agreement with Conrail was authentic rather than the Conrail version, which was handwritten rather than typewritten.
Since the Government had to disprove the authenticity of Jonnet's version in order to convict, it is clear that the deposition is entirely exculpatory with or without the typographical error. Defendant's claim of prejudice pays absolutely no regard to the evidence, the contentions of the parties, or the issues in the case. It is totally fallacious.
More importantly, even if the material were prejudicial, defendant was not deprived of a fair trial. There was overwhelming evidence to support the conviction, such as the testimony of others present at the drafting of the agreement of July 1, 1980 and of expert witnesses called by the Government.
Defendant also argued in support of a new trial that he was deprived of a fair trial because the Government knowingly presented false evidence to the jury and because the Government violated the Jencks Act, 18 U.S.C. § 3500, by failing to give to the defendant, after Ms. Aschcomb finished testifying, a copy of her statement to the F.B.I.
These grounds for a new trial also were rejected for the following reasons.
First of all, there was no evidence whatever that the Government knowingly presented false evidence to the jury.
Also, no violation of the Jencks Act occurred. Defendant failed at the close of direct examination of Ms. Aschcomb to ask the Court to order the Government to produce any statement by her in the Government's possession relating to the subject matter of her testimony. 18 U.S.C. § 3500(b). Consequently, the Government was not ordered to do so. In addition, the F.B.I. report did not constitute a "statement" as defined at 18 U.S.C. § 3500(e). Finally, since there was no order to produce which the Government failed to obey, the provision authorizing sanctions against the Government does not apply here. 18 U.S.C. § 3500(d).
The defendant also argued in support of a new trial that the incompetency of Bonita Lundquist to serve as a juror due to a hearing impairment violated his right to a fair trial and the requirement of 28 U.S.C. § 1865 that a juror may not be so infirm as to render unsatisfactory jury service.
No showing was made that Bonita Lundquist was unable to hear testimony offered in Court or to participate meaningfully in jury deliberations. Angeline Chieffo, who was not present during jury deliberations, testified only as to Ms. Lundquist's difficulty in hearing outside the courtroom.
Moreover, there is persuasive evidence that Bonita Lundquist's hearing problems presented no difficulty. To begin with, jury records indicate that she is employed as a bank teller. It is unlikely that she could be so employed if she had the sort of hearing impairment defendant alleges. Also, like all potential jurors, she was subjected to individual voir dire prior to trial. She answered all questions asked of her without apparent difficulty and was seated during trial immediately beneath a loudspeaker. Also, the jury was instructed in the preliminary charge that any juror having difficulty hearing testimony should notify the Court. Bonita Lundquist never indicated that she was having any difficulty.
IV. Motion to Dismiss with Prejudice for Prosecutorial Misconduct.
Defendant argued that the Government "knowingly, intentionally, willfully, and maliciously" attempted to have the three complete volumes of deposition testimony delivered to the jury room, even though the Government knew them to be erroneous, misleading, and extremely prejudicial. Such conduct, defendant claims, deprived him of a fair trial and should be punished by dismissal with prejudice.
The motion was denied because no showing had been made that delivery of the three volumes was the result of any conduct by the Government, knowing, intentional, willful, malicious, or otherwise. Also, as was pointed out previously, the presence of the three complete volumes was not so prejudicial to the defendant as to deny him a fair trial because there was overwhelming evidence to support a conviction.
V. Subpoena Duces Tecum Served Upon Assistant United States Attorney James Y. Garrett
The subpoena duces tecum served upon Mr. Garrett, who represented the Government at trial, requested him to bring "the entire case file" in this case.
The subpoena was quashed because it was overly broad. The request for the "entire case file" extends far beyond anything contemplated by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the Jencks Act, Fed.R.Crim.P. 16 or Fed.R.Crim.P. 26.2. It was quashed also because it possibly would have required Mr. Garrett to disclose matters that were presented to the grand jury and, hence, would have violated the prohibition in Fed.R.Crim.P. 6(e)(2) against such disclosure.
VI. Motion for this Court to Recuse and Service of Subpoena Duces Tecum upon the Honorable Hubert I. Teitelbaum.
Defendant contended that recusal was required by 28 U.S.C. § 455 in light of the fact that the Court would be required to rule on the testimony of its Administrative Aide and because, if Mr. Grainer indicated that the three volumes of the deposition were delivered at the direction of the Court, then the Court might have to testify as to the matter. A subpoena then was served upon the Honorable Hubert I. Teitelbaum, who presided over this action.
28 U.S.C. § 455 provides in relevant part that:
(a) Any . . . judge . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He also shall disqualify himself in the following circumstances: