# Appendix — Parr v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386408_0213%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1956 - **Citation:** 351 U.S. 513 ## Text Memorandum Opinion (Judge T. M. Kenneriy). (Filed. April ZS, 1955.) . Caption Omitted Maucotm R. Winkey,. United States Nitarney, and - dames T. Dows, Assistant United States Attorney, of Houston, Texas: for Plaintiff, Evererr J. Looxey, of Austin Texas, Thomas James, of Austin, Texas, Marvis K. Conus, of Houston, ‘Texas, and Crype L. Wises, Ji. , of Houston, Texas: For Defendant. April 27, 1955. MEMORANDUM The Defendant, ‘Gesres B. Parr, is charged’ by imdiet- ment in this court with having made false and fraudulent income tax returns for the years 1949, 1950 and 1951, There have. been assigned to me tor Jdiearing four notions in the ease. hese have béen heard under Local District Court Rule 25, atid-are disposed of as follows: “ee Jefendant’s Motion for Bill of Partic ‘lars filed Jan- aru 3, 1955, under Rule 7(f) of the Federal Rules of Crim- ised Procedtire reading as follows: ‘*(f) Bill of Particulars, The court for cause may direct the filing of a bill of particulars. A motion for a bill of particulars may. be made’ only within ‘ten days after arraignment or at such other time before or after arraignment as may be prese ribed hy rule or order, A bill of particulars may be ‘amiended “ag any time “subject to sueli rauiditions” as 4iusticr requires,” 2. 7 | * (a) T think the Government". answers to Priragraphs lol, WE and TV of Defendant's Motion for Bill of Par. ticulars require that such paragraphs of such Motion he, and they are denied, . (b) Lithdnk however. that Paragraph Vo of Defendant’. Motion for Bill of Particulars, should be ranted, hut. only te the crtent set forth im Paragraph Voof. the “Gor erument’s Answer te Defendant's Motion. But, if, after ‘the Government ims made the disclospres set forth j in gaid Paragraph V of its Auswer, the Defe: dant is still unable te properly prepare his defense, he may again be heard in this inatter. = » Defendani’s Motion, filed January 3, 1955, for Dis.” covery aqnd Tuspection wider Rule 1¢ of the Federal Rules of C remmal Pr ocedure, as follows: “Upon motion of a defendant at any timé after the. filine of the indictment or information, the court may ‘order the attorney for the. Government to pertiit the defendant fo inspect and copy or photograph desig- nated hooks, ’ papers, doeuments or tangible ebjeets, obtained from or belonging to the defendant or obtained from others by seizure or hy’ process,’ upon a showing th at the items sought may be material to the preparation of his defense aud that the rec avest is reasonable. The order shall specify the’ time, plaee and manner of making the inspection and of taking the copies or photographs and may preseribe such - terms and conditions as are just.”’ fa) Defendant moves for discovery and inspection of all **hooks, papers, documents, transcripts and tangible. objects’ relating ta this ‘ase and in the **nossession of Plaintiff’. which were obtained from the Defendant or belonged fas the Defendant or were obtained from others hy SEIDHPe OF process, — : 2 Paragraphs I, He and TE of. the Government's Answer areas follows: | . . eT Te Government does not have i in its possession any hooks, papers, doe Wments, transeripts or tangible objests relating ta fhe wat tity COs obtuined trom-t detenda nt. ‘+. The Government does yot have ‘in “its Seaton any books, Papers, docu nts, hhanseript~ of tangible objects-relating te gle within cause belonging to th defendanit. ’ erate If. The Government does snot have in its pOsvession any transcripts relating to the within eaitsge obtained from Others by seiznre or process.”’ tes . . Defendant’s Motion is ‘denied as .te ‘the matters! ‘set forth in Paragraphs J, IL and TIL of the Government's ~ Answer, (hb) The. Government, in Ps eonenoke IV and V 5 Answer, further. replies to Defendant’s Motion aS oe “TV, o é, The Hove ernment does have in its possession certain hooks, papers, documerits and tangible objects: relating to the within cause, which were obtained from others by, seizure ‘or process, | 3 « v. | With reference to those items ‘in Paragraph IV above, the Government stands’ ready to permit the Defendant and his attorneys, under proper ‘super- Vision and ata tine and place designated by the Court “to inkpect, eopy or photograph these hooks, aApers. documents or tangible objects relating to the within ‘tuse provided that: = ~ {ad Defendant specifies which partic her hocks, papers, documents or tangible objects tw wishes to Pspect, roOpy or r photogr: aph:; and ye + “(b)) Defendant establishes that the above jitem- “Were obtained Prom, others hy SORZHYO Or process: and b. Defendant estiilishes that Heh items are nate rial to the within cause: and | oe (lj) Defenelajut establishes that sméh request thert mide is NECESSATV to the proper prenaration ot thre defendant ‘s defense: and fe) Defendant establishes that such request then made is reasonable, he If Subparagraphs (a), (bd, Ce), fd) and ce) of Para graph V of the Answer of the ( Government be sustained, Rule 16 would be made noneffeetive. Defendant cannot specify what particnlir matter.’there ix it the POSSession of the Government until he is awarded discovery and. inspection, ~The Government in its above quoted answer’ admits that such matter was seized from others and it would be idle to require Defendant to prove it. Presumably such matter is material to the’ within eanse or the Govern- ment wonld not have seized it, Defendant cannot know what sueh matter is until he se@s and Inspects if, and — ‘annot until then say whether it js necessary for the proper’ preparation of. his defense, or whether: his’ request is ‘reasonable. Ka a ge ae Discovery and inspection under Rule 16 shonld he sand is granted without the conditions ‘which ip Government. seeks to Impose In Parner: ap] is Vand V of j s Answer, ‘ 3. Defendant's Motion 7 Subpoena Duces Tecum far Honorable Maleolin Wilks u,b nited States Atftorne We undies Rule Fle) of the Fede ral Rules af Criminal Proce dure. reading ws follows: “(e}) For Produetion of Doeirnients ry Evidence and ® Objects. A Subpoenaom: iv also cron: mand the person ; to whom it is directed to pradnee the hooks, papers, documents or other Objects designa ited therein. The court on metion made spromptly. may quash or modify the ub pewgia if companies Weonpled hoes Wireasonabhde int Opapre ssive. “Phe court mid acdireect that hotks, papers, ° — : we . : ‘ . iloeurrerit- OP Ol peats (esponated itr The STD poen ga bie produced betore the éourt ata time prior to the ‘tria! OF prior to. the tite When thet are to be offered in evidence tere pron Uke iy prrodne tion, pre rit the hooks, ptpers, clocunents or ob peat On hort ranit thereat to be juspectod hy the partic sand tite ir atte rhe Ta, ne In Rowe Dairy Co..vs. United States, O41 U.S. 219, aocase similar to this, it@is said that Rude Ve(e) is chiefly oe) Taexpedite preparation for-the trial. Et ts also Said: . “Rule Ei deals with documents and other materials that are in the possession of the Government and provides how they may be made available to the de- fondant for his information, In the interest of orde rly procedure in the handling of be oks, papers, documents and objects in the enstody of the Govermuent aeeann- lated insthe course of an iivestigation and subpoen: ved for use before the grand jury and on the trial, it: was provided hy Rule 16 that the court could order such materials made available te the de fe ndant for inspee- tion and cop¥ing or iy shotographing. [n that way, the — control and possession of the Government’ is not » disturbed. Rule 16 prov ides the only way the defend- ant-can reach such material so as fo inform Himself. But if such materials or*any part of them! are not putin evidence by the Government, the defendant Hay subpoena them cunder Rule W7le) and use then! hinm- ~elf. Tt wonld be / (2d) 797, cer: Horari Genied Sab TUS. S48: Kott v. United States, ( 5C. A. 1949) Ths Blir2d) Ss4;: United States v. Florio: 13 -F.R. b. 296 (S8.D. NY. WWo2); United States 2 Lattimore, 12 F. Supp. 507 (SD. | D.C. Was): Kerston vo Pai?” States, 161° Fo (2d) 237 VPC LA PO47). certiorari denied 331 US. Sal: United States v. Carper vet ab. (DA DAC. 1953) 13 F-RD. 483: United States v. Moran. (2 CLAY 1959) (199 F.