Folder 9/2: Peter Kreindler (PMK) Materials/watergate Special Prosecution Force (WSPF) Files From CR 74-110 (U.S. v. Mitchell, Et Al.) Re: Richard M. Nixon (RMN) Testimony/deposition in That Trial

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RICHARD M. NIXON - Testimony/
Deposition
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\ ;ATERGATE SPECI AL p",vSECUTION FORCE
lr[emorandum
TO
Pp.ter Kreind1er
DATE: Hay 30 , 1975
FROM Kenneth Geller Kfr'
SUBJECT: Administration of oath to Richard Nixon
Here ar e my preliminary findings on the question
of who would be authorized to administ.er an oath to
nichard Nixon in the proposed deposition in California .
Statutes of the United States authorize var icus
officers to administer oaths in certain types of pro-
ceedings . The only statutes which would appear ap-
plicable to this situation are the following :
1. united States magistrates . 28 U. S. C. 636(a)
(2)
2. Justices and judges of the United States . 28
U.S . C. 459.
3. Each federal clerk of court and his deputies .
2 8 U. S .C. 959 .
4 . The Vice President of the united States . 5
U.S.C. 2903 (c) (1).
5 . "An individual authorized by local l aw to
administer oaths in the State , District, or territory
or possession of the Un ited States '",here the oath is
administered ." 5 U. S. C. S 2903(c){2) . I have not yet
checked California law but I \...-ould assume this category
\','ould include California judges and notaries public .
Several other provision. Hhich \lould be nice to
use do not seem applicable . ~ u l e 6(c) of the Criminal
f.ul es authorizes the foreman of a grand jury to adminis-
ter oaths , but I would assume that is limited to actual
gr and jllry proceedings and not proceedings ancillary to
3. grand jury . Similarly, Rule 28(a) of the Civil RuleS
provides that "the court in which {an1 action is pending "
may appoint a person to edmir.istcr oaths in a deposition,
but this obviously is not a deposition being taken pur-
suant to the Federal Rules of Civil Procedure. Finally ,
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5 U. S. C. 303 provides :
An employee of an Executive department law-
fully assigned to investigate frauds on or
attempts to defraud the United States , or
irregularity or misconduct of an employee
or agent of the United States, may administer
an oath to a witness attending to testify or
depose in the course of the investigation .
Nore work must be done on this section, but I have
tentatively concluded ~ h a t our subjects of inquiry
would not fall within those enumerated . Indeed, the
only reported decision construing section 303 viewed
the statute quite narrowly and reversed a perjury con-
viction . United States v. Doshen , 133 F. 2d 757 (3d
Cir. 1943) .
My tentative conclusion, therefore, is that we
use the services of a United States magistrate who, of
the categories of persons listed above, can probably
be depended upon to be most discreet .
More t o come .
cc : Mr . Ruth
WATERGATE !WECI AL PROSECUTIOi\' FORCE
United States Depanrncnt of Justice
1425 K Street. N. W.
Washinglon. D.C. 20005
July 2, 1975
Wm. Snm-( Frates, Esq.
Floyd Pearson Stewart Proenza
(0 Richman, P. A.
Twelfth Floor Concord Building
Miami , Florida 33130
Dear H.r . Frates :
This is to reiterate the telephone conversation you
and I had this afternoon concerning your letter of June
30, 1975, to Hr . Ruth requesting a copy of the testimony
that Hr . Nixon gave under oath.
As I informed you, we are not free to disclose
that testimony without an order of court pursuant to
Rul e 6(e) of the Federal Rules of Criminal Procedure .
For your information, I am enclosing a copy of the stip-
ulation that ",as ordered filed by Chief Judge Hart '''hich
discloses the circumstances of the examination of Nr .
Nixon . I also wish to inform you that it is our under -
standing that l1r . Hundley ,.,ill be filing something in
court on 110nday on behalf of Hr . f.1itchell with respect
to this matter .
Enclosure
Sincerely I
O ~ J > J . ~ ~
Peter H. Kreindler
Counsel to the Speci a l
Prosecutor

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Let's hear witness Nixon
Almosl a year after the Watergate scandal
d imucd in the resignation of President Nixon.
we are lIS reluclanlllS anyone to start waHowln8
11I3in. The thought of being confronted "'1th a
new lome of dialogue llbout cover-up slfnle-gies.
l ape gaps, packllRes of money. pLumbers.
enemies liSls. HahlcrnanEhrHchman: It i,
hardl y the way to the Glorions FOllrth in
this preBicentennial year.
BUI the possibility cJ such a call to duty
be ft'.ced. Richard Nixon. after )'Clln of duckinl
and being 100 sick for as a swom WIl-
ness 10 the events thot wrecked his administra
tion end menaced Ihe American constitutional
system, has been qUfltioned under 0.11h before
lUI oddly convened grand jun' selSion in Califor-
nil. Hil testimony is properly secrel at this
point, lind we do not favor any leak
age through the gr and jury seal. His answers to
the 5ptcial prosecutor. too, cannot result in any
charees 8gainst him for his actions while presi
dent. because of t he sweepinll pardon granted
him lut September by his appoillled SUC(;C5S0r,
President Ford.
There are persuas!\'e reasons why Nixon's
venion of the Water/::lte story _ one thai neccs,
sarily addressu the ill(:rimin:lting questions in
a pointed way than his eventual memoirs
will_ lhould be an important part of the histor-
ical record covering one of the greal lraumas of
American politic,. Any iru;ight into his motiva-
tion and behavioral failinlS could help \'oters in
thei r consideration of future wouldbe presi
dents. lind presidents in their IIpproach to the
job lind their view of the proper bounds of pres!
dential power. The information eou1d put to re't
any linller ing doubts aboat wbether Nixon
5houtd have rouled from office when and UI
the manner he was.
Nixon's personal role could bear on the gIIi!t
of alreadytried Watergllic defendllnts. Iud
those who miKhf be charged in fUlure indIct
ments. (Only his illness Stll\'ed off his testimony
in the coverup trial, and I:r.wyers for John Ehr-
liclunan aDd H.R.Haldernan may seek 10 peruse
the gr:r.nd jury transcript for h.elp m appeahnc
those convictions.) 1\'i.'I[on also I. a l1ewly Ivail
able witnes$ in Watergaterelated civi l suits, so
there is II cbance that part. of hil 5tOry will be
l,'),1.rilcted in legal proceedings.
The grand jury tr.\IISCript, for Ihat matter,
C8.lUlot be more than II paniltl and fraR'Tllented
account of the complicaled Walergate ahalr de-
spite the 11 houu Nixon spent on the st:r.nd. The
special pneutor's office apparently souaht to
tie up loose ends (like the 18\i-minUle tape gap
aDd the mnney-baDdlinl{ role of e.G. Rcbozo)
prep30ralory to making IU fin:ll I"!!part, "lid !O
decide whUhcr fUrl her prosecunons Ifere III
order. We dem't know ror certain what was
covered, bow effective the questioning W85 or
bow open were the former president's replies.
We still hope to learn the substance of r;lxoll's
swom account, through the prosecutor's
repan. II courtapproved opening 01 the
grand jury mmutes andlor tbrougb further, pub-
lie teSlimony by Ihe former president. II may
not be pleasant reading. but the imlruclioo 11.1l1
obtained should be worth a brief, fwal wallow.
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UNT'J'ED STM'ES DIS'l'HIC'J' COUR'l'
1,'01{ THE 0):' COLUHDlfl
IN RE .1A!Wl\RY 7 , 1974
GMND Juny
STIPULATION
Misc. No.7'::::" / <J
HIIEREAS on June 23 a nd 24, 1 975 , Richard H. Nixon
voluntarily submitted to an exami nation under oath et the
San Hateo Loran Station, United States Coast GUilrd, San
Diego County, California, said examination conducted by
the I'latcrgate Special Prosecution Force on matters subject
to pending Grand Jury investigations, said examination
ancillary to and with the consent (based on the health of
Richard Nixon and other legal considerations) of tho
January 7, Grand Jury of the United Stat es District
court for the District of Columbia, and said examination
attended by two Grand Jurors with the approval of the
Chief Judge of this Court; and
WHEREAS said examination was taken for presentation
t o and to be made a part of the minutes of the aforesaid
Grand Jury; and
WllEREJ\S Richard H. Nixon, becnusc inquiries have been
made concerning thi s matter, desires that the fact of this
proceeding be made publ ic , but only v/ith the consent of
the Court; Ilnd
the Special Pr05ecutor has no objection
thereto;
NON, THF.REFORE, counsel for Richard H. Ni xon and the
Special Prosecutor on this 26th day of June, 1 975 , her.eby
z:;tipulate t hat this statement shall be filed with the Court .
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STATEMENT ISSUED BY NR. HILLER ' S OFFICE - (,/)7/75
As appears from the stipulation filed in the United
States District Court for the District of Columbia by the
Special Prosecutor and the attorney for former President
Nixon yesterday t 11r. Nixon on Honday and Tuesday of this
week was examined under oath at the Coast Guard station
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~ what used to be the Nestern White House in San Clemente ,
California . Some members of one of the Watergate grand
juries were present. The examination \'/ as conducted by
several members of the office of the Special Prosecutor and
consisted of a total of approximately eleven hours of
questioning over the h'/o day period. The examination
covered a wide range of subjects.
Hr . Nixon was not under subpoena . His sworn test i-
mony in California for the District of Columbia grand jury
was voluntary and responsive to the expressed desires of
the office of the special Prosecutor for his testimony
relative to the grand jury' s ongoing investigations. It
\'/as the former President ' s desire to cooperate with the
office of the Special Prosecutor in the areas t>lhich that
office desired to interrogate him, and it \'/as Mr. Nixon ' s
feeling in view of the anticipated l ength of his testimony ,
the prescnt state of his health, and the complications
inevitably attendant to extended travel , the examination
\iould be most efficiently conducted in California .
Hr . Nixon ' s decision to testify followed consultation
with his medical advisors. The exami nat i on i tself \V'as
conducted on r-londay and Tuesday , June 23 and 24 , 1975 .
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WATERGATE SPECIAL PROSECUTION FORCE DEPARTMENT OF JU!:>T1CE
! Memorandum
TO
ALL STAFF DA.TE: June 27, 1975
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I I " R O ~ t '\ :
Henry S. Ruth, Jr .
SUBJCT:
As some of you know, on Nonday and Tuesday of this
week, under extreme precautions of confidentiality both
preceding and during the two days, members of this Office
took s,",orn testimony from Hr. Nixon about matters pending
before Grand Jury III. The attached stipulati on was released
this morning by Chief Judge Hart at the Courthouse and reflects
the only matters about the sworn testimony that are permitted
to become public knmdedge.
Consequently, no member of this staff shall speak to
members of the press , friends , and other persons concerning
any aspect relating to the actual occurrence or content of the
testimony. As to those who were present during the testimony,
no comreents shall be made outside the Office concerning any
aspect of what he or she saw or heard. In other words, we are
treating this, as is our obligation, as we would any other matter
involving grand jury testimony. Members of the press may try
to reach you at home or in the office at any time of day or
night for any scrap of detail. None should be furnished. All
calls should be referred to John Barker.
There wil l be no exceptions to the above ground rules
and no violation thereof will be countenanced.
tlNI'fED STATES DIS'f RICT COURT
FOR TilE DISTRIC'J' OF COLUHDIl\
IN HE JANUARY 7, 1974
GRlINO JURY

Hisc. NO .

WIIEREAS on June 23 and 1975 , Richard II. Ub:on
voluntarily to an examination under oath at the
San /lllteo Loran Stlltion, United States Guard, San
Diego County , California , said examination conducted by
the Special Prosecution ],'orce on matter!; subject
to pending Grand Jury investigations, said
ancillary to and \1ith the consent (based on the health of
Richard 1-\. Nixon and other legal of the
January 7 , 1974 Gr.:l.nd Jury of the United States District
Court for the Oistrict of Columbia, and said examina tion
attended by Grand Jurors \/ith the approval of the
Chief Judge of this Court; and
I-lIlEREAS said examination \"a5 taken for presentation
to and to be nade a part of the minutes of the aforel:lnid
Grand Jury; and
WIIEREAS Richnrd H. Nixon, inquiries have been
made concerning this natter, desires that the fact of thin
p roceeding be made public, but only with the consent of
the Court; and
\'IIlEREAS the Special Prosecutor has no objection
thereto;
TIIEREFORE , counsel for RicharCl Nbwn and the
Special Prosecutor on this 26th Clay of Juno, 1975 , hereby
stipulate that state::tent shall be filed with the Court .
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lH \ ERT
Counsel
Nb:,"
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So ordered:
CHIEl? JUDGE:
Dntod: __________________ __
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE JANUARY 7, 1974
GAAUD JURY
STIPULATION
Misc. No.
WHEREAS on June 23 and 24, 1975, Richard N. Nixon
voluntarily submitted to an examination under oath nt the
San Mateo Loran United States Coast Guard , San
Diego County, California, said examination conducted by
the Watergate Special Prosecution Force on subject
to pending Grand Jury investigations, said examination
ancillary to and with the consent (based on the health of
Richard M. Nixon and other legal considerations) of the
January 7, 1974 Grand Jury of the United States District
Court for the District of Columbia, and said examination
attended by two Grand Jurors with the approval of the
Chief Judge of this Court : and
WHEREAS said examination was taken for presenta tion
to and to be made a part of the minutes of the aforesaid
Grand Jury : and
WHEREAS Richard 11. Nixon , because inquiries have been
made concerning this matter , desires that the fact of this
proceeding be made public , but only with the consent of
the Court: and
WHEREAS the Special Prosecutor has no objection
thereto;
THEREFORE, counsel for Richard M. Nixon and the
Special Prosecutor on this 26th day of June, 1975, hereby
stipulate that this shall be filed with the Court .
So ordered:
CHIEF JUDGE
Dated :
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HENY S . RUTH , JR.
Special Prosecutor
WAI EIUjA,I' SPECIAL PROSECU1IQI\ rORC!:
United States Department or Just ice
1425 K Street. :\I. W.
Wa. hington, D.C. 20005
May 28, 1975
Herber t Miller, Esquire
Suite 500
2555 11 Street, N. ~ i .
Washington, D. C. 20037
Dear Hr . fUller:
k=A;' , p 0 I (' V"'
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Enclosed are materials pertinent to the investi-
gations into the causes of the 18 1/2 mi nute gap in
the tape of a conversation recorded on June 20, 1972 ,
and into certain unreported campaign funds (UCF).
Additionally, \-;e are enclosing transcripts of various
recorded conversations relevant to the "Gray" and
"wiretap" investigations . In those instances in
which "'e are supplying transcripts not used at the
trial of United States v. Mitchell, et aI , we caution
you that these arc preliminary drafts and do not
necessarily constitute complete transcriptions of all
t hat is on these various recordings. We believe ,
however, that they are s u fficiently precise to a ssist
your client in refreshing his recollection on these
subjects. rle are in the process of completing several
other transcripts and these will be supplied to you
shortly.
If you have any questions , please do not hes itate
to contac t me.
Very truly yours,
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Richard J. Davis
Assistant Special Prosecutor
Enclos ures
WATERGATE SPF.CIAL PROSECUTION FORCE I>EPARTMF.:\'T OF JnTI CE
Memorandum
TO Peter Krcindler DATE: Hay 30, 1975
FROM Kenneth Geller Itfr'
SUBJECf: Administration of oath to Richard Nixon
Here are my preliminary findings on the question
of who \,'ould be authorized to administer an oath to
Richard Nixon in the proposed deposition in California .
Statutes of the United States authorize various
officers to administer oaths in certain types of pro-
ceedings. The only statutes "'Jhich would appear ap-
plicable to this situation are the following:
1. United States magistrates . 28 U.S.C . ~ 636(a)
(2)
2. Justices and judges of the United States . 28
U. S . C. 459.
3. Each federal clerk of court and his deputies .
28 U. S . C. 959 .
4. The Vice President of the United States. 5
U. S .C. 2903(c) (1) .
5. "An individual authorized by local law to
administer oaths in the State, District, or territory
or possession of the United States where the oath is
administered ." 5 U.S . C. 2903(c) (2) . I have not yet
checked California law but I would assume this catesory
would include California judges and notaries public .
Several other provisions which ... muld be nice to
use do not seem applicable . Rule 6(c) of the Criminal
Rules authorizes the foreman of a grand jury to adminis-
t er o a ~ h s , but I would assume that is limited to actual
grand jury proceedings and not proceedings ancillary to
a grand jury . Similarly , Rule 28(a) of the Civil Rules
proviees that "the court in ... .'hich Ian) action is pending "
may appoint a person to administer oaths in a deposition,
but this obviously is not a deposition being taken pur-
suant to the Federal Rules of Civil Procedure. Finally ,
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5 U.S . C. S 303 provides:
An employee of an Executive department law-
fully assigned to investigate frauds on or
attempts to defraud the United States, or
irregul arity or misconduct of ap. employee
or agent of the united States , may administer
an oath to a witness attending to testify or
depose in the course of the investigation .
More work must be done on this section, but I have
tentatively concluded that our subjects of inquiry
would not fall within those enumerated . Indeed, the
only reported decision construing section 303 vie .... ed
t he statute quite narro .... ly and reversed a perjury con-
viction . United States v . Ooshen , 133 F.2d 757 (3d
Cir. 1943) .
My tentative conclusion, therefore, is that we
use the services of a United States magistrate who , of
the categories of persons listed above , can probably
be depended upon to be most discreet.
More to come.
cc: Nr. Ruth
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RJDHS;a.:.bas
WATERGATE SPECIAL "ROSECUTrON FORCE
United States Department of Justice
1425 K Street. ;"\ . W.
Washington. D.C. 20005
Hay 23, 1975
Herbert J. Hiller, Jr., Esq.
Miller, Cassidy , Larroca & Lew'in
2555 M Street ~ - W .
Suite 500
Washington, D.C. 20037
Dear Mr . Miller :
At our meeting with you and !-Ir. Mortenson on May 20,
and with l>!r . Z,!ortenson on May 21, we detailed at length
the areas in which we intend to seek the grand jury testi-
mony of your client, Richard Nixon. 1\s \'le indicated at
these sessions , \'le are t-lilling to supply the principal
documents which would be used during questioning and
which should be helpful in refreshing your client's
recollection about the pertinent events in which the
grand jury is interested.
tie are enclosing copies of the principal documents
which wi ll be used in connection with the inquiry into the
selection of certain ambassadors and the use of the
Internal Revenue Service with respect to Lawrence O' Brien.
In those instances where you already have the document
involved, we are only identifying on the attached list
the document number and package date in which i t can be
located . In the O' Brien area, there are also a few
documents that should remain in our custody. But we
would certainly consent to the examination of these
documents by you or your designated associate in this
office.
As He assemble documents in other areas , we will
make them available to you. In addition, as we receive
further documents or continue to review our files , other
pertinent material s may come to our attention. Nhen and
if this occurs, we will advise you of any significant
materials.
ri 10 \
;:- hron
Rut h (2)
Davie /
.reindler .
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I understand from Hr. Hortenson that by Monday , May 26,
you will provide us a medical report on the current status
of your client ' s health and his ability to travel to
Washington . D.C., for testimony . I also understand that
you to/ant to talk further about the date and place of the
proposed testimony. On that basis, we have not yet served
a grand jury subpoena; but if it becomes necessary to
serve such a subpoena , we intend, as you agreed, to make
the subpoena returnable on May 29. of course , voluntary
testimony would be postponed until sometime in the middle
of June 1975.
Enclosure
Sincerely,
HENRY S. RUTH, JR.
Special Prosecutor
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IDhc Wtlsbington 11051
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In Ilk. ,,..orn tHtlmOny 1'0"" In qu.llflod It"e top>, ."""rdlnl 10 n.11*
m.h,rd Ii,.,," In <on"ff- \ ... .. lnl.l.r In oath." H.1Jl<'rln'llult nlrne. Seo"" rin', .uit.
lion ,,\th th. 0' 11'1111.01 G. Hundley. 1'";xoo", IMY of !;tll. Henl")' /I.. KI.
13 lormer I:o.-,,,monl oUl .uornry. pJd In In Intend"", linge, ond floe former lOP 01
rl,l, and lour now.m..... he "'Quld OPI"'5e t he noll." on n.llll 01 th NIIOn .dn,lnl ..
A noli"" .. as Iilod In U.S the that Ihe former 'uLion .. dele"""nt> I. "'on
D,.iron Con" he", 1I .. I,n. P""Oidrnl I. Immune frolll If Nixon .... bo nan,""
\101' ,ttorn.,-, 1M Morton II ..... ___ uIOon In .i,'I] prl)<'eed .... th. & ]'0'0-
1I':p",-in. - form'" \\"h" . .. l"M ... .....,m"nl bu II" mI. Co, .nd four
aide .ho brou,M ,hel_'b' lublll.Ur<i brief In "Jolin e""
I ...... L .. ould ,",ke .. II ",,,UeI I"'" "';",on plorod bl' U>& 1'1.11 and other
.""_1'100 .. """ orol obo\lld be dl&mlucd. as .... nmen' .,tnrks.
... Uon ... OR Frldoy. JUM n. fend.." In U.., eOR- Untkt u.., ,e ..... of UIC wi,..
1m, or o""h oth .. dOle "111 .. &1 uode",lOOd ,""t U.., up proylllom of 'he OmnIbus
mal. tIC upon bM .. ..en noUce of ""pooHlon "'U de- en..... ConlJ'Ol ol>d Sife
partl .. , 01 pi ..... 1"_ yl .. to ,,,,,t ... ""ther 1M tourU Stn<U Art of 1918, e"",h de-
'I.uently to be dele,mlMd In or would ""mlltl l'ii10n to t",illy fend.an\ ..... Id be ""'I$M
I." , ....
WATERGATE SPECI AL PROSECUTION FORCE DEPARTMENT OF JUSTICE
Memorandum
TO
fROM
SU8JECT:
Files DATE: May 19, 1975
Peter M.
Nixon Testimony
Stan Mortenson called this morning to ask whether we
would delay issuing the subpoena until wednesday. I
stated that I would have to confer with Mr. Ruth,
but that in no event would we delay issuance if it
would mean that we would have to change the return
date or that in a motion to quash, it would be argued
that they had been given less notice. After conferring
with Mr. Ruth and Mr. Davis, it was decided that we
would agree not to issue the subpoena until Wednesday,
and I called Mr. Mortenson, telling him that we
expected to hear from him noon, Wednesday.
cc: Mr. Ruth
Mr. Davis
Mr. Geller

May 16, 1975
Herbert J. Miller, Esquire
2555 M Street, N. tIT,
Suite 500
Washington, D. c. 20037
Dear Mr. Miller:
As we have indicated in the past, this office has
been evaluating its need to question your client, Richard
M. Nixon, in connection with various investigations being
conducted by us. It has now been decided that it is
necessary to do so. After consulting with the Grand Jury,
we have determined that his testimony is required in
connection with certain areas of continuing inquiry.
Accordingly, we plan to issue a subpoena on lotay 19, 1975
requiring your client's presence before the Grand Jury
on May 29, 1975.
We expect that we will be able to cover the areas of
inquiry before Grand Jury in eight hours of question-
ing, spread over a two-day period. During that time we
plan on covering questions in the following general areas:
1.
2.
3.
The circumstances surrounding an 18 1/2 minute
gap in the tape of a meeting between Nixon
and Mr. Haldeman on June 20, 1972.
Any t of-1arge &nounts of cash by Charles
G. Reba or Rosemary Woods on Mr. Nixon 's
behalf d financial transactions between
Mr. Nixon and Mr. Rebozo.
Attempts to prevent the disclosure of the
existence of the National Security council
wiretap program through removal of the records
from the FBI, the dealing with any threats to
reveal their existence, and the testimony of
L. Patrick Gray at his confirmation hearings.
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4. Any relationship between campaign contributions
and the consideration for Ambassadorship s for
Ruth Farkas, J. Fife Symington, Jr., Vincent
deRoulet, Cornelius V. Whitney and Kingdon
Gould, Jr.
5. The obtaining and/or release of information by
the White House concerning Lawrence O'Brien
through use of the Internal Revenue Service.
In each of these inquiries, the attorney prinoipally involved
in the investigation is prepared, prior to Mr. Nixon's
appearance, to discuss with you in more detail the subject
matter that your client will be questioned about, to make
available any transoripts we have of pertinent tapes, and
to identify the principal documents which will be used in
the Grand Jury. Additionally, we stand ready to consider
any reasonable request you may make aimed at preserving the
normal confidentiality of a Grand Jury appearance and at
avoiding any unnecessary inconvenience to Mr. Nixon. As we
already have told you, if necessary, we are prepared to seek
permission to convene the Grand Jury in another secure place
in the District of Columbia other than the courthouse. Also,
8S we discussed with you on May 13th, if Mr. Nixon is pre-
pared to voluntarily appear in the Grand Jury, we would be
willing to postpone the date of that appearance to sometime
in June.
There are also a small number of subject matters about
which we would like to question Mr. Nixon, but for which a
Grand Jury appearance will not be necessary. We are, of
oourso, willing to provide you with the same detail about
these subjects as we are about those proposed for Grand
Jury questioning.
It also may be necessary to ask Mr. Nixon some questions
concerning the deletion of specified material from the sub-
mission of transcripts of Presidential conversations to
the House Judiciary Committee on April 30, 1974. If your
client is willing, we are prepared to discuss this with him
in an interview. If, however, he declines to be interviewed
on this subject, then we would also include this in the
areas of Grand Jury inquiry. I should add, however, that
it may be unnecessary to speak with Mr. Nixon about this
matter if we are able to ask Mr. Buzhardt and Mr. St. Clair
a limited number of questions.
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As mentioned above, we will be issuing a subpoena on
May 19th. Since we assume that you would 11ke this sub-
poena to be served with a minimum of inconvenience to your
olient or publicity, we will contact you at that time to
discuss the procedure for service.
Sincerely,
HENRY S. RUTH, JR.
Special Prosecutor
J
RA.DIO TV REPORTS. INC .
... "''' WISCONSIN "'VI!:, N W. W ...... , .. O .. O ... 0. C. aoo . :0 ..... ,. ... 0
SPECIAL PR05CUTtON FOQCc
FOR
PROGRAM
cas EvenIng WTOI' TV
CBS Itet.ork
STAT ION
DATE;
1: 00 P:l

D. C .
809 Just over" yeer linD , then President
Nixon r,,188$IIO edlta(j t renserlots 01 " number of his t"oed White
converSlltlons . The ?resldent h es nothlnn to hldo , he told
II o ll tl o""' TV lIl/dlenee ; the trl'lllscriots . 1'10 5111d . will tell It 111 1.
Su t &s time ,,"$sed lind the ",ctulIl teoes became loble,
It becllme evident thet the Whi t e Youse edltlnn h"d Itsel f served
to furth er the Weterqllte cover - up . thet edltlno hll5 como under
011 lel/'ll I nvestlCllltlon .
Oenlel Schorr hilS thllt story .
DANIEL SCYORR : The own
of the showed Imoortant chanqes and omissions trom tile
'IIhlte House verSion. the result , C'3S Iflarned Soeclel
Prosecutor Henry Ruth 15 the qrand Jury to act under a law
maklnq It a crime to falsify materIal In
lnvestlaatlon. A SDokes'IIan confirl'l'!d that the Prosecutor conductlno
an lnves-tlt,latlon of what went into [lreollrlnq the wlllJte House document .
l3elna called liS witnesses, it ' s understood , are (feneral
Halo, who President Nixon ' s of staff , and J .
Fred 9uzhllrdt , the White lawyer who worked most closely on the
ta!)es.
The maClallne New Reoubllc SlIVS that former COIJnsol
Jalf'les St . Clair , "ho hlls de"ied any role In the taoes , Is lIlso beln,)
HIs IntroductIon to the trllnscrlot IIttested to Its accuracy .
In one brlef1n'! , St . Clair called the transcriot 'll><.on ' s , auoTe ,
"work product , " unnuote . i'lr . Nixon ' s l ewver , Herbert J . fo'111er ,
.. ouldn " co.,ment todey on the that the e><. - ?re5Ident
mey be cell'ld liS a witness .
Denlel Schorr , CBS .lIe"5 , W8shlnQton.

Dear Hr. Hiller :
DRAFT
5/16/75
As 'i1e have indicated in the past, this office has been
evaluating its need to question your client , Richard H.
Nixon , in connection Hith various investigations being con-
due ted by us. It has now been decided that it is necessary.
to do so . After consulting with the Grand Jury,
determined that his testimony is required ksf
He have
, sC":n
connection with certain areas of continuing inquiry . Ne"""'-
.' , ... ' ........ , .. " plan to issue a subpoena on Hay 19 , 1975
requiring your client ' s presence before the Grand Jury on
May 29 , 1975.
\'le expect that \'le will be able to cover the areas of
inquiry before the Grand Jury in eight hours of questioning,
spread over a t,V'o-day period . During that time we plan on
covering questions in the following general areas;
1 . The circumstances .3
~ ; . : . ..,
an 18 1/2 minute gap in the tape of a
meeting between Hr. Nixon and Hr. Haldeman
on June 20, 1972) 4&1 ... he ltell e"k8_el'lt,8 eii a
Un BeUU-Oll fIlpril IS i 1913 . "
-2-
2.
'l'he collection of funds by Charles G. Rebozo
rI.,.J--
vA
on Hr . Nixon' s behalf and financial transactions
between them.
3. Attempts to prevent the disclosure of the existence

of the National Security Council wiretap program
through removal of the records from the FBI, the
4 .
5.

dealing with any threats to reveal their existence ,
and the testimony of L . Patrick Gray at his con-
firmation hearings .
The relationship between campaign contributions
and the consideration for Ambassadorships for
Ruth Farkas , J . Fife Symington, Jr ., Vincent deRoulet ,
Cornelius V. Whitney and Kingdon Gould.
The obtaining and/or release of information
concerning Lawrence O' Brien through use of the
Internal Revenue Service .
In each of these inquiries, the attorney principally involved
in the inves,tigation is prepared , prior to Hr . Nixon ' s
appearance , to discuss with you in fflP'ii'A the
subject matter that your client will be questioned about ,
to make available any transcripts we have of pertinent tapes,
and to identify the principal documents \.,.hich wil l ba used
in the Grand Jury. Additionally, we stand ready to consider
-3-
any reasonable request you may make aimed at preserving the
decorum of Mr . Nixon ' s appearance. As we already have told
you, if necessary , we are prepared to seek permission to
convene the Grand Jury in a secure place in the District of
Columbia other than the courthouse . Also, as we discussed
.,ith you on May 13th, if Mr . Nixon is prepared to voluntarily
appear in the Grand Jury , \'Ie \,Tould be Hilling to postpone
the date of that appearance to sometime in June.
There are also certain subject matters about \'I1hich we
woul d like to question Hr . Nixon, but for which a Grand Jury
appearance \"i11 not be necessary . These include questions
concerning the contributions from the milk industry to the
1972 campaign, the relationship of those contributions to the
de.cision in Harch , 1971 to adjust the price support for milk,
and conversations between Mr . Nixon and Richard Kleindienst
in Harch, 1972 concerning the latter's confirmation hearings .
We are , of course, willing to provide you with the same detai l
about these subjects as we are about those proposed for Grand
Jury questioning .
It also may be necessary to ask Mr. Nixon some questions
concerning the deletion of specified material from the sub-
mission of Presidential conv ersations to the House Judiciary
committee on Apri l 30 , 1974 . If your client is wil ling , \"e
-4-
are prepared to discuss this with him in an interview. If ,
however , he declines to be interviewed on this subject, then
we would also include this in the areas of Grand Jury inquiry .
I should add, however , that it may be unnecessary to speak
with ["IX . Nixon about this matter if we are able to ask Mr .
Buzhardt and ~ r r . St . Clair a limited number of quest i ons .
As mentioned above , we wil l be i ssuing a subpoena o n
May 19th. since we assume that you ,\lould like this subpoena
to be served , .. ith a minimum of inconvenience to your c l ient
or publ icity, we v,ill contact you at that time to discuss
the procedure for service .
~
V h 1 005'",
HENRY S. RUTH, JR.
Special Prosecutor
WATERGATE SPECI AL PROSECUTION FORCE
DEPART MENT OF J USTI CE
Memorandum
TO
fROM
SUBJECT:
Files
DATE: Maya, 1975
Peter M.
Nixon Testimony
See Losavi v . Kikel , Colorado Supreme Court 3/17/75,
17 Crim. Law Reporter 2117 -- attorneys subpoenaed
to the grand jury must appear to testify; only can
claim attorney- client privilege with respect to
specific questions.
C MK5><-
I FClAL FORCE
OF
lLemorandum
TO
: Files
DATE: April 7, 1975

