Petition — Cross v. United States
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Office - Supreme Court, U.S,
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
a
=
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f
y
(
ts
a |
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~
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ry
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w”
am
te
”
Oo
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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
’
«ct
oO
~
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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CARPENTER'S COUNSEL AND T SHE HAS
INFORMED US THAT MR. CARPENTER WILL NOT
-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
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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]
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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.