Petition — Ledee v. United States

Supreme Court brief1977

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Text

| ‘|. FILED

JUN 8 1977

MICHAEL RODAK, JR., CLERK |

in the

: Supreme Court

of the

Ginited States

OCTOBER TERM, 1976

76°1783

NO.

WILLIAM LEDEE,

Petitioner,

v8.

UNITED STATES OF AMERICA,

3 Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

LAW OFFICES OF

EUGENE P. SPELLMAN

Attorneys for Petitioner

119 E. Flagler Street

Suite 240

Miami, FL 33131

By: — P. SPELLMAN

DENIS DEAN

MIAMI REVIEW — 371-4853 — 377-3721

INDEX

Page

I i eieuneesaiinanneici 2

SUIIIEIIIIIINT "csi tiacosiisntabanioeldedlspiniiennaienitndinisaglaneetel 2

QUESTIONS PRESENTED FOR REVIEW ..... 2

CONSTITUTIONAL PROVISIONS INVOLVED | 3

STATEMENT OF THE CASE _0 0. 4

ARGUMENT 3 eben 6

IIE Sovcietlniiinitiipsapiicnisticnidiienenigilinescininiininsig 23

CERTIFICATE OF SERVICE ~..... 24

APPENDIX

Opinion of the United States Court of Appeals

for the Fifth Circuit, March 31,1977... App. 1

Order Denying Petition for Rehearing, April

saieesiaeeieilaine , _App. 18

Motion for List of Witnesses . App. 14

Order Denying Motion for List of Witnesses App. 17

CITATIONS

Case

Aldridge v. United States,

283 U.S. 308, 51 S.Ct. 470 (1981) _.

Ford v, United States,

201 F.2d 800 (5th Cir. 1958)

Gregury v. United States,

369 F.2d 185 (Dist.Col.App. 1966)

Griffin v. People of the State of Illinois,

351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891

Ham v. South Carolina,

409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46

(1973) Bite DOE NEEM Dele

Morris v. Richardson,

346 F.Supp. 494 (D.C, Ga. 1972)

Palermo v. United States,

860 U.S. 348, 79 S.Ct. 1217, 3 L.Ed.2d 1287

I ksi ii tek il

Swain v. State of Alabama,

380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759

(1965) Sa eae vekalidea

United States v. Blount,

479 F.2d 650 (6th Cir. 1973) .

Page

Ill

CITATIONS (cont.)

Case

United States v. Dellinger,

472 F.2d 340 (7th Cir. 1972), Cert.Den. 410

U.S. 970, 93 S.Ct. 1448, 35 L.Ed.2d 706 (1972)

United States v. Lewin,

467 F.2d 1132 (7th Cir. 1972) Fhe

United States v. Nell,

526 F.2d 1223 (5th Cir. 1976) __...

OTHER AUTHORITIES

Fifth Amendment, United States Constitution

Sixth Amendment, United States Constitution

Fourteenth Amendment, United States Constitution

Title 18, Section 2314, United States Code

Title 18, Section 3432, United States Code

Federal Rule of Criminal Procedure,

Rule 16(A)(1)(E) (proposed)

Page

3, 8

7,9

in the

Supreme Court

of the

Gnited States

OCTOBER TERM, 1976

NO. | i

WILLIAM LEDEE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to

review the decision of the United States Court of Appeals

for the Fifth Circuit entered March 31st, 1977 and in

which a petition for rehearing was denied April 29th,

1977.

THE OPINION BELOW

The United States Court of Appeals for the Fifth

Circuit affirmed the conviction below on March 31st, 1977.

The opinion was rendered but not yet reported. (App. A).

A timely petition for rehearing was filed and denied on

Apr’] 29th, 1977. (App. B).

JURISDICTION

The judgment of affirmance by the United States

Court of Appeals for the Fifth Circuit was pronounced

on March 31st, 1977, with a petition for rehearing being

denied April 29th, 1977. Jurisdiction of the Supreme Court

of the United States is invoked under 28 U.S.C., Section

1254 (1).

QUESTIONS PRESENTED FOR REVIEW

(1) Whether the United States Court of Appeals for

the Fifth Circuit correctly determined that there was no

error in the trial judge failing to ask prospective jurors

Defendant’s requested voir dire questions pertaining to rea-

sonable doubt, presumption of innocence and burden of

proof.

(2) Whether the United States Court of Appeals

for the Fifth Circuit correctly determined that there was

no error in the trial judge denying the Defendant’s motion

for a list of witnesses prior to trial.

tion

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu-

provides as follows:

“No person shall be held to answer for a capital

or otherwise infamous crime, unless on a present-

ment of indictment of a grand jury, except in

cases arising in the land or naval forces, or in

the militia, when in actual service in time of war

or public danger; nor shall any person be subject

for the same offense to be twice put in jeopardy

of life or limb; nor shall be corapelled in any

criminal case to be a witness against himself;

nor be deprived of life, liberty or property, with-

out due process of law; nor shall private property

be taken for public use, without just compensa-

tion.”

The Sixth Amendment to the United States Constitu-

provides as follows:

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district where-

in the crime shall have been committed, which

district shall have been previously ascertained by

law, and to be informed of the nature and cause

of the accusation: to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defence.”

The Fourteenth Amendment to the United States

Constitution provides as follows:

“Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person

of life, liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction of the equal protection of the laws. . .”

STATEMENT OF THE CASE

After a jury trial in the United States District Court

for the Northern District of Georgia, Petitioner-Defend-

ant was convicted on six ‘6) counts of transporting in

interstate commerce securities (checks) which were falsely

made and forged in violation of Title 18, Section 2314,

United States Code. Petitioner was sentenced to six years

imprisonment.

Appeal was taken to the United States Court of Ap-

peals for the Fifth Circuit and on March 31st, 1977, the

conviction was affirmed, with a petition for rehearing

being timely filed thereafter and denied on April 29th,

1977. The Petitioner-Defendant is at liberty by virtue of

the United States Court of Appeals for the Fifth Circuit

issuing a stay of the mandate pending proceedings before

the Supreme Court of the United States.

In view of the fact that no issue is presented here

concerning the sufficiency of the evidence presented at

trial, but only issues pertaining to the jury selection

procedures and the pre-trial denial of a motion for list of

witnesses, the factual background of this case wili not be

reviewed.