(2d) 107: Shushan v. Wnited States, 3) ClUN. P4T) V7 Food) 116; Aen ¥. Mnited States: veep e 19234 } 1 F (lds 68s; United States ve Mesaresh, X Do WD. Tenn. 1982 13 ERD: 180 mae s e v and must be determined on the faets of -each particutaf case. .. ~ anes | ae . (b) Originally Defendant's Motion. was wibinitted on Inany affidavits ahd many hewspaper clippings from eer tain Corpus Christi newspapers filed and offered hy De- fendant, ank a few affidavits filed and offered by the Government. — Later the’ Government asked and = was rranted permission fo and has also filed and offered Hany affidavits. , All these T have carefully studied. They, along with other portions of the record, show the reographie location, population, eté., of the Corpus Christi and Laredo Divisions of the Court and of. the county and town in which Defendant ‘resides, They also show the pxtent of circulation ‘and places of circulation of the newspapers mentioned. ie a “Many different opinions, viewpoints and ideas are re- flected by such affidavits. Apparently many of the persons * making them are not at all familiar- with, or overlooked the faet, that tha Court must follow the yiethod fixed and required hy law in selecting, summoning, and empaneling ‘a jury in this ease Some of them apparently were so uninformed about. the:law arid coust procedure that they erroneously regarded the Motion by Defendant for a change of venue as a reflection on the people of the Corpus Christi Division, ete. Some took sides-for or against the Defendant. A preponderance of the “evidence reflected ‘hy such affidavits—and 1 have no donbt on the snbject and find—that there exists in the Corpus Christi Division of * the Court so ¢reat a prejudice acxinst’ Defendant that he cannot obtain a fair ed imoaetakc idl in this ease in such division. ote ; bs ari | Regardless of their opinions, views, Yr ideas, substan: “nally all of the persons who made such affidavits mention ar refer to the publication of many articles \hont Defend ant in two newspapers published at’ Corpns Christi with large cirentitions in the Corpus Christi Division. Defend. ant lias brought and offered in’ evidence CHppiigs, ete, of a vers darge qoinnber. of these articles Org publte ations, OX-- te nding Ove roa pee nied of several Vears did onedow NH, Whic! T have studi ted. Talo net unde rake too wo inte de ‘tails about then, they pp ak hor thegiseWes. They ard stiniply In evi -degiee here and it is not within the province of the Court tf either. condemn or justify them. It is sufficient to suY ‘that the Defendant tias the rein been wiven, daring reeeut Years, much publicity, generally very unfavorable and sometimes tnost unfavorable. Such publfeations, vene rally With prominent headlines, ibe directly ov indirectly with respect to Defendant or pe rsous close ‘ly associated or said to be associated with hin, ang concern political matters, elections, law enforcement, neatiok Sele generally and in the town of San Diego, and in Duval County, where Defendant resides, and in some adjoining counties, -They ‘are also-with respect to. the kiting at night of a ‘young man at Alice, Texas, in connection wit?) which Defendant and persons associated, or claimed, to be associated, with Defendant are mentioned. Alo with: respect to the: sta- tioning of Texas Rangers in Duval County, the investiga. tion by -the Attorney General of Fexas’ and others of . Defer dant ard associates, and the aft: airs of Duval ¢ ‘ounty e and the enforeement ef Jaw in sueh county. Also with respect to: the Tinpeachment of wertain judici nl and other officers thereof. Also with wespect to many lawsuits filed on gia oan of the state“of Texas and the.1 United States and others against Defendant and ‘or ‘those associated with: him." Reference is, made to th a dituties for full particu lars. These publications whether Standing Alone or when ‘considered in connection. with suey affidavits, we, 4 . >. t, , > . - * ir ti Pie ' ’ . . ew t, " . e ' Tr reel ; , ai . * ! ; eo ,* : ' ’ ’ ' ’ ae pry ' ’ thi tu | . . . i ye of » preeit a | count Tlie states of Ohne Penarrel .. % > pet , e everbeediticetms ity ? bie - Thous@on, Crulveston, \i Feet : etal Brownsville Divisions. Bat [ave studied the brie ind caflidavit. of both thy fioverticent aud Deefendant wioa respect to Couditions it sie Learette Division. The Government's ‘albdavits shew tinal eertain conditions ; are heliewead to GNIst. Defendant‘. atidavit® show that it ~ belie ae that they do neat @NIST. No overt acts are alle aa ~ shown, Apparently there | eXists a political eaiieesety! of lone standing at Laredo, - teted TATE, OP satrie of those making the ifticlan its for thio: ° : : Cyiave rhimenty sion, wor does it do so now, If,says in its brief * * * “thay the Government would be under a severe handieap in prosecuting this defendant in the Laredo Division’ * The . District Conrt then proceeded ‘to deseribe certain political controversies Hs ONisting in tte Laredo Dis iston, sppeilant The matter is before as ape sine from orde dismissing the first indictment and also ‘on Petition for Mandamus and Prohibi. tien and Motion to file same, Parr wal he referred te’ in ever, instance only as appellant, - , . : a4 being in one. political camp and some of the proseenting Witnesses being in the other, Having considered the show ng fully, the’ Distriet. Court concluded ‘tT do not think that the evidence shows that the Government either. will or might be ander a severe hatidicap in the prosecution of this case as claimed. 1 find to*the contrar aed The care- fully drawn opinion was written by retired District Judge . Kennerly and concurred.in by active Judge Allred. That lor ete was filed April 28, , 1995 and five days later, May ord, the United States i eacace called the District Judge over long distance telephone advising that the Gov- ernment desired to disiniss the first imadictment hecause a@- new indictment had been returned in the Western District of Texas. He stated to the judge that he did not believe that the defendant could be heard on the miitter under Ride 48. The ‘treeular District Judye ruled otherwise, however, and set the motion ty dismiss for hearing before Jucige KKennerly. The motion to dismiss the first indietment was ‘filed May 4, 1955 and. with it way filed a copy of the new indict- mInent returned in the Western District invelving the same facts.. With it also was filed a written statement ‘of reasons for the dismissal. The chief reason given was that the Governnent had chosen to-present the new indictment in the Western’ Distriet and that it had a right so to do, adding that new, factors had been introduced in the sitn- ation: ** Among’the recent factors weighing in the overail appraisal of where prosecution shouldbe had should’ be ‘mentioned the recent décision of -the-court to i.ansfer venne from Corpus Christi to Laredo in the Southern Dis- ‘trict Of Texas. *This means that trial wilh be had in a division in which néither the, taxpayer lives nor the Gov- ernment chose originally to bring: prosecution, and thus establishes a set of cirenmstances which was never in the contemplation of Government counsel at the time >the original prosee ution was brought in the Southern District of “Texas.” ih , ; éaf, - wt) The Dis trict Court for the Southery In: tr 1 condnueted an extensive he ‘aring on the Government’ 4 ABT: to dis- miss the first indictnie ‘ul in which it heahed an extended statement by the Croviernent counsel and a\like statement X by one of appellant's counsel, and the Governinent coun ‘gol Was subjected to a short eNainination ii\ Appellant's counsel, 7 = AN From the statenient | of Government counsel’ and the testimony viven by him, the chief articulated reason tor the imotion to dismiss the Corpus Christi indietment was that the Government did not? feel that the witnesses for the Governnient would stand up as well in the Laredo Division as they would elsewhere, In his testimony, the attorney adverted to the fact that it was easier to make proof of venue tathe Austin Division (Western Disérict), but his answers, on the whole, failed to sustain that