Petition — Cross v. United States

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83 667 FILED

OCT 20 1963

ALEXANDER L. STEVAS,

CLERK

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

SILAS CROSS, Petitioner

vs.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES J. HERRMANN

Counsel of Record For

Petitioner Silas Cross

HERRMANN, LEVENSON,

MARGULLIS AND RAY

819 South K Street

Tacoma, Washington

98405

(206) 627-8142

QUESTIONS PRESENTED

1. Whether the standard and method

used to deny Petitioner's motions for a

continuance, based on inadequate time to

prepare for trial, are in conflict with

those used by other federal courts of

appeals pursuant to applicable decisions of

this Court.

a. Whether the denial of

Petitioner's motions for

continuance violated his sixth

amendment right to effective

assistance of counsel and fifth

amendment right to due process and

egual protection of the law.

Be Whether Petitioner was denied his

constitutional right to due process and

effective assistance of counsel] by the

denial of his motions for discovery under

the federal rules and the government's

response to his requests made pursuant to

Brady v. Maryland, 373 U.S. 83 (1963), and

the Jencks Act, 18 U.S.C. 3500.

ii

TABLE OF CONTENTS

Questions Presented

Table of Contents

Table of Authorities.

Opinions Below.

Jurisdiction.

Constitutional and Statutory

Provisions Involved

Statement

Reasons For Granting the Petition

Conclusion.

Certificate of Service.

Appendix A.

Memorandum

Appendix B.1l.

Order Denying Motion. for Leave

to File Motions

Appendix B.2. es

District Court Judgment

Appendix B.3...

Appeal from the United States

District Court For the Western

District of Washington (Seattle)

Appendix Cc... a

The Jencks Act "18 U. S. C,

Section 3500 (as amended 1975)

iii

54-58

59

60-62

Appendix D.

Federal Rule "criminal Proce-

dure 15 (as amended 1975)

Appendix E.

Federa] Rule “Criminal Proce-

dure 16 (as amended 1966 and 1975)

Appendix F. a ee ee ae a

Motion for Continuance of

Filing of Motion Dates

Appendix G. <<. ee 6¢ « @ 6

Transcript of Proceedings

6/11/82

6/16/82

7/2/82.

7/6/82.

7/9/83.

7/21/83

Appendix #. :

Excerpts from Docket

iv

Trial and

63-66

67-71

72-75

76-126

76-80

80-87

87-98

98-108

108-123

123-126

127-134

TABLE OF AUTHORITIES

CASES: PAGE

Alford v. United States, 709 F.2d 418

EE kG re

Brady v. Maryland, 373 U.S. 83, 83

§.Ct. 1194, 10 L.Ed. 2d 215 (1963) .ii, 29

Brown v. Wainwright, 459 F.Supp. 244

DP MEME MMEE oc ss ht et te} eee

Chambers v. Maroney, 399 U.S. 42, 90

S.ct. 1975, 26 L.Ed. 2d 419 (1970) .14, 15

Chandler v. Fretaq, 348 U.S. 3, 75

ames 26 52 WeBGe 4. « 2 co *e © « « ohbtg 20

Dennis v. United States, 384 U.S. 855,

86 S.Ct. 1840, 16 L.Ed. 2d 973 (1966). .32

Gavino v. MacMahon, 499 F.2d 1191 (2nd

mene SUIS) «© oo «do ee te sw wee ee

Glasser v. United States, 315 U.S. 60,

62 S.Ct. 457, 96 L.Ed. 680 (1942). .15, 18

Linton v. Perini, 656 F.2d 207 (6th Cir.

198]), cert. denied, 454 U.S. 1162, 102

Me co =. 6 we 6 ee wee

McQueen v. Swenson, 498 F.2d 207 (8th

|e ime. aa 2° ais = 6 « 6-6 eee

Moore v. United States, 432 F.2d 730 (3rd

Cir. TI70) Deis. © -«¢ « «he... eee

Powel] v. Alabama, 287 U.S. 45, 53 S.Ct.

L.Ed. oO} ks ) Pee ¢ GS

Rumme)] v. Estelle, 590 F.2d 103 (5th

az 1979) (per curiam)... - oo eee

Strickland v. Washington, No. 82-1554,

ruling below CA5, LE F.2d 1243, 51 LW

2403, 32 CrL 2286 (review granted June

ee. 69s sg 6 is Se «6 6 «¢ © es

Ungar v. Sarafite, 376 U.S. 575, 84

S.Ct. 641, 11 L.Ed. 2d 921 (1976), reh.

denied, 377 U.S. 925, 84 S.Ct. 1218,

Dm meme £26 2240. «© ow we ow eo eo wo ow 8 ow SO

United States v. Bernhardt, 642 F.2d

251 (8th Cir. 1981). a eet

United States v. Burton, 584 F.2d 485

Meee. GALE eo a ee 6 Ow 6M

United States v. Collins, 435 F.2d 698

(7th cir. 1970) cert. denied, 401 U.S.

957, 91 S.Ct. 983, 28 L.Ed. 2d 24]

(1971) 6 a hth -6 we 6 oe

United States v. Golub, 694 F.2d 207

Se Gee. Ee a Dias | ie ee

United States v. Gonzales-Palma, 645

F.2d 844 (10th Cir. 1981). ps

United States v. Hinton, 63] F.2d 769

(D.C. Cir. 1980) Cie 2 beer e

United States v. Jones, 369 F.2d 217

T7th cir. 1966). ake ieee. ees

United States v. Jones, 612 F.2d 453

9th Bars >. . > >. 7. . . >. 7 7 —

United States v. King, 664 F.2d 117]

iirc SOMES. 66 ws 16,17, 18,

United States v. La Monte, 684 F.2d

Dt ees eer « « ¢ « « s

vi

12

2]

24

26

o ae

19

19

32

21

30

19

United States v. Little, 567 F.2d 346

oe -Gare 2 23

United States v. Olivas, 558 F.2d 1366,

Ti0th Cir. 1977), cert. denied, 434 U.S.

866, 98 S.Ct. 203, 54 L.Ed. 2d 142

(1978) ee a ee ro a a 18

United States v. OJson, 697 F.2d 273 (8th

ee lg se + + me 6 ate ae

United Sta.es v. Phillips, 640 F.2d 87

(?th Cir. 198]), cert. denied, 10] S.Ct.

233] —P

2]

United States v. Tierney, 424 F.2d 643

te. PESEEy . nigse ow. .0 «sok, ae Se

United States v. Uptain, 53] F.2d 128]

(5th Cir. 1976) 25

United States v. Veatch, 674 F.2d 1217

(9th Cir. 1981) cert. denied, 456 U.S.

946 (1982). me 13

Wardius v. Oregon, 412 U.S. 470, 93

S.Ct. 2208, 3/ L.Ed. 24 82 (1973). . 32, 33

Weatherford v. Bursey, 424 U.S. 545. . 32

Wolfs v. Britton, 509 F.2d 304 (8th

Cir. 1975). ey ae a ee ee

2i; 22

CONSTITUTIONS, RULES AND STATUTES:

SS ee ee ec

me. Smee. PmenG VE. 2. 2. 6 2 6 3s 6 ie eS

oo, Crim. BP. 18). se ee te ae

Sa OT ae Pee reer ee ee er

vii

18 U.S.C. § 3500.

OTHER AUTHORITY:

Brennan, J., The Criminal Prosecution:

Sporting Event or Quest for Truth, 1963

Di —- Ceieite BEM « 6 6. <¢ 6 « # ¢ « wee

viii

34

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

NO.

SILAS CROSS, Petitioner

Vs.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

Petitioner, Silas A. Cross, through his

counsel] of record, Charles J. Herrmann,

prays that a writ of certiorari issue to

review the judgment of the United States

Court of Appeals for the Ninth Circuit

entered August 22, 1983, affirming his con-

viction under 18 U.S.C. §§ 371, 1163 and 25

U.S.C. § 450(d), and that on hearing the

judgment of conviction be reversed,

OPINIONS BELOW

The opinions of the court of appeals and

district court are not published. A ver-

batim copy of the Memorandum Opinion, C.A.

No. 82-1713, is attached at App. A. A vere-

batim copy of the Distrct Court order deny-

ing Petitioner's motion for leave to file

motions is at App. B.l]. The judgment of the

District Court is at App. B.2. The Judgment

of the United States Court of Appeals for

the Ninth Circuit is at App. B.3.

JURISDICTION

The decision of the Ninth Circuit Court

of Appeals, (Kilkenny, and Fletcher, Circuit

Judges and Jameson, Senior District Judge

for the District of Montana), was entered on

August 22, 1982. (See App. A). The juris-

diction of this Court is invoked under 28

U.S.C. section 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

l. The fifth amendment to the United

States Constitution provides in relevant

part:

No person shall ... be deprived of

life, liberty, or property, without

due process of law

U.S. Const., amend. V.

2. The sixth amendment to the United

States Constitution provides in relevant

part:

In all criminal prosecutions, the

accused shall enjoy the right to...

have the Assistance of Counsel] for

his defense.

U.S. Const., amend. VI.

. 9 Jencks Act, 18 U.S.C. section 3500

(1970) (as amended 1975) (text set forth at

App. C.).

4. Federal Rules of Criminal Proce-

dure, Rule 15 (as amended 1975) (USCS 1979)

(text set forth at App. D.).

De Federal Rules of Criminal Proce-

dure, Rule 16 (as amended 1966 and 1975)

(U.S.C.S. 1979) (text set forth at App. E).

STATEMENT

1. Jurisdiction in the court of first

instance, the United States District Court

for the Western District of Washington, was

conferred under 18 U.S.C. section 3231], pur-

Suant to Rule 18, Fed. R. Crim. P.

2. Petitioner and his co-defendant,

Robert Satiacum, were arraigned on May 12,

1982 and released on personal recognizance

bonds. On May 26, 1983, Petitioner filed a

motion for continuance of trial and filing

of motion dates. (App. F)

alien

The co-defendant also filed a motion for

continuance. His counsel] stated that it

would be impossible to be prepared for the

July 6th trial regardless of how long his

other trial, on an unrelated indictment, was

delayed. [App. G, RT 6/11/82 p.3)

The court did not consider Petitioner's

motion for continuance timely, despite the

fact it was filed on the date set for filing

motions.

The Court: I called you in, coun-

sel, especially Mr. Immelt, [coun-

se] for Robert Satiacum] because I

had some trouble understanding what

the status of the motion for con-

tinuance is and whether it is still

a motion. The only motion for a

continuance I have in this trial is

based on the fact that this case is

going on simultaneously with Judge

McGovern's case. ... [reference to

co-defendant Satiacum's other

trial).

Transcript of 6/11/82 Proceedings, p.2.

Petitioner filed his motion for contin-

uance, (App. F), and motion for severance on

May 26, 1983, the date set for pre-trial

motions. (See App. H).

ain

The record does not reveal why the court

chose to recognize the Petitioner's sever-

ance motion and all but ignored the contin-

uance motion. [App. G, RT 6/11/82 p.11l]

Speaking to Mr. Immelt, the court said:

The Court: You filed a motion ask-=

ing for an extension which has

never been granted.

Mr. Immelt: I understand that.

The Court: And I don't know if you

are really still anticipating more

motions or what they would be. I

know there is one pending that is

timely, that is Mr. Cross' motion

to sever. I'm talking more about

Mr. Satiacum.

Mr. Immelt: To be quite honest, I

do not anticipate filing any. ...

The Court: Well, counsel, October

is a much more difficult time for

the court.

Transcript of Proceedings 6/11/82 p.7

On June 16, 1982, Charles J. Herrmann

was proposed to the court as substitute

counse] for the Petitioner. Due to a poten-

tia] conflict-of-interest, the court did not

approve the substitution until July 2, 1982.

o6=

[See App. H] This change was requested due

to Mr. Emery's inexperience. [App. G, RT

7/2/82 p. 12, 1.2)

At the June 16, 1982 hearing the court

indicated the one week continuance pre-

viously offered to counsel for Petitioner's

co-defendant, [App. G, RT 6/11/82 p.14],was

contingent on the defendants agreeing to be

tried by the court.[App. G, RT 6/16/82

p.5-6] Mr. Emery then repeated Petitioner's

motion for more time to prepare. [App. G, RT

6/16/82 pp. 6-7]

The court reserved final decision on

the trial date pending Petitioner's decision

on whether or not to waive the jury.[App. G,

RT 6/16/82, p.7-9]

When Mr. Herrmann told the court he felt

he could be ready for trial, he had put in a

total of six or seven hours on the case,

[App. G, RT 6/16/82 p.8] As proposed sub-

stitute counsel Mr. Herrmann, requested time

to file his own pretrial motions, and that

ete

the court would entertain them. [App. G,

6/16/82 p. 25] Mr. Immelt reminded the

court that his motion was to continue the

trial date as well as the time to file

motions. The court responded:

The Court: Oh, I'm aware of that,

counsel, but I'm also aware that as

of the last meeting [June ll, 1982]

it was everybody's representation

to the court that we didn't have

any additional motions in the

case. Well, it's very difficult

and puts the court in a difficult

position to be ruling on motions

just about the time we are starting

the trial.

Transcript of Proceedings 6/11/82 pp.

25-26

Mr. Emery, as counsel for Petitioner

never made such a representation to the

court at the June ll] hearing. Mr. Herrmann

certainly did not.

On June 28, 1982, Petitioner's proposed

substitute counsel filed several motions,

to-wit: Motion for Leave to File Motions,

Motion for Change of Venue, Motion for

Attorney Conducted Voir Dire, and Motion for

-8-

EEE LS ee SS

Production and Discovery. Seventy-two pages

of memoranda of law and exhibits where filed

in support thereof. [App. H]

The court refused to grant Petitioner's

motion for leave to file motions on June 29,

1982. The basis for denying leave to file

was that the motion was "tardy."

The court unambiguously indicated

that, to be considered, such

motions would have to be filed

almost immediately ... These tardy

motions are clearly not the sort of

expedited motions that the court

suggested it might entertain due to

the change of counsel. Rather,

with trial five court days away,

they put the court and the govern-

ment at an extreme and unwarranted

disadvantage. The motion is denied.

Order Denying Motion For Leave to File

Motions, June 29, 1982, document No. 45,

D.C. No. CR 82-20 TR. [App. B.1]

The pretrial conference was held on July

2, 1982, where Petitioner made several

objections concerning discovery matters and

stated the reasons therefore. Transcript of

Proceedings, July 2, 1982.

we

Petitioner repeated his motion for a

continuance on July 6, 1982, the first day

of trial, which the court summarily denied.

[App. G, RT A-l pp. 3-7, 10, 33]

Petitioner repeated his motion for contin-

uance, on July 9, 1982. He pointed to

specific prejudice occuring at that time.

[App. G, pp.557-563, 572, 574]

After receiving the verdict, the court

congratulated the jury on doing a fine job

in “this complex case. ... [I]t hasn't been

an easy case. It's an unusual case that's

involved a lot of documentation ... .”

Transcript of Proceedings, August 4, 1982

p.258]

3. Petitioner filed timely Notice of

Appeal to the Ninth Circuit on November 24,

1982. The court affirmed. (App. B.3)

In its review of the denial of Petition-

er's motions for a continuance, the court

overlooked Petitioner's first and primary

reason for the request, lack of time to pre-

-10-

pare for trial.[Compare App. A, with App. G,

RT 7/6/82 pp. 3-7]. The court stated:

It is wel] settled in this circuit

that actual] prejudice must be shown

before the denial of a continuance

will be reversed. Cross has failed

to point to any specific prejudice

resulting from the denial of a con-

tinuance. Nor does the record show

any prejudice as a result of lack of

preparation by trial counsel."

[App. A]

See, for example, App. G, RT 7/2/82 p.

25-28, 42-43, A-l1 p. 3-7, 14, Vol. 3, pp.

551-563, 572, 574, where Petitioner pointed

to specific examples of prejudice.

In addressing the issue of the requested

exculpatory grand jury transcripts, the

appeals court stated:

The trial court reviewed the tran-

scripts of the two witness's grand

jury testimony in camera and decided

that, based on United States v.

aaa the Government's position

n this case was correct. We

agree.(Citations omitted)

App. A.

The trial judge did not review the tran-

eli<

scripts in camera.[App. G, pp. 2143-2144)

REASONS FOR GRANTING THE PETITION

1. This petition presents the question

as to whether the standard and method used

to deny the Petitioner's Motions for Con-

tinuances based on inadequate time to pre-

pare for pretrial and trial proceedings and

insufficient discovery, and the appellate

review thereof, violated the Petitioner's

fifth amendment right to due process and

sixth amendment right to effective assi-

stance of counsel.

Petitioner respectfully submits that the

standard and method of review used in his

trial and appea) are in conflict with those

of other circuit courts and the decisions of

this Court.

This Court recently granted a petition

which raises the question of the correct

standard of review of claims of ineffective

assistance of counsel, in Strickland v,

Washington, No. 82-)554, ruling below CAS,

-l2<-

693 F.2d 1243, 51 LW 2403, 32 CrL 2286

(review granted June 6, 1983).

The record clearly shows that Petitioner

filed a timely motion for a continuance of

the trial date and date to file motions.

(App. F and H) The trial court all but

ignored counsel's timely motion for con-

tinuance and renewals thereof. The record

does not reveal] that the trial court

assessed the facts and circumstances at the

times of the repeated motions and considered

them before denying Petitioner's motions.

The appellate court review of these

denials is a straightforward statement of

the Ninth Circuit's general rule for review

of a denial of a continuance motion.

The Ninth Circuit's reliance on United

States v. Veatch, 674 F.2d 1217 (9th Cir.

1981), cert. denied, 456 U.S. 946 (1982) in

review of the denial of Petitioner's motion

for continuance is misplaced. In United

States v. Veatch, the defendant requested a

-]3-

continuance on the second and last day of

his trial because the father of one of his

three attorneys had passed away in the

night. The differences in the facts and

circumstances in Petitioner's case and

Veatch are extreme.