As part of the pre-trial proceedings in this cause, a

motion for list of witnesses was filed on behalf of the

Defendant, WILLIAM LEDEE. (App. C). Thereafter, the

United States Magistrate entered an order denying the

motion for list of witnesses. (App. D).

The procedure utilized by the trial judge in the selec-

tion of a jury was that the trial judge would voir dire the

prospective jurors utilizing written questions submitted

by counsel for the Government and counsel for the De-

fendant. To that end, prior to trial, counsel for the De-

fendant submitted a list of requested voir dire questions

to the court, included therein were the following questions

which counsel requested the court to ask prospective jurors

and to which the Government objected and the court

refused :

“(24) Do each of you understand the Govern-

ment has the burden of proving the Defendant

guilty beyond and to the exclusion of a reasonable

doubt, and that a reasonable doubt is not a mere

fanciful or imaginary doubt, but a doubt to which

you can give a reason?

“(25) Do each of you understand an indict-

ment has been returned in this case, and it is not

to be considered by you as evidence or indication

of guilt on the part of the Defendant, WILLIAM

LEDEE, but rather the indictment is only a vehi-

cle for bringing the person before the Court to

stand trial?

“(27) Would any of you hold it against

WILLIAM LEDEE if, in fact, he did not testify?

In other words, are there any of you that feel

that in a criminal case the defendant should

testify despite the fact that he is not required to?

“(40) Can each of you accept the proposition

of law that a defendant is presumed to be in-

nocent, that he has no burden to establish his

innocence, and that he is clothed throughout the

trial with this presumption?”

ARGUMENT

(1) Petitioner submits that the denial of the re

quested list of witnesses to be used by the Government at

the trial was a violation of the Due Process Clause of the

Fifth Amendment incorporating the equal protection

guarantee found in the Fourteenth Amendment to the

United States Constitution.

It is the Petitioner’s position that not only was it

constitutionally improper for the motion for list of wit-

nesses to have been denied, but as will be developed, by

virtue of that denial, an intentional and extremely preju-

dicial situation confronted the Defendant at trial by not

having the names of specific witnesses the Government

intended to call.

Counsel concedes that the only provision under the

United States Code for requiring the Government to

produce witness lists is with regard to capital cases (18

U.S.C., §3432)) in which the Government is required to

submit a witness list three days before trial in capital

cases. It is also true that the proposed Federal Rule of

Criminal Procedure, Rule 16(a) (1) (E) providing that

each party, the Government and the Defendant. could

discover the names and addresses of the other party’s wit-

nesses was rejected by Congress. However, it is felt that

clearly it is a violation of the Equal Protection Clause of

the Constitution of the United States and a denial of due

process to require the Government to produce a witness

list in a capital case but to deny a defendant the same

witness list in a felony case less than capital. By creating

a separate classification for persons accused of capital

offenses, procedure suffers an equal protection infirmity

for which there is no compelling governmental interest

justifying the classification.

It has been suggested that the right to advance notice

of witnesses against the Defendant and their prior state-

ments be required by the Sixth Amendment and by due

process. Palermo v. United States, 360 U.S. 348, 79 S.Ct.

1217, 3 L.Ed. 20 1287 (1959). It is worthy of note that

the ABA Project on Standards for Criminal Justice pro-

, ed that “the names and addresses of persons who the

prezecuting attorney intends to call as witness at the

hearing or trial” be discoverable as a matter of richt.

ABA, Standards Relating to Discovery and Procedure

Before Trial, Section 2 (1) (a) (1) (1969).

The Sixth Amendment to the Constitution of the

United States provides in part that:

“In all criminal prosecutions, the accused shall

enjoy the right... to be confronted with the wit-

nesses against him...and to the Assistance of

Counsel for his defence.”

In view of the Sixth Amendment mandate, it is dif-

ficult to see how a denial of a witness list to the person

accused of a felony in federal court can be justified when

if that same person were charged with a capital offense,

he would be entitled to a list of witnesses. It is a clear

violation of equal protection of the laws.

It has been recognized that:

“All standards of equal protection applicable

to the States through the Fourteenth Amendment

are also applicable to the Federal Government

through the Fifth Amendment. To rule other-

wise would be totally illogical if not hypocritical.

The Due Process Clause of the Fifth Amendment

prohibits the Federal Government from creating

statutes which establish arbitrary discrimination

having no rational basis in legitimate govern-

mental purposes. Although, the equal protection

guarantee is not specific, it has been implied into

the Due Process Clause of the Fifth Amend-

ment. Bolling v. Sharpe, 347 U.S, 497, 74 S.Ct.

693, 98 L.Ed. 884 (1954).” Morris v. Richard-

son, 346 F.Supp. 494 (D.C.Ga. 1972).

The discussion of the Court in Gregory v. United

States, 369 F.2d 185 (Dist. Col.App. 1966) concerning 18

US.C, $3432, requiring that in capital cases the defendant

be furnished a list of the names and addresses of the wit-

nesses to be called by the Government is equally applicable

to the situation confronting a defendant charged with less

than a capital case:

“The purpose of 18 U.S.C. §3432, requiring

that in capital cases the defendant be furnished

a list of the names and addresses of the wit-

nesses to be called by the Government is to assist

defense counsel in preparing the defense by inter-

viewing the witnesses. Witnesses, particularly

eye-witnesses, to a crime are the property of

neither the prosecution nor the defense. Both

sides have an equal right and should have an

equal opportunity, to interview them. Here the

defendant was denied that opportunity which, not

only the statute, but elemental fairness and due

process required that we have.” (Emphasis

Supplied)

As Canon 39 of the Canons of Professional Ethics

provides:

“A lawyer may properly interview any wit-

nesses or prospective witnesses for the opposing

side in any civil or criminal action without the

consent of opposing counsel or party”.

Particularly in a criminal case, “Both equal proctec-

tion and due process emphasize the central aim of our

entire judicial system—all people charged with crime must

so far as the law is concerned, stand on an equality before

the Bar of Justice in every American court.” Griffin v.

