.,

26 Cal .2d 412, 159 P.2d 958, 966 (1945).

This is a determination that is not normally made by the court. See

United States v. Jobin,

535 F.2d 154, 156 (1st Cir. 1976);

Dudley v. United States,

428 F.2d 1196, 1202 (9th Cir. 1970);

Urban Redevelopment Corp. v. C. I. R.,

294 F.2d 328 (4th Cir. 1961). When the testimony is capable of different interpretations, the evidence should go to the jury for its consideration.

Norton v. Gordon Foods, Inc.,

458 F.2d 1071 (6th Cir. 1972) (Kentucky law). Where, however, the court is not arbitrary and comes to a reasoned determination that a witness’s testimony is indisputedly incredible as a matter of law it must be disregarded.

Holland

v.

Allied Structural Steel, Inc.,

539 F.2d 476, 479-83 (5th Cir. 1976);

Yip Mie Jork v. Dulles,

237 F.2d 383 (9th Cir. 1956).

Because of the peculiar circumstances of the case at bar the Court is called upon to perform a normal function in an abnormal procedural context. As indicated previously, Mr. Neely’s deposition was taken in advance of trial for possible presentation at trial. The Court is not now being asked to weigh the sufficiency of the evidence supporting the submission of the case to a jury or the jury verdict. Rather, the defendants ask the Court in advance of the submission of the government’s proofs to find that Mr. Neely’s testimony is so inherently improbable and incredible that it ought not to be placed before the jury. Were this a situation where Mr. Neely testified to observations which he could not possibly have made because of some incontestably demonstrable physical fact,

12

the Court might be disposed to grant the defendants’ request. However, that is not the case here. At the pretrial evidentiary hearings the defendants offered evidence that Mr. Neely suffered from alcoholism, memory lapses, mental instability and had previously lied on numerous occasions — all of which, it could be argued, impeached Mr. Neely’s credibility as a percipient witness. None of the facts presented by the defense however justify the Court in taking the drastic step of excluding Mr. Neely’s testimony from the trial. In advance of the government’s proofs the Court cannot know what, if any, corroboration for Mr. Neely’s testimony will emerge at trial. Moreover, courts are always reluctant, except in truly compelling cases, to interfere with the jury’s historical role to find the facts and assess credibility. In evaluating the credibility of a prosecution witness who the defense challenged as unbelievable, the Court of Appeals for the Fifth Circuit set forth what this Court believes to be the applicable law in a ease of this nature.

“One of the oldest established rules of Anglo-American jurisprudence is that the jury is the arbiter of credibility of witnesses. As the Supreme Court stated in

Hoffa v. United States,

385 U.S. 293, 311 , 87 S.Ct. 405 [408], 418, 17 L.Ed.2d 374, 387 (1966),

*284

The established safeguards of an Anglo-American legal system leave the veracity of a witness to be detected by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.

“The trial judge cannot arrogate to himself this power of the jury simply because he finds a witness unbelievable. Under our system of jurisprudence a properly instructed jury of citizens decides whether witnesses are credible. .

“Defendant bases his argument that there are situations wherein the court can properly ignore testimony of certain witnesses in determining sufficiency of the evidence on a passage in our opinion in

Tillery v. United States,

411 F.2d 644 (5th Cir. 1966). There, this court stated,

In determining whether there is substantial evidence in cases where a conviction rests upon the uncorroborated testimony of an accomplice, the general rule is that the uncorroborated testimony of an accomplice may support a conviction if it is not incredible or otherwise unsubstantial on its face.

“We believe that for the testimony to be incredible it must be unbelievable on its face. The fact that Lipsky has consistently lied in the past, engaged in various criminal activities, thought that his testimony would benefit him, and showed elements of mental instability does not make his testimony incredible. Lipsky’s testimony on direct is quite plausible. This is n'ot a case where a witness testifies to facts that he physically could not have possibly observed or events that could not have occurred under the laws of nature. To be sure Lipsky was thoroughly impeached on cross-examination, but one cannot say that his testimony could not have been believed by a reasonable jury.

United States v. Cravero,

530 F.2d 666, 670 (5th Cir. 1976). (Citations and footnotes omitted).

Mr. Neely’s testimony is not so implausible that it could not be true. It is up to the jury, aided by the advocacy of counsel, to determine Mr. Neely’s credibility.

III.

The Court notes that its rulings here go only to the admissibility of Mr. Neely’s testimony as a matter of law. This opinion expresses no view as to the credibility or weight that a jury should attach to Mr. Neely’s testimony. The record in this case reflects that a thorough and effective cross-examination of Mr. Neely was conducted. In order to aid the jury in its function to determine the facts the Court will exercise its powers to see that the factors raised by the pretrial events discussed herein are presented to the jury in an intelligible fashion. FRE 611(a).

The defendants’ motion to suppress is therefore denied. The parties are ordered to attend a pretrial conference in chambers at an appropriate time to settle upon the identity and order of witnesses who will testify regarding Mr. Neely’s credibility.

IT IS SO ORDERED.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTION IN LIMINE

The defendants have moved in advance of trial to exclude from evidence a note written by John McCrery — currently deceased but who is the alleged victim of Counts 1 (¶ 13) and 8 of the Superseding Indictment — which implicates the defendant Narciso. Relying on F.R.Cr.P. 12(a) and (b) and FRE 104(a) the defendants seek pretrial resolution of their claim that the note is inadmissible hearsay. The government concedes the note to be hearsay within the meaning of FRE 802, but denies that it is inadmissible. Since resolution of the dispute would be both time-consuming and potentially disruptive of the trial process, a hearing was scheduled to develop fully the factual circumstances surrounding the making of the note.

Cf.

FRE 804(b)(5) (last sentence).

The facts, in summary, as they appeared during the evidentiary hearings are: On August 15, 1975 at 4:30 p. m., while a patient in the Ann Arbor Veterans Hospi

*285

tal’s cardiac care unit, McCrery suffered a respiratory arrest. Approximately 6:30 p. m. that same day, in response to questions from his attending physician as to whether he had been given an injection and, if so, by whom, McCrery wrote the letters “PIA” on a Doctor’s Progress Note form.

The government contends that the note falls within several recognized hearsay exceptions. The defendants deny this and claim that even if admissible as an exception, the note must be excluded as a violation of the defendants’ Sixth Amendment right to confrontation. The exceptions originally urged by the government fall into four general categories, however at oral argument the government conceded that reliance would be placed on only three exceptions to the hearsay rule, 803(1), (2) and (4). These exceptions and their applicability to the facts before the Court are considered below.

I.

The government seeks to overcome the lack of trustworthiness the law traditionally ascribes to hearsay statements by claiming that the circumstances surrounding the making of the note in issue preclude defects in memory and the opportunity for calculated misstatements.

1

It argues that both FRE 803(1) and (2) are applicable exceptions covering the note.

FRE 803(1) is the “present sense impression” exception. It provides:

“A statement describing or explaining an event or condition made while the declarant was perceiving the event or immediately thereafter is not excluded as hearsay.”

“The underlying theory of Exception 803(1) is that the substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation.” Adv.Comm.Notes. These statements are found to be exceptionally trustworthy because the fact that they are

simultaneous

with the event eradicates possible memory deficiencies and fabrication.

Houston Oxygen Co. v. Davis,

139 Tex. 1, 5-7 , 161 S.W.2d 474, 476-7 (1942). Comment,

Hearsay Under the Proposed Federal Rules: A Discretionary Approach,

15 Wayne L.Rev. 1077, 1116-7 (1969). The exception is thought to be most appropriate when the declaration in question is made before the declarant is aware that something startling would happen, so that the distortion brought on by excitement would be avoided. Weinstein and Berger,

Weinstein’s Evidence,

803-74 (1975); Slough,

Res Gestae,

2 Kan.L.Rev. 746, 766 (1954). Moreover, it should be a statement “describing” or “explaining” the event to come within the rule.

A similar exception to the hearsay rule is found in FRE 803(2) — the “excited utterance” exception. It provides that a hearsay statement will not be excluded if it is:

“A statement relating to a startling event or condition made while the declarant was under stress of excitement caused by the event or condition.”

While exceptions (1) and (2) overlap somewhat, see Adv.Comm.Notes,

“The theory of Exception (2) is simply that circumstances may produce a condition of excitement which temporarily

*286

stills the capacity of reflection and precludes utterances free of conscious fabrication. 6 Wigmore § 1747, p. 135. Spontaneity is the key factor in each instance though arrived at by somewhat different routes.”

Id.

In order to come within the rule there must be a startling event or condition and a statement made by a person who was under the stress of excitement both while perceiving the event and when the statement was made.