Petitioner recognizes the fifth and

sixth amendments do not specifically guaran-

tee adequate time to prepare and obtain dis-

covery prior to trial. Nonetheless, this

Court has recognized that inadequate time to

prepare a case can jeopardize an accused's

sixth amendment right to effective counsel.

Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct.

55, °65, 77 L.Ed. 158 (1932). Determination

of whether effective assistance of counsel

was denied due to late appointment

necessarily turns on the facts of the case,

Chambers v. Maroney, 399 U.S. 42, 90 S.Ct.

1975, 26 L.Ed. 2d 419 (1970).

It is not an answer to petitioner's

Claim for a reviewing court simply

to conclude that he has failed to

ol4e

show that, with adequate assistance, |

he would have prevailed at trial. |

Glasser v. United States, 315 U.S. |

60, 75-76, 62 S.Ct. 457, 467, 86

L.Ed. 680 (1942).

Chambers v. Maroney, supra, 90 S.Ct. at 1985

(Harlan J., partial] dissent and concurrence.)

The standard for review of a denial] of a

motion for a continuance is found in Ungar

v. Sarafite, 376 U.S. 575, 589, 84 S.Ct.

841, 849-50, 1] L.Ed. 2d 921 (1976).

The matter of continuance is tradi-

tionally within the discretion of

the trial judge, and it is not every

denial of a request for more time

that violates due process

Contrariwise, a myopic insistance

upon expeditiousness in the face of

a justifiable request for delay can

render the right to defend with

counse] an empty formality.

Chandler v. Fretag, 348 U.S. 3,75

S.Ct. 1, 99 L.Ed. 4. There are no

mechanical tests for deciding when a

denial of a continuance is so

arbitrary as to violate due pro-

cess. The answer must be found in

the circumstances present in every

case, particularly in the reasons

presented to the trial judge at the

time the request is denied.

In Powell v. Alabama, supra, 287 U.S. at

59, 53 S.Ct. at 60 this Court recognized:

oj] S5=

The prompt disposition of criminal

cases is to be commended and en

couraged. But in reaching that

result a defendant, charged with a

serious crime, must not be stripped

of his right to have sufficient time

to advise with counsel and prepare

his defense. To do that is not to

proceed promptly in the calm spirit

of regulated justice but to go for-

ward with the haste of the mob.

In United States v. King, 664 F.2d 117]

(10th Cir. 1981), the court found the defen-

dant was deprived effective assistance of

counsel] when the trial court denied a motion

for continuance. Counsel was given twenty-

seven days to research, investigate, and

prepare a defense. The court found the

sophisticated charge, lengthy trial involv-

ing a plethora of witnesses and exhibits,

and potential person term of five years

where substantial reason to have granted the

continuance requested by substitute counsel

who was engaged for the defense approxi-

mately two weeks before trial. In United

States v. King, supra, original counsel had

also moved for a continuance, approximately

=16§<

four weeks prior to trial. The sbstitute

counsel] entered fifteen days iater and

renewed the continuance motion.

The facts and circumstances of United

States v. King, supra, are strikingly simi-

lar to the Petitioner's case. In Peti-

tioner's case, original counsel moved for a

continuance five weeks and five days prior

to trial. This was renewed once again

before trial and twice during trial. The

order approving substitution of counsel was

entered on the last court day before trial

began. (App. H) Petitioner's counsel had

twelve court days, after his first appear-

ance, to investigate and prepare pretrial

and trial matters. Seven of those days were

devoted to pretrial motions. Upcen review of

facts and circumstances similar to Peti-

tioner's, the Tenth Circuit stated:

We conclude that adequate time for

defense preparation is one of the

rights afforded an accused under the

sixth amendment and that King was

unfairly deprived of this right as a

a} F<

result of the district court's

denial of his motions for contin-

uance. ... Significantly, this sixth

amendment guarantee is so funda-

mental] that its deprivation will

mandate reversal of a conviction

even absent a showing that the

resulting prejudice affected the

Outcome of the case.

United States v. King, supra, at 1172.

(Citing Powel] v. Alabama, 287 U.S. 45, 58,

53 S.Ct. 55, 60, 77 L.Ed. 158 (1932) and

Glasser v. United States, 315 U.S. 60, 76,

62 S.Ct. 457, 86 L.Ed. 680 (1941)).

The Tenth Circuit continued:

Although frequently the result of a

slothful lawyer, inadequate prepara-

tion can also be caused by unreason-

able time constraints imposed by a

trial court. United States v.

Olivas, 558 F.2d 1360, 1367 (10th

Cir. 1977), cert. denied, 434 U.S.

866, 98 S.Ct. 203, 54 L.Ed. 2d 142

(1978). ... Although rulings on

motions for continuance are tradi-

tionally best left to the trial

court's discretion, a judge is not

imbuded with the power to abrogate a

Criminal defendant's constitutional

rights.

Under the circumstances of this

case, the trial court's refusal to

postpone King's trial date adversely

affected defense counsel's ability

to render constitutionally suffi-

o]Q=

cient assistance to his client.

King's conviction must be reversed.

United States v. King, supra, at 1173.

Accord, United States v. La Monte, 684 F.2d

672 (10th Cir. 1982); United States vy.

Golub, 694 F.2d 207 (10th Cir. 1982); United

States v. Gonzales-Palma, 645 F.2d 844 (10th

Cir. 1981).

The Sixth Circuit is in accord with the

Tenth Circuit on this question. In Linton

v. Perini, 656 F.2d 207 (6th Cir. 1981),

cert. denied, 454 U.S. 1162, 102 S.Ct. 1036,

the court found the defendant's sixth amend-

ment right to effective assistance of coun-

sel] was violated because the “ten or four-

teen days* counsel had to prepare were in-

adequate.

The court stated:

To say that appellant's

attorney's

modest request for more time to

investigate a very serious felony

case was dilatory is to stretch

credulity. Even in the absence of

an evident showing of prejudice to

the defendant, the facts here are

219

sufficient to merit reversal of the

District Court.

Id. at 2]1l.

The court noted a key consideration in

the right to counsel under the sixth amend-

ment iS a reasonable opportunity to employ

and consult with counsel. (Citation to

Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. l,

99 L.Ed. 4 (1959)). Accord, Rummel v.

Estelle, 599 F.2d 103, 104 (5th Cir. 1979)

(per curiam).

The standard of review in the Sixth

Circuit is to weigh the right to counsel,

tempered by the consideration that it not

interfere without proper reason with the

norma] progress of the case. Conversely,

the government may not arbitrarily interfere

with the right to effective assistance of

counse] in the name of docket control.

Similar standards were announced by the

Second Circuit in Gavino v. MacMahon, 499

F.2d 1191 (2nd Cir. 1974).

-20-

The Seventh Circuit followed this

Court's holding in Ungar v. Sarafite, supra,

in United Staces v. Jones, 369 F.2d 217 (7th

Cir. 1966). Accord. United States v.

Phillips, 640 F.2d 87 (7th Cir. 1981), cert.

denied, 10] S.Ct. 2331.

Several] Eighth Circuit decisions have

addressed the sixth amendment question pre-

sented by Petitioner. In Wolfs v. Britton,

509 F.2d 304 (8th Cir. 1975), the court

Stated:

In each case we must weigh, among

other factors, the time afforded

counsel, the experience of counsel,

the gravity of the charge, and the

complexity of the possible defenses

as well as the accessibility of wit-

nesses to counsel. We stress, also,

that although the adequacy of coun-

sel cannot be determined solely on

the basis of the amount of time

spent in preparation, we cannot

minimize the fact that effective

assistance refers not only to foren-

sic skills but to painstaking in-

vestigation in preparation for

trial. As the Third Circuit has

noted;

Adequate preparation for trial often

may be a more important element in the

effective assistance of counsel to

a2le<

which a defendant is entitled than the

forensic skill exhibited in the court-

room. The careful investigation of a

case and the thoughtful analysis of

the information it yields may disclose

evidence of which even the defendant

is unaware and may suggest issues and

tactics at trial which would otherwise

not emerge.

* * * * . 7 * * *

. * The exercise of the utmost

skill during the trial is not enough

if counsel has neglected the necessary

investigation and preparation of the

case or failed to interview essential

witnesses or to arrange for their

attendance. Moore v. United States,

432 *.24 730, 735,

(en banc) (footnote

. « « In McQueen v. Swenson, 498 F.2d

207 (8th Cir. 1974), . . . we quoted the

American Bar Association Project on

Standards for Criminal Justice, Stand-

ards Relating to The Prosecution Func-

tion and the Defense Function § 4.1]

(Approved Draft 1971) [hereinafter ABA

Standards):

It is the duty of the lawyer to con-

duct a prompt investigation of the

circumstances of the case and explore

all avenues leading to facts relevant

to guilt and degree of guilt or

penalty. The investigation should

always include efforts to secure

information in the possession of the

prosecution and law enforcement

authorities. The duty to investigate

exists regardless of the accused's

admissions or statements to the lawyer

a2%e

of facts constituting guilt or his

stated desire to plead guilty.

Counsel] must be given time to discharge

this duty

Wolfs v. Britton, supra, at 309-310.

In United States v. Little, 567 F.2d 346

Cir. 1977) the court applied the

following test:

The trial judge must balance a

number of considerations in render-

ing his decision. One consideration

is the nature of the case itself.

In a complicated case, or one set

for tria] before adequate time has

been provided for trial preparation,

equity favors a continuance. (cita-

tions omitted). <A second factor

must be the diligence of the party

requesting the continuance. United

States v. Collins, 435 F.2d 698 (7th

Cir. 1970), cert. denied, 401 U.S.

957, 91 S.Ct. 983, 28 L.Ed.2d 24]

(1971). If the party has not been

dilatory or negligent in the pre-

paration of his case, and yet still

needs more time before trial, that

party obviously has a greater claim

to a continuance. Third, the trial

judge just consider the conduct of

the opposing party.

If the other side has been uncooper-

ative, or tardy in making material

available that the movant has a

right to discover, then the court

must take that into account. (cita-

tions omitted). Fourth, the court

must assess the effect of the con-

«23@

tinuance,

consider ¢t

continuance,

)

triai court's method of ruling on the

On for centinuance improper because it

ed to properly balance the five factors

forth in United States vy, Bernhardt,

Criticized

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district courre for failure to state the

reason(s) for denial of a request for a con-

tinuance,

The court articulated no reason for

its decision to deny att

Petrella's unopposed request for a

two week continuance to permit

adequate time for preparation ....,

Alford v. United States, 709 F.24 418, 423

(5th

Cir. 1983). Linton V. Perini, supra,

Cited with approval.

-24-

1281

fol]

assessing claims of inadequate preparation

In United States v. Uptain, 531 F.2d

(Sth Cir. 1976), the court listed the

owing factors as highly rejevant in

time:

[T]he quantum of time available for

preparation, the likelihood of pre-

judice from denial, the accused's

role in shortening the effective

preparation time, the degree of com-

plexity of the case, and the avail-

ability of discovery from the pro-

secution. We have also explicitly

considered the adequacy of the

defense actually provided at trial,

the skill and experience of the

attorney, any pre-appointment or

pre-retention experience of the

attorney with accused or the alleged

crime, and any representation of the

defendant by other attorneys that

accrues to his benefit.

at 1286.

While the court upheld the denial under

facts of this case, it stressed:

[We] must reiterate that a scheduled

trial date should never become such

an overarching end that it results

in the erosion of the defendant's

right to a fair trial. If forcing a

defendant to an early trial date

substantially impairs his ability to

effectively present evidence to

rebut the prosecution's case or to

o25=

establish defenses, then pursuit of

the goal of expeditiousness is far

more detrimental] to our common pur-

poses in the criminal justice system

than the delay of a few days or

weeks that may be sought.

» @t 1291.

United States v, Burton, 584 F.2d 485

(D.C. Cir. 1978) is a leading case in the

District of Colombia Circuit on an analogous

issue. In Burton, supra, the appellant

challenged the denial of his motion for a

continuance to replace one of his two

attorneys. The court stated:

(W]hen the continuance is sought to

retain or replace counsel, the

defendant's Sixth Amendment right to

the assistance of counsel] is

implicated. In such circumstances,

the right to select counsel must be

carefully balanced against the

public's interest in the orderly

administration of justice.

Thus, the trial judge may not insist

On such expeditiousness that counsel

for the defendant lacks reasonable

time to prepare for trial; Stripping

away the opportunity to prepare for

trial is tantamount to denying

altogether the assistance of counsel

for the defense. On the other hand,

the defendant cannot insist on an

unnecessary delay or a delay of

=-26-

unreasonable

D

Oo

x

oO

"UO

oO

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oO

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w

We recognize that the right to

" = | 4 4 .

choice of counsel devolves not only

- } ait - | = }

from the due process clause of the

De i~ —_ - | }

Fifth Amendment but also from the

more stringent and overlapping

< I - + -* ¢ ‘ oa es t=

standards of the Sixth Amendment.

7? 3 e sor ‘ cr

4c. at 480-490.

—_—

The court continued to state that deter-

- * rT = - QQ | "

the case. In the District of Columbia Cire

cuit, the trial court is required to

the delay would be unreasonable in the con-

of the particular case. Id. at 490.

The reas»nableness of the delay depends on

all the surrounding facts and circun-

Stances. The D.C. Circuit Court of Appeals

listed twenty factors to be considered in

this analysis. Id. at 490-491.

Petitioner respectfully submits that the

method and standard of review used by the

~~}

Ninth Circuit in his appeal conflicts with

the decisions of the other circuits and this

Court as set forth supra. In direct con-

trast to the Ninth Circuit, other circuit

courts take great care in reviewing the

question Petitioner presented to the Ninth

Circuit. The Sixth and Tenth Circuits do

not require the defendant to point to

specific prejudice as does the Ninth Cir-

cuit. Petitioner did, however, point to

specific prejudice several] times. (See

Statement of Case, supra.)

Examination of the transcript, facts and

circumstances of the case, and memorandum

decision of the United States Court of

Appeals for the Winth Circuit reveals that

Petitioner was seriously prejudiced by the

trial court's denial of his motions for a

continuances and the summary review of that

denial by the Ninth Circuit. The trial

court failed to consider any of the factors

considered by the other circuits' district

@28<

courts. The Petitioner's original motion

was hardly considered at all. The Ninth

Circuit failed to properly review this

district court action by considering the

factors deemed relevant by other circuit

courts and this Court. Petitioner urges

that the cursory process in the district and

appellate courts warrants review of his case

by this Court.

2. Petitioner argued at trial and on

appeal] that his fifth amendment right to due

process and sixth amendment right to effec-

tive assistance of counsel were denied by

his inability to obtain discovery, excul-

patory materials and incomplete responses to

his requests under Brady and the Jencks

Act. The transcript documents the disadvan-

tages Petitioner suffered because of this.

The district ccurt did not review in

Camera the requested exculpatory evidence,

as stated by the Ninth Circuit in its

Opinion. The district court declined to

ate

review the transcripts in question (in part

due to their bulk) under the rule of United

States v. Tierney, 424 F.2d 643 (9th Cir.

1970). In that case, the court found the

only reason for the request was to tailor

the witness’ trial testimony to avoid incon-

Sistencies. Id. at 646. This was not the

reason advanced in Petitoner's case.

Counsel for Petitioner had reason to believe

the requested material contained exculpatory

evidence. It is impossible to state whether

the requested material would have affected

the outcome of the case because neither the

court nor the defendnt saw the requested

material. In United States v. Jones, 612

F.2d 453, 456 (9th Cir. 1979) the Ninth Cir-

cuit expressly deemed in camera examination

of the requested material the proper proce-

Petitioner objected to the trial court's

denial of his request for court ordered

depositions under Fed. R. Crim. P. Rule 15,

-30-

and discovery under Rule i6. The government

objected, stating fears of fabrication of

evidence, but without offering proof thereof

to override Petitioners need to investigate

in his search for relevant fact and truth.

Petitioner had reason to believe some of the

government's exhibits had been forged by its

main witness, and counsel requested time to

investigate matters relevant to the credi-

bility of the government's main witness and

the innocence of the Petitioner.

Justice Brennan's opinion was that the

fallacy of "the old hob goblin perjury” has

been starkly exposed by the civil system.

"Indeed, ... liberal discovery, far from

abetting, actually deters perjury and

fabrication." Brennan, The Criminal Prose-

cution: Sporting Event or Quest for Truth,

1963 Wash. U.L.Q. 279, 291.

This Court Stated:

The adversary system of justice is

hardly an end in itself; it is not

yet a poker game in which the

a3le<

players enjoy an absolute right

always to conceal their cards until

played. We find ample room in that

system, at least as far as 'due

process' is concerned, for [a rule]

which is designed to enhance the

search for truth in the criminal

trial ... . Williams v. Florida,

399 U.S. at 82d.

Wardius v. Oregon, 412 U.S. 470, 93 S.Ct.

2208, 37 L.Ed. 2d 82 (1973).

Petitioner respectfully asserts the

denial of his requests for exculpatory

evidence and other discovery, made in the

search for relevant fact, impermissibly

infringed on his right to due process, and

equal protection, of the law. Dennis v.

United States, 384 U.S. 855, 873, 86 S.Ct.

1840, 1851, 16 L.Ed. 2d 973 (1966). The

Ninth Circuit dismissed review of Peti-

tioner's request for discovery by citation

to Weatherford v. Bursey, 429 U.S. 545

(1977). That case is easily distinguishable

on its facts and circumstances.

In United States v. Hinton, 631 F.2d 769

(D.C. Cir. 1980), the court found the

-32-

appellant was deprived of the informed and

deliberate judgment of counsel] where Jencks

materials were received by counsel for the

first time on the morning of trial.

(Counsel sought to read the relevant Jencks

materials while the suppression hearing was

in progress).

The record in Petitioner's case docu-

ments the government's last minute deliver

of some Jencks material, which counsel was

obliged to digest with insufficient time to

prepare effective cross-examination. Again,

the refusal to disclose at an earlier time

was based on the vague ungrounded fear held-

by the government that to do so would lead

to fabrication of evidence.