Henry Ruth
SUflJECT: : '.'!cting with Jack Miller
Fol lowing the Mortenson-Hiller meeting \<1ith Ruth-
Davill-Geller on April 2, Miller asked to see
me alan He brought up the blo topics:
1. Ron<11d Ziegler \'l a!: hnvinq trouble intere::ting any
p,..osp r; ..... f' (' '':llo'.'pr in ti"'lv4nCJ \'1'i. t." h'i'1'l llr' ; 1 t" Of
all {",atc. ...8 investig ... tio .. , . i:iller ask 11 ir had any
kind of clearance system ... /hereby we told people if they
Here under investigation any longer. I told Miller that
on many occadions members of this cfice had informed
prospectivE' cJ'T'lployern that a naM'" 'C'rson pa= not the !'Iubject
lJ -'_Of) oJ}' 11' c .. ':':
give any kind or a lett r. I said I to
talk with errployers beciluse so-called "clear"nce" letters
\-,ere misused sometimes and I vlas especially concerned about
that in Ziegler ' s case. I also said that we had to talk
\dth Ziegler about the "Bluebook" investigation. Miller
said he Hould tell Ziec.,ler what I had said. I assurec him
that we \'lere as concerned about the fairness issues
about persons allegedly involved in "Natergatc" as \'lC ''''ere
about ensuring the completeness of our investigations. I
told hi') that Ziegler Has not a cand:ldate for indictment
<tt thin t; ..... ,....
2. Hiller s"id hf' Has very {';oncerned flhout
grand jury testimony by Nixon . He said that with all of
Nixon ' s health and other pr.oblems, Hiller had no way of
knowing that Nixon would have sufficient concentration,
acuteness and preparation to guarantee that he , ... ould not
inadve:cLently misspeitk himself in the grand jury. Hiller
said he was concerned as a lawyer that he might be va
givinq up many documents that in turn provide a rich basis
for our questioning of Nixon. I naid that , ... e \'lere r evie\ .. ing
the problem of Nixon testimony, that our investigations Here
now so Hell along that the matter of some extra documents
"' .... "' ... , bit ... ould Il\Jt a differenc.; in our determinatio:-.::;
about grand jury testimony and that \ ... e Here considering the
various options of interview, statements of various
kinds and grand jury testimony. l>1iller said that he knew
2
I could not give an ans\: r now and that he did not expect
nOI,/. lIe said he me -lly wanted to express one of his
concerns (\ they debated the issue of turning over the
so-called "non-designated" documents .
cc:
Nr. Kreindler
Davis
Hr. Geller
file
(2)
--
FOR THE DISTRICT OF
UNITED OF
'Di?!Ii'T
v .
Cr im. No . 14-110
JOHN N. MITCHELL , et al .
Defendants .
HEMORANDUM OF THE STATES IN OPPOSITION
TO DEFENDANT EHRLICID-tP-,!'l ' 5 I':OTION FOR
LEAVE TO DEPOSE M. NIXON
The United States submits this memorandum in opposition
to the of Defendant Ehrlichman for leave to depose
Richard M. Nixon on January 6, 1975 .
.Y
At the outset it shoul d be clear that Mr. Ehrlichrnan's
action is- not simply a motion for leave to take a pre-tr!a l
deposition that will not interfere with or delay the trial .
Ehrlich::!an has asked this court to permit II depositior.
beginning on January 6, 1975 , and indefinite
period . The deposition thus would bcgin"after the
t his case otherwise could be expected to go to the jury,
-1ICounsel for have indicated that they will
file a similar motionon behalf of Mr . Haldeman . Although
oarr.e legal principles will control the disposition of both
motions, it may be necessary for the government to file a
rlH:ponse to Haldenan ' s !:lOtion to demonstrate that Mr. :-lixon's
testioony is to Mr . Haldeman ' s defense.
and it undoubtedly would continue for a significant period of
21
time . In short, Mr. Ehrllchman is seeking a suspension
of the trial for at least four or five weeks, and his
oust be treated as a for a continuance .
The question for the Court, then, is whether a complex
trial involving several defendants and a sequestered jury
should be interrupted to allow one defendant the possibility
of eliciting testimony from a witness when that testimony ,
if it can be obtained, might not be exculpatory and in any
21
event would be cumulative. As we show belo ... " Mr . Ehrlichman ' s
motion should be denied for the reasons, (1) there
is substantial doubt whether llr . INixon in fact be ablll!
,....,-, .,. .. _ ..
to give a deposition A (2) tlr . ERrlichman has not tendered an
-11 Under the guidelines proposed by the panel of physicians,
Hr. Nixon only could be deposed for two hours a day and perhaps
1es8 if the attending physician believed that the deposition
created too nuch strain for the deponent. It i8
under these circUDstances that the could be completed
1n less than t",o or three weeks . Counsel for Mr . Ehrlichrlan
have irAicated that they would interrogate Mr. Nixon about
numerous meetings and matters running the full length
and breadth of the conspiracy that has been charged.
Even if this could be obt ained in several
hours(over a period of three or four days), it i8 certain
that there would be extensive cross- examination by the govern-
ment . Counsel for Haldeman also has indicated that they
would insist on extensive questioning.
Ehrlichman correctly notes that in order to
l eave to t ake a deposition under Rule 15(a) of the Federal
Rules of Criminal Procedure, he must show that the deponent
may not be available as a witness, that his testimony is
material, and that there may be a failure of justice if the
aeposition is not taken . Comparable standards apply with
respect to a deposition the defense under
18 U.S.C. S J50J. See 460 F.2e 1148
(2d Cir . 1972), Since
Mr . Nixon ' s there is sone
question whether Hr . be entitled to a
deposition. Certainly, the a deposition will not
r esult in a of
- 2 -
:-=r.= __ __ ___
-
offer of proof showing that Mr. Nixon ' s testimony would be
exculpatory; and (3) Mr . Nixon ' s testimony is not "indis-
because it would be cumulative of the testimony
of other \o'itnesses and doc\lJ:\entary evidence, inc1':lding tape
recordings .
ARGUHENT
1. Hr. Nixon May r:ot Be Able to Give a
O(!POSl.tion .
At a minimum, Mr. Ehr1ichman seeks a continuance from
late December, when the case is expected to go to the jury,
until January 6, the earliest date Mr . Nixon can be deposed.
The Court could not even grant this limited continuance with
the assurance that nr. Nixon's testil:'lony ""ould be obtained.
The experts' that l-lr. Nixon should be able to
give a deposition by January 6, 1975, is based upon the
assumption that Mr. Nixon ' s "recovery proceeds at the
anticipated rate, and there are no further complications"
and is "subject to modification by unknown future medical
As this Court well knows, Mr. Nixon ' s
medical condition has changed abruptly and unexpectedly in
the past.

In order to justify a continuance to secure the testimony
of a witness even under ordinary circumstances -- when there
is no sequestered jury - - the moving party must show "that
the witness can probably be obtained if the continuance is
granted." Neufield v. United States, 118 F.2d 375, 380
(D.C. Cir . 1941), cert . denied, 315 u.s . 798 (l942) . Thus,
In his first report to the Court on
in Eastman v. United States, 153 F. 2d 80, 84-85(8th Cir . },
cert. denied, 328 U.s. 852 (1946), the court of appea16
upheld the denial of a continuance to obtain the deposition
of a witness in the Forces stationed in Europe where
-the motion did not show definitely that the testimony
would be available at the next More recently, in
Dearinger v. United States, 468 F . 2d 1032 , 1035 (9th Cir. 1972),
the court reached a similar result due in part to the
existence Of doubt as to the availability
of [the!
Although doubt about the availability of Mr . faxon
to give a deposition by itself might not require denying
the relief sought , it places a heavier burden upon
tlr. Ehrlicrunan to demonstrate compelling circumstances
for the continuance .
2 .
,
The government does not question that Mr . Nixon
alleged to be a participant in the conspiracy in this
case would be able to give testimony relevant to issues
that are mftterial to the guilt or innocence of defendants.
But a defendant seeking a continuance to obtain his testi-
mony cannot rest on that conclusion . He must show what
Mr. Nixon's testirnony'''''ould be, Neufield v . United States,
supra, 118 F.2d at 380, and that it would afford his
defense ftsubstantial favoring evidence.
ft
United States v.
436 F. 2d 775, 777(9th Cir . 1970). See also
Babb v. United States, 210 F.2d 473 (5th Cir . 1954);
- . -
=d"N' wV
....
Eastman v . United States, supra, 153 F. 2d at 84-85.
;thiS showin'l must !:lade
" . _ 1 t;--.*;
i Mr. Ehrlichman has failed to make any concrete showir.q "-
at all as to what ?-Ir . Nixon ' s testimony be. All the )
c<
Court is offered is the speculation of Mr. Ehrlichman's
coun!lel that Hr. Nixon ' s testimony would aid Hr. Ehrlichman ' s
defense. At best, Mr. Ehrlichman has outlined incidents
and areas on which he hopes Ilr. Nixon may testify in his
.l/
favor. But it is not enough to make the conclusory
and blanket assertion that K}lr . Nixon is an indispensable
witness because he will be able to testify as to the
6eqUencc of events involved in the Watergate matter, that
Mr . Ehrlichrnan was not part of a conspiracy, and that
Mr. Ehrlichman never the corrupt intent as
required under 18 U.S.C.
at 4). For example, a continuance to obtain the tcstinonr
even of a witness alleged by the to have
participated in the crime and conceded to have
information,K is properly denied where counsel only advises
the court generally that the witness ' testimony is important
to ftthe whole truth." Payton v. United States, 222 F.2d 794 ,
796 (D.C. Cir. 1955) .
is a significant difference between what one
may tell counsel and what he would testify to oath at
trial or in the course of a deposition. ThUS, in virtually
all cases mandating severance on the ground that a defendant
seeks to offer the testiJ".ony of a co- c.efendant , the precise
exculpatory material to be offered through the testiDOny of
the co-c.efendant was placed before the trial court through
a reliahle oral or representation of the co-
defendant. See, v . Wainwriqht, 428 F.2d 1017,
1021 (5th 1970): nl.tec. States v. Echeles, 352 F.2d
892, 897 (7th Cir. 1965) 1 Unl.ted States v. Gleason ,
2S9 F. Supp. 282, 283 (S . D.N . Y. 1966).
-!lMr. Ehrlichmar. , of course, not indicated whether
he attenpted to obtain an affidavit Mr. Nixon or
why he failed to co so.
5 -
-
The Court thus is left in the dark to speculate itself
whether Mr . Nixon ' s testimony on balance would be favorable
to Mr . We point out here that it is at least
as likely that Mr . Nixon testify that he had no
specific recollection as to many of the events on which
he would be questioned . -2I
3. The Testimony of Mr . Nixon Would be Merely
Cumulatlve .
Even if Mr . Ehr lichman could make the requisite offer
of proof and demonstrate that !1r. Nixon would be available ,
he would not be entitled to a continuance in order to take
Mr . Nixon's deposition . contrary to Mr. Ehrlichman ' s
assertion, Mr. Nixon ' s . testinony is not
As the analysis below shows, his testimony at most l10u1d be
merely cumulative of the testimony Mr . Ehr lichman will
give , t he testimony already given by Messrs. Haldeman and
Dean and other witnesses , and the evidence that is available
from the -tape recordings of conversations with Hr . !liXon .J.I
I t i s we l l settled in this Ci r cuit and elsewhere that the
tria l court has discretion to deny a continuance to obtain
t estimony that wou l d be onl y of that of the
de fendants and other witnesses . See , United States v.
476 F . 2d 1145, 114 7 n . l (D. C. Cir . 1973) ; JacKson v .
United States , 330 F .2d 445 (5th Cir . 1964) ; United Sta'tes v .
Lustig, 163 F. 2d 85 , 89 (2d Cir . ) , cert . denied , 332 U. S .
775 (1947) .
-ZlMr . Ehr l ichnan has not even pointed to any private
s t atements by Mr . Nixon indicating .... hat Nixon' s testil:lOny
,,"'Ou1d be.
Recordings of admissible conversations arc the "most
reliable evidence possible of a conversation. " v . United
States , 373 U. S. 427 , 439-4 0 (19 ) ; c f. Unite States v .
White, 401 U.S . 745 , 753 (19 ) .
--- .
6 -
-
The first area cited by Mr. Ehrlichman in his motion
is Mr. Nixon ' s testimony that he never conveyed to
Ehrlichman the substance of his conversation with
Defendant Haldeman at 10:04 a . m. on June 23, 1972, a portion
of ,,"'hich has been played for the jury (Governnent Exhibit 1) .
The GO'lernnent will contend that in this conversatio:'l
lo'..r. NiJ(on approved an approach to the CIA by Defendants
Haldeman and Ehrlichman for the purpose of impedin9 the
FBI's Watergate investigation . Mr . Ehrlichman was present ,
of course, at the l ater meeting that day between ncssrs .
Haldeman , Helms , and Walters and heard what the CIA offici a ls
were told by nr . Haldeman. Mr. Ehrlichman can testify that
he was not told by Mr . Nixon prior to that later !:Ieeting of
Hr. Nixon's earlier conversation with Defendant Haldeman ,
and both Defendants Haldeman and Ehrlichman can testify
that they had no conversation about the 10:04 a . m. Nixon/
Haldeman meeting at any time, if that is the case . More-
over , Mr. Ehrlichman ' s log and President Nixon's Daily
Diary show no contact between Nixon and between
the a . m. Nixon/Haldenan and the later meeting
with the CIA officials . Accordingly, Hr . Nixon's
on this point would nerely be cumulative of Defendant
Ehrlichman's testimony, Defendant Haldeman ' s testimony, and
additional documentary evidence. In any event, this
is not dispositive of the ultimate i asue of Mr. Ehrlichman ' s
role in this approach since any culpability he has would
rest in large part on the fact of his presence at the
oeeting with Haldeman, Helms, and Walters, and his knowledge
of what occurred at that time -- a subject on which Mr. Ehrlich-
man and Mr. Helms can t estify and on which Mr . Haldeman and
Mr . Walters already have testified .
- 7 -
r
I
The second area cited by Defendant Ehrlichman is
f.lr . Nixon ' s testimony that Ehrlichman "always" took the
position there should be full disclosure about
Watergate. The only specific time period cited in tho
motion , however , refers to neetings between Mr . Ehrlichman
.Y
and Mr . Nixon in August 1972 . Mr . Ehrlichrnan himself
can testify to these "eetings to the same extent as could
Mr . Nixon . Moreover , ther e is discussion on some of the
t ape r ecordings already played to the jury about this
matter . On April 16 , 1973,4,.t 9: 50 n . m.
Exhibit 24, 24a, p . Mr . Ehrlichman reminded the
President about a plan i n the summer of 1972 by which
Clark MacGregor would make a "full disclosure
ft
and -the
i de ,,as that you ' d be out of town and it ,,ouldn ' t get on
you , remember? - Mr . Nixon affirmed that he did recall
that , but shortly nfter said , Oh , we a l l know that ' s a
phony . " Not onl y is this tape recording avai l abl e for
tl r . Ehrlichman to corroborate his own testimony concer ning
any discussion with the Pr esident , but on the tape
Mr . Ehrlichman that "we" discussed the plan with
Mr. Nixon and also that he thought he had a memo on
it. This raises additional possibilities , not alluded to
i n Mr . Ehrlichman ' s motion , that two additional sources
-21With respect to Cefendant position on
this in March and April of 1973 , the majority of
defendant ' s conversations with Hr. Nixon ,,ere tape recorded
and have been subpoenaed by the Government in this ease .
Those that have not been plaY2d to the jury are available
f or Hr . Ehrlichrr.an to play in his case, if relevant and
admissible. The jury can judge for itself from these
r ecordings what position Defendant Ehrlichman and President
Ni xon were taking at that time .
- 8 -
of evidence exist as to this matter: Mr. Haldeman's
tes timony and certain documentary evidence.
e,
The third area cited by d 'e gt Ehrlichman in
his motion involves a conversation between himself and
Pres ident Nixon on or about July 4, 1974, 1n which the
President told him that clemency for the Watergate burgl ars
was out of the question. Again, Mr. Ehtlichman can testify
to such a conversation to the same extent as could Mr. Nixon.
Moreover, it is unclear what bearing such a conversation
would ha,,c on later activities of Mr. Ehrlichman 1n this
connection; to which the President was not privy,
rlr H,
betweenlEhtlichman andiN!xon in March
or to
discussions and
April 1973 which are recorded. Finall y , it is unclear
whether such testimony should preper11lbe regarded as
If .
"favorable" to defeHtisHt Ehrlichman since it raises the
puzzling issue of why the oatter of clemency for these
burgl ars should have arisen in July 1972 if the President
and Mr. Ehr lichman believed at that time that the burglars
hsd no connection whatsoever with CRP or the White House.
The fourth area cited in the motion is Mr. Nixon's
testimony that the "purpose" of the La Costa meetings in Feb-
....
rua.r y 1973 to for the upcoming Senate
hearings . Mr. Dean and Mr. Haldeman testi-
fied, as can Mr. Eh:lichman, and
contended otherwise. Mr. Richard who is on defendant
Ehrlichffian 's l atest witness
The fif th area cited
list, \ou1dJaisolso testify.
H_
in deflj'RQfmt Ehrlichman' s motion
relates to President Nixon's ass i gnment of Mr. Dean in
February 1973 to "coordinate all Watergate-related matters."
9
_J
Mr. Ehrlichman, of course, can testify to any 6uch dis-
cusslons he had alone with Mr. Nixon to the same extent
as CQuid Mr. Nixon. The most logical witnesses to any
such assignment, however , would be Mr. Dean, who purportedly

received it, and Mr. Haldeman, through whom iJ:! 81'l'aEcttcly
would have been relayed. if dQ'l"lc iluU.-nct'y oy rAil ih,;u' iilnlt.
Both have testified in this casc. In addition , most of Mr.
Dean ' s conversations with the President in this period arc
H,
available to defenaaftt Ehrl1chman on tape recordings.
The sixth and final area of Mr. Nixon's
cited in the Ehrlichman motion relates to the President's
assignment of Mr. Dean to prepare a report on Watergate,
Dean's failure to produce such a report, instructions
a l legedly given to Mr. Ehrlichman thereafter, and Mr.
Ehrlichman's subsequent "report" to the President. As
W,
to any conversations between Mr. Dean and Nixon
<"-<-
on this point, the tape .recordings of conversations
I played to the jury. Mr. Dean and Mr .
Haldeman have testified about Mr. Dean's failure to produce
a final report, alul the I C"3(111" ehCl'ein:, and Mr. Nixon's
testimony could add nothing to these issues. Mr. Ehrlichman
in a number of forums that Presi
dent Nixon instructed him to undertake an investigation
on March 30, 1973, at a meeting around noontime, and a
tape recording of tbat meeting (showing , the Government
wil l contend, no such instruction) is available to
H_
Ehrlichman. And Mr. Ehrlichman's "report" to the
---
President on April 14 only)hsve been made in conver
sations all of which were tape recorded and produced pur
10
-
/0
suant to the Government's trial subpoena. Thus , Mr. Nixon's
testimony could add nothing whatsoever in this area either.
In summary, Defendant Ehrlichman's DOtion completely
fail I to make any factual showing that tlr. Nixon's testimony
would in any way be indispensable to defendant's case or,
indeed, that it would be anything but cumulative not only
of Defendant Ehrlichman's testimony but also of the testi-
mony of other witnesses , evidence, and tape
recordings.
4. It would t:ot be Proper to Unseguester the
Jury in Order to Grant a Continuance
As we have shown above, Mr . hasn not made a
showing that would warrant a significant continuance, even if
the jury were not sequestered. Of course, the burden he
faces in this case is even higher because there is a
sequestered jury . It is in this context that the Court
must weigh the factors mandating against a continuance .
In this regard, the strongly opposes the luggestion
that the jury be released during any continuance , even if
all defendants waive any Fifth or Sixth rights
to raise prejudicial pUblicity during the continuance as a
ground for a mistrial . Unseque stering the jury ,
j
'II
1'1
0 "_ 6; ,_'0.,",,,,,,,,,'.'0',_ ... j=,,) albeit for a brief period ....
"I Ui:... '--c
.. scrupulous efforts far
'-eecss1ull;0ea:::tul,.I) to insure that this jury will
adjudicate the defendants ' quilt or innocence bascd
L ... ,IJ . .. T .. , .... '- .. I
On the evidence heard in the
impressions or facts gathered from outside
includinq;vreporters and family members.
7k t lZ.'-'-r)

4.- 13..k..v" 0/0/ I=.U 9S'1 9t.8' (O.c
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1) Appellaftt was a promient national fiqure;
2) jis activititls had been highly publiciz;ed; 3) Ate had
moved to discis. the indictment on the ground of
b.a..;a .. tho jdty. and 4)
;rclevlsion, radio and newspapers had requested
l'ccommodations in the !}:..!::..'- '>( ,
-, ..... , ..
,.
~ ~ ""'- rf"'d ~ 1"",-... : . ~ - - '
(Se e United
State s v. Isaacs, 364 F . Supp. 895, 899-900 (N . D. Ill.
mn-:- conviction aff ' d 493 F.2d 1124 (7th eir .)" -l-.
", ('cert. denied _ .,./. _i,I-...... "/,,j.. 10.' "'.1 (''; :1(1974)
I .. , "'"
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STAT;;:S
HI UN ITED STATE S D!STRICT COURT
Fill! THE DI STR!CT OF COLL1"BIA
0, ," t. lllCA
,.
1
C. ir.1ina J Case ;,0 . 74- 11 0
MiTCfIELL , e t al.. }
}
" 1
, .
FD
I" ... I , ,.,
On September 4 , 1974, the defendant [hrHehman issued
a subpoena to ':r. Richard H. Nixon to ilppear as a witness i n this
case and to produce "al l documents, books records, tape record-
ings. graphs. charts. photographs , phonograph records and othet
tangible which to or relate to the concealnent
or cover-up of the break_InM into the Democratic National Head -
q<larters. The subpoena directed Mr . Hixon to appear on the 30th
day of September , 1974, but by agreement of cQunsel the appearance
date was extended until such time as the defendant cO!IWnenced the
presentation of his case. Although the United States also sub-
poenaed Mr. Nixon as a witness in this cause, counsel for the
government announced the gove r nment would not seek to have its
subpoena enforced.
On the 3rd d<lY of Octobe r , 1974 , Richa rd M. Uhlon,
tllrough his counse l, tooved the Cou rt to quash the subpoena issued
by defendant Eh r 1i cllman a II egi ng that the phys I ca \ condi tl on of
the witness made ,uell appearance impossible without creating a
serious risk of permanent injury or incapacitation. The portion
of the mo tiOn dealing Hi th the wi tness' s heal tli was supported
by an affidavit of counsel for the witness and an affidavit of
Dr. John C. LUl lyren. On tiover.-ber 7, 1974 , counsel for Mr. UillOn
-
1-
filed a affidavit purpOrting to Supply current !:!edical
data on the witness's physical condition.
o tne 17tn day of October, 1974, tile or",lIy
granted t'lat portion of tile IlXItion to quash deal in; with the
production of mdterials and postponed deciSion on the motion
insofar as it Sougilt to quash the ad testificandum portion of
the Subpoena until a date closer to the time 11hen defendant
Ehrlichman llould COJTJI:ence to present his case.
The Court l1as advised by counsel for the !;overnment
on or around Novembe r 11, 1974, that it would complete its
case-in-chief within tliO weeks. Being so advised, the Court
scheduled for 4:15 p.::!., November 13, 1974. on the
rer.lainlng portion of t he motion to quash. Counsel for Mr. Nixon
was advised of the scheduled date of the argument , and counsel
fOr all parties were advised the Court was considering the
appointment of a panel of e;ninent physicians to examine Hr.
i/fxon and to report to the Court on the physical condition of
the witness.
The issue framed by the subpoena to Mr. Nixon and the
motion to quash came on fOr hearing on the 13th day of NOvl!f!t>er,
1974 , and after argument of counsel and consideration of the
positions of all parties. the Court finds that the interest of
defendant Ehrlichman and the proper administration of justice
require that the Court appoint a panel of three eminent physicians
to make an investigation and to report to the Court on the matters
set forth below. The three physicians hereinafter named have
been contacted and have agreed to serve on Such a panel, to make
the necessary investigation and to report to the Court on t heir
findings. In vieo'l of the foregOing, it is
2
JROEREO that Doc tors Charles AnUlOny Hufodgcl, Richard
Starr Ross and John h. Splttell, Jr. are hereby appo:ntad.
Mil directed to conduct such examination as they
deem neceSSJry and appropriate and, thereafter, to the
Court (1) whether Mr. nixon is presently able to travel to W<lSh-
ington and testify as a witness in this (<luse; (2) if not, IYhen,
in their o;:l1nloo, lir. :lixon would be able to so appear and testify;
(3) '1r . Nixon is able to appear and testi fy at a sHe
near his home; (4) if not, '.Iheo, in their opinion, Hr . Nixon
\</ouid be able to so appear amI testify; (5) whether , if Mr.
Nixon is not now able to appe<lf and testify in this case eHher
in Washington or a site near his home, he is able to be deposed
by the parties in this C<lse; (6) if Mr. Nixon is not physically
able at the present time to give a deposition when, in their opinion.
lie would !le able to give such a deposition; (7) if Mr. Nixon is
physically able to submit to a deposition, the conditions under
I/tlicn such deposition should be taken in order to avoid serious
risk of injury to his health . Doctor Hufnagel shall act as Chair-
mn of this panel.
FURTHER ORDERED that the physicians shall conduct such
examination as is necessary to complete a report to the Court on
the matters set forth above, including review of pertinent medical
records and a physical examination of the witness .
FURTHER ORDERED that the panel of physicians shall
secure the approval of rlixon or his attorney prior to any
examination of confidential records and prior to any physical
exa::tination of Mr . Nixon. Should r'.r . NixOn refuse access to
approp r iate and necessary medical records or refuse to submit to
an aOlpropriate physical eXa1ll1natl0n, the said panel shall report
il'l!1edi(ltely tM Court.
3 -
-

fUi(THER O:WRED that tN: Janel of physicians shall
comp.nent medic')l personnel <IS they ;r.ay deer.! necessary ;1'1 per*
fvrm!ng the duties assigned thera thereio.
Fl,iRTiiER ORDERED that the necessary investi'1atian
car.rnence forthwith, and the panel shall report to the
Court its either on <!I'\ interil'l or final basis. by
the Z9th day of
Dated
llov(>u;ber, 1974 .
th i s Ji.15!L day
for entry:
l
Dunse
"
tila Uni t
st,
"
,
/
I
,
counsel
for
Defendant MItchell
"
./
"\
, ,
counsel
Haldem4"
of tlovember, 1974.
-}
"
-
"
\..-
" ,
Counsel for Defendan:
1,/" /' '
A/' .. t.:_
I .' <' '- -
.. ",E(<-"'.
Counsel for Defendant Mardian
,
v
-
- ---------- ,
, "."
-
\\ ,\TERG . \TE SPECIAL PROSECUTION FORCE
DEPARTMEXT OF J U::>J ICE
Memorandum
TO James F. Neal
DATE: September 1
8
, 1974
Peter F . Rient
r-riZ.
SL: SJECT:
Deposing Nr. Nixon Pursuant to 18 U. S.C. 3503 .
I have been asked to research the question whether the
provisions of 18 U.S.C. 3503 pe rreit the Government to take the
de position of former President Nixon for possible use at the
trial of United States v. Hitchell, et a1. By conclusion is
t hat , given the exceptional of this case and the
liberal construction afforded Section 3503 by the courts, we
should be permi tted to take Hr. Nixon ' s deposition for possible
use at trial.
I . Statutory Requirements for Taking and Use of
Depositions by Governnent .
18 U. S.C. 3503(a) and (f) provide for the taking of depo-
sitions by the Government and for their use at trial. In
pertinent part, these sections read as follows:
(a) due to exceptional circUr.tstances it is
in the interest of justice that the testimony of a
prospective witness of a party be taken and preserved,
the court at any time after the filing of an indictment
or may upon motion of such party and notice
to the parties order that the testimony of such .dtness
be taken by deposition and that any designate d book ,
paper, document, record , recording, or other material
not privileged be produced at the sarr,e time and
place ... . A motion by the Government to obtain an order
-2-
shall contain