con- tentic n. Here isiay answer given by- the attorney which may be taken as epitomizing the underlying reason for the Government’s opposition to trving the case” im the Laredo Division ; / . | ce ie very raet that the case in the Southern District has how been transte en to Laredo and the -fact that testimony will. have ‘he ehieited) from: 4 Witnesses whosare either cuir or hostile ntake throws a different Hecht on thy Gove rhment. shiek venue, as it.does on the Goverumnent's proof of other ‘aspects of the case, I point out to vou in that py rds that Mr. Be ‘nson here, who was in the eiiploy of Mr. Parr ane signed the tax retorns, was itt iiptoves of Mr. Parr and he-has lived down in. that- ares Not eoing further into the ease, but the change in the loen: tier affects the proof as fo wenue as it does: the other facts ot the Government’s Case, * ; AS far as the basic. fuet. ares we hefieve ther te thel the same: as far as the practical prablen of Drool ith ot lawstilt, the seene has been altered, the ‘« this the merely exerting that rights o ty ‘ * situ: Hon has veen altered coysiderably by the shifting of the case from © orpus ‘hristi to Laredo,’ t another “port in His testiyony” Government counse! summarized the attitude that the Governme ‘ut had ‘plain right to shift the seene of the trial aud’ Wits “T think it has been very clear fren: Several docu. ments we have filed that we would have prefe rred the ease te remain in Corpus ¢ ‘hristi, and it is ce riainly clear with the ‘uction of the Attorney General and myself that: the Attoriey General preters that the cause go té Austin,. and believes, in the exere ise of his ‘odice ax the chiet prosecutor, it ought to be prosecuted s9 there in Austin. ear The Judge. for the Southe rn District made it elear in ‘hiss brief opinion What influe aicedTiim to wrant the notion to dismi USS 5 YB A ‘‘Now we Come 16 this motion bv the Gove rhinent to distniss the case because of the fact that a new indiet- ment covering the same matter bas been presented i the’ Western -Distriet * "+" Le vide “tly there is seme discretion in the Court as to the matter. of whether the case should or should sjot: be disritssed., . _ ‘Tn twenty-four years on the bench in this district, Podlo met reead] ever having at AMV time hesitated disintiss th hbehtat’ Whiem reqaestod hy thie (Feverument: That, was, of courses under the old law, and ander the pure sent rirles, “yy fo have oa isceretion thder the rites now as ta whether this he, distnissedys TPounist exercise that. disey Thom asta allow if to be dismiisked, because | da-tet think that the defendant, either int thie hess ihiu this TRECDT TRE T Er ane Hi this enormous record on the qiestion of change of haut the transcript mits the word nat art tix tiett } rite rt} iff i vA ; } ‘ = F - . - e aol : Venue, has shown ane pens WHEY Lb) emse whose deffnition: tlie beneh and bar are entitled to have. It is the duty of the courts to held the /senkps -of Justice in eqnal balance hetween the Governmesit and a citizen charged with erime In exactly the same imatner as those seales are held ‘in litigation ‘hetwen two private individuals, An tnstinetiye feeling of doubt ates whether ‘these ° to the eriginal jurisdiction. with the request that. the original avi] action he disiissed solely on the eronnd that A did hot feel that his witnesses would stand nyoas well in the jurisdi¢tion to which the transfer had been made. Tt is not hard ta Visuilize the effectiveness with Whieh egnusel could deelaimy that the Cromer etal vo duPont. ef dil, eC ir. 1952. 196 Joa 40s, aye rOHRSE the ease here is stroneer for appeliant, The trans fer here was from oa point Where ‘prejudices palpably existed in favor of one Utivant ta a point where Prejudices did not exist for 3 . ss ..% or against either litigang wy Processes wt hore Courts Wrpe beevgegr triflad Will) lo hares. litigant‘ B With respect to civil litigation? it: has been said that, prior, to the passe OF 28 U.S.C A.