Murphy Auto Parts Co. v. Ball,

101 U.S.App.D.C. 416, 419-20 , 249 F.2d 508 , 511-12 (1957),

cert. denied,

355 U.S. 932 , 78 S.Ct. 413 , 2 L.Ed.2d 415 (1958).

Traditionally, the distinction between an “excited utterance” and a “present sense impression” has not been as precise as the authors of the Federal Rules of Evidence have made it. Cases dealing with problems analogous to the one presented here show an interesting and somewhat instructive variation of approaches and results. In

Foster v. Thornton,

125 Fla. 699 , 170 So. 459 (1936), a witness was permitted to testify about statements the deceased made to her husband and doctor about her physical condition during a period of semi-consciousness in the two weeks prior to her death. The court found that the statements were relevant in an action for malpractice and were made immediately on regaining consciousness, were an outgrowth of the relevant transaction, explained it and were corroborated by medical evidence. Without intensive analysis the court admitted the evidence noting that the voluntary, spontaneous and explanatory nature of the statements were evidence of trustworthiness. In

Puls v. Grand Lodge A. O. U. W.,

13 N.D. 559 , 102 N.W. 165 (1904), two witnesses were permitted to testify in a suit for proceeds of a life insurance policy that during the last 24 hours of his life, the deceased stated he was in great pain and had taken some unspecified type of horse medicine. The court held that the closeness in time to the onset of the pain, together with the degree of suffering combined to render the hearsay statement reliable. Some courts have refused to admit like testimony because the statement offered was not shown to have been

immediately

connected to the event leading to illness.

Commonwealth v. Griffith,

149 Ky. 405 , 149 S.W. 825 (1912);

Hall v. State,

132 Ind. 317 , 31 N.E. 536 (1892).

Spontaneity has been an important factor for courts which have declined to admit testimony about the statement of a deceased individual in a criminal prosecution. In

State v. Bussey,

162 La. 393 , 110 So. 626 (1926) a manslaughter conviction was reversed in which two nurses had been permitted to relate a five year old child’s statement that “My mother made me eat soap on toast bread” in response to the question “What did you eat this time.” The child had been admitted on February 12 at 5:30 p. m. and the statement was made the

next

night. The court noted that the statement was not spontaneous, but was made calmly and deliberately in response to an ordinary question some time after the onset of illness. The Louisiana courts have expressly declined to liberalize the hearsay rules in cases of poisoning.

State v. Labat,

226 La. 201 , 75 So.2d 333 (1954).

In

State v. Sanford,

44 N.M. 66 , 97 P.2d 915 (1939) the court reached a result similar to that in

Bussey .

Sanford was charged with murdering his wife by giving her a poisoned cup of coffee at 5:30 a. m. Statements made at 6:00 a. m. to a neighbor were admitted as being clearly excited, but statements made three to three and one-half hours later, after treatment by a doctor including the administration of a sedative, when the declarant’s respiration and pulse were normal, were excluded as being not made under the stress of an immediate and terrifying occurrence. In

State v. Thompson,

132 Mo. 301 , 34 S.W. 31 (1896), however, the court permitted a witness to testify as to the deceased’s statement about the origin of a poisoned lunch where it was part of an extended discussion between the two about their mutual symptoms.

While none of these cases treated the problem before them in the terms supplied by the Federal Rules, it would appear that both “present sense impression”

(Fos

*287

ter, Hall, Griffith

and Thompson) and “excited utterances”

(Puls, Bussey

and

Sanford)

were in these courts’ minds. The conflicting outcomes within each category-highlight the fact that the trial court has the obligation to examine the facts of each case carefully to determine whether the offered statement comes within one of the exceptions.

State v. Gunthorpe,

81 N.M. 515 , 469 P.2d 160 (1970);

State

v.

Leming,

217 La. 257 , 46 So.2d 262 (1950). In doing so, the court must consider both the trustworthiness of the offered declaration,

Guthrie v. U. S.,

92 U.S.App.D.C. 361 , 207 F.2d 19 (1953), and the motivations, both conscious and sub-conscious, for fabrication.

People

v.

Fain,

174 Cal.App.2d 856 , 345 P.2d 305 (1959) (Ct.App.). The Fourth Circuit has pointed the court in a reasonable direction for its factual inquiry in this case. In

Chestnut v. Ford Motor Co.,

445 F.2d 967, 973 (4th Cir. 1971), the plaintiff in a tort suit testified at trial that he had total amnesia for a period from five minutes before the accident to five days after. The accident occurred at roughly 1:00 a. m., plaintiff was found unconscious at 7:00 a. m. and was questioned by his doctor at 9:00 p. m. that night. The Court of Appeals held that it lacked enough facts to determine whether the statement reported by the doctor was admissible as an “excited utterance.” It directed the trial court on remand to inquire into whether the plaintiff had sufficiently gained his reflective powers to possibly fabricate a statement between the time of the accident and his statement to the doctor.

The case before the Court is surely a far cry from the classic situation of an excited utterance wheré a victim, lying bleeding immediately after a violent wound screams an accusation and a plea for help in the same breath. See

U. S. v. Edmonds,

63 F.Supp. 968, 971-3 (D.D.C.1946).

State v. Drosos,

253 Iowa 1152 , 114 N.W.3d 526 (1962). The testimony of McCrery’s attending physician, Dr. Lucy Goodenday, indicates that she noticed the onset .of his arrest while attending to another patient in the Coronary Care Unit, at approximately 4:30 p. m. in the afternoon of August 15, 1975, and that at that time McCrery was alert but was not able to speak. His breathing became shallower and then stopped, at which time Dr. Goodenday commenced resuscitation procedures. An emergency medical team appeared in response to her call for help. McCrery was intubated

2

and then connected to a respirator. During the respiratory arrest McCrery also suffered a short period of heart arrhythmia and thereafter went into ventricular fibrillation for approximately 15 seconds. Electrical defibrillation (shock treatment) was employed to counteract that condition and within a few seconds McCrery’s heart pattern returned to normal. After intubation was completed McCrery appeared, at least to Dr. Goodenday, to be “quite stable.” Lido-cine, atropine and neostigmine were subsequently administered. Throughout this procedure while McCrery was not moving, he gave Dr. Goodenday no reason to believe that he was not conscious. He later indicated to the doctor that he was conscious and awake throughout the entire resuscitation.

After intubation had been completed, McCrery’s condition had stabilized and the above described drugs were administered to combat further heart rhythm disturbances, to enhance heart rate and vagal activity. Dr. Goodenday stayed for a period to observe McCrery. At that point he seemed to be conscious, had his eyes open and was attentive to his surroundings.

Dr. Goodenday then made rounds on the fifth floor of the hospital and approximately two hours later at about 6:30 p. m. returned to McCrery’s room. At that time he appeared responsive, conscious, had a normal pulse and heart rate and appeared generally comfortable and normal. Dr. Goodenday began by explaining what had happened to him, “that he had stopped breathing for some reason and we had put a tube

*288

in this throat to make sure that he would be breathing all right.”

Dr. Goodenday testified that McCrery understood what she was saying and appeared “somewhat concerned but not overly concerned when I prepped him and started to talk to him.”

Dr. Goodenday stated that her motivation for talking to him was “to find out whether or not he had received any medications” as his chart did not indicate that any had been administered prior to the arrest. She first asked him whether he was aware of what had happened and he nodded “yes.” She asked him whether he was awake during the entire resuscitation and he nodded “yes.” She then asked him if he had received any medication before it all started and again he indicated he had. She asked him if it was given by mouth or through the vein and he indicated by hand gestures that it was administered through the intravenous tubing. Dr. Goodenday then asked who gave it to him, to which he signified a desire for pencil and paper and used them to make the note which is the subject of this inquiry.

Viewing the totality of the circumstances surrounding the making of this note by McCrery, it is clear to this Court that neither 803(1) or (2) are applicable exceptions to the hearsay rule. As stated in Weinstein and Berger,

supra,

at ¶ 803 (1)[01],

“Underlying Rule 803(1) is the assumption that statements of perception substantially contemporaneous with an event are highly trustworthy because: (1) the statement being simultaneous with the event there is no memory problem; (2) there is little or nor time for calculated misstatement; and (3) the statement is usually made to one who has equal opportunity to observe and check misstatements.”

All of these requirements are lacking in the present case. The statement was not made while the event or condition was being perceived by the declarant or even “immediately thereafter” but rather some two hours later. As was correctly argued by the defendants, the applicability of this exception hinges on an absence of time for the declarant to reflect on what happened. The testimony adduced during the hearing indicates that not only was McCrery conscious for part or all of the resuscitation procedure (and certainly after the intubation) and thus had time to think about what was happening to him, before any questions were asked of him by Dr. Goodenday, but he was “prepped” or readied for her inquiries, by an explanation of what had happened to him. McCrery not only had time to reflect on what had transpired, he was intentionally encouraged to reflect on those events before answering. Finally, Dr. Goodenday could in no way corroborate the truth of what McCrery was indicating since she was not present before the inception of his arrest.

These same considerations (i. e., lack of reflective capacity) are relevant to the exception of an excited utterance under 803(2) and preclude its application. That exception also requires that the utterance be made under the excitement and stress of the event provoking the statement and which the statement describes. In this case there was insufficient evidence to indicate that McCrery was excited or under particular nervous stress either when the event occurred or when he made his statement to Dr. Goodenday. The Court finds that McCrery did have the capacity to reflect on what had transpired, that this capacity was clearly manifested to Dr. Goodenday and that the presence of such reflection must negate the assumption of reliability of the statement made under 803(1) and (2).