The due process clause speaks "to the

balance of the forces between the accused

and his accusor." Wardius v. Oregon, 412

U.S. 470, 474, 93 S.Ct. 2208, 2212, 37 L.Ed.

2d 82, 87 (1973). The rationale of due

process is that “unequal access to opposing

o33<

parties' information prior to trial may

deprive a defendant of a fair trial." Brown

v. Wainwright, 459 F.Supp. 244, 247 (M.D.

Fla. 1978). Petitioner respectfully submits

that was precisely the situation in his case.

Petitioner submits zhe Jencks Act uncon-

stitutionally deprived him of due process of

law. Petitioner requests this Court to con-

sider court instituted liberalization of

Criminal discovery. As Justice Brennan

wrote;

Assuming that, as I believe, we

should adopt broader criminal

discovery, should the definition of

its limits be a matter for legisla-

tures or court? I incline to

believe that just as discovery in

Civil causes is largely a matter

of court rules, so also should be

the fashioning of rules for crimi-

nal discovery.

Brennan, J., The Criminal Prosecution, 1963

Wash. U.L.Q. 279, 293.

CONCLUSION

Petitioner respectfully submits that

there is a clear conflict between the Ninth

ain

Circuit's decision and those of other cir-

cuits as set forth in this petition. The

record shows his timely motion and three

subsequent requests for a continuance were

not properly considered at trial or on

review. Furthermore, Petitioner was denied

adequate time to examine critical evidence

and denied access to requested exculpatory

evidence. Petitioner was prejudiced there-

by, and pointed to this prejudice before,

during, and after trial.

For these reasons and others discussed

this petition, supra, Silas Cross requests

this Court to accept review of nis case.

Respectfully submitted this 20 day

of October, 1983.

CHARLES J. RRMANN

Counsel of\fecord for

Petitioner Silas Cross

|

to

Justice, Washington D.

the Solicitor General, Department of

‘CHARLES RRMANN

Counsel] of ! for

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U.S. Attorney,

Plaza,

98104.

he Peter OO. Mueller, Assistant

3600 Seafirst Fifth Avenue

h Avenue, Seattle, Washington

"CHARLES J. RMANN

Counsel of cord for

Petitioner Silas Cross

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* The Honorable Willi

United States District

District of Montana, si

-38

a”

Tribal] Health

§ 37]

am J. Jameson, Senior

Judge for the

tting by designation.

(Count I); 19 substantive counts of

embezzlement of Tribal Authority funds, in

violation of 18 U.S.C. § 1163; and four

counts of misapplication of Indian Self

Determination Act contractual funds, in vio-

lation of 25 U.S.C. § 450(d). We affirm the

judgment of conviction on each count.

Cross is former vice-chairman of

the Puyallup Tribe of Indians, Tacoma, Wash-

ington. He was indicted with a codefendant,

Robert Satiacum, former tribal chairman, and

Thomas Carpenter, former executive director

of tribal health funds. All were charged

with conspiracy under Count I. Cross was

further named in 36 substantive counts.

Satiacum was charged jointly with Cross in a

numper of counts and i: dividually in several

others. Carpenter had previously pled

guilty to embezzlement of Tribal health

funds and was the Government's principal

witness at trial.

a39-

Trial against Cross began on July

6, 1982, before the court and jury.?

Satiacum, having waived a jury, was to be

14, after a series of disputes between

Satiacum and his counsel, the court per-

mitted Satiacum's attorney to withdraw, and

severed and continued the case as to

Satiacum. The jury trial of Cross then con-

tinued to July 23. After a week's recess,

the trial resumed, and the case went to the

jury on August 2. On August 4 the jury

returned its verdict, finding Cross guilty

of conspiracy and 23 of the 36 substantive

counts, acquitting him on 12 counts, with no

verdict on one count, which

J. Although the offenses were committed,

and the indictment was returned in the

Tacoma (Southern) Division of the District,

the case was transferred sua sponte by the

court to the Seattle (Northern) Division

shortly after indictment, and all proceed-

ings thereafter were held in the Seattle

Division.

-40-

was later dismissed.

Appellant contends first that the

district court erred in denying his motion

for a continuance, based in part on lack of

Between arraignment on May 12,

1982, and June 14, 1982, Cross was repre-

sented by Arthur Emery. On June 14, Charles

J. Herrmann was retained to replace Emery as

counsel. On June 16, Herrmann appeared

before the court and sought to be sub-

stituted as counsel. The court indicated

that it would approve the substitution if a

conflict issue, raised

2. Initially Cross and Satiacum had both

filed motions for a continuance, based in

part on an anticipated conflict with another

case involving Satiacum. At a pretrial

conference “earing on June 1], the court

learned that Saticum's other case was to be

continued, eliminating the anticipated con-

flict. The court noted that if this case

were not tried in July as scheduled, it

could not be reached before October.

-4]-

by the Government, were resolved, provided

the trial could proceed as scheduled in

July. Herrmann assured the court that he

could be prepared for trial as scheduled.*

On the morning of trial Herrmann, how-

moved

for a continuance based on

ever ,/

alleged bad faith of the prosecution with

respect to providing Jencks and Brady

: 4 , :

materials and an alleged unfairness in

3. THE COURT: That's the only problem I

have heard so far. You have assured the

court you would be ready to go even

though it's short notice. That would be

the court's major concern.

MR. HERRMANN: As far as the trial is

concerned, I guess I would be asking for

some time to file motions myself, but as

far as the trial is concerned, I have no

problem with clearing my calendar and

being prepared by the week of the 6th or

the 12th of July, but I would be I'm

Sure asking the court to entertain the

motions that I would see fit to bring.

4. Cross argues that the court's major

consern of expediency of trial made it

impossible for him to receive effective

assistance of counsel where there was a

rapid barrage of exhibits and "some 375"

documents.

~42<

the nature of the Federal Rules of Criminal

Procedure with respect to the lack of provi-

sion for the court ordered depositions of

witnesses unwilling to speak with defense

counsel. The court denied the motion for

continuance but indicated its willingness to

provide counsel with additional time to

review Jencks and Brady materials during

trhal if necessary.

Motions for continuances based on

lack of preparation are addressed to the

sound discretion of the trial court. The

standard of review is whether or not the

denial was an abuse of that discretion.

United States v. Young, 470 F.2d 962, 964 (9

Cir. 1972), cert. denied, 410 U.S. 967

(1973), reh'gq. denied, 411] U.S. 940 (1973),

cert. denied, 412 U.S. 951] (1973); United

States v. Wheeler, 434 F.2d 1195 (9 Cir.

1970). an appellant “assumes a heavy

burden" in contending that a continuance was

improperly denied, “as the discretion of a

-43-

trial judge in the disposition of a motion

for a continuance is rightly broad.” United

States v. Harris, 436 F.2d 775, 776 (9 Cir.

1970).

It is wel] settled in this circuit

that actual prejudice must be shown before

the denial] of a continuance will be revers-

ed. United States v. Veatch, 674 F.2d 1217,

1226 (9 Cir. 1981), cert. denied, 456 U.S.

946 (1982); United States v. Hernandez, 608

F.2d 741, 746 (9 Cir. 1979). Cross has

failed to point to any specific prejudice

resulting from the denial of a continuance.

Nor does the record show any prejudice as a

result of lack of preparation by trial

counsel. On the contrary, the record indi-

cates that Cross was effectively represented

by counsel] throughout the trial.

Nor do we find evidence of bad

faith on the part of the Government in

responding to Cross' motion for discovery of

-44-

Jencks and Brady material.” Counsel] for

Cross claimed that the prosecution had

responded to his request for exculpatory

information in bad faith by withholding the

grand jury testimony of two defense wit-

nesses. Counsel acknowledged, however, that

he had interviewed these individuals and had

listed them on his defense witness list.

The government urged that the fact that

these witnesses were known and available to

o

the defense removed any “exculpatory” aspect

from the impact of the Brady rule. The

trial court reviewed the transcripts of the

two witness's grand jury testimony in camera

and decided that, based on United States v.

Tierney, 424 F.2d 643, 646 (9 Cir.), cert.

denied, 400 U.S. 850

5. The constitutional command of Brady is

that “the suppression by the prosecution of

evidence favorable to an accused upon

request violates due process where the

evidence is materia] either to guilt or to

punishment." Brady v. Maryland, 373 U.S.

83, 87 (1963).

-45-

(1970), the Government's position in this

case was correct. We agree.

The Jencks Act requires that

witness' prior statements in the possession

of the Government that relate to the subject

matter of their testimony be provided to the

defense at the close of witness' direct

examination. 18 U.S.C. § 3500(b). All of

the Jencks Material was provided in advance

of this deadline.

Cross wanted to cal] the prosecutor

as a witness to statements made by Thomas

Carpenter. The prosecutor said he was not a

witness to the statements and that the

Statements would be provided to the defense

with Carpenter's Jencks material = which in

fact, was done. These statements appear to

fall within the Jencks Act as witness' prior

statements that must be disclosed at the

Close of direct examination. As the Govern-

ment notes,

=46<

Brady does not overcome the

strictures of the Jencks Act. When

the defense seeks evidence which

qualifies as both Jencks Act and

Brady material, the Jencks Act

Standards control.

United States v. Jones, 612 F.2d 453, 455 (9

Cir. 1979), cert. denied, 445 U.S. 966

(1980). On these facts, the Jencks standard

applies rather than the Brady standard. The

Government complied with Jencks.

The motion for a continuance was

based in part upon appellant's contention

that the federal] criminal discovery

procedures denied equal protection and due

process, since the grand jury affords the

prosecution pretrial discovery not available

to the defense. As the Supreme Court noted

in Weatherford v. Bursey, 429 U.S. 545, 559

(1977), "[t]here is no general constitu-

tional right to discovery in a criminal

case...." Moreover, the Federal Rules of

Criminal Procedure provide for the taking of

depositions only under certain

a4 T=

limited circumstances not urged here. Depo-

sitions under Rule 15 are not authorized for

discovery purposes. United States v. Rich,

880 F.2d 929, 933-34 (9 Cir.), cert. denied,

439 U.S. 935 (1978). Cross’ statement that

"[n]umerous commentators have advocated

increased pretrial discovery in criminal

cases" does not change the rules governing

discovery in criminal cases.

Finally, appellant argues that the

court erred in refusing to consider and

grant his motion for a change of venue.

Among the motions filed a few days prior to

trial was a motion for a change of venue,

accompanied by voluminous newspaper clip-

pings. The court found the motion untimely

and declined to consider it.

The trial court's ruling on a

change of venue motion will be reversed only

for an abuse of discretion. United States

v. Flores-Elias, 659 F.2d 1149, 1150 (9

Cir.), cert. denied, 454 U.S. 904 (1981).

-4§-

eral Rules of Criminal Proce-

Rule 22, Fed

dure, provides:

A motion to transfer under

ese rules may be made at or

fore arraignment or at such other

ime as the court or these rules

may prescribe.

Criminal Rule 22 of the Rules of the United

States District Court for the Western

District of Washington provides:

A motion for change of venue under

Ruie 21, Fed. R. Crim. P., shall be

made within the time allowed for

filing pretrial motions under these

rules.

As the Government points out, the time set

for filing of pretrial motions was May 26,

1982. That time period was not changed.

Appellant did not meet his burden of showing

abuse of discretion when the court declined

to consider the first motion for change of

venue.

After voir dire, Cross again moved

for a change of venue, and the court denied

the motion on the merits stating:

-49-

I'm going to deny the motion

again. If anything, the jury

impanelling has shown that the

fears are not grounded; that in

fact most people are talking about

this article, which I don't think

in any way prejudicial. I think we

filtered out two people who have

heard other news media stories

other than the ones connected with

this case, and even they don't feel

that it would affect their hearing

the case fairly, and I'm going to

deny the motion.

we find no abuse of discretion in

the court's denial of the motion for change

7

of venue.

Nor do we find any prejudicial

error in the court's instructions or refusal

to give offered instructions.

AFFIRMED.

6. Defendant declined the offer to explore

further the jurors' responses by questioning

them individually in chambers, except for

three jurors, one of whom had seen none of

the publicity. Defendant also used four of

his ten peremptory challenges to strike

jurors who had not seen any publicity and

whose only distinguishing feature was having

had prior jury service.

7. Moreover, as noted above (note ]), the

case had already been transferred a sponte

by the court from the Tacoma Division to the

Seattle Division.

-50-

APPENDIX B.]

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA, )

)

Plaintiff, NO. CR82-20TR

ORDER DENYING

MOTION FOR LEAVE

TO FILE MOTIONS

V «

)

)

)

)

SILAS A. CROSS and )

ROBERT SATIACUM, )

)

)

)

Defendants.

THIS MATTER comes before the court on

the moticn of defendant Silas A. Cross for

leave to file pretrial motions. Having

considered the motion, together with the

affidavit of defense counsel Buckley filed

in support thereof, as well] as the balance

of the file herein, and being fully

informed, the court finds and rules as

follows:

The motions cut-off date in this matter

was May 26, 1982. On June 16, 1982 Mr.

Cross lodged an order allowing the

substitution of Mr. Herrmann for Mr. Emery

aSie

as defense counsel. At a hearing in open

court that day, Mr. Herrmann stated that he

intended to file several new motions. The

court unambiguously indicated that, to be

consider:d, such motions would have to be

filed almost immediately.

The instant motion, together with the

motions for change of venue, for attorney

conducted voir dire, and for discovery, and

the voluminous exhibits that accompany them,

were not filed until June 28, 1982. Trial

in this matter is scheduled to commence on

July 6, 1982. These tardy motions are

Clearly not the sort of expedited motions

that the court suggested it might entertain

due to the change of counsel. Rather, with

trial five court days away, they put the

court and the government at an extreme and

unwarranted disadvantage.

The motion is DENIED.

IT IS SO ORDERED.

The Clerk of the Court is directed to

wPe

forward copies of this Order to

record.

day of June,

Seattle,

1982.

Washington

counsel of

this 29th

/ Ss,

BARBARA J.

UNITED STA

JUDGE

-53-

ROTHSTEIN

TES DISTRICT

APPENDIX B.2

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

) JUDGMENT AND

SILAS A. CROSS, } COMMITMENT

On this 19th day of November, 1982, came

the attorney for the government and the

defendant appeared in person and by Charles

J. Herrmann, Counsel.

IT IS ADJUDGED that the defendant upon

his plea of NOT GUILTY and a verdict of

GUILTY has been convicted of the offenses of

conspiracy, in violation of Title 18, United

States Code, Section 371 as charged in Count

I of the Indictment; embezzlement of tribal

organization funds as charged in Counts II,

III, IV, V, VI, IX, X, XI, XVIII, XXII, XXV,

XXVI, XXIX, XXXI, XXXII, XXXVI, XLI, XLIV,

and XLV of the Indictment and misapplication

-54-

of Indian Self-Determination Act Contractual

Funds as charged in Counts XXI, XXXVII,

XXXVIII, and XLII of the Indictment and the

Court having asked the defendant whether he

has anything to say why judgment should be

pronounced, and no sufficient cause to the

contrary being shown or appearing to the

guilty as charged and convicted.

IT IS ADJUDGED that the defendant is

hereby committed to the custody of the

Attorney General or his authorized repre-

sentative for imprisonment for a period of

FIVE (5) YEARS on Count I and fined the sum

of TEN THOUSAND DOLLARS ($10,000);

IT IS ADJUDGED that on each of Counts,

II, III, IV, V, VI, 1%, X, XI, XVIII, XXil,

XXV, XXVI, XXIX, XXXI, XXXII, XXVI, XII,

XLIV, and XLV, that the defendant is hereby

committed to the custody of the attorney

General or his authorized representative for

=§5—

imprisonment for a term of TWO (2) YEARS and

fined the sum of ONE THOUSAND DOLLARS

($1,000) on each count; said sentences of

imprisonment to run consecutively to the

sentence on Count I and concurrently with

each other;

IT IS ADJDUGED that on Counts XXII,

XXXVII, XXXVII, and XLII that the impositon

of sentence is hereby suspended and the

defendant placed on probation for a period

Of FIVE (5) YEARS. Such period of probation

is to commence upon the defendant's release

from prison by United States Parole

Commssion and is to be on the following

terms and conditions:

be That he obey all local, state, and

federal] laws.

The he comply with the rules and

regulations of the Probation

Department.

3. That he make resitution in the sum

of Twenty Eight Thousand Six

o$6<

Hundred Seventy Five Dollars

($28,675);

(a)

by payment on the maturity date

of January 15, 1983, to the

Puyallup Tribe of Indians

through the Probation Office,

the amount of $17,200, plus any

accrued interest presently on

deposit in the name of the

defendant and the Bureau of

Indian Affairs in the Puyallup

Valley Bank, Puyallup, Washing-

ton, as reflected by certifi-

cate number 1014102147 and;

by payment of the balance of

the restitution in such amounts

and at such time as directed by

the Probation Department.

IT IS ORDERED that the Clerk deliver a

certified copy of this judgment and commit-

ment to the United States Marshal or other

qualified officer and that the copy serve as

-57-

»i*

ROTHSTEIN

efendant.

B B

a

GQ

”)

-58-

EEO S53 rr

APPENDIX B.3

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUI

UNITED STATES OF AMERICA, )

ILAS CROSS,

}

j

}

)

)

)

Defendant-Appellant. )

)

APPEAL from the United States District

Court for “he Western District of Washington

(Seattle),

THIS CAUSE came on to be heard on the

Transcript of the Record from the United

States District Court for the Western

District of Washington (Seattle) and was

Guly submitted.

ON CONSIDERATION WHEREOF, It is now here

Ordered and adjudged by this Court, that the

judgment of the said District Court in this

Cause be, and hereby is affirmed.

Piled and entered August 22, 1983

-59-

APPENDIX C

The Jencks Act 18 U.S.C. Section 3500 (as

amended 1975)

§3500. Demands for production of

statements and reports of witnesses

(a) In any criminal prosecution

brought by the United states, no

statement or report in the

possession of the United States

which was made by a Government

witness or prospective Government

witness (other than the defendant)

shall be the subject of subpoena,

discovery, or inspection until said

witness has testified on direct

examination in the trial of the

case.