People of the State of Illinois, 351 U.S. 12, 76 S.Ct. 585,

100 L.Ed. 891 (1956).

By virtue of the Government not being required to

submit a list of witnesses prior to the trial, the Defendant

was placed in a position at trial of having been led by

the Government to believe that a particular expert witness

was present at the trial, whose testimony would have been

favorable to the Defendant, but who, in fact, was still in

Washington, D.C. and the Defendant was precluded from

obtaining the presence of said witness.

A few days prior to the trial, counsel received a

copy of the hand-writing analysis that had been conducted

by the FBI Laboratory in Washington, D.C., the result of

the analysis being that no conclusion could be reached as

to whether or not the person that signed certain submitted

documents was the same individual that signed checks

which were the subject of the indictment being tried. The

hand-writing report was unsigned, however, at the trial

the Government prosecutor stated:

“The hand-writing expert is here, if the defense

wants to call him.”

It subsequently developed that the hand-writing expert

who had prepared the pre-trial report was not, in fact,

present and the Government had never subpoenaed him

for trial. When defense counsel requested a continuance in

the trial to obtain the presence of the witness, the court

denied the request.

The importance of the above is the fact that at trial,

the Defendant’s ex-girlfriend identified the maker’s signa-

ture on the checks in question as being that of the De-

fendant, WILLIAM LEDEE, This is the same signature

that the FBI hand-writing expert could not so attribute

to the Defendant.

It is clear that had a list of witnesses been supplied

to defense counsel prior to trial, subpoenas could have been

issued and there would have been no question, but that the

desired witness would have been present to testify as a

defense witness, rather than the prejudice occurring by

the absence of said witness.

(2) The United States Court of Appeals for the

Fifth Circuit in affirming the action taken by the trial

judge in denying Defendant’s requested voir dire questions

which are set out above is directly contrary to the deci-

sion of the United States Court of Appeals for the Sixth

Cireuit in United States v. Blount, 479 F.2d 650 (6th Cir.

1973).

The trial court in refusing to inquire of the prospec-

tive jurors as requested by defense counsel stated that he

felt the following statement made to the jury was suf-

ficient. The Judge stated to the prospective jurors:

“Now, the Court will instruct you, as most of

you know who have served on juries, concerning

all the various elements of law and the burden

of proof that is involved. Are there any of you

who feel that for any reason you cannot follow

the law as stated to you by the Court in instruc-

tions. Are there any of you who have any reason

to believe that, if selected as juror, you could not

follow the law as stated by the Court, whether

you disagree with the law or not. Are there any

of you who feel that you could not follow the

law.”

It is submitted by counsel that the above statement

made to the prospective jurors is insufficient to enable a

Defendant to intelligently exercise either challenges for

cause or peremptory challenges based upon possible preju-

dice and/or bias of the prospective jurors.

The Supreme Court of the United States has made it

clear that “the denial or impairment of the right to ex-

ercise ones challenges to prospective jurors is reversible

error without a showing of prejudice.” Swain v. State of

Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed. 20 759

(1965). In the instant case, the questions asked of the

veniremen were so restricted as to seriously “impair”

appellant’s right to exercise challenges, and amounts to an

effective “denial” of that right. Swain, supra.

Of course, the questions to be asked on voir dire are

a matter of the trial Court’s discretion, but this discretion

is “subject to the essential demands of fairness.” Aldridge

v. United States, 283 U.S, 308, 51 S.Ct. 470 (1931).

It is submitted that the decision in United States v.

Blount, supra, is directly on point and due to the error in

that case, a new trial was granted. In Blount:

“During the voir dire examination of the pro-

spective jurors, the district court refused appell-

ant’s request to ask if they could accept the

proposition of law that a defendant is presumed

to be innocent, has no burden to establish his

innocence, and is clothed throughout the trial

with this presumption.”

“The primary purpose of the voir dire of jurors

is to make possible the empanelling of an impar-

tial jury through questions that permit the intelli-

gent exercise of challenges by counsel. Wright, 2

Federal Practice and Procedure 382 (1969). It

follows, then, that a requested question should be

asked if an anticipated response would afford the

basis for a challenge for cause. See e.g., United

States v. Carter, 440 F.2d 1132 (6th Cir. 1971) ;

Brown v. United States, 119 U.S. App.D.C. 203,

238 F.2d 548 (D.C. Cir. 1965). Certainly, a chal-

lenge for cause would be sustained if a juror ex-

pressed his incapacity to accept the proposition

that a defendant is presumed to be innocent de-

spite the fact that he has been accused in an in-

dictment or information. It is equally likely that

careful counsel would exercise a peremptory chal-

lenge if a juror replied that he could accept this

proposition of law on an intellectual level but that

it troubled him viscerally because folk wisdom

teaches that where there is smoke there must be

fire. Accordingly, the failure of the trial judge to

14 15

ask the question upon request was erroneous and spective jurors which could lead to possible challenges

since the failure may have resulted in the denial either for cause or peremptorily was discussed as follows:

of an impartial jury, the error cannot be dis-

missed as harmless. See Brown v. United States,

supra (Burger, J.). It matters not that the put-

ting of the question might also, as appellee con-

tends, have constituted anticipatory argument to

precondition the jury. This is an unavoidable con-

sequence of the voir dire jury examination.”

The United States Court of Appeals for the Fifth

Circuit has recently had an opportunity to comment on the

importance of voir dire in United States v. Nell, 526 F.2d

1223 (5th Cir. 1976) as follows:

“The jury box is holy place. To insure that

those who enter are purged of prejudice, both

challenges for cause and the full complement of

peremptory challenges are crucial ... At stake

is the party’s right guaranteed by the Sixth

Amendment to an impartial jury; the principal

way this right is implemented is throng. th

system of challenges exercised during § vi"

dire of prospective jurors . . . Althougu a tric:

court has broad discretion in its conduct of voir

dire, . . . its exercise of that discretion is “sub-

ject to the essential demands of fairness.”

It is interesting to note that the Fifth Circuit in addi-

tion to citing the Blount decision also makes reference to

the decision in United States v. Dellinger, 472 F.2d 340

(7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443,

35 L.Ed.2d 706 (1972). In Dellinger, the right of the

defendant to be entitled to have questions asked of pro-

“One of the paths to the impartial jury guar-

anteed by the Sixth Amendment is the voir dire

examination...

