Petition for Writ of Certiorari — Siegel v. McMillen

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Iu the

Supreme Court of the United pitted” ne

Ocroser Term 1972 E

a 8 75 :

;

ROBERT SIEGEL and ARTHUR VEALS, ;

Petitioners, ;

THOMAS R. MC MILLEN, i

Judge of the United States District Court, ;

en@. UNITED STATES OF AMERICA, E

Respondent. E

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MELVIN B. LEWIS

315 South Plymouth Court

Chicago, Illinois 60604

427-2737

Attorney for Petitioner,

Rosert SIzcGEL

JEROME ROTENBERG

7 So. Dearborn St.

Chicago, Illinois 60603

RAndolph 6-1678

Attorney for Petitioner,

ARTHUR VEALS

LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

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INDEX

PAGE

List of Authorities -.....--

2

Reference to Reports

Statement of Grounds on which J urisdiction Is Invoked 2

Questions Presented for Review 2

Statutes Involved 4

Statement of Facts 4 [

Review of State Proceedings ; — f

:

Basis of Federal Jurisdiction ..............--------------~ 11

Reasons Relied on for Allowance of the TE whsccetcone 11

Appendices: ;

A. Order of the Court of EE ccttieninicinnin App. 1 i

B. Trial Court Orders: :

1. Discovery Order ..........-.-----:---:------ee App. 5

9. Order on Motion for Enforcement of Dis-

COVELY — -n-n-n------seceeeeecscsecnsncecesnsesessenennsesncenenscees App. 6

C. Statute and Rule . ; App. 9

—_ . +S ee

RE a CL aE ES ET

ii

LIST OF AUTHORITIES CITED

Cases

PAGE

Campbell v. United States (1963) 373 U.S. 487 12, 15

Dennis v. United States (1966) 384 U.S. 855 13, 91

Howat v. Kansas (1922) 258 U.S. 181-0 18

Rugendorf v. United States (1964) 376 U.S. 528 11,2]

United States v. Augenblick (1969) 393 U.S. 348 12,16

United States v. Cole (8 Cir. 1972) 453 F. 2d 902 . 12

United States v. Contreras (9 Cir. 1972) 463 F. 2d 773 45

United States v. Gardner (S.D. N.Y. 1969) 308 F. Supp.

425 14

United States v. Harris (5 Cir. 1962) 458 F. 2d 670... 1

United States v. Hughes (5 Cir. 1969) 413 F.2d 1244. 4

United States v. Mahaney (N.D. Ill. 1969) 305 F. Supp.

1205 ae

United States v. Montos (5 Cir. 1970) 421 F. 2d 215...

United States v. Sklaroff (S.D. Fla. 1971) 325 F. Supp.

296 13

United States v. United Mine Workers (1947) 330 U.S.

258 18

United States v. Westmoreland (S.D. Ind. 1967) 41

6 FERRERS oRTnen One PoC SSE 13

Walker v. Birmingham (1967) 338 U.S. 307 _0002 ww... 18

Will v. United States (1967) 389 U.S. 90 www... 12,18

Williams v. Florida (1970) 399 U.S. 78 18

SOLON LER TIE SNL LY GIR OPA IE NT SSN RR AND BY ee SE ae

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Statutes

PAGE

Title 18, U.S.C.A. Section 3500. ...........-..------sssse-cseeeeees passim

Rules

Rule 6(e), Federal Rules of Criminal Procedure ........ 21

18

Rule 16(a), Federal Rules of Criminal Procedure

Other References

tee Report, ABA Project on Standards for

Commit

Criminal Justice, Advisory Committee on Pretrial

Proceedings — -------------sseeseeeseeesseetseeeeee

Miller, The Omnibus Hearing, 5 San Diego Law Review

993 (1968) -----c----scscescnsrcsesseesensentententenees

s on Discovery and Procedure Before Trial,

Standard

ABA ...-------

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Supreme Court of the United States :

Ocroser TERM 1972

;

.

No.

EES RI LENE OLLI A

ROBERT SIEGEL and ARTHUR VEALS,

Petitioners,

Vs.

27 ARO ERLE

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

May It Please the Court:

| Petitioners Robert Siegel and Arthur Veals, by counsel,

pray that a Writ of Certiorari be issued to the United

States Court of Appeals for the Seventh Circuit for review

of the Order entered by said Court on October 17, 1972

granting a writ of mandamus as therein set forth.

PAYMENT * afte RES RAINE SR. Ae raat tx we

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A. Reference to Reports

The opinion of the Court of Appeals, review whereof jx

hereby sought, is reprinted as Appendix A. It is officialiy

unreported to the present time.

The District Court entered two orders, neither of whic,

has been reported officially. The order of March 24, 1972

directed that certain discovery be furnished. It js that

order which was partially expunged by the Court of Ap.

peals’ mandamus writ. A second order, dated April 19,

1972, was entered on the motion of Petitioners for og.

forcement of the Discovery Order. Both orders are rp.

printed as Appendix B.

B. Statement of Grounds on Which

Jurisdiction Is Invoked

1. The judgment of the Court of Appeals was entered

on October 17, 1972.

2. Petition for Rehearing was timely filed, and was

denied on November 14, 1972.

3. Jurisdiction with respect to this Petition is eon.

ferred by 28 U.S.C. Sec. 1254(1).

C. Questions Presented for Review

1. Does the ‘‘Jencks Act’? (18 U.S.C. 3500) preclude

all judicial discretion to compel pretrial disclosure of any

part of the story of any person intended to be called as

a prosecution witness, even though:

(a) No physical peril to the witness, or other considera-

tion of security, could possibly be involved; and

(b) No substantive prejudice will result to the gov-

ernment; and

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(c) The unusual circumstances of the case present spe-

cial necessity for such disclosure to facilitate trial prep-

aration? Or

(d) The statements may consist in grand jury testi-

mony? OF

(e) The statements may constitute an account of a state-

ment or confession sought to be attributed to the defen-

dant?

9, Is there any circumstance in which pretrial disclosure

of any part of the statement of a prospective government

witness, may properly be ordered by a district court?

3. What is the meaning of the following phrase as used

in the Jencks Act and F. R. Crim. P. 16(b):

“government witness or prospective government wit-

ness (other than the defendant)’’?