(b) After a witness called by the

United States has testified on

direct examination, the court

shall, on motion of the defendant,

order the United States to produce

any statement (as hereinafter

defined) of the witness in the

possession of the United States

which relates to the subject matter

as to which the witness has

testified. If the entire contents

of any such statement relate to the

subject matter of the testimony of

the witness, the court shall order

it to be delivered directly to the

defendant for his examination and

use.

(c) If the United States claims

that any statement ordered to be

produced under this section

contains matter which does not

=60-

relate to the subject matter of the

testimony of the witness, the court

shall order the United States to

deliver such statement for the

inspection of the court in camera,

Upon such delivery the court shall

excise the portions of such

Statement which do not relate to

the subject matter of the testimony

of the witness. With such material

excised, the court shall then

direct delivery of such statement

to the defendant for his use. If,

Pursuant to such procedure, any

portion of such statement is

withheld from the defendant and the

defendant objects to such

withholding, and the trial is

continued to an adjudication of the

guilt of the defendant, the entire

text of such statement shall be

preserved by the United States and,

in the event the defendant appeals,

shall be made available to the

appellate court for the purpose of

determining the correctness of the

ruling of the trial judge,

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.

(d) If the United States elects

not to comply with an order of the

court under subsection (b) or (c)

hereof to deliver to the defendant

o6]«

any such statement, or such portion

thereof as the court may direct,

the court shall strike from the

record the testimony of the

witness, and the trial shall

proceed unless the court in its

discretion shal] determine that the

interests of justice require that a

mistrial] be declared.

(e) The term "statement", as used

in subsections (b), (c), and (d) of

this section in relation to any

witness called by the United

States, means --

(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 a

substantially verbatim recital of

an oral statement made by said

witness and recorded

contemporaneously with the making

of sucn oral statement; or

| (3) a statement, however taken or

recorded, or a transcription

thereof, if any, made by said

witness to a grand jury.

(Added Sept. 2, 1957, P.L. 85-269, 71

Title I, § 102, 84 Stat. 926.)

APPENDIX D

Ped. R. Crim. P. Rule 15 (As amended 1975)

RULE 15. Depositions

(a) When Taken. Whenever due to

exceptional circumstances of the

case it is in the interest of

justice that the testimony of a

prospective witness of a party be

taken and preserved for use at

trial, the court may upon motion of

such party and notice to the

parties order that testimony of

such witness be taken by deposition

and that any designated book,

paper, document, record, recording,

or other materia] not privileged,

be produced at the same time and

place. If a witness is committed

for failure to give bail to appear

to testify at a trial or hearing,

the court on written motion of the

witness and upon notice to the

parties may direct that his

deposition be taken. After the

deposition has been subscribed the

court may discharge the witness.

(b) Notice of taking. The party

at whose instance a deposition is

to be taken shall give to every

party reasonable written notice of

the time and place for taking the

deposition. The notice shall state

the name and address of each person

to be examined. On motion for a

party upon whom the notice is

served, the court for cause shown

May extend or shorten the time or

change the place for taking the

deposition. The officer having

=63<

custody of a defendant shall be

notified of the time and place set

for the examination and shall,

unless the defendant waives in

writing the right to be present,

produce him at the examination and

keep him in the presence of the

witness during the examination,

unless, after being warned by the

court that disruptive conduct will

cause him to be removed from the

place of the taking of the

deposition, he persists in conduct

which is such as to justify his

being excluded from that place. A

defendant not in custody shall have

the right to be present at the

examination upon request subject to

such terms as may be fixed by the

court, but his failure, absent good

Cause shown, tO appear after notice

and tender of expenses in

accordance with subdivision (c) of

this rule shall constitute a waiver

of that right and of any objection

to the taking and use of the

deposition based upon that right.

(c) Payment of expenses. Whenever

a deposition is taken at the

instance of the government, or

whenever a deposition is taken at

the instance of a defendant who is

unable to bear the expenses of the

taking of the deposition, the court

may direct that the expense of

travel and subsistence of the

defendant and his attorney for

attendance at the examination and

the cost of the transcript of the

deposition shall be paid by the

government.

-64-

(d) How taken. Subject to such

additional conditions as the court

shall] provide, a deposition shall

be taken and filed in the manner

provided in civil actions except as

otherwise provided in these rules,

provided that (1) in no event shall

a deposition be taken of a party

defendant without his consent, and

(2) the scope and manner of

examination and cross-examination

shall be such as would be allowed

in the trial] itself. The

government shall make available to

the defendant or his counsel for

examination and use at the taking

of the deposition any statement of

the witness being deposed which is

in the possession of the government

and to which the defendant would be

entitled at the trial.

(e) Use. At the trial or upon any

hearing, a part or all of a

deposition, so far as otherwise

admissible under the rules of

evidence, may be used as

substantive evidence if the witness

is unavailable, as unavailability

is defined in Rule 804(a) of the

Federal Rules of Evidence, or the

witness gives testimony at the

trial or hearing inconsistent with

his deposition. Any deposition may

also be used by any party for the

purpose of contradicting or

impeaching the testimony of the

deponent as a witness. If only a

part of a deposition is offered in

evidence by a party, an adverse

party may require him to offer all

of it which is relevant to the part

offered and any party may offer

other parts.

=65<

(f£) Objections to deposition

testimony. Objections to

deposition testimony or evidence or

parts thereof and the grounds for

the objection shall be stated at

the time of the taking of the

Geposition.

\g) Deposition by agreement not

precluded. Nothing in this rule

shall preclude the taking of a

deposition, orally or upon written

questions, or the use of a

deposition, by agreement of the

parties with the consent of the

court.

c. 26, 1944, eff. Mar. 21, 1946, as

nded Apr. 22, 1974, eff. Dec. l,

, Act July 31, 1975, P.C. 94-64, §§

94-64, 2, 3(15-19), 89 Stat. 370,

eff. Dec. 1, 1975)

-66-

APPENDIX E

Fed. R. Crim. P. Rule 16 (as amended 1966

and 1975)

Rule 16. Discovery and Inspection

(a) Disclosure of evidence DY the

government.

(1) Information subject to disclosure

(A) Statement of gefendant. Upon

request of 2 defendant the government

shall permit the defendant to inspect

and copy °! photograph: any relevant

written OF recorded statements made by

the defendant, OF copies thereof, within

the possession, custody or control of

the government, the existence of which

is known, or DY 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 tne trial made Dy the

defendant whether before or after arrest

in response to interrogation by any

person then known to the defendant to be

a government agent; and recorded

testimony of the defendant before 2a

grand jury which relates to the offense

charged. Where the defendant is a

corporation, partnership, association OF

labor union, the court may grant the

defendant, upon its motion, discovery of

relevant recorded testimony of any

witness before & grand jury who (1) was,

at the time of his testimony, so

situated as en officer or employee as to

have been able legally to bind the

defendant in respect to conduct

constituting the offense, OF (2) was at

the time of the offense, personally

involved in the alleged conduct

constituting the offense and so situated

=-67<-

—————

as an officer or employee as to have

been able legally to bind the defendant

in respect to that alleged conduct in

which he was involved.

(B) Defendant's prior record. Upon

reguest of the defendant, the government

shall furnish to the defendant such copy

of his prior criminal record, if any, as

is within the possession, custody, or

contro] 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.

(C) Documents and tangible objects. Upon

request of the defendant the government

shall permit the defendant to inspect and

copy or photograph books, papers,

documents, photographs, tangible objects,

buildings or places, or copies or portions

thereof, which are within the possession,

custody or contro] of the government, and

which are materia] to the preparation of

his defense or are intended for use by the

government as evidence in chief as the

trial, or were obtained from or belong to

the defendant.

(D) Reports of examinations and tests.

Upon request of a defendant the government

shall permit the defendant to inspect and

copy or photograph any results or reports

of physical or mental] examinations and of

scientific tests or experiments, or copies

thereof, which are 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,

and which are materia] to the preparation

of the defense or are intended for use by

the government as evidence in chief at the

trial.

-68-

(2) Information not subject to

disclosure. Except as provided in

paragraphs (A), (B), and (D) of

subdivision (a)(1), this rule does not

authorize the discovery or inspection of

reports, memoranda, or other internal

government documents made by the attorney

for the government or other government

agents in connection with the

investigation or prosecution of the case,

or of statements made by government

witnesses or prospective government

witnesses except as provided in 18 USC §

3500.

(3) Grand jury transcripts. Except as

provided in Rule 6 and subdivision

(a)(1)(A) of this rule, these rules do not

rejate to discovery or inspection of

recorded proceedings of a grand jury.

(b) Disclosure of evidence by the defendant.

(1) Information subject to disclosure

(A) Documents and tangible objects. If

the defendant requests disclosure under

subdivision (a)(1)(C) or (D) of this

rule, upon compliance with such request

by the government, the defendant, on

reguest of the government, shall permit

the government to inspect and copy or

photograph books, papers, documents,

photographs, tangible objects, or copies

Or portions thereof, which are within

the possession, custody, or control] of

the defendant and which the defendant

intends to introduce as evidence in

chief at the trial.

(B) Reports of examinations and tests.

If the defendant requests disclosure

under subdivision (a)(1)(C) or (D) of

this rule, upon compliance with such

-69-

request by the government, the

defendant, on request of the government,

shal] permit the government to inspect

and copy or photograph any results or

reports of physical or mental

examinations and of scientific tests or

experiments made in connection with the

particular case, or copies thereof,

within the possession or control] of the

defendant, which the defendant intends

to introduce as evidence in chief at the

trial or which were prepared by a

witness whom the defendant intends to

cal] at the trial when the results or

reports relate to his testimony.

(2) Information not subject to

disclosure. Except as to scientific or

medica] reports, this subdivision does not

authorize the discovery or inspection of

reports, memoranda, or other internal

defense documents made by the defendant,

Or his attorneys or agents in connection

with the investigation or defense of the

case, or of statements made by the

defendant, or by government or defense

witnesses, or by prospective government or

defense witnesses, to the defendant, his

agents or attorneys.

(c) Continuing duty to disclose. If, prior

to or during trial, a party discovers

additional evidence or material previously

requested or ordered, which is subject to

discovery or inspection under this rule, he

shall promptly notify the other party or his

attorney or the court of the existence of

the additional evidence or material.

(d) Regulation of discovery.

(1) Protective and modifying orders. Upon

a sufficient showing the court may at any

time order that the discovery or

@7Q<

inspection be denied, restricted, or

deferred, or make such other order as is

appropriate. Upon motion by a party, the

court may permit the party to make such

showing, in whole or in part, in the form

of a written statement to be inspected by

the judge alone. If the court enters an

order granting relief following such an ex

parte showing, the entire text of the

party's statement shall be sealed and

preserved in the records of the court to

be made available to the appellate court

in the event of an appeal.

(2) Pailure to comply with a request.

at any time during the course of the

proceedings it is brought to

of the court that a party has failed to

comply with this rule, the court may order

such party to permit the discovery or

inspection, grant a continuance, or

prohibit the party from introducing

evidence not disclosed, or it may enter

such other order as it deems just under

the circumstances. The court may specify

the time, place and manner of making the

discovery and inspection and may prescribe

such terms and conditions as are just.

e. Alibi witnesses. Discovery of alibi

witnesses is governed by Rule 12.1.

(Dec. 26, 1944, eff. Mar. 21], 1946, as

amended Feb. 28, 1966, eff. July 1, 1966;

Apr. 22, 1974, eff. Dec. 1, 1975,; Act July

3], 1975, P.L. 94-64, §§ 2, 3(20-28), 89

Stat. 370, 374, eff. Dec. 1, 1975; Act Dec.

12, 1975, P.L. 94-149, § 5, 89 Stat 806.)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

UNITED STATES OF AMERICA,

NO. CR 82-20TR

) MOTION FOR

vs. ) CONTINUANCE OF

TRIAL AND FILING

SILAS A. CROSS and OF MOTION DATES

ROBERT SATIACUM,

Defendants.

Defendant, SILAS CROSS, by his ttorney,

ARTHUR J. EMERY, JR., hereby moves the court

that the trial of the above entitled case,

now set for July 6, and the date for filing

motions now set for May 26, 1982, be

continued on the grounds that the case is

complex and the ends of justice require that

defendant's counsel be affored time to

prepare.

This motion is based on the annexed

affidavit of Arthur J. Emery, Jr., all the

files and records in the case, and any

evidence that may be produced at the hearing.

ae

Dated this 26th day of May, 1982.

£s/

ARTHUR J. EMERY, JR.

Attorney for Silas Cross

STATE OF WASHINGTON )

Iss.

County of Pierce )

ARTHUR J. EMERY, JR., being first duly

Sworn and upon his oath, deposes and says:

1. He is the attorney for Co-defendant,

Silas A. Cross and makes this affidavit in

Support of defendant's motion to continue

the trial date and the date set for filing

of motions herein.

2. That your affiant does not have a

great deal of experience in the Federal]

Criminal Systen.

3. That the case against Defendant

Silas Cross is an extremely complex one

involving 37 criminal counts.

4. That witnesses for the defense are

scattered throughout the country and the

situation demands that many of them be

=] 3<

interviewed personally.

That Co-defendant, Robert Satiacum

has been arraigned on charges which are

scheduled to be tried on June 28, 1982,

which is one week prior to trial herein.

That the first Satiacum trial is estimated

to Jast at least one month.

6. That the AUSA in charge of this case

has indicated if the Co-defendant's trials

are not separated he would not oppose a

continuance.

7. That this case is so unusual and

complex due to the nature of the prosecution

and the existance of novel questions of fact

and law that it is unreasonable to expect

adequate preparation for pretrial]

proceedings or for the trial itself within

the time limits previously established.

FURTHER YOUR AFFIANT SAITH NAUGHT.

Zs/

ARTHUR J. EMERY, JR.

oF4e

SUBSCRIBED AND SWORN to before me this

day of May,

1982.

/s/

26th

NOTARY PUBLIC in

for the State of

ington, residing

Tacoma.

@7$<

and

Wash-

at

APPENDIX G

RT 6/11/82 p. 3

THE COURT: OKAY. DOES THAT MEAN YOU

GUYS HAVEN'T HAD A CHANCE TO ABSORB THIS

KNOWLEDGE AND FIGURE OUT WHAT YOU'RE GOING

TO DO?

MR. IMMELT: WELL, REGARDLESS OF WHEN

JUDGE McGOVERN'S TRIAL -- THE RICO CASE GOES

TO TRIAL, IT WOULD BE MY FEELING THAT IT

WOULD BE IMPOSSIBLE FOR US TO PREPARE EVEN

FOR A JULY 6TH TRIAL. THE REASON THAT THE

RACKETEERING CASE IS BEING CONTINUED IS TO

ALLOW US AN APPROPRIATE AMOUNT OF TIME TO

PREPARE FOR THAT CASE, AND IF WE'RE GOING TO

BE NOW SWITCHING GEARS AND PREPARING FOR

THIS CASE TO GO TO TRIAL ON JULY 6TH AND

THEN TRYING IT THROUGH FIVE WEEKS OR SIX

WEEKS, THEN, OF COURSE, IT'S LIKE YOU CHANGE

ONE TO FIX THE OTHER AND --

THE COURT: HOW LONG TO YOU ANTICIPATE

THIS CASE IS GOING TO TAKE?

© ote. 3 Ae eo eee

MR. IMMELT: I UNDERSTAND FROM MR.

MUELLER THAT HIS CASE, THE GOVERNMENT'S CASE

IN CHIEF, WILL TAKE ABOUT THREE WEEKS.

MR. MUELLER: YOUR HONOR, I HAVE MADE A

VERY CONSERVATIVE ESTIMATE OF TRIAL IN THIS

CASE, IN THAT I OVERESTIMATED, I THINK, THE

TIME THAT SHOULD BE TAKEN JUST OUT OF AN

ABUNDANCE OF CAUTION. WHAT I HAVE COME UP

WITH IS APPROXIMATELY TWELVE TRIAL DAYS FOR

THE GOVERNMENT'S CASE, AND IF THE COURT IS

SITTING ON A FOUR WEEK SCHEDULE -- A FOUR

DAY A WEEK SCHEDULE AS IT OFTEN

RT 6/11/82 p. 11

LIVE WITH THAT? I'M JUST TRYING TO GET SOME

FEELING IF JUDGE MCGOVERN SAYS, NO, I CAN'T

GO TWO WEEKS, BECAUSE IT RUNS INTO --

MR. IMMELT: I DON'T HAVE ANY PROBLEM

WITH THAT.

MR. EMERY: IF YOU'RE ASKING ME, YOUR

HONOR, I FILED A MOTION SEPARATE FROM --

THE COURT: I KNOW. I THINK FOR NOW WE

HAVE TO ASSUME THAT YOU'RE GOING TO GO WITH

oP Feq

HIM. SO AT LEAST ASSUME THAT YOU'RE GOING

TO GO IN THE CASE WITH MR. SATIACUM.

MR. EMERY: I UNDERSTAND. EVEN GIVEN

THAT, I WOULD INDEPICNDENTLY, BECAUSE OF 37

COUNTS, 40 GOVERNMENT WITNESSES, LIKE TO

HAVE MORE TIME’ TO PREPARE. J WOULD WANT TO

STATE THAT FOR THE RECORD.

THE COURT: BUT YOU HAVE HAD COPIES OF

THE DOCUMENTS?

MR. EMERY: I HAVE HAD COPIES OF THE

DOCUMENTS.

THE COURT: OKAY. ‘WHY DON'T I CALL --

CAN YOU TRY --

MR. IMMELT: I CAN TRY MR. NEWSUM RIGHT

NOW.

MR. MUELLER: UNFORTUNATELY I BELIEVE

MR. NEWSUM IS OUT OF TOWN. HIS ASSOCIATE

MADE AN APPEARANCE YESTERDAY BEFORE

MAGISTRATE SWEIGERT IN CONNECTION WITH HIS

DEFENDANT ASKING PERMISSION TO GO OUT OF

TOWN FOR THE

RT 6/11/82 p.14

-78-

EITHER BE THE JOTH OR THE 17TH, OKAY?