“In order to sustain their present contention,

it is not necessary for defendants to show that

member of the jury were in fact prejudiced. The

focus is exclusively on whether the procedure used

for testing impartiality created a reasonable as-

surance that prejudice would be discovered if

present...

“We start with the exclusion of jurors for

cause, where actual bias is admitted or presumed.

The Supreme Court has said that ‘.. . the trial

court has a serious duty to determine the ques-

tion of actual bias,’ Dennis v. United States, 339

U.S. 162, 168 (1950), and that ‘(a) persons

otherwise qualified for jury service are subject

to examination as to actual bias.’ United States

vy. Wood, 299 U.S. 123, 133 (1936). Jury service

by a person with actual bias in a particular case

would violate the right to an impartial jury.

“Subsidiary to challenge for cause is the per-

emptory challenge where bias is suspected or im-

plied...

“The government argues that the court is ob-

ligated to inquire only into matters that would

disqualify the juror for cause, and that the

court’s first group of questions were adequate

to produce disclosure of any relevant prejudice.

We disagree. The government’s position must

rest upon an assumption that a general question

to the group whether there is any reason they

could not be fair and impartial can be relied on

to produce a disclosure of any disqualifying state

of mind. We do not believe that a prospective

juror is so alert to his own prejudices. Thus, it is

essential to explore the backgrounds and attitudes

of the jurors to some extent in order to discover

actual bias, or cause, See Kiernan v. Van Schaik,

347 F.2d 775, 779 (3rd Cir., 1965).

“But beyond this, an answer which falls short

of an admission of bias may nevertheless aid

counsel in deciding to exercise a peremptory

challenge. The Supreme Court has stated that the

peremptory challenge, although not required in

the Constitution, is ‘one of the most important

rights secured to the accused,’ and that ‘the denial

or impairment of the right to reversible error

without a showing of prejudice’. Swain v. Ala-

bama, 380 U.S. 202, 219 (1965). The peremptory

challenge is provided in the federal system by

Rule 24(b), F.R.Cr.P.

“If this right is not to be an empty one, the

defendants must, upon request, be permitted suf-

ficient inquiry into the background and attitudes

of the jurors to enable them to exercise intelli-

gently their peremptory challenges, Cf. United

States v. Esquer, 459 F.2d 431, 434 (7th Cir.,

1972); United States v. Lewin, (7th Cir., No.

18662, Aug. 23, 1972); Spells v. United States,

263 F.2d 609, 611 (5th Cir.), cert. denied, 360

U.S. 920 (1959).”

The trial court in the instant case took the position that

by asking the prospective jurors if they would accept the

proposition of laws given by the judge at the conclusion

of the case, even though they might disagree with same,

end having received no negative responses the requested

voir dire questions submitted by counsel here under attack

needed not to have been asked of the jury. First, it seems

elementary that if the trial court does not give the jury

any benefit of existing law, they could not make an in-

telligent response as to whether or not they would follow

that law. Secondly, in Ham v. South Caroline, 409 U.S.

524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), the court asked

the prospective jurors the following questions similar to

the all encompassing question asked by the court in the

instant case:

“Are you conscious of any bias or prejudice

for or against him (the defendant) ?”

“Can you give the State and the defendant a

fair and impartial trial?”

The Supreme Court of the United States reversed the

Ham case on the basis that the above quoted, all encom-

passing questions, asked by the trial court were insuffi-

cient to ferret out any possible racial prejudice against

Negroes. :

Likewise, in the United States v. Lewin, 467 F.2d

1132 (CA 7th 1972), the appellate court found that the

general question asked by the trial court to wit:

“Is there any reason you cannot fairly and im-

partially try this case?”

was insufficient in ferreting out factors which might ex-

pose a basis for challenge.

The court went into detail as follows:

“Character qualities derivable from interroga-

tion are often elusive and the answers to ques-

tions may frequently be illusory as a firm basis

for any type of challenge.

“Prejudice and bias are deep running streams

more often than not concealed by the calm surface

stemming from an awareness of societal distaste

for their existence. Extended and trial-delaying

interrogation may not pierce the veil, yet a few

specific associational questions as a maieutic

process may indicate the dormant seeds of preju-

dice preconceived and unalterable concepts or

other nonfairness disqualifications. The result

may not reach the stage of being a basis for cause

challenge but could well, because of an abun-

dance of counsel, caution, bring about a peremp-

tory challenge which an omniscient eye would

have known should have been exercised . . .

“We think the criticism of too extended voir

dire is justified but we are not ready to say that

the person who has liberty or, indeed, his prop-

erty, at stake must be compelled to accept a jury

on a strictly cursory, generality interrogation

basis.

“At some happy mesne point, there must be

permitted sufficient questioning to produce, in

the light of the factual situation involved in the

particular trial, some basis for a reasonably

knowledgeable exercise of the right of challenge

“We do not consider the court’s obligation to let

counsel on request, get at underlying bases re-

flecting on bias, prejudice or other suspect factors

to be discharged by general questions such as, ‘is

there any reason you cannot fairly and impar-

tially try this case?’ This obligation particularly

would not seem to be discharged by general direct

confrontation questions on human characteristics

that most people are reluctant to admit they pos-

sess. . .

“No hard and fast rules can be laid down, but

the trial court within the general guidelines here-

inbefore set forth must exercise its discretion so

as not to block the reasonable exploration of ger-

mane factors that might expose a basis for chal-

lenge, whether for cause or peremptory.

“The court did ask the prospective jurors

whether there was any reason why they could not

give the defendants a fair and impartial trial.

Although such an inquiry might be considered

broad enough to encompass many of the questions

that the defendants wished to pose about particu-

lar prejudicial influences, as we have already

said, in a case like the present one, a general

question is inadequate to call to the attention of

the veniremen those important matters that might

lead them to recognize or to display their dis-

qualifying attributes. See United States v. Rob-

inson, 466 F.2d 780 (7th Cir. 1972).”

The obligation of an attorney for a Defendant to at-

tempt to discover on voir dire possible grounds for excus-

ing a juror either for cause or peremptorily as has been

previously discussed was stated in Ford v. United States,

201 F.2d 300 (C.A. 5th 1953):

“It is the right and duty of a defendant to

discover on voir dire examination, or from other

sources, whether a talesman is subject to dis-

qualification for cause.”