4, Where the prosecution resists a defense request for

pretrial disclosure of a witness statement, on the theory

that the declarant will not be its witness,

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And where, after limited disclosure has been ordered, t

the prosecution simply ignores that order,

May the prosecution then make a collateral attack on :

the order, claiming that the declarant will be a witness é

for the government?

If so, is the prosecution entitled to the extraordinary

writ of mandamus to expunge that order?

5. Is a showing of diligence and of prejudice neces-

sary where the prosecution petitions for mandamus to ex-

punge a discovery order?

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D. Statutes Involved

Rule 16 of the Federal Rules of Criminal Procedy,

govern generally the right to discovery in criminal cagy

Its text, so far as relevant, is set forth in Appeadiz ¢

18 U.S.C.A. Section 3500, commonly referred to as thy

“Jencks Act’’ deals with the production of statements y

government witnesses. It is recited verbatim in the Cour

of Appeals opinion, Appendix A, and is also reprinted j,

Appendix C, infra,

E. Statement of Facts

An indictment was returned on October 13, 1971 charging

Petitioners Siegel and Veals, together with Robert Buy

and three others, with a truck hijacking alleged to hay

occurred about two and a half years earlier. Count ;

charged a conspiracy to commit the hijacking, and Coun

2 charged the substantive hijacking offense. Of the fie

overt acts charged against ‘‘the defendants’’, four wer

acts of Robert Buss in which defendant Siegel is not g.

leged to have participated directly. (A. 37-40).*

Siegel filed a timely discovery motion (A. 41) seeking

inter alia, any statements given to the government by a

co-defendant. He also filed a motion for relief from prej-

udicial joinder (A. 44-45).

In support of his discovery request, he cited the difficulty

of reconstructing events alleged to have occurred more than

two and a half years previously (A. 44). He also suggested

that relief from prejudicial joinder might be necessary, if

(as he could not then know) a co-defendant’s confession

* The “A” reference relates to the Government's Record Appe-

dix in the Court of Appeals.

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had inculpated him. In that behalf, he suggested that the

statements of co-defendants be inspected in camera (A.

45-46).

The government responded : ‘‘ Because the defendant has

not shown a@ prejudicial joinder, the motion to require the

rnment to produce statements of co-defendants should

he denied.”” (A. 47) Siegel replied, characterizing that as-

certion as ‘‘silly’’ and stating that it would be impossible

for him to show prejudicial joinder, absent disclosure of the

rnment’s statement. As he put it, ‘*the government

has simply put the cart before the horse.” (A. 49)

On consideration of the motion, answer, and reply, the

District Judge entered an Order, providing in relevant

part:

“}, Statements of all defendants which mention

Robert Siegel in connection with this case should be

produced forthwith * * *

“3 The Motion for severance is denied insofar as

any showing of prejudice to date is concerned. It may

be renewed if justified by any statements or documents

produced pursuant to this Order or otherwise.’’

(A. 50)

That Order was entered on March 24, 1972 (A. 50).

Twelve days earlier, trial had been set for April 24, 1972

(A. 31).

Counsel for Siegel immediately sought compliance with

the discovery order. In that behalf he had several conver-

sations with the prosecutor. Ultimately on April 12, 1972,

he demanded production of the materials required by the

order of March 24. The prosecutor then advised counsel

that he would not comply with the order of the District

Judge under any circumstances, and that if the court in-

sisted upon production of those materials, ‘‘the govern-

ment would appeal’’ (A. 51-52).

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Thereupon, Siegel moved to dismiss the indictment

eause of the prosecution’s refusal to comply with the onder

of March 24 (A. 32, 31-52).

On presentation of that motion six days before trial, the

prosecutor stated that ‘‘we are unable to comply”’ with th.

order because the defendant Robert Buss, ‘‘among othe,

whose statements are being sought in this regard, will be,

government witness’’. Thus, the prosecutor contended tha

the order was forbidden by 18 U.S.C. 3500 and “18 U.g¢

Section 16(b)’’ (A. 4). Asked whether he wished to 4,

an answer to the motion to dismiss, the prosecutor relic

on his original answer to the motions (A. 6).

The court took the matter under advisement, but directed

that the case remain on the trial call for April 24 (A. 8, 39).

The District Judge stated that the government should

have made its objections known earlier, rather than to wait

until the defense moved for sanctions because of the gov.

ernment’s refusal to comply with the order. The proses

tor explained that he had not known, until recently, that

the government would not comply with the order. He

stated that in a number of past cases, ‘‘your Honor has

entered like orders which we have complied with .. .|

think it is time that we perhaps determine the issue and

see if we can comply with the court’s order in this regard

and then not do any disservice to the statutory language

... ” (A. 10). The Judge admonished the prosecutor

that his actions ‘‘causes me to be without a case to try

on Monday, or at least it might’’.

On the following day, (A. 32) the District Judge ruled

on Siegel’s motion to dismiss. He adverted to the fact

that it was not until Siegel presented his motion to dis

miss, that the prosecutor had advised the court for the

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grst time that he would not comply with the Discovery

Order. The Judge held that the government’s request for

an order of enforcement as & basis for appeal was not

timely, coming twenty-five days after the order and less

than a week before trial. He ruled that the government

gould not be permitted ‘‘to introduce into evidence any

statement not produced’’ but that he would not dismiss

the indictment beeause of the government’s failure to

comply with the order. It was ordered that the trial pro-

coed as scheduled (A. 54).

When the ease was called for trial, the prosecutor stated

that the government could not proceed (A. 13-14). The

tor stated that he had already filed a Notice of

Appeal (A. 14, 32), but “‘I would like a clarification”’ :

Would the government be prevented by the order of April

19, only from introducing the statement itself, or would it

also be precluded from introducing testimony relating to

the matters contained within such statements (A. 14-15).

Counsel for Siegel pointed out that the statements, stand-

ing alone, were clearly inadmissible on any theory. The

respondent Judge stated ‘I would assume”’ that any wit-

ness whose statements were withheld, would not be com-

petent (A. 15). The prosecutor responded, ‘‘All right.