(f) At the trial or upon any hearing, a
part or all of a deposition, so far as otherwise
admissible under the rules of evidence, may be
used if it appears: That the witness is dead,
er that the is unable to attend or
testif because Qf sickness or infirmit ; or
t at t.e Nl.tness re uses lon the trl.al or hearing
to testify concerning the subject of the deposi-
tion or part offered; or that the party offering
the deposition has been unable to procure the
attendance of the Hitness by subpena . Any
deposition also be used by any party for
the purpose of contradicting or impeaching the
testimony of the deponent as a Hitness. If only
a part of a deposition is offered in evidence
by a party, an adverse party may require hie
to offer all of it \-1hich is relevant to the part
offered and any party may offer other parts .
(Emphasis added.)
In order to take a deposition for use at trial, therefore;
the Government nust move for an order permitting the taking of
such a and must support the motion with a showing of
"exceptional circumstances" and a certification that the pro-
ceeding is against a person \'tho is believed to have participated
in an organized criminal activity. In order to use such a
deposition at trial , the Government nustshow that at the time
of trial the' \"itness deposed is dead , is too ill to attend,
refuses to testify, or cannot be compelled by subpoena to appear
-3-
II. Judicial Construction of the Statutory
Requirements.
v1hether the Government may take a deposition pursuant to
Section 3503 depends on its ability to show the existence of
"exceptional circu-"iIstances" and to make the "organized criminal
activity" certification. The only cases Hhich I have four..d that
deal with these issues are Second Circuit cases , United
States v. Singleton, 460 F . 2d 114 8 (2d Cir . 1972) I cert. denied,
410 u .S. 984 (1973) and United States v. Carter , 493 F . 2d 704
(2d Cir. 1974) . Both cases treat these issues favorably to
the Government and provide substantial support for the argument
that \.;e should be permittee to take Mr. Nixon ' s deposition in
united States v . i>!itchell, et al.
A. "Exceptional Circumstances" Requirement.
The Singleton case vias a prosecution for the sale of nar-
cotics to a Government agent in t.,thich the Government ,.,tas permitted
to ta.'-<e the deposition of one Horris, an informer ,.,tho helperi to
arrange the sale and acted as an intermediary in many of the
dealings . The trial court granted the Government ' s motion to
depose r10rris upon a showing that he was too ill with leukemia
to leave his hOffi= in Alabama to attend the scheduled trial in
:-:ew ":!o::k . On appeal, defendant Singleton challenged the trial
cou::t ' s finding of "exceptional circumstar.ces" which justified
taking the deposition "in the interest of justice." The Court
-4-
of Appeals rejectec this challenge , saying :
The House Judiciary Committee Report .
indicates that motions under 3503(a)
arc to be granted for the same reasons
permitted defendants by Fed.Rules of
Crim. p., Rule 15(a) , which provides for
depositions , "[i] it appears that a
prospective witness may be unable to
attend or prevented from attending a trial
or hearing, that his testimony is material
and that it is necessary to take his depo-
sition in order to prevent a failur e of
justice .. " This test is quite adequate ,
and we adopt it here for the purpose of
defining "exceptional cirCUInstances . "
!i.orris ' si fouation fits it squar ely.
{United States v . Singleton , supra , at 1154 ) . !I
Similarly, the lower court in United States v . Carter , supra
found the existence of "exceptional circumstances " upon repre-
sentations by ~ ~ e Government, supported by a doctor ' s affidavit ,
that a critical Govern.rr.ent \ .. itnesses had suffered a serious
heart att ack and could not be e xpected to travel from h is home
in Seattle to appear for trial in New York for several months.
See United States v . Podell , 369 F . Supp . 151 , 1 52-53 (S . D.
N. Y. 1974) . Nevertheless , the district court refused to order
a ceposition on the ground that the crimes char ged (conspiracy
to defraud the United States , bribery, confl ict o f interest ,
making false statements and perjury) did not constitute
.!/ Although Singleton \ .. as decided by a 2-1 majority, there
is nothi:1g in the dissenting opinion \"hich casts noubt on the
validi=y of test adopted by the majority i n defin1ng
"exceptional circumstances . "
-5-
"organized criminal activity" when engaged in by a congress-
man, a lawyer and a businessman.
In granting the Government ' s petition for a Hrit of mandamus ,
the Court of Appeals endorsed the lower court ' s finding of
"exceptional circumstances" in language \ .. hich appear s to expand
the test adopted in Singleton. The court stated:
In view of
He believe the
writ is fully
if not
the set forth here,
issuance of the extraordinary
, 5
been invited to attend the deposition. See 18
U. S . C. 3503(b). The crimes charged here are
serious and a cloud of suspicion hangs over the
heads of those not usually suspect. The court
below commendably urged the parties to seek an
early review and resolution of the present dis-
pute by this court in view of the importance and
significance of the question . He believe that
justice dictates , both for the Government and the
defendants, that all the evidence \;,hich is rele-
vant be ascertained and presented in this case,
and \;,e therefore grant the wrl.t requested by the
Government and direct the court belo'.;, to issue
the order permitting the deposition of the wit-
ness Kinsey. (United States v . Carter, supra ,
at 709 . ) (Emphasis added.)
Ap?lying the principles of these cases to th2 situation at
hand , it ap?ears that we can make a sufficient showing that
" exceptional circumstances" exist which justify deposing Hr.
2/ Although Carter Has a unanioous c.ecision , one of the three
Judges concurred only in the resul t. HoHever, lis concurrinq
opinion does not question the validity of the "exceptional
circu.>lstances" test applied in either Singleton or Carter .
-6-
Nixon " in the interest of justice ." Certainly , it appears
at this time that Hr . Nixon, because of his r..ealth , !:Lay be
unable to attend the trial and that his would be
material. The harder question is "whether it is necessar y
to take his deposition in order to prevent a failure of jus-
tice." Rule 15(a), F.R.Cr.P.; United States v. Singleton,
supra, at 1154 . On this question, \ .. e can make a tw.o - pranged
argut:\ent . First, Hr . Nixon's testimony may be essential to
establish the foundation for the introduction of certain
Presidential tape recordings at trial. Second, Nixon will
not be a defendant at the trial even though the proof will
show that he was a ringleader and the chief beneficiary of the
conspi=acy charged in the indictment. Under these circum-
stances, it can fairly be said that the Government ' s case will
be jeopardized if the deposition is not permitted and that
justice dictates that all relevant evidence be ascertained
presented in this case . Cf. , United States v. Carter,
supra, at 709.
B. "Organized Criminal Activity" Certification.
As noted above , a motion by the Government to take a
deposition pursuant to 18 U.S.C. 3503 must be accompanied by
a certificat.ion that "the legal proceeding is against a person
believed to have participated in an organized criminal activity
This =equirement raises three questions: (1) what constitutes
"organized criminal activity;" (2) ur.der what circumstances
,.-
-
-7-
will the court look behind the Government ' s certification;"
and (3) who is the appropriate person to make such a certi-
fication in this case?
(1) Definition of "Organized Criminal
The term "organized criminal activity" is not defined in
the statute itself . However, Congressman Poff , in describing
Section 3503 to members of the House of Representatives,
stated that the term "is broader in scope than the concept of
organized crime; it is meant to include any criminal activity
collectively undertaken . . . " 116 Cong o Ree . 35293 (Oct. 7 ,
1970). And Senator Hruska, a co-sponsor of the bill, advised
the Senate that the term included all criminal activity
that was "not an isolated offense by an isolated offender ."
116 Cong o Rec. 36294 (Oct . 12, 1970) According to Congressman
PoEf , the for allowing the taking of depositions in
such cases is to prevent intimidation or bribery of witnesses
by persons with "access to collective criminal power ." 116
Congo Rec . 35293 (Oct. 7, 1970).
The most definitive judicial construction of "organized
criminal activity appears in United States V . Carter, supra .
There , the trial court refused to pernit the taking of a
deposition a caGe involving white collar defendants
charged conspiracy to defraud the United States , bribery
and perjury, construing the term "organized criminal activity"
-8-
narrO'.",ly to mean "gangsterism, racketeering and syndicate
activity of clandestine criminal groups_"'}./ The Court of
Appeals , granting the petition for a writ o f
mandamus, rejected this narrow construction, saying:
Even if \Ve \-1ere free to ques ticn the
determination of the Attorney General , we
could not accept the proposition that the
Congress did not intend to include
corruption, obstruction of justice and
er 'ur t .. ithin the purview of the statute .
footnote oml.tted] Nhile crl.mes of violence
engineered by gangs of thugs are of course
repulsive and clearly within the concept
of organized activity , the
concerted corruption charged here is equally
odious . The fact that the al l eged perpe-
trators are presumably respectable and
entrusted ... /ith res onsibilit b an elec-
torate or a pro eSS10n or by stockholders
does not suggest , in our view, that they
are inca able of en a in in or ani zed
crl.mJ..nal actl.vl.ty . He al stand equal before
the bar of criminal justice , and the wearing
of a ,.,.hite collar, even though it is starched,
does not preclude the organized pursuit of
unlawful prof i t . (United States v. Carter,
supra, at 708.) (Emphasis added .)
On history of Section 3503 and the opini
in Carter, it appears that we can make a substant i al argument
that the case of United States v . Hitchell, e t al . involves
"organized criminal activity" within .the meaning of the
statute. To begin with the cr imes involved in our case are
3/ This was essentially the position adopted by the
oissenting judge in Singleton and by the concurring
judge in Carter.
-9-
virtually identical to those in Carter, albeit that pecuniary
gain does not appear to have motivated the major conspirators
in our case . Second , the criminal activities in our case
,,,ere plainly organized, rather than isolated or sporadic .
Finally, the activities engaged in by the defendants here
were designed to achieve the very purpose which the "organized
criminal activity" requirement ,"as intended to meet , to \'lit ,
influencing witnesses through the exertion of organized
criminal power. Taken together , all of these factors sup-
port a certification that the case of United States v.
Hitchell. et aL involves "organized criminal activity. "
As a caveat to this conclusion, however, it should be
pointed out that the panels of the Second Circuit in
Singleton and Carter were each composed of a district court
judge sitting by designation , and that in each case the two
circuit court judges took opposite sides on the proper inter-
pre tat ion of the term "organized criminal activity." Thus ,
it is entirely possible that if the issue arises in the
Second Circuit again the court, en banc, may adopt the nar-
now view of the dissenting judge in Singleton and the
. 'd . c if h h
concurr1ng JU ge 1n arter. At the moment, owever, t e
la' .... is in our favor .
4/ It should be noted that the trial of United States v .
Podell, the prosecution which gave rise to the
Carter case , began on September 17 , 1974 .
-10-
(2) Conclusiveness of Certification.
In the Singleton case, the court made it clear that the
Goverrl."nent I S certification that the prosecution "is against
a person \ .. ho is believed to have participated in an organized
crininal activity" is not subject to challenge except upon a
showing by the defeI'.dant of "bad faith " by the Government .
The Court stated:
This limitation on the use of 3503
depositions is one to be exercised by the
Government . and the decision whether
or not a proceeding is against a person
believed to have participated in organized
criminal activit is to be made b
the Attorney Genera or ~ s e s ~ g n e e
and not by the court. The defendant's
analogy to the necessity for a court to
find probable cause under the Fourth Amend-
ment is not apt because the wording of
3503(a) indicates that Congress did not
intend for the organized crime certification
to be subjected to a judicial determina-
tion. {Footnote omitted.]
Congress ' choice of the Attorney General
or his designee to make the certification
may have been to insure political accounta-
bility, see United States v . Robinson (5 Cir .
J an . 12, 1972 ) (No . 71-1058) , or to cen-
tralize decision making , cf . United States v.
St. Regis Paper Co ., 355 F.2d 688 , 693 (2 Cir .
1966) , or because the Attorney General is in
the best position to know, but for whatever
r eason , the trial court is not to make a
de novo determination of whether or not the
proceeding i s against a person believed to
have participated in an organi zed c riminal
activity. Unless the defendant shows bad
faith on the part of the Government , the court
is only to ascertain whether or not there has
been a proper certification as required by
statute. (United States v . Singleton , supra ,
at 1154 . ) (E:nphasis added .)
-11-
The court reaffirmed these principles in the following
language in the Carter case:
The court below found that \vhile
the crimes charged in the indictment here
were heinous, they were not properly charac-
terized as organized criminal activity. The
certification was , for this reason , determined
to be without a basis in fact and therefore
made in "bad faith." While purporting to fol-
low Singleton, the Court below was plainly
disregar ding it. The deternination of whether
or not the defendants were engaging in
organized criminal activity is to be mace by
the Attorney General or by his disignee and
not by the cour t. This is what Singleton
held . It cannot be circumvented by a finding
that the Assistant Attorney General was acting
in "bad faith ,. because the court here dis -
agreed with the Government ' s determination
that the defendants were believed to have
participated in organized criminal activity.
Under Singleton, the bur den is upon the
defendant to establish bad faith on the part
of the Government and there is not a scintilla
of evidence of bad faith in the record before
us and, in fact , no such evidence is suggested
in the opinion below. Presumably , the Attorney
General had information at his disposal upon
which the certification could be made . (United
States v. Carter , supra, a t 707-08J (Emphasis
added. )
In view of the opinions in Singleton and Carter ( subject
to the caveat mentioned above), and the circumstances showing
"organized crir.dnal activity" in this case , it see.ms that
the Government can provide the requisite certification here
without fear of a jUdicial determination of "bad faith. "
(3) Appropriate Person to Make Certification.
Section 3503 requires a certification "by the Attorney
General or his designee . ,. In both Singleton and Carter,
-12-
a certification from Assistant Attorney General Henry Petersen,
pursuant to the authority conferred on him by 28 C.F. R.
O.59{b) was found to be Since the regulation
does not require certification by a specific incividual, it
would appear that the authority to certify could be delegated
to the Special Prosecutor. See United States v. Giordano,
42 U.S . L.N. 4642 (May D, 1974) . This being the case, the ques-
tion is whether such authority has , in fact , been delegated
to the Special Prosecutor . The Special Prosecutor ' s charter
provides :
In particular , the Special Prosecutor shall
have full authority . . . for :
* * *
determining whether or not application should
be made to any Federal court for a grant of
.. or other court orders;
* * *
initiating and conducting prosecutions ... and
handling all aspects of cases within his
jurisdiction ...
These provisions would appear to give the Special
Prosecutor the to submit to the court the required
and , in any event , any doubt about the matter could
dispelled by a specific designation of authority by the
Attorney General .

Criminal Division authority to make the certification required
by Section 3503.
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348 l"EDERAL REPORTER. 2d SERIES
In the JlaUer ot UNITED STATES ot
America, PeUtioner.
Felltlon for II Writ of ;\rllnd4mus..
No. 6J5O, Odg1n. "
United States Court ot Appeals
First Circuli.
Heard June 14, 1965.
July 16, 1965.
Go\'ernment's original proceeding for
mandamus protesting an order permit-
ting a defendant in II criminal case to
take depositions of prospective govern.
ment witnesses. The COLlrt of Appeals,
Aldrich. Chief Judge, held that the de-
fendant should not have been griinted
such permission on the bare a <rtion
that the witnesses might not be able to
appear but that the C(lurt would not is-
sue mandamus, that the district
judge would \'acate his order without
such.
D. ''on in accordance with opinion.
1. J(:lndamus
Nothing in the policy of limiting
Proseeution appeals precluded mandamus
re\'iew of the decision that d('fendant in
criminal case could take depositions of
j'o\,ernments two proposed princil'al wit.
n('"5('S on bare assertion that they ndght
not be able to appear. Fed.Rules Crim.
Proc. rule 15(a), 18 U.S.C.A.
which a m.'lnd.,mus petition llad been
ad<1no d .... ould not normal reo
lut! nt'(> to t:lke jurisdiction prior to trial.
Fed.Rull Crim.Proc. Mlie 15(a), 18 U.
S.C.A.
4. :'II us
T acted"
diU!! Ice wh('n on :'Ilay 21 it
for I to review Ih( _
l'Tident
. i ,ned
" rlint
of to dE-fendant in n inAI
CAse to tnke of govel'nment's
two proposed principal Fed.
Rules Crim.Proc. rule 15(8), 18 V.S.C.A.
a. ('rll ,11101 , "'- (.;;;1;'130)
Oi tricl have a lArge measure
of ,1 I!jon h n applying I'll (,fpro_
( lure.
6. 1 ,nms C;:>61
If district court , rira.
insl rule in permitting defendant to take
of prospective gO\'emment
witnu'<t's it acted without power, in the
sense that the Court of Appeals could
review its ruling by mandamus. Fed.
Rules Crim.Proc. MIle 15(8), 18 V.S.C.A.
7. Dl'pos!tlons :Ill
Defendant WlUJ not entitled to take
of prospective gO\'emment
witn(' 0'1 bare AMertiOn that witness.
mifli1 not h(' IIhl,) to "I'Plar for trial.
FlorT: ,I (" i'Il.PrO('. no!e 15(a), IS U.S.
C'.A.
8. 0 C II
2. CrIminal Law
Defendant would not be put in double
jeopnrdy by aetion llpon go\"('rnm('nt's
mandamus PO'Htion to l"('I'iew the grant
of permis<j'>n to q"f'T'<I;,nt in criminal
case to !. t(' of gO\'('l'nment's
two p'or' -'.r! I'' "j 11 wi! "esses. Fed.
Rules Cdm Proc. rule 15'a), 18 V.S.C.A.
.s. mus
rn the light of general importance
of the question whether defendaut in
criminal case should hal'e been granted
permipsion to take depositions of gov.
ernment's two proposed principal witnc88.
es on bare assertion that they might not
be able to appear, Court of AppeAl, to
In rule pcrmitling defendlmt to take
deposition if it appears that
witness may be unable or from
Att('nding triAl, that his testimony is rna.
teriAI find it is neeeB.<ary to ta;';e his
to preH'nt failure oC justice,
in,1bility to Attend trial is not IJ nly
sllernath'e condition and ""rd "'J"" is
not to be inserted followinf!' ,ro lial.
Fed.Ruln Crim.Proc. luI" 15(a), 's V.S .
C.A.

John L. 'Ire: '1I"u h. Atty., Dt'pt. of
wi!h F'red M. Vin!OOn, Jr.,
Acting A. t_ Ally. Cen., Franci!ICo A. Gil,
Jr., U. S. Atty., and Jay M. on,
t
I l'
d
r. r [It
,r fI'i nal
rtl's
rtd.
l'!".C.A.

of pro.
rl aim-
to take
rnmf'nt
, in the
could
F".
R.C.A.
w t<lke
rnm"nt
"itnl'S$-
r trial.
18 U.S.
to take
peclive
d from
rna
ke his
j1J<tice,
me)"(']y
'or" is
,j trial.
8 U.S.
lIt. of
'". Jr.,
A.Gil,
lson,
IN RE UNITED STATES
6
'
,
Atty., Dt'pt. of Justice, were on m
dum, for petitioner.
", :<1,.'1<1 "
oran for Inlndamus. We ordert'd the deposi.
tions IItayed and placed the petition on
lJIe June calendar for hearing.
H.:m-ey B. Nachman, San Juan, P. R.,
with whom Nachman &. San
Juan, P. R., was on memorandum. for in.
t r..-ening respondenL
Bf'fore ALDRICH, Chief JI
BARD, Chief Judge, and 1
, lit Judge.
\LDRICH, Chief Judge.
LDf
1.:5 ,eir-
nuring the pendency of an im:lictment
in the District Court of PUH'to Rico
.. gllinst inlen-cnor respond<:'nt, 1" rt.'inart.
er defendant, the I!.nswer
to a bill of particulars having disclosed
the names of its two principal
itnes:;.es, the d"fendant. mon,lI for ('('uri.
P 'Imission to take their dep' It f.'or
.. uthority he relied upon C,-im.P.
l5(a). This rule provides r, ing
of a deposition by a defelJL! I! .lp-
P nI that. a prospeetive may
be able to attend or p, v from
II <ling a trial or hl'",- n', that his tes-
ny is r..1."t{rial and that it is n<'Ces,
ry to t.ake his deposition in order to
I I"\'ent a failure of justice ."
At the h,ouing, the defendant tatl"(! that
one ot the named witne;q'lI ':(!ed in
Florida, and the other in "iro.
He made no showing with .ir
ability or inability to ., :31
except the bare ht
IlOt be able to app! ar. 'rh It,
in stated tbat 'I IS
eg,;entially dependent u;)[ n l' 'it-
!Jesses and that it I,ad '.leQ'; ,ion
nd expectation of produdng Re-
lrking that it was alwaYll in
ile or the government's
, t a witness might not he able to 'It-
nd a trial, the murt granted d-
II's motion, Its ordf'r \\ s n
)!ay 5, 1965. The I ' rI
nn llIay 17, and 0 e
"ppeal rorthwith, but h; ,I
it. On May 21 it sought 10 file a i-' In
1. III Mndi_onr.e..-ia, Inc. 'bh(Oll. 2
('ir., 11l62, 299 }'.2d t'OIIrl ,1,1
,., Flo1-<O
[ I , 2] We must first ('onsider whether
it can be appropriate for the government
to seek extraordinary relief in a. criminal
case when its ordinary rights of appeal
are severely limited. Carroll v. United
States, 1957, 354 U.S. 394, 77 S.Ct. 1332,
1 11.Ed,2d 1442 ; 18 U.S.C. 3731. No
('SSe! even closely in point have been cited
to us, nor hllve we found any. l However,
the pr('sent question is one upon which
the government coul d seek al)pellate reo
lief, and do so prior to verdict. Should
Ihe order remai n in effect and the wit.
refuse to testify or the govern-
m('nt fail to produce them, and shoul d
the court as a enter an order of
contC'mpt, appul would lie. BOI"111an
Dairy Co. v. UnitNf States, 19S], 341 U.S.
214, 71 S,Ct. 676, 95 L.Ed. 879 (F.R.
Crim.P. 17(c. Alternatively, if the
court should dismiss the indictment be.
cau!l(l of the government's noncompliance,
see, e. g., United States v. Germany,
D.C.M.D,Ala., 1963, 32 F.R.D. 421, an
appeal would lie from the dismissal. 18
U.S.C. 8781. Action upon the gOI'ern-
ment's petition st this point in the case
will not put dd, 'lIbn( twice in jeopardy.
Cf. Fona Foo v. United 1962, 369
U.S. 141, 82 S.Ct. 671, 7 I..Ed.2d 629.
Mthing in the policy of
limiting appeals precludes reo
vkw of this (IUC,UOn.
[3] We liee no realion why the gO\'-
ernment shoul d not be IIble to do directly
what it coul d effectuate indirectly. Fur.
thermore, in Ihe ligill of the general im.
purtan('e of the question, t"is does not
, m a where we I'hould ou r
1l".11 r, J"dance to take jurisdiction
prior 10 trial. !khlagenhauf v. Holder,
1961, 379 U.S. 104, 85 S.Ct. 234, 13
f,J':d2d 152: Madison-Lewis, Jnc. v.
supra.
rrRllt , ror 10 rC"ie..-
n I)Orlloli of an order for dopt). icloll.l ill
criminal "lI8e, but th. ....
Iht
L
t

..

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" ,
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b.
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y
W. E. RIPPON & SON . UNITCD STATES
627
CII ... I:rI
\\'. E. Rli'['O:S I: sox, tiS owner of the
SllEERLJ-:GS PLL'TO, et Ill., Ubelnnt-
Appellee.
t .
U!'ITED STATES of AlllClrlca, lUll owner
of the U.s.l'\.s. OCKLAWAHA,
Respondent-Appellant.
No. 803, Docket 29291.
United Stall'S Court at Appeals
Second Circuit.
Argued Jan. 20, 1965.
Decided June 18, 1965.
Proceeding to recover for salvage
services. The United Slates District
Court for the Southern District of New
York, Thomas F. Croake, J., adjud"ed
that libelant reoo\'er $.45,230.53 and that
all other libels and comJllainh be dis-
missed and appeal was taken. 'fhe Court
or i\[oore, Circuit Judge, held
that where sah'or'a salvage etrorts t"n
si . ted of putting out two anchors, its
equipment was wholly unable to free
\'es,;el that had gone aground on
reE'f, three large Xavy and direc-
tional skill of person other than l,,'rson
aboard salvor's vessel and fortuitous hiSh
tide were required to float \'(' .el from
reef, :md salvor risked only
worth of properly, salrage awafd of
$45,230,53 was excessh'e and award
should be reduced to $22,730.53.
Decree modified and award reduced.
I, Salmge
Although person who din>eted sal-
\'or's launch during salvage operation
with r('.; "Ct to Xa\'y \'essel was em-
ployee of Air Force, his .<;enices must be
ill 'lu,l,od in caleulation of award to
2. SlO1n.;;e <::>18
Sah'or's recovery for S3.lvage sen' -
ices with to Xavy \'essel would
not be reduced by excludine worth of
work of its Libyan {'mp!oy'1', although
reciprocity unrler Libyan law had not
been shown, where was a bona
fide British partn .. rship. Public Vessels
Act, 5, 46 U.S.C.A. 785.
!. Salnge (::::2.51
Court of Appeals has power to re-
duce sah'age award CQnsidered exec.sh'e.
4. Saln!;c :321
Stingy award to salvor contravenes
good public policy.
II. 511.h'1I1:"0 C=>/H
Amount allowed by Irial court to
Palvor is not to be lightly disturbed.
o. Salnge C=>21
Disproportionate amount should not
be awarded to salvor as salvase award.
1. Salngc C=>SO
Where salvor's salvage efforts con-
sisted of putting out two anchors, its
equipment was wholly unable to free
Naval that had gone aground on
reef, three Illrge Navy \', "Is. noJ direc-
tional of rt'I'l'on other than puson
aboard "slvor's and fortuitoUS
high tide were required to Roat veS!lel
from reef, and salvor ri sked only $56,000
worth of property, salvage award of $45,-
230.53 was excessive and award should
be reduced to $22,730.53.
Albert D. JOrdlln, New York City
(Valicenti, Leighton, Reid &. Stock, Rob-
ert J. :-rieol, Xcw York City, of
tor lib(>lantarpel\ce.
Philip A. Atty., Dept. of Jus-
tiel', D. C, (John W. Doug-
A st. Atty. Cpn., )Iorton S. Hollan-
dl'r, Chief, Appellate Section, Civil Divi -
sion, Southl'rn Dist. of New York, Louis
E. Greco, Atty. in Charge, Admiralty &:
Shipping Section, Dept. of JUl'tice, Harry
L. Hall, Atty., Admiralty &: Shipping
Section, Dept. of Justice, Washington,
D. C., of Robert M. Morgl'nthau,
U. S. Atty., for Southern of New
York, New York City, on the brief), for
respondentappellant.
B('!ore Fltn;:-rDLY and
l'.fARSHA1.L, Circuit Judges.
MOORE, Circuit Judge.
This is an appeal by the United States
(rom a award of $45,230.53 in
admiralty to libelant, W. E. Rippon &:
626
348 rEDERAL REPORTER, 2d SERIES
thought. howe\'er, should
be gh Ihe timeliness of the petition.
In In t"nitt'd Shoe Mach. Corp., 1
Cir .. I 0 2;6 F.2d 77, we held that
t. \H.y of mandamus must be
promptJ :J.ht, and suggested that the
appropr time was the normal appeal
period. In tI criminal case there are
"ari. i" al periods. A government
II.p; ",tinguished from II. defend-
ant' ty duys. F.R.Crim.P.37( a)
(2). true Ihat the time for com-
m . ..:rt'tionary interlocutory ap-
peal . it cases is ten days. 28 U.S.C.
12!J2(b). But cr. 18 U.S.C. 1404
pennitting the gO\'ernment thirty days
to sPPt'al from the suppression of evi-
dencE' in narcotics We
m ke II "ance in this particular case
for \ f.ld that the availability of reme-
dy b) ay of mandamus might not readi-
r to counsel. Without suggestin&"
that we would do so in other instances,
we \\ ill I Id that the government acted
with It diligcnce.
6 J . 'ldant contends that if
Ih 1 at all, it merely abused iUl
d 1'he position is
tl t t .I:IS without power. A
di (.rt's "power" is an
tlJing; it:- unfound('d :Jdion can be high-
ly efficacious. Cf. Fong Foo v. l:niled
States, l'upra. courts do have a
larlle n; II. of discretion whO'n apply
inll l"ul('S of procedure, see ChO'miclI! &
Corp. v. Druffel, 6 Cir., 1962,
301 F.2d 126 (F.R. Civ.P. 26, 30, 33) ,
but we- belin'e that if the district court
rot I he rule it acted
w) in the Stense that we may
r ,hallf v. liolder, su-
P'

x
'0'
,
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.., . .,
,
N, C
10 the merit,q, we reo
t'" interpretation of Rule
.
rities, mo.! of f
I ... died 111
e ,jltee'. Note to nlll,
e
"

Ullited

II Rule. o( I> .. ctlce
15(a) a.!I plainly wrong. It would serve
no to the and
:lctivltiell dur ing the past dec-ade regard_
inll the de.irability of amt"nding the
criminal roles to provide for the amount
of di!ICo\'ery permitted unde-r the rules
of civil procedure.
r
The district court's
view of Rule 15(a) , if corred, means
that much of this discussion was
Mry. Its order either made the provi-
I:ion regarding inabili ty to attend the
trinl for all pract ical pur-
polles, II. construetion we could hardly
accept . or, as defend,1nt contends, read
into the the \\ord "or" to fol!ow
the comma. We cannot accept that con-
struction, dther.
Dtfl'ndanl's dichotomy would ll"lke a
showing ot inability to att('nd the trial
an alternative condition only, and pel'mit
a deposition to be taken of any witness
whene\'er it appears desirable in the in-
terest of justice. If defendant's inter-
polation is proper, defendant must ac-
cept tlle other allernath'e, and 5Upport
the proposition that the rule means that
if a witness is shown to be unable to at-
tend the trial his deposition may be taken
even though it does not appear that
his t!'stimony will be material or that
justice will be ",.I"\ed. Xeither grammar
nor (:.,11 for a rC"IIt. The
,[ f(,llIi1lnt a nurnl..er of di._trict court
C pa.S on this ques-
tion. F:wn the language on
which he rrlics is at best ambiguous.
The order of the di strict court must be
vacated.
In actordance with our usual practice
we shall r.:traill from issuing a writ oC
mandllmus at th is time because we may
thllt the District Judge will va
cate his order wiU10ut such.
lind :;'D(I r,' . H',r nNiit of
I> tOf'OlM .\m' I'" 'It 10 1":(,1 , "f Cn''''
in,1 ... (,. 'he {"nil (I 8'"1.,. Dis-
t.ict C .... rt.o, H PfM"" WGI ).
l
,

"
ra
et;.
ul n't
,.
occur
5 tried
'" ori,_
"n'
" an
UNITED STATr.S 1'. 'WHITING
of ;rreleHIn(T ".,' the of
direct uaminatl nl<1dl', and was
upheld. Each n i g might well bln"e
gOne the other War, but each falls with-
in the large di'cn!" n"r)" 'Tca accorded
to trial Ire lbd no error; and
c1earl)', no prl'j\ 1 rtfr.
Further erl iwd (V) in the
use by the pn :ulor of sev-
eral leading , alive and sugges-
tive questions of . itness James Mil-
ler; (VI) in 1ing an objection
to a qucsti<>n', of the witness Jerry
Carrol: (VII in f . iling to sustain an
objection to (me 'jU _lion :lskcd of the
witness Br):ln purporting to rebut evi
dence defense counsel in
Questioning C.,- 01 (VII I ) in admitting
of uhr purporting to
impeach J l fry C 1.
We \\ill no' . . opinion by list-
ing mdho . loy the in
IIttemptin to , the failing memory
(a) of a witllE'ss (n,m Ilhom the overn-
ment had I obtained II written
statement incon '81(-ot with his then tes-
timony; (b) of tl.nother witness (e:lrro\)
whose teslimony was, to say the least, re-
malko.bly h ;:y. The witnesses were
)oung men
they wue
ev 1 OH
! ,yed time of trial;
r , f Irse, when the
II is :!xi. c' of the be,1 de
fenses in crimI J if no other
exists, Is to Irr h "j'!'. or the
who r, .. ,! cvi-
dtnce. An) ."uch Hit ;1: I OHnd 10 in-
I'oll'e to the f,dmi.;:;ibi1it y of
IIlleged or "l.<horeing-up",
que_tions. Suf!ice to that we lire
tho "'as no prejudicial error
c{'m, ,il',d' tJ 'rt in ruling on :lny
of 'h . n J nUoned, liar
dir! nny or tit a fair trial.
,
[5] En r in excluding II
calli! II" rvr II 0: .t:1U$ion of the
witness Lcl,man.! jcction was made,
Tt r Ii &" was proper.
2.. "0.
b. ',,/; a.

<"t o! :'>1 ...
.. reh tloe 71h
Finally, ddl:lldanu urge that it was
error to rdu . \0 strike an answer given
by the Y"onne Ladd. In the con
text of the previous wlimony given by
her, we tind no error.
There here e:dsll, in our opinion, no
probnbility thllt any or the
e1nimcd "minor errors" mny h:l\e affected
the jury's \'erdict, either singly or ac-
c.umulatively. Al're!lnnts rt'Ceil-ed a fair
trial. The judvmcnts are, and each is,
Affirmed.
t::';ITl:D of ,\m rIcA,
A>I' !lee:,
, ..
Dlntl' ,,'armlngton WIII"fI:-<G, James It.
Crowe alld Walter J. Sarnltz,
Defendanls-Appellanb.
No. 261, Docket 2.196.
United Stales Court of Appeals
Second CIrt'Ult.
Ariut'd March 8, 1962.
Dl<led Sept. 20, 1962.
Ddu"!:lnts WHe c<Ol\ld('d in the
t'ni\l'd ('OIHt ror the
SOlltht'rn Oillirkt of York, ('hllrles
:If. :l1('tzn('r, J., lifter trial by jury, of
sl'ndinll ('abies betwl'en New York and
Rio de Janeiro in rUIthl'rance of means
to detrllud banks nnd of to
st'nd fr;ludul!'nt cablu in violation
of ftdcrnl con piracy ,L1tute. nnd they
app,,,ld'\. The ('(.ourt of AI'f'lIts, :lla r-
e.hllil. Circuil Ju<1 'e, h.ld that cvid"nce
1.1 t,j",d ('o'l\i,t' r.s 'Ill tl:l! gOlern-
mt"lt's to anti-
Aml:ric:ln rioting in Latin America was
not sufficiently prejudicial to require re-
"eraal.
Affirmed.
o! Mr .. \11 .. .1 nr)'"n bu n"t ... tutu-
..t to jan, bu bIro
538
30B FEDERAL REPOR.TER., 2d !;ERII:S
1. Conspiracy
<==>363
E\'idence sust .. lined conviction for
sending cables betwet'n New York lind
Rio de Janeiro in furtherance of scheme
to defraud banks lind of conspiring to
send such fraudulent cables in violation
of federal conspiracy statute. 18 U.S.
C.A. 371, 1343.
2. <>-17
Tek'oon'munic:ll ions
To sustain convictions for sending
cables between New York and Rio de
Janeiro in furtherance of scheme to de-
fraud b..1nks and of conspiring 10 send
$uch cables 'in violation of federal con-
spiracy statute, there must be evidence
from which jury could conclude beyond
reasonable doubt that defendants devised
scheme to defraud banks by means of
false representations, that they caused
communications to be !lent in interstate
or forehrn c:ommerce for purpose of exe
c:utinll' fraudulent sc:heme and that they
aeted as part of illegal c:onspiracy. 18
U.S.C.A. 371, 1343.
S. c=n
That aH.'l!ed sch'me to defraud by
sending cables New York lind
Rio de Janeiro fail0d of its was
not defense. ]8 l'.S.C.A. 371, 1343.
4. C=6, 37
Motion mnde under rule autholil.ing
court to order tnking of uJlon
showing Ihnt proS:J<.'Cti\'c may be
unable to attend is to di."Cre-
tion of trial eourt; it should be granted
only in and moving
pllrly ha. l..urden of a("lotJ..lraling maiJ
ability of I,ropo'ed \\ itw,r's ; nd U,dr
willingU( s 10 al'P"Rr, mateliality of tes.
timony \\hich it is e>;f/t'cted they wi ll
p'iI'e, and that inji.lstiee will r .... "ult if mo-
tion is dtnied. Fed.Rules Cril':'l.Proc_ rule
15 and subd. (a), 18 U.S.C,A,
5. DcllO!oltil)llS
Dt-nial of motion under nuthor-
hing court to order taking or deposit ions
is di!lCrelionary, if motion is m.1de after
unexcus"d delay or on eve of trin!. Fed.
Rules Crim.Proc. r ule 15 and !ubd. (n),
18 U.S.CA.
6, 53
Deninl of" 'ion 10 hrtl'e dtr
of persona it r"t, il t Iken W.1S d,
ar)" where 'n \\'.15 made c:11
consideraLI ') nnd on C'1*nini
trinl. FNI, r I Crlm,PrO(:. ru!\"
18 U.S.C.A.
7, C=>8.)O
who on d;r
exnminlltion thllt he had never been
victed of crime was properly cross_fX
ined liS to prior conviction by t;n;
Milihry Government Court, e'
if oITenllC \IllS not felony or crime
moral IUTP' ude.
8. Crlrnlmd J m' G->1ta(1)
Con'n nt's 'lIlllmaUon tderr:
to anti-American riotin, in Latin k
ies, in prosecution Cor sendini c .. bles
tween New York and Rio de Janeiro ir.
furtherllnc:e of scheme to defraud hank,
was not lutlkiently prejudicial to reqlliff;
revet1lal. 11'1 U,S,C.A. 371, 1343.
J, Robert Lunney, New York City. f(
appellnnt, Din!y Warmington Whiting.
Theodore Krieger, New York City (Al
bert J. Xcw York City. on
brief), for Jantr Ja!l'
R. Croll'/' (Ind W:ll1er J. Sarnitx.
David R. lip!!', \.osl. U, S. All)
Stmth('rn Distl"ict of Xcw York (Ro'
M. U. S, Atly., So. Di
of New York on the bricO, lor nppel1e
Before 'YATER;\IAN, KAUBJA:\
and MARSHALL, Circuit Judges.
MARSHALL, Circuit Judge.
This (In IIPJI"nJ 1..)' t! rl<- ,\ f ,10 t.
Diuty Wa:'minll'lon \\"h't,',II', J mea
Crowe, and W:ll.er J. !"a 'nih, fl in jl .
menl.ll of cr.; \ it' 'all :,/ r (] in th, l'ni!
Stlltes COllrt lor the SoutlH!lr.
of Xcw York, Metxner, J., 0
March SO, l!lf.!, aftl'r II hial by jur)
The three d<iell{i:rntll were eadr con\'ic:
on tlrrce suL. tanth'e counts J.
II, nl\(] III) chnrrinl' \i(lJati(
of 18 U.S.C.A. lS.J3 by the Rlldini of
cables bctwet-n New York and Rio !Ie
Janeiro in !Ilrtheranet> of a srheme to Ce.
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rn ,.
lanka,
!Quire
y, for
g.
I' (AI
th,
1
Atty.,
tobcrt
istrict
JWl1ee.