It is submitted that simply asking the jury if they

could follow the law even though they might disagree with

it, without giving some indication as to the law pertaining

to reasonable doubt, Defendant’s presumption of inno-

cence, and the burden of proof on the part of the Gov-

ernment, cannot possibly put them in a position of making

an intelligent answer to the single question asked by the

trial court herein so that counsel was placed in a position

of not being able to intelligently exercise either his pe-

remptory challenges or challenges for cause.

The purpose of the questions proposed by the Defend-

ant was to aid counsel in intelligently exercising peremp-

tory challenges provided for by law. The refusal of the trial

judge to sak these questions or to ask even one relevant

question himself “impaired” (Swain, supra) Defendant’s

right to the challenges, in that it forced counsel to either

refrain from exercising the challenges or to exercise them

merely on the basis of an emotional reaction to the juror’s

face rather than his or her possible prejudice. In short, the

challenges were thoroughly emasculated and an empty

gesture replaced the statutory safeguards.

The federal courts almost uniformly, deny the De-

fendant’s counsel the right to personally conduct voir dire

examination of prospective jurors but do permit and

usually consider requested voir dire questions, submitted

in writing, to be asked by the trial judge. However, when

the trial judge fails to inquire into areas for which chal-

lenges to prospective jurors could be made by counsel, the

purpose of the voir dire examination as related in the above

cited cases completely breaks down and affords no oppor-

tunity for counsel to exercise challenges other than upon

questions asked concerning name, residency, occupation,

knowledge of parties or facts of the case and similar

matters.

Judge Peter Fay, in writing the opinion in the United

States Court of Appeals for the Fifth Circuit in this case

took the position that voir dire examination should be con-

ducted by counsel for the respective parties and while af-

firming the action of the trial judge in refusing to ask

defense counsel’s requested questions, stated:

“Peremptory challenges are worthless if trial

counsel is not afforded an opportunity to gain

the necessary information upon which to base

such strikes.”

It is submitted that the above statement by the Hon-

orable Peter Fay is the entire basis upon which counsel

predicates the argument that if counsel are not permitted

to question the prospective jurors on a one-to-one basis,

then that information can only come from the trial judge

asking questions which counsel feels are pertinent to the

issues about which counsel have knowledge.

The Constitution of the United States gives a defend-

ant the right to “an impartial jury”. The trial judge herein

put himself in the position of determining those matters

which could be asked of the prospective jurors in deter-

mining whether they were “impartial”. Such a strained

interpretation of the Constitution should not be permitted

to endure.

CONCLUSION

For the above and foregoing reasons, the petition for

writ of certiorari should be granted.

Respectfully submitted,

LAW OFFICES OF

EUGENE P. SPELLMAN

Attorneys for Petitioner

240 Dade Federal Building

119 E. Flagler Street

Miami, FL 33131

By. Sera

DENIS DEAN

CERTIFICATE OF SERVICE

I, DENIS DEAN, counsel for the Petitioner, WIL-

LIAM LEDEE, and a member of the Bar of the Supreme

Court of the United States, hereby certify that on the “2.

day of aey 1977, I served a copy of the aforementioned

petition for writ of certiorari to the United States Court

of Appeals for the Fifth Circuit on the Solicitor General,

Department of Justice, Washington, D.C. 20530; and Gail

McKenzie, Esquire, Assistant United States Attorney, Fed-

eral Courthouse, Atlanta, Georgia 30301.

LAW OFFICES OF

EUGENE P. SPELLMAN

Attorneys for Petitioner

240 Dade Federal Building

119 E. Flagler Street

Miami, FL 33131

2) aS

DENIS DEAN

APPENDIX

United States Court of Appeals,

Fifth Circuit.

No. 76-1678.

UNITED STATES of America,

Plaintiff-Appellee,

William LEDEE,

Defendant-Appellant.

March 31, 1977.

Deiendant was convicted in the United States District

Court for the Northern District of Georgia at Atlanta,

William C. O’Kelley, J., of six counts of causing to be

transported in interstate commerce falsely made and

forged securities and he appealed. The Court of Appeals,

Fay, Circuit Judge, held that trial court did not err in

failing to give defendant’s requested voir dire questions

pertaining to reasonable doubt, presumption of innocence,

and burden of proof; that even if defendant had been ac-

quitted of an offense involving check which government

was permitted to introduce to show course of conduct or

scheme by defendant, admission of check into evidence

without allowing proof of acquittal was harmless error be-

yond a reasonable doubt in view of overwhelming evidence

of guilt; and that court did not err in denying defendant’s

request for continuance in order to produce an FBI hand-

writing examiner.

Affirmed.

App. 2

1. Jury — 131(2)

Trial judge has wide discretion as to the scope and

conduct of voir dire examination. Fed.Rules Crim.Proc.

rule 24(a), 18 U.S.C.A.

2. Jury — 131(8)

Trial judge did not err in failing to give defendant’s

requested voir dire questions pertaining to reasonable

doubt, presumption of innocence and burden of proof. Fed.

Rules Crim.Proc. rule 24(a), 18 U.S.C.A.

3. Jury — 131(3)

Trial counsel should be afforded opportunity on voir

dire to gain necessary information upon which to base

peremptory challenges. Fed.Rules Crim.Proc. rule 24(a),

18 U.S.C.A,

4. Criminal Law — 1169.2(2)

Even if defendant charged with causing to be trans-

ported in interstate commerce falsely made and forged

securities had been acquitted on charge involving a check

which government was permitted to introduce to show

course of conduct or scheme by defendant, admission of

check without allowing proof of acquittal was harmless

error beyond a reasonable doubt i view of overwhelming

evidence of guilt. 18 U.S.C.A. § 2314.

App. 3

5. Criminal Law — 600(1)

In prosecution for causing to be transported in inter-

state commerce falsely made and forged securities, trial

court did not err in denying continuance to obtain govern-

ment’s handwriting examiner who had prepared report

stating that no conclusion could be reached as to whether

person who signed letters from defendant was the same

individual who signed as maker on checks involved in the

charges where the report was not admitted into evidence

and testimony which would have been given by the exam-

iner was stipulated to by the government and explained to

the jury by the court and another handwriting examiner

was present, 18 U.S.C.A. § 2314.