YOU CAN THINK ABOUT IT. IF YOU DECIDE

WHERE YOU WANT YOUR LEAD TIME <-- IF YOU

THINK YOU CAN BE READY ON THE 6TH, I WILL GO

WITH YOU THE 6TH.

MR. IMMELT: OKAY.

THE COURT: THEN YOU WILL GET THE EXTRA

TIME AT THE END.

MR. IMMELT: AT THE END.

THE COURT: IF YOU WANT TO GO ON THE

12TH, I WILL GO ON THE 12TH, BUT WHAT I DO

NEED TO ASK YOU TO DO IS TO MAKE THE

DECISION FAIRLY -- LIKE RIGHT AWAY.

MR. IMMELT: WE WILL HAVE IT BY MONDAY

AT THE VERY LATEST.

THE COURT: GREAT. WE HAVE OTHER CASES

TO WORK AROUND.

MR. IMMELT: SURE.

THE COURT: I'D EITHER BETTER MOVE THEM

OR GET WAIVERS OR WHATEVER I NEED TO HAVE

DONE.

ANYWAY, JOHN IS GOING TO GET BACK TO

YOU, KIMZEY, ON WHETHER IT'S GOING TO BE THE

1OTH OR 17TH. SO MR. KIMZEY WILL CALL YOU

LATER.

I WILL ASSUME, COUNSEL, THAT YOU WON'T

NEED ME TO GET YOU STIPULATIONS ON DOCUMENTS

IN ORDER.

MR. IMMELT: NO.

THE COURT: BECAUSE IF IT'S GOING TO BE A

RT 6/16/82 p. 5

BE CONTINUED UNTIL THE FALL, OTHERWISE I

BRINK THAT THIS WOULD HAVE BEEN MORE

EXPEDITIOUSLY TAKEN CARE OF. BUT I AM IN A

PECULIAR POSITION RIGHT NOW BECAUSE FROM MY

POINT OF VIEW MY CLIENT HAS INFORMED ME THAT

MR. HERRMANN WOULD BE MAKING THE DECISIONS

FROM HERE ON IN.

THE COURT: IT'S MY UNDERSTANDING THEN,

MR. EMERY -- I HAVEN'T HEARD AN ANSWER.

THERE IS NOW A DESIRE ON YOUR CLIENT'S PART

TO PROCEED WITH A JURY, NOT TO WAIVE A JURY,

IS THAT CORRECT?

MR. EMERY: I THINK THAT THAT'S THE

BOTTOM LINE, YOUR HONOR. IT'S MORE A

QUESTION OF MR. HERRMANN WANTING PERHAPS

UNTIL MONDAY TO -- AND I HAVE BEEN RETAINED

TO BRING HIM UP TO SPEED AS TO WHERE I AM IN

THE CASE, SO THAT HE MIGHT BE ABLE TO MAKE

AN INFORMED DECISION FROM HIS PERSPECTIVE.

THE COURT: WELL, THE PROBLEM IS,

COUNSEL, THAT -- I THINK I'VE INDICATED TO

YOU THAT FROM EVERYTHING I HAVE LEARNED

ABOUT THE CASE I DO NOT SEE A NEED FOR A

CONTINUANCE IN THIS CASE, I THINK THIS CASE

SHOULD GO, AND I DON'T THINK IT IS A CASE

THAT IS EITHER THAT COMPLICATED OR THAT

LENGTHY THAT IT SHOULD REQUIRE PUTTING IT

OVER UNTIL WHAT WOULD AMOUNT TO SEPTEMBER OR

OCTOBER OR MAYBE EVEN NOVEMBER, AND THE

COURT DID EXPRESS A WILLINGNESS TO ADJUST

THE COURT DATE -- AT THAT TIME J BELIEVE

THAT WE HAD A COURT TRIAL -~- OF PUTTING THIS

RT 6/16/82 p.6

MATTER OVER UNTIL THE 12TH. IT WOULDN'T

_=61-

POSE SERIOUS PROBLEMS WITH JUDGE McGOVERN'S

CASE BECAUSE IT'S A COURT-TRIED CASE, WE CAN

MOVE IT THER QUICKLY. IF IT MEANT GOING

‘ LATE, SAVING SOME TIME BY PUTTING IN LONGER

HOURS, IT WOULD BE AN EASIER THING TO DO

THAN WITH A JURY TRIAL.

I SHOULD INDICATE THAT IT'S COME TO MY

ATTENTION THAT MR. SATIACUM AND HIS ATTORNEY .

HAVE EXPRESSED A PREFERENCE FOR THE JULY

12TH DATE, BUT IF -=- I DON'T WANT TO LEAD

ANYBODY ASTRAY HERE. IF WE ARE GOING WITH A

JURY TRIAL, I AM CONCERNED ABOUT THE JULY

12TH DATE. I AM MUCH MORE LOATHE TO PUT IT

OVER THAT WEEK BECAUSE WE HAVE -- I SUPPOSE

WE WOULD STILL FINISH IN PLENTY OF TIME, I

THINK, EVEN WITH A JURY, AND WE WOULD STILL

HAVE THE OPTION OF ASKING THEM TO STAY A

LITTLE LATER AND COME IN A LITTLE EARLIER,

BUT THINGS TAKE LONGER WITH A JURY. THERE'S

JUST NO DOUBT ABOUT IT.

SO I'M NOT GOING TO GIVE YOU ANY RULING

TODAY ON THE DATE OF THE TRIAL SINCE WE

-82-

DON'T KNOW WHETHER IT IS GOING TO BE JURY OR

NON-JURY.

NOW, WHY IS IT GOING TO TAKE UNTIL

MONDAY TO FIND OUT WHETHER YOU WANT A JURY

OR NOT?

MR. EMERY: WELL, THE CASE INVOLVES 37

COUNTS, AS THE COURT IS AWARE. THE

GOVERNMENT HAS BEEN WORKING UP THE CASE FOR

OVER A YEAR. THEY'VE GOT SOMETHING LIKE

RT. 6/16/82 p.7

40 WITNESSES SUBPOENAED. I DON'T

NECESSARILY SHARE THE COURT'S OPINION THAT

IT'S THAT SIMPLE OF A CASE. TO ME IT ISN'T

AND I'VE SPENT HOURS WITH MY CLIENT GOING

THROUGH THE COUNTS OF THE INDICTMENT, THE

VARIOUS EXHIBITS THAT THE GOVERNMENT HAS

PROVIDED US WITH, AS WELL AS EXHIBITS THAT

MY CLIENT HAS PROVIDED ME WITH. I HAVE ALSO

MADE CONTACT WITH WHAT I PERCEIVE TO BE SOME

OF THE WITNESSES, AND I DON'T FEEL THAT I

HAVE SCRATCHED THE SURFACE YET, ALTHOUGH I

DO FEEL THAT I HAVE BEEN DILIGENT, YOUR

-83-

HONOR.

THERE'S A LOT OF INEXPERIENCE ON MY PART

AND I UNDERSTAND THAT THAT'S MY PROBLEM, BUT

-- AND IT'S AN EXPLANATION -- THAT'S A

REASON RATHER THAN AN EXCUSE.

THE COURT: OKAY.

MR. HERRMANN: MAY I BE ALLOWED TO

ADDRESS THE COURT, YOUR HONOR?

THE COURT: SURELY.

MR. HERRMANN: YOUR HONOR, I'M CHARLES

HERRMANN. I PRACTICE IN TACOMA. I JUST

ACTUALLY WAS RETAINED AND MADE AN AGREEMENT

TO REPRESENT SILAS CROSS ON MONDAY.

I WAS IN THE STATE SUPREME COURT

YESTERDAY AND, THEREFORE, UNABLE TO DEVOTE

MY ENERGIES YESTERDAY. SO I HAVE SPENT ALL

MORNING WITH MR. EMERY TRYING TO BRIEF

MYSELF, READING GRAND JURY TESTIMONY, AND

THE THINGS THAT

RT 6/16/82 p 8

“ARE AVAILABLE TO ME.

IT IS JUST MY POSITION AT THIS POINT

-84-

“n

*

. 7

y 7, @

THAT I HAVE HAD A TOTAL OF MAYBE SIX OR

SEVEN HOURS, AND I THINK THE MATTER OF

WHETHER A CASE SHOULD BE TRIED TO THE COURT

OR TRIED TO THE JURY IS A SUBSTANTIAL

QUESTION. JI DON'T FEEL THAT I HAVE HAD

SUFFICIENT TIME TO GIVE MY PROFESSIONAL

ADVICE TO MY CLIENT AS TO WHETHER THE JURY

SHOULD BE WAIVED. IT MAY PROVE VERY WELL

THAT WE WOULD BE WILLING TO WAIVE THE JURY

IN THIS MATTER. I JUST AM IN A POSITION

WHERE I DON'T KNOW AND I DON'T FEEL THAT I

CAN PROPERLY --

THE CQURT: AND I WOULDN'T BE SATISFIED,

QUITE FRANKLY, MR. HERRMANN, IF YOU OR YOUR

CLIENT AT THIS POINT DID REACH A DECISION.

I THINK IT TAKES TIME. IT'S A VERY SERIOUS

STEP AND CERTAINLY SHOULD'T BE MADE WITHOUT

ADVICE OF COUNSEL, AND ADVICE OF FULLY

INFORMED COUNSEL.

MR. HERRMANN: THANK YOU, YOUR HONOR. I

DO BELIEVE THAT I HAVE -- I DO HAVE OTHER

ATTORNEYS IN MY OFFICE -- THE ABILITY TO

-85-

MORE OR LESS CLEAR MY DESK AT THIS POINT,

AND I DO FEEL THAT WE CAN REACH A DECISION

BY MONDAY, IF I JUST AM ALLOWED TWO OR THREE

MORE DAYS OF CONTINUOUS STUDY AND SOME WORK

WITH MY CLIENT ON IT; THAT WE COULD INFORM J

THE COURT BY MONDAY AS TO OUR POSITION AS TO

WHETHER WE WANT A JURY TRIAL OR NOT, IF THAT

WOULD BE

RT 6/16/82 p.9

ACCEPTABLE TO THE COURT

THE COURT: WELL, I'D PREFER IT BY

FRIDAY IF I COULD HAVE IT BECAUSE I THINK IT

WOULD HELP THE COURT IN ASSESSING EXACTLY --

MR. HERRMANN: WHEN YOU WANT THE TRIAL

DATE.

THE COURT: YES. IT WOULD HELP YOUR

CO-COUNSEL, WHO I THINK IS PROBABLY --

ACTUALLY, I KEEP THINKING MORE OF HIM THAN

OF THE COURT. I THINK YOUR CO-COUNSEL

PROBABLY WANTS TO KNOW HOW HE'S GOING TO BE

TRYING THE CASE TO SOME EXTENT, TOO.

MR. HERRMANN: CERTAINLY. COULD WE HAVE

-86-

UNTIL THE CLOSE OF THE DAY ON FRIDAY?

THE COURT: SURE, ABSOLUTELY. DO YOU

THINK THAT WOULD BE REASONABLE, COUNSEL?

MR. HERRMANN: YES, YOUR HONOR. I'LL

GET YOU OUR POSITION ON THAT BY --

THE COURT: IF YOU COULD LET ME KNOW

THEN AND ABOVE ALL LET YOUR CO-COUNSEL KNOW

THEN, THEN AT LEAST I THINK I CAN START

THINKING MORE ALONG THE LINES OF DO WE WANT

TO MOVE THE TRIAL DATE UP, HOW THE TRIAL

LOOKS IN TERMS OF HOW LONG IT'S ACTUALLY

GOING TO TAKE, AND WE WILL GO WITH THE 6TH

OR THE 12TH, OR WHAT THE STORY WILL BE.

MR. HERRMANN: WE CAN HAVE AN ANSWER BY

FRIDAY AFTERNOON.

RT 7/2/82 p. 12

UNDERSTAND NOW THAT YOU HAVE SIGNED THE

SUBSTITUTION?

THE COURT: I AM ABOUT TO DO THAT, MR.

HERRMANN.

COUNSEL, I SUPPOSE AS LONG AS WE ARE IN

OPEN COURT WE CAN GO AHEAD WITH OUR PRETRIAL

-87-

CONFERENCE OUT HERE. YOU ALL LOOK VERY

COMFORTABLE AND IT'S A LOT COOLER IN HERE

THAN IT IS IN MY CHAMBERS.

MR. MUELLER: YOUR HONOR, ONE THING THAT

I MIGHT POINT OUT IS THERE HAVE BEEN SOME

MOTIONS IN THIS CASE RELATING TO PRETRIAL

PUBLICITY. THERE HAVE BEEN THINGS OF THAT

NATURE. THER ARE MEMBERS OF- THE PRESS IN

THE COURTROOM, AND PRETRIAL CONFERENCES ARE

NOT NORMALLY CONDUCTED IN OPEN COURT.

SOMETIMES THEY ARE, BUT IF THE COURT SEES

ANY PROBLEM IN THAT NATURE, GIVEN THE ISSUES

THAT WERE RAISED ALREADY, I JUST WANTED TO

BRING THAT TO THE COURT'S ATTENTION.

THE COURT: OH, I DON'T SEE ANY

PROBLEM. IN FACT, NOW THAT I KNOW THAT

MEMBERS OF THE PRESS ARE PRESENT, IT'S

CERTAINLY MORE CONVENIENT TO STAY IN OPEN

COURT THAN TO GO INTO CHAMBERS. NO, I DON'T

SEE ANY PROBLEM WITH THAT. THERE ARE A

COUPLE OF MATTERS I WANTED TO DISCUSS WITH

COUNSEL.

PIRST OF ALL, HAVE YOU FILED YOUR VOIR

DIRE QUESTIONS, YOUR PROPOSED VOIR DIRE

QUESTIONS?

MR. HERRMANN: I HAVE, YOUR HONOR.

RT 7/2/82 p. 25

MR. MUELLER: YOUR HONOR, COUNSEL HAVE

BOTE INDICATED TO ME IN PRELIMINARY STATES

APTER HAVING RECEIVED THE DOCUMENTS THAT

THEY DON'T ANTICIPATE OR DIDN'T ANTICIPATE

OBJECTIONS TO AUTHENTICITY. ON THE OTHER

HAND, THEY WERE RELUCTANT AT THAT STAGE,

HAVING NOT FULLY EXAMINED THE DOCUMENTS

APPARENTLY, TO COMMIT THEMSELVES TO THAT.

THINK IT WOULD BE APPROPRIATE TO INQUIRE,

BECAUSE I HAVE HALF A DOZEN WITNESSES FROM

PLACES LIKE AIRLINES AND HOTELS ON CALL TO

PLY IN FROM OTHER AREAS, AND THERE ARE

VOLUMINOUS DOCUMENTS, PARTICULARLY THAT IS

INVOLVED WITH THE TRIBAL RECORDS, THAT WE

COULD SHORTEN UP THE PRESENTATION OF

SUBSTANTIALLY IF THAT'S NOT GOING TO BE AN

ISSUE.

-89-

SO I WOULD INQUIRE OF COUNSEL THROUGH

THE COURT WHETHER THEY'RE PREPARED NOW TO

INDICATE WHETHER THERE IS ANY AUTHENTICITY

OBJECTIONS TO THE DOCUMENTS THAT I'VE

PROVIDED THEM.

MR. HERRMANN: I'M NOT PREPARED TO

STIPULATE TO THE AUTHENTICIVY OF ANYTHING AT

THIS POINT IN TIME. I HAVE INDICATED TO

COUNSEL AND IT WOULD BE MY FEELINGS NOT TO

RAISE FRIVOLOUS OBJECTIONS WHEN I HAVE NO

GROUNDS TO QUESTION THE AUTHENTICITY OF ANY

PARTICULAR DOCUMENT, AND I'M NOT INTERESTED

IN DELAYING THIS TRIAL OR MAKING THINGS GO

FURTHER.

THE GOVERNMENT HAS UAD A YEAR HERE TO

PREPARE THEIR

RT 7/2/82 p. 26

CASE. WE'VE HAD A MATTER OF A FEW WEEKS

AND, FRANKLY, I HAVE TO DIRECT MY ENERGIES

IN A WAY WHICH I FEEL ARE GOING TO BEST

SERVE MY DEFENDANT, AND I HAVE NOT HAD THE

TIME OR THE OPPORTUNITY OR EVEN THE

-90-

INCLINATION AT THIS POINT IN TIME TO SIT

DOWN AND GO THROUGH THIS SOME SEVERAL

HUNDREDS OF PAGES OF DOCUMENT

THE COURT: LET ME SAY THIS, MR.

HERRMANN. IN CASE YOU HAVE ANY DOUBTS AS TO

WHAT THE COURT'S PROCEDURE IS GOING TO BE,

IF YOU THINK THAT THE FIRST TIME YOU'RE

GOING TO HAVE AN OCCASION TO GO THROUGH,

READ THE DOCUMENT AND DETERMINE WHETHER IT'S

WHAT YOU'RE NOT GOING TO OBJECT TO OR GOING

TO OBJECT TO IS GOING TO BE DURING TRIAL,

THE COURT WILL NOT SIT HERE WHILE COUNSEL

DOES THAT FOR THE FIRST TIME DURING TRIAL.

SO AT SOME POINT BEFORE NEXT TUESDAY YOU'RE

GOING TO HAVE TO FAMILIARIZE YOURSELF WITH

THOSE DOCUMENTS. IT'S NOT GOING TO BE THE

TIME TO FAMILIARIZE YOURSELF WITH THEM WHEN

THEY'RE OFFERED IN EVIDENCE.

SO, I THINK THAT -- I APPRECIATE YOUR

PROBLEM, BUT I ALSO THINK THAT YOU DO HAVE

SOME ASSISTANCE IN THIS MATTER THROUGH

CO-COUNSEL, AND IF WHAT YOU'RE TELLING ME IS

-9)]-

YOU DON'T WANT TO HOLD UP THE TRIAL, MY

QUESTION IS WHY ARE WE BRINGING IN WITNESSES

TO AUTHENTICATE DOCUMENTS IF THERE'S REALLY

NO ISSUE ABOUT THEM? SURELY THE TRIBAL

DOCUMENTS THEMSELVES WE CAN DISPENSE WITH.