II.

The government also asserts that the “PIA” note is admissible under FRE 803(4) — -statements made for purposes of medical diagnosis or treatment. That rule would admit:

“ [statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or ex

*289

ternal source thereof insofar as reasonably pertinent to diagnosis or treatment.”

The rationale of the rule is that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care. Moreover, no other way of determining subjective symptoms has yet been devised. Weinstein,

supra

at 803-123.

The rule is limited to facts related which are “reasonably pertinent to diagnosis or treatment;” it has never been held to apply to accusations of personal fault, either in a civil or criminal context. Thus, the commentators have said that “a party’s statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light.” Adv.Comm.Notes. More relevant to this matter, it is stated that a statement by a patient that he was shot would be admissible, but a statement that he was shot by a white man would not. Comment,

supra

at 1147. Each case must, of course, rest on its own facts, but the test is whether a doctor would rely on the facts, contained therein solely for treatment of the patient’s specific condition.

Brown v. Seaboard Airline R. Co.,

434 F.2d 1101 (5th Cir. 1970);

Felice v. Long Island Railroad,

426 F.2d 192 (2d Cir. 1970),

cert. denied

400 U.S. 820 , 91 S.Ct. 37 , 27 L.Ed.2d 47 (1970);

Stewart v. Baltimore and Ohio R. Co.,

137 F.2d 527 (2d Cir. 1943);

Walker v. Prudential Ins. Co.,

127 F.2d 938 (5th Cir. 1942).

Although the rule in the abstract is simple enough to grasp, application of that rule to the facts as elucidated above in Part I is considerably more difficult. The government argues that these questions were asked of Mr. McCrery for purposes of medical diagnosis and treatment and this argument is certainly supported by the testimony of Dr. Goodenday who indicated that her motivation for questioning McCrery subsequent to his recovery from the arrest was to discover (1) if any medication had been administered to him and (2) if so, who did it. Dr. Goodenday indicated that it would be necessary to find out who administered the medication to find out what it was and thus what further medical treatment would be required.

3

Yet while the doctor’s motive was further diagnosis, the underlying assumption of the rule requires the Court to inquire as to the

declarant’s

motivation for giving the information. If his motive is to disclose the information to aid in his own diagnosis and treatment, this, it is assumed, guarantees the statement’s trustworthiness. However, if the declarant makes the statement while under the impression that he is being asked to indicate “who was responsible” for what happened, his response may very well be accusatory in nature and any inherent reliability of such a statement is thereby destroyed. In this instance it is not clear that Dr. Goodenday communicated to McCrery that she wanted to know who had administered the injection to find out what the medication was. Once he indicated that he had indeed been given an injection, she merely asked him who gave it to him. Dr. Goodenday herself admitted that the possibility of someone deliberately injecting a muscle relaxant was being considered by the staff. Moreover, the McCrery arrest was one of the last of a series of arrests which began on July 18 and the record discloses that rumors of these arrests and the possibility that they were deliberately induced were prevalent among both the staff and patients.

Based on the entirety of this record this Court is not convinced that McCrery’s response to Dr. Goodenday’s questions was motivated solely by a desire to assist her in later diagnosis and treatment. Absent such assurance the government may not rely on the hearsay exception in FRE 803(4).

In this Court’s opinion, the McCrery note is more closely identified with

*290

the type of statement covered by Rule 804(b)(2) of the Proposed Rules — a Statement of Recent Perception. That exception would have read:

“A statement, not in response to the instigation of a person engaged in investigating, litigating, or settling a claim, which narrates, describes, or explains an event or condition recently perceived by the declarant, made in good faith, not in contemplation of pending or anticipated litigation in which he was interested, and while his recollection was clear [is not excluded by the hearsay rule if the declarant is unavailable as a witness].”

4

The Supreme Court promulgated this exception among its Proposed Rules, but it met vociferous opposition in Congress which concluded that Rule 804(b)(2) created “a new and unwarranted hearsay exception of great breadth,” without “sufficient guarantees of trustworthiness to justify admissibility.”

5

Therefore, Congress deliberately deleted that exception from the rules of evidence which it eventually approved. It is manifest that this Court is prohibited from allowing into evidence hearsay testimony under a different guise when it is best characterized as a hearsay statement under Rule 804(b)(2) and Congress has clearly directed the exclusion of such hearsay in federal courts.

It is not enough, however, to merely “slot” testimony into convenient or arguably fitting exceptions, particularly when dealing with a capital case. This Court knows of no requirement that it must adhere blindly to a rule of evidence, which is by its nature arbitrary, when there is danger that the very purposes of the Rules of Evidence would be abrogated. The framers of the Rules recognized the responsibility of the Court to supervise the introduction of testimony to assure a fair trial (Rule 102, FRE). Thus, for example, Rule 403, FRE, provides that “although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,” etc. It is in this atmosphere that the proffered evidence must be analyzed.

In the consideration of the “PIA” note a critical element is that it is not possible to determine from the note itself who is meant by “PIA.” In order to make a correlation of person to name (if it is a name) it is necessary to rely on other testimony. It is apparent that defendant Narciso was known to her fellow employees by the nickname of “PI,” but it is not apparent that McCrery knew her by that nickname and that “PIA” was his version of “PI.” The next inquiry, then, is whether by “PIA” he meant defendant Narciso, an identification of a person, as opposed to an identification of a name. In that area, the external evidence is conflicting, to say the least. Subsequent identifications and recantations present an extremely muddled picture. The contradictions are major and are evident both before the open heart surgery undergone by McCrery and after. In short, the introduction of the “PIA” note is not the end, but the beginning of extensive, external testimony as to its meaning and its trustworthiness.

That this dilemma is recognized by the government is evident from its announcement in the Supplemental Brief that it wishes to introduce not only the “PIA” note but also a second note of August 16, 1975; an identification at a “show-up” on August 16, 1975, and subsequent statements identifying defendant Narciso.

It must be borne in mind that the exceptions to the hearsay rules developed

*291

on a principle of balancing probabilities— that is, that experience has taught that certain hearsay declarations have a high degree of reliability built in, and that the great probability is that they reflect the truth. An added feature of reliability is that, absent the declarant, the hearsay witness may be examined or other evidence introduced to contest the reliability. It is this latter feature that the government suggests is available here to assure reliability. However, in the circumstances of this case, glib reference to the right of cross-examination of the hearsay witness is hardly a solution nor does it offer an effective substitute for the cross-examination of the declarant. The cross-examination of a single hearsay witness as to the circumstances surrounding the declaration is a far cry from what is necessary here for a full explanation and exposition of the truth. In the case at bar, in order to determine the accuracy of the observations leading to the declaration, the meaning of the declarant and his credibility it is necessary to examine many witnesses; he spoke to and gave contradictory statements to over eight witnesses; he was hypnotized and his hypnotic session videotaped; he may or may not have suffered brain damage which affected his memory; he may or may not have triggered a heart monitor when identifying one of the defendants; in brief the presentation of evidence relating to these factual matters in the hopes of establishing the meaning and probity of the “PIA” note would result in a trial within a trial. The prejudicial effect,

6

the confusion and the potential for misleading would be natural and probable consequences of such an inquiry. While searching cross-examination may be required whenever the credibility of a testifying witness is attacked (subject, of course, to the control of the court in accordance with established rules regarding impeachment, corollary attacks, etc.) at least that witness is available and the jury has the opportunity to apply the traditional tests of credibility in a perceivable frame of reference and context. Such safeguards are not available m this case without an impermissible restriction on the scope of cross-examination and the presentation of contradictory or corroborative testimony.

III.

Although the opinion,

supra,

regarding the applicability of any exception to the hearsay rule to this note should be determinative of the issue, the Court feels constrained to discuss briefly some of the constitutional considerations argued by the parties. The defendants forcefully contend that even if the MeCrery note arguably fell within one or more federally recognized exceptions to the hearsay rule, nevertheless it must be excluded to protect the constitutional rights of the defendants to confrontation, citing

Pointer v. Texas,

380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965);

Douglas v. Alabama,

380 U.S. 415 , 85 S.Ct. 1074 , 13 L.Ed.2d 934 (1965);

Brookhart

v.

Janis,

384 U.S. 1 , 86 S.Ct. 1245 , 16 L.Ed.2d 314 (1966);

Barber v. Page,

390 U.S. 719 , 88 S.Ct. 1318 , 20 L.Ed.2d 255 (1968);

Roberts

v.

Russell,

392 U.S. 293 , 88 S.Ct. 1921 , 20 L.Ed.2d 1100 (1968);

Illinois v. Allen,

397 U.S. 337 , 90 S.Ct. 1057 , 25 L.Ed.2d 353 (1970); and

California

v.

Green,

399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970). The government, however, argues that while confrontation rights certainly must be protected, the Supreme Court has never held that the admission of hearsay which falls under a traditional exception is unconstitutional as a deprivation of that right.