6. Criminal Law — 491(1)

Government had no obligation to produce the specific

handwriting exaniiner who prepared report stating that

no conclusion couid be reached as to whether person who

signed letters from defendant was the same individual who

signed as maker on checks involved in charges of causing

falsely made and forged securities to be transported in in-

terstate commerce. 18 U.S.C.A. § 2314.

Appeal from the United States District Court for the

Northern District of Georgia.

Before GEWIN, GEE and FAY, Circuit Judges.

FAY, Circuit Judge:

App. 4

Appellant, William Ledee, brings this appeal from a

judgment of conviction entered after a jury found him

guilty of six counts of causing to be transported in inter-

state commerce falsely made and forged securities in viola-

tion of 18 U.S.C. § 2314.

Appellant raises six different points of error in this

appeal. The three we think merit discussion are:

1. Whether the court erred in failing to give appel-

lant’s requested voir dire questions pertaining to reason-

able doubt, presumption of innocence, and burden of proof.

2. Whether the court erred in refusing to allow the

appellant to present evidence before the jury that he had

been previously acquitted on a charge involving a check

which the government was permitted to introduce as part

of the alleged scheme.

3. Whether the court erred in denying the appel-

lant’s request for a continuance in order to produce an

F.B.I. handwriting examiner. Each is discussed below.

In 1974, appellant deposited seven checks drawn on

the Pan American Bank of Tampa in Tampa, Florida into

an account which appellant maintained at the Trust Com-

pany Bank in Atlanta, Georgia. The government proved

that at the time these deposits were made appellant knew

that the account in the bank of Tampa was closed and that

the checks were forged or falsely made. Appellant was

convicted on six of the seven counts charged and sentenced

to six years incarceration. We affirm.

ee OR RS AA PE mee

App. 5

The first point appellant asserts is that the court be-

low erred in failing to give appellant’s requested voir dire

questions pertaining to reasonable doubt, presumption of

innocence and burden of proof. The questions requested,

objected to by the government and refused by the court are

set out in the margin.' Instead, the court asked the prospec-

tive jurors:

Now the Court will instruct you, as most of you know

who have served on juries, concerning all the various

elements of law and the burden of proof that is in-

volved. Are there any of you who feel that for any

reason you cannot follow the law as stated to you by

the Court in instructions. Are there any of you who

have any reason to believe that, if selected as juror,

you could not follow the law as stated by the Court,

whether you disagree with the law or not. Are there

any of you who feel you could not follow the law.

1(24) Do each of you understand the Government has the burden

of proving the Defendant guilty beyond and to the exclusion of a

reasonable doubt, and that a reasonable doubt is not a mere fanciful

or imaginary doubt, but a doubt to which you can give a reason?

(25) Do each of you understand an indictment has been returned

in this case, and is not to be considered by you as evidence or indica-

tion of guilt on the part of the Defendant, WILLIAM LEDEF, but

rather the indictment is only a vehicle for bringing the person before

the Court to stand trial?

(26) Do each of you understand that in a criminal trial the De-

fendant is not required to present any testimony and does not have to

testify in his own behalf, and that this right is given him by the Con-

stitution of the United States?

(27) Would any of you hold it against WILLIAM LEDEEF if, in

fact, he did not testify? In other words, are there any of you that feel

that in a criminal case the defendant should testify despite the fact

that he is not required to?

(40) Can each of you accept the proposition of law that a de-

fendant is presumed to be innocent, that he has no burden to establish

his innocence, and that he is clothed throughout the trial with this

presumption ?

App. 6

The instructions read to the jury at the close of the case

included the law embodied in the appellant’s questions.

Appellant raises the issue of whether, during voir dire

of prospective jurors, the court must, upon request, inquire

whether the jurors can accept certain propositions of law.

[1] Rule 24(a) of the Federal Rules of Criminal

Procedure states:

The court may permit the defendant or his attorney

and the attorney for the government to conduct the

examination of prospective jurors or may itself con-

duct the examination. In the latter event the court

shall permit the defendant or his attorney and the

attorney for the government to supplement the ex-

amination by such further inquiry as it deems proper

or shall itself submit to the prospective jurors such

additional questions by the parties or their attorneys

as it deems proper.

This rule allows the trial judge wide discretion as to the

scope and conduct of voir dire examination and the deci-

sions in this circuit have given the rule just such a liberal

interpretation.’ In particular the Fifth Circuit and several

other circuits as well have held that it is not an abuse of

2United States v. Hill, 500 F.2d 733 (Sth Cir. 1974), cert. den.,

420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975); United States v.

Eastwood, 489 F.2d 818 (5th Cir. 1973); United States v. Goodwin,

470 F.2d 893 (5th Cir. 1972), cert. den., 411 U.S. 969, 93 S.Ct. 2160,

36 L.Ed.2d 691 (1973); Tillman v. United States, 406 F.2d 930 (5th

Cir. 1969); Bellard v. United States, 356 F.2d 437 (Sth Cir. 1966),

cert den., 385 U.S. 856, 87 S.Ct. 103, 17 L.Ed.2d 83 (1966); Fox v.

United States, 296 F.2d 217 (Sth Cir. 1961), per curiam, cert. den.,

369 U.S. 888, 82 S.Ct. 1160, 8 L.Ed.2d 287 (1962).

Qn Rete oe se

PI CN Ny PE AN he te te ta ath a

i ae new ©

App. 7

that discretion to refuse to allow inquiries of jurors as to

whether they can accept certain propositions of law.’

In Stone v. United States, 324 F.2d 804 (5th Cir.

1963) defense counsel was personally permitted to question

the prospective jurors during voir dire examination. He in-

quired of the prospective jurors,

.. - if at the close of this case the evidence appears to

be well balanced, or even, would you tend to favor

one side or the other?

The court immediately cautioned that questions that call

for conclusions of law must first be addressed to the court.

The court refused to allow the question in that form and

then asked the prospective jurors if they would accept the

law as the judge gives it to them. On appeal the Fifth

Circuit agreed with the trial court’s actions stating:

The procedure to be followed in a voir dire examina-

tion of jurors in a criminal case is within the dis-

cretion of the trial court. (Citations omitted)

The trial court did not permit the questioning of

jurors with respect to propositions of law and its

action was a proper one.