R
jud,
"Iit('d
t" n
J., on
jury,
}"ic\rd
lOis J.
Jillions
Inr of
Rio de
,to de
m;ITED STATES v. WmTING 539
fraud. Th( y \\ re C)t d Gil a
fGurth eount C(lulI'1\ of' n I,iring to
send theS(' fl in \iolalion
of 18 U.SC.\ Ih" 'l'al ('
11\.;':'" f" ol.'llt W1 it ng
WllS &ente:., ,ce fo r y,lIr ., d
fe\'en mont:, ., on count, I
defendant C' n'e {cur r(>:lU a
ten ! rio II (n each cGunt, nd
the defendn, I <; lliitl: 10 four rs
!lnll Ih'e in rri. 'In or, each c
with the of l -,ch defenJ, to
run CGncurn, , Iy.
Two ndtlit:{>!l;,1 defendants,
J, I{unz lind \'ktGr J, Mari, J'lleadl-ll
ruilt)" to Count IV and were ellch
tenced to lioI'T\'e Gne year in prison, In
dictments aFllinst them as to Counts 1,
II, lind III were At trinl both
ml.n :IS GOI'emment witnesses.
[I] Allhough the appellants
certain of erro!lt-oUS nnd J'lrdu
dida! by the trial court, whieh
will be con<i-!pl'('d rTCl'ently, their appeal
il baooed I ri" :lrily upon the contention
that the {\ i 1 l'e prc,,,nted by the Go\"
ernment <lid 'lot fairlr eslaLIL<h beyond
I fe; doubt thdr !."\lilt of the
crimes {harl-' ,d. \\'1' ha\'e carefully l'on
sidHed the r,oord and lind the
ample to the judn, nt of Ihe
District CoUl'l. Because we find n ' dt
to anr of the other claims made by UlI!
dcfend:ml!!, the judmcnu of conviction
be nmrmed.
On the of the evidence intrGoluced
by the Government, the jury could have
found the following facts:
In August l!)(iO Sarnib. uflproached
"Iari nnd Runz, both of the
Bank of Am("ic:lIlltl!natiol,a! in
York, with ;,n offer of $12::;,000 for "lari
IIUt! 250,000 (or hunz if thty ld d
I c.lhle f.-om the n nk (If .\m rk",lnler
naU"nallo ':11' 8,,1'1'0 do Rr:, il in Rio de
Janeiro, a couF-dentia! internation
al banking cable code known only to I feW
employees of each bank, including Knnt.
Both men ncnpted the offer, "Ieetiny!';
were held by :'I!ari, Kun;o;, Sarnj!;o;, nnd
Crowe; Sal/lib m;l.de alle:lst three tde
I'hone calls to Whiting in Rio de Janeiro,
A cnblc which originally nnm .. d Whit
iI.r 3'1 I" :.f<ficiary but bier wa 11-'t'd
to name CrowC!--wnl drafted. F, Hy,
on l,uguH 16, 1960, nCter Crowe had
flo"n 10 r.io de JlIneiro, Kunt Ira;,!mitted
o ,I' n:1.nk of America's wirt' to the
do Sr:l!dl the cable th <" 1m thi:'
hi of Count I:
"WE HAVE RI::CEln.::n rAY
hll:!\'f ORDI-:R V.\Llit:n - l'S
HOI.LARS THREE :'III In!'
]. gO:'>1 BANCO DI NAl't'I' .W
YOHK STOP UNDER 1>- 'C
'IIO:-:S Of' JAMES RILEY Ulo>\\'E
AS THt::Hl:OF
WE lIEREBY 'fRAKsn-:n A!'D
Cr<F;DI T THIS PA YME:-l'T Or.VER
TO YOUR ACCOlil'T Or. YOt:R

Tho.' WIIS rep \ Itt'S
! rill): the IIlll(ouut of , On a
, h the amou d
to 3,000,000, Illakhl at: 10,
00'.
When the Banco do Brasil received tbis
cable, it sent a return cable to the Bank
of America requesting eo'firmlltion,
L"ter that same day Whiting to the
office of All America Cablel and Radio
in Rio de Jllneil'O and to the Bank of
.\ rica in !'t'W York -hieh
"thel;,isofCc tit
"IJISJ:EGAr.O .\:\D r:L
C.\BLJ:: TODAY S, .\L
RIO."
The term "SATELGt.:RAL" is the ca
ble CQde nnme for Banco do
Hili Mallagemt'nt. On the 1111e of the
fOIm the name of the
Whiling wrote, "J. Feil'TIlTa &; Cia, Av,
Rio EI':lnca 164," Both 1,le II\e te
lor confirmation by" rio
Brasi l nnd the "di , ,('\"
ble Hill b) Whili' Ihe
,'PI'rOI'J'ia$' om,.ial ill t l<'r'
k:l, bul no Ilclie'n n luitt
also h<1keo to Whilir., ') 'I t dur-
il<lI' lhi.i I criod,
The f"nowing day, AUi t I., '0,
Sarnih received from Kunt t
l
,. n
\ial bankinll test cOOt- fCor :;t
day as well !IS M\Hal c" 1 cle
words; he then wt'nt to the \\' tern
Union office in the l Ho
l
510 508 FEDERAl. REPORTER, 2d SERIES
It I in York and sent to the Banco
Brasil the telegram which forms the
of Count III:
"Fl\"ETHREE SIX BSUUl WE
COXFIR:U P."r.YMENT ORDERS
J..$[5 RILEY CROWE FROM
AUGUST SIXTEENTH IN ALL
P.-\RTICULARS EXCEPT FINAL
REE WORDS IN ALL SIX
. SSAGS QUOTE OR YOUR
:''1GXEES UNQUOTE WHICH
ARE HEREBY DELEn:O
XRClO."
The words "FIVETHREE SIX, "
"BSUUI," and "XRUID" were written in
the secret bank code. On the line of the
Western 1,;nion form reqllesting the name
of the sender, Sami!: wrote "Frederick
Johnson, Hotel Gladstone, N. Y." Wh(ln
this message was recein'd, the Bllneo do
Brasil again &ent a cable to the Bank of
America requesting conflrmation. Upon
receipt of that cable in New York, the
Rmk of America began an invesliaalion.
.\11 'h'e defendants were subsequently
an 4ed,
,2] To these convic.lions there
u-t be e\"idulce from which the jury
could cOlldurle b yond a !'eflsollnble doubt
(I) that the d(ftnrlants de ... II <cherne
to defraud the involved by IIW,1n3
of rCI,rcsf'utatiolls; (2) that they
<.1u,'ed the Ii,ted in the
ir.rlictmcnt to b(' !;tnt in inil'rstate or
foreign commerce fo\' the IlIll'llase of
the fraudull.'nt 5ch!'me; and
(3) that thcy acted as part of an ill egal
<piracy.
3] The Count I cable 8{'nt by Kum;
, the Rnnk of America to the DAneo
P, ,it W:l8 darly and frAudu-
I. It without th(' knowledge
authOlivd offidnl of Ih(' Hnnk of
"merica. The B:lIlco di NIII'<'1i hAd 1101
rar.f.mitled 10 the Blink of Am('ricA the
[' .. yment orders mentioned in the cable,
'h Blink of America had IIOt r{'C('h'cd the
.. \"In!'nt orders m!'ntior.('d :u!ll did not
, end to transfer nnd cndit tiwm to tile
a do and Crowe was not a
ell tomer of the Ranc:o di NllllOti or the
I] ,k of Amrri(,lI. Although no money
Will e\'er paid out to the defendants by
the Banco do Brasil, the fact that.
&cherne to defraud fails of its purpose i.
not a defense, Hoffman v. United Stales
F,2d 338, 341 (9th Cir. 1957). And
it should be noted that the comptroller
of the Bank of America testified that in
his opinion hlld the Blmco do Brasil reo
lied upon the Count I cable and paid out
the funds, the Bank of America would
hal'e been held liable.
The Count II and Count III cables were
lIimilarly false lind fraudulent. Althouih
the Count II cable was signed by the c:lble
code name meaning the Banco do Brasil,
that Bank did not authorize its transrnia_
and had no knowledge that it was
bcini sent. The Count III cable, a\_
thou,h includin&' secret cable ('ode words,
was sent, like the Count I cable, without
the knowledi'e or authority of the Bank
of Ameria. And neither Whiting nor
Sarnih si,ned his real name on the c:able
form line 8!kini' the name of ,*nder.
Both C:Ables ..... ere designed to prevent an
in\"elii&,alion by the two banks imohed.
The evidence as to all three defendants
fa c:leRrly l'ufficient as to all the constitu_
ent of the crimes nlh.'&'ed, in.
ch"lin" kno\\'hlge and intent, to
their conl'ktions, There was a substan_
tinl in the Government's evidence
from which the jury could have found
thllt Snrnih was directly implicated in
the bribe to ;\lari and Kunz, the
fubricntion of the Count I cab!e, and the
fabric.1tion and actual S'nding of the
Count Itl cnblc, Th('re was substan-
tilll in the Go\'cl"nml'nts el"idenct
from 1\ hich the jury ('ould havc found
th.,t Crowe was a l'art of the
from the bt>ginning, tbt he met with
and !,!nri in New York.
and that he flcw to Rio de JI'11ei1O in
order to b.."'Come the "bendiciIlI"Y" of the
scheme.
AI,hoUih the GO\f'rnmlnt's ca6e
arainllt Whiting is not as dear as that
Sal"lLitz lind Crow(', th('re none-
sub, L,utia[ t'\"id"nce from which
the jury could 11<1\"e inferred guilt. He
admitted mliug the Count II cable and
although he d;lims he did 110t sign the
L
by
that a
lrpose II
d States.
'). And
r>ptroller
I that in
rui! reo
paid Oll t
II would
,I ' were
\hhollgh
the
o

t it was
able, _I_
II.'
without
he Bank
tini nor
the cable
,
:h-'an
,
found
icated in
(unz, the
. and the
1 of the
substan
eduenct
H' found
[liracy
",1 wilh
iro in
f" of tllt
.'s CaM!
r III that
none-
" hlch
ilt. Ht
Me and
the
U!'nrD STATES v. WBlTING
>,11
l I. '.d !oJ7 U!IC::)
)1..lme of the B.meo do to it, the the motion and affid;l\its
jurY has r e50iled tha! o:onlt'ntion;. ,lnH ILmittt"li by Whiting failed to n..et
him, He was in {cl"I,he,roe cQ!:tI111\mla tl c e IItnndards.
tion wit h SUnil- ,julin.!;" the finalsl'll:C's for Whiting mo\'ed on J:,n: ,ry
of the scheme. '1.( plic:,ted \'(,r.lion 10. 1!1f,1 for nn order nuthorizin; tr.c tnk.
of his r -il , .. hitch Whiting of Ihf' of fh'e \,rr.;{lns re-
made the ba_' , .... ,:. fen-e \\, s for i inj' in Flrl'til. Neither the m<':i<:'n nor
the jury to 1'( l-ej,"<:C We nt( \- he nffi.:avit of
isfied that its r 'Hm of \\'hjtinj1', d 1, 19G1 did more Ih:ln atieg<" ii, co' lu.
fense and its a, {'.<nee of the 'ry ({'rm.!!, (lie I of Ih t;ve
menl's \-ersion of the is L .d J]>(In witnesses. i l.
substantial evidence.
[4. 5J The ddendllnt Whiting also
contends on :lpp!'al that it was error
lor the trial C(lurt to deny his
motion!!, made ur dH Rule 15 of the Fed-
eral Ru les of Climinal Procedufe, 18
U,S.C.A., to take the d,'posiUons of fh'e
perllOll!! residi{lg in Hrazil. Rule 15(a)
rro\'idM Ihat a ('(Iurt may order Ihe tak-
ing of depositions upon a showing "that
a I'rospeeth'e witness may be unable to
attend or prev.:nted from attending a
trial or hearing, that his telltimony is
material and that it is to take
d.-position in order to prevent a fail-
ure of justice . " Allhough the
rel'"lrted cases are not
I
(E.D. N .Y.1946), Ih.
ity of the which it is expectf'd
th,y will gil'e, Cniled States v, Gle.'l.'ing,
ill,ra. '<Ild that wilt n',un it
the motion ill denied, L'nitl SI:'tes v,
Grado, 154 F.Su].p. 1175 (\',"[1 ;';(1.1957),
It is wit hi I! the of Ihe trial
court to deny the motion if it ill m;,de
IIftpr "ugoc,-ed d,.1;oy HrOI ') V. t b!!i'd
81M'!! .'l!JrA or on the "('\'(" 01 trilll, "
L'nilf'd \', Pnker, 2-16 F_2d 3U
(2nd Cjr, wan em. Je'llfd ".)s C S.
831 18 <::. Ct fi3 ., I Ed 2d 49 Thc Dis_
trict Court WIIS correct in holdinl H'lt
Ih,
16.
;.
lion th;lt at 01., o
d wit d' 1,'$ could I <'l-
It 10 Ihe C{lUrI! 11 cable m
iI 10 Nt\\' York, hul I,e , 10
admit or deny Ihnt Whiling senl the ca-
ble, or to indicate what form Whiting's
dl'fen."C to Ihe charge in\'olvinl th:'1 table
\\uuld toke. he wa,. ufJ"ble
to dlmonstr:lte that the pro] -, d Ii
mony would be material to or \\,; 11' "lp
to e.tablish Whiting's defense or thllt the
testimony "would Il:nd It, e!ron-
('fale" him_ United St3tes" Blo. r. u-
Ira 216 J.'.2d lit 329_ Thp Oi' rt
ft ');1' .J
6J liow("lf, on Ft,l,ru I I l' I,
fi t d.!\ of trin!. II hitir,
1 rin!!" dn hi- moliun for (If
1 it. OUrinll' hh- h il' d
uditl/t Ihe Count II cllule from Brazil to
York nnd conCf'd('d that it was in
his own handwriting. Ih('n
k .. d the to Trcon'ider hi< m(J'lolI
, kf' foreign in :h{ (of
Whi!iuy's l,.timon},. The court no ,I
'h,t \\'hitinlf for lin I r 'Ir
,1 a h:llf thi!! morninj' IIlld ] aCli I)'
\i I'Y Hille of what lie s1I.id on \. r.rl
l!"J ,;,red in [his) ]18pe:-
T,apers no\\here give 0'
he Mid on Ih(" I(],l;,y,
f(]r \\'hilinr had " :n
1M 'Ian"n for two mo),:hs. rt
II "fore d, ni.-d the molion ":,: ,; Ii li.c11'
:,t '0 sftt'f thrl'e on the _,.c'lin,-
St2 S08 FEDERAL f..i:POr. fE::t, 2:1 SERIES
c:!.: of triaL" L"nder these circumstam:ea
it i to consider whel1:er
,\ ., (1""; at the bail hearir.1I'
, link of m:tteriality which was
r.: rlier.
9.
{7J The defendant Sarniu also as-
on tllis appeal that he was denied
a! ir Irial by reason of prejudicial cross-
ea :lination concerning a prior convic-
We find this aS$('rUon without
m it. S::trnitz: denied upon direct ex-
Ii 'ion that he had ever been con\'ict-
t j crime. Upon crolls-examination,
he admitted that he had beto
ed oC ill,'gal trafficking in )">enici!-
I c .. ,y a United States Military GOllern"
l1"'._nt Court during the occupation of
.I ;;o'ria in 1946. His contention on ap_
I is that this com-icHon Will not ad-
for imi"lchment purposes be-
it_llS not of a felony or a crime of
t"[ i'mle. S.:-e Unitel! States '",
15 F "d .'i31 (2,1 Cir. 1!!;'4). But
-' 1110n of the 1916 coudc-
i to the clispo"ition
iu' claim, Sarnitz: admib in hia
brief that because he testified on his own
bthalC, "he could be cross-examined for
.rpo'e oC impeaching his credibil_
Ity. E';en more narrowly, becnuse Sar-
nitl; :. lifted on direct examination that
he had never been convicted oC a crime,
he m d 'lis tredibility on that p:trticullir
i < "'-'lI1t !lTea for cross,cx:lmina-
>!l. Court s:lid in United States
\. i, 2'5 F.2d 781, 782 (2d Ci r"
;7) :
..
.,tifying on direct exam-
t he h:ld ne,'er been con-
G! any 'crime or offense,' the
cnt's attorney was allowed
o f1,OW on his cr03s.examination
'}at i.e r.-d, while in the army, twice
I r. oC what the aI.f't'lIli nt
c " 'il Jj 'ht We ne"d not
c heth(r this would othcr-
wI '\1.' I 'n proper cross,exami-
nation, !l('e l:nited States v. Pro\'oo,
2 Cir", 215 F.2d 531, 536, for it was
in contradiction of the
apfN"'llnnt's pre\'ious testimony on the
f'ubjett of his previous good conduct
which he had himsel f put in issue."
(8) Finally. the d('fendnnts contend
that the Go\"('rnment's summation was in.
flnmmatory lind prejudicial in alluding to
briJxory of political officials ::tnd comment_
ing that "if that's the way these Ameri_
cans do busincss down in Latin American
countries I think it HUle wonder that
we read in the papers these days of anti_
American rioting in the streets down
there." While \\e lire not to be under_
stood as . such latitudinoua
we do not beli(:\'e that they
wcre lIuffideutly i,rdudicial to require

We have con$idered the other argu_
menta urged by the defendants and find
them without merit.
We are indebted to assigned counsel
(or appellant Whiting for his painstaking
preparation Ilnd presentation of apPel_
lant'a contentions on this appeal,
Ami led.
T.f'Ollnrd Ber.sTF. .... , Appellnnt,
,.
TO)t S.\ Th"C" formerly S.wyer
Downtown, Inc., Appelloe.
No" 190.;0,
UnIted States Court 01 Appeals
FUth Cirellit.
Sept. 18, 1962.
Action by a COlr _tion for recovuy
of its "hare of l!cgedly due under
a joint \enture ,."rt: m(:nt, wherein de--
fendant' 1Ilt.,rclaimed for an amount
due for l.glli.'H'ices. The United States
District ("'lOrt for the Southern District
of Florida, P. Lieb, J., entered
illS
160 J"I:DCRAL REPORTER. 2d SERIES
the Kentucky Ch-i! Rights Commis
ion. We find this statute inappli cable
ince by io H-rffi5 it does not apply to
r. ti tIS (ed in the Courts.
\( r niltion of the statutes it
ion
\Vhi h
men
cau _ of

(2) An
atcd h,
fixed t

t mwt appropriate pro\' i-
ld in KRS 413. 120(2),
ing actions shall be com-
fi "e years after the
Jl accrued:

ction upon a liability ere
<ltc, wben no other ti me is
-lalule creating t he Jill-
f2] C ny rights which the
rlaintiff h "I' are dcr,endent Ufl<Jfl
the pro\'is. of the Ch"i] Rights Ad.
42 U.S.C. ljS3, as by the Con-
",teSS of the United States. She does
not claim any inj ury to her person and.
therefore. is not barred by the one year
as intHpreted by the Kentucky
Court of Appeals. She doelJ cl ai m a
right wi thin the meani ng of
the fh'e real" statute eontained in KRS
413,120( 2) , and should be permitted to
pursue thllt attion.
The judgl '('nt of the Distriet Court L
re\er.<ed.

o ... ". ""'"
l ;-.;r '0 STATES of America.
\ l,!, ..
",
Jam., r. :o;r.I.':1"O:-.', Dd('n<lanl.
I lIanl.
Xn. 9, Doekct 71- 1999.
Unltoo States Court of Appeals,
Second Circuit.
A"gul'd Feb. 4, 1972.
De<1ded May 12, 1972.
The l' it d States District Court for
the rll Dist r ict of New York,
Law nee W. Pierce, J., found delendant
I' II of lIing a narcotic to an under.
('0', FBI all,,'nt, and defendant appealed .
Th Court "f ApJl<"als, Anderson, Cir.
euit ,I dj;e, held, inter alia, that where
I nr of ,ovcrnment informer was
t II unda "ath, in the presence of both
d ant and his attorney, where the
( , I" tesUmony, whieh included a full
f uaminatton, was transcribed, and
the informer waa actually ull avail.
I ftlr the t rinl and the reason for his
,Ii Ice was not attributable to wilful
or n -iii/ent government action or omis_
llion, the usc of his deposition at trial,
'j tc>d on D"put y Assistant Attorney
I'll {'crtification t hat the pr()C1;!l'd.
a Ill'rson believed to
liril'atc>d in an organized crim-
th ity, was perm is-
.firmed,
OakClL, Ci rcuit Judge, di ssented and
filed opinion,
J. Crh,uul 1..:1\\'
Wh th(r one hI!.! !)c(>n denied a
; ted}" trial is II. relative questi on which
drj\tnds on a weighing of the circum
tan. s; t he essenti al elements to consid-
'rre Ir nilh of delay, reason for it, ex-
It r I' '\!judice and whether defendant
. '1 ri ri c demand for a speedy
[ Amend. 6,
". [' \\"
or
t to n _<peedy trial dOl:'s not at
I] clcft'udanl has been al'l"t!sted
me an accused.
S. C, nlnal lAw C:=>,H3
D fr clant was not denied his right
-ely trial by reason of the pas.
l"Le 13 months between his
t 1 ndictment, where t he delay
il)" the re;!ult of defendant's
off r {'ooperate with the gO\'emment,
with th Jl asi bility that successful co-
operatl"n might lead to a dropping -of
U.S.C. A.Const , Amend, 6.
4. C' !
F
con t't
I I. ". C=>.'i76( 8)
'e to dlllland a speedy trial
a \ 'aiver of that right.
l
"d
'd
'hkh
,m-
id
,.
d ,nt
ecdr
t at-
,,'
-hi
''''
hill
liar
nt's
!.lnt,
I
..: -of
"
UNrrED STATES ,. SINGLETON
1149

!I. CTIn>lnal La\\'
Whil(' Rule 8 of the Serond Circuit
Court of All :,1. erlling the prompt
disposition of 31 dispenses
with the need f r tltm/lnd, waiver may
be ron " n d a! a relevant factor
in dccidinJ!" h<r the constitutional
right to a <I : "ial hal' been violated.
sccond Cire ., Il.s Promllt
'rd rule 8.
28
6.
Thir!.
.;6011
h ud:.y bdw('cn IIr-
rest Itnd 11 ,\ al' larllely the te
,,('ani and.
ing the fact tbt he was free on bllil
throuihoul the 1'(riOO and had op
f>OrtunilY to II llpeedy trial in
on !_lIt did not do so. there
was no \'iol:.t ), ,f his Sixth Am('ndm('nt
ril1hl.ll, l',S .\ (', nst. Amend. 6.
7. CTlmlnal I " -> .. 71
If is adual prejudice result
ing from Irial delay. th('re may be a claim
uuu"'r th(' Fifth Am('ndmenl, but nQt
cIl'ry d I,c' ustd detriment to a de-
l e -hould abort II criminal
l'I'OJ;('Cut n t c;;,C A,Const. Amend. 5.
1'- (' '" I
F. ,t
unable tQ
alone. suffj
II _,,- C>':!r.s(ll
',cllt informl'r ' . 'as
if in I 1'1100 was not.
that defend-
ant t1eni.d d .'" of
the of time b .. ,tween the date Qf
his criminal and the date of trinl:
furthermore. it l'iJp"al'Cd that govern_
ml'nt wa, 1,111 one date prepared 10 KO to
trial. \\!- II the infvrmer was able to tes-
lify. l'llt It., t II': I "i,,1
at ddt I's .\
.\mend, fi,
9. Cri>llln:al
"
S"',()nd i t ,les regarding
I roml,t di it f liminal cases did
not J '10:' I r>j'e be dismi"sf'd,
Whell! It h:ld been ready for
triull riol' to ti;,te the rules wenl into ef-
ffl'(;t, fllrlh'r. the .tinuance granted
lJy lower CQurt for !.'lking of gO\'ern-
ment ,ition wns a delay
for" j"l1111 circumsl:lI1-
CCII" under th(' rule!!. Second Circuit
Rules Rcl1'lIrdina Prompt of
Criminal rule!! 4. 5(c) (ii). ( h ).
28 U.S.C.A.
10. Criminal WI\' =1i62(S)
Where \('stimQnr Qf government in-
former was tnken under oath. in the
presence of t)(lth ddendant !lnd hill at-
tQrney. where the entin' testimony. which
included II ful! was
:and \\'hether informer
:l('tual1v \It\u\':lilllble for the l!'ial and the
r(':llIon' for his ab!l<'nee was not aUribu-
tal,le to wilful or ne1ligcnt govel'nment
a(lion 0)' thc use Qf his deposi-
tion at trial. Ilrcdir:llt'd on Deputy As-
sistant Allol'lll'Y G .. ncl-al'll (crtificntion
that thc proce1.,<linll' was a per-
son bcliel'cd to have in an
criminaillclil"ity. was
tionall)' ... ible. 18 U.RC,A. 3:>03
( a).
II . Ueposltlons (;::>14
Within meaning of statute pn:>\id
ing that whenc\er, duc to exceptional cir-
cumstances, it is in Ihe intere:;t of jus-
tice that the leslimon), or a
witness of II party be taken and
cd. the l'ourt at any time after filing of
nn indiclmtnt or illfQrmation may upon
motion Qf !,;Irty lind order
that the of sueh witness be
tak('ll by ", x('cptional "in-um-
IIt.mees" ('xi5t if it lll'l'tars that the
witnl'.'IlI may bl' unable to at-
tcnd or jll'c\'('nted frum attt.ndinll' II trial
01' hearing. thai his tl'slimony ma-
terial and lhllt it is to tuke
his deposition to I,rc\'ent II failure of
18 U.S.C.A. 3503( a ).
an,1
for oon"l,uo1;ons

12. DI'pD"iU(,,'S
With re"I"'tl to the of a dep-
of a witness for in a crim-
inal pl'O(ei'ding. the trial lQUrt. after
AUorney Gl'neral or his desillnee has
made the required certification that the
proceeding is allaingt a l><'r1IQn belie\'l'd
tQ hu.-e I'articil)ated in an organiz.ed
niminal acthity. is not to make II de
1150
460 FEDERAL REPORTER., 2d SER!ES
no\'o determination of whether the pro-
ceeding is in fact against a person be-
to hlwe (IIIrtieipated in an organ-
criminal acth-itr; unless the defend-
ant shows bad faith on the 1'3rt of the
ol'crnment, the court is only to ascer -
tain whether there has been a proper
ccrtitic(l!ion as requi red by statute. 18
U.S.C.A. 3503(a).
13. Deposlllon!l :>32
Certification by AUorney General
or hil d(!siance that the proceeding in
question is !lgainsl a person believed to
hal'e participated in an organized crim-
inal activity. thus laying the foundation
for laking the deposition of a witness
for Uge in criminal proceeding, need be
in no SI.ecific technical form. although it
should preferably be in writing. 18 U.
S.C.A. 3503(a).
lIarry C. Batchl'lder, Jr., ::-:lew York
City (John J. Witme)"er III. and Henry
lIuntinBton R( . bacher. :\"ew York City.
on the brief), (or apI>l1ant.
J ohn:M. Walker, Jr., U. S. Atty.,
Southern District of New York (Whitney
NOI1.h Seymour, Jr., U. S. Atty., and
Peter F. Rient, Asst. U. S. AUy .. South-
ern of :-;ew York, on the brie!),
for appellee.
Before ANm;RSON and OAKES.
Circuit Judges, and CLAR1E:.
Judj!e.-
Circuit Judge:
James Sinri1cton, convicted under 26
U.S.C. 4705(a) and 7237 for the
of a nllreotic 10 an undel'Cover FR.!.
llgent. on Ihis appeal that he was
denied II slleedy trial, that he was con
"ieted upon the iml)ermiSllible Ul\(' of a
dCIKlsition of a !icy Con'rnment witness,
nnd that he was improperly ,.ntl'nced.
The of the e\'j(knre is not
in qutition; and these claim!! do not re
quire a detailed of nil of Ihe
fllds in the case.
In ('ssenee. Sini t as lharllM
making a ,r . r.' oximateJy
gl'ama of eoe r 1800 to Al'!nt
Frederick Ford .n X ., York City durin
the period A,; :: to 22. 1!l69. G
ernment infor:. hel'
to arrange the nd . 'l"\td as a 'TIl
dJeman in of thl' d, .,linirs.
The complaint made against Sin.
gleton on January 14. 1!l70, and he
arrested on Jllnuary 22, 1970; but, UpOn
his offer to co, jll'rate with the Govern_
ment in its nI,', .,tiCII inn-sligations, he
WIlS on OlIn recognizanci
the Mme day. Th.., indktment reo
lUIn(d March 10. 1(111, lind thc
first down for trial on AI'ril 22.
1971, Lut it was then adjourned 10
18, 1971, at the defendant's AI
thouih Morria was present in New York
and I'('ady to in April, it W85 de
!crmined on Ma)' 17th that he was too
ill with granul()("ylie leukemia to leal'e
his home in :'Ilobile, Alabnmn. There-
upon, the trial court grantl'd the GOI.
mol ion to lake :'Ilorri8'
in :o.lotJil purJ;uant to 18 U.S.C.
:-I503/\nd ,t the final trial date f"t
22, 1971.
Singleton ariues that his conviction
shoul d be rel"ersed lind his indictment
the length of time
which was IIllQwed to elnpse between the
dllte of the crirninal acts lind the lIale
of the trial hill Sixth Amend-
ment rirM to :! sl'el'dy Irilll, his
Amendment right to due Rule
48(b) of Fed.Rul3 of Crim.P .. and the
Second Circuit rules regarding prOml)t
disposition of niminal
11 J \\'hclhl'r or not one I.> "d
nied a sl>(:ed)" trial is a nlathc 1.1 "n
which dCj>ends on II weiihi/l).': 01 Ii dr
cumstnnees, L:nited \". E" 11,
U.S. 116, 120, 86 s.rt. 773, 15 I Ed.2d
627 (J!l66); Pullard \". l'nited States,
352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d
393 (1957). The elemenb to
COIl!!ider lire the I ngth of delay, the
n'1\$OIl for it, the extcnl of prejudice,
and whelh.'r or not the c\eCcndant hilS
Of 110.. lli.Hle! of ('on" .... b) ,kol,n.;II"n.
m
U
"
s,
0;
L
"
,
,
;,
i:
,
!
"
'-d With
139.5
A('enl
durinr
Co\"-
helped
a mid_
Sin-
he Will
I , upon
:o\ern.
>Os, he
liUlnce
\'IIS re-
se waa
ril 22,
o May
,t, AI
\. York
:as de-
I
'0 loo
,
1t'II\e
There
GO\
I,,..
.S.C.
Ir July
\ ieti"n
tnltnt
time
ell the
(! date
m('nd
Fi fth
Rule
nd the
I)"(lml'\
n de
!ion
, dr
11. :lR3
''',2d
,

