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UNITED STATES v. PEIFER

August 17, 1979

United States of America
v.
Donald L. Peifer.



The opinion of the court was delivered by: TROUTMAN

MEMORANDUM AND ORDER

Defendant operates F. R. & S. Landfill in Exeter Township, Berks County, Pennsylvania. On April 26, 1978, Deputy United States Marshal James Duross entered defendant's property with a warrant authorizing a search for samples of water and effluent suspected of being illegally discharged into the Schuylkill River. *fn1" Defendant hailed the marshal with the words, "So this is the big Marshal". Within a few moments after service of the warrant, defendant perused its content, objected to its form, declared it invalid and pocketed it promptly. He told the marshal that he, the defendant, would not allow the samples to be taken, and that if samples were taken, the marshal and accompanying employees of the Environmental Protection Agency (EPA) and Pennsylvania Department of Environmental Resources (DER) would not be permitted to leave the property.

 During the next fifty minutes the search party engaged in various negotiations with the defendant to resolve their differences. The marshal drove his car to a higher point on the landfill several times to communicate by radio with his superiors in Philadelphia. Subsequently, the search party decided to commence the search and began to drive down an unpaved road out of the landfill area enroute to an adjacent area described in the search warrant. Waving his arms, defendant ran out into the middle of the road and motioned the vehicles, including the marshal's, over to the side of the road. The search party complied with defendant's demands. At that point defendant ordered an employee, David Hart, to position a pickup truck across the exit road, thus preventing the marshal's progress. During the late morning defendant's employees moved the truck several times to permit the ingress and egress of various vehicles, including refuse trucks and on one occasion the car of a state trooper. After each movement the truck was returned to its position across the road. At one point, defendant told Peter Bronner, a DER inspector and investigator, that the purpose of blocking the vehicles was to guarantee that he, Peifer, would be able to tow them out. At 12:45 P.M., approximately two hours after the marshal had served defendant with the warrant, he arrested defendant. The pickup truck was then moved out of the way and the search party continued to contiguous areas to begin sampling and tests.

 After a six-day trial a jury convicted defendant of knowingly and willfully obstructing, resisting and opposing an officer of the United States in his service and execution of judicial process of a United States magistrate in violation of 18 U.S.C. § 1501. Defendant now moves for judgment of acquittal notwithstanding the verdict, and in the alternative for a new trial, contending that the Court erred in denying the defendant's pre-trial motions, erred in several evidentiary rulings and alleging that the verdict was contrary to the weight of the evidence.

 I

 Prior to trial defendant moved for a bill of particulars, in which he demanded names and addresses of persons present at the place of the incident and during a conversation between the defendant and "the victim", the make and model of the vehicles placed on the road, and the "exact nature of the inquiry or investigation by the Government upon which it predicated its answers and representations". Defendant also moved for the government's witness list, "for notice by the government of the intention to use evidence" *fn2" , and to dismiss the information on the grounds of improper arraignment and venue and impermissible vagueness in the information.

 The purpose of granting a bill of particulars under Rule 7(a) of the Federal Rules of Criminal Procedure is

 
to inform the defendant of the nature of the charges against him (so that he may) adequately prepare his defense, to avoid surprise during the trial and to protect him against a second prosecution for an inadequately described offense.

 United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir.), Cert. denied, 405 U.S. 936, 92 S. Ct. 949, 30 L. Ed. 2d 812, Reh. denied, 405 U.S. 1048, 92 S. Ct. 1309, 31 L. Ed. 2d 591 (1972). However, the defendant is not entitled, in advance, to a complete preview of the government's evidence and case or to "wholesale discovery" of the prosecutor's file. United States v. Armocida, 515 F.2d 49, 54 (3d Cir.), Cert. denied sub nom. Gazal v. United States, 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975), United States v. Addonizio, supra at 64. Prior to trial defendant is not entitled to know the identity of government witnesses through a motion for a bill of particulars or a discovery motion under Rule 16. United States v. Mitchell, 540 F.2d 1163, 1166 (3d Cir. 1976), United States v. Addonizio, supra at 64, United States v. Smith, 405 F. Supp. 144, 146 (E.D.Pa.1975), United States v. Jaskiewicz, 278 F. Supp. 525, 529 (E.D.Pa.1968). Similarly, defendant is not entitled to the statements of all government witnesses prior to trial. Fed.R.Crim.P. 16(b), Jencks Act, 18 U.S.C. §§ 3500(a) and (e)(3), United States v. Feinberg, 502 F.2d 1180, 1182 (7th Cir. 1974), United States v. Smith, supra at 145, United States v. Leta, 60 F.R.D. 127, 130 (M.D.Pa.1973), or disclosure of the government's legal theories or evidentiary details. United States v. Addonizio, supra at 64, United States v. Conway, 415 F.2d 158, 162 (3d Cir. 1969), Cert. denied, 397 U.S. 994, 90 S. Ct. 1131, 25 L. Ed. 2d 401 (1970), United States v. Mt. Fuji Japanese Steak House, Inc., 435 F. Supp. 1194, 1198 (E.D.N.Y.1977), United States v. Leonelli, 428 F. Supp. 880, 882-83 (S.D.N.Y.1977), United States v. Bloom, 78 F.R.D. 591, 600 (E.D.Pa.1977).