Supra, p. 807.

3Stone v. United States, 324 F.2d 804 (Sth Cir. 1965), cert. den.,

376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964); United States v.

Gillette, 383 F.2d 843 (2nd Cir. 1967): United States v. Wooten, 518

F.2d 943 (3rd Cir. 1975), cert. den., 423 U.S. 895, 96 S.Ct. 196, 46

L.Ed.2d 128 (1975); United States v. Cosby, 529 F.2d 143 (8th Cir.

1976); United States v. Crawford, 444 F.2d 1404 (10th Cir. 1971),

per curiam, cert. den., 404 U.S. 855, 92 S.Ct. 98, 30 L.Ed.2d 95

(1971). Ap t cites United States v. Blount, 479 F.2d 650 (6th Cir.

1973) which holds to the contrary and is not the law ‘n this circuit.

App. 8

[2] We therefore find no error in the decision of the

trial court to sustain the government’s objection to the

five requested questions and recognize that the weight of

authority supports this ruling. However, we must ac-

knowledge that voir dire examination in both civil and

criminal cases has iittle meaning if it is not conducted by

counsel for the parties.

A judge cannot have the same grasp of the facts, the

complexities and nuances as the trial attorneys en-

trusted with the preparation of the case. The court

does not know the strength and weaknesses of each

litigant’s case. Justice requires that each lawyer be

given an opportunity to ferret out possible bias and

prejudice of which the juror himself may be unaware

until certain facts are revealed.‘

The federal and state courts employ different methods

of voir dire examination. In the federal courts questioning

is generally done by the judge and counsel may submit

questions for the jury which the judge may or may not use.

In most states the judge may ask introductory questions

and then counsel for the parties may pursue their examina-

tion with reasonable limits on time and scope of the sub-

ject matter.. The American Bar Association Commission

on Standards of Judicial Administration suggests a pro-

cedure somewhere in between, that is:

It should partake of the “federal” method in having

the judge carry the burden of questioning, thus real-

izing economies of time and achieving an implicit

*Frates & Greer, Jury Voir Dire: The Lawyer’s Perspective, 2

A.B.A. Litigation No. 2 (1976).

5American Bar Association Standards, Trial Courts, § 2.12 (1976).

App. 9

identification of the jury as a neutral body. It should

partake of the “state” method in affording counsel

reasonable opportunity for direct questioning of

jurors individually. In situations where the jurors

may have previous information about the case, ex-

perience and research clearly indicate the importance

of voir dire by counsel as a means of restoring an im-

partial attitude. The same opportunity should be af-

forded where the jurors are likely to have strong

predisposition arising out of the nature of the case

itself.°

[3] Even though the assignment of error in the case

was the question of allowing the jury to be questioned as

to propositions of law and not the question of allowing

counsel to conduct voir dire we believe, after considering

both, the real issue is whether the voir dire examination

uncovers possible prejudice and bias of any juror so that a

fair and impartial jury may be impaneled. Peremptory

challenges are worthless if trial counsel is not afforded an

opportunity to gain the necessary information upon which

to base such strikes.

[4] The second assignment of error is whether the

court below erred in refusing to allow appellant to present

evidence before the jury that he had been previously ac-

quitted on a charge involving a check which the government

was permitted to introduce to show a course of conduct or

scheme by appellant.

There were two trials of this case, the first ended in a

hung jury and the second in a conviction. The superceding

‘American Bar Association Standards, Trial Courts. § 2.12

(1976).

App. 10

indictment which precipitated the second trial was differ-

ent from the first indictment in two ways. First, the spell-

ing of the name of the maker of all seven checks was

changed from “Sumya te Quira” to “Siempre te Quiero”.

Second, an additiona] date was added in count seven. The

seventh count on the first indictment alleged the check in

question had a single issue date of May 15, 1974. The

seventh count in the second indictment alleged the check in

question had two issue dates — May 15, 1974 and June

15, 1974.

During the first trial, at the close of all the evidence,

the trial judge granted a judgment of acquittal as to Count

VII because the government failed to introduce evidence to

support that charge; that is, the check offered in evidence

te prove Count VII had two issue dates and was therefore

different from the check described in Count VII of the in-

dictment. Appellant was properly charged in the second

indictment unde: Count VII but for reasons unknown to

this court the government voluntarily dismissed Count VII

at the opening of the second trial.

Under these circumstances it is doubtful that appellant

was acquitted of an offense involving the check with two

issue dates that was admitted into evidence.’ Assuming

arguendo that appellant was acquitted on Count VII in-

volving the check, the admission into evidence of that check

without allowing proof of acquittal was harmless error

beyond a reasonable doubt in view of the overwhelming

evidence of guilt. Chapman v. California, 386 U.S. 18, 87

S.Ct. 824, 17 L.Ed.2d 705 (1967).

7The check described in Count VII of the second indictment was

admitted into evidence to establish a continuing scheme but appellant

does not claim this was error.

App. 11

Briefly, facts relevant to the third assignment of error

surrounding the requested continuance to obtain the gov-

ernment’s handwriting examiner are as follows:

A few days prior to the second trial, defense counsel

received a copy of a handwriting analysis conducted by the

F.B.I. laboratory in Washington, D.C. and prepared during

the interval between the first and second trials. The result

of the handwriting analysis was that no conclusion could

be reached as to whether or not the person who signed the

ecards and letters (from appellant to his girlfriend) in

evidence was the same individual who signed as the maker

on the checks involved in the charges.

[5,6] Appellant claims error because the govern-

ment did not call to testify the handwriting examiner who

prepared the report and the defense needed a continuance

to call him. We cannot agree with this contention for the

following reasons. First, the report was not admitted

into evidence, and testimony which would have been given

by the F.B.I. handwriting examiner was stipulated to by

the government and explained to the jury by the court.'°

8Court:

“Now, it is further stipulated that Government Exhibits 1 and 2

which are in evidence, which are check Nos. 75] and 753, were sub-

mitted to a handwriting expert of the Federal Bureau of Investigation

in Washington, D.C., along with the exhibits which have been marked

as Governments’ Exhibits 11—A through 11—H. these letters contain-

ing handw.itten letters, and that that expert, after examining those

letters and examining the two checks in issue. would testify. if present

and under oath, that a definite conclusion was not reached as to

whether these signatures on the front of Governments’ Exhibits 1 and 2

—was unable to reach a conclusion as to whether those signatures were

prepared by William J. Ledee after having reviewed those and Exhibits

11-A through H due to the presence of distortion in portions of the

questioned writing and the presence of unexplained handwriting

characteristics.