Dutton v. Evans,

400 U.S. 74 , 91 S.Ct. 210 , 27 L.Ed.2d 213 (1970).

Initially the Court is concerned about the underlying assumption of defendants’ argument, that a hearsay statement could conceivably fall within a legitimate hearsay exception under the Federal Rules of Evidence yet

by itself

violate a constitutional right of the defendants. If such an assumption were true it would indeed be an indictment of the Federal Rules of Evidence as promulgated by the Supreme Court and approved by Congress.

*292

Certainly

Dutton v. Evans, supra,

speaks to the problem. The rules of evidence and the scope of the Confrontation Clause are not coterminous. The federal courts have never held that a traditional dying declaration is a violation of the confrontation clause for lack of an opportunity to cross-examine the declarant, or that a valid business record is constitutionally defective as evidence because it is not amenable to cross-examination. Indeed Justice Harlan, in his concurring opinion in

Dutton, supra,

suggests that rules of evidence simply cannot be measured against the inflexible constitutional strictures of the Confrontation Clause if they are meant to grow and change. He further suggests that to invoke the Confrontation Clause against an evidentiary ruling in a criminal case when this could not be done in the civil context would do violence to the long-standing concept that the rules of evidence would be equally applicable to both civil and criminal trials. Rather, Justice Harlan believes such situations should be measured against a fundamental due process standard. 400 U.S. at 97 , 91 S.Ct. 210 .

But regardless of whether measured against a basic right of confrontation or a fundamental due process standard, the admissibility of the note in question here and other proffered McCrery hearsay testimony is suspect. As argued by the defendants and conceded by the government, this evidence is “crucial,” — it is vital to the proofs of one or more counts charged against the defendant Narciso. It is an express assertion of a past fact, i. e., that a nurse by the name of “PIA” administered medicine to McCrery before his arrest. That this by itself does not establish criminal conduct is irrelevant. It is still inculpatory testimony. As discussed above, the note also suffers from ambiguity: it does not, in itself, lead to an identification. Rather the prosecution must resort to

further

hearsay testimony (which would not otherwise be admissible) to explain or interpret the note. The defense then must resort to even more hearsay testimony to undercut or impeach the government’s interpretation of the note.

7

Here the possibility of the statement being founded upon faulty recollection is quite substantial. Contrary to the government’s assertions, the record discloses numerous instances of inconsistencies and variations in McCrery’s story, in his later hearsay testimony, both before and after his heart surgery. Therefore, cross-examination of the declarant as to the accuracy of the statement is not only desirable and helpful; in this situation it is absolutely necessary to protect the rights of the defendants. As McCrery is no longer available to testify and explain what he meant and to withstand the scrutiny of cross-examination, the Court is compelled to exclude his hearsay testimony from evidence at trial.

8

For all of the above reasons, defendant Narciso’s motion in limine to exclude the McCrery hearsay testimony is granted.

IT IS SO ORDERED.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE OVERT ACTS

The defendants herein have moved to strike paragraphs 1, 2 and 9 from Count 1

1

of the Superseding Indictment filed in this case on January 31, 1977. The defense contends that the charging of these alleged overt acts violates constitutional due process and speedy trial rights and is a direct violation of paragraph 9 of the

*293

Court’s January 14, 1977 Order Regarding Discovery and Continuance, which provides, “The government is prohibited from attempting to prove any episode of respiratory arrest other than those delineated in the [original] indictment.” The respiratory arrests referred to in paragraphs 1, 2 and 9 of Count I of the Superseding Indictment are not included in the original indictment returned June 16,1976. The Court’s Order of January 14, 1977, was issued in part because the government had failed to comply with the Court’s Order of December 23, 1976 requiring the government to inform the defense by January 10, 1977 of respiratory arrests not named in the original indictment which the government intended to prove at trial. The December 23, 1976 Opinion accompanying the Order specifically referred to the need for such disclosure to avoid surprise and trial delays.

The government asserts, in opposition to the defendant’s motion, that the Court is without power to grant the relief requested because to strike any portion of the indictment would be to usurp the function of the Grand Jury. The cases the government cites in support of its position are not on point. Each of those cases deals with a situation where the rights of the defendant were jeopardized by an intrusion into the Grand Jury’s province. In

Edgerton v. United States,

143 F.2d 697 (9th Cir. 1944), the court deleted a portion of the substantive charge, about which there had been no proof at trial. The Court of Appeals for the Ninth Circuit determined that the manner of the deletion might have resulted in a case where the verdict of guilty was based on a charge different than that returned by the Grand Jury. In

Ex Parte Bain,

121 U.S. 1 , 7 S.Ct. 781 , 30 L.Ed. 849 (1887), the court held that it was improper for a judge to strike part of the indictment on the motion of the government attorney.

2

Finally,

Russell v. United States,

369 U.S. 749 , 82 S.Ct. 1038 , 8 L.Ed.2d 240 (1962) held that the government’s response to a bill of particulars cannot save an indictment that is deficient on its face. None of these cases discuss the situation presented here, where the defendants may lose the benefit of a court order because of the government’s resort to the Grand Jury.

The government asserts, without any attempt to explain the reasons for its delay in seeking the Superseding. Indictment, that it was not its purpose to evade the earlier Order of the Court. Intention aside, the effect of the Superseding Indictment is to do just that. Previously the Court ordered that the government might not attempt to prove any but certain enumerated respiratory arrests at the trial of this case. Now, after returning to the Grand Jury, the government appears to be attempting to do what it was earlier prohibited from doing, in these three particular instances. This is not a case, as in

Ex Parte Bain, supra,

where the trial court was attempting to determine what the grand jury would have done if it had had a better understanding of the litigation. Nor is this a case where the court is assisting the government to save a defective indictment as in

Russell v. United States, supra.

This is a case where the Court is simply asked to give effect to its own orders.

It seems incontestable that the Court has the power to dismiss an indictment for governmental misconduct. See

United States v. Jackson,

508 F.2d 1001 (7th Cir. 1975). That being the case, it is equally clear that, in appropriate circumstances, the Court may strike a portion of an indictment. In this case the defense does not seek to strike a substantive count in its entirety. Rather the Court is asked to strike three of seventeen alleged overt acts in a conspiracy count. The nature of these three acts is such that they could easily be taken to be cumulative. Not to grant the defendants’ motion would be to invite disrespect for the Orders of this Court, and jeopardize the

*294

right of these defendants to a speedy trial and due process of law.

3

The defendants’ motion to strike paragraphs 1, 2 and 9 of Count I of the Superseding Indictment is therefore granted.

IT IS SO ORDERED.

MEMORANDUM OPINION DENYING DEFENDANTS’ MOTION TO DISMISS SUPERSEDING INDICTMENT

Defendants have filed a detailed motion to dismiss the superseding indictment, alleging that the government’s conduct of the investigation of certain breathing failures at the Ann Arbor Veterans Administration Hospital in the summer of 1975, and the resulting prosecution of the defendants violated their due process rights. In the alternative, the defendants request that the Court dismiss the indictment in the exercise of its supervisory authority to insure that justice is administered fairly in the federal judicial system. While defendants complain of government conduct in six separate areas, their basic position, reduced to its simplest terms, is that:

“the Government has followed a course of conduct calculated to produce an indictment against them, to violate their constitutional rights, and to deprive them of a fair and speedy trial.” (Brief of Defendants at 1).

Because of the nature of the defendants’ allegations, the Court must necessarily consider the individual assertions of improprieties and their cumulative impact and effect. The Court will initially examine each charge separately to determine whether constitutional rights have been violated and then assess the overall effect of these incidents.

I. THE QUESTIONING

Defendant Narciso was interviewed by agents of the FBI four times between August 16, 1975 and September 19, 1975. Defendant Perez was interviewed five times during the same period. Neither defendant was arrested until June, 1976. Defendants’ complaints fall into two general categories — abusive interrogation and interrogation taking place in the absence of counsel. Defendants allege that on September 19, 1975, defendant Narciso was subjected to an abusive six hour interrogation by agents of the FBI. Defendants also allege that during the same period defendant Perez was subjected to the same type of treatment, including threats that she had “better be prepared to say good-bye to her family.” The government denies that any interrogation was abusive, though conceding the September 19, 1975 interview of defendant Narciso was “demanding.” The government asserts that the interview was prolonged by Ms. Narciso herself and that she remained calm throughout.

On October 7, 1975 attorney Thomas C. O’Brien contacted the government to advise that he represented the defendants and requested that future contacts with them be arranged through his office. Defendants allege that despite this request the government interrogated them without their attorney’s consent or presence on three occasions — December 29, 1975 (Mrs. Perez), June 16, 1976 (Ms. Narciso) and June 17, 1976 (Mrs. Perez). There is no claim that any of these contacts resulted in admissions or confessions. The government responds that on December 29, 1975 its agents served a grand jury subpoena on Mrs. Perez, a perfectly legitimate law enforcement function, and no interrogation was conducted. As to the two dates in June (the dates the defendants were arrested, respectively), the government avers that no interrogations were conducted.