 Denial of the bill of particulars could not have adversely affected defendant's ability to prepare his defense adequately. He was present most of the time that the marshal stayed on the property and was obviously present when he ordered the pickup truck placed across the road. Defendant saw who was there and heard what was said. In light of the information provided under Rule 16 and gleaned from the probable cause hearing, the factual details and legal issues which arose at trial could hardly have been surprising.

 Defendant also filed a pre-trial motion alleging violations of Fed.R.Crim.P. 5(a) and Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957) and urging dismissal of the information because of the government's "failure to obtain proper venue by taking the defendant to Philadelphia, Pennsylvania, rather than to the nearest United States Magistrate in Reading." Defendant's Memo at 2. The purpose of Rule 5(a) is to guarantee that the government does not use delay between arrest and an initial appearance to subject defendants to unwarranted or coercive interrogation. Mallory v. United States, supra at 453-54, 77 S. Ct. 1356, United States v. Gaines, 555 F.2d 618, 622 (7th Cir. 1977). Where delay is not in fact used for that purpose, no prejudice results and Mallory is irrelevant. United States v. Grandi, 424 F.2d 399, 402-03 (2d Cir. 1970), Cert. denied, 409 U.S. 870, 93 S. Ct. 199, 34 L. Ed. 2d 121 (1971). *fn3"

 In the case at bar defendant alleges that the "additional delay in awaiting transportation to Philadelphia was calculated to deprive the defendant of his constitutional guarantees". Defendant's Memo at 2. Yet defendant does not show what prejudice resulted from the alleged delay or upon what constitutional rights this delay impinged. Defendant obtained his initial hearing before a United States magistrate a few hours after arrest. Bail was posted, and defendant was advised fully of the charges against him. Government's agents elicited no statements from defendant between the time of his arrest and initial hearing. Therefore, no prejudice resulted from selection of Philadelphia as the place to bring defendant before a magistrate *fn4" No relief was warranted.

  Defendant's final pre-trial motion assailed the information as fatally vague because it failed to name the officer of the United States allegedly intimidated and to state that the judicial process was legal in form and purpose and to name which United States magistrate issued it. The standard by which to test the sufficiency of an indictment or information is simply whether the time, place and elements of the offense charged are alleged therein. United States v. Gibbons, 463 F.2d 1201, 1202 (3d Cir. 1972), United States v. Kenny, 462 F.2d 1205, 1214 (3d Cir.), Cert. denied sub nom. Kropke v. United States, 409 U.S. 914, 93 S. Ct. 233, 34 L. Ed. 2d 176, 93 S. Ct. 234 (1972). Nowhere does defendant allege or suggest that these standards are not met. Instead, defendant complains that the information is defective because neither the magistrate authorizing the warrant nor the serving officer is named therein. But the issue is "not whether the information could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged". Hagner v. United States, 285 U.S. 427, 431, 52 S. Ct. 417, 419, 76 L. Ed. 861 (1932). Defendant does not contest the fact that the information completely describes each element of the charged offense. Nor can defendant seriously assert that the identity of either the magistrate or serving officer remained unknown at trial. Defendant learned the identity of the serving officer during the probable cause hearing; the identity of the magistrate is patent from the search warrant itself, which the defense introduced into evidence at the probable cause hearing. Furthermore, discovery material which the government provided to defendant pursuant to Rule 16, information provided defendant at the probable cause hearing and facts set forth in the complaint and warrant sufficiently apprised defendant of the precise facts and issues to be litigated at trial. Policies supporting the requirement of a descriptive information are fully satisfied under these circumstances. Undoubtedly, defendant

 
would be fully protected from again being put in jeopardy for the same offense, particularly when it is remembered that (he) could rely upon parts of the present record in the event that future ...

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