RT 7/2/82 p 27

MR. HERRMANN: IT'S MY UNDERSTANDING

THAT A GREAT MANY OF THOSE ARE IN FACT

FORGERIES.

THE COURT: WELL, WHICH ONES? DO YOU

NOW NOW WHICH ONES YOU'RE GOING TO OBJECT

MR. HERRMANN: I AM AWARE OF A COUPLE OF

RESOLUTIONS THAT ARE FORGERIES. IT'S ALSO

MY UNDERSTANDING THAT SIGNATURES ON THE BACK

OF SOME CHECKS TO PETE AZURE, FOR INSTANCE,

ARE FORGERIES AND I HAVE ONLY AT THIS POINT

BITS AND PIECES OF WHAT WE FEEL AND THERE IS

A SUBSTANTIAL LIKELIHOOD THAT THEY ARE IN

PACT PORGERIES.

I ONLY HAVE SO MANY HOURS IN THE DAY. I

HAVE HAD THREE LAWYERS WORKING PULL TIME ON

-92-

THIS CASE IN MY OFFICE WITH ME. I KNOW THE

COURT INDICATED THAT ONE OF THE REASOS YOU

WOULDN'T CONSIDER OUR MOTION FOR CHANGE OF

OF THE VOLUMINOUS

m

VENUE WAS BECAUS

WORKING DAYS LEFT.

a3)

DOCUMENTS WITH ONLY

WE ARE NOW GOING TO BE DUMPED WITH

HUNDREDS OF PAGES WITH EIGHT -- OR FIVE OR

SIX HOURS OF WORKING -- NORMAL WORKING TIME

LEFT. WE ARE GOING TO HAVE TO WORK THROUGH

THE FOURTH OF JULY WEEKEND TO BE PREPARED ON

TUESDAY. I CAN ONLY DO WHAT I CAN DO AND I

CAN ASSURE THE COURT THAT WE ARE WORKING

DILIGENTLY, THAT I AM WORKING DILIGENTLY AND

I HAVE CUT LOOSE TO WORK ON THIS CASE JUST

FULL TIME AND WE'RE PUTTING IN SOMEWHERE IN

THE J

RT 7/2/82 p. 28

NEIGHBORHOOD OF 12 TO 14 HOURS A DAY ON IT

AND I HAVE ASSIGNED AT LEAST THREE OTHER

LAWYERS IN THE OFFICE TO ASSIST ME WITH IT,

AND THAT I'M BEING AS DILIGENT As I POSSIBLY

CAN BE, BUT I JUST DON'T SEE HOW I CAN SIT

-93-

HERE AND SAY TO THE COURT OR TO COUNSEL --

AND MY OBLIGATION TO MY CLIENT, OF COURSE,

IS PARAMOUNT TO MY OBLIGATION TO OPPOSING

COUNSEL -- THAT I'M GOING TO STIPULATE TO

DOCUMENTS THAT WE HAVEN'T ACTUALLY HAD AN

EFFECTIVE CHANCE TO REVIEW.

THE COURT: ALL I'M URGING YOU TO DO,

COUNSEL, IS BY ALL MEANS GET YOUR REVIEW

DONE BEFORE WE START THE TRIAL, BECAUSE I

THINK IT'S GOING TO HOLD MATTERS UP

TREMENDOUSLY IF YOUR FIRST REVIEW TAKES

PLACE WHEN THE DOCUMENT IS OFFERED IN

EVIDENCE. I AM SURE YOU DON'T WANT TO DO

THAT EITHER.

MR. HERRMANN: JI FULLY INTEND, YOUR

HONOR, TO HAVE THE REVIEW OF THE

GOVERNMENT'S EXHIBITS COMPLETED BY TUESDAY

MORNING AND I FULLY INTEND TO SPEND ALL

THREE DAYS OF THE WEEKEND WORKING FULL TIME

ON THIS CASE AND IT'S MY INTENTION TO REVIEW

THAT, AND I ASSURE THE COURT THAT I'M IN

GOOD FAITH NOT GOING TO COME IN HERE AND

-94-

START MAKING A BUNCH OF FRIVOLOUS OBJECTIONS

ON AUTHENTICITY WHERE I HAVE NO REASONABLE

CAUSE AT ALL TO BELIEVE OR QUESTION THE

AUTHENTICITY, AND I ASSURE THE COURT OF THAT.

RT 7/2/82 p. 42

PLEASE. I WOULD LIKE TO POINT OUT THAT IN

THIS CASE, BECAUSE I KNEW THAT THERE WERE

LARGE NUMBERS OF DOCUMENTS AND BECAUSE I,

BASED ON DISCUSSIONS WITH COUNSEL, DIDN'T

ANTICIPATE THERE WERE GOING TO BE

SIGNIFICANT AUTHENTICITY PROBLEMS, THE

DOCUMENTS WERE NOT ONLY TURNED OVER AT A

VERY EARLY DATE, BUT THEY WERE TURNED OVER

EACH IN ITS OWN FILE, EACH WITH ITS OWN

EXHIBIT NUMBER, CHRONOLOGICALLY MARKED, WITH

AN EXHIBIT TAG, SO THAT IT WOULD FACILITATE

COUNSEL'S REVIEW OF THE DOCUMENTS.

I DON'T QUIBBLE WITH MR. HERRMANN'S

JUDGMENT ABOUT HOW HE'S GOING TO SPEND HIS

TIME IN PREPARING HIS CASE, BUT AS A PREFACE

TO THAT, IT'S FAIRLY EASY IF THERE ARE

CLAINS THAT CERTAIN OF THESE DOCUMENTS ARE

-95-

FORGERIES AND THERE*S GOING TO BE A REAL

CONTEST OVER THEIR AUTHENTICITY, TO INDICATE

TO ME WHICH ONES THEY ARE, SO IF I THINK

THEY'RE AUTHENTIC, I CAN GET THE APPROPRIATE

WITNESS AND MAKE SURE I HAVE THEM.

THE COURT: IT'S MY UNDERSTANDING MR.

HERRMANN IS GOING TO DO THAT TO THE BEST OF

HIS ABILITY BY MONDAY AFTERNOON. IS THAT

CORRECT, MR. HERRMANN?

MR. HERRMANN: THAT'S CORRECT, YOUR

HONOR.

THE COURT: MAYBE BY TUESDAY --

MR. HERRMANN: I WOULD POINT OUT THAT

I'M JUST LITTLE BIT LIMITED BECAUSE,

AGAIN, THE STAR WITNESS HERE, THOMAS

CARPENTER, WE HAVE ATTEMPTED TO CONTACT HIM

RT 7/2/82 p. 43

AND HE HAS REFUSED TO TALK TO US, SO WE'RE

COMPLETELY IN THE DARK AS TO EXACTLY WHAT

MR. CARPENTER HAS TO SAY OR DOESN'T HAVE TO

SAY, AND ALSO MY UNDERSTANDING IS THAT THE

DOCUMENTS THAT I CAN IDENTIFY AS FORGERIES

-96-

WERE IN FACT FORGED BY HIM, AND IT PUTS ME

WERE TO STIPULATE TO THE

-- EVEN IF

4

AUTHENTICITY OF SOMETHING, IF I FIND WHEN WE

GET TO THE TESTIMONY OF HIS AND <-=- THAT SORT

OF THING THE NIGHT BEFORE HE IS SUPPOSED TO

TESTIFY, FIND THAT THERE IS EVIDENCE IN

THERE THAT WOULD LEAD ME TO BELIEVE THAT

OTHER DOCUMENTS HAVE BEEN FORGED OR THAT

THERE IS A QUESTION OF AUTHENTICITY AS FAR

AS THOSE DOCUMENTS ARE CONCERNED, I HAVE GOT

TO BE ABLE TO RESERVE THAT RIGHT. BECAUSE

I'M IN THE DARK COMPLETELY AS TO WHAT THIS

MAN ACTUALLY SAYS.

THE COURT: I THINK YOU'RE RIGHT. WHAT

I DETECT FROM MR. MUELLER, AND THE COURT

KNOWS PROBABLY LESS ABOUT THE CASE THAN ANY

OF YOU HERE, AT LEAST AT THIS POINT, I

DETECT THERE ARE BIG FILES OF DOCUMENTS THAT

PROBABLY AREN'T EVEN OPEN TO THAT QUESTION.

MR. HERRMANN: I THINK THAT THAT'S

PROBABLY TRUE, TOO, AND I HAVE ALREADY

ASSURED MR. MUELLER AlID THE COURT THAT I

a§7J<

WILL DO MY VERY BE ORT TO HAVE ALL OF

THAT STIPUL ) ME MORNING OF TRIAI

MONDAY AFTERNOON, HE HAS NUMBER FOR

TRIAL TO COMMENCE AT

EFFECTIVELY DENY MY

OF THE LAW AND DUE

CrIimown7e

ARGUMENT >;

PERSONALLY PUT IN OVER TWO HUNDRED HOURS OF

WORK BETWEEN THE 16TH AND THIS DATE. I HAVE

ALSO HAD OTHER LAWYERS ON MY STAFF WORKING

ON IT, BUT WITH THE SEVERAL HUNDRED PAGES OF

DOCUMENTS THAT WERE DROPPED ON US ON FRIDAY,

IT IS JUST ALMOST IMPOSSIBLE FOR US TO HAVE

OUR SIDE COMPLETELY PREPARED HERE.

-98-

BUT IT GOES BEYOND THE FACT -=- AND I DO

WANT TO MAKE THIS AT LEAST FOR THE RECORD.

I BELIEVE THAT THE FEDERAL RULES OF CIVIL

PROCEDURE IN CRIMINAL CASES ARE IN FACT A

DENIAL OF EQUAL PROTECTION AND DUE PROCESS

TO THE DEFENDANT. I BELIEVE IT'S THE LAST

VESTIGE OF AN ARCHAIC DINOSAUR THAT IS NO

LONGER STOOD FOR IN THE FEDERAL CIVIL

SYSTEM, IN THE STATE CIVIL SYSTEMS AND EVEN

IN THE STATE CRIMINAL SYSTEMS.

I WOULD POINT OUT IN SUPPORT OF THIS

THAT WE DO HAVE THE ABILITY, REGARDLESS OF

HOW MUCH TIME WE HAVE TO PREPARE, TO

ACTUALLY MAKE DISCOVERY AND YET THE

GOVERNMENT IS AN ENTIRELY FAVORED PARTY.

THEY HAVE THE

RT 7/6/82 Vol A-l p. 4

RIGHT TO SUBPOENA PEOPLE OUT OF THEIR HOMES,

TO BRING THEM IN IN FRONT OF THE GRAND JURY

WITHOUT THE AID OR ASSISTANCE OF COUNSEL IN

THE ROOM, TO GET ALL OF THE DISCOVERY THEY

WANT, YET WE DO NOT HAVE THE SAME RIGHT.

-99-

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-100-

SPEAK TO US.

WE MADE ARRANGEMENTS TO TALK TO MR.

AZURE AND HE AGREED TO MEET WITH US. MY

CLIENT AND I, MR. CROSS, GOT ON AN AIRPLANE,

WENT CLEAR UP TO SITKA, ALASKA. WHEN WE

RT 7/6/82 Vol A-l p. 5

T

ARRIVED THERE, WE WERE THEN INFORMED THAT

MR. AZURE WAS INDEED REPRESENTED BY COUNSEL

IN THIS MATTER AND THAT HE WAS NOT GOING TO

SPEAK TO US AND WE HAVE HAD NO OPPORTUNITY

TO TALK WITH HIM.

SO THE CONDITIONS, IF THIS WERE

ANALOGOUS TO STATE COURT, HAVE BEEN SET. WE

HAVE ATTEMPTED TO CONTACT THESE TWO

INDIVIDUALS AND WE HAVE BEEN REFUSED ANY

MEETING OR ANY INTERROGATION OF THEM, PERIOD.

I WOULD ALSO LIKE TO POINT OUT THAT THE

GOVERNMENT PROVIDED US WITH SOME OF THE

JENCKS MATERIAL AND SOME OF THE RESPONSE TO

OUR REQUESTS UNDER THE BRADY RULE, AND I DO

NOT THINK THAT THAT RESPONSE HAS BEEN IN

GOOD FAITH. I THINK, FIRST OF ALL, HE HAS

-101-

INFORMED THE COURT THAT HE IS WITHHOLDING

SOME OF THE JENCKS MATERIALS ON SOME OF THE

KEY WITNESSES, INCLUDING MR. CARPENTER.

AFTER SOME 37 HOURS OF OVERTIME OVER THE

FOURTH OF JULY WEEKEND, I HAD DROPPED ON ME

AT 6:30 LAST NIGHT AT MY OFFICE ANOTHER

COUPLE HUNDRED -- A HUNDRED OR SO PAGES OF

WHAT IS NOW GOING TO -- THE PETER ASURE

GRAND JURY TESTIMONY. THIS HAS BEEN

EXTREMELY PREJUDICIAL TO ME TO HAVE TO FIGHT

THIS KIND OF THING COMING INTO THIS COURT.

I ALSO WOULD POINT OUT -- AND I HAVE

PROVIDED COPIES OF EXHIBITS TO THE COURT --

WHICH IS THE PROSECUTER'S BRADY RESPONSE,

WHICH IS IN ESSENCE A COPY OF THE PLEA

BARGAINING AGREEMENT AND THE GOVERNMENT'S

RT 7/6/82 Vol A-l p. 6

MEMORANDUM ON SENTENCING, AND I AM AWARE

THAT THE PROSECUTOR HAS FURTHER EXCULPATORY

INFORMATION THAT HE HAS NOT PROVIDED US, AND

I PROVIDED YOU WITH A COPY OF SEVERAL

AFFIDAVITS AND EXHIBITS THAT WERE GIVEN BY

-102-

MY CLIENT TO THE FBI IN SUPPORT OF HIS

POSITION WHEN THE INVESTIGATION WAS BEING

CARRIED ON; NONE OF THOSE MATERIALS WERE

PROVIDED BACK TO ME, AND WE NO LONGER HAVE

COPIES OF SOME OF IT, IN RESPONSE TO MY

BRADY REQUEST.

I WOULD ALSO UNDERSTAND THAT A MR.

ZDERIC AND A MR. BRAME BOTH TESTIFIED BEFORE

THE GRAND JURY, THEN AND THERE GAVE

INFORMATION AND TESTIMONY TO THE

PROSECUTOR'S OFFICE THAT IS EXTREMELY

EXCULPATORY IN NATURE. NOW, I AM AWARE OF

THAT TESTIMONY AND I HAVE BEEN ABLE TO SPEAK

WITH THOSE INDIVIDUALS, BUT IT CERTAINLY

SHOWS THAT THE PROSECUTOR HAS NOT PROVIDED

ME WITH THE EXCULPATORY EVIDENCE THAT HE HAS

IN HIS POSSESSION.

I WOULD FURTHER POINT OUT THAT IN THE

GOVERNMENT'S MEMORANDUM ON SENTENCING, WHICH

I PROVIDED TO THE COURT, MR. MUELLER SIGNED

A DOCUMENT THAT SAYS THAT THE GOVERNMENT HAS

STRONG EVIDENCE WHICH TENDED TO SHOW THAT

-103-

MR. CARPENTER HAD BEEN MAKING FALSE

STATEMENTS TO THEM DOWN THERE, YET NOTHING

OF THAT KIND IS FORTHCOMING IN THEIR

RESPONSE TO THE BRADY MATERIAL.

THE COURT HAS INDICATED TO ME THAT

YOU'RE NOT GOING TO ALLOW ME TO CALL MR.

MUELLER AS A WITNESS IN THIS

RT 7/6/82 Vol. A-l p. 7

MATTER. I HAVE REQUESTED UNDER THE ONLY

MEANS AVAILABLE TO ME UNDER THE RULES, UNDER

THE BRADY CASE, FOR ALL EXCULPATORY

INFORMATION, AND YET NOTHING HAS BEEN

PROVIDED TO ME WHATSOEVER THAT WOULD SHOW OR

DEMONSTRATE WHAT EVIDENCE HE HAS THAT TENDS

TO SHOW THAT CARPENTER WAS GIVING FALSE

STATEMENTS TO THE AUTHORITIES.

SO, BEYOND THE MOTION TO SEVER, I AM

MOVING FOR A CONTINUANCE OF THIS CASE AT

THIS TIME FOR TWO REASONS: BASICALLY THAT I

HAVE HAD INADEQUATE TIME TO PREPARE THE

DEFENSE OF MR. CROSS, AND THAT I ACTUALLY

HAVE THE INABILITY TO PREPARE BECAUSE OF THE

-104-

RULES OF PROCEDURE AND THE BAD FAITH

RESPONSE OF THE PROSECUTOR TO MY JENCKS AND

BRADY REQUESTS, AND I DO WANT TO TAKE THE

DEPOSITIONS OF -- AND PART OF MY MOTION IS

TO TAKE THE DEPOSITIONS OF THOMAS CARPENTER

AND PETER AZURE.

THIRD, I HAVE A MOTION IN LIMINE, A COPY

OF WHICH I THINK HAS BEEN PROVIDED TO THE

COURT. IN READING THE GRAND JURY TEST

THAT HAS BEEN MADE AVAILABLE TO ME, IT'S

OBVIOUS TO ME THAT THE PROSECUTOR INTENDS TO

MAKE A SUBSTANTIAL ISSUE OUT OF THE FACT

THAT AN INVESTIGATOR HIRED BY THE TRIBE, MR.

J. BENEDICT ZDERIC, WAS DISBARRED FROM THE

PRACTICE OF LAW IN THE STATE OF WASHINGTON.

