Defendant argues that a new trial is required in this case in the interests of justice, and advances several grounds in support of his motion. Each ground will be identified and discussed in the order raised by the defendant.
Defendant's first contention is that he was prejudiced by not being able to obtain pretrial discovery of the minutes of the grand jury testimony, and by not having a transcript of the grand jury proceedings to use during trial for impeachment purposes. In an opinion filed August 21, 1974, this Court denied defendant's motion for pretrial discovery of the grand jury testimony because the defendant had not demonstrated the "particularized need" that must be shown before such discovery is allowed. Dennis v. United States, 384 U.S. 855, 16 L. Ed. 2d 973, 86 S. Ct. 1840 (1966). For the reasons stated in that opinion, defendant was not entitled to pretrial discovery of the grand jury testimony, and was properly refused a transcript of the grand jury proceedings.
Defendant next argues that he was prejudiced by the government's use of post-indictment discovery as a tactical device to obtain evidence prior to trial. This argument is based on the facts that the indictment on which defendant was convicted superseded an earlier indictment which was ultimately dismissed, and that during the period between the return of the two indictments the government continued to investigate the defendant's activities. See the opinion filed August 21, 1974 for a complete description of the occurrences prior to defendant's trial. Essentially, those pretrial facts are that the defendant was originally charged on October 11, 1972 in a one-count indictment with making false entries in violation of 18 U.S.C. § 1005; that, following the filing by defendant of several pretrial motions, among them a motion to dismiss the one-count indictment on the ground of duplicity, and two pretrial conferences conducted by this court, the grand jury returned a superseding indictment of 109 counts against the defendant on March 27, 1974, on 92 of which the defendant was convicted (see note 3, supra); and that the government dismissed the original one-count indictment on April 30, 1974.
Defendant's argument that the government engaged in impermissible post-indictment discovery in this case is without merit. The leading case with respect to such discovery is In re National Window Glass Workers, 287 F. 219 (N.D. Ohio 1922). In that case, a federal grand jury in the Southern District of New York had already returned an indictment charging defendants with violations of the Sherman Anti-Trust Act when the government sought to compel defendants' appearance before a grand jury in the Northern District of Ohio for the purpose of producing documents and giving testimony pursuant to an investigation by the Ohio grand jury of the same activities which had given rise to the indictment by the New York grand jury. The government was not seeking a superseding indictment in Ohio, but intended to first try the defendants on the New York indictment, and then try the defendants on the Ohio indictment only if the New York prosecution failed for lack of jurisdiction. After expressly finding that the dominating purpose of the Ohio investigation was to examine witnesses in advance of the trial in New York and to obtain documents and evidence for use in the New York trial, the court ordered that the Ohio grand jury investigation be restrained and that the outstanding subpoenas be vacated and set aside until the government either had tried the defendants in New York, or had filed a satisfactory stipulation evidencing an intention to try the defendants first upon any indictment that might be returned by the Ohio grand jury. See also United States v. Doe, 455 F.2d 1270 (1st Cir. 1972); United States v. Star, 470 F.2d 1214 (9th Cir. 1972). In this case, by contrast, any investigation conducted by the government after the return of the original indictment led to the return of a genuinely superseding indictment, which charged offenses in addition to, and different from, the offense charged in the original indictment, and to a dismissal of the original indictment. Furthermore, in addition to that major factual distinction between this case and the cases involving impermissible post-indictment discovery, there is absolutely no evidence in this case that the government engaged in any improper post-indictment investigation for the purpose of preparing an already pending indictment for trial.
Defendant next argues that a new trial should be granted because the jury was confused and prejudiced by the presentation at trial of evidence pertaining to the counts charging him with false entries in violation of 18 U.S.C. § 1005. Those counts were dismissed at the conclusion of the presentation of the government's case. See note 3, supra. Defendant, of course, adduces no evidence in support of his contention that the jury was thus confused and prejudiced, and I conclude, in any event, that the trial was not so complex as to confuse the jury to the defendant's prejudice. Moreover, any confusion that may have been caused at the trial of this case was cleared up by the Court's instructions to the jury.