That was the clarification that I need. Thank you.”’ Re-

spondent Siegel demanded trial (A. 16, 18). The court

stated that it was ready for trial (A. 17) and stated that

since the time had been reserved on the court’s docket, he

believed the ease should proceed (A. 18). The prosecutor

stated that he had no evidence against respondent Siegel

except for the testimony of Buss (A. 8, 9, 16), and that he

was unable to proceed (A. 17).

The District Judge again expressed displeasure with the

prosecutor’s actions in not moving promptly for clarifi-

cation or vacature of the discovery order, and waiting

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until shortly before the trial to advise the court that jy

would not comply with the order. ‘‘I think in effect

are doing it just delaying for time * * * I can’t condoy

that kind of conduct on the part of the government, j;

leaves me without a case to try today.’’ (A. 18) Couns

for Siegel questioned whether the order of April 19 wa

appealable on any theory (A. 16). The trial judge state

that he did not believe that the Notice of Appeal was proper

or that the government had the right to take such a

appeal (A. 17). The prosecutor responded, ‘‘ Well, the

Court of Appeals, I assume, will decide that for ys”

(A. 17).

At the prosecutor’s request, the case was postponed for

thirty days in order, as he put it, to ‘‘see if the Court of

Appeals can act by then, and we will have a decision”

(A. 19).

When the case was next called, the government moved

for a further 30-day extension within which to docket the

record on appeal. At the expiration of that month, they

moved for a further extension (A. 36). On the last day

of the final extension, the appellate record was filed in the

Court of Appeals.

No further action was taken on that appeal. Instead,

three weeks later, the government filed its Petition for

Writ of Mandamus.

Petitioner Veals timely adopted the motion originally

made by Petitioner Siegel in the trial court, and subse.

quently joined in Petitioner Siegel’s answer to the man.

damus petition. Siegel and Veals were treated as Re-

spondents in the Court of Appeals, pursuant to the pro-

visions of Rule 21(b) F. R. App. P. The District Judge

formally addressed the Court of Appeals, expressing con-

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currence with the position expressed in answer opposing

mandamus,

On consideration of the Petition and Briefs, and without

pearing argument, the Court of Appeals granted man-

damus. It agreed that Petitioners (respondents below)

were entitled to pretrial inspection of the statements of

all other co-defendants. However, the Court of Appeals

noted that the government had stated that co-defendant

Buss ““is the only co-defendant named by the government

as a prospective witness for the government’’, and that

“the government has admitted that without Buss’ testi-

mony it cannot establish its ease.’’ Accordingly, mandamus

was issued ‘‘to deny defendants’ access to Robert Buss’

statements until he testifies at the trial.”’

In the trial court, the government expressly admitted

that the furnishing of Buss’ statement would not imperil

his security (A. 8). At no time was there any showing

that any special prejudice would inure to the government

through compliance with the discovery order. The only

stated basis for unwillingness to comply with the order,

was that ‘‘defendant has not shown a prejudicial joinder’”’

(A. 47).

The government did not disclose that Buss might be its

witness, until Petitioners sought enforcement of the Dis-

trict Court’s discovery order, nor did the government

move in the trial court for vacature or modification of

the discovery order. When the District Court inquired

whether the prosecutor desired to answer Petitioner’s

motion for enforcement, the prosecutor declined and elect-

ed to rely on his original answer which had dealt only

with the subject of prejudicial joinder. Ultimately, the

court stated that it would rely only on the written sub-

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missions of the parties. The prosecutor replied, ‘Fine

that is all we want, your Honor.’’ (A. 8).

The record does not support the Court of Appeals’ stats.

ment that the District Judge ‘‘intends to force this cany

to trial and then to invoke his power under Rule 16(g)

Fed. R. Crim. P. to prevent the testimony of Buss fron

being presented.”’ Petitioners had suggested that such ren,

edy was appropriate in the circumstances; but the Dis.

trict Court refused that request, and extended to th

government ample time for appellate review. In fact, the

prosecution received extensions totalling almost thre

months for the filing of a simple common-law record with

a brief transcript of colloquy on two motions. A month

later, it abandoned its appeal and petitioned for map.

damus. Throughout that period, the District Judge took

no step to force the case to trial. At all stages, the goy.

ernment was (and still is) free to comply with the dis.

covery order and proceed to trial without restriction.

F. Review of State Proceedings

No state judgment or order is involved in this case. The

proceedings below were exclusively federal in character.

G. Basis of Federal Jurisdiction

These proceedings were commenced on an indictment re.

turned by a federal grand jury before a District Court

Judge, charging violation of federal statutes. Federal

jurisdiction has never been challenged.

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REASONS RELIED ON FOR ALLOWANCE

OF THE WRIT

The order entered in this case, must have a profound

impact upon every federal prosecution in the Seventh Cir-

cuit, and a strong inferential impact in all other circuits.

The order below, is probably the first holding by any

circuit that construes the Jencks Act as foreclosing all

judicial diseretion, regardless of the circumstances of any

given case. Even the strictest interpretations of the Jencks

Act, have always conceded some area of judicial discretion.

Thus, for example, United States v. Montos (5 Cir. 1970)

421 F.2d 215, 221, held that the basic fairness doctrine of

Brady v. Maryland does not overcome the limitations of

the Jencks Act for purposes of pretrial hearings on mo-

tions to suppress. But Montos is clearly limited to sup-

pression hearings, and its clear implication is that the

Jencks Act does not present a bar to all pretrial disclosure

of witness statements. (Montos is completely in accord with

this Court’s holding in Rugendorf v. United States (1964)

376 U. S. 528, 533-534, which adopts as the test on motions

for suppression a balancing of the public interest in with-

holding disclosure against the narrow interest of the defen-

dant in obtaining it.)

There are many additional examples of strict interpre-

tations of the Jencks Act which have expressly or infer-

entially denied the existence of an absolute bar to discovery.

United States v. Harris, (5 Cir. 1962) 458 F.2d 670, in

affirming the denial of pretrial disclosure of a witness

statement requested under a Brady claim, held that ‘‘the

defense is not automatically entitled under a Brady theory

to disclosure of a Jencks Act statement prior to the direct

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testimony of the government’s witness.’’ (458 F.2d at 676,

emphasis supplied) The Harris court assumed, however,

“that Brady and the Jencks Act might in some gy.

cumstances be in substantive conflict on the issue of

production of government evidence.’’