-1404(a). venue was the “prive prerogative of plaintiffs’ | Tr awas pointed out that this Act of Congress had transferred some of thar prerogative to the defendant and a large portion Of that prerogative to the. court. to be used by the court in de- éiding «questions of Kenue’ on the basis of fairness te both parties. It was Marther pointegr ont that the courts have almast universally exercised that prerogative’ to sce to it Mat the. rights of hoth jhe parties are protected with out advant: age to either Does not Rule 48(a) have a slinilar effect with respect to criminal prosecutions? Are ae to assume, as the court below manifestly assumed, that venue’ is still the pfime prerowative of prosecutors to be used in a ead this ene to gain an advantage for the Crovernment or to escape from a position of less advantage in which the Government found itself as the result of its own election? 1 do not think sf Prior ‘to the alloption of the new rule, the Seis nae had had a free hand and had used it fretly. The court’ below: ~ wed it its opinion that. in more than twenty vears’ it had never~re ‘fused the Gay. ernment in its request. =f Gismissal and it is rasonably’ cle; ar that this unbroken practice was decisive in its mind? *** Foruin Non Convenions and 28 U.S.C.A. 1404(a)°*,.23 Miss Law Journal p. 1 (December, 1991 a ' Besides inlieating its feeling: that the Government stil! had. under Ruie 4s, practically an absolute right to dismiss, the Court - indicated further that. in the. hearing of such a motion the de- fendant had the barden of proving that the indictment Slrondd mot. be “dismisséd. Both assumptions repvesent auscopeeptions. of the law. The Gove rument, seeking affirmative action. chy tht Cours encrind the burden of showing that there Was some valid jegal feason for the, dismissal. , * s . . . , s , . F 3 P Z oo ’ ; it that s oti thie bidgW, Tlie PSteeoN CAT PeaEL ore this Rrptes tat ’ i \ “ei s : Pit Thea i Pacha ite cet) mrips alti Careers iy? Coptpr? heftors ‘ : ; 4 . ee ; ’ : & : f atti bhiediet rent coulda be tListhitsseah worried tas Mieetaltigrless : . ' ° a : . and With Petit donna: rhe iH itetters] es Por the Claris IN procedure was that th swpretie Court with Coneres song! approval, was doing with respect to criminal pros entions, what Conueress had done with: respect’ to ei) welons: it was taking the choiee of venue out of the Whi fottered Shand. ay he litiznants and giving t-te the meses to be evereised iweesy Way which wonld insure justibe and eqnal treatment to atl parties,” If threat Wipe the Puerpase and if thieat in: thy ' leaning at the ryt, then thie Pye j judges. The latter ‘have been set apart and charged with .Tesponsibility of seeing that Justice be Gone io the individual and to the Government. * * * The seal of ‘the Department of Justice to which they -belong contains a motto. ‘Qu: pro Domina Justitia Sequitur! Wt appears on the flag which flies ovet the Department's ofiee. Liberally translated, ‘The [d- partment of Justice Prosecntes [np fehalf Of Our Lady Jus- _ tiee’.”’ : of, oe 7, - Cf. Lydick, v. Fischer, 5 Cir 1943, 135 F.2d 983. Wiwher (arp yter \ S Ld nionson. as eT... 1937, 9°? Fd SOO), bre District (ourt‘for the W eastern District of Texas would have ho discretion dur’ tw proceed to lear the czas it elected to press. “That argument too. is nusound, The Carpenter doctrine was’ consider abiy wenkened by MeLiin- » Lance, o Cir, 19H, 146 FL 2d 341, and was repudiated aa the Builock case, s epra. - "Phe law now is that each Judge called upon to try a-case pending also in another jurisdiction has t1% right aml duty to exercise a judicial | discretion as to whether the Gase will be tried or not. | If ‘that situation should ceme to pass, it would be in- cumbent-upon the Distriet Court for the Southern District Texas, and the District Court for the W estern District Texas. e¢ ach to exercise diseretion as ‘to Which case ae be tried, It may be that discretion so’ exercised would lead to the concluston ‘that the cases should be dis- posed of in the order of their filing. That would not be inconsonant with’ practices irequently observed.* The- two courts would, of course, exercise discretion according _to their own judements. .The sugge stion is made merely to indicate that the Gove rhiment *