Defendant next contends that his inability to call as witnesses at trial 8 of the 11 other directors of FNB, because of their death or incapacity, resulted in such prejudice to him as to warrant the granting of a new trial. The short answer to this contention is that the reason offered is more a ground for the dismissal of the indictment than a basis for a new trial, as those 8 directors would be equally unavailable at any future trial. To address defendant's contention of prejudice more directly, however, the fact is that the unavailability of these directors was offered in support of a pretrial motion to dismiss the indictment on the grounds of denial of the right to a speedy trial and prejudicial pretrial delay. At a hearing on that motion conducted by this Court on September 9, 1974 (during which, incidentally, the government acknowledged the unavailability of only 6 of the directors), defendant's counsel, when asked by the Court, did not indicate that he would have called the other FNB directors even if they had been available, and did not indicate what the nature of their testimony would have been if they had been called to testify. In addition, defendant failed to call at trial any of the directors who were available to testify. Thus, I conclude that the defendant was not prejudiced by the unavailability, because of death or incapacity, of some of the FNB directors.
The remaining grounds in support of defendant's motion for a new trial are scatter-gun accusations of prejudicial conduct and statements of government counsel, both prior to and during the trial. After careful consideration of those remaining grounds, I conclude that they are without merit. Accordingly, none of defendant's grounds in support of his motion for a new trial being meritorious, that motion must be denied.
SPEEDY TRIAL AND PREJUDICIAL PRETRIAL DELAY
As mentioned, supra, a pretrial hearing was conducted by the Court on defendant's motion to dismiss the indictment on the grounds (1) that he had been denied his right to a speedy trial, (2) that he had been prejudiced by prosecutorial delay, and (3) that because of unnecessary delay this Court should dismiss the indictment under Rule 48(b), F.R. Crim. P. On the basis of that hearing, as well as the briefs and affidavits submitted by the parties, I concluded prior to trial that the defendant had not demonstrated any prejudice on account of the lapse of time between the return of the initial indictment and the date that the pretrial hearing was conducted, which was approximately a week before his trial began, and that whatever delay was involved in that lapse of time, given the failure of defendant to demonstrate any prejudice, was explicable and justified by the many pretrial motions filed by the defendant and by the necessity for investigation of the complex and voluminous records involved in the case. See four-factor test elaborated in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). See also United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971), in which the Court held that the Due Process Clause of the Fifth Amendment provides a basis for dismissal of an indictment only if the defense can show at trial that prosecutorial delay has prejudiced the right to a fair trial. Defendant's motion was denied prior to trial in a brief order dated September 12, 1974.
Defendant has in effect renewed his motion at this point by arguing that the Court erred in denying his pretrial motion to dismiss the indictment. He has made, however, only a general allegation that the Court so erred, and has not offered any examples from the trial that would tend to show that he was prejudiced by any delay. After careful consideration of the events at trial, I once again conclude that there is no evidence that the defendant was prejudiced by any delay in being brought to trial. As discussed, supra, the defendant has demonstrated no prejudice by the unavailability of some of the other directors of FNB. Moreover, there was no evidence of any memory lapses on the part of any witnesses who testified at trial. In short, there are no signs in this case that the conduct of the defense was in any way impaired by the delay in bringing the defendant to trial. In addition, the defendant was not incarcerated prior to trial. In sum, I conclude that the indictment should not have been dismissed because of any delay in bringing the defendant to trial.
Defendant's motions will be denied.
William J. Nealon / United States District Judge
Dated: November 27, 1974
Now, this 27th day of November, 1974, in accordance with memorandum this day filed, defendant's motions for a judgment of acquittal, or in the alternative for a new trial, are hereby denied.
William J. Nealon / United States District Judge