In other words, the handwriting expert could not come to any

conclusion as to whether Mr. Ledee or who wrote those two signatures.

(Record on appeal, Vol. II, p. 214).

App. 12

Second, there was no promise by the government that the

same handwriting examiner who prepared the report would

be present. Another F.B.I. handwriting examiner was

present (if needed) or appellant could have provided their

own expert. Thus there was no obligation on the part of

the government to produce the specific witness and no basis

for appellant’s reliance upon the government. The court

did not abuse its discretion by denying appellant’s request

for continuance.

The court has reviewed all other assignments of error

and finds them to be totally without merit. The conviction

is affirmed.

App. 13

[TITLE OMITTED]

Appeal from the United States District Court for the

Northern District of Georgia

ON PETITION FOR REHEARING

(APRIL 29, 1977)

Before GEWIN, GEE and FAY, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the same

is hereby denied.

ENTERED FOR THE COURT:

/s/ Peter T. Fay

United States Circuit Judge

App. 14

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

CRIMINAL INDICTMENT

NO. 75-251

UNITED STATES OF AMERICA,

Plaintiff,

vs.

WILLIAM LEDEEF,

Defendant.

MOTION FOR LIST OF

WITNESSES AND MEMORANDUM OF LAW

COMES NOW, the defendant, WILLIAM LEDEE,

by and through his undersigned counsel, and moves this

Honorable Court to order the United States Attorney to

produce, at least three (3) entire days before commence-

ment of the trial, a list of witnesses to be produced on the

trial for proving the indictment, stating the address of

each witness.

MEMORANDUM OF LAW

This motion for list of witnesses is made upon the

following authorities:

5th Amendment, United States Constitution

wre

aaa er ee

App. 15

6th Amendment, United States Constitution

18 U.S. Code, Section 3432

Bolling v. Sharpe, 347 U.S. 497

Pugh v. Rainwater, 355 F.Supp. 1286 (Fla. 1973)

United States v. Houston, 336 F.Supp. 762 (Ga. 1972)

United States v. Eley, 336 F.Supp. 353 (Ga. 1972)

Gregory v. United States, 369 F.2d 185 (Dist. Col.

C.A. 1966)

United States v. Ahmad, 53 F.R.D. 186 (Penn.

1971)

It is submitted that by virtue of 18 U.S. Code, Section

3432, the defendant is discriminated against to such a

gross extent that his 5th Amendment due process guaran-

tees are being violated by the Government not supplying

the list of witnesses requested above.

The pronouncement of the United States Court of

Appeals, District of Columbia Circuit, in the decision of

Gregory v. United States, 369 F2d 185 ‘1966), regarding

18 U.S. Code, Section 3432, applies equally to any defend-

ant indicted by the Government and placed in the position

of preparing a defense against that indictment:

“The purpose of 18 U.S.C. Section 3432 requiring

that in capital cases the defendant be furnished

a list of the names and addresses of the witnesses

to be called by the Government is to assist defense

counsel in preparing the defense by interviewing

the witnesses. Witnesses, particularly eye wit-

nesses, to a crime are the property of neither the

App. 16

prosecution nor the defense. Both sides have an

equal right, and should have an equal opportunity

to interview them.”

LAW OFFICES OF

EUGENE P. SPELLMAN

Attorney for Defendant

By:

DENIS DEAN

I HEREBY CERTIFY that a copy of the above and

foregoins was mailed to Gale McKenzie, Esquire, Assistant

United States Attorney, Room 402, Federal Courthouse

Building, Atlanta, Georgia 30301 on this 29th day of De-

cember, 1975.

App. 17

(TITLE OMITTED]

(Filed January 13, 1976)

MAGISTRATE’S ORDER ON DEFENDANT'S

MOTION FOR A LIST OF THE GOVERNMENT'S

WITNESSES

Defendant WILLIAM LEDEE is charged in a seven

count indictment' in the above-captioned case with causing

to be transported in interstate commerce falsely made and

forged securities in violation of 18 U.S.C. §2314. He has

filed a motion to require the government to furnish him

with a list of its witnesses at least three days before com-

mencement of trial which has been scheduled for January

19, 1976. Since this is not a capital case, there is no gov-

ernment duty to furnish defendant with a list of its wit-

nesses. See 18 U.S.C. $3432 (government witness list

required three days before trial in capital case); Bohn v.

United States, 260 F.2d 773 (8th Cir. 1959), cert. denied

358 U.S. 931, reh. denied 360 U.S. 907; Downing v. United

States, 348 F.2d 594 (5th Cir. 1965), cert. denied 382 U.S.

901; United States v. Baggett, 455 F.2d 476 (5th Cir.

1972); and United States v. Anderson, 481 F.2d 685

(1973). It should also be noted that proposed Federal

Rules of Criminal Procedure Rule 16/a) (1) (E) provid-

ing that each party, the government and defendant, may

discover the names and addresses of the other party’s

witnesses was rejected by Congress, thereby making the

names and addresses of a party’s witnesses non-discover-

able. In addition, there has been a previous trial in this

1[t should be noted that at a previous trial on September 22, 1975,

the Court granted defendant’s motion for judgment of acquittal as to

count seven.

App. 18

case which ended in a mistrial and the names of the gov-

ernment witnesses who testified at said trial] are already

known to defendant. While there may be additional wit-

nesses on the retrial, defendant has not shown sufficient

reasons why the Court should exercise its discretion in

favor of requiring the government to provide him with a

list of its witnesses.

For the foregoing reasons, defendant’s motion for an

order directing the government to provide him with a list

of its witnesses three days before commencement of trial

is overruled and denied.

Let a copy of this Order be served by mail upon coun-

sel for the parties.

AND IT IS SO ORDERED this 9th day of January,

1976.

s/ Allen L. Chancey, Jr.

ALLEN L. CHANCEY, JR.

UNITED STATES

MAGISTRATE

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