Obviously, no such conflict was found in Harris; but with

equal certainty, the Harris court recognized that the Jencks

Act was not an absolute bar to all pretrial disclosures,

Another example is United States v. Cole (8 Cir. 1972)

453 F.2d 902. The Cole court stated that denial of pretrial

discovery of a witness statement ‘‘under these cireyp.

stances ... was not an abuse of discretion.’’

But no reviewing court has ever before held that no

discretion exists — that mo pretrial discovery of the state.

ment of any person whom the government might call as q

witness is possible under any circumstances,

And most certainly no court has ever before suggested,

in the very teeth of Will v. United States (1967) 389 US,

90, that a criminal proceeding may be suspended while the

prosecution seeks mandamus to expunge a discovery order,

in the absence of any suggestion of substantive prejudice

to the government or peril to the witness deriving through

that order.

* * *

Federal courts have always assumed discretion to tailor

discovery to the specific circumstances of the case. The

procedural aspects of discovery ‘‘must be entrusted to the

good sense and experience of the trial judges subject to

appropriate limited review of appellate courts.’’ Campbell

v. United States (1963) 373 U.S. 487, 507; United States v.

Augenblick (1969) 393 U.S. 348, 355.

Absent such discretion, the courts are literally ham-

strung. Every judge or lawyer with experience in criminal

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eases, has chafed under the restrictions, sometimes neces-

sary, imposed by a literal reading of the Jencks Act. Where

the prosecutor is obstinate, a recess ranging from ten min-

utes to several hours must be declared after the direct

District of Indiana stated:

of testimony of each government witness, in order that his pre- ;

th trial statements, however voluminous, may be inspected on i

kg the spot. These interminable recesses and interruptions 3

have caused many courts to require production of such '

statements before the witness takes the stand. See, e.g. §

) United States v. Skarloff (S.D. Fla. 1971) 325 F.Supp. 296, ‘

3 309. :

, It was in this light, that the Chief Judge for the Southern :

‘Bach case is sui generis when it comes to deter- :

mining the time at which, the means by which, and the

extent to which discovery is to he permitted.’’ Unite d

States v. Westmoreland (S.D. Ind. 1967) 41 F.R.D.

419, 424.

Westmoreland holds that pretrial production of the state-

ments of a co-defendant will be compelled if necessary to

resolve the issue of prejudicial joinder, or if material to

preparation of the substantive defense. 41 F.R.D. 427. The

Westmoreland opinion notes that Dennis v. United States

(1966) 384 U.S. 855, ‘reflects the court’s general attitudes

toward broader discovery in criminal cases and should be

kept in mind in ruling on motions of the type here pre-

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he sented.”? In the light of Dennis,

he “the interplay of the Jencks Act, Rule 6(e), the

to Brady doctrine, and now Rule 16, is apparent.’’ (41

ell F.R.D. at 422-423)

v. Grand jury testimony, although theoretically governed

by the Jencks Act (United States v. Westmoreland, supra,

n- 41 F.R.D. 419, 423) is nonetheless routinely disclosed prior

to trial when cause is shown. (Dennis v. United States

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(1966) 384 U.S. 855, 870; United States v. Hughes (5 Cir,

1969) 413 F.2d 1244, 1255) This right is conceded to exist

at the pretrial stage, even by those courts which have adop-

ted a restrictive view of Rule 16 and of the Jencks Act

See e.g., United States v. Gardner (S.D. N.Y. 1969) 3

F.Supp. 425, 428 and United States v. Mahaney (ND, I},

1969) 305 F.Supp. 1205, 1209.

The opinion below, runs directly contrary to every dis.

cernible judicial trend, and to the philosophy expressed by

this Court. It would forbid such obviously salutary pro.

cedures as those recently employed in the United States

District Court for the Southern District of California. That

court adopted, on an experimental basis, the American Bar

Association Standards on Discovery and Procedure Before

Trial, which would require routine disclosure of all witness

statements, a discovery concept far more broad than any.

thing granted by the trial judge in the case at bar.’ The

Southern District of California leads the nation in volume

1 Section 2.1 Prosecutor’s obligations

(a) Except as is otherwise provided as to matters not subject to

disclosure (section 2.6) and protective orders (section 4.4), the

prosecuting attorney shall disclose to defense counsel the following

material and information within his possession or control:

(i) the names and addresses of persons whom the prosecu-

ting attorney intends to call as witnesses at the hearing or trial,

together with their relevant written or recorded statements:

(ii) any written or recorded statements and the substance

of any oral statements made by the accused, or made by a co-

defendant if the trial is to be a joint one;

(iii) those portions of grand jury minutes containing testi-

mony of the accused and relevant testimony of persons whom

the prosecuting attorney intends to call as witnesses at the

hearing or trial; * * *

[The exceptions of section 2.6 relate to attorney’s work product,

confidential informants whose very identity is secret, and national

security cases. ]

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of criminal cases. The experiment commenced in 1966. The

United States Attorney for that District has expressed ap-

proval of the procedure, noting that it has rendered the

criminal trial calendar substantially more manageable. Mu-

ler, The Omnibus Hearing, 5 San Diego Law Review 293

(1968). The procedure is still in effect, with the obvious

approval of the Court of Appeals for the Ninth Circuit.

United States v. Contreras, (9 Cir. 1972), 463 F.2d 773, 774.

The judges of the Southern District of California reported

that the procedures

‘appear to be working well and fulfilling the objec-

tives sought: Increasing the efficiency of the judges

and lawyers, speeding up the process, improving the

performance of defense counsel, eliminating a sub-

stantial amount of paper work, making trials shorter

and more to the point, and increasing the number of

guilty pleas — all apparently without any sacrifice of

the interests of the government or of the defendant.”’