Defendants assert that these contacts violated the principles of

Miranda v. Arizona,

384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694

*295

(1966). Specifically the defendants argue that after October 7, 1975, the date on which the government was notified to arrange all interviews through retained counsel, any questioning was required to occur in the presence of counsel. Defendants conclude that these violations of

Miranda

should lead to dismissal of the indictment because the defendants’ rights were violated.

The difficulty with this argument is that it asks the Court to do too much. In

Miranda

the Court fashioned procedures designed to protect an individual’s Fifth Amendment right to be free from compulsory self-incrimination. In numerous cases the Supreme Court has recognized that the evil to be prevented is the introduction at trial of evidence secured in violation of the Fifth Amendment. E. g.,

McNabb v. U. S.,

318 U.S. 332, 347 , 63 S.Ct. 608 , 87 L.Ed. 819 (1943). In

Michigan v. Tucker,

417 U.S. 433 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974) the Supreme Court held that an interrogation in which the police failed to advise a suspect that he could have a court-appointed attorney present (in other respects the warnings prior to questioning were unobjectionable) violated the prophylactic

rules

designed to protect the Fifth Amendment privilege, not the constitutional privilege itself. In that case the defendant’s confession was properly suppressed, but the Court held that investigative leads uncovered during the course of the questioning should not be suppressed. In discussing the

pre-Miranda

cases, the Court in some pertinent comments noted:

“In state cases the Court applied the Due Process Clause of the Fourteenth Amendment, examining the circumstances of interrogation to determine whether the processes were so unfair or unreasonable as to render a subsequent confession involuntary. Where the States’ action offended the standard of fundamental fairness under the Due Process Clause, the State was then deprived the right to use the resulting confession in Court.”

Id.

at 441 , 94 S.Ct. at 2362. (Emphasis added). (Citations omitted).

Similarly in

U. S. v. Blue,

384 U.S. 251, 255 , 86 S.Ct. 1416, 1419 , 16 L.Ed.2d 510 (1966), the Court held that:

“Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial. . . . Our numerous precedents ordering the exclusion of such illegally obtained evidence assumes implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book." (Citations omitted).

In

Blue

the defendant was charged with tax evasion after having supplied the IRS with information in response to a civil tax lien lodged against him. The Court rejected his claim that the privilege against self-incrimination barred the prosecution. Both

Blue

and

Tucker

are factually similar to the issue at bar. In each case the Supreme Court held strictly to the position that a defendant’s Fifth Amendment rights are adequately protected by excluding any

confessions.

In

Blue

the Court went so far as to hold that where Fifth Amendment violations were shown, it would be inappropriate to abort the prosecution entirely. Here the defendants assert that, it is necessary to dismiss the indictment in order to protect the deterrent value of the

Miranda

rules. Yet the Supreme Court has indicated that the analysis of asserted violations of constitutional rights that might impinge on judicial integrity is inseparable from the issue of whether a specific constitutional mandate has been violated.

Michigan v. Tucker, supra

at fn. 25.

It should also be noted that with regard to the alleged interrogations conducted after notice by counsel of his representation the defendants did not raise the Sixth Amendment right to counsel doctrine articulated in

Massiah v. U. S.,

377 U.S. 201

*296

(1964) except obliquely at oral argument by mentioning

Brewer v. Williams,

430 U.S. 387 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977). However,

Massiah

and

Brewer

do not require more than the suppression of the evidence obtained at the time of the discussion or interrogation.

It appears then that the Court need not resolve the factual conflict to determine which version of the interrogations, the defendants’ cataclysmic account or the prosecution’s entirely innocent rendition, is closer to the truth. Defendants’ rights are adequately protected by the exclusion from evidence of confessions or admissions obtained in violation of the strictures of

Miranda v. Arizona, supra,

or

Massiah ,

a course the defendants - deliberately chose not to pursue. In view of this determination the Court need not address the substantial issues raised by the government concerning whether the interrogations were “custodial” as that term is defined in

Miranda

or whether defendants might have effectively waived their Fifth Amendment rights.

II. GRAND JURY PROCEEDINGS

Defendants allege that the prosecution engaged in numerous improprieties by manipulating the evidence presented to the grand jury. Reduced to its essence, their argument is that the prosecution withheld

Brady

material, failed to record the testimony of government-agent witnesses, improperly presented the results of polygraph examinations and relied on excessive amounts of hearsay testimony, all of which led inexorably to an indictment returned by a grand jury that could not and did not exercise its independent judgment. The defendants claim that the government counsel intentionally committed these alleged improprieties to insure that the grand jury would comply with the prosecution’s wishes.

An analysis of the grand jury testimony that was recorded, however, belies the defendants’ contentions that the grand jury was a mere “creature” of the prosecutor. Grand jurors conducted extensive interrogation of witnesses, in some instances to a greater degree than did the prosecutor. On several occasions grand jurors were advised they could have additional testimony, have a witness returned or have a witness called to testify. The questions asked by the jurors reflect that they were knowledgeable about the factual aspects of the case, recognized the intricacies of the proffered testimony and were not at all reluctant to participate fully in the proceedings. Thus, while the entire grand jury proceedings were not recorded, the atmosphere indicated by the available minutes was not one of unfettered control by the prosecutor or a subjugated grand jury.

A.

Brady

Defendants claim that the government withheld testimony from the grand jury about statements of Mr. McCrery and Mr. Loesch which were inconsistent with their guilt. Defendants argue that this was a failure to comply with the principles of

Brady v. Maryland,

373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), which, in turn, constitutes an abuse of the grand jury that should lead to dismissal.

As indicated above, the Court has examined the transcript of the grand jury proceedings. The record reflects that while all statements of which the defendants complain may not have been presented to the grand jurors, the grand jury was made aware of uncertainties and inconsistencies of the statements of Mr. Loesch and Mr. McCrery. Had the grand jurors desired, they could have asked the witnesses to clear up any problems or could have refused to return indictments until such times as they were satisfied that any weaknesses were not fatal. While not determining, as the government urges, that the principles of

Brady

never apply to grand jury proceedings.

1

the Court notes that no fact which the defendants claim was withheld from the grand jury would have necessarily led to the return of a no true bill on either the Loesch or McCrery counts of the original or

*297

superseding indictment. In the context of trial practice, the Supreme Court has indicated that it is this standard — whether the prosecution has withheld evidence that would create a reasonable doubt — that must be followed.

U. S. v. Agurs,

427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976). At least one district court has adopted this approach, holding that courts should dismiss indictments returned by legally constituted grand juries only if the evidence withheld clearly negated the defendants’ guilt.

U. S.

v.

Mandel,

415 F.Supp. 1033 (D.Md.1976). The Court does not find that the evidence defendants claim was withheld “clearly negates” guilt. There is no requirement however that the government present all exculpatory evidence to the grand jury.

U. S. v. Y. Hata & Co., Ltd.,

535 F.2d 508, 512 (9th Cir. 1976).

U. S. v. Mandel, supra

at 1042. Moreover, all the statements which the defendants refer to are now in their possession. There is nothing to prevent a full and fair airing of these facts before the petit jury, which must decide the issue not addressed by the grand jury — whether the defendants are innocent or guilty. The Court, therefore, finds no prosecutorial misconduct with respect to the presentation of evidence to the grand jurors about Mr. McCrery or Mr. Loesch.

B.

Recordation

Defendants complain that they are unduly hampered in the preparation of their legal attacks on the grand jury proceedings because of the government’s lack of recordation of grand jury testimony of federal agents. Relying on ABA standards and the Sixth Circuit pronouncement that recordation is the “better” rule,

U. S. v. Battisti,

486 F.2d 961 (6th Cir. 1973), defendants would have the Court treat the government’s failure to record all testimony presented to the grand jury as a violation of their Fifth Amendment due process rights.

It is settled law that the presence of a court reporter in the grand jury room is permissive, not mandatory, absent a previous court order to that effect.

U. S. v. Hensley,

374 F.2d 341 (6th Cir. 1967);

U. S. v. Solimine,

536 F.2d 703, 707 (6th Cir. 1976).

U. S. v. Aloisio,

440 F.2d 705 (7th Cir. 1971);

In re Russo,

53 F.R.D. 564 (C.D. Cal.1971). F.R.Cr.P. 6(d). This is so notwithstanding the fact that it is “the better practice” to record all grand jury testimony. Cf.

U. S.

v.

Battisti, supra.

The only reported case requiring recordation of grand jury testimony in the absence of a court rule is

U. S. v. Gramolini,

301 F.Supp. 39 (D.R.I.1969). In

Gramolini ,

the judge implicitly authorized dismissal only prospectively. The decision was based on the recommendation of the ABA Special Committee on Federal Rules of Procedure that F.R.Cr.P. 6(e) be amended to require recordation. 38 F.R.D. 95 , 106 (1965).

See also

52 F.R.D. 87 , 94-5 (1971). This latter recommendation was made to bring Rule 6 in line with

Dennis v. U. S.,

384 U.S. 855, 870-2 , 86 S.Ct. 1840 , 16 L.Ed.2d 973 (1966). Despite these recommendations, Congress has not amended Rule 6 in this manner.

