documents and objects, (a) have been presented to the grand jury; or (b) are to be offered as evidence on the trial of the defendants, or any of them, under said indictment.'
The government has moved to quash the subpoena.
Rule 17(c) provides:
'* * * The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial * * * and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.'
The Supreme Court dealt with the general problems of discovery under Rule 16 and pre-trial subpoenas under Rule 17(c) in Bowman Dairy Co. v. United States, supra. The holding of that case was that a subpoena duces tecum under Rule 17(c) might be used only to obtain evidentiary materials, but it was careful to point out (341 U.S. p. 221, 71 S. Ct. 675, 95 L. Ed. 879) that the petition for discovery must not incorporate 'a catch-all provision, not intended to produce evidentiary materials * * * merely a fishing expedition to see what may turn up.'
The moving defendants have patterned their subpoena on that used in the Bowman Dairy case. The government contends that the subpoena in the present case goes much farther because it does not contain the exclusion used in the Bowman subpoena,
and because it is not (as in the Bowman subpoena) restricted to materials obtained other than by seizure or process. It should be noted, however, that the Bowman case did not turn upon these exclusions from the reach of the subpoena.
The government cites United States v. Iozia, 13 F.R.D. 335 (S.D.N.Y.1952)
as establishing the elements of good cause to be shown by a defendant to entitle him to such a subpoena, 13 F.R.D. at p. 338:
1. That the materials are evidentiary and relevant.
2. That they are not otherwise procurable by the defendant reasonably in advance of trial by the exercise of due diligence.
3. That the defendant cannot properly prepare for trial without such production and inspection in advance of trial and the failure to obtain such inspection may tend unreasonably to delay the trial.
4. That the application is made in good faith and is not intended as a general fishing expedition.
In point of fact, the moving defendants have not established any of these elements of good cause. Because of this, and because their motion under Rule 16 is being granted in part, thereby making the subpoena unnecessary, the government's motion to quash the subpoena will be granted. Another factor which I have weighed in exercising discretion to grant the government's motion is the fact that as to the two moving defendants this is not a long and complex case in which those defendants are likely to be confronted at trial with a great mass of unexpected documentary evidence which would require careful and time-consuming study in order to be understood, as in some cases such as, for instance, an income tax prosecution based on the net worth theory. This is a conspiracy case involving one transaction with a bankrupt.
Defendants Abraham Ulitsky and Anna Ulitsky have severally moved for relief from prejudicial joinder. This case arises out of an involuntary bankruptcy proceeding against Herbert L. Wernikove, it being charged that he and members of his family conspired to violate the bankruptcy laws. Abraham Ulitsky, an uncle, is charged with the conspiracy. Anna Ulitsky, an aunt, is charged with the conspiracy and specifically with having knowingly and fraudulently received a material amount of property from the bankrupt after the filing of a bankruptcy proceeding against him, with intent to defeat the bankruptcy law, in violation of 18 U.S.C. § 152. Each of the two motions for relief from prejudicial joinder (a) denies that the moving defendant engaged in any conspiracy with any of the other defendants, (b) states that other counts of the indictment contain charges against other defendants concerning dates, places and offenses not related to the charge or charges against the moving defendants, evidence of which will be unnecessary and irrelevant to the charge or charges against the moving defendant, and (c) avers that compelling each moving defendant to stand trial with all the other defendants named in the indictment would be prejudicial and would deprive the moving defendant of a fair trial because evidence against other defendants would be inadmissible against him, resulting in a confusion of issues and a prejudicial atmosphere.
I cannot agree with these contentions. The trial judge will certainly charge the jury clearly and thoroughly on the way in which the evidence in the case applies to each count of the indictment and to each defendant. If any defendant wishes to submit points for charge to protect him, I am confident that the trial judge will give such points full and careful consideration. The motions for relief from prejudicial joinder will be denied.
AND NOW, January 4, 1963, (a) the motion of Abraham Ulitsky, a/k/a Al Ulitsky, for leave to inspect statements given by him to government agents is denied; (b) the motions of Abraham Ulitsky, a/k/a Al Ulitsky, and Anna Ulitsky for leave to inspect their testimony before the grand jury are denied; (c) the motions of the same two defendants for discovery and inspection of documents are granted with respect to all documents belonging to them and all documents not their own, which were in their possession and which the government obtained from them for the prosecution of this case; and with respect to all other documents the motions for discovery and inspection are denied; (d) the motions of the same two defendants for relief from prejudicial joinder are denied; and (e) the government's motion to quash the subpoena issued at the instance of the same two defendants for the production of documents prior to trial is granted.