(Committee Report, ABA Project on Standards for

Criminal Justice, Advisory Committee on Pretrial Pro-

ceedings, p. 9)

That is precisely the result envisioned by this Court’s

opinion in Williams v. Florida (1970) 399 U.S. 78. We

particularly note the concurrence of the Chief Justice,

who stated (399 U.S. 105) that pretrial disclosures ‘‘will

serve appropriate functions by way of disposing of cases

without trial in appropriate circumstances—a matter

of considerable importance when courts, prosecution of-

fie, and legal aid and defender agencies are vastly over-

worked.’’

The ABA Committee considered at length the key de-

cisions, statutes and authorities relating to discovery

(Committee Report, esp. pp. 56-65) and concluded that

the administration of justice and the concept of basic

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fairness required such disclosure. The committee stated

(Report, p. 56) that one of the chief aims of discovery wa,

to advise one’s opponent of evidence to be produced at the

trial,

‘“so that he can most effectively test its validity,

most direct means to this end is to require that the ma.

terial to be produced at trial be disclosed in advanee”

The opinion below would preclude all such thoughtfy!

and necessary experiments as that conducted in the South.

ern District of California using the proposed ABA Stap.

dards. Such actions now become forbidden throughout the

Seventh Circuit. There remains only a flat prohibition

against all such pretrial disclosures, operative without

regard to the circumstances of any case, and enforee.

able by mandamus. That which is mandatory in California

is prohibited in Illinois, Indiana and Wisconsin.

The trial court below proposed no broad experiment

It did no more than to accept this Court’s invitation to em.

ploy its ‘‘good sense and experience’? (Campbell v. United

States, 373 U.S. 487, 507; United States v. Augenblick

(1969) 393 U.S. 348, 355). The special circumstances of

the order expunged below, deserve mention.

Petitioner was indicted on October 13, 1971 (A. 26) for

an offense allegedly committed on May 16, 1969 (A. 37).

The indictment was his first notice of any claim of complici.

ty in the offense (A. 49)—and, presumptively, of the fact

that any such offense had ever been committed. The prob

lem of reconstruction of events two and a half years past,

is obvious.

He moved that statements made by any co-defendant

with whom he was to be tried, be disclosed to him (A. 43),

suggesting that such statements may contain exculpatory

material and investigative leads (A. 43).

i ATA AE 8 5 lah re, ble Sie ea atin ee Ee Race sR RC TD

COPY BOUND TOO «

TE bar gi IAD ATS ne SOI TANS RN,

17

overnment responded that such disclosures should

be denied ‘‘ because the defendant has not shown a preju-

dicial joinder”’ (A. 47). The defendant replied that it was

“silly” to imagine that he could show prejudicial joinder,

absent disclosure of the statements of co-defendants (A.

49).

The district judge did not order disclosure of all state-

ments made by Buss; his order was limited to those state-

ments by Buss ‘‘which mentioned (petitioner) in connec-

tion with this case’’ (A. 50).

The order was predicated upon the possibility that such

statements ‘‘could be exculpatory or * * * could be tanta-

mount to a confession * * *’’. (A. 53)

Up to that time, nobody had intimated that any co-de-

fendant might be a government witness. It would seem

in questionable taste, to say the least, that the govern-

ment should indict as a co-defendant the man whom it se-

eretly knows to be ‘‘a government witness’’ (A. 4) without

whom ‘‘we could not meet our burden of proof’’, (A. 9)

and who ‘has in fact been in protective custody for some

period of time’’ (A. 7). It is one thing to deny information

to a defendant; it is quite a different thing, deliberately

to mislead him.

The trial judge was no less misled than were Petitioners.

The prosecutor argued before him, that pre-trial dis-

The g

covery should be withheld because Buss would be stand--

ing trial as a co-defendant with Petitioners. When that

obscure logic was rejected by the trial judge, the prosecu-

tor said nothing. Much later, he resisted enforcement of

the Discovery Order on the ground that Buss would be a

government witness at Petitioners’ trial.

Nothing could be more directly inconsistent with the

suggestion that Buss would be a government witness, than

90 CLOSE IN CENTER

18

the original vigorous contention by the Prosecution thy

Buss could properly be tried together with the petitions,

Obviously, a co-defendant cannot be a government Witney

at a joint trial.

Thus, the government resisted the entry of the Dy

covery Order on a theory diametrically opposed to thy

on which it has obtained mandamus to expunge that Orde

We would not have thought such conduct possible, y,

would not have dreamed that it could be rewarded with th}

grant of mandamus. Will v. United States (1967), 389 Ug

90.

The government’s lack of candor in the trial court hari.

ly justifies the award of the extraordinary remedy

mandamus. Moreover, the government never moved to yw.

cate the Discovery Order; it merely resisted enfore

ment on the grounds that the order was improper for,

reason never previously disclosed. Its position, in tha

regard, is no different from that of the petitioner ip

Walker v. Birmingham (1967), 338 U.S. 307, 320. One cap.

not simply ignore a court order and subsequently a

tempt to justify his actions by a collateral assertion that

the order was erroneous. Howat v. Kansas (1922), 258 U8

181, 189-190; United States v. United Mine Workers (1941),

330 U.S. 258, 293.

Moreover, the Petitioners were clearly entitled to pr.

trial disclosure of any record of any statement attributed

to them. F. R. Crim. P. 16(a). Thus, any recorded a

sertion by Buss that Petitioners had said anything to hin

concerning the offense, was clearly producible. The least

that the government owed the court, was an tm camera in

spection of the Buss statements in order that those por-

COPY BOUND TOO C

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tions disclosing statement by Petitioners could be divulged

as required by Rule 16.

The Court of Appeals has held that no disclosures were

. because Buss will be a government witness. But

any ‘‘statements or confessions made by the defendant’’

in any case, can only be proved through the testimony of

some government witness. Thus, a truly literal reading

of the Jencks Act, as required by the opinion below, will

necessarily deprive all defendants of access to records of

daimed statements and confessions, possibly excepting

only those which are formally signed but not witnessed.

Absent such a bizarre concurrence, the defendant’s state-

ments and confessions will be withheld on the ground that

they really constitute statements by government wit-

nesses about things which the defendant has said. Pre-

cisely that result is implicit in the order of the Court of

Appeals.