Even where the government has failed to honor a legitimate prior request for recordation, dismissal has not been allowed absent a “clear indication of prejudice.”

U. S.

v.

Thoresen,

428 F.2d 654, 666 (9th Cir. 1970). Defendants make no such showing here. They simply state that they cannot hope to show any irregularities because of the lack of full recordation.

In view of the substantial authority in this Circuit which approves the government’s practice in this case, as well as the absence of any rule in this District requiring the government to record agents’ testimony, the Court must conclude that there is no Fifth Amendment violation demonstrated in the recordation proceedings followed here.

C.

Testimony Concerning Polygraph Examinations

Defendants urge the Court to dismiss the indictment because they believe evidence of lie detector examinations was improperly presented to the grand jury. Defendants rely chiefly on ABA Standards, The Prosecution Function and the Defense Function § 3.5(b), 3.6(a) (1971), which rec

*298

ommend that prosecutors present to the grand jury only arguments and' evidence which will be admissible at trial. Without commenting on the desirability of adopting these recommendations, the Court notes that they have not been incorporated into the law of this, or any other, Circuit. In fact, prosecutors have extremely broad authority to present what evidence they choose to the grand jury. An indictment returned in part on incompetent evidence is not defective.

Holt v. U. S.,

218 U.S. 245, 247-8 , 31 S.Ct. 2 , 54 L.Ed. 1021 (1910). An indictment may be based solely on hearsay testimony by government agents.

Costello v. U. S.,

350 U.S. 359 , 76 S.Ct. 406 , 100 L.Ed. 397 (1955). Testimony derived from unconstitutional searches and seizures may be presented to the grand jury.

U. S. v. Calandra,

414 U.S. 338 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1973). The Supreme Court has said that:

“An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.”

Costello v. U. S., supra,

350 U.S. at 363 , 76 S.Ct. at 409 .

Likewise in this case the parties are entitled to a trial on the merits.

Defendants argue that the instant case is distinguishable from

Calandra

in that there the Court permitted the use of clearly trustworthy evidence by a grand jury that was excluded from trial to further societal interests unrelated to the search for truth. They complete the analogy by arguing that the lack of trustworthiness of polygraph results compels the Court to treat this case differently. This argument, however, fails to account for the holding in

Costello.

In approving the use of hearsay testimony the Supreme Court approved use of evidence that would not be admitted at trial because of its untrustworthy nature. It is well known that lack of trustworthiness of second-hand testimony underlies the origin and continued vitality of the hearsay rules. 5 Wigmore,

On Evidence,

§ 1362 (Chadbourn Rev.1974).

Even were the Court to fashion some sort of rule with respect to the use of polygraph results in grand jury proceedings, there appears to have been no fatal prejudice here. The United States Attorney cautioned the members of the grand jury not to place undue reliance on these test results.

2

The grand jury had the benefit of live testimony by two polygraph experts who examined the charts in question prior to returning the superseding indictment. At that time there was nothing to prevent it from inquiring into any areas desired. Moreover, the Court’s review of the transcript of the grand jury proceedings reveals that one of the jurors placed on the record his or her feelings that the polygraph results were not the reason the grand jury returned the indictment. It is important to keep in mind that the function of the grand jury is to make a determination of probable cause. The Supreme Court has repeatedly made clear that prosecutors have wide discretion in the manner in which they present evidence to the grand jury. It is the function of the finder of fact at trial, aided by the parties and Court in the adversary process, to determine whether the determination of probable cause ripens into a judgment of guilt beyond a reasonable doubt or acquittal. There is nothing in this record of the grand jury proceedings to suggest that the grand jury would not have returned its true bill but for the presentation of the testimony regarding polygraphs.

3

*299

D.

Use of Hearsay Testimony

From the lack of any recorded testimony before the grand jury on the medical/scientific aspects of this case, the defendants infer that all such evidence was presented by hearsay testimony. In view of the serious question which exists in the trial of this matter as to whether each of the respiratory arrests charged in the indictment was a crime or a natural event, the defendants allege that this was an impermissible reliance on excessive hearsay testimony. Defendants also challenge the use of testimony flowing from hypnotically “refreshed” memory and an apparent lack of factual testimony presented to the grand jury by percipient witnesses.

4

In support of their contentions the defendants quote extensively from a line of Second Circuit cases beginning with

U. S. v. Umans,

368 F.2d 725 (2d Cir. 1966) and most recently discussed in

U. S.

v.

Gallo, supra.

5

As the government points out the relevant test of these Second Circuit cases is found in

U. S. v. Estepa,

471 F.2d 1132 (2d Cir. 1972). In

Estepa

the court dismissed an indictment where the sole witness before the grand jury had been a government agent whose observations of the transaction in question were limited and remote. The undercover agent who participated appreciably in the events charged as criminal was never called. The United States Attorney presenting evidence to the grand jury in that case never mentioned this limited role of the witness who testified as if he had been a participant. The Court said that the test was whether the grand jury was misled into believing that it received first-class “merchandise” when they were actually presented “shoddy” hearsay testimony. In addition, the test requires a finding of a high probability that the grand jury would not have indicted had the percipient witness testified. In

U. S. v. Gallo, supra,

the court dismissed an indictment where the prosecutor presented a grand jury only with a transcript of previous grand jury testimony which he knew to be perjured in material part without informing the jurors of this fact. The case at bar is not comparable to these situations. The defendants’ argument that the grand jury would not have returned an indictment is extremely speculative. It rests on the conjunction of a number of factors, which the Court has already determined not to have been improper. There is no “strain of falsehood” hanging over these proceedings as there was in

Gallo.

Nor is there any reason to suppose that the jurors were misled about the nature of the testimony they heard. Instead there are several very serious questions which the jury must resolve about whether certain events were crimes and, if so, whether these defendants were responsible for them. The Court is satisfied that the defendants did have the benefit of a determination of probable cause by a duly constituted unbiased grand jury. While the Court might prefer to have had the grand jury investigation conducted in a somewhat different manner, there is nothing in this record to indicate that defendants’ Fifth Amendment rights were violated.

6

*300

III. PUBLICITY

Defendants claim that the government violated their rights during the conduct of a press conference called to announce the arrest of the defendants on the original indictment. Defendants charge that the government facilitated the photographing of them in chains, discussed their potential motives for the crime and mentioned the existence of certain uncharged events, all in violation of 20 CFR § 50.2 (1976). Previously this Court has issued an Order requiring the Marshal to desist in this matter from his usual policy of transporting all prisoners in chains. Criminal No. 6-80884, docket entry No. 7. Neither the United States Attorney nor the FBI were responsible for placing the defendants in chains. Upon request of defense counsel, the Court entered an order rectifying the situation.

Defendants’ charges of harm from government statements at the news conference are unconvincing. The purpose of curtailing comment by parties in lawsuits, particularly criminal cases, is to avoid undue publicity that might unfairly prejudice a defendant. In this matter the Court has conducted a searching individual inquiry of each prospective juror, numbering in total well over 150. Jury selection took almost four weeks to complete. Potential jurors were rigorously screened for bias, prejudice or preconceived beliefs. There is no question that the jury now sitting in this ease is free of any taint. Nor does it appear, from the news clippings offered by the government that the items alleged by defendants were universally reported. The defendants’ contention that government activity in this respect denied them a fair trial is without merit.

IV. WITNESS ACCESS

Defendants claim that a letter written by the government to its prospective witnesses on November 23,1976 violated their due process rights by suggesting improperly how those witnesses should treat requests by defense counsel for interviews. After being advised of the letter by defense counsel, the Court immediately required that another letter be sent to each witness correcting the offensive language. This was done by government attorneys shortly thereafter. The Court indicated a willingness to entertain motions relative to any further interferences with witness contacts. The defendants have made none. The Court concludes that the matter was raised and remedied many months ago. No lasting prejudice is shown to have occurred. The defendants’ rights to a fair trial have not been infringed.

V. BRADY CLAIMS

The defendants urge the Court to dismiss the indictment because of the government’s violations of the requirements of

Brady

v.

Maryland, supra.

The items discussed in defendants’ original brief and motion were considered by the Court in an

in camera

hearing conducted January 13, 1977. At that time the Court not only ruled on a defense motion, but ordered certain additional discovery. The Court issued an order, Cr. No. 6-80884, docket No. 60, requiring certain documents to be provided according to a timetable designed to protect the rights of the defendants. The Court considers that its earlier rulings on these subjects adequately protected the rights of the defendants.

In a supplemental brief filed in this matter the defendants bring to the Court’s attention another alleged violation of

Brady

v.

Maryland .

On March 21, 1977, while searching for portions of a report which had apparently not been provided during the course of discovery, defense counsel discovered a qualifying addendum to the report of the University of Michigan Pharmacy Department analyzing urine and intravenous fluid samples of patients Brown, McCrery and Loesch. The defense complains that the failure of the government to provide this sort of material, which tends to suggest doubt as to the reliability of certain scientific tests showing that Pavulon was present in various fluids, is a violation of

Brady

that warrants dismissal.