I HAVE PROVIDED YOU WITH A COPY OF THE

OPINION DISBARRING MR. ZDERIC , AND A CLOSE

READING OF THAT WILL REVEAL THAT THERE WAS

NO DISHONESTY INVOLVED. IT WAS RATHER GROSS

RT 7/6/82 Vol A-l p. 10

THANK YOU, YOUR HONOR.

THE COURT: THANK YOU. MR. MUELLER, DO

-105-

YOU WANT TO RESPND TO SOME OF THESE? I

WOULD LIKE TO HEAR FROM YOU ON -- I WILL

TELL YOU RIGHT NOW THAT THE COURT IS NOT

GOING TO ENTERTAIN THE MOTION TO SEVER ON

THE GROUNDS -- THE FACT THAT WE ARE

PROCEEDING SIMULTANEOUSLY WITH JURY AND

NON-JURY. I DO RECOGNIZE THERE MAY BE

SOMEWHAT DIFFERENT PROBLEMS THAT ARISE THAN

IN THE ORDINARY CASE. WE ARE ALL ALERTED TO

IT, WE WILL ALL BE SENSITIVE TO IT, AND WE

WILL PROCEED ACCORDINGLY. I DO NOT SEE ANY

OF THE PROBLEMS AS INSURMOUNTABLE OR

PROBLEMS THAT WOULD IN ANY WAY JEOPARDIZE

THE FAIRNESS OF EITHER TRIAL OR EITHER

DEFENDANT. THE FACT THAT THERE ARE

DIFFERENT TRIERS OF FACT HAPPENS IN CRIMINAL

CASES AND WE WILL WORK THE PROBLEMS OUT AS

WE ARRIVE AT THEM.

I GUESS WHAT I'M -- I WOULD LIKE TO HEAR

YOUR RESPONSE ON THE DEPOSITIONS, MR.

MUELLER, AND WHAT I'M MOST CONCERNED ABOUT

IS THE ALLEGATIONS THAT THERE IS BRADY

-106-

MATERIAL THAT HAS NOT BEEN FURNISHED. AS

FAR AS THE FACT THAT THE BRADY MATERIAL MAY

BE VOLUMINOUS IN NATURE, THE COURT WILL NOT

GRANT A CONTINUANCE ON THOSE GROUNDS. I

WILL, HOWEVER, ENTERTAIN ANY MOTIONS IN THE

COURSE OF TRIAL, FOR INSTANCE -- I DON'T

KNOW IF ANY OF THE WITNESSES FOR WHOM YOU

FURNISHED THE MATERIALS LAST NIGHT ARE BEING

CALLED TODAY. IF THEY ARE, I AM GOING TO

RT 7/6/82 Vol. A-l p. 33

CROSS-EXAMINATION OF THE WITNESS, WHICH I

THINK WOULD PROBABLY BE ADEQUATE TIME.

IF THERE ARE NO FURTHER PROBLEMS. I

WOULD LIKE TO GET THE JURY UP HERE.

MR. HERRMANN: YOUR HONOR, I DON'T THINK

YOU -= EXCUSE ME -- SPECIFICALLY RULED ON MY

MOTION FOR A CONTINUANCE OR MY MOTION TO

TAKE DEPOSITIONS.

THE COURT: I'M SPECIFICALLY GOING TO

DENY THE MOTIONS, MR. HERRMANN. OKAY. BUT

WITH THE QUALIFICATION THAT IF YOU NEED

ADDITIONAL TIME DURING TRIAL IN ANY

-107-

EMERGENCY SITUATION, PLEASE LET ME KNOW AND

WE WILL TRY TO ACCOMMODATE THAT.

WHY DON'T WE BRING UP THE JURY. ANY

PROBLEM WITH GETTING STARTED WITH JURY VOIR

DIRE AT THIS TIME?

MR. MUELLER: NO.

MR. HERRMANN: NONE, YOUR HONOR.

THE COURT: I'M GOING TO TAKE A BRIEF

RECESS, COUNSEL, TO GET THEM UP HERE.

(WHEREUPON, A RECESS WAS HAD.)

THE COURT: CRIMINAL CASE 82-20R, UNITED

STATES OF AMERICA VERSUS ROBERT SATIACUM AND

SILAS A. CROSS.

COUNSEL, PLEASE MAKE YOUR APPEARANCED.

MR. MUELLER: PETER MUELLER FOR THE

UNITED STATES, YOUR HONOR.

MR. WILSON: DAVID WILSON FOR THE UNITED

RT 7/9/82 p. 556

Q YOU WOULD HAVE ONLY PARTICIPATED IN THE

PREPARATION FROM THE MICROFILM FOR THE

PRESENTATION HERE TODAY IN COURT?

A THE SIGNATURE CARD ITSELF IS NOT FROM

-108-

MICROFILM RECORDS. THE SIGNATURE CARD

IS A COPY OF THE ORIGINAL SIGNATURE CARD

THAT THE BRANCH HAD ON FILE.

I SEE.

THE REST OF THE RECORDS ARE MICROFILM

COPIES.

MR. HERRMANN: OKAY. I HAVE NO

OBJECTION TO THE ADMISSIBILITY OF THIS.

THE COURT: IN THAT CASE, EXHIBIT 9

IN ITS ENTIRETY WILL BE ADMITTED.

DIRECT EXAMINATION (CONTINUED)

BY MR. MUELLER:

Q

WITHOUT GOING INTO THE SPECIFIC CONTENTS

OF EXHIBIT 9, MR. WETMORE, CAN YOU

BRIEFLY DESCRIBE HOW EXHIBIT 9 IS

ORGANIZED, THAT IS, EXHIBITS 9A THROUGH

90?

YES. EACH MONTHLY STATEMENT IS SHOWN

AND THEN FOLLOWING THE MONTHLY STATEMENT

THE DEPOSIT SLIPS ARE SHOWN AND THEN THE

CHECKS THAT ARE PAID AGAINST THE

ACCOUNT, COPIES OF THEM FOLLOW THAT. SO

-109-

WE HAVE THE STATEMENTS, THEN THE

DEPOSITS, THEN THE CHECKS.

Q WITH THE PARTICULAR MONTH INVOLVED?

‘ RIGHT, FOR EACH MONTH.

Q AND THEN, FOR EXAMPLE, 9B IS THE

STATEMENT FOR THE MONTH OF MAY, 1980, IS

THAT CORRECT?

= 779/62 p. 557

A YES, FOR THE FULL MONTH, MAY OF ‘80.

Q DOES THE STATEMENT FOR THE MONTH OF MAY

1980 REFLECT ANY CHECKS OR DEPOSITS FOR

THAT MONTH?

A MAY 1980. THE ONLY ACTIVITY IS A

SERVICE CHARGE. THERE ARE NO DEPOSITS

OR CHECKS.

Q AND THEREFORE THERE'S NOTHING THAT

FOLLOWS THAT PAGE, IS THAT CORRECT?

A THAT'S CORRECT.

Q NOW, WITH RESPECT TO JUNE OF 1980, IS

THAT EXHIBIT 9C?

A YES.

Q AND 9C, DOES THAT HAVE INCLUDED IN IT

-110-

THE STATEMENT, AS WELL AS COPIES OF ALL

CHECKS AND DEPOSITS WRITTEN ON THE

ACCOUNT DURING THE MONTH OF JUNE?

YES. THE MONTH OF JUNE HAS THE DEPOSIT

THAT WAS MADE AND THE CHECKS THAT WERE

PAID AGAINST THE ACCOUNT.

AND DOES THAT FOLLOW FOR THE REST OF THE

EXHIBITS, 9D THROUGH 90?

YES, IT DOES.

MR. MUELLER: COULD THE WITNESS BE

SHOWN PLAINTIFF'S EXHIBITS 12, 13, 14, 15

AND 20?

Q

PRIOR TO COMING TO COURT, HAVE YOU HAD

OCCASION TO EXAMINE THESE EXHIBITS?

YES, I HAVE.

CAN YOU IDENTIFY THEM?

THESE EXHIBITS ARE CHECKS THAT HAVE BEEN

POSTED AGAINST

RT 7/9/82 p. 558

Q

A

THE ACCOUNT.

THE SAME ACCOUNT THAT'S INVOLVED?

RIGHT, THE SAME ACCOUNT.

-lll-

ca) fi N {J

ep) m m%

- 2 ~ ~Ar 3) oO

fx, tA - Ww) = A iJ fx,

w (xs am] Ww) «ct = ° Oo {J

MG ba { {J «<t fi] a m

© —E4 —~ = ba yA w f4 2)

fx] = Oo ba ee £4 N . w a (i) (

4 ~ 2 ©] m ba ™ m% {x} . Ww) >

VU «c E4 > = 7 N iu] A (1) ian oO f)

a | a ~- ~wr A - m eo peo

fx, Ay mm «c w”) {2} ™N ~ = > «c N fa f4

oO {1} {x} {x} ors w > fx)

= (xs m £4 E4 ~ ™N > =) ti) ta

w) ta fxs _ «x Ns ba a {x} = a m%

{} oO «c © a N ~ bs =x3 «x 4 «<e

ba A ba = | wT ~ {4 . =

Ay f Ar ~ A 2 | ~ > Ta) ~ << a E+

oO a - 4 = oO {2 Aa ~ N {x} x > <

Oo +> ba ba . © ~ > «ct w) > {1 «ct peo a

oJ ™N Ar N {J {1 2) a -

a. 2. ~— A hI “ ~ an en S eo “

“o & ' e . m £4 ** co 60g {x oe © ' 7

x3 be i m% m% Oo f4 m™ mm «c yw % > 1

Ea tJ oO * ©) ba {] +. {) * fs) fE4

© . fl 4 a 4 {] = = t4 — {J 4 > — A mm {J

fi “” {2 “”) 3 Oo m% m™ A 4 — om = m% m™% = J ba => w”)

Ww) J m ©) {J 4 ca «x {«) - —? {J «ct 2 a i) Aa oO oO

oO «c «t 4 >) ae | © > = {xs oO a | O © => eo) . x

4 fe t+ = mm © =: {x = fr, © > ~—r © = ~ a E4

f4 (2 roa) > ra | m be ™N +a | rm Oo *

~% {1} {0 . oO {x} w . b+ {1} . {] oO . N f4 Aa {x}

fa «< t+ °x3 mm mm > 3 «ct = m Z M9) m% A x3 > A m%

~m te [4 {x} z= t4 3 =. ae > Zs t+ = a ©} - i

ct $3 m = ~ ~ — «ct os a = = os

© ha ~ {x} {J rm 4 «c «<< ba -

Qa ‘a 'C w“ A © © Oy ™N {x} = w a

a ps ~< {J a a = © ™N = uw oO (1) a

«ct ~ fa] be | et fl tx) _™N A —N © > 4

a ‘o) o- bs

bs b4 i @ oO «ct Pi

> > Cc 4 323 3x3

o << oa fa fa ow ” E4 £4 a “ee

A YES, THOSE ARE ALSO COPIES OF CHECKS

THAT ARE POSTED AGAINST THE SAME ACCOUNT

THAT WE'VE BEEN TALKING ABOUT,

RT 7/9/82 p. 559

CONSULTANT SERVICES UNLIMITED.

Q THOSE INDIVIDUAL CHECKS, ARE THEY ALSO

CONTAINED IN EXHIBIT 9 ==

A YES,

Q <-- UNDER THE APPROPRIATE MONTH?

A YES, CONTAINED IN EXHIBIT 9 UNDER THE

APPROPRIATE MONTH, YES.

MR. MUELLER: OFFER 25 AND 27A AND

B IN EVIDENCE, YOUR HONOR.

THE COURT: THEY WILL BE ADMITTED.

MR. MUELLER: COULD THE WITNESS BE

SHOWN 29, 32, 35 AND 36K?

THE CLERK: I'M SORRY, COUNSEL.

MR. MUELLER: PARDON ME?

THE CLERK: NUMBERS AGAIN.

MR. MUELLER: 29, 32, 35, 36K.

Q HAVE YOU EXAMINED THOSE PREVIOUSLY

BEFORE COMING TO COURT TODAY?

-1l13-

A YES.

Q AND CAN YOU IDENTIFY THOSE?

A YES, THESE ARE AGAIN COPIES OF CHECKS

THAT ARE POSTED AGAINST THE ACCOUNT AND

THEY'RE ALSO =-=- THE SAME COPIES ARE

INCLUDED IN EXHIBIT 9.

MR. MUELLER: OFFER 29, 32, 35 AND

36K IN EVIDENCE, YOUR HONOR.

RT 7/9/82 p. 560

THE COURT: THEY WILL BE ADMITTED:

MR. MUELLER: AND COULD THE WITNESS

BE SHOWN PLAINTIFF'S EXHIBITS 40, 41 AND 44?

Q HAVE YOU EXAMINED THOSE BEFORE COMING T

COURT TODAY?

A YES, I HAVE.

Q AND CAN YOU IDENTIFY THEM?

An YES, THESE ARE <= THEY'RE COPIES OF

CHECKS POSTED TO THE ACCOUNT, PLUS

CHECKS THAT WERE INCLUDED ON DEPOSITS IN

THE ACCOUNT. THEY'RE COPIES AND ALSO

THESE COPIES ARE INCLUDED IN THE EXHIBIT

9.

-114-

NOW, WITH RESPECT TO THE RECORDS THA™

ARE MAINTAINED WITH A PARTICULAR

CHECKING ACCOUNT, WHEN A DEPOSIT, SAY,

OF A CuECK FROM ANOTHER BANK IS MADE TO

THAT ACCOUNT, DOES RAINIER BANK KEEP A

COPY OF THE CHECK THAT IS ACTUALLY

DEPOSITED, IN ADDITION TO THE AMOUNT

BEING DEPOSITED?

YES. WE KEEP A COPY OF THE DEPOSIT SLIP

AND THEN THE ACCOMPANYING CHECKS THAT

ARE LISTED ON THAT DEPOSIT SLIP.

SO WHEN YOU'VE INDICATED THAT EXHIBIT 9

AND SOME OF THESE EXHIBITS CONTAIN

DEPOSITS, DO THEY INCLUDE COPIES OF ANY

CHECKS THAT WERE ACTUALLY DEPOSITED INTO

THE ACCOUNT?

YES, THEY DO.

MR. MUELLER: I WOULD OFFER IN

EVIDENCE 40, 4] AND 44, YOUR HONOR.

THE COURT: ALL OF 41?

MR. MUELLER: PARDON ME?

RT 7/9/82 p. 561]

-115-

THE COURT: ALL OF 41?

MR. MUELLER: LL OF 40 AND JUST

411A.

THE COURT: ALL OF 40 WILL BE

ADMITTED. 41A WILL BE ADMITTED.

MR. MUELLER: AND COULD THE WITNESS

BE SHOWN --

THE COURT: JUST A MINUTE,

COUNSEL. 44?

MR. MUELLER: EXCUSE ME, YOUR HONOR?

THE COURT: WAS 44 BEING OFFERED?

MR. MUELLER: YES, YOUR HONOR.

THE COURT: 44 WILL BE ADMITTED.

MR. MUELLER: 5S1JA AND B, PLEASE.

THE COURT: IS THERE GOING TO ANY

OBJECTION TO 51A AND B? WHAT ELSE ARE YOU

OFFERING WITH THIS WITNESS, COUNSEL, OR IS

THIS IT?

MR. MUELLER: THIS IS THE LAST ONE.

MR. HERRMANN: YOUR HONOR, I'M

GOING TO OBJECT AT THIS TIME. I WOULD LIKE

TO HAVE ARGUMENT AT SIDEBAR.

-116-

THE COURT: ARE YOU OBJECTING TO

51A AND B?

MR. HERRMANN: YES.

THE COURT: WELL, LET'S HEAR THE

WITNESS IDENTIFY IT FIRST SO I AT LEAST KNOW

WHAT WE ARE TALKING ABOUT BEFORE WE ARGUE IT.

COUNSEL, DO YOU WANT TO HAVE THE WITNESS

IDENTIFY 51A AND B?

MR. MUELLER: YES.

RT 7/9/92 p. 562

Q WOULD YOU EXAMINE PLAINTIFF'S EXHIBIT

51A AND B AND TELL ME IF YOU CAN

IDENTIFY THOSE, PLEASE?

A EXHIBIT 51A IS A COPY OF A CHECK THAT

WAS POSTED AGAINST THE CONSULTANT

SERVICES ACCOUNT AND IS ALSO INCLUDED IN

EXHIBIT 9.

Q IS 51A A COPY OF THE DEPOSIT SLIP AND A

CHECK WHICH WAS DEPOSIT™D INTO THE

CONSULTANT SERVICES UNLIMITED ACCOUNT?

A YES, IT WAS.

Q AND IS THAT ALSO INCLUDED IN EXHIBIT 9

-117-

UNDER THE APPROPRIATE MONTH?

A YES.

THE COURT: IS IT IN EVIDENCE

ALREADY THEN? IT'S BEEN ADMITTED AS PART OF

EXHIBIT 9?

MR. MUELLER: YES. I AM JUST

TRYING TO IDENTIFY THESE SEPARATE EXHIBITS.

MR. HERRMANN: JI HAVE AN OBJECTION

THAT I WOULD LIKE TO -=- I DON'T KNOW IF THE

COURT WANTS ME TO ARGUE IT IN FRONT OF THE

JURY.

THE COURT: WELL, LET'S GO TO

SIDEBAR.

(THE FOLLOWING PROCEEDINGS HELD AT

SIDEBAR. )

THE COURT: THE DOCUMENT IS ALREADY

IN EVIDENCE,

MR. HERRMANN: I UNDERSTAND THAT,

YOUR HONOR. I WOULD LIKE TO PUT ON THE

RECORD THAT THIS IS EXACTLY

RT 7/9/82 p. 563

THE KIND OF PREJUDICE THAT I MADE MY MOTION

-118-

ry

Ha

FOR A CONTINUANCE FOR IN THE RST PLACE. I

BELIEVE THAT FOR US TO PROCEED IN THIS

MANNER IS A DENIAL OF DUE PROCESS. I THINK

IT IS A DENIAL OF EQUAL PROTECTION. I KNOW

HOW TO HAVE NOTEBOOKS HERE THAT ARE

CROSS-REFERENCED BETWEEN WITNESSES, BUT <--

THE COURT: IF YOU TALK THIS LOUD

WE MAY AS WELL NOT HAVE THE SIDEBAR.