'II 2d
I', <h,
Ildicl;',
It h ..
UNITED STATES Y. SINGLETON
1151
1'1t. ,roo .... :<1 lIn (lr.2!
., ,ific d ncJIT,d for a (,dy trial. lallt'a point. Set United States \". Kabot,
cnitcd \'. Skin. 456 F.2d 844. 295 F.2d 8.;8. 852 (2 Cir. 1961), cert.
47 ,2 Cir. 1!l72J, l;nited States v. d('nied. C$. 803. 82 S.Ct . 641, 7 L.Ed.
.alls. 4:JS F,2d ill 12 Cir.). cert. de- 2d 550 tInited States v. LUllt-
d 403 t S. ... 3, 91 S.Ct. 2261, 29 mlln. 25f1 F,2d 475, 477 (2 Cir.), cert.
L Ed.2d 712 I' 71 Unitcd States ex dcnitd, ;l5!'\ t'.S. 880, 79 S.CI.118, 3 L.Ed.
11'1. !lom'Jn I 412 F.2d 88, 2d 109 11!l58),
90 (2 Cir. tit-d. 39G U.S. 936. With r, '. rd to the claim of preju
010 S.rt. 2G9. 2d 236 (19G9). dice.' it be II that the appc.l
[2] It hi th h\"l'('n arrest lind IlInt I :1 c,-,rtai n amount from
the fa( t h t the c"urt :tlld jury did not
hlllC tho "Iunity to observe the wit-
n<'Ss Lut thia was brought about
by Ullreadiness to go to trial
when ;\Ion was ill court ready to tes
tier on AI,ril 22.
il'didm lit, t: "I ,n months, which
ill I"'rtint'nt, the right to a
"i' tdy trilll d(,. : 1<tLu:h unti l a de-
fel,dllllt hilS b4:en or has become
an IIccused. Supreme Court sai d
in United States I'. 404 U.S. 307,
820, 92 S.Ct. 455, 463, 30 L.Ed.2d 4G8
( 1971):
" [ I]t is eith{'r
ill!ormation or
,
131 indictment or
, the actunl rc
impaz. lind holding
to an:;\\er a cri ai, harge that en-
gales the part lar I,rotections of
[the] spccdytrial pro\'ision of the
Sidh Amendment."
The defendant makes no real rlaim of
post indictment delay.
[3] As to the reason for delay, the
G<lvernment it was brought about
Ly the riff. "dant',; ;lgreement to help in
further nllrt:otics with the
IlOssi bility that successful cooperation
might lead to a droppinl of charges.
Singleton agrces that th ree months of
the delay was the of his offe r to
eOOIJerale, but he Ihnt this (,f({'r
was termi nated d, !ng the of
1970. The Un"cd Statcs Attol"III:Y
claims that he p' f, ,,('d the ('<'killp"
of an inllidl" 'nt 1" . mInt to a r(quest.
elated ,June 9, lfl71!. {10m the Bureau of
Xnn'otics ;wri 0 r"us Dl'u!!,s until
the Bun-all nolif,.d '.im on January 26,
1971, that S:ll ....lct,),,>j hel p had beell un-
The trial court found that
the delay was attributablc 10 the de fend
ant. This conclusion was by
the Cl"idl'nce lind L of allpcl-
I T],. "f.,j ,,]h ... 'H'" I hM 111 .....
,NI('nlln] ,J, r, .. i'h ........ " .. ",h'
nul I ... rOUll] or ,Ii ! '" ,"I<>r '0 !rin!
nod Ihal I\fo" \lM.l. ".".
[ 4, 5] remai ns the element of
wah"r It has long been the rule of
this r t II at the failure to dl'mand
a I ,I a wuiver of
that 1. Ir "n. .'''pra, at 478,
S" nl!. IQ\ 1" 2d at 714; cr. Dick
ey I'. U.S, 30, 3G, 90 S.Ct.
1564. 26 L.Ed.2d 26 (1970). While Rule
8 of this cou rt. concerning the prompt
dispo: ilion of criminal cases, dispenses
with th II d for demand, waiver may
still Lt l .lcred Ill! II relel'ant factor in
deciding ther or not the constitu-
tional rifht to a speedy trial has been
violated.
[6J In II is case, IIppointed counsel
mOl' r1 ; .'I for lack of a speedy
Iri'l 1ft 'r thty were assiglled
in i}, ('. rt.1inl y the failure
(,f II to "k such relief pri-
or to t ,t 1M not weigh heavily
ai:uind him. it is signifi-
cant that, el' '11 though he admits that
he de' p rati llg in the narcotics
ill\'{ 1 i ti no the defl'ndant made no
ntll' ... pt to 1 al'l the ehargl's dropped or
to S{ k th I<I'P{,illtnwnt of counsel. The
d{'lay I c-t n Sf cst lind illdictment was
llirgely t're ' ility of the defend-
ant. and Ii:' the fact that he
.... as II . r(lughout the I>criod
and 1 d , j>ortunity to demand
, '

n. II L, nOI <"I .... JUS!
"Y. 110. Ill ...... n,;, ,in, ,,'; 1
)""' " 10 ,ldehw
1152
rEDER:\L REPORTER, 2d SERIES
a dy trial in timely fa"hi
,t do l'O. we conclude there w
1. ': in of Singll'ton's Sixth '\1
'hh.
i,8J Nor is Ihere merit
nt's due prOCE'S5 claim_
i "I prejudice resulting fl
y. thl:re may be a claim
i Amendment. but not ",
.l'd detriment to a d('fen
bllt did
no vi-
m "'
h de-
i,
I I de-
th,
'tIIlY-
hQuld abort a criminal 1,1"0
r -ion, supro, 404 U.S. at 321. !l2 S.Cl.
E5. The only seriollS claim of ,nju
'.1 as the inability of ti
ill J crson: however, that ia
'I uIticiE'nt to 11
f -, 1..nt wlta dtnicd due tiro ,
l'T1itf'd Stalcs \'. Dickerson,
784 (2 Cir. 1965), Furt'
',f_ g.,
! 7H3,
'. thl'
Gonrnment was prepared !.o l() trial
,n April, 1971, when Morris \ .. 5 able to
testify, but the trial Wall IX tponed at
the defendant'a request,' f UnitE'd
Hatea .... Persico, 425 F.2d 1385
(2 Cir.). cert, denif'd, 400 U.S. 8E;9, 91
102, 27 L.Ed.2d 108 (1970).
13 Lause the i,rimat) pUl1v of Rule
b) is to enforcc the ri t.t to a
'ial, Pollard, .upra, n. 7.
77 S.Ct, 481: ste lIiso, l ...
Dooling, 406 F.2d 192, H, l: rt.
drnied, Persico \'. United - US.
911, 89 S,Ct, 1744, 2: ",
(1969), no spl'Cial attention il'-
en the Rule outside the di., n ,n-
c('rning the Sixth Amendment.
[9] Nor is there any merit in
n's daim that the Second ('inlllt ",lea
:ding I,rompt disposition of niminal
.- ,quirE' the charge to I.> {J". mz' rd,
I I' r,uv, rnml'nt had be dy for tri-
I I' i{Or to ",!Iy 5, l!lil. 11 I' nd
rlt hlu (>((('d, s .. ,<, R
ntinllal,ee gl'anted by t low
r{Or the t.1kil1g of rl
a delay llermitted for "ex ,Ii dr-
under Rule 5(f) (ii nil
(h).
the ability to judge the demcanor of th
witness, t
The Supreme Court in Californi. "
GZ'een, 399 U.S. 149, 90 1930,26
L.Ed.2d 489 (l970) , draWIng from Bar.
bel' v, Page, 390 U.S. 719, 88 S.Ct. 1318
20 L.Ed.2d 255 (1968). and NOles \.'
United Slates, 178 U,S, 458, 2(l S.Ct 993'
44 L.d. 11 50 (1900), states two
ent tests for determining whether or
not testimony is admiuible, The
that the witneSJI is "actually una\'ai!.
',hIe, I(ood-fai th efforts of the
to produce him, " Gretn, supra, 399
U.S, al Hi5, 90 S.Ct. at 1938, 1939, and
the other is that the testimony may be
ugtd if "the declarant'a inability to gil'!
H\'c in no way the fault of
the State," Grilli, pro, at 166, 90 S.Cl
at 1939.
Sinl(lelon, relying on the &eeond le$t,
asserts that Morris' inability to apPear
and testify in court was the fault of the
GOl'ernment in delaying the trial.
ther the precedents nor the e\'idence in
the case, howen'r, supports his position.
In most of the cases in which out-of.
cou rt testimony haa been refused, the
nudal point haa been that unal'ailability
h ,d not been adequlltely shown. Barber,
IPff!, (the made no attempt
to oUillin the witness (rom prison in
another State): United States ex reI.
Stubbs v. ;\lanCllsi. 4.12 F.2d 561 (2 Cir.
1971) , eert. granted 404 U.S. 1014, 92 S.
ct. 671, 30 L.Ed.2d 661 (1972). (the
had made no attempt to gel
the from Sweden); Go ... ernment
of Virl(in Islanda Y. Aquino, 378 F.2d
540 (3 Cir. 1967) (the fact that the wit-
was without the jurisdiction and un
amil llble was not adeqllately shown);
Holman v. Waahington, 364 F.2d 618 (5
Cir, 19G6) (inad,qullte ,hvwing Ihat
witness could not be I,rodund). The sit
uation in .Uotrs, .' 'pr(J, in which testi -
mony from the I'relirninllry hearing was
di. lIowed at trial was somewhat differ-
Sil1gllton flaims that It, u
'I,'rris' at trial, el
it was takcn and used in
( III, as the ... itn a co-defendanl who
d conrea;-"d lind was willing to testify.
a unavlliiable in that he had escaped
..... ilh 18 U.S.C, 3503, was a
his Sixth Amendment right
lation becallse the jury
r lor to Irial because or the Go\ern
n nt'a ncgliaence in keeping him in cus-
f tudy.
\
r "e the
"ia v.
1 30, 26
m Bar_
Cl. 1318
;\fole.s v:
-"'.Ct.993,
two differ_
,,t-,ther or
-h(> fint
,na"ai!_
of the
1"11, 3!19
!'.19. and
:)' "nay be
i'ty to gh'e
:he fault of
66, 90 S.Ct.
>cond test,
to appear
rault of the
!rial. Nei-
e"idence In
is poaitioll.
.jch out-of-
tne
availabi lity
vn. Borber.
.0 attempt
in
" ex reI.
'j l 12 Cir.
014, 92 S.
tli2}, (the
mpt to get
;o\'ernment
" 378 F.2d
lat the wit-
ion "ad un-
y .-)n)wn) ;
;.2d 618 (5
,winll' that
). The si t-
. 'hich ten;-
arin, was
differ-
hil t who
10
d ('.raped
e Govern-
in CU3-
UNITED STATES . SINGLETON
1153
en. IO!I) 'f 110;'1)
On the other hand, in moat of the cucs when a Government witneas refulI('d to
.. here there was actual unavailability, return from Canada.
he I timony has lI'enerally bei!n al- BC(ause the absence of almost anl'
",ed. For example, in Mattox ,'. Unit- Government witness may be traced in
ed S:ales, 156 U.S. 237, 15 S.Ct. 331, 39 aome part to go,'ernmental action or in-
LEd 109 (1895), the Court permitted action, such as the failure to ha,'e an
'. at a second t.rial, of the tesU- instant./lIIeous trial, the line should not
m I two witnesses who had died be drawn as tigntl)' as the defendant
'er 111'.' first trial, even thOugh the aec- a5serts.
d trial WaJi 1'equired solely because a [ IOJ In Ihe present case, Morris' tes-
mre had made prejudicial remark" to timony was taken under oath, in the
urlll jurors and the jury had been presence of both Sine-Ieton and his at-
I rmiUed to read a newspaper account torney, and the entire testimony, which
of the trial in the juryroom while sti ll included a full cross-examination! was
liberating, SCtI Mattox v. United States, transcribed. Sec Grent, supra, 399 U.S.
'6 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 at 165, 90 S.Ct. 1930: Bee also, Barber,
1 921. E\'en more to the point is Unit- ,upro; Pointer ,'. Texas, 380 U.S. 400,
Id ,'. Hughes, 411 F.2d 461 (2 407, 85 S.Ct. 1065. 13 L.Ed.2d 923
Cir.),lxort. d'.'IIicd, 396 U.S. 867, 90 S.Ct. ( 1965); .I[ollox, supra. Therefore,!IS
45, 24 L.Ed.2d 120 (1969), where this the was actually una,'ailable and
l'OU1't permitted the readinll of testi- the (or his absence was not at-
,Iony, at a second trial, the witness lributable to wilfui or ue"ligent Govern
had become inSllne alter the first trial. ment action or omisliion, the use of his
e"en though the retrial WIIS requi1'ed deposition at trial wall eonstilutionally
LteaUge of prejudicial prosecutoriai permissible.
,tatements at the initial one, see United (11] Singleton, howe"er, also chal -
States v. Hughes, 389 F.2d 535 (2 Cir. lenges the use of Ihe deposition under
1968). Set aUo, United States v. Bent- Ihe terms.of 18 U.S.C. 3503(1),' which
\'ena, 319 F.2d 916, 941 (2 Cir.), cerl. provides, for the firsl time, for Ihe Go,'-
.1 nied, [Orm"nto v. U. S., Di Pietro v. ernment to lake depositions ill criminal
"., Fernandu v. U.S., Panico ,'. U. S., actions. Subsection (a) permits a mo-
l "te v. U.S., Loicano \'. U.S., Man- tion to the trial Iurt to take the depo-
, v. U. S., Scircmllmmano v. U.S., siUon, and subsection ( f) atates the cir-
ra v. U.S.] 376 U.S. 84 S.Ct. indudinr Ihe inability of a
5, 346, 353, 354, 355, 360, 11 L.F:d.2d "to attend or testily because of
271.272: (1963). where the court per- or infirmity," under whieh the
itted the use of prior trilll te"timony del''' iti .... n I .L) be 11 ed at trial. The de-
2 "'.1"," II'M ht ........ .I ...
I tilt ti,hl rully to ... roa. ... u"';nt :>.1" ....
, In .. 1 to IIh) ... nt. '''',klo lit
., .. 1 r""" tilt ho ....
"'"' no ,"".>I",,nl or 'I'1)Q.nnm.
0,,0 11,1. I"int. nh,1
'h"',i At t,lni lhM :>'[D.ri. IIn,1
I_n, I"')'. rD. un.
I" II';. ....
I" I :t.'YI3(1I1 n'R'!" II. (0110\\":
dnt 10 "X""IIlIonpl <in." ....
0',,,,1"1'1< il In Iht !"'"!'tII1 or j".'i ....
I,nl l .... lirnony or n l" ..... l'.,.lhp
n( n 1'1ft) 1 .. Ink," nn,1 i""
... 1. tht nl '''Y 11,,,.
,Ii", o( ,,,' u' "'",non,I"h
n,,,, "1"''' "lOlion "f l'"r,y nll, 1
I, ... 10 Iii. tl'M Ir .
f l4-JJ
Ii ""Y "r .dlne"", b4. laktn by
,1"1" 'lion nnol llonl IIn1 ,181...,.,,,,1 book.
1'111>1". '1'f'(Ir.1. r'f<'<l"Hnl'. 0'
mMnlnl nOI l',hU,J,'I.i be I''''''
d"","" .1 llot g,n. IIh,1 1,IMt. If
... il" .... i. ,,,,,,m"''''! r"r ("ilu/'f 10
bllil 10 "1'1"'''' 10 III n Irl RI
or 1 ... ",;nl:. ,I,,' "",M .,n ",it"'n ","11""
"r II ... ,d',,, ,,01 "',Ik'(' 10 11 ...
'.'''.1 ,Ii ... t li,'ll ,leI" iti(lL1 be
.\1"., lilt Ion"
..,1 ..... ,H ... 1 Il,t '''A)'
..iln,.. A IlIoll"n by II ... C:D'Un
h,..,,1 to "hl"i" "'" ",,,Ir. "n,I,', .ee-
li"n 10.11\ "'nl.i,, ('I.rtirka'i,," by ,lot
... hlo ,I. II'MI
1,".11 I. ft p. .. on
\\'ho i. 10
in .n D ... ul%td .-riminal "d;';I,I'."
1151
460 FEDERAlo REPORTER, 2d SERIES
fendanl's attack is directed at two pro-
visions in Sli03(a) which hne yet to be
by the courts. The first i,
the condition that the motion is only to
be granted in "exceptional circumstancel
{\'-hcn] it is in the interest of justice,"
whirh the defendant claims do not exist
unable to attend or
attending a trial or hear_
ing, that his testimony is material and
that it is necessary to t.a.ke his deposition
in onlef to prevent a failure of justice
" This test is quite adequate,
and \0\"(' /ldop! it here for the purpose of
defin ing "exceptional circumstances."
Morris' I!ituation fits it !<quarely.
Singleton also contends that the "cer-
tification by the Attorney General or his
drsignce that the legal proceeding ill
" p<>fson who is belic\'cd to ha\'c
in an organized criminal
IIclh"ity" was invalid on both technical
:,nll 'lbt. nti\"c gr'ounds; howc\'er, the
<! rendant the purpose
lind effect of this certification require-
ment which ill not central to the overall
structu re of 3503 or to its
tionality, but was lidded by
amendment to the original bill "!;ince the
need for the dCJl<lsing 0{ Government
appears to be most acute in
cases invoking organized criminal IIC-
ti\'ity," a
4, :>:0. III 1;"'fI. ("onlt'. /I:
4f'oOi , 4'...'j (11'1701.
6 .\ L..c'u ... ould be '0 ,",1"".
.... r::. I'" I.K(". it !!:iU, :ll'-fl(<,,).
0003. "'hid, ''''lui", Ille 111'1''''''111 "r
of n CallN !'!III'", AI.
,I",<ion Il,nt it '" in publk
10 t nt ;,n'Quait1 '0 ... ,hn ..... in
" .. 10 ",rnl"'\ hi. Ie_timon)'. 'The eooru
II ...... .n, II lI,'pro,',,1 u (lie), l,ne
Thillo limilliti n on the use or 3503
d"1 OI'itinn" it one to be e:'lf'rC'i:ed by the
G(llernm ",.t. ,nd the d WhEther
or not a ,r ding i5 Illl' a PErson
o('lil'\'loi 10 ha\'e l'artiC'iI,;,t d in or":..n_
ized crin ,,,I activity is to hi. aoie by
th,' ,'II H)' G,'neral or iIi! d 'gnee
and \lot I,y the court. The c'!
to the nfceuity tor tl Curt to
find J,robnble cause lind, ,. lh( Fourth
A,,' ndment is not apt Ot't'81l. Hll' \<ord_
in).' ur :l503(a) indicates that 1'010 ress
did not int('nd for the orvnniz('d crime
eel tification to be to a judicial
d( t ll'lil1l1ti(,n.'
[12] Congn'59' (hoke of .\ttor-
nl'r or d, -ignee t k(.' the
certificntion mllY hll\'(! La n ure
political 3(("ountabHity, .fCC l', '>, tes
v, Robinaon (5 Cir. Jan. 12. ] (2) (:-."0.
71-1(58), or to centralize dr i inn mak_
ing, c/' United Slates ,'. SL Regi& Paper
Co., 355 F,2d 688, 698 (2 Cir. 1966), or
because the Attorney General is in the
best position to know, but for wllatever
reason, the trial court is not to make a
dl! 1'1000 determination ot wheth"r or not
the proceeding is a PI" .... n be-
Iie\'ed to h:l\'e pnrticil alt'd in n orga_
nized criminal Ilcth'ity. Unk" the de-
fendant ahow! bad faith on the part of
the Government, the court is only to as-
,'('rl,.,dn whether or not there has u{'('n a
proper c(lrtification as required by stat-
ute.
[I3J In the pres(lnt ellse, the cel'Uri-
c"tion conformed with the statute in
that it was gh'en by Henry Petersen,
Deputy, Attorney Grnp.ral, as
by the Attorney G( le)",1!. see
Order Number 41'12-71, Fed.r. .....
II ,,_ I ,
10 II .. 'r n " " "f
"I",b". or "" Ihe, ., .. r ,il)'
I, j lined In Ibe I' nM. ll1l1llbll
,'. :-:1"" . 4_'2, .
tl."'("I. W7. I'.' 1./:,I.:'i11 t1(I."oIIl. rf ..
I" ... rlu ..... H" F,'J.J 3(l9 (9 ("It, ]!I'll:
" 1,;"ln Y. \'DIt\'d !'ilntM, .. .2<1
11,; (9 ("it.), .. "'<101. ",1':.
!C,.91 !'i.("I. 239, Z7 'J13 (WoO),
"hb l a '" \ .. 4\fl "'';.',1 =H. :!47
('J ("Ir. 1071).
of i
d by the
whether
a person
in orran.
made by

fendant'l
court to
le Fourth
the word.
Conrrelll
crime
a judicill
he Attor.
make the
to insure
t, d Stater;
72) (!olo.
ion mak.
I, Pal",r
1966), or
il in the
whatever
o make.
er or not
'rson be
an orr"
the de-
part of
l ty to as
! been
by stat
e certW-
1tutC in
'et("rl('n,
"ral, as
rRI, lice
1,,11' . 2601
Ii,,,
,II of
.,,;11
! ',&Qn
_ 4U,
. r/ ..
W.!) ;
, F.2>1
, t-.S.
10,0).
I,
UNITED STATES \'. SINGLETON 1155
t ..... ,11:'2)
fth. 9. The certification n(!\,d Lut din.re('i o,: in to the of
be in no.; technical form, althOlJlih 'forris'! deJ>05ition. We art: (;.Ikiol:" here
it hould prderably be in writinll'. (f. about the use of a d position ;.-i\'cn be-
Licata \. roited St:;te!, 429 F,2d 1177. fore trial, nOl aboullhe' 5f! of
llt<t) ,9 (",r.', \aratl'd n moot, U.S. riven at II previ ous trial Th.rt lire at
9. 'I .1 l't L.t:d2d U 1\)70). last two lublllaniial d'H TC.:e octwcen
.re. th 'rt' wa no lowing of the two. first. at Ihe time a d'losition
b: Ii n the part of lht' G ,'nt; of a prosecution takl'n the de
in 'eking in f1.iIor tic ne fense may not be prep. red ad{'qustely to
of the 'i>ecific evils l'ng . d in b;.- or. cronexamine. whitl' rrior trial testi-
gani ed crime which H to mony is uSl'd at Il lirr.e whcn the
att.H'k thrQu"h the Organil de (' n. dtfrlldllnt is Ill , ,": dy f"r trial.
trol Act of 1970.' This was RJ'I'lIrt fitly ; for the
Singleton'lI final chall enge on Ill'l'eal
is to the mandatory five year minimum
sentence imposec under 26 C$.C.
7237(b) and (d) (repealtd "t:, )Ia\'
I. 1:J71). claiming Illat he I
been sentenct.'d under the n, ral
provisions of 21 U.S.C. Ml"o) 1,' .<\),
replaced 7237. Thi.
ho\\t'ver, forecloS(>d .. dl',1" <I,. min
this Circuit by l.:nited Fiotto,
454 F.2d 252 (2 Cir. Jan 4. l!(i2 ,>Cli.
tion for cert. pending. 40 U.S.L.W. 3434
plarch 14, 1972).
Judgment
affirmed.
of con\'iction and "C'ntl'nce
OAKES, Circuit Judge (dis nti ng);
I respectfully db agrl'eing with
the majority on the 'dr trial claim!
",. :-;,.,Ih "',
1'",I,,1 .\t!"rI"'."
:-;"W Ynrk. Yo,k
p ... a,
,,, .
I !Hit
.or . .lr.
In h' "1.1.11,,
,," J;,nnllnJi: Ih,' "f n
<:r<il;,," { .... ,,' 1"31mwl r I", ... \oy
"r!;(\'. 1"","n.,1 1(. "lUh",' I) " ,' If.
1>.'. ,\U"'''<.'' <:,",, . 1 f)"I", X",
.1.",,1 J' "un,., W;I, 11",1 II ,.,,-.'
,,( , "il .. l 1"1:11 y, \"." \. n ... 1
"i ,;:1, I'>n. i 1>"'11 ";" I
n I' r. ""\, I' ,\ I, ",.
I' '; . ".1 , '': il<
I"i" .,,.1)'
t _ 11o' ,,'r 1\ 1 ,
IIK'>:n1" I'Ll'
,\""i.I.'" .\(lIm
.; ..,.,
t , !",.., ,.{ ,," 1 " .. q._.
l'ubl. Xo. 91 I:;:!. I"IQI. !r.!'!. ".K
,, .It COlon". '" 111,3 II!roo).
('/. I,'" l',I",{'.II!ll'l\{1l (.\l.
objection by A.' ."n of the Bar
of the City of !\' ew \"c,;' to Ihe deposi-
tion procedure here (. "Itlishe-d. See
1!l70 U.S.Code Congo &.: Admi n.Kews p.
4090. The l!CCond difference ill that the
lelltimony of a willl ss at a prior trial
hns lot, n It d ,t ,t (Jnee to the
crucible of inc :iny by judge
and jury, . another way
of a) ing thai' in the solemn.
h'e all of a federal
courtroom, bl>fore the eyes of a keen
judge and an ob:ICrnnt jury, may be
gi"cn with a Iitle more cart'. deliberation
and accurac)' on the Ht of the witnIWJ
than it might be i\ n n some office cr
room before a r.o ;0 }\ic.
l
These differ n ba e t,,'cn deemed
insufficient to r ff,rcnt consti
Su n yl",,'!. J .. \Il "'1\,
II""',,)
It"" ... ".M ... \ .. rt of
II". .,,1, "It . ,,' "'lin ..
I, Iltllng . " .( 1.10. .,d
I '1
,I,,,,,' .1:, ",
I .. I r"".I. f I"
11 ".'
,II II,t
lOUW'
1\ "I ..-hH, is
,ro litn ""d !>u\ 01
,T In <\i,I'i"J
1011 ,,1,.'" I I", ..
II,.. "" .... ,,"I .,/ "ii'
n ...... T, l.n.lu,..,J in 11 f.n'I "f 1 .. , ..
il;"",")' " I. 1
1,1..., ill 101. X ,',,n.h,
nl: "I I. 01",1 I..,
[I'.""d.rl I: ",tin
(1", In..... no!.
L,,,. _ I,.,'H <of
"'" 1.", ... 1>10 "r
f..... I" f:\<'O', .1'.
':!!I3. I:HI " <d.
,<;, .. a lAo 1\,e \ I ,f
fur , .... ,.,." '" In Ca'.
;(",nh. ". C;r. .-, j n. 10,
1156
460 n:DI:RAL R.., ... ORTER. 2d SERIES
t.ulion.i tT<
and prior II
as a matter
criminal cas
that these
we have the
amcndm!'nt
,r l'rctrial d iUt-na
mooy in civil eases
of I ....... In
h ,"cr. it ('cml.< t< m
Iff res are crilical. for
ret'CI,t of th th
n has th I
"to be c( ,d ',' ith the II it
against hiff Thus my di,,'ent "
on two I,r 5, the of .... hith i
that the mlljority's SUilporting cases,
which permit the use of giv-
en at a prior trial,t are wholly inapposite
to the we are here ca\1('d 'r
on to dedde; and the second is that
introduction at trial of pretrial ,I, I u
tions against an accused is- -at th H r
Jeast---of extremely doubtful c n!'U
tional validity, Set Barber \", P:.ge, ;,90
U.S. 719, 725, 88 S.Ct. 1318, 20 L.t:d.2d
255 (HI68); 8 J. Federal Prac-
lice 15.02. at Hi 5 (2d ed. 1970).
C crl inj( that CQnlltitutional issue.
think what the Supreme Court said in
Mattox , .. t"nited States, 156 U.S. 237,
242-243.15 S.Ct. 337, 339, 39 L.Ed. 409
line by which we should ml ap I.
lant's conf rontstion dause claim:
The I)rimary object of the constitu_
tional in WIIS to
or r:r 1". te llUi_
dal"ilB. as were 50mctin admit
tN! in civil bein 11 cd . ain!1
the luiwner in lieu of n r r. 'lal ex-
minati on Rnd cross-ex ,,,, .. Ii 'n of
the wilness, in which Ih., cCII"ed
has an opportunity, not only of testi ng
the recollection lind sifting the con-
lK"ience of the witness, bill of eompel_
ling him to stand laee to witb the
jUlY in order tb/ll th ]("k /It
him. and judie by hi- r upon
'b(' tand lind the m irh he
his t('stirn,ny he is
01 thy of helief.
It ill Irue that the C ,. millet,
in support of its proposed Rule 15 which
would permit the use of tak-
en at the t:M:hest of the Go, er.lrn('nt and
hich h.,d betn rejected by
the Supreme Court. has I;lnted, 'To the
extent that the rejection d \lpon
doubts as to the Myof uch
(l89S), proddes the appropriate guide- II proposal, those doubts noW 5 m
00 !U'I. 1!)j(I. W 4'l9 (111701.
WI,ilt ,..no ... olly for !.inl II!
!h. lime "f InklnJ( ;\10'';.'' Ml'O'ili"n. ft!L,1
wu 1(> <'On!ront ),im f,'M 10 f",1'.
no !rI M fn, t I,n. !tn') ('I': "I,ndl)
nl ""1 lime 10 " ...... "p I'" ""I;"n.
,hlef .. 11""",, RI Ihr "r 11,.01 ... ".
fronTnlion.
2. , .. 1",,;, ... 1 I,., '.S.
S.CI. !>':I3. II I.E..I.
(1".li,,;n.,,) Trhl I, Ii ... II) j,. I i I),
"1" .... "I n('f ',f 1 ; .. , ,nl ;, ,I., hi
n, of I'''' tlli"n); ... ...
\ nll ... 1 1:;1> '.K 2::J7. Ilj S.{'\.
331, 3l) t.Ed. 109 \l>,!1!j) lI,tio. ltinl
, . '\11100)" (If ... iln,, ah"i.
.!llIt): '". ,'"i, ... 1 !;,., .... lin \ .S.
1411. 1[,2. t3 ";.('1. 00. 36 I .E ..!. fI17 tl r.!)
(.1);111 .I ... n.ImL,.,i1>ltl; 'nl, ... 1
!;IRI ...... ..... -411 F.!!,I I:! ('i . ).
...,.1. ,1, nltol. 3!lO '.S. <.67. 00 Kf""l. Hl).
21 I.. F:01.2d 1211 (11lOO); 'nill'>1 !;la'MI , ..
319 F.2<! 911.l l1.fl (2d ('; ... ).
"rt. tMonl.-d v. U. !:l., DI Pi..tro
't. U, S . Y. U. 8., P"nl<'O Y. U.
S .. GRI/lnte v. U. S., LoI""lIo v. U. S.,
)faBC;BO , U. S., Scile!l1,wl/lllOO , . u.
5 .. , .. U. S.J, Si5 U.S. BlO.M S.C!.
346, &.3, 3:>4, M:;, 300 11 t
:m , Z"n (1111'.3).
:lOO U.S. H\l, 00 !; ('I. 1 . I
'''1) (1&70), d" < 10 l\
II. 11" ,,;111
, " rI l' ""IH' I I' ],..
''',.
\' u' '" I 'i/) "",I I ",.,.".
".1 , Ijo", "1)"11 .. ,, .nIh, ""d
TI"," Urr .... (',rll ....
tl,." 1(> 110., 11,, {" ',... , lin
(.),,,, .... I. nOI ,l"ln,,,,1 t. 1
,1,.dn.nll11 O .. I."r.....,url I.,. I,t
.. dfr1a .. 1, I
PHd , .. f /I ' .. ':
cO . .. 3ml 1".1'. 111
1'.('1.1\1 1fl35 (tml,h 1, \I I
, Hr. 0.-.- .. no 11111 Iq a J
nn,1 II ..... ltn ..... 1('1<11
" 1,('fUru'"nr) " ... rlnl.
Ihf (,,,,,,,,,jHN' (lD 'rri
'1'","n;'1". r". Il>t
SImI .. ('011.' of
10 ,)., A,hi .. ,.) (',
nrmfr (It ['ro\"':O ...... ,.
t\,\, nil nlll ... 01 C
P, ..... lu"' 1720 r
>
UJ;:?) 1 1 I
I::; M 100,,\,1 I",",i ! ... I").
..
1"\ .,f
, ,
,
, .
II ,It
.1.."
\;\,'
\
,
(
t
1
,.
,,'
,,"
tt,
('stiD"
! COil-
>rnHl-
th
10k at
'po"
ich he
he

l'ihich
, tak-
t lind
d by
0,"
Ulo(lQ
lIu,h
,
0"
,",
"
"
".
,"
d,
-,.01
".

..