*301

The fluids in issue were offered into evidence by the government at the trial on April 11, 1977 (Tr. at 1127). The defendants argued against admission of some of these fluids on April 12 (Tr. at 1156-84). The Court received four of the exhibits and excluded two others that same day (Tr. at 1185-95). There is no contention that the defendants are unable to place all evidence casting doubt on the reliability of tests relating to these exhibits before the jury.

The Supreme Court refined the standard to be used in ruling on

Brady

questions in

U. S.

v.

Agurs, supra.

In that case the Court upheld the trial court’s denial of a motion for new trial based on the fact that the prosecution had withheld from defense counsel the victim’s criminal record which tended to show some violent behavior. The Court enunciated the proper standard as:

“if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record.”

Id.

427 U.S. at 112 , 96 S.Ct. at 2401.

This language evidences the understanding of the Supreme Court that

Brady

was designed to insure a fair trial. This approach is underlined in U.

S.

v.

Clark,

538 F.2d 1236 (6th Cir. 1976) a per curiam decision which does not mention

Agurs .

In that case the court assumed that the government had not told the defense about a negative report concerning a fingerprint. The court held.that where disclosure was made on the third day of trial and the matter was presented to the jury there was no abuse of due process. The clear import of these cases is that the critical due process inquiry is whether the prosecutor withholds evidence that would create a reasonable doubt in such a way that it does not come before the jury in a timely fashion.

7

Accord U. S.

v. DeMarco,

407 F.Supp. 107 (C.D.Cal.1975). That is not the case here. While the government is walking a thin line that risks a mistrial or other action if significant evidence is not provided the defendants until some later time, the Court finds no violation of due process in the circumstances of the case to date.

VI. CONTINUING MISFEASANCE

Defendants contend that the government continues to frustrate the Court’s order by securing a superseding indictment charging previously unalleged illegal acts, and seeking certain discovery. The Court has already ruled on these motions. Where appropriate, the government requests for discovery were denied or overt acts stricken from the indictment. Defendants’ contention that their due process rights have been violated is without merit. The Court has been scrupulous both to protect the integrity of its own orders and to safeguard the rights of the accused in this case.

VII. CUMULATIVE EFFECT

Having considered the allegations of the defendants individually, it remains to consider whether the cumulative impact of the actions defendants complain of compels the Court to dismiss the indictment either as a matter of due process or in the exercise of its inherent supervisory authority. In assessing the conduct of the prosecution in terms of due process of law, the Court is mindful of the fact that the Supreme Court has said:

“As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.”

Lisenba

v.

California,

314 U.S. 219, 236 , 62 S.Ct. 280, 290 , 86 L.Ed. 166 (1941).

*302

The standard to turn to in determining whether the court should exercise its supervisory powers is not so clear. Numerous rationales have been advanced to explain the nature and scope of the somewhat sparingly used supervisory authority, but it is generally conceded (as defendants’ brief argues) that the courts are primarily concerned with protecting “the judicial process from the stigma of illegal or unfair” government conduct. Note,

The Supervisory Power of the Federal Courts,

76 Harv. L.Rev. 1656, 1663 (1963). See

McNabb v. U. S.,

318 U.S. 332 , 63 S.Ct. 608 , 87 L.Ed. 819 (1943).

8

The Supreme Court has not announced a general rule requiring the application of the Court’s supervisory authority to a wide variety of cases, preferring instead to treat each case on its particular facts.

Marshall v. U. S.,

360 U.S. 310 , 79 S.Ct. 1171 , 3 L.Ed.2d 1250 (1959);

Grunewald v. U. S.,

353 U.S. 391, 424 , 77 S.Ct. 963 , 1 L.Ed.2d 931 (1957).

While it is true that an indictment may be dismissed without regard to considerations of prejudice, prejudice to the defendants is one factor which the Court should take into account in its determination.

U. S. v. McCord,

166 U.S.App.D.C. 1 , 509 F.2d 334, 350 (1974) (en banc),

cert. denied,

421 U.S. 930 , 95 S.Ct. 1656 , 44 L.Ed.2d 87 (1975).

U. S. v. Crow Dog,

399 F.Supp. 228, 238 (N.D.Iowa 1975),

aff’d,

532 F.2d 1182 (8th Cir. 1976). The Court has an obligation to tailor any remedy to the nature of the misconduct in the particular case. The more serious the violation, the more severe the remedy must be.

The reported cases granting dismissals are far different than the facts of the case at bar in its present posture. In

U. S. v. Banks,

383 F.Supp. 389 (D.S.D.1974),

app. dismissed,

513 F.2d 1329 (8th Cir. 1975), a defense motion to dismiss the indictment was granted where, after an eight month trial, it had become evident that the government’s continuing and patterned misconduct had reached egregious proportions and had thereby prejudiced the defendant’s right to a fair trial.

9

In

U. S. v. DeMarco,

407 F.Supp. 107 (C.D.Cal.1975) the prosecutor failed to reveal important facts, within his personal knowledge, tending to discredit the testimony of one of his witnesses who, in the court’s phrase, “struck a death blow” to the defense. The court held that this illegal withholding of evidence, which prevented the court from ruling on a critical issue of law before the testimony was presented to the jury, required a dismissal. This is manifestly not the situation of the instant case. As indicated, some of the defendants’ contentions, if true, are not violations of law. As to others which may have been inappropriate prosecutorial conduct, the Court has rectified any prejudicial effect. There is not now any claim that the defendants have been prevented from bringing before the jury all facts necessary to their defense.

Courts have been justifiably reluctant to employ their broad supervisory power to terminate prosecutions. Both the public and the defendants have an interest in a verdict following a fair and impartial trial.

It is only when a court can conclude that it is powerless to provide a criminal defendant with a fair trial, now or at any time in the reasonable future, should the court dismiss the case.”

U. S.

v.

Banks,

374 F.Supp. 321, 323 (D.S.D.1974).

The Court should conduct judicial proceedings in such a way that “only irrational or perverse” claims of denial of fundamental rights can be asserted.

Communist Party of the U. S. v. Subversive Activities Control Board,

351 U.S. 115, 124 , 76 S.Ct. 663 , 100

*303

L.Ed. 1003 (1955). The emphasis in Supreme Court opinions has been on preserving of the fairness of trials. Dismissals for prosecutorial misconduct are an exception of last resort, not the general rule.

The Court is cognizant of its continuing duty to insure that these defendants receive a fair trial. Impermissible evidence may not be used against them. The government may not engage in unfair tactics that deny the defendants their right to a fair and impartial trial. The Court has in the past acted to preserve these rights and will continue to do so. This trial is still in its early stages. At this point the Court concludes that there is no illegality that has fatally prejudiced the defendants’ rights to a fair trial. “The waters of justice,” to adopt the phrase used in

U. S. v. Banks,

383 F.Supp. at 397 , “have not yet been polluted.” However, as the case progresses and further evidence is presented to the jury there must be a vigilant and scrupulous effort to assure that defendants’ right to a fair trial is not fatally impaired. The Court desires to bring these proceedings to their natural and orderly conclusion — a fair and impartial jury verdict. It is sincerely hoped that it will not be necessary to terminate the trial process because of the failure of the government to honor the defendants’ constitutional rights.

The Court concludes that the defendants have not shown a denial of due process of law, nor does the Court believe that it would be appropriate to exercise its supervisory powers by dismissing the indictment. The defendants’ motion is therefore denied.

ON MOTION FOR NEW TRIAL

The defendants, Filipina Narciso and Leonora Perez, filed a Motion for New Trial, following their convictions by jury verdict of violations of 18 U.S.C. §§ 7 , 13, 371 and M.C.L.A. § 750.436. The parties have submitted briefs and the Court heard oral arguments on November 2, 1977. Ruling on the Motion was taken under advisement and is submitted below.

I. THE STANDARD

“The Court on motion of a defendant may grant a new trial to [her] if required in the interest of justice.” FRCrP 33.

1

Members of the Bar and the general public are probably most familiar with motions for new trial based on the ground that the verdict was against the weight of the evidence. This is an argument that is not infrequently asserted following a criminal conviction and one that these defendants have made. The law on this subject is well-developed and gives substantial guidance to this Court in its determination of the case before it.

It is generally agreed that:

“Motions for a new trial are directed to the trial court’s discretion. Under its broad power, the court may weigh the evidence and consider the credibility of the witnesses. The remedy is sparingly used, the courts usually couching their decision in terms of ‘exceptional cases,’

U. S. v. Pepe,

209 F.Supp. 592, 595 (D.Del. 1962) affirmed, 339 F.2d 264 (3rd Cir. 1964), ‘miscarriage of justice,’

U. S. v. Parelius,

83 F.Supp. 617, 618 (D.Hawaii 1949) and where ‘the evidence preponderates heavily against the verdict.’

U. S. v. Robinson,

71 F.Supp. 9, 10-11 (D.D.C. 1947).”

U. S. v. Leach,

427 F.2d 1107, 1111 (1st Cir. 1970),

cert. denied,

400 U.S. 829 , 91 S.Ct. 57 , 27 L.Ed.2d 59 (1970).

Some courts go so far as to say that thé trial court sits, in effect, as a 13th juror on a motion for new trial to insure that justice is done.