MR. HERRMANN: I'M SORRY. I'M NOT

-

TRYING TO. I KNOW HOW TO PREPARE A CASE

WHERE IT'S CROSS REFERENCES [sic] AND YOU

HAVE THINGS AT YOUR FINGERTIPS AND YOU DO

HAVE TIME TO EXAMINE THESE THINGS. I HAVE

NOT HAD THE TIME TO DO IT, AND I THINK THAT

NOT ONLY THE TIME FOR PREPRATION BUT ALSO

THE RULES OF DISCOVERY THAT ALLOW THE

PROSECUTOR TO ASSEMBLE ALL THIS INFORMATION

OVER A PERIOD OF A YEAR IS IN FACT A DENIAL

OF EQUAL PROTECTION, AND I THINK WHAT WE ARE

SEEING RIGHT NOW IS FOR ME TO BE BARRAGED

WITH 51, 42, 44, 56, THAT KIND OF THING, AND

NOT HAVE THE TIME TO EVEN LOOK AT THESE

-119-

DOCUMENTS, LET ALONE CROSS-REFERENCE THEM,

BECAUSE IT ISN'T --

THE COURT: FIRST OF ALL, COUNSEL,

YOU ARE SPEAKING TO. LOUDLY. LET'S FINIS#

WITH THIS WITNESS. THIS SOUNDS LIKE A VERY

GENERAL OBJECTION WHICH DOES NOT GO TO THE

SPECIFIC DOCUMENT SO THERE IS NOTHING I CAN

CURE AT THIS POINT WITH THE WITNESS. LET'S

FINISH THE

RT 7/9/83 p. 572

WE WILL SEE YOU BACK HERE OW MONDAY

MORNING. WE WILL START AT OUR USUAL TIME,

WHICH IS 9:30. SO IF YOU WILL BE IN THE JURY

ROOM NO LATER THAN 9:20.

YOU ARE EXCUSED FOR THE DAY AND IF YOU

WILL RETIRE TO THE JURY ROOM NOW, PLEASE.

HAVE A NICE WEEKEND.

COUNSEL, IF YOU WILL REMAIN A MOMENT,

PLEASE.

(THE JURY RETIRED TO THE JURY ROOM.)

THE COURT: NOW, MR. HERRMANN.

MR. HERRMANN: YOUR HONOR, I DO NOT

-120-

WANT TO BE ARGUMENTATIVE AND I DO NOT WANT

TO TAKE UP A LOT OF THE COURT'S TIME, BUT I

REALLY SINCERELY FEEL A DISABILITY OVER HERE

AT THE TABLE TO HAVE SUCH SEVERAL HUNDRED =--

WHAT APPEAR TO ME TO BE SEVERAL HUNDRED

PAGES OF EXHIBITS RUN AND, BOOM, ADMITTED,

EXHIBITS THAT I HAVE NOT HAD PROPER TIME TO

THOROUGHLY ANALYZE, AND I MAY HAVE

OBJECTIONS TO THE ADMISSIONS OF ADMITTING

THEM INTO EVIDENCE THAT ARE BEYOND THE MERE

ARE THEY AUTHENTIC. THERE ARE OTHER

OBJECTIONS BESIDES THEY ARE -- THEY HAVEN'T

LAID THE AUTHENTICITY BASIS, AND I DO FEEL

THIS IS A RESULT OF THE SUBJECT MATTER THAT

I MADE IN MY MOTION FOR A CONTINUANCE AND

FOR THE ABILITY TO TAKE SOME DISCOVERY, AND

I GUESS MORE THAN ANYTHING I WANT TO NOTE ON

THE RECORD THE PREJUDICE I WAS TALKING ABOUT

IS REAL.

THE PROSECUTION IS HERE WITH EVERYTHING

ALL TABBED, INDEXED, AND CROSS-REFERENCED.

I KNOW HOW TO PREPARE A

-121-

RT 7/9/82 p. 574

NOW, IF YOU'RE FEELING THAT YOU MAY HAVE

HAD SOME BUT THAT YOU FELT PRESSURED INTO

=

ts

=

SOME KIND OF AGREE TO EXHIBIT 9, IF

THAT'S YOUR OBJECTION, LET ME KNOW AND I

WON'T HOLD YOU TO IT.

MR. HERRMANN: FOR INSTANCE, WHAT

HAVE WE EVEN ADMITTED? LIKE 15, MAY I ASK

THE COURT WHETHER WE ADMITTED ALL OF 15 OR

JUST 15A?

THE COURT: AS I UNDERSTAND IT <==

HOLD ON A MINUTE -- WE HAVE ONLY ADMITTED

15a.

MR. HERRMANN: A?

THE COURT: THAT'S ALL THAT'S BEEN

OFFERED; A.

MR. HERRMANN: JUS% 15A?

THE COURT: 115A.

MR. HERRMANN: YOUR HONOR, MY

OBJECTION IS REALLY NOT TO THE ADMISSION OF

THESE RECORDS. I THINK THAT PROBABLY MOST

OF THESE RECORDS WOULD COME IN, AND I'M

-122-

REALLY NOT MAKING AN OBJECTION HERE TO THE |

ADMISSIBILITY OF THESE RECORDS. WHAT I'M

TRYING TO REGISTER TO THE COURT HERE IS THAT

I FEEL PREJUDICED AND I FEEL MY CLIENT IS TO

ASSISTANCE OF COUNSEL AS FAR AS THE

CROSS-EXAMINATION, THE KINDS OF OBJECTIONS

THAT I COULD BE RAISING OR MIGHT NOT BE

RAISIN I DON'T KNOW. I'M == I FEEL THAT

I'M PREJUDICED AT THIS TIME.

THE COURT: I THINK SOME OF THAT

MAY BE CURED

RT 7/21/82 p. 2143

MATERIAL CONTAINED IN THEM, AND I HAVE

REQUESTED SOME RESEARCH ON IT AND I WILL

WANT TO REFER YOU TO THE CASE OF U.S. V.

TIERNEY, IT'S A 9TH CIRCUIT CASE, 424 F.2D

643, WHICH LOOKS PRETTY CLOSE IN POINT, IF

YOU LOOK PARTICULARLY AT HEADNOTE NUMBER

SEVEN. IT WOULD INDICATE THAT WHERE <-=- OR

AT LEAST THE WAY THE COURT READS IT IT WOULD

INDICATE THAT WHERE THE WITNESS CONCERNED IS

-123-

THE DEFENDANT'S OWN WITNESS, THAT IN FACT

THE NEED FOR THE GRAND JURY TESTIMONY WOULD

NOT BE ONE THAT THE COURT HAS TO COPE WITH

AND THAT IT WOULD NOT BE ERROR FOR THE COURT

TO DENY THE GRAND JURY TRANSCRIPTS.

I GUESS WHAT I WOULD LIKE FROM YOU IS

ANY AUTHORITY TO THE CONTRARY YOU SEE. I!

THINK WE ALL KNOW THAT ANY GRAND JURY

TESTIMONY CAN ONLY BE PRODUCED ON A SHOWING

OF PARTICULARIZED NEED. NOW, WHERE THERE IS

A NEED FOR IMPEACHMENT I CAN SEE THE

PARTICULARIZED NEED, BUT AS FAR AS POSSIBLE

EXCULPATORY STATEMENTS MADE BY THE

DEFENDANT'S OWN FAVORABLE WITNESSES, I HAVE

REAL TROUBLE SEEING A NEED THERE.

I AM JUST GIVING YOU THE AUTHORITY I AM

GOING ON AND MY TENDENCY RIGHT NOW IS TO SAY

NO.

MR. HERRMANN: I UNDERSTAND THE

COURT'S RULING, AND IF WE CAN COME UP WITH

SOMETHING TO THE CONTRARY, WE WILL PROVIDE

IT. IF NOT, WE WON'T.

-124-

THE COURT: I MUST SAY THAT PACED

WITH 100 OR

RT 7/21/82 p. 2144

GRAND JURY TESTIMONY, IF THERE

MORE PAGES 0O

rr

IS REALLY NO RIGHT TO IT, THE COURT WOULD

JUST AS SOON NOT REVIEW THAT IN ITS SPARE

TIME.

MR. HERRMANN: I UNDERSTAND.

THE COURT: IF YOU CAN COME UP WITH

SOMETHING, PLEASE LET ME KNOW. IF NOT, THAT

WILL BE THE RULING, AND I WILL SEE YOU ALL

BACK HERE TOMORROW AT 9:30.

OH, ONE OTHER THING, MR. HERRMANN. I

DID SPEAK TO JUDGE RAMIREZ TODAY. I WANTED

TO STRAIGHTEN OUT ONE THING. WHEN I SAW THE

DOCUMENTATION THAT HAD BEEN FURNISHED HIM I

BECAME SOMEWHAT CONCERNED BECAUSE THE

DOCUMENTATION FRANKLY MADE IT LOOK AS IF

THIS WAS THE COURT'S REQUEST, THAT THE COURT

WANTED TO SEE THIS MATERIAL IN CAMERA AND

THAT THE COURT INVITED YOU TO DO THIS, AND I

THOUGHT IT WAS PRETTY CLEAR THAT THIS WAS

-125-

DEFENDANT'S CONCERN AND ALL THE COURT SAID

WAS THAT THIS SHOULD BE TAKEN UP IN

ACRAMENTO WITH THE JUDGE THERE AND I FOR

w”

ONE WAS NOT INVITING IT IN ANY OTHER WAY

THAN SAYING IT WASN'T THE CONCERN OF THIS

COURT, IT WAS THE CONCERN OF ANOTHER COURT.

I EXPLAINED THAT TO JUDGE RAMIREZ. WE

LL THINK THAT IS GOING

|

v4

wm

|

4

t

DISCUSSED I

TO BE A DECISION THEY MAKE IN TERMS OF THEIR

POLICY ON PRE-SENTENCE RELEASE, BUT

ULTIMATELY HE IS PROBABLY GOING TO LEAVE

SOME OF THE DECISION AS TO WHAT WOULD BE

RELEVANT IN TERMS OF THE

-126-

APPENDIX H

UNITED STATES DISTRICT COURT

CRIMINAL DOCKET

U.S. vs. CROSS, Silas, et. al.

CR 82-20T

DATE Document NO, PROCEEDINGS

1982

INDI CTMENT

A a Ne eee

O7

-

May

2 ORDER (PKS) fixing bail at PR,

BW shall not be

issued as to Cross

o7*

t

May

May 6 3 ORDER(PKS) fixing bail at PR,

BW shall not be

issued as to

Satiacum

PRAECIP

a)

i>

deft CROSS, for

iss of summons for

deft to appear

5-12-82, 9AM, JLW:

ISS 5-10-82

May

May 7 5. PRAECIPE deft SATIACUM, for

iss of summons for

deft to appear

5-12-82, 9AM, JLW:

ISS 5-10-82

May 7 6. LETTER to deft SATIACUM,

setting

arraignment for

9-12-82, 9AM, JLW

-127-

12 May

12 May

12 May

May 13

May 13

May 26

7. ENT(JLW)

8 APPEARANCE

BOND

9 APPEARANCE

BOND

10 RETURN

1] RETURN

12 MOTION

& AFFT.

ARRAIGNMENT (SATIACUM

& CROSS): AUSA

Mueller, deft cnsl

Immelt (SATIACUM) and

Emory (CROSS). Deft's

pres pursuant to

summons w/cnsl. Deft's

advised of rights &

Charges. Both deft's

enter PLEA of NOT

UILTY to charges.

Court accepts & enters

pleas. PTM: 5-26-82;

STD: 7-21-82; TRIAL:

7-6-82, 9:30 AM, BUR.

Deft's released on PR

bonds.

deft SATIACUM; deft

req'd to sign-in in

Tacoma (PR)

deft CROSS; deft req'd

to sign-in in Tacoma

( )

Marshal's, of summons

to deft SATIACUM, exc

5-10-82

Marshal's, of summons

to deft CROSS, exc

5-10-82

deft. SATIACUM for

continuance of trial

and pretrial mtns.

-128-

May 26 13 NOTICE of deft. SATIACUM mtn.

(#12) set for 6/4/82

9:30 BUR

May 26 14 MOTION of deft. CROSS for

continuance of trial &

filing mtns. dates

May 26 15 NOTICE of deft. CROSS mtn.

(#14) noted for 6/4/82

9:30 BUR

Page 2

May 26 16 MOTION deft. CROSS for

severence

May 26 17 MEMORANDUM Deft. CROSS in

Support of

severance

May 26 18 NOTICE of Mtn. for Severance

(#16) for 6/4/82 9:30

BUR

May 28 19 PRAECIPE for iss of 30 subp to

testify:ISs

June 3 20 RESPONSE govt's, to defts' mtns

for continuance of

trial & pretrial mtns

dates

June 3 21 OPPOSITION govt's, to deft

CROSS' mtn for

severance

June 15 22 ORDER(BJUR) DENYING deft

CROSS' mtn for

severance cc: cns]

-129-

June 15 23 APPLICATION

& ORDER (PKS)

for writ of H/C ad

testificandum ISS

6-15-82

June 16 LODGED deft SATIACUM'S waiver of

jury trial

June 2] 24 RETURN subp to testify iss to

Northwest Airlines exe

6-16-82

June 22 25 WAIVER deft CROSS, of use of

stmnts made by witness

Fourstars to cnsl]

**June 16 26 STIPULATION between deft CROSS

& atty Emery for

Substituting atty

Charles Herrmann

for Emery

**June 16 LODGED Order

Substituting attys for

deft CROSS

June 23 27 RETURN subp to testify iss to

Caesar's Palace exc

6-21-82

June 24 28 PRAECIPE for iss of 30 subp to

testify: ISS

June 25 29 RESPONSE govt's, to deft CROSS'

waiver concerning

conflict of interest

June 28 30 MOTION deft CROSS, for leave

allowing cnsl to file

mtns

-130-

June

June

Page

June

June

June

June

June

June

June

June

28

28

28

Ww

28

28

28

28

28

28

28

26

31 AFFIDAVIT

eft CROSS, in Support

of mtn #30

LODGED Order for leave allowing

Cnsl]l to file mtns

ct

32 NOTICE

CROSS, of mtn #30

33 MOTION deft CROSS, for

discovery of Jencks

materials & to produce

documents, stmnts &

individuals at trial

34 MOTION deft CROSS, for order

llowing cnsl for deft

S to voir dire

pective jurors

35 MEMORANDUM deft CROSS, in

Support of mtn #34

LODGED Order granting mtn to voir

dire jurors

36 MOTION deft CROSS, to shorten

time for hrg deft

CROSS' mtns #33 & 34

LODGED Order shortening time for

hrg mtns #33 & 34

37 NOTICE deft CROSS, of mtns

#33 & 34 for 6-30-82

38 MOTION deft CROSS, for change

of venue

39 MEMORANDUM deft CROSS, in

Support of mtn #38

-13l-

LODGED Orde

40 MOTION

LODGED Orde

hrg mtn #38

r

ORDER (BUR)

OPPOSITI

47 PROPOSED

ON

for change of venue

CROSS, to shorten

for hrg mtn #38

shortening time for

Ss

tify iss to

exc 6-23-82

govt's, of intent to

use admission or

confession for deft

ATIACUM

govt's, of intent to

use admission or

confession for deft

CROSS

DENYING mtn for

leave to file mtns

govt's, to deft

CROSS' mtn for

Change of venue

JURY INSTRUC-

TION

48 PROPOSED

QUESTIONS

49 REQUESTE

INSTRUCTIO

D

NS

deft CROSS

for prospective jurors

for deft CROSS

govt's

-132-

July 1

Page 4

July 2

July 2

July 2

July 6

July 6

July 6

50

31

52

-

55

56

BRIEF

gove's, for trial

ENT(BJR) CONFERENCE: AUSA

’

ORDER (BJR)

ORDER(BJR)

m

PRAECIP

PRAECIPE

ENT (BUR)

Mueller, def cnsl

Immelt, Emery &

Herrmann, CR Roth,

defts CROSS & SATIACUM '

prnst on bond. Court

finds no conflict &

will allow att

Herrmann to

participate in case as

ens] for deft CROSS.

Cnsl for govt approves

jury waiver as to deft

SATIACUM.

substituting attys

for deft CROSS;

Charles J. Herrmann

for Arthur J. Emery,

7

Jr. ce: ens]

waiving jury trial

for deft SATIACUM

ce: cnsl

for iss of 12 subp to

testify & 12 subp DT:

ISS 7-6-82

for iss of 15 subp to

testify: ISS 7-6-82

1ST DAY OF JURY TRIAL

FOR CROSS & COURT

TRIAL FOR DEFT

SATIACUM: AUSA Mueller

& Wilson, def cnsl

Immelt & Herrmann, CR

Roth, defts prsnt on

-133-

bond. Deft CROSS’

renewed mtn to sever

DENIED. Deft CROSS'

mtn in limine to stand

submitted. Deft CROSS'

oral mtn to continue

trial DENIED. Deft

CROSS' renewed mtn for

change of venue

DENIED. Jurors sworn &

impanelled. Witnesses

testify. Trial cont'd

7-7-82, 1:30AM.

July 6 57 EXHIBITS t CROSS, in support

f oral mtn for

ontinuance of trial

July 6 58 MOTION deft CROSS, in limine

Ww

July 7 59 RESPONSE govt's, to deft CROS

mtn in limine

July 7 60 RESPONSE govt's, to deft CROSS'

claim of w/holding

exculpatory material

July 7 61 PRAECIPE for iss of 10 subp

DT:ISS 7-7-82

July 7 62 PRAECIPE for iss of 10 subp to

testify: ISS 7-7-82

July 6 63 ADDITIONAL

VOIR DIRE

July 6 64 PEREMPTORY all cns]l

CHALLENGES

[End of first four pages of eleven page

Docket]

-134-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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