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,
,
..
,
UNITED STATES 11'. SINGLETON
1157
eLI, tll' 1110 t
aoh-cd bf California v. Green
C mittee to proposed Ilmln t.
to Rllie 15, April 1971 Prel im
!"' h t 3t. quoted in 8 J. Moore, F d-
" 1
r tice 15.02, at 150 (SuJ'P.
1'" author Cipes, and to me. how.
_y ".em nothi ng of the lort. r
',ns litated in note 2 si/pra. See
'reo Federal Practice 15.412.

r '. ,j'. it would be t<l
at ,),;, '''_Lint, IIlld meet head on the
the Crime Control
Act of 1970, in permitting the of
pre'l"ial d(positions at trial, is
tio 1.1.' The llroper exercise of juoicinl
. ;"t, however, requires thul
co t lliona! issue be a\"oided if the
II Ie dl)l's not apJlly in any
D, tliat Aet apply to Singif"
50 as to permit the use or a
dt, ition against him1
I lea"e aside the issue whether the
certification by a Deputy At
torner General was sufficient under the
wc'l'ding or the statute, as to "'hLeh
thel't' mar be doubt. Compare United
SI IllY. Phacano, 459 F,2d 259 (2d Cir.,
1 April 7, 1912), with United Stau-,
v. r bi.:. on, No. 71-1058 (5th Cr. d
Jan. 12. 1972). For purpo f
it is enough to assume
l. n. I'i"t "-filinl( lilt ;".1
"f 'I ,'N' }o',,<1,..nl ,.11
, ill ,n of Iht .\"1 111"
ui,,1 '.alloon r"r the 1:00wn",eul: .,,,<1
on 10 U)': "Ch-il Hbulft.lnn .... 1,,,
108"" loWI: 10
h of I)I"OCO)"" an.! I""",d".t in '", ,no
rinoI' ..... In/: Ihi. n
.nln, "0"'. I I
il," opinion.
'lily wilh 11... nf II,t 1\ri!
I " 1" "I 10 lIi It II
,f ,',I 'Ii, ". ,.., ... 11)'1" ...
.... 1"' HI!
I!''il).
4, r ., ... iI1 .... ill'1O. at 1'. \l:;t I ...
1\," .!",.;.wn (or ,,01;
pro< Ii", i. q:Di",,1 a l"'r>OII '",Ii ,.,,1 In
.. pII.tid, .. IOO 10 orsaoi..-.! t.l,,' "I
'" l"il1 i. 1o be bl'
G ." Ml.1 or ,l...n,ntot nOI br Ibe
< u'l. K
III Single-ton's trafficking in narcotics
(in this allegedly selling $1.800
\\orlh of cocaine) an "organized crim-
inal :Iclhi ly" within 18 U.S.C. 3503?
Moreover, are we conclush'ely bound b}'
the Attorney Gcneral's certification, as
thc majority here suggcsts,- so that as
a court we cannot el'en look into the
propriety or its
I do not think we may abdicate the
judicial function quite so completely to
the Ilro5eCution. The determination of
what is criminal activity"
may affect the whole course of the trial.
I agree Proressor Kenneth Culp
Da ... is, speaking with rererence to dele-
. ,tt'd powers, that "[slafeguards are
us IOIlly more important than standards,
lthough both may be imvortant." Ad-
mi", tt"th'c Law 2.00-5(b) , at 54
(S"I'P.1970). I cannot join my bret h
nn in SO readily discarding all the safe-
guards in a lI ituation in which there are
no standard . '
What is an "organized criminal acU ...
ity"? The Organized Crime Control Act
of 1970 itself does not purport to tell
us. Although there are a number of
rather precise definitions in other parts
,f the Act' "organi1:ed crime" is not de-
," J, mueh less "organized criminal ac
yity." 1 Even the House Judiciary
S 11" 110 '", i. "", II. ,I iop
, I ,10,' 11, I HI,nonl of J" Ike ),a t "I'
''''I'll .. ""1,, ... 1. n. III "'1,,,1 ,," "or-
.. ",1".,1 <',i1"I,,"1 ('I. K. D",,;s.
.\,loulnl.l.nti,'e I ... ,, t 2,OO-5\bj, at
(f:ullL'. llliO).
6. t. ,., 18 l'.fl.C. t 15U(b), ,Itfin;ng
nn m."RI camblin, u one
,lnlnK In .I"nIl8111 <;<>nlln"ou
II"n ro. 30 ,181' <I. ,,.,,..,i,,, r-.OOO
'j"
7. \\" 11,1. Irnl""'iae .1.nJaN I, (' "b
r .' Ih! of .a1 ('(I",,\iI\lli nI.l
Ifr III !Not one of 'I;),o,n "ill hQII"-
11.r lo.,.t an OI'PD.luolll 10 em lbe
.\I\II(n'1 Gm a! In Ib! al'llCcnate eonrlll
Ihal I, "a.<l11 the (ou11 ia 1.10"
" .... 8 J.
1',oIftai 1"' ... 1"'t f ]:;,/Y.!. at H9 (!:lupp.
)(171). Aa,1 H,e ,\" ",t 10 110" 1I0Ut11!
Ju 1l<-1a'1 fl'I""t b)' .....
John (' ... .\tn .. )lilr.'a Dn,1 WllIiaw
I' 01< I In 10iO t".KCorle Coo,. ,\
1158
4,0 rEDERAL REPORTER, 2d SERIES
t ... ;11 be 'lin-hed i n
vain for II f ti'l\, ;,]thOllgh it does
contain (hal! r ting t.o
rambling" a' infiucnecd
and corrupt rntions. " n .R. Rep.
NO.91-1519, . ng., 2<1 :";ess. (1970).
I1!printed in ',S.C01!e ConI'. &: Ad.
mi n.News, PI' i. 4009, 4010. The
closest anythint: i the ll'gi"lali\'(! history
comes to giving II uny indication of whut
Congres.s w;" 'alldl1J; about is Rcpr ClIen-
talive Poff.' nrl'rence on t he House
floor to tc:. collective cri mi nal
po .... "r: IJf 'g".Rec, 9710 (dail y
<'d. Oct. 7, 1 If to be an "organiz-
ed (rimb al . )" the adi\'ity mUlIt
be one .lId be :hi"lded oy
"aC(CS8 to h'e criminal I.ower "
-as good a ailion as any. I
pec::t--there is nothing in this rl'l.'1lrd to
show that SinOi'leton had allY such "ac-
('e&ll" or was himself a part of or minion
to Or fllr or agent of or buy-
er from r U,e ('riminai power. "
The rnaj{r to imply that be-
l:aU8e or ;me d()('s traHi(' in
"a:'ClItj., ho tr.lffiu in nar
toties is ",'aniz.d I:rim.
inal acthity. If () t re are clouhtJ..ss
thous:md:s of youths ,'] high IIthool and
college campuses tJdc.' '" ho unknowingly
parHcipate in "ol'ganiz.J crime." All
that appearll in record. lind in
a telegram fr'jm the United States At-
of J usli('e. is that "Singleton has been
dealing in narcotics (or at least 12 years
wit h four " rior drug arresb dating
back to 19f19.'"
A case lor the of pretrial deposi.
tions in lIitualioll S in which "col!edive
criminal power " is involved could be
made. 1 suppOlie. on the basis that the
life ol lhe deponent might be endangered
by the defendant 's access to eriminal
powe r . cr. Note. Prosecutoria! Discov.
cry Under Proposed Rule 16, 85 Han' .
L.Rel. 994. 1014- 16 ( 1972). The gO\.
ernmtot might lurth('r, either by legisla.
tion or seek
to t tablish 1\ "resumption that any
ale of II jfiHn significant amount of
jfil"ln Ilat"colie an orjfani1.ed {"Timinal
acth'ity since to acqui re posseSllion of
such an amount would require some "ac
cess to collcetive criminal power ." But
until this has been done, we ('annot willy
nilly permit such a loosely drawn slatute,
adopted without safeguards or standards
or definitions, to apply to anyone the
government .seeks to hal'e it apply to--
much less when the '-alidity of t he un
derlyinl& lltatute would thereby be cast
into Ih(' 81":\I"cst doubt.
It is po _ible that this goes (u r
ther than :lny othel in the of
fed, ral juri.,pnuhnce to make the si:..th
amendment :lnd its confrontation clause
torney in New York to the Department II nu ll ity.' O Compare Pointer \', TexIIS,

.\.]",;" "
it. ,I f
'01
;H, WI , "E"fn in
QII ,.,,11,,. 1"<1,,11'1)-
'" 11, ..
"r
10
I ron >I" ",",.ftlh"
, WI,.." IlMi<1'd
.N .. ' , ,Iu> ,r:" ..
.. I 11"11 it ... 'hle In ,1<-(1" .. , bul
l ...... 1" it ........
1":1: _"tn II"",.
I I".S, 3.<; 1.
,""f'- r.:; J, Ed.
C .n).
\1'1'..11"",., II' I I 'Ia
I. f., 1',.1I1y In, tr<"d
1,,"111"'. n M",-;;, ...
11", ,,,J,;:.;lm
\1: "'DII1 ap-
,i , ... 1 .-.f r<,>hl""ry
wh," I,,, " . II; of ,,,,,rijuaua I"""
...... Ion In Iflf03 at net 2Q ali<I I,nd
''''0 oil, ''' ..... , . "nt i D II .....
t,,'al h.> In,H,'1 ",,,I nnt in ,\i$n,1><,"l br
lhe """t. 1'1." rd, .. 10 hill ",,"-,I;n,
In "" .. .,41, .... 1 . of '"Vu_, .... HUI
.,.n If 1111 of tlot all"lIli"n. Qf I!,. ",""0-
m.",. trh,t,nhO II, ..... ;. ""
I"gl I. 1" an ", ... <l
('thnh,.1 ..,1.;,), . In ... I
..... Into'p.I .. 1 llof l' r : .....
10 . .'1ff. In .\,,, .1, ,OIl g"r ." .. nolnl;o ...
" f 0". l.i!.ol .. HI. .-d.
Itl:;''I). f .. (JuDt
12. Ii,a). a4 :n:!; "a.Conol. nrl. I X
(.\ "". 16. 1.,0). Al 330: n.,1.
lion of llitl,l. I 14 (!lei>!. 11 . li,a).
3;19; .. rt. XIX (Xu, .. 3.
' 1;;0). a1 3 1S; 111. \"I I (1)00".
1776) . at 3:).5; \"t,enn_!. nrt. X
has
t 12
III dalin&,
al dq>osi _
'a,lI,di\'e
('Quid be
I),at thl'
n,l:,nrncd
(!"iminal
/11 DiSCQ\,.
115 lIar..
The &,0\-
by k,isla
lrds. !leek
that any
aunt of a
I criminal
of
-'>ml' "ac-
,'r." But
".utwilly
n
<!andard,
1)l.one the
, ,.Iy to-_
,f the un
be
0('1 fur-
III,tot'} of
Ihe sixth
ion daU!le
\., TEltas,
n'
al 1,_,
,I, ,
1\"
"
..

\7;111,
:-;"". 3.
t "w.
"I. X
UNITED STATES ... HASTINGS MOTOR TRUCK CO.
1159
('1, ...
380 U.S, .j( 0. -4'15. 5 H'G5. The Court of Appeals, \ -an 0 \o,rhoul.
13 L.Ed_2d!2:' 19,,5\ ('"Thert':m w Cirt'uit Judie, held that e\io;!ente that.
subjects, I r upun .... hith this C I"t with reslleCt to four loans by
and other c _. have b ,'n mor" n 1:Y mr)rtjj"sge obligation obtained from
unanimous than in their of mall Business Admini litrati<'n. riefend-
belief that the rijj"ht of eonfnmtatil,n 'lh weI'C persons who obi;', d th. m-
and cross-eXl<mination is an eMK',,1ial IH!s on mortgage note .11 c] 1 bled
and f und" nt:.1 tHluillment for the '.( <s as makers, jj"uarnntor,_ {) '!mas
kind of fail tr::d whi<-h is thi$ coqnlry's of mort gage ',I ,al, sub-
,I witl! We I Y. "(''1uenl 10 making of loan. ; ,'d agree-
Loui siana. l'.S. 258, 21 S.('t. 650. nll'nts, holder of legal titl e to mortll'aged
48 L.Ed. 9G5 (190,1) (dtposition property, by warranty dE'o:d. ton\'cyed
siblc in slate cal'e). Proper procedurlll property to a grantee with knJ\\'ledge
protection is the keystone of the struc and tOnsent of Small Business .'\dminis-
ture 01 American cillilliberlies. Today's trillion, with sole for oon-
decision, T fear, weakens that. structure, _.' lutee !x-ing ,rantee's --nt to as
I would reverse and remand.
L':'\"ITED STATES of AnU'rlea,
ApI",-Uant,
,',
HASTINGS :UOTOR TRt;("K CIl . ..t
Appt-llN'!l.
No. 71-1&18.
United Statcs ('0111"\ at API als,
Eighth Circui t.
Submined Aplil 13, 1!l72.
Decided June I, 1972.
.\clion wherein go\el'llml:nt 50ught
a deficiency judgment against. at! de-
fendanls for the unpaid balance of four
loans secured by a morlgage ot.li.:ation
obtained from Small Busineu Adminis-
tulion. The United Slates District
Court for the District of !'icbra:ka.
Richard E.
Judge, entered judJ;ment di Ii. ing
complaint, and gOH'rnment apj aled.
( J ulr II. I,,;). ftC 3U6. 'I'!", "'!u iCon
of R ronfN,n\"C;' n ;n cllt. ""n tho
,ICo'" .dOI'Ce<.! ill uri)'
ttle and pay all mOT
l' ('1 rty. ""Ipportcd find t, under
J"w of :','eLraska, II cllrred
hkh rdl'8M'd defendant li"bilily
when ,rantee delivl'red & unption
agreement to Small Business Adminis
tration.
AHirmed.
I. E\-Idence =' IOt, SS'
P.rol evidence rule I. l' of sub-
tantive law. and I ...... of tate where
I ;'Idion took place is controlling.
". J \; I we ->1H5
In action "he)" in n"ent
a jut! r' lmt all
fend,mts for the unr id \ l .. nce of
four loans secured by a mort.age ob-
tained from Small Business Admini.&tra
li on, e\'idence, which was nol for
Jlut'pose of "arying tH:T\' (If i'inal
con tractual obligation d y de-
( "danh, hul lor pLin "f '::f a
n w sub "fluent contract l Je-
r ,Jants' lillioility ,n 11' r
0\ ati<'n), was not vioiative of !\ebras-
I'll r rol r ule lind .... as I si-
bil'.
3. CQurts
On appeal from ;'JdgmClt ,.
ing compla int by gov('rllml'nt f(Or
ciency judgment against all dde
,tll, : .. '8 Iha, 11. r;jtLt I. 1' .... 11 f
.. " I. rd . ' 4:!9.
772
4M FEDERAL REPORTER, 2d SCRlES
()Ut tvent than .rm('d piracy of
Vcr aircraft in night. The extreme
I' I rE'f1ccts the concern of the Con-
e'"' .lind at the !lame time enhan't the
prow.hility that a man will de-
.. troy th ... :,Jrcralt and the lh-cs of all
aboard r. t..".er than fail in his a ttempt.
It is (1"::Ir to tJ! that to innocent pll9Sl'n-
gers the ': (of a maynelomet er to de-
tect metal n those boarding an aircraft
is not are. (r'J'd intrusion on ]lrivSCy,
but, inst, a welcome reassurnnce of
"r ... !y. a IIcarch is more than rca
. ,JaLJe; it is a compelling nece8slty to
protect l' ntial air commerce and the
li\"('8 of !,11."_<engers. The rationale of
Terrw is not limit.ed to proledion of the
investigating officer, but extends to
"others in danger," Ter-
ry, 8'upra,.92 U.S, at 30, 88 S.Ct. lRr;s.
20 L.Ed.2d 889. That all 11)"(>
by the presence of weapoJM
on aircraft IleedS no exposition.
{3] When the high metal indication
of the magnetometer was not satiMacto-
rily e!\:pb'-.;-d by Epperson, the Bubsc-
quent Ilhy iral "frisk" of his jacket was
cntirdy j",tifiable and reasonable under
TurlJ. At 11 i. of the encounter
the nat 1c f,ar of the for
the safety of .airline plIlISengers in-
creased and he was cntitJ('tI, for \twir
protection, to conduct a l'j,rt"fully IimihJ
of the clothing of r.Plll'r.<on in :on
attempt to discover weapons whkh
might be us(>d for air piracy. Since Ih
use of the magnetometer WR$
at its inception, and since the subsequtnt
physical was jU$tified by the infor-
n.1lion ''. 1nped by the magnetom .... ter,
"d ,i, "Ie 'uch WIlS limited in
,..! to t' --.t:, 1('('S which justi-
[i._d tile
we' Arl
" a:e in the first plaef'.
r,.'h and nol un-
reo II. }t:r the Fourth Am ''1d
men\.
Affirmed.
l'XITED STATES ot Amer5ca,
,\ppellee,
v.
E, Gr:l)dnn SlruFORD, AppclllLllt,
t'n!lt"{\ States ot America,
AI)pellee,
v.
lIerm:ln S, JORDAN, J r ., Appellant.
71- 112-1, 71-H2S.
United States Court of Appeals,
Fourth Circuit .
Arued Aug. 23, 1971.
r 'ldt>d Dec, 23, 1971.
Df'!' ,I, nts were ronvictcd in the
l' h'd St.: le! Di..trict Court for the Dis-
-t of South Carolina, at Charleston,
J. Robert lIIartin, Jr., Chief Judge, of
1.:n )wing Bubmiasion of raIse documents
with reference to matter within juri.
diction of Department of Justice and
<'01"piraey and they appealed, The Court
of Appeals. Sobeloff, Senior Circuit
held that where !Ie\'erance was
way of affording defendant any
I' )ssibilil)' of persuading codefendant to
testify and codeCendant had indicated
quite clearly to trial judge that he would
le!Ufy if ,mnled $ .... e and had
n,Fi.':o.l " the conwnts of the ex-
t ,1 t -ti'm.,ny and its importance, it
\\ l"Cr iLle e!Tor to deny defendant's
,n ror ,wI1Ince. The Court fur-
f .: I '1 ,t vacation of conviction$ of
11!, It I' quircd vacation of codt'fend
t'_" also,
Reversed a nd rcmanded liS to one
Cilse and \'acated and remandt'd wi th in-
u to the other.
Ha)'1 _, .. ",t h, Chief Judge, di$sented
lc1li!( d ,n opinion.
I. ('rI, twol Uw :o618
r;.'n rnlly persons jointly indicted
be tried together, e:<peeially
where nime may Le pro\'ed against
I, if tbt .. .. lkt of tile Jur1 01, ,II 00 .,on
(1) ( AI.
.,
49 t:.KC.A. f 1472(1)
I

Ibnt.
-Ibnt..
in the
he Dis
rleston,
lie, of
,menta
juri ..
'C and
eo"rt
;ireuit
e was
t any
ant to
icated
would
:I bd
00<
h in-
,''''
'.d
. lIy

(i)
UNITED STATES Y. SHUFORD
773
two or mort' on a single lICt
of (act .. or (rom the same evidence.
2. Crimin:!.! Law =S18
Joint trinl is iml]J]Jropriate i f it
sacrific'.< a d"f{'ndrmt's right to a funda
ment.o.lIy fair trial.
g, Crhnln:!.I L lW :>G2!(I )
Grnnt u dl'Dial of severance is in
sound di
Rules Cr
ti e,n of trial judge. Fed.
I _ rule 14. 18 U.S,C.A.
4. Crhlll,,,,]' w <:=622(1 )
If 'Itia1 degree of prejudice
springs from 11 joint trial, a severance
is mandated. Crim.Proc. rule
14, 18 U.S.C.A.
5. Criminal I.!'II\' :>G22{l)
Sen'ranct' is obligatory where one
': e rests heal'ily on excul.
patory tc.,tim, ny of his codefendant who
is willing to gh'e such but. for
the fear that by taking the stand in
joint trial he would jeorardi!e his own
defenM'. F"d.Rulls Crim.Proc. rule 14,
18 U$.C'.A.
6. Will -l
F rlh ,d, -cnt go,'/! defendant
right m e\" n 10 b cfllled to and
that "kht I il 10 far tiS to forbid
not only G. tn
ant from rallin,
U.S.C.A.Const. .\1
7. Wlln' <::>5
,t. ]"t enn
f, 'iant to the stand.
nd. 5.
If a defentfanfs is severed
from that ag.,i,,_t ro<Iefendan l, although
codefendant retains pl"ivilegc against
self-incrimination, as a witness, he no
longer bs right not to be called to stand.
U.S.C .. . .-\ nd. 5: Fed.Rules
Crim.rroc. n:[" It 18 U.S.C. A.
8. (',illl'"!)nll 02),11('0(6)
Wh \ IS only way of
<lfforrlin r n' ',r"ed with 8ub-
of fIllS!'! d( til with reference
to matter within jill' diction of Depart-
ment of J Ion,. ]lI)ssibiJity of per-
lIuading cod<'l('nullllt to defend.
ant hlld 'l'lite clearly to tl'ial
judge that he \I, ulrl t('stily if /l:rantcd a
S('H'l"lHlCe aMI j. tliCOlted the I'reeisc
conteut. of the UI :ted telltimony and
it. importance. defendant should not
ha\"(' bt.-,;n forecloM'd from bt>nefits of ro-
defendant's IIh'olal testimony
there was not an obllOltlte certainly thAt
codefendant would telltify and it re-
error to deny defendAnt's molion
for selerance. Fed. Rules Crim.Proe.
rule 14, 18 U.S.C.A.: U.S.C.A.Const.
Amend. 5; 18 U.S.C .. 4.. 1001.
9. CrimInal La" Co>G'?2(S)
Where sel"erance would
a great number of otherwise unneces-
sary trials or duplication of unusually
complex trial, distritt court. in exerci!le
of ill discretion, could well consider
tho!le factors as po!sib!e countcrv.eighta
to benefits from severance aaruing to
moving defendant, but paramount ques
tion is always whether refuMI of sever
ance impairll of the trial. Fed.
Rulell Crim.Proc. rtlle 14. 18 U.S.C.A.;
U.S.C.A.Const. Amend. 5.
10. Criminal Law :>ItU(9)
Where, for first time on awea!, par-
ty raises unsupported argument that, if
scverance hnd been ordered, codefendant
would thereafter bal'e wAhed his Fifth
Amendment ]lrivileges lind testified as
nl'locl1atc court hns ri"ht to
rduse to indulge in pure lIupposition as
to what behavior of codefendant would
hal'e been if requested severance had
been granted. Fed.Rules Crim.Proc.
I'llie 14, 18 U.S.C.A.: U.S.C.A.Const.
Amend.5.
II. Criminal Law <::>1I71(lU
Argument of codefendAnt's attor-
ney that codefendant ans ..... ered questions
in a direct, forthright manner without
evasion was not prejudicial to defend-
ant on theory that it lIas an oblique ref-
erence to defendAnt's failure to take the
swnd.
12. Criminal Law <::>80
Where the only potentiAl principAl
has been acquitted, no crime haa been
cstabli,hed and conviction of aider and
abetlor cannot be austainl'd .
13. Crlmln:lI 1..'\10' <::>80
Aider Ind abettor may be tried be
fore principal and, where commission of
.
774
.m FEDERAL REPORTER, 2d SERIES
crime is proved, aider and abettor may
be tried el'en if principal is unknown.
'4. CrIminal l ..a ..... ::>80
\'t'bere principal wu granted a new
trial, defendant com'ictcd as aider and
abettor ..... aa entitled to vacation of his
wnl'ktlon of 8ubi<tanli\'c offense, contin-
gent upon principal's conviction, li t his
retrial, of the substantive orlense
charged.
IS. Conspiracy c:>o23
Conviction of onc conspimtor can-
not stand UPOIl of his only co-
conspirlltor. 18 U,S.G.A. 371.
16. C(,,, C=:>'23
WhHe indirlrn<:nt names addition-
al, untried convittion
may be affirmed notwithstanding acquit
tal of codefendant conapirator. 18 U.S.
C.A. 371.
17. Criminal Law ::>1l86(1)
Where trial court charged that, to
convict on conspiracy count, it would be
suffident if jury found agreement be-
tween defendanu find named, but unin-
dicted, co-conspirators, or at ICllllt two of
the number, so that it was impo>sihle to
know whether jury foulli! th:lt defcndant
conspired with cO(]t'f(,,,lant al(,ne 01' with
otheTl, it would be i"'l'ropo:'r to
13te in that reganl'<'hen coclrfend;,lOl's
com'iction W:lS \'anl.l.rd and defendant's
conviction must also be vacated. 18 U.
S.C.A. 371.
F. Lee Bailey, Boston, Mass. (N. Wekh
Morril'Ctte, Jr., Columbia, S. C., Cerflld
Alch, Boston, ;\fIlSS., Ralph C. RoliiMon,
Jr., Columbia, S. C., on brief), for E.
Graydon Shuford.
C. D. Jr., S. C.
(Malcolm M. Cros.land, Charleston, S. C.,
on bricf), for Herman S. Jordan, Jr.
Marvin L. Smith and Robert G. Claw-
IOn, Jr., Aast. U. S. AUys. (John K.
Gri&80, U. S. Atty., on brid), for Uni t-
ed States .
Before HA Yl"SWORTH, Chi!'f
SOBELOFF, Renior Circuit Jud,e, and
WINTER, Cinuit Judie.
SOBELOFF, Spnior Circuit Judge:
This case rlli, s Ollt" of the
sometimes enc" "lten'd wht'n two crim-
inal defl'ndanl.s, each surrounded by a
multitude of procedural protections, are
tried jointly and the effectuation of one
defendant's ri ghts neces!<1l rily works an
infringement of the ria:;hta of the other.
E. Graydon Shuford and Herman S.
Jordan, Jr., appeal from their convic-
tions under 18 U.S.C. 371 and 1001,
for (I) the k'Llwina:; submission of a
document sith refer(nce to a mat
ter within the of the De-
partment of Justi and (2) conspiracy.
Each dclendant was scntenced to 18
months imprilOnment on each count, sen-
tences to run concurrently.
The events leadina:; to these con ... irliolls
began in the fall of 1969 when Shuford,
an attorll!!y specializing in personal in_
jury ca!;6, hdpt'd the Weat
Ashley Physiclll Laboratory
("Laboratory") in <:(mjunction with one
G,'ne H. 1.I,nl'". The latll:r, named in the
indictment as II c(',co!lspirator but never
brought to trial . was an experienced
Ilh)'lIical who ran the Labora-
tory and was nsponsible t or billing pa-
tients alld ieneral record keeping. The
Laboratory was formed in order to pro-
vide physical theravy tor those of !>hu-
ford's clients who rt,<!uil"ed llflCh treat-
ml'nt.
Two wceks after the l.aboratory open-
ed, LOlli approached !>huford and told
him that some of the physical Iheral'y
patients were not keepina:; their Rl'point-
ments. Shuford instructed Long to bin
these patients for their unkept appoint-
ml'nts anywRY. SeH'ral days later, lAng
had occasion to speak with Jordan, a
legal in"l",tigator employed in Shuford's
office, abou t the unkept IIppointments.
Jordan. when informed by Long of Shu-
(ord's earlier instructions, told Long to
do as he had previously been directed.
Udlre,
and
Ie :
'kma
'ri m.
by

one
'"
thl.'r.
" S.
nvie
001,
,r
mat
D,.
-aey.
18
lien
iona
ord,
in.
,'l'St

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l"'d
ra
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rh,
roo
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ot_
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I',
I,.
,.
to
d.
UNITED STATES T. SlIUFORD
775
(u _ I -,I t':d (lU,l)
Meanwhile, on NQvember 17, 1!H,:J, case arainst him by pladn hill credibil
Mllek C. Wheat wna inHI\\"ed in an Buto- ity and dl.'ml.'anor before the jury. Shu-
mobil e M"ident with an agent of the ford's IIttomey, arguing the motion for
Federal BlOre.:a: of Whtat further all$ertl'd. 8-1'l\an-ntly
retaintd ,huford ag his attorn,), lind without di S!k! nt by Jordan. that Jordan
Wall referred to the Lflbont- Wag nota\'erse to testi fyi n in Shuford's
tory for .,hysical theral)Y. In J"nl.lary behalf at a separate trial. since his own
of 1970, St.uford f iled on m,half of deft'nse would not thereby be jl )pard
WlIeat an I'Idn:.ini,lrati\"e claim lor ized.
tlement '.' e'er th(' F(d"'-al Tort C"
Act. Ah .ded to the d,lim wal '11
for therapy tn:, n A
I'It the L,bol'atory II bill whkh in "Jd,
I'd in ('harges for three unk,"t '.p_
pointmcnts. No indkation ap]_ '1", d \,n
the face of the bill that thl!8C a]" n'.
menu were not kept. Howe\'er,
pitai bill, also submitted with the c!i, m.
indkated that Wheat waa in the
on tlle of the three appointm('nts
in The cl ai m was therefore
rejected and a {'riminal inl'eatie-ation was
beaun, in the instant
tion.
Before the trial began and again alter
the prosecution submitted its evidence,
Shuford mOI'cd that Jordan', ease be
iel'ered from his own so that he might
ha\'c the ),t'nefi t or Jordan's tl!stimony. '
Jordllfl lihwise mO\'ed to have his case
'eHn:d ,HId joined in Shuford's motion,
.\!though Shuford ksti!ilod in his own
Lehalf, Jordan ultimately not to
take the stand. .-\tx'ording to Jordlln's
statement to the {'ourt in 6WI'"ort of
ford's second motion for two
consideratioll! prompted his /)(,t
to testify: First, he wanted to Il\'viu
that would brinV to
light ccrta in prior canvictions of his, ;,nd
he planned to stand on the in.
lufficicncr of the Government's evidence
fwd f(':.n-U that if he took the stand in
his (n"," trial, he might !ltrenathen the
II" 1" "f"N', "u, fi .. , ",,,,N (0.
, .... be IIIIN 10 Ibe Irie) J,,,lrt,
"I kDO'" .... ".1 1 .... lhnnllt ,,",,,,lJ
lit, .ud il l lot In,lIrl'
meuL"
At II". of Ihe G""NII-
10 """"log :-:hul ... ,<I, .elnd "I] ,n
for made wilh In,o ... 1 ("o"Ourl,
Shul ..... r, "uo.ue) W!UI m{ore c'l']!"h,
lie n. .1 .. 1, "] ... Jan "'ould leotlf)' If h.
Before ruling on the mC';'-.!i for sev
. rance, the trial judge, in an endl"avor
to meet Jordan', objections to laking
Ihe stand in the joint trial. <Jffered to
furbid the Gon'rnnl{'nl from f,,:.'illg Jor
Ilan's prior crimin/ll rt'<, ,d cr. sex
'liualion, Jordan. hl' till re-
",ained unwill ing to t<<-:,fy, , furing
to the IIU{fieiCl"h'Y , f !'Je Go\'
eroment's ca.O\e without t', :"" him
self as a wilne" in lIis O".ln The
trial judge d(:onied the k'l!fance motions.
Shuford argllet that only if &I,'I'eranee
were granted and J ordlln were not be
fore the court u a defl"ndal1t cauld he
have called Jordan to testify in his be
half. Since Jord"n was the only wit
ness Shuford could to contro-
I'ert the testimony of 1..onll', the Govero
ment 's chief witneh, Shu!"rd contends
that denial of the severallce go preju-
diced lIis defense as to dot roy the fair
ness of hiB trial.
II
[ 1,2] Pril-r . .1rily fe.. rl n f
omy of time in j",lidll lion,
the K{'nera l rule ,\ p<;r.
,ons jointly illdicl!'d .h"uld be -d to-
j(ether. Hnl! v. United States, 83 U.S,
App.D,C. 166, IG8 F.2d lSI (1948);
Dykes 1'. United Stalell, 114 U.S.App.D.
C, 189, 313 F.2d 580 (1962). This rule
has particular strength ,hre,;ls here,
one crime may be r .. d two
,Io.i b.- I' .Ju J ao j".
stru..t;,," I'> 1.). t .....
t"'''1 I, ,Ui .. l 10 I I '-p
'''.I' 0"""1')" bb ""I,.".M: I h3d
110 h",,'leJee l1.at C, \\'bcoat
1,;)1 wU r.lu Or NroUNlUI III aDJ" '''''I'''''I
until lJoe
Ihftt he t'tIII811lred ... lIh nD au 10
crute . 111 (. IM or fflU,lul"DI .'-1 ,rU U
10
776
rEDERAL REPORTER, 2d SERIES
or nl(>rt' dt,rendanLs on a rin!:,ie l'Ct of
or from the Sl,me ('dlll-nce. Unit
l"d '". Ll'hron. 222 F.2d 1>.11 12d
Cir. 19:;5). d('nkd. 350 t'.S. 876, 76
S.Ct. 121. Irl(l L.Ed. 774 t Not-
the rl(>('d rflT ,rei, i'-Iley in
judie ial adminil'tration, iI. joint trial is
illIlll'rol'riate if it swriCiel s a ctdend-
ant', ri&'ht. to .:l fair trial.
R:lkl'!" v. United State . 22!l r.Zd 786
IOlh Cir. 1964), eert. di- -d. 379 U.
S. 853, 115 S.Ct. lOt, 13 L.F.d.2d 56
I!,,;t}; Barton v. Unitc.>d St.Ltes, 263 F.
2d (6th Cil", 1959),
[3, 4] For these rea! >n'
Rule 14 of the Federal Rull
lthough
Cr'minal
Procedure lliaN'lI the grnnt Of linl of II
in the f;(Iund cli r Ii .n of the
trial judj('e, Opper v. t;'nitt'd <:'1:.1('11,
U.S. 84, 75 f.;_Ct. 158. '.Erl, 101
1954): United St.11es v. F zi'r, 394
F,2d 258 (4th Cir. HI(8), if a 'sub9t.1n-
tial degree of prejudice" si'rings from
a joint t rial, a severance is mandated.
United Slates ,'. )lorgan, 394 F.2d 973
(6th Cir. 19(8): United Stal's ,'. Bur-
gio, 279 F.SUPII . 843 (S.D.N.Y.19G8) .
surpr isingly, the faets pecu liar to
tach case will determine whether suffi-
cient prejudice e:dst.s to mnke the de-
nial of a s{'\'erance rt'venit,le error.
Sthaffer \'. Unit'd Stntes. 221 F.2d 17,
19 (5th Cir. 1!l55).
The 1(';l<ling of this Ilro!)-
-ition is Vnite-d ". E. 352
1'.2d 892 (7th Cir. 1965). a
member or the Ill inois bar, W'1" charged,
together with two others, with suborn-
2, Olt..tr <'(In,l. lil.'wl.., I,ao'/! ......
II. " .... cnna II due "'hell: II, 'odu!:,
nefti. the 1,len .... "r " 00-
tb'. n.....J I. IIDI;I,.I) to be
in " j<,int telll; lind '"I'. I. a
.uL.l;mtln!i)" ,r.-ate. :I"t II'e
prejudiced
Echeles by pre,\'nling him from efree-
th'cly countering one important clement
of the Similarly, in
the instant case, rcjl't'tirlll of the sever-
ance motion prcjudicially denkd Shuford
the opporliinity to pr_nt testimony
highly re!\;\';r,t ill the resolution of the
bsue of guilt or i n( ree.
Jl
At the t !.
"
" ony was
sought by f.;hrlfo. ' ir I d to a cru-
cial fact on which th", G:., ,.. ... nt and
Shuford were in sharp disaa-reement,
namely the nature of Shuford's
inslrudions to I.(lng f'('iarrlin&, billi ng
practices. f.;huford that he ad-
\'j,:>d Long thllt the J..R.! .. lory could
bilt l,atil'lIts for mirscd ',I, -,intments,
but he addEd the adn:o::itkn that these
items be hr.I,c!led in a r;.anner as
not to appear in later litigation or settle-
" .. b. ! 'II , it iI<',-er
"nee "eri! r"",,,l, t I SIUU v.
GleASOn. ':.! ,,,,n.:s. \.
10ilG) . Sft ,,' t l'u d. 1- "'; 0' . 'd
dunltio. '.C.:\,J.I970).
-
,