In that aspect, the Jencks Act and Rule 16 express an

incongruity which may only be superficial. Facially, they

forbid disclosure of statements **. . . made by a govern-

ment witness or prospective government witness (other

than the defendant) . . .”’ But obviously the defendant

could not possibly be made a government witness at his

own prosecution.* The Fifth Amendment flatly prohibits

—_

? Conceivably . he might be a government witness in a different

case. Such an interpretation, however, would be absurd. It cannot

be imagined that the Statute and Rule forbid disclosure of a state-

ment by a non-witness declarant if that declarant also happens to be

a “prospective government witness” in an unrelated prosecution ; nor

could there ever be an entitlement to a statement by amy witness con-

cerning such irrelevant matters. Moreover, the contested prosecution

of a defendant who is also a prospective government witness, is

hardly so common an event as to become a matter of special Con-

gressional concern.

O CLOSE IN CENTER

such a tactic, quite independent of any claim of selfi,

crimination. Yet, the literal reading of the Statute ay

Rule required by the Court of Appeals, would mean tig

the defendant is entitled to pretrial disclosure of his og,

statement if he is himself to be a witness for the gover,

ment at the trial—a wildly anomalous result, to say 4,

least.

The surface incongruity disappears, however, when t}

legislative intent is viewed realistically. If a given an,

of disclosure might prejudice some legitimate right y

the prosecution, the Congressional intent to protect thy

right would seem clear. On the other hand, neither Cm,

gress nor this Court can have intended to encoung

trickery or basic unfairness.

We suggest that the Jencks Act and Rule 16 proceedaj

on the assumption that when the government indicts ,

citizen it does so pursuant to a good-faith prospective ip

tent—not, as in this case, as a device for dissembling cop.

cerning the identity of its witness.* The predicate of th

Statute and the Rule might well be that the pre-trial state

ment of any defendant, whether movant or co-defendant, is

outside the prohibition of the Jencks Act. That approad

not only reflects the most reasonable interpretation of th

language employed in the Statute and Rule, but woul

discourage the prospective tactic employed in this case

The tactic richly merits proscription. As employed 2

this case, it not only misled Petitioners, but literally &

trapped the trial judge into a mandamus situation.

*“Tt was ultimately disclosed that Buss had “been in protectin

custody for some period of time, some several months” (A. 7). Thus,

his co-indietment with Petitioners, and the government's original

argument that the defendants had been properly joined, was at

a device for the protection of Buss. It was simply a trick

— PO wa IP” x,

COPY BOUND TOO C!

:

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i

;

Certainly, it was well within the discretion of the trial

judge to have ordered production of any statements given

by Buss to a grand jury. Dennis v. United States (1966)

384 U.S. 855, 870. Obviously, it is unknown at this time

ghether Buss’ statement took the form of grand jury

testimony or of informal conversation with agents. His

tatus as @ prospective government witness, was deemed

to preclude even that much of an inquiry. Thus, in a single

stroke, Dennis and F. R. Crim. P. 6(e) are emasculated.

. . 7

The precedent established below will substantially im-

pair the right of a defendant to pretrial disclosure of

statements or confessions attributed to him, contrary to

the express requirements of Rule 16. It will preclude all

pretrial disclosure of grand jury testimony, contrary to

Dennis and to established practice. All that, in the name

of seerecy for the sake of secrecy.

The holding below will unduly restrict trial prepara-

tion, working its greatest hardship in the case of the

truly innocent defendant. Discovery is forbidden com-

even in the most compelling of circumstances—

not in furtherance of any substantive right of the prose-

cation, nor in deference to any consideration of public in-

terest, but only to provide a tactical advantage to the gov-

ernment by making prosecution easier and defense more

diffeult.

Nothing could be more at odds with the concept of the

trial as a fact finding function, or with the current salubri-

ous tendency toward disclosure.

This case presents the precise converse of the situation

faced by this Court in Rugendorf v. United States (1964),

376 U.S. 528, 533-534. Here, the prosecutive interest in

withholding information is of the narrowest possible di-

> CLOSE IN CENTER

22

mension; the interest of the defendant in obtaining hg

information, could hardly be more broadly compeliiga

Here, the balancing of interests envisioned by Rugen

weighs strongly and heavily in favor of disclosure, ee

It cannot be, that a litigant is entitled to trick .

entrap a trial judge into the entry of an order which me

then be expunged by mandamus on different and inconss

tent grounds. e

It cannot be, that the intent of the Jencks Act and g@

Rule 16 was to endow a prosecutor with a totally arbi

position, characterized by circular and tautological Teason.

ing: “‘We are entitled to secrecy because we want it, and

we want it because we are entitled to it.’’ :

It cannot be, that a rule will be enforced by mands

mus in a situation never contemplated by that rule, pre

senting no reason for its application. It has always been

the philosophy of the law that where the reason underly;

a rule is shown to have failed, the rule itself will be held

inapplicable. A contrary approach is the very definition of

fanaticism.

It cannot be, that the law is so one-sided as that.

We pray for the corrective Writ of Certiorari.

Respectfully submitted,

Metvin B. Lewis

Attorney for Petitioner Robert Siege

Jerome RorTenBERG

Attorney for Petitioner Arthur Veals

APPENDIX A

Order of the Court of Appeals Presented for Review

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

October 17, 1972

Before

Hon. Lurner M. Swycert, Chief Judge

Hon. Rocer J. Kuey, Circuit Judge

Hon. Watrer J. Cummines, Circuit Judge

No. 72-1648

UNITED STATES OF AMERICA,

Petitioner,

vs.

HON. THOMAS R. McMILLEN, Judge United States

District Court, etc.,

Respondent.

Original Petition for Writ of Mandamus

(71 CR 592) — Judge McMillen

ORDER

This case is before us on the Government’s petition

for a writ of mandamus directed to respondent district

judge.

The October 1971 Grand Jury indicted Robert Siegel,

together with Robert Buss and four others, charging them

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App. 2

in two counts with conspiracy to hijack and hijacking ¢gr.

tain goods in violation of §659 of Title 18 of the United

States Code. The criminal case was assigned to the re.

spondent judge. On December 20, 1971, the defendant

Siegel made a pre-trial motion for discovery which asked

that the Government be ordered to produce ‘statements

made by any co-defendant hereto, together with whon

defendant Siegel is intended to be tried .. .”’

