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UNITED STATES v. WERNIKOVE

January 4, 1963

UNITED STATES of America
v.
Herbert L. WERNIKOVE, a/k/a Herbie Wernikove, Samuel Wernikove, Jean Wernikove, Abraham Wernikove, Abraham Ulitsky, a/k/a Al Ulitsky, Anna M. Ulitsky and Elaine Oxenfeldt



The opinion of the court was delivered by: GRIM

Defendant Abraham Ulitsky has moved for leave to inspect statements given by him to government agents. The problem posed by this motion came before our court recently in the case of United States v. Steely, 32 F.R.D. 244 (Criminal No. 21028), in which Judge Van Dusen, citing many authorities, refused the defendant's request to inspect his statements. I can see no substantial difference between that case and this. Consequently the motion of Abraham Ulitsky for leave to inspect the statements given by him to government agents will be denied.

Defendants Abraham Ulitsky and Anna Ulitsky have filed motions for leave to inspect the testimony they gave before the grand jury. The problem involved in these motions is very similar to that presented by the motion to inspect statements. The object of both motions, I suspect, is to make sure that the defendants will not give testimony at the trial at variance with their previous statements and testimony, since to be confronted on cross-examination with prior inconsistent statements might be damaging to their case. The only reason these defendants advance in support of these motions is that because of the passage of time they no longer remember what they said before the grand jury. This is not enough to move the court to exercise its discretion to permit these defendants to inspect their grand jury testimony, and these motions will be denied.

 'all books, papers, documents, and tangible objects relating to the within cause and in the possession of the government, which items were (1) obtained from the defendant, or (2) belonged to the defendant, or (3) were obtained from others by seizure or process.'

 The ground advanced for the motion is 'that the inspection and copying of the above items which contain information as to the alleged charge is material and necessary for proper preparation of the defense.'

 F.R.Crim.P. 16 provides:

 'Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney of the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. * * *'

 The government notes in its brief that in several respects the requirements of Rule 16 have not been met. Rule 16 permits discovery of designated articles, but defendants' motion is for discovery of 'all' articles, designating none. Moreover, the only 'showing that the items sought may be material' to the preparation of the defense is the bald and unsupported statement in the motion that inspection and copying are material and necessary for proper preparation of the defense.

 Under the Federal Rules of Civil Procedure, discovery on behalf of litigants has become an every day affair. 'It was intended by the rules (of Criminal Procedure) to give some measure of discovery' in criminal cases, Bowman Dairy Co. v. United States, 341 U.S. 214, 218, 71 .s. Ct. 675, 95 L. Ed. 879 (1951). Discovery in criminal proceedings, however, cannot be expected to attain the wide scope and mutuality which it has attained in civil matters because of the Fifth Amendment prohibition against self-incrimination. Nevertheless, the spirit of discovery is spreading in criminal cases, although it has limits.

 Defendants cite United States v. Fancher, 195 F.Supp. 448 (D.Conn.1961) in which the court permitted a considerable degree of discovery to the defendants, but the court there pointed out, 195 F.Supp. at p. 450:

 '* * * the Court holds that defendant has made a sufficient showing of materiality and reasonableness, in compliance with the requirements of Rule 16, to justify the granting of this branch of defendant's motion.'

 Since the moving defendants have made no such showing and since they have not designated the articles they seek they have not established any strong right to discovery.

 In the exercise of discretion, however, I deem it just and reasonable that the moving defendants be permitted to inspect and copy (a) all their own documents and (b) all other documents not their own but which were in their possession, which were obtained by the government from the moving defendants for the prosecution of this case.

 The same defendants have caused a subpoena duces tecum to be issued under F.R.Crim.P. 17(c), directed to the United States Attorney and one of his Assistants, ...


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