('vj.
.. ',-d
:lit_
,.fll.
0"
'0-
tho
only
, '"
'0'
Jnc!!
him
tify
tee-
,'et
Jon.
ling
ret-
hoi
\'SS
'",
"d
0',
d',
o.
d,
:Id
tl'l,
<
"
I"
=
UNITED STATES 1'. SHUFORD
777
<"11. \' .. 0.: 01/,11
ml'n! fll'j:'otiations.' Lon,. in ['(l:lt."t.
to a "ersion that .:ri
c;wtly different. He slrontch urr::' ,h>()
thaI :'huford was intcndinlf to use the
Il bills to cnhante his c1il'nts'
""noties.
"
ford hinged, in large measure, on the
outcome of this credibiHtr dis) ute.
the right not e\'en to be caned to the
.. land lIO long as he II derendant.
l.'nitcd Stn\f's \'. Kn'l,sn, ::67 F.2d 118,
126 (7t h Cir. 1!l59). ('rt., I ('d, 361
U.S. 836, 80 S,C!. 121, 4 L r 104
(1959): Port'Uo \'. Unit<'d 1!lG
F.2d 392, 394 (5th Cir. <':;2) This
1. Sltufonl te.llfieol In Ii ,\
I Ioid 11..001"1 at !hl I Ilf I
fLoq'bl it ... ould t.. I'" I' ,bill
1".Urlll'l for JII.de but
"0)1 UO)'.'ner, 10) 11, .. 011
DII7 bm. Illal he sell t to me.
. '..
Of ('Ou_, ill n "],,Im. Ihe
"1117 ('('rtain Ihal "". ""
e<,>,erabl., lor II bill f"r 1"':""11
IIl'1oo!lIlm"lI l ..-0)111..1 1101 be nil " .... r.).
01 L Ih.t ",0)11101 10_ "WI ..,Me.
I 1.1.1 (1_, lhat I ,",11M ""I 1.!'\Itl-u
Ih, "')'" "I of II, .. hill fo. hi. l,ruke"
1'1' h. n,al I ... ,,,1,1 1",,-. to
... 11.,,1 r'"m It. 1, . 101"''''1(.
4. 1,,", ,,'.,i(!,d in 1"1<1 11",1 i
[!'lloulunl) I"hl nip Ib.1 " ,h. ;- \: Ill.
kel" Ibelr "I' il II ... y di,1
'''". Ihey ,,-..... '" I ... II, ,r,,",,1 .. if
Ihey bad . 11, 1: .. 1 if hL.s
.. Uelll, dl,J 110' U>iIiI' '/'i".:"tDl""u
'11..1 I ..1M 1101 mark t1.elQ d".," r". I .... t.
.,.. r u .....
rij!ht extendll 1;(1 fal' !U' to forbid not
only the GOlemment. but c\,'n Shuford
from talling Jordan to the De-
Luna v. United States, 308 F,2d 140 (5th
Cir. 1952) ; United SLDles v. liousing
Foundation, 176 F.2d 665, 6G6 (3d Cil'.
1949). However. if Jord1ln's cnse were
se"ered, while he would ret.1in the prh'i-
lege against selfintrimination, as a wit
n(,M. he would no longer have the right
not to be rolled to the Landy ....
United Stales, 283 F.2d 303 (5th Cir.
1(60). Thus, absent JOI'dnn's willing
ness t.o wah'e hill Fifth Amendment
dghts while joined as II defendnnt with
Shuford, severance was the only way of
affording Shuford any possibility of per-
suading Jordan to testify .
".
sullins in withholding this tes
timony on such a critical l)Oint, so tip
ped the scales against Shufon:l that he
failed to fair trial.
.. ,I "1''''''1. I"" h. '" "t t., t"urt
10 ,II i,. "7'" ,J. 110e ('bill!.
110,,1 II,, ;11 'II', ,.,. ''l'''''7 or tbe 1\In.
"r "I,"h'"'' ",,,uld ... y "tH. it),011 had
.ully 10'11 hurt, illjurtd, .ucb, Ihell
)'OU would kept your nl'IIOIIIIb1Il11U.
'J'hi ... -nl 101, N'nl<lll 11,.t ht Iln"e roe
. ... 1 Ihal rl,e
the ",",Ii",,1 "'I"'1tM! n. n ",ue.al
.1110 llot tto ..
S. It 5_ .i"nifi .... "l II,al, iu Ibb (': .. e,tr-
",,,,10.1 (,oil' ,,,,,. "",,,lroJ two
Ii-'ely u"cvo"I,li, .. ted IrI.l. IQ of
Qlle' n<lt bllrUtll from Il,e ,ie""
rooln! or j"d;dnl .. dmini.rr.,io... WI,trt
would ... [lnle " ,rtlll ,,"m
OOr of nlhcI'wi><e ''''''('0'1'",''')' or the
,1"l'lieRIIQn of an ooml'lu Irlal.
n .1"I.lo-r ''00''1, io tI'e uerd .... (If I" ..
c",'li,'II, '''IIuld ,,'en lb., ,'" r"dora
,,_ 1 ..... "lbl'" to tlK' I ,.ofil.
... .;rulo, 10 Ihe Ino,-In, old, .. )""t r"'lII
... ,-erslll'e In Ihe I "-,,IIt.I,1I''ft.
See l'1I1t1!'d !'lralu v. Turu,., :!7-1 F_!>uJlp.
778
454 FEDERAL REPORTER, 2d SERIES
IV
In illl brief on appeal, the Government
argue!! that, ('n'.n if severance were
gnnted. there ill no allSurance that. Jor-
dan "would be any more willing to waive
hi, Firth Amendment prh'i!ege in a
separate trial as to II joint trial. "
Tn support of this contention. we are
tiled to n number of cases which have,
out of a upheld the
denial of a in circumstlmccs
arguabh' :1n:!.IOjj'(lUlI to those present here:
e. fl., United Slates v. Frazier, 394 F.2d
258 (4th Cir. 19GB); United States v.
Kilgore, 403 F.2d 627 (4th Cir. 1968).
cert. denied. 894 U.S. 932, 89 S.Ct. 1204.
22 L.Ed.2d 462 (1969); United States
v. Kahn. 381 F.2d 824 (7t h Cir. 1967),
('ert. denied, 389 U.S. 1015. 88 S.Ct. 591,
19 L.Ed.2d S6t (1967); Kolod \', Unit-
ed States. 371 F.2d 983 (10th Cir. 1967).
(10) However, none of the cases reo
lied upon the GO\'ernml'nt is 'I""";"
h,re.
412 (O.C.Ttlln.l001): Unitt<.! ,'.
Cn.onl. 271 100 (S.O.NS.lOO7)
. .1.). TIM:' """"mount QUe..-
lion, I, nl"'n)"l rt f".nl
ot lbe "",'frlln ... Iml'li .. the fill ..... of
Irlal.
6. Su. t. g . I.:olted SIalH Y. Kl1j;ON!, 403
F.2d 627. res (lth Cit. 1008). de--
niOO. 394 U.S. 1l32, 1'9 fl.Ct. 12()4,!!2 l .. Ed.
2d "62 (lM9):
It ,hoMo "01 ho .. .. c" !l,nt an
'''ki' .Ue .. I "II. m"Je brio ... 10
te:o "".,. II .-..."1'''';''11. It wu n" .-I,eN!
,I< ,"', t.nt.',) II .. ,! II,., ",.I.,,'I1,).,nl "'as
mint', 'It ... _,I_ lriftl, 10 <'(I,,,,,be).
",to M',r), " ", ('no.
11<>1 ,i'''I,I.'" I"'" ,,,,, II .... , "'l'Ot,,,mlhe
le,!!""'",. ..-""Id J,..-t fottMoml .. ,
" " ..
'l'o 11>e etc",l, 'Ct. I.:nited fltat .. ".
Kalon, X6 2.;9. (2d ('iT.).
''<'TI. ,1"01",1, 3..", U.K [UR. :"7 :l21,
11 Z2G (lXOO); rnil"" ".
Kat,,,, !l,' 1 ... .. (7110 ('It,), ,Ie-
"i .... 1. 3,;n l$. 1015. :-;.("1. r .. '11, 19 1 ..
GIll (lOOij.
Where, Cor the first timO! on liP-
1>'111. a party ra.ises tuth an
without support in the record. a.n IIpJ'E'l-
late court ri Kht rully .. , to indulre
in pure supposition as to what the be
havior or a co-defendant I-Iould ha,'e
b<len ir the requested severance Iw.d h('(!n
granted.
In the present instance, howtl'er. we
are nOl called upon to in lin ex
ercise oC ciainoyance.
say qUe.'!tion
that JOI'dan's would be Corth-
oomlng ,1rtcr SCI('rance, The mo,ant is t
not, to such <tringent proor.
i' I
the benefIts oC Jordan'9
pivotal simply bN:auae that
I)robllbilily was not an absCllut(' certain-
t)-, United States I'. Ethel". 352 F,2d
892 (7th Cir, 19(5); United SI-ates v.
r.]"a!<on. 259 F.Supp. 2i12 (S.D.N.Y.
1966).-
7. S.,., note 1, up .... ; l>a,t lIl,
6, III hl' ,Ii Ullyn ... Orlb orollld
"1,1,,,,,, ,I'nlftl tbe 1Ie,-rrnn""
in 101. .... " .. 1 d, .... 1101
""tndo-nt liktlll,()Qd Ihat J",.bn ... ould
le,tif), :-;hllford. trial and
IMI, In f4<1. it .. .. W W J<>rdnll.
l"ttl'f'$l ... 10 IClllf1,
It I, tTue Ihnt fine j"dl'ffientl ns 10
Joronn', ,,"Ie of Inlnd in 1M of
MII"nn ..... ore "01 Wbl1e
il would Ihe to A,. tllat
1"1'",,,1 any ,hilil), of dOllbt Joroan
11,-",101 t,.tif)" j,romlOf<I. It I, n ..... 'Inln
ILl f,ar .. ,,,,,nlblr be Upt(1f!t!. W. dil-
ler ",ilh our <lluentln, in Ihe
InlNl'rctftllon of Ihe tt<'<>r,11" tI,;. n',anl.
Jo"la,,', 10 "'I"'at In d,tail the
nnd ""n"I" 'IM,
..... il .. lln II ' I';' "',,,' of Jomna
ftnd hi. I1I1<>n"'r. """,,,,"1,,, JO .. 1UII1
Ic.IIo"oor I I" OUt ",in,t .. I,(,hl)' illdlra
the vI fh,i, "';" ,,,,III .. lIb 811utoro',
nnd liont If wcrt!
gr. "1,,, Jo,Jan "'ould I" fMt I""tifr.
In 111. Ihe fllct that thll <'(Iurt
lle on IlIJ-
argument
an appel_
(I indulge
It the be.
ha\'e
had
\'CI'er, we
in an ex-
Shuford
lenrly to
t Jordan
anee, but
('xpeeted
This is
Question
be forth_
lovant is
A rea-
that the
'aet. ma_
RI'e been
Jordan'!!
Jac that
certain_
152 F.2d
;tat.cs v.
;.D.N.Y.
'ause
ned II
w\luld
1 aud
,da,, ',
.1. 10
,,1 of
Wldle
.- Il,at
0,0
,in

lIlt
. ..,1.
Ihe
r""r.
)nbll
Jail"
IdiCfl -
'ord',

,tlfy.
.'Qurt
UNITED STATES 'f, SHUFORD
.. m
779
We reach condmi(>11 ,'W,!!'C of the
vital importance of J{.ri,m',< t( __ to
Shuford's and in Jif.:"ht of the
subst.antiaJ expectation th:.t Jordan. if
se,'erance were granted, would ind('('d
testify as indicated. We eml)hasize that
our approach in this does not man-
dllte II severance in ('I'cry where
one defendant the testimollY of
ance; lind
We hold orlly. on the specific
case, that JOI'dan's testi-
was J'('\'ersible error to deny Shuford's
motion.-
v
[ 11] We perceive no error in the
court's overruling Jordan's motion for
severance. Unlike Shuford. Jordan was
not confronted with an inability to pro-
duce testimony vital to his defense. Jor-
dan, in addition, complained that he was
prejudiced by the jury argument of Shu-
ford's attorney who said, "lIIr. Shuford
Imswel'ed questions in a direct, forth-
right mannel' without evasion." Jordan
mainL1ins that this was an oblique ref-
crcnce to his failure to take the stand.
We find no in this argument.
It is true that Ihel'e arc dcci,o;ions hold-
ing that a defendant may be entilled to
a new trial because comment prejudicial
to him was made in the JUL'y'S
by a co-defendant 's attorney. But these
lire cases in which the co-defendants
were attempting to cast guilt upon (!ach
other. Sec DeLuna Y. United States, 308
F.2d 140 (5t h Cir. )962), This is not
the case here; in the I'xisting
efr"<-t,nly tor 100111
of tbe I,roblem p,,,,,,'nted. SC\'t'r"llC'e ",as
Ihe ,,,,,Hable >IOlut;on .
9. Shuford also m;8e. 0 "Dmb(or of nl1<'1:cd
crro .... ,n the Ir;al "Ouct'e cddcntinry ml-
on,l the Muffiricney of IIoe
e,i<l,",... 10 '<lndet I,im. In view of our
1',",,"'01 holding ,",,"N,,;ng SI,urord', <<Ill,
,-ieli"". wIdell will tC'lulrc II. retr;ftl. it ;8
unn<'<.x' __ 'M>' 10 d,x'hll! tlo" ... k'Des nt the
I"l'!lt'nl lirn", TI,ey ma)' Ilot in the
counsel's remark lacked the sinister im-
I'litutlon attributed to it by J ordan.
[12-14) The other assignments of
err,,!' made in Jordan's appeal are equally
However, the peculiar
of the case prevcnt us frum
affirming Jordan's conviction at
time. As the indictment and the evi-
delll'e lit trial show, J ordan's in\'ol\'e-
mcnt with th(! substantive cl"ime
w,," thaI of all aider and abettor of Shu-
ford ;.< principa\. It is an, sccepted ruh,'
that I'hre the only potentinl principal
llcquitted, no crime has been
established and the conviction of an
aider and abettor cannot be sustained.
11I
Shuttlesworth v. City of Birmingham.
373 U.S. 262, 83 S,Ct. 1130, 10 L.Ed.
2d 335 (l!J63). This rule, unde\'jating-
ly {t,\lowed for generations, would be
ocr . ,'(d if, on l'('trinl, the i,rin-
ci!,,,I, '''ould be acquitted lind the c<."dc-
tion "re allowed to st:md as to J,-"',I,,n,
the aider and abettor, We then:fore
vacate Jordan's conviction on the sub-
stantive count, under 18 U.S,C. 2 and
1001, contingent upon Shuford's comic-
tion, at his retl"illl, of the substantive of-
fenH' charged.
[15, 16] The remaining count on
which Jordan stands convicted charges
a conspiracy between Jordan, Shurord
nnd other unindieted individuals, It is
well recognized that a conviction of one
cons! :::110r cannot bcside the- ac-
quittal or his only ('o-<'onspirator, Rom-
OlltiO \', 400 F.2d 61S (lOth
Cir, I%S); Lubin v, United Stah's. 313
F.2d 419 (9th Cir, 1!J63). Wlwre, how-
ever, the indictment names arldi\ionsl.
untried co-conspirators, conviction will
be affirmed notwithstnnrling the acquit-
II,',,' triMl, Or if 0.111, ""unIt mllr
\", ,Hrfc",,,,,
10, T.e.t ,,'e be ",i "1,"t,,Q<I, we
thnt Oil niJ<r ""oJ nbeltor m.r be
tri.,1 lo('("rp l,dn";l'al lind w!orTe tbe
" -w' _j"" of " c,;!ne i, pro"w, an "ld. c
.! _,],,-1\or mil)" toe tried eHIl if the l,nn'
,.,!,"! [s unk"o .... n. }<'eld'lein ", L'nltl'<l
-, ", 1002 (II c,.,), e<:rt. ,Ie
'I. 100 U,S. 920, 91 S.Ct. 174, 21 L.Ed.
lW (I970) .
780 FEDERA.L REPOP.TER, 24 SERIES
tal of the Cr,'' \". l:nited
State.;;, 392 F.2d 360 ,Pth Cir. 1968);
l:nited Statts v. G( don. F.2d 122
(3rd Ci r. 1957).
117] rule cannot
be invoked to affirm .lc<rL:il1's conspiracy
conviction. The trial eOI,ll\ l'hargl"d the
jury that in orc1tr to cor,\"ict "n the con-
spiracy count it we",'.! 1:. "tricil-nt if
they found an ain",' :,' , "the
d(ftndants and '"r,;ndided]
co-('(,n.'pirators, or III It ,I two of the
number." It is to know
whether the jury found that Jordan
with Shuford alone or with oth-
era and it would be to
in this regard. We thrr"rore \Cacate Jor-
dan', conviction IlJ to the
count al.o.o and grant hi'll. trial on
t11al charge.
Rever!'ed and rem 1 d " to No. 71-
1424; vaeated and j'e'l",n,led with in-
structi ons as to No. 71-1425.
HA YNSWORTH, rhi(>{ Judge (dill,
senting) :
Thl're h no .,
I)rothers and mv ov r
ciries of bw ,;hi,
decillion. We nil ;"
"I between my
U'e " neral prin-
h Id ,,('rn our
.I II ,,!irn to
sever is addressed :" ,I discre-
tion of the District Jl. 'i'" Il ,,'h itll
denial is re\"iewable by the Curt of .\11-
peals, if rknial depri\'es a tri.11 of es-
Hl'nlial We do in our ap-
praisal of the r,radkal which
confjon!.ed the Jud!{e. In my
view of the record and the practical
problem presented. the District Court's
dl'nial or motion for n
ance iu no ,VIISI' an "bu!Ie o( the
Muml "iser(ti(," 10J)."d in it. I must
co ,I, "", UH.'f('fc,re, th"l W(' '\'<'ITl'lICh
our,utl".rily in ),'r;<r,ting a .W trial
and in llin'Cling a
Before the of the trial,
Shuford made a motion for II !I("'erance.
Through he he in-
!.ended to L1ke the witne R "I, that
his testimony would oe f, \ \,), I', Jor-
dan, 81 WI'll all to him tlr, ' " lad
expeded Jordan to I(,.qify i. h t ,n de.
fense, and that such t('tltimony would
also be favorable to Shuford. He learn.
ed, however, {rom Jordan's attorney,
that Jordan miaht not testify (or {ear
that the Govl'rnment would use a prior
conviction to impeach him as a witneu.
At that time he repre!lented that Jordan
would be willing to testify as a witueSK
for Shuford if Jordan was not thE'n on
trilll, but he anUcipall'd some problem
if the trial proceeded a sever_
nnee.
The motion was denied at that time
with leave to renew it later. It was n!-
newed later, after the c1o.'!e of the Gov.
ernment's at which time Shuford's
attorneys had heen informed that the
had bel'n mnde 10 withhold Jor_
dnn from the witlH'" :<tand. Shuford's
Inwyel' thtn r('l,r{':<ented to the court that
if Jordan were <{'\"ered from the trinl, a
mistrial being declared as to him, so that
Shuford could call him as a witness In
the continuation of the trial as to Shu-
(ord, Jordan would testify that he knew
of no instrllctions to Long to falsify
reports, that JOlxlan knew of no error
or falsi ty in the Whv>lt bill until he
learned of it as a. result o{ the F.B.I.'s
investigation, thllt he had conspired with
no one to falsify reports or claims, and
that when he lellrned thllt discrepllncies
existed he hnd told Long to ('Or-
f(-(:t them all.
Thrre WI'S no n'l'f<",'ntiltion Ihllt Jor-
dan could t"""tif)' to anythina: I'ro\'iding
direct corroboration for Shuford's testi
mony about his COI\\"enations with Long.
The only representation wall that Jor
dan would offer testimonial exculpation
of himsel(. Such testimony from J or-
dan might well have provided tllnllential
support (or Shuford, but the I'rorfer
docs not suggest the direct and immedi
ate relt"'ance indicated by the majori ty
opinion.
Jordnn and his attorneys particijlAtcd
in this discussion only to the edent of
a IItatement that it was nol then antici
pated that Jordan would testify (or the
reasons prcviou.ly by Shu
(ord's attorney, (cal' that the Govern
ment would us_ the conviction to
ony w :lld
He I(am.
:lU"ml'Y'
,. for fC<J.r
foe II pric.r
a wiln<'U,.
la\ J'rdan
11 , ..
II :.!F"n (In
e
I .:I $I.
thht time
It Wll.<rt.
the GO\'.
Shuford',
that the
lhoid Jor_
Shuford's
:ourt that
Ie trial, a
n, so tlillt
in
(o Shu.
he knew
o
no error
un til he
: F.B.I.'s
ired with
and
j andes
to cor-
.! Jor-
,'i,ling
'I' II'$ti _
h I."ngo,
<t JO'I'-
'I, ,tion
'11 Jor-
nlfl'nlial
pl"OHer
'mnwdi -
.j' l"itr
,,"
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.id-
'''r the

:;o,',l'n-
,tion to
-
UNITED STATES ,. SHUFORD
m 09j! )
781
impeach him and fear that his appear
ance as a witness might somehow bol-
ster the GO\'emment's case against Jor-
dan.
The District Court thereupon denied
Shuford's motion, but it did so with an
extension of substantial protection to
Jordan should he decide to testify, The
Court st ..lted that if Jordan should tes-
tify in the joint trial it would not per-
mit the Government to use his prior
com'iction as a basis for impeachment of
him as 11 witness.
Thereafter, Jordan m:1de a motion for
a direetcd verdict which was denied.
He then moved for 11 severance on the
ground that a joint trial with Shuford
was u,lfair to Jordan. He had not join-
ed in Shuford's earlier motion to scver,
however, and at no tillle did he indicate
a willingness to ha"e a mistrial declared
as to him and to testify, without a claim
of his Fifth Amendment privilege, as a
witness for Shuford in a continuation
of the trial as to Shuford. The rCCQrd
oontnins no disclaimer by Jordan of Shu-
ford's lawyel"s pretrial representation
that Jordan would be willing to testify
as a "itness for Shuford if Jordan were
not then on trial, but there is no affirm-
ntive rt'presentation by Jordan, or his
lawyer, with respect to any phase of the
matter, and, with respect to him, the
situation had mat('riaUy chanKrd after
the joint trial had procredcd to the close
of the Go\'Cr nmcnt's case.
At the c10sc of the Government's case,
the only practical course open to the
COUl't, if a severance was to be granted,
was the one suggcsted by Shuford's
counsel-that a mistrial be declared as
to Jordan and the trial proceed as to
Shuford. '
If Jordan had then been elimi nated
from the case on Shuford's motion un-
der circumstances which would permit
his .ubscquenl selJl!.rate trilll, it seems
1. 1t;8 l>Ollil ble Il,B( Jordan and hl8 lawyer
wilul <l 1'."0 {"(IUl'n(rnl. (0 thla aint:<) he
BOu,h! a "",'ern""" '" I<l him""l !.
but Ihe ret"<lrd ,,,,,, I. h,. no lIf(Jrm3th"e e,I.
denee of I.. He weI! hRI''! with
to me highly speculat ive that Jordlln
would hal'e been available as a witness
in Shuford's defense in any meaning-
ful sense. No longer on trial himself,
Jordan would then have been without
the protection of the Court's order pre-
"enting the Government's impeachment
use of his prior criminal record, At that
time his counsel would have been rom-
pelled to advise him that whatever he
said as a witness in Shuford's dtCense
might be used in whole or in l'llrt in
his subsequent trial. If he had any con-
cern that his testimony as a witness
might bolster the Government's case
3K3inst him, as was represented in Shu-
ford's second motion for a severance, the
inhibiting weight of that concern would
be as heavy upon J ordan whether or not
he remained joi ntly on trial with Shuford,
Under nil circum.'ltances, there-
fore, it seems to me that the District
Judge's assurance that Jordan would not
be subject to impeachment by the Gov-
ernment on the hasis of his prior record
if he testified at the joint trial was the
fairest and most Ilrgctica! protection
available, and it was equally so in the
interest of both Shuford snd Jordan. A
severance would have given neither one
more protection on that score and would
not t('lId to allel'iate in any way Jordan's
concern about filling in some gap in the
Gonrnment's rasc aga inst him.
Far from Ilbusing his there-
fore, it to me the District Judge
offered a reasonable solution to the dil-
emna of the defendants. Rather than
depriving the trial of essential fairness,
it seems mark('dly fair, Now we give
assurance that Jordan will wstify in
Shuford's defense since we leave stand-
ing hi s conviction as an aider :ll1d abet..-
tor, conditioned upon Shuford's !;ubse-
fluent conviction, but neither Shuford
nor Jordsn had any rightful claim to
that kind of ad\antage.
t
The District
held (,,,''''11' jn I,OI>l! of cN!Ii.I;QC R
1.1. his ,,10. I"<>lr;a1.
2. >:inee ti,e ,I".'. \"I,n,onu hn"e left JoroaD
",jlh no hOlle of ",'o!danee of hi. ...
(;011 by Shuforll', D<'Quil1nl, he
..
782
FEDERAL REPOR.TER, 2d SERIES
Court's "try prattiC'1l1 re&b!ution of the
matter was more in the interest of jus-
tice and without the taint of basic un-
fairness which, alone. would warrant our
awarding a ncw trial btcaust of a de' ial
of a motion for tI('\'enmce.
The situation in Ed.de. J ,-
ferent from the Olll' which conin
the District Judge here. Echeles had
represented Arrington, a defendant in a
narcotics case who claimed an alibi. Ar-
rington procured tbe falsifieation of a
motel registration card and eUllporling
t.e&Umony of the motel operator and clerk
in aid of the alibi defense. The falsity
of Ihis evidenee was di!ICo\'crcd before
the conclusion of the narcotics cue.
Arrington admitt.ed his flaT-
ticipation in the ['('rjury. but twice in
open (ouri the judge that
Echcles, his lawyer, had had nothing to
do with it.
When Echeles, Arrington and others,
were being tried on the perjury charges,
Arrina-ton's admissions of perjury, made
in the narcotiCIJ trial, were received in
evidence, but his exonerat_
ing Echeles were cxcl.ld d. Unlike this
rase, Arrington the 1,rincil,al who
had full knowledge of the ('xl('nt, if any,
to which Echel,,!! hild I'articir::llf'f\ in
the perjurious .,(heme, Twice in Ihe
narcotics case, whik conf(' 'sing his "wn
participation, he had slakd that Rd',elc!
had nothing to do with it, and thcre was
no reason to suppose he would not rc-
pcat sueh statements if, in a severed
trial, F.cheles did calJ him as a witness
in his d"fense. Moreol/er, the inlroduc.
l,n "'HY i:!< lti"e rQr nrt"'e
II.", 10 I''''''''''' ILe
j>Vint 0( InerimInatloli or l.i_lf
III 1'1"OOeU.
tion of Arrington's admissions and the
exclu!lion of his a:ompanyinr exonera.
lion of Echeles ine\'itably had a preju.
dicial effect on Echeles, the lawrer rei_
'nlin&' Arrinaton when the l.'rjured
timony snd false registration card
re illtroduced.
11 're the was quite rfl r('nl.
, ford stood in no compar:lhl( I "d of
Jordan's testimon)', for J ordan "ould of-
fer no direct contradiction o( LonE", tes-
timony about the instructi on, he had
r("ceived from Shuford. Nor did any
extrajudicial admissions of Jordan com@
into the case which sdl'ersdy arrkted
Shurord's ioteresL
,'\nd, finall)', the Court b.\. :itO)'_
19 the GOH>roment the -ht to us.e
Jordlln's prior criminal f\ 'lrd io his
cross l"Xamination, frced Jordan from all
subslantial reason for not taking the
witness stand in the joint trial which
would not be I)resent in an equsl way
had Shnford's severance motion been
granted. In 'chelu, nothing was done
to relieve Arrinaton', \'\:rr undcr.;t."lnd.
able disinclination to in a joint
trial; prohably nothina of that Mrl
,uld ha\'e betn done,
This <;(' c;mnot be blown up
,.to the lrn()rdinary kind of !oitus.
l,re. 'ntf'd in Echrle . It a fre-
'I' "tty Ilcounwr"d situation routinely
I,,(t to the discret ion of the trial judge.
The manner in which the trial judge ex-
ercised hi, discretion here deserves our
commendation rather than our critk' 'TI.
I would affirm the cOllvicti(lns.
3. Ipitt<! v. 7 SS2
"'-
I
I
f the
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II,
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lIiT'1
, I,
".
Ih,
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."
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the
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,.
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I,

BYRD ,. WAINWRIGHT
1017
('11 4:-' F.:d l0l1
.i11 develop It reeord upon which his dc- S. Crlmlnall.aw C=>G:!2(1)
will rest, with Br,](lIcy's Trilll court is not to be found in cr
can"jctlon to stand or fall in ror for denial of motion (or separate
with his conclusions"- trial on b,is of matters that became
Remanded.
Jame., L. BYRD,
v.
Louie 1.. WAL'IWRIGlJT, Dln:ctor,
F10rids Dh'lslon of
R6pondcnt-Appellanl.
No.
Uoll<'<1 St3.les CJurt oC Appeals,
FIfth Circuit.
June 24, 1970.
Proceeding of slate prisoner's peti-
tion (or writ of habeas corpus. The
United States District Court for the
Southern District of Florida lit Miami, C.
Clyde Atkins. J., grantt!d the writ and ap-
Ileal was taken, The COUI'! of Appeals,
Godbold, Circuit Judge, held that where
petitioner, indicted for rape with ltilt
other defendants, mo\'ed before trial for
severance on ground that he would re-
quire testimony of certain of the rodc-
fendanLs whose )'"iwd
doubts liS to his guilt, lind other defense
counsel and pn)secutor had mlldc known
strong lik"Hhood that at 1"'!sl .'ome of
the cod.fl'ndants w"lPld 1'1, "d lIuiny, de-
nial of _',"'f'rancc d('nicd due process.
Af(ir 'd,
I, Ir,,1.c'i cOII'us e;::,.g2(1)
Fcderal habeas corpus court, in de-
termining whether denial of 8Cverance
conlttitutcd violation of due proc('ss, will
examine matters known to Ihe trial
judge at the time he ru],d on motion to
sever.
2. Crlmhull r,aw lUll
'fotion for separate trial is ad-
dressed to discretion or trial court, re-
viewable for libuse of discretion.
known to hir later or because of events
oceurrh" I II isL
4, Crll ,t. d ,... <::=>622 Cll
Th,'re jJ no duty to se\'er trials
merely ul'lause l,otentially exculpatory
testimony of a codefendant exists; the
defendant-movant must desire to use it.
5, CTlmlnal Law
Movant lIe\'eranee in order
to ha\'e orportunity to dicit codefen-
dant's h'st! .c,y make cl,'ar show_
ing of wlLal '''''fendant would t('stify to
and Ihc.t h -non)' would be
in erft'Ct. f' d,Rules Crim,PrO(', rule 14,
18 U,S.C.A,
8. Criminal Law <S=>528
Use of confeuions of defendant.!
whose Iril,]. t.a\'e been eoncluded, at Bub-
sequ(:nt trial for excull'ator)' purposes,
would not violate lliranda principles,
7. Crlmlnnl C=>H2, I(I)
Under Florida law, declaration
againal penal Interest by the accused is
admissible if Te.;,,!e voluntarily.
8. Crlmhllll r ,.\'
In oPI' ',n to ml"nt'a motion
for IIC\'I'r.Ll1ee-. I;O\-en,r'll'nt may inquire
into Iii" Iii 0<''] of C(,.!l'fcH(lant'" testify-
ing :,nd ('ourt is 1I0t re(luin'd to se\'er
W)".'I'C 1'0 ,ibility of testi-
h ing is mt-rely colorable or there is no
showing that it is anyth;n" more than a
gleam of possibility in the defendant's
eye,
9, 1 r,aw C=>288(Z)
Wh,f( 'itil)ner, indicted for rape
with I ,!dClLdantli, moved bdore
trial for on ground Ihat he
w,qlld n,!' ire testimony of certain of
the ('od.cfc-ndants whose confeasions
rai,.,d stron" dOUbt.! as 10 petitioner's
guilt, and olher, defense Nunsel and
prosecutor luld made known like-
lihood that at least some of the coJe-
fendanls would plead guilty, "hmial of
severance deni.d due
ID, Sto Hou ... ", t:nhfd Slalu, JSIl',S,Ajlp.n.C, 10, 411 .'_!!d 72:1, 7Z8 (1900),

1018
428 I"l)- P.AL R.EPORTER., 2d SERIES
10. Criminal LIlli' ::>621(2)
Sequence in wbieb trl.1, of coin-
dicteea are to be held if in the di retion
of the cou rt.
F.arl Fair<'loth, AUy. Cell d Florida,
Tallahassee, Fla. J.' ,.f ,C':rury. Jr. ,
As.'lt. AUy. Cen., )lil i, F for re-
,pondent-aploellanL
Gerald F. Richman. fla .. fur
petitioner-appellee.
Before GODBOLD, DY :t nd :'oIOR.
CAN. Circuit Judges.
GODBOLD, Circuit Judl:'e:
This is an appeal from an order of the
District Court granting Byrd's petition
tor a writ of habeas corpus. We affirm.
On April 6, 1966 Byrd indided in
t"iorida slate court for '":'i'c, :llong with
lilt other In be moved
for a U. t "" def,'nse
quid VIIT)' (rom thllt of thf ,.y:'-f"fld
anls, that he would require the 1(, :timo
ny of certain of the rO<!"f,,;" and
not at any stage of the tr'.11
or any of them to be wjtnesses in
his bchal, and that he 110t resolve
his dilemma unless the c('defendants
were tried M!parately from and earlier
than he,
The motion wa! d 'nied b 1 rl .. r
entered immediately t, rho '. II in :;:"P'
t('mber. Byrd was N."k' ". ,J, Il ",ith
tilrce of the other t .. , ,d 'SAS
.h'en a life !<Cntenct'. T oJ '," '"bnts
l'k3dcd guilty durin, If" Iri;.!. One de-
fl'ndant ('n ver-
dict. He exhaust('d his state r,
Following an evidentiary h 1" the
fl'derlll Court iranted I on
the ground that the denial of '\W-
nnce was It dolation of dUI I' Iy.
ina- upon United States \', "'-' :,2
F.2d 892 (7th Cir. 19(5) lnd Dc 'j II.
United States, 308 F.2d 1-10 (; h Ci r.
1962).
{J,2J We aamine the "tlera
known to the trial judge :it It.") tLl(! lle
ruled on the p,lotion to sever,
that a moti')fl for a 5el'arak trill I ., .. d-
dressed to the discretion of the tourt.
relliewable for abuse of discretion, Soe.a
\'. State. 215 So.2d 736 (Fla. 1968),
Smith v. United States, 385 F.2d 34 (5th
Cir, 1967), and bearing in mind that in
casel of this nature safeguarding the
of defendants and the interests of
the courta in efficient and expeditioul
of criminal ia
appro."lched on a case by ease
Echcifl, supra , 352 F.2d at 897.
All SC\'en defendanu were charged
with the rna" rape of the !!.8me youn,
woman on II Sinille occlIs;on. The other
six defendanta confessed, some only to
presence at the scene, others to adual
participation in the ra.pt. Five confes.
sions purported to name all persons
present at the eommis.'1lon of the crime;
only one of these fhe named Byrd. An_
other of the five aClirmatively stated
that Byrd was not preS<'nt. The sixth
eonfeasion implicated Byrd all an active
participant in the erime.
w('re filed to .'Illppress the
for failure to give Mirande.
warnings, and on July 26 the court held
a hl'aring on those and other pendin,
motions. The confessions were before
the court, and arguments were made
concerning them by scveral of the coun-
sel for lIarious of the defendants.
Byrd's counsel was present and argued
his pending motion for severance. III'
I,oint('d out that Byrd was the only non
conf('ssing d('fendant, and that his major
defense would be alibi. He noted the
possibility that the other dPiendanu
mi/j'ht not take the stand, and that he
could not require them to testify or e\'('n
call them to the stand as E.
g., DeLuna II. Unitt-d States, supra.
As to the one confession which in
criminated Byrd (that of Parks), Byrd's
CQun5('1 told the court that he had talked
to Parks who had told him there had
been confusion in the tnking of his con-
fession from the f:tel that p0-
lice wcre al:lO inH'sligfitina- a different
incident, nl',3r in tim(', at which some of
the defendant!! had bIlen present) and, in
that Byrd ha.d not been
present at the rape acene, B)rd's eoun-
It
COllrt,
t, So,.
1968},
t4 (lith
hat ill
Ii tho!
!8ts of
litioul
ice iJI
"''',
t 897.
areed
'oun,
other
'ly to

nfes.
"""' ime ;
A, .
.....
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.th'c
Ih.
Inda
h"]d
line
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,.