On March 24, 1972 Judge MeMillen ordered that the

Government produce ‘‘[s]tatements of all defendants

which mention Robert Siegel in connection with this

case . . .’? Subsequently, the Government refused to com.

ply with respondent’s order. Trial was ordered to pro.

ceed as scheduled, but the Court indicated that it woul

exercise its discretionary power under Rule 16(g) Fed,

R. Crim. P. to prohibit the Government from introdye.

ing into evidence the statements which were not produced,

The Government filed a petition for issuance of a writ

of mandamus on August 4, 1972. The petition asks this

Court to order Judge McMillen to vacate his order of

March 24, 1972. We grant the writ of mandamus and d.

rect the respondent to modify his order to deny the de.

fendants access to statements made by Robert Buss to the

Government until such time as Buss has testified on di-

rect examination.

Section 3500 of Title 18 provides:

(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 sub-

poena, discovery, or inspection until said witness

has testified on direct examination in the trial of the

case. 18 U.S.C.A. §3500 (Cum. Supp. 1972).

App. 3

The prohibition of §3500 is engrafted on Rule 16(b) of

the Fed. R. Crim. P. The Government relies on these

prohibitions in refusing to comply with respondent’s or-

der and in seeking a writ of mandamus.

We agree that Rule 16(b) and §3500 prohibit a dis-

trict judge from ordering production of statements of

Government witnesses, whether or not they are co-defen-

dants, before they have testified. Robert Buss is the only

co-defendant named by the Government as a prospective

witness for the Government.

We realize that the writ of mandamus is an extra-

ordinary remedy reserved for extraordinary circum-

stances. Will v. United States, 389 U.S. 90, 107 (1967). On

the record before us two grounds appear which bear the

weight of justification for this writ. First, the writ is

necessary to confine the district court to a lawful exer-

cise of its prescribed jurisdiction. Jurisdiction in this

context is not limited by a ‘‘technical definition’’ but

rather encompasses judicial usurpation of power. Will v.

United States, supra at 95. Secondly, on the record it ap-

pears that the respondent intends to force this cause to

trial and then to invoke his power under Rule 16(g) Fed.

R. Crim. P. to prevent the testimony of Buss from be-

ing presented. The Government has admitted that with-

out Buss’ testimony it cannot establish its case. Without

mandamus, the Government would be remediless.

Mandamus will prevent the respondent from ‘‘usurp-

ing power’? by ignoring the prohibition of the Jencks

Act. The legislative history of the Act leaves no doubt

that a statement of a Government witness cannot be dis-

covered until after he testifies. The Senate Report on

the Jencks Act contains the following declaration:

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[I]t is the specific intent of the bill to provide for the

production of statements, reports, transcriptions or

recordings, as described in the bill, after the Gover,

ment witness has testified against the defendant

direct examination in open court, and to prevent dis.

closure before such witness has testified. S. Rep, No,

981, 85th Cong. Ist Sess. (1957).

The Conference Report provides:

The changes agreed upon by the conferees . __

(3) make it abundantly clear that no such statement

need be produced until said witness has testified op

direct examination in the trial. Conf. Rep. No. 1271,

85th Cong. 1st Sess. (1957).

Since initial passage, the Act has been amended only

to expand the coverage of the prohibition. 18 U.S.0.4

$3500 (Cum. Supp. 1972); Cf. H. Rep. No. 91-1549, 91st

Cong., 2d Sess. (1970). Moreover, §3500 has repeated.

ly withstood Constitutional challenge. E.g., Palermo y,

United States, 360 U.S. 343 (1958).

The Act limits the prohibition to Government witnesses _

or prospective Government witnesses. The prosecution

has stated that co-defendant Buss is its only witness or

prospective witness that will be called against the two

remaining co-defendants Robert Siegel and Arthur Veals:

We agree with respondent that defendants are entitled to

the statements of any other co-defendants. 8 J. Moore,

Federal Practice 16.03[2], at 16-24 (2d ed. 1953) ; and Rez.

neck The New Federal Rules of Criminal Procedure 54

Geo. L.J., 1276, 1286 (1966). Accordingly the writ shall

issue to deny defendant’s access to Robert Buss’ state.

ments until he testified at the trial.

1The record indicates that George Beecher, a co-defendant, was

permitted on February 17, 1972, to join in Siegel’s motion for

discovery. However, Beecher was subsequently severed from Siegel

and found guilty of the crimes charged on May 15, 1971. This mat-

ter is therefore moot as to Beecher.

COPY BOUND TOO

App. 5

APPENDIX B

Trial Court Orders

1. Discovery Order

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

JOSEPH PAGONE, ANTHONY LA BARBERA,

ROBERT SIEGEL, GEORGE BEECHER,

ARTHUR VEALS, and ROBERT BUSS

Defendants.

— No. 71 CR 952 —

ORDER

The Motion of the defendant Robert Siegel for Dis-

covery and Production is granted in the following respects:

1. Statements of all defendants which mention Robert

Siegel in connection with this case should be produced

forthwith.

9, All other items requested in said motion should be

produced forthwith, if and when obtained by the govern-

ment, since no objection has apparently been raised there-

to.

3. The Motion for Severance is denied insofar as any

showing of prejudice to date is concerned. It may be re-

CS EE REET OMT METAL IT TRY INOS IPE NT OT EE FEN ee

SSS ERIE 5

OP La ag te arg Eptrees

OO CLOSE IN CENTER

App. 6

newed if justified by any statements or documents pro.

duced pursuant to this order or otherwise.

” Enter:

/s/ Thomas R. McMillen

t Judge, U. S. District Court

March 24, 1972

2. Order on Motion for Enforcement of Discovery

IN THE UNITED STATES DISTRICT CouRT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintig,

vs. ,

JOSEPH PAGONE, ANTHONY LA BARBERA,

ROBERT SIEGEL, GEORGE BEECHER,

ARTHUR VEALS, and ROBERT BUSS

Defendants,

—No. 71 CR 952 —

ORDER

This cause comes on to be heard on motion of the defen-

dant Robert Siegel to dismiss the indictment, or for other

appropriate relief, on the grounds that the government

has refused to comply with this court’s order to produce

entered March 24, 1972. Defendants Beecher and Veals

have joined in this motion, on the ground that they had

orally joined in defendant Siegel’s motion to produce and

that the government has not complied with the order with

respect to them either. The government does not contest

LADY ROIINEA TOO C

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App. 7

the foregoing representations of the defendants, with the

result that this court’s order of March 24, 1972 applies to

their motions as well as to defendant Siegel’s. The govern-

ment also does not deny its refusal to comply as to all

three defendants, although it admittedly has statements

which are covered by the order.