U. S. v. Caramandi,

415 F.Supp. 443 (E.D.Pa.1976);

U. S.

v.

Phifer,

400 F.Supp. 719 (E.D.Pa.1975), aff’d mem. 532 F.2d 748 (3rd Cir. 1976);

U. S. v. Parelius,

83 F.Supp. 617 (D.Hawaii 1949).

2

Whether

*304

the Court conceives of itself as a thirteenth juror or strictly in judicial terms,

“[t]he power of the trial judge to set aside a verdict as against the weight of the evidence and grant a new trial is a check or limitation on the jury’s power to render a final and binding verdict, to the end that a miscarriage of justice does not result. However, ‘[cjourts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.’

Tennant

v.

Peoria & P. U. Ry. Co.,

321 U.S. 29, 35 , 64 S.Ct. 409, 412 , * 88 L.Ed. 520 (1944);

Werthan Bag Corp. v. Agnew,

202 F.2d 119, 122 (6th Cir. 1953). Thus, while the district judge has a duty to intervene in appropriate cases, the jury’s verdict should be accepted if it is one which could reasonably have been reached. In applying these two broad principles defining the limits of court action, in granting a new trial on the weight of the evidence, the district judge must, as is generally stated, exercise his sound judicial discretion.”

Duncan v. Duncan,

377 F.2d 49, 52 (6th Cir. 1967),

cert. denied, sub nom. Fain v. Duncan,

389 U.S. 913 , 88 S.Ct. 239 , 19 L.Ed.2d 260 (1967).

The standard applicable to a motion for a new trial is different from that used in determining whether a defendant is entitled to a judgment of acquittal under FRCrP 29.

U. S.

v.

Hurley,

281 F.Supp. 443 (D.Conn.1968);

U. S. v. Beacon Musical Instrument Co.,

135 F.Supp. 220 (D.Mass.1955);

U. S.

v.

Kelly,

119 F.Supp. 217 (D.D.C.1954). In a motion for judgment of acquittal the court must determine whether, taking the evidence in the light most favorable to the government, the jury must have a reasonable doubt as to the guilt of the accused.

3

If no such doubt necessarily exists under that view of the evidence, the motion for judgment of acquittal must be denied. E. g.,

Curley v. U. S.,

81 U.S.App.D.C. 389 , 160 F.2d 229 (1946),

cert. denied,

331 U.S. 837 , 67 S.Ct. 1511 , 91 L.Ed. 1850 (1947). As previously indicated, the court’s power in ruling upon a motion for new trial is much broader. The reason for this distinction lies in the differing effects upon the trial process the two rulings have.

“In directing a judgment of acquittal, the Court makes a final disposition of the case. On the other hand, in setting the verdict aside the Court merely grants a new trial and submits the issues for determination by another jury. It is appropriate in the latter instance, that the Court should have wide discretion in the interest of justice.”

U. S. v. Robinson, supra

at 11.

Federal trial judges are not, however, limited in deciding motions under Rule 33, to weighing the evidence. On the contrary, the very words of the rule — “interest of justice” — mandate the broadest inquiry into the nature of the challenged proceeding.

As the Supreme Court said in

U. S. v. Gainey,

380 U.S. 63, 68 , 85 S.Ct. 754, 758 , 13 L.Ed.2d 658 (1965), “Our Constitution places in the hands of the trial judge the responsibility for safeguarding the integrity of the jury trial . . . ” In the context of motions for new trial the courts have discharged this obligation by determining whether there has been a “miscarriage of justice.” E. g.,

U. S. v. Robinson, supra.

*305

Generally speaking, even a single error during the trial process could, if of sufficient magnitude, warrant a new trial. See 2 Wright, Federal Practice and Procedure: Criminal § 556 (1969). Thus, courts have held that motions for new trial could properly raise issues relating to access to witnesses,

U. S. v. Mosca,

355 F.Supp. 267 (E.D.N.Y.1972),

aff’d,

475 F.2d 1052 (2nd Cir. 1973),

cert. denied,

412 U.S. 948 , 93 S.Ct. 3003 , 37 L.Ed.2d 1001 (1973), provision of lists of members of the jury venire,

U. S. v. Crockett,

514 F.2d 64, 69 (5th Cir. 1975) and juror bias.

U. S. v. Wayman,

510 F.2d 1020, 1023-4 (5th Cir. 1975),

cert. denied, sub nona. Moore

v.

U. S.,

423 U.S. 846 , 96 S.Ct. 84 , 46 L.Ed.2d 67 (1975)

4

The fact that in ruling upon a motion for new trial the Court has broad powers as to the type of errors it may consider as well as the manner in which it may weigh the evidence testifies to the great significance the law attaches to fairness in our criminal justice system. The Supreme Court has consistently acted to preserve criminal trials from any error of Constitutional magnitude. In

In re Winship,

397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970) the court held that proof beyond a reasonable doubt is constitutionally required in criminal trials:

“ ‘This notion — basic in our law and rightly one of the boasts of a free society — is a requirement and a safeguard of due process of law in the historic procedural context of “due process.” ’

Leland v. Oregon,

[ 343 U.S. 790 , 72 S.Ct. 1002 , 96 L.Ed. 1302 (1952)] at 802-3 [ 72 S.Ct., at 1009 ] (dissenting opinion). In a similar vein, the Court said in

Brinegar v. United States,

[ 338 U.S. 160 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949)] at 174 [ 69 S.Ct., at 1310 ], that ‘[g]uilt in criminal cases must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.' ”

Id.

at 362, 90 S.Ct. at 1071.

5

On a motion for new trial the Court must review challenged trial proceedings to insure that the dictates of due process have been met. Though criminal defendants are entitled to a fair trial, but not a perfect one (because “there are no perfect trials,”

Brown v. U. S.,

411 U.S. 223, 232 , 93 S.Ct. 1565 , 36 L.Ed.2d 208 (1973)), the Court may not thereby abdicate its obligation to insure that fundamental fairness has been provided.

“. . . [W]here the conduct of a trial is involved, the guarantee of the Fourteenth Amendment is not [merely] that a just result shall have been obtained, but that the result, whatever it be, shall be reached in a fair way. Procedural due process has to do with the manner of the trial; dictates that in the conduct of judicial inquiry certain fundamental rules of fairness be observed; forbids the disregard of those rules, and is not satisfied though the result is just, if the hearing was unfair.”

Snyder v. Massachusetts,

291 U.S. 97, 137 , 54 S.Ct. 330, 344 , 78 L.Ed. 674 (1934) (Roberts, J., dissenting).

As the only member of the judicial branch of government to be present throughout the entire trial the Court must of necessity exercise its function to assess the defendants’ challenge to these proceedings with great care. As the Sixth Circuit Court of Appeals said in a case presenting a similar, but somewhat narrower issue,

*306

“Trial by jury is one of the most vital elements in the administration of justice so far as the average citizen is concerned.

* * * * * *

“Faith in the courts and in the jury system must be maintained and it is proper that on questions such as we have here the rule should be such as to support the faith of all litigants in our judicial system and, as part thereof, trial by jury. That faith can be sustained only by keeping our judicial proceedings free from the suspicion of wrong. The question is, not whether any actual wrong resulted . but whether [there was] created a condition from which prejudice might arise or from which the general public would suspect that the jury might be influenced to reach a verdict on the ground- of bias or prejudice.”

Stone v. U. S.,

113 F.2d 70, 77 (6th Cir. 1940).

Broadly viewed, then, the Court’s inquiry on a motion for new trial such as the one in the case at bar is two-fold — did the defendants receive a fair trial and does the jury’s verdict rest on evidence that meets the standards of certainty the law requires in criminal eases.

The motion filed by the defendants in this case is extremely broad. Defendants argue that (a) the verdict is against the weight of the evidence, (b) the conduct of the prosecution was prejudicial, (c) certain evidentiary rulings of the Court were erroneous, and (d) during deliberations the jury discussed matters not in evidence. Many of the defendants’ claims have been considered by the Court earlier in these proceedings. This, however, does not bar further consideration. The Court has now had the opportunity to consider the course of the trial, the impact of its rulings and the conduct of all the parties in a detached, thorough manner. The daily pressures of trial management have not intruded into this deliberative process. More importantly, the Court has been able to look back on the whole proceeding with a better ability to appreciate the subtle (as well as the not so subtle) influences on the jury. Matters that seemed of great moment in the heat of the trial appear, on reflection, to have been less significant than events the ultimate effect of which were not apparent at the time of their occurrence. With the full history of these proceedings in mind, the Court is better equipped than it was at any previous time to assess the fairness of the trial and the jury’s verdicts.

THE PROOFS

The indictment in this case charged the defendants with the most sensational of crimes. The Grand Jury charged, and the government sought to prove, that the defendants, registered nurses employed in the Intensive Care Unit of the Veterans Administration Ho

This text is long and has been trimmed here. Open the source document for the complete record.