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UNITED STATES v. BOND

September 24, 1971

UNITED STATES of America
v.
Stanley Ray BOND


Luongo, District Judge.


The opinion of the court was delivered by: LUONGO

Stanley Ray Bond is charged with bank robbery under 18 U.S.C. ยง 2113. A number of motions for discovery have been filed on his behalf under Rule 16, F.R. Crim. P. Most of the motions were resolved at the time of oral argument. Three of the motions (To be Furnished With Evidence Favorable To the Accused; To Inspect Physical Evidence; and To be Furnished With Statements of Promises, Rewards or Inducements) were held under advisement pending submission of additional memoranda of authority.

 Motion to be Furnished With Evidence Favorable to the Accused.

 In this motion defendant seeks to be furnished, prior to trial, "with all evidence which is of an exculpatory nature or which may be favorable to the accused * * *." The request is based upon the rule enunciated in Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215 (1963) that

 
"* * * the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

 Defendant argues that since Brady prevents the government from withholding evidence favorable to him, it is obligated to give him such information in advance of trial, and further that the knowledge of all such evidence on the part of all police officers should be imputed to the prosecuting attorney.

 The government takes the position, on the other hand, that Brady created no right of pretrial discovery, that its obligation under Brady is to conduct criminal prosecutions fairly and its conduct in that regard must be examined after trial, not before.

 As might be expected, there is some support for each of the divergent points of view expressed by the government and the defendant. The government points to United States v. Manhattan Brush Co., 38 F.R.D. 4 (S.D.N.Y. 1965) as authority that Rule 16 does not authorize discovery of Brady type material. As additional support for this view, it is pointed out that Rule 16, which provides for pretrial discovery in criminal cases, was adopted in 1966, some three years after the Brady decision, yet it contains no specific provision for discovery of such information. Several cases have regarded that omission as strong evidence that the rule makers did not intend to provide for pretrial discovery of such information. United States v. Moore, 439 F.2d 1107 (6th Cir. 1971); United States v. Zive, 299 F. Supp. 1273, 1274 (S.D.N.Y. 1969); United States v. Armantrout, 278 F. Supp. 517, 518 (S.D.N.Y. 1968), aff'd 411 F.2d 60 (2d Cir. 1969).

 Defendant's position has some support in the Local Rules of Criminal Procedure for the Northern District of Illinois, which provide (Local Rule 2.04)

 
"Pretrial Discovery and Inspection
 
(a) Within five (5) days after the arraignment the United States attorney and the defendant's attorney shall confer and, upon request, the government shall:
 
* * *
 
(6) Permit defendant's attorney to inspect, copy or photograph any evidence favorable to the defendant; * * *" *fn1"

 Our research has failed to disclose any case adopting that interpretation of Rule 16. The matter has not been resolved in this circuit. See United States v. Fioravanti, 412 F.2d 407 (3d Cir.), cert. denied sub nom. Panaccione v. United States, 396 U.S. 837, 90 S. Ct. 97, 24 L. Ed. 2d 88 (1969), in which denial of a request similar to the one made here was held not to be an abuse of discretion when defendant failed to set forth a reasonable description of the requested information. Insofar as the case before me is concerned, it is not necessary to decide that point since the government has answered and represented that it "has no knowledge of any evidence of an exculpatory nature in its files." That answer by the government complies with the liberal version as expressed in the Local Rule of the Northern District of Illinois. I find no authority for defendant's contention that the government is obligated to make an affirmative effort to ascertain from law enforcement officials whether any of them may have ...


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