The indictment in this case charges a conspiracy among

these three defendants and three other defendants to pos-

sess certain goods stolen from interstate commerce, with

g substantive count against all defendants charging pos-

session of said goods. The case against three defendants

has apparently been disposed of, and the trial of the re-

maining three defendants (movants herein) is set for Mon-

day, April 24, 1972.

The remaining three defendants originally moved for

severance on the grounds of prejudicial joinder and also

moved for an in camera inspection of any statements made

by co-defendants. After the matter was submitted on

briefs, the court ordered the government to produce such

statements to the extent that a defendant’s statement men-

tioned the moving defendant. This order was based on

FR.Cr.P. 16(b), in that the statements were material to

the motion to sever and to the defense and that the request

was reasonable under the circumstances of this case. It

seems self-evident that a defendant in a conspiracy case

should be permitted, upon request, to examine statements

of alleged co-defendants in order to evaluate and prepare

a defense (or even a change of plea) and in order to have

material which might be helpful to the defendant. The

statements of co-defendants could be exculpatory or, in a

conspiracy case, they could be tantamount to a confession

of one or more of the remaining defendants.

The government took no further court action in this

matter after this court’s order of production was entered

MPrimeer inl CON TER

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App. 8

on March 24, 1972. When defendants filed their

motion to dismiss on April 18, 1972 the government for 4,

first time advised the court that it would not comply. ),

government attorney stated that his office considered the,

statements to be privileged from production in advan,

of trial under Rule 16(b) because they were statemey,

made by government witnesses or prospective governmer

witnesses, to-wit co-defendants who have pleaded guilty

The government therefore stated that it wished to appey

from the court’s order of production and requested 4,

court to enter an order of enforcement.

Obviously the government's request is not timely, co

ing 25 days after the order and less than a week beloy

trial. Cf. F.R.Cr.P. 16(e). Furthermore the court does ag

consider the government's request to be well-founded 4)

though the court would not allow the government to intr.

duce into evidence any statement not produced (F.R.Cr. P

16(g), no additional order is required. On the other haat

the court does not believe an indictment should be ds

missed on nothing more than defendants’ motion for fai.

ure to comply with Rule 16(b) unless this failure results ia

acquittal of the defendant. The indictment has not ber

challenged by defendants except by their pending motm

which does not go to the sufficiency of the indictment

Therefore the court has no realistic alternative at thy

time except to deny the defendants’ motion to dismiss ani

to proceed with the trial of this case as scheduled.

Enter:

/s/ Thomas R. McMillen

Judge, U. S. District Court

April 19, 1972

eee Bir Tre

App. 9

APPENDIX ©

Rule 16, Federal Rules of Criminal Procedure

DISCOVERY AND INSPECTION

(a) Defendant's Statements, Reports of Examinations

ond Tests; Defendant's Grand Jury Testimony. Upon

motion of a defendant the court may order the attorney

for the government to permit the defendant to inspect and

copy or photograph any relevant (1) written or recorded

datements or confessions made by the defendant, or

copies thereof, within the possession, custody or control

of the government, the existence of which is known, or by

the exercise of due diligence may become known, to the at-

torney for the government, (2) 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, 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 (3) recorded testimony

of the defendant before a grand jury.

(b) Other Books, Papers, Documents, Tangible Objects

or Places. Upon motion of a defendant the court may or-

der the attorney for the government to permit the defen-

dant to inspect and copy or photograph books, papers,

documents, tangible objects, buildings or places, or copies

or portions thereof, which are within the possession, cus-

tody or control of the government, upon a showing of ma-

teriality to the preparation of his defense and that the

request is reasonable. Except as provided in subdivision

(a) (2), this rule does not authorize the discovery or in-

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government witnesses (other than the defendant) to agen,

of the government except as provided in 18 U.S.C. § am

(e) Protective Orders. Upon a sufficient showing 4

court may at any time order that the discovery or inspe

tion be denied, restricted or deferred, or make such othe,

order as is appropriate. Upon motion by the gonn

ment the court may permit the government to make ma

showing, in whole or in part, in the form of a written stay

ment to be inspected by the court in camera. If the cour

enters an order granting relief following a showing q

camera, the entire text of the government's statems

shall be sealed and preserved in the records of the coor

to be made available to the appellate court in the event ¢

party has failed to comply with this rule or with an order

issued pursuant to this rule, the court may order md

party to permit the discovery or inspection of materiak

not previously disclosed, grant a continuance, or prohibit

App. 11

he from introducing in evidence the material not

peclosed or it may enter such other order as it deems

States, no statement or report im 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 sub-

diseovery, or inspection until said witness

has testified on direct examination in the trial of

the case.

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App. 12

APPENDIX D

UNITED STATES COURT OF APPEALS

For tue Severtu Cincurr

Chicago, Illinois 60604

November 14, 1972

Berore

Hon. Luruer M. Swycerr, Chief Judge

Hon. Rocer J. Kiuzey, Circuit Judge

Hon. Waurer J. Cum™ines, Circuit Judge

UNITED STATES OF AMERICA,

Petiti

No. 72-1648 vs.

HON. THOMAS R. MeMILLEN, Judge, U. S. District

Court, ete.,

Original Petition for Writ of Mandamus.

(71 CR 592)

ORDER

On consideration of the petition of respondent,

Thomas R. MeMillen, for a rehearing by the Court in

above-entitled appeal, and no member of the panel and

judge in regular active service having requested that a

be taken on the suggestion for an en banc rehearing,

the panel having voted to deny a rehearing.

IT IS ORDERED that the petition of the res

for a rehearing in the above-entitled appeal be, and

same is hereby denied.

OF Or ee yer