,
.,
t,

BYRD v. WAINWRIGHT
101; (19,01
1019
scI told the court. that he had heard con
\'Cl'1llltiona amOng the other def('ndants
to the eHect Byrd ",'as not pruent at
the rape. lind that the other defendants
had told him their testimony would be
that Byrd was not with them on the
date or the crime.
The cour t aet the motion to for
further hearing. Subsequently he sup-
prClIS(!d the ail( con f essions. Although
the order of suppression is not in the
record, colloquy with counsel, which is in
the reeord, indicates that it was based
on Jack of full compliance with !lfiranda.
On Sept('mber 7 the court held the
furthe r hearing on the motions of Byrd
(and others) for scverance. CounllCl for
Byrd, and the prose<:utor, pointcd out
the likelihood that JIOme of the codefend
ants might plead guilly. Counsel fOr de-
fendant Chisholm (who pleaded auilty nt
trial) reported he was considering the
of a guilty plea. All the mo-
tions to sever were denied.
(3] In the int('rest of full under.
.'Itanding we note e"cnts which took
I'I"ce at the trial. In .<0 doing, we rcc-
ugnizc that we are the
judge's of tfiscl'clion at the
pre-trial stage wh('n he d(-nicd the mo-
tion, and that he is nol to be found in
error for that denial on the L:lsis of
matters that became known to him later
or e\'ents octurrinl[ at the trial.
l
On
conclusion of the swte's case, a verdict
of acquittal was direeted as to defendant
Byrd wItS the only defendant
who took the -"land. lie dlnied being
present at the seene. After his testimo.
ny all dt(I.'IIdants l"Cl'ted. Two more de-
fenrlnnts, Davis and
U"'ir I,ll as to guilty. The four
remaininll' defendants, including Byrd,
weT(! found guilty.
This tase is similar to Eehrle" ,upra,
relit'd on by the court helow. There, in
the coune of a criminal trial, defendant
Arrington admitted on the stand that he
I. Thil II nOI 10 <l'1 mSf not be
error ror 'leninl or /I mOl ion mlldc or
... "'1 It Ir'l l, or, In .... rl'ldfntlr u.
Ueme cue of prfjudle.-, ror (Qll" ... or Ihe
trial j"dre 011 hi, o,,u ,nOI(oa to 'O<>Pf1\
had engaged in a scheme to present fal.
sified documenl.ll and perjured testimony
in hi. defense. In his testimony, and in
subsequent statements in open court, he
excul],ated Echeles. his attorney, of par-
ticipation. Arrington WRS indicted for
perjury, and Arrinl[ton lind Echele. (and
others) for procuring the perjury, con-
,piracy, and like orrensea.
Echeles laced II prospoct, which Byrd
did not face. of a trial in which Ar r ing.
ton's incriminating admissions could be
introduced into evidence all'ainst Arring-
ton snd would in some deiT(!e prejudice
Echell!s. But his 5erond problem waa
the 'arne liS inability to get into
elidcnce slRtemcnlB tcndinll' to exculpate
him made by his cod((endli nt. The 7th
Circuit held that Ihe trial court erred in
denying a se\erance, sayinl[ :
At this juncture, we hold merely that,
havinl[ knowledjfe of Arrington's
record testimony protesting Ethelea'
innocence, snd considering the ob\'ioul
imporhlnte of such testimony to
Echelell, it was error lo deny the mo-
tion for a sellarate trial. It should
have bN-n cl('sr .at the outset that.
filii' Irial for Ech{'lcs pro
, .. iding him the HUll of Kt:ttinl[
the Arl"ington \,I'{ore the
jury, re.ardk"5S of how we miiht re-
gat'd the credibility of that witness or
the weight of his testimony. (Em-
in orill'inlll.)
352 F.2d at 898.
When II trial court is presented with a
motion to sever based on the desire to
offer exculpatory testimony of a code-
fendant, there are 8('\eral stell of in-
quiry, 80mdimes Ol"erbl'l'ing, which the
cou rt wcll may pursue for guidance in
dewrmining what it IIhould do:
(1) Docs the mO"ant intend or de-
sire to hal'e the cod(!!endant testify?
How must his intent be made known to
the court, and to what ('x1ent must the
court be IlIItisfiC'd that it is bona fide?
the que.tlno "f " . .,,, .-e -..b,rf,
d,"ifll. Ihf d .. ,""t"" ...... !'ft'e ."I(id."t
If cha"Ct<l. In Ihi, the motlOD
... n. not
1020
.t:!8 FEDERAL REPORTER. 2d SERIES
(2) Will the projcr1d h'stimon), of
the codefendant be in na-
lure, and how significant the ef-
fect be! lIow does (h(' .!('fendant show
the nature of the projt'Ct(-d (('sHmon),
nnd its significance?! he in some.
way validate the prol'osed
as to give it some stamp of vcrily.
(3) To what extent, and in what
manner , must it be shown that if sever-
ance is granted there is likelihood that
the c:ooefendanl will testi Cy?
(4) What are the demands of effec-
th'c judidal administration and economy
of judicial effort? Rdated to this i,
the matter of timelino.!j in raising the
question of se,'crance.
1
(5) If a joint trial is held, how great
ill the probability that a codefendant will
plead guilty at or immediately before
trial and thereby prejudice the defend-
ant, either by cross-defendant prejudice
or by surprise as it relates to trial
preparation?
[4] There is no dutr to.;C\'er merely
beeause potentiall)' (-)('ull'atory h'sUmo-
ny of a codefendant exists. The
ant-movant must to use it.
Brown \'. United States, 126 U.S-Apr.D.
C. 134, 375 F,2d 310, 317, eert. drllied,
388 U.S. 915. 87 S.Ct. 2133, 18
1359 (1967). The desire of was
plllin and was asserted earllesUy and
by his counsel. with full ex-
rlorllfion of reasons. We rcjeet the un-
d<!rl)ing implication or the slate that as
/I. mlltler of Illw there must be eilher
formal testimony of defcnse counsel un-
dcr 03th. or an affidavit from him.
ing his intent to use the codeCcndant'1
2. On the m ... of 1'I'OM:<lurH for
t..rore the Rt Ibt
II", IIal",.., of the ('(Iol<>f.lI,bllt'.
t .. tln",ny. in Ibe (J.,,,l nole 14
ro .... ,.id ... IbM Iht K>Urt fUr n.juilt the
lonr" ....... t 10 ddi't'" ("r N .. CO'. I".
't.o><;l'o" nn) $Ialt",e"to or conr ... I,.""
"Illch Ibt , .. n . nmu,linttlld. tn fnl!"Odllce
In
3. In KGiod ' . t:lliled SlaltA, 371 F.ZJ 9S3
(lOtb Cir. 1001) . the moTio" "'" m.de It
IIIIJl rlftl. and Ibe jlrilldl'tl ,round fo r
denl. 1 " ... failure 10 tilDcl1 1''''''111
,IY. In this instance the tran.
l'air or the July and September hear_
inr. n I nol mcn:ly ariument but u.
,Iogue and exchange bet .....
lit, r.d the court on man)'
of thc t' in an of appar.
tnt t, ,nd tr ust. It is clear that
the {ourt treated as trustworthy the
stateml'nls of the numerous counsl'l, as
officers of the cou rt.'
We turn to the second area of inquiry,
the cM'ulpatory nature, and the signifi.
cance. of the codl'fendant's
lind the or those Cactors. This
might \" ro 'bled in terms of the cxlo.tlt
or prejudice to the defend .. nt
if the deCel,<lant is tried without the op-
portunity to elici t the C'Odefendant's
testimony.'
(5] It must be shown that the
mony .... )uld be ClIculpalory in effecl
Smit h \ .. Vnited States, fupra, 385 F.2d
at 88.
.p. 451 (S.D.N.Y. 1968).
a ,ya9 made in this case. The
(."'1[, yd"l"s 1;,'lorc the t'ourt ;t1iie
July r. ing and their conknts dis-
CII' 0"11. \, dll. we reject onrly-forl'ud
It is not nC('e%ary, as the
1"\e illlpli('s. that the potential tesUmo-
II)' of the codefendant bear the imprima-
tur of hllvinll" been given previously in a
judicial proceeding under oath. In
United v. GkaJ;On. 259
282 1966). II,'S
grontrd ' ) 1 If "nUS 11 .6 re d' 1 !!IS Sa
I",n "))I"I;,,,'pl Ipd
d .. [.nd'nt' ,I n ,]A""oi"nthildiithe
t,,", 11,\' C .... 'I.ur. l 'nlltd StMe. ,'.
t."'ILt<. Zl"',V l'.!'="lIjl. Z7 (8.0S.1'.I9(;1)
.1 ",,11";"1 "''',''' of the of
.. r I .,jlh ILe "'0)11<011 !.oc tore tnn\.
... Y, .n, Z.:.9 !".S'I'II.
2..;2 II All tumple of
1001l'W,,, II", ""'liI.n. ,"d II", .1'G.'ill&"' of
uII.I.rl)IIII rc",IGra, by .fflda,ill frortl
loolh ' .....
$. til f".I"MlI ')-.Itm. nule H }'tol.R.
erlon.I' . la Ut.'" .1) In If""" lif
10 tht d,"
-
the trl,,_
he..r.
'n! but t':{.
1! 1;(.!\\'l'I:'lI
ny IUlpect,
of appa,.
dt'1lr that
(l rlhy the
ounsel,
'f inqUiry,
Ie srani fi.

Irs. Thi,
he ex-tfnt
Jefl'nd,nt
It the opo
fendant',
the teat!.
n effect.
SSS F.2d
! a e!l'ar
1t would
'aulman,
). 8Ufh
it. The
-t at the
,Ia dia-
(ormal
as the

nprima_
in ,
h. In
F'.Supp.
'I' waa
Ite be.
lovin",
in the
..
.7)
"f
".
, .f
f

R.
BYRD 11'. WAINWRIGHT
"" !!.'i Y Ion U.-;$I
('fa he had
1021
"' .... to introduce the c:on-
In Echtll'$ the c( urt Ar-
rjngb.n's tn be 01 "obvious
mportllnc:e." !'c it in the inslant
(!lSI.'. Perhaps t: critical faet
known to the II .1" when acting on
motion .... of
the confessions, \t .h raised strong
doubts liS to ,llilt. One de-
fendant exculpated him. One (Parks)
n3ml'd him as II particijlant, but counsel
rt'prelt'nted that Parka would testify
Ihllt Byrd was ihown ::IS present through
error. Four def,:,' nnmed vllrlous
persons IS tx,inll' i' 'll, but none in-
cluded Byrd. Tr.e '(' 'lq,es Ihat "no
one has II ,,1 right to be tried
Jast." Thai is not Thl' wobl('m. Here
the one penon who h .. d a unique inter-
est in being u-ied separately and later
was Byrd. Also, this was a shocking
(rime of violence, committed in the
nighttime, with at the mOllt two eye wit-
nl'SSCS to attempt to j,I"ntity :,evcn Ne-
gro youths. (As it t'lrm.Q Otlt, idcntifi-
cation was by une \I tness, the \-ictim'a
dale-the young 111n could id,'ntify
no one.)
We do not consider the last sentence
of the above-quoted Innguage from
Echfll'8 to establish a principle that the
judie presented with a motion to sever
may not make inquiry into er('rlibility or
weight of the pot('nlial tl'stimony of the
codefendant but to only r .. fer 10 Ihe i1'9-
timony of Arrington under the circum-
tances of that ('ase. Credibility i8 for
the jury, I,ut the judjj'e is not required
to on [oal('nt (abr'cations. It the
hstimony is punly cumulat ive, or of
'ligibJe weight or i,robath'e \'alue, the
C(lurt is not requiN'd to sever. The re-
quiN'ment is not a trial which guaran-
tees the defendant every item of evi-
dence he would like to oHt:r bu t one
which meets constiluliCi II of
due procee.
[6,7] In a<lditi('n to the oth-
er defend:mts unavai!:.!"l". the joint trial
affected Byrd adversely in another re-
spect. So as he tried with oth.
thty h d inn. since they ..... ere
taken in dobtit.n .f .lIimnda. and were
af ,t Ihlm. Cf. Bruton
\'. Uflih'd St:llv. U.S. 123.88 S.Ct.
1620, 20 L_Ed.2d 1i6 (1968). But at a
separate Irial he would have lit least a
pouibilily (If gdting the confcssions
i"lo e,-idence and enjoying
their eXtull" l(or), e!fed e;'en though the
codefendants claimed the privilege
against ,,Ifincdmination. The confes-
sions, lIinee not being used to incriminate
anyone on trial, would not violate Mir-
anda. The rh'1lrd before U9 does not
show thst thl' ,tatements were made
involunt"ril; .,llhoui!h pr('('eded by an
I' ':.fa warning. John-
80n ;', ., .. : 384 U.S. 719, 86
S.Ct. lij,!. '6 LEd.2d 882 \1966). A
d(.dan:j,. penll l interest by
the accllwd is IIdmiuible in Florida if
made voluntarily. Williams v. State,
74 So.2d 797 ( Fla. 19ti4). As to the
]' .il.;.\(.'
to the
ibility, as an exception
"y rule, of a statement
all p ,I II t -n-_t by one not a psr-
ty. c. hI! 'Itkr exculpatory of the
tI uerl. hen th. t. timony of the de-
darant i, w.,. il::blr, S('e V Wi"more on
E\idence. n 1456-77 I'p. 259-290. The
parties h:I\'& not briefed the J.'lorida law
on this l'(lint. and it is not necessary
the matter further than
to ,t:fer '0 R r ibility of admissibility.
[8J A lhlrd hluiry may be into the
likelihood timl the codtf(ndant will be
willinr 10 it the defcndant is
tri ed Echrll!a said this:
With rt'aard to the question of
wh, th." or II t .\rrinllton would claim
thl' if he were called as a
wit durjn/i a triat of Echeles alone
I II nl held mbsequent to his own
-Wit CJln only say that such Question
was not prop(:rly the Govl!rnmcnt's to
interpose. S, l'llion about what
Arrinaton n ,t a later Echeles
trial un lou' 'lId be It malter of
&Orne I In
not be '
thal AI
r)
.",. !c''!, but he should
.! of the possibility
auld testify in his
:tuse that el-enlua1ity
1022
428 FEDERAL REPORTER.. 2d SI:RIES
was not II certainty. [Citations omit-
ted.] :'tloreonr. it would in fact seem
more likt:ly than not that Arrington
would h;ive uAified for Ethelc! (or
tht> rr:lSon Ihlit three times previously,
in o ..:n court, .\rrington had ,'olun-
tarily f' ('lipII1.:J Echelcs, apparently
contr .. r., tl) his own j)(!nal interest.
352 F.2d at 898. We do not agree thnt
iikelih"od is an inquiry that the govern-
.,:..r not even make.
".
Kahn, .2d 824, 84 1 (7th CiT. 1967).
A.ccord, Tillman v. United States, 406
F.2d !I"O. 936 (5th eif. ID69) In Ihis
circuit, . have referred to the codd ... n-
d:1I t' . ,; "mnrc likely to thtity were
be (the '\ ,nt] tried
SmLh '", t' ,ited Slaws, Bllpra, 31!5 1'.2d
at ',g, n !':dkd Statu \', 259
F.;- p. 2, 234 (S.D.N.Y. I!lG6) the
(OUI cc.nclusion:
It is en ,;;:h to say that Karp [the
movant] has .,huwn persuashe ground
for the claim that she needs Pitkin's
[the C<ll'lefendant's] evidence; that
the n('ed must nlmost certainly go un-
I3tisfied in a joint trial; nnd that
th('re is ireater likeli-
hood of nl:r using him if they are
tried
[9,10J Byrd asked not only a sepa-
rate but a laler trial, and, as pointed out
6. ,,1.0 l .. : ,'. Kftlln, P_,!!d
:!.W. '!!ij.1 ('!!,I Cic.
'Tb!. l'OSIibillly [of u('Ulp"IOC1 It (j.
'IIY b.,' 110" rod,tHlda"l at a .,-.paclile
Irlal). r by ItMlt, did not ",aile
lot I or a molloll foc 1oP.tr.II'ee
" .. ("i"lio"-,, omitltd) , It It .. t
III 11 1 " of ',nytblne In the record
in. ',., at Ille roddtn,lalll ,,'ould
,hu eJ "I'IIIOr1 t.1<lt'tlee.'
7. S,,. l"lIlkd ... 't. Sal'ldtl"l, :!IJ6
Sopp. (115 lW.D.Loo.l90T), lu ... hkb tbe
pre,-iousl}". he was the one defendant
with a unique [nt('test in being tried la.
ter than the othertl. This is not II case
like Gorin \'. United States. 313 F,2d 641
(lal Cir. 1963) in which the court may
indulge in an usumption that a codefen.
dant would be no more willing to waive
his I,ri\ill'ge against self-incrimination
when calltt! as a wilnell! in a separate
trilll than he would be willing to insist
UI,on hill privilt'ge as a dl'fendant not to
takc Ille stand. The lIequence in which
trials would be h('ld is in the discretion
of the C<lurt.
1
Other defense counsel,
and the prosC(utor, had made known the
atrong likelihood that Ilt least some oC
the codefendants would plead guilty.'
Bearlni on the likelihood issue is the
que3tion wh('th('r codefendants pleading
guilty would 1000e their riiht to claim the
privileie again!!t !lelf-incrimination at
laler trial of the deflmdant. See Na
met \'. United States, 373 U.S. 179,83
S.Ct. 1151, 10 L.Ed.2d 278 (1963);
Coile v. United States, 100 F.2d 806 (5th
Cir. 1939); Annot. 9 A.L.R.3d 990
{19G6). In this instance the question is
CO"II,licatcd by the other incident, known
to the judlle. at whith some of the de-
fl:nd"nu RI'I"';,red to huve been present,
nnd for which some of them had been
charie(!, and the possibility that one tes-
tifying ROout the rape might tend to in-
criminate himself as to the other inci-
dent. These are (Iuestions we need not
answer. The inquiry is not 1111 to cer-
tainty whether the codefendants will or
will not testify but the likelihood.
Our disposition of the case makes it
un(]eceuary (or us to consider whetJil! r
the court, in its continuing duty at an
stages of the trial 10 grant a severance
('to'", "c,nt"J (D t ... o
n" ."d ... t.,bll.b,d .11 of Iril1 0011-
_tin, of r"g, 5<I' .. lrial .. uprossir
.. " Inc (10. ri,ht ID cilan,e Rqu."..e
.nd 10 _ ... Ii.bte If apl>l'Or,riait.
I. In a .".,.e, ruch .. (lot onto "'''.re
the uc"lpMor), I' .thuolIY I. III rucb form
It m'l 1 ... \".!q'>'1I,},,,111 aJn,'"ible
.. '" n<"<'l,t;"1I to the rule, iu-
QIII., \nlo thAI the
"'iIl 1 ... lif) m"l 1><.__ ... .temle.
e one
in bein, Iried la.
his II not a case
lei, :ns F2d 1i41
eh the Iurt
n that a toddc ...
willinir to waht
sel f -incrlminati"n
in a &eparate
willi ng to insi , t
defendant not to
equcnce in which
in the discrdion
d,Cen'4!
made known tbe
at kalt some of
ld 1.lead irUilty.'
hood iuue i. tht
enrlan18 pleadi nr
right to t'laim the
J(riminali on Rt a
ndant. Set' 1\.
873 U.s. 179, S!
!d 278 (1963);
00 F.2d 806 (5th
9 A .I . R.3d 99<1
c th(> question i_
incident, knOll.n
,.me or tht ,k-
we been preK:ct.
them had n
lily that one trs-
night tend to In
, the ,!hrr I--t,
.,c ". .d Jt
s , .. 1 41t., f
{.rI H.,h ..... iII
(liloood.
c I\1llke. .I
o"sitler whdf
ling dutl lit
a nt a kH"rI
'0 t ... o d.I.- .
.: ... or 'dol .....
Itl ,1 .. 'll,n_1
" lb ..... .. -

,,[ Dl't . ",t ....
in ."d, (",.
ttt .d,,--\Wo
...,.1 ",,-,
lb.' pd ..
',IIlIe.
SULLIVAN"\". SeA1'ATI
CU" ... . lre:s
1023
if prejudice 1l1'IJears, Schaffer v. United
Stale4, S62 U.S. 511. 80 S.Ct. 945 4 L.
Erl.2d 921 ( 1960), WIl$ required to de-
clare a mistrial when a directed ,erdicl
wall entered as to Marshall, or later.
when ruil ty pl ea. were entered by Davi s
lind Chisholm.
Affirmed.
"
WllUam G. SULLlVAN, Petition"",
AppcUIUlt.

p"lmer C. SCAFATI, Ri'.lopnr (I,'nt.
Allpdlee.
No. '563_
United Slales Court of Appeals.
Flr!lt CIrcuit.
Heard June 4, 1970.
Detidcd June 30, 1970.
>rpus proceeding by stale
prisoner. The C'nited States Di st rict
Court for the District of MalIchu8etts,
Fnr.ncis J. W. Ford, J .. rl,nil.'d the writ
and petitioner apJlC'nled. The Court of
APf>esls, Coffin. Circuit Judj.'e, held,
inte,. alia, that whC're lanf"UlIl!"e of in-
structi on did not impo." burdC'n of proof
on dc!endant, cllutionllry
that alibi evidence WIIS 10 be subjected
to rigid scrutiny was not erroneous
though "rigid scrutiny" language
WIIS <lIt.>;,]comentcd by reference to fre-
qurney wit h whit' h alibi eddence was
atlrndtod by contrivance, subornation
lind prrjury.
Affirmed.
I . JlabC'as Corpus ;ot5.3(S)
Arguments which were not made to
state cou rt but which were merely sup
portive of claims put in issue did not
new iSllues precluding considera
tion by federal habeas Iurt.
2. Crimlnlll L:lw ::>7"75(3)
IDnl-'UDge of did
n<.lt ,.IIlpo!'e burden of proof on dlfendant.
cl,alio,ary instructi"n Ih:.t alibi ('vidence
was to be lubJected to ril'!"id crutin), was
/10: trron('Ous even ,. i!id scruti
ny' lang-u/lft> was FUI'I'! ld by ref-
t'!"ence to frequen,y \\ I . hich alibi
was attrnrlcd ',y ,r,trivllnce,
'Ub.lrnatiOn and I' rjury
S. Criminal J.aw ::>7"78UU
Instruction to effect thllt alibi "at-
tempts to pro,e aUirmativ!'ly" was not
/I cloaked way or T' " l'"Cution's
burden of proof to defendant.
I. Sill' Jlat!< ,s ::IUO)
Pl.trial stipuilltion in Joint trial
that Common.Ie .. lth w"'lld .t introduce
or ad""',i" .. < ,f !'ither de-
fcudant and \t',men!. in
response to motion for cOl'i(, (If ,tate
menls, that he had no statement of de-
fendant did not preclude admission of
polit'e offkers' telltimOny as to observa
tions of defendant trying to avoid scruti
ny by and a1\ to o,erhearing
remarks made by defendant.
li_ IndIctment and Information C:=OSS
Grand jury's failure to pre-
cise for its belief thM pos-
rl'quisite <late of mh' d was not
error.
o. (Thn;lIl1l I ..... w C '1 .. 7(2)
Courts in.<lrudion tI,at jury may not
draw inference from failure of defendant.
ho did not object to instruction, to testl
fy was not erroneous.
,. \\ltne5SfS c:=o266
Ruli ngs foreclosing ('rO' amina-
tion oC police officer who had not been
shown to have testified I,,fore 1frand jury
to whether his trial testimony had been
!liven to such jury. snd preventing inter-
rogation of homicide victim' "'lu);hter
rrom hospital report did not c. ;titute
unt'onstitutional denial of ero nina-
tion.
-
Da,id Berman. Iford, . with
whom John r'. Victor J.
Garo, Arthur E. Robbins, and Zafnparelli
lJI!' Li ft Auurance
451 F.2d
)Ueed with special
ge Thei. in tllking
'y on the iuue of
f hia heut condi .
I'd the only direct
ion is that of Dr.
he did not give
he t ' nh'ersity of
r dillgMSis but on
f\('II11ms specificll l
Ive hl'll rt t rouble.
testi fied that
dklltion f or hi,
\"('l"lIity of
, other hOll Jlital or
1y hear t medica.
'TIll (urther tesU
rtcport confirms,
],l"n lind without
'Ih Kellams
.kMr,lan who MId
re that Kellams
11th at the time,
sited that Kel.
,im on vacation
e mountains at
"dlams neither
ICed any heart
fact that Wood.
on Kel
is heart eondi.
upon it-we
eorr(!CUy took
r'l'ruled Wood.
.ory judgment
'r. lIee .
the effort of
'nt of the Jl(lliey
',te, It aenS('d
policy and in
h rged Kellama
r premium by
of o\'er
,rl:l-d this ad
for the
"nt, it can
r:.ct.
UNITED STATES '1', MAI'.TINEZ
15
STATE....; of Ar 'I'a,
Pla] nli ffAI'P !'f>.
,.
Justo Fernan lIlAnTl:-;I:Z. (01 :. 1 .
DefendantsApl,'II"nl ...
=",0 2-31113.
United S1ates Com1 "r "\1' -3111,
Fifth Cin'uit,
Oct. 12, 1973.
Ddendants were com' icted before
the Uni ted Statell District Court for t he
Soutlle!"n District of Florida. William O.
J., of to imjlOrt
marijuana, one of !>uch Ihn>e tldl'ndnnts
was also convicted of II': "II imj>od;ltion.
p<>S$<:ssion with intenl tD distrih\lte IHld
with distribution of ms.djuana lind an
vlher one of slIch dlr<cndants was con
I idl>d of llc\lIal importation, POlIlleuion
,,'ilh intent to dist r ibute and with as
ulling a fE'.leral officer, and they ap.
l'I.'.,ll-d. The Court of Appell ls, Simpson,
Circuit Judge, held that r ejection of
lilty pl!'a of one of defendants on
l!"h1und that postarrez;t statement might
have been coerced was not for "good
I'tllson" lind was l'ITor, thllt
to grant sev('ranc/' tnlllloth('r de
fl:ndant was prejudicial error and that
l'I'id('nee that third def, nd"llt hnd
knowledge of exist, ".(' of CI>r <pirH!.')'
not 8ufficitnt tQ 1111,' out a Ibmi!,
cUlle.
Vacutl'll unu in Illlrt t!.nd
j'(m:H1ded with reversed for
III\' Idal in pllrt: and rl:\'ers<'d wit h
.1i1,'dions 10 dismiss in part.
I. ('rlmlm'l.l Law
Jury (:;>29(4)
Entry of plea of guilty docs not
waive rigbt to trial by jury nnd right to
n>nrnmt one's accusers in o]X"n court.
2. Crlminal Law o273(21
.\ccul<ed ht!.s 110 IIbsolute I'illht to
I, \(: his guilty pIE-a aCl't'pt('d b)' court.
F,"I.R'lles Cdm.Proc. rule 11, 18 U.s.C,
A.
!. Crlrtlin:,1 Lnw =t:3(t )
judgE' must refuse to acrcpt
jl'llilty pIt-a wheN' requirements of rulr
III.'ttinll' forth I'rerE'quisites for acct-pt
fmr or lilty pl,'a cannot be mct. Fed.
nul. s m.Proc. rule 11. 18 U.S.C.A,
4. C'rJn L I,' C==>2'3(4 )
1{'11 to accept or rej(!Ct guilty
plrll. t, r, lin'ment-s of r ules settini!'
forth pr lui"ites fOl' acceptance of
pIca hll\'1.' .'11 satisfi ed, is committed to
sound judicial discretion of trial j udge
Fed.Rul( rule 11, 18 U.s.r
A.
;;, ('r' IW ;>213( H
I' of nllc sl,tting forth pn
I" 1'" (ur n'ptance of guilty pl.-a
<lfe to ,I.' trilll judge to dctE"rmi
v.1ll'lhe a plea is I'oluntary lind t
e"Plodile di. POlIition of postcondction :.1
tacks on judgments based on guilty plen!-
by providing complete r eeord of buis on
which vII-a was acrepted. Fed.Ruh
Crim.Proc. rule 11, 18 U,S.C. A.
6. CrIminal La""
Rule tling forth for
acceptance of guilty plea was not de-
to tiL :"{)I .. rage accE'plance of
pi, ,m ), _'lse trial judge
e 0 ,h'e ol'er of
II 11 ,11->1<"'111 ;111;1('11. F<il.
Rtlli I p" 'nIl' II, 18 U.S,CA.
". , ';-3.1 (1 )
It lot crron('{)us to find th:,t
I. 'lilly 1'1,,11 is knowingly lind \'olunlarily
entered eH'n in fnce or unwill
or il'abilily to 110m it guilt whl'I'1,>
eompE'lling ;11'(, for en
tering pl,a. lvn/!: as there leX
ists sU)'!;IIItilll .'\'it!"nce of aecusl'd'l
)' lilt. F' ,no:!' ('rim.PI'OC, r ule 11, 113

II. CrllIIl !I J..aw C:>2'3.1(l)
\'Oli lltarinE"SS I'Nlllirelllrllt ns pre
l"(.'quisite for acceptance of guilty plu
appliel to )",th state and fl.'deral J.rose
l'ution, Fed.R:llu ('rim.Proc, rule 11,
18 l'$.C.A.
9. 0illlllll1 l..a\\' C;;2i3.l U)
Requirements for volunlarine.s of
guilty pl'lI in fl'utfal proceedings canno'.
16 486 FEDERAL REPORTER, 2d SERIES
be less strict than (ederal habeas COrpUI
standard_ I't,Jie-d to atate prosecutions.
rule 11, 18 U.S.C.
A.
10. Crimi, 'II, ,I,'
"n guilty plt'a is vol.
untarily f'ntl'f<'d is dct('rmined, not by
whether ('xternal forces induc.
ing a d,f,;,,, tnt to plead guilty, but in.
stead h>' a ,1dcrmination ns to whether
such rorcco ilre constitutionally accepta.
ble. F('d.Rules Crim.Proc. rule 11, 18
U.S.C.A.
1I. Crim1L II T.., ... :: !73(t)
If :'Jd)!e ill c(,fl\'in('cd by record
berore hili' :h;,t a guilty pIca is not
coerced. ;, f',rlher shOwing that plea is
knowingly and that there uists
sufficient e\'idence of will satisfy
requiremr nts of rule forth pre-
for ::cctptance of guilty plea.
Fl>d,R\ ,l m.P, rule 11, 18 U.S.C.
A.
12. (',:;/l' It 213.1( 1),1166(3)
1,\",., r rI fl'Cdy admiltt'd his
guilt ,r h A i;"'ltinl marijuanA
and 'IT. r. f. Id ample t'vidt'nce, in.
of accused's postarrest state.
ment, to con\'ict rejection or ac.
cused's ,ll"uilty plea on ground that atate.
ment han' bem cOC'reed ..... not
for "good rt'AH'n" find re"t'rsible cr.
ror. Fed.Rulel! Crim.Proc. rule 11, 18
U.S.C.A.; Drug Abuse
Pre"", Iliol ;, no C?ltrol Act of 1970,
1002 r !U' A, 952(a) ,
S '.\'01(1. and Phruu
r, uJ ,) and
... "
13, (,,' .lnal Lal? '2( 1)
Granting n! 'n for ae\'t'rance is
matter ..... ith,n 'lion of trial judge.
Fed.Ru]t's C, m Proc. rule 14, 18
A.
II. ('ru . t La... 1163(2)
When '" <l'I; 'J,. !!1'nJ,<'C'Ii to
grant motion U he .-hould,rs bur-
den or moJ.:inl ling that preju.
dice rUl.Ilting ,1,'nill l or a fair
trial flowed I lrh re(uSlt I. Fe-d.
Rules Crim,P' de 14, 18 U.S.C.A.
@Ollllln:lIULI':o622(3),llG6(6)
In criminal prose(ulion in which
crucial question as to certain defendant
wal! whether he had know1t'dge of plan
to import mllrijuana or that package
tak!'n by him from vessel and placed on
dock conillint'd marijuana, refusal to
grant se\'t'rance wht'reupon deft'ndant
Assertedl), would hlll'e been able to ob.
tain exculpatol")' testimony of codefend.
Ant, who was only person, other than de.
ft'ndant. to rebut government's circum-
stantial evidence of defendant's knowl-
edge of such acts was prejudicial error,
Fed.Rllles C'rim.Proc. rule 14, 18 U.S.C.
A.: 18 U.S.C.A. 2, 371; Comprehm.
Drug Abuse Prel'enlion And Control
Acto( 1970, 401(a), (a)(1), lOO2(pl.
21 U,S.C.A. n 84.1(a). (a)(1), 952(a),
16. CrlmlrmJ Law ::>SS9
Coun$f:l for accused was entitled
prior to retrial on charges of conspiracy
to import, importation of, possession
with intent to distribute and distribu.
tion or marijuana, to present el'idence in
rl'gard to ..... hether cusloms agents' id('n.
tifiration of accused was made AI fruit
of postarrest statement Ly
sccused or had an independent basil. 18
U.S.C,A. 2, 871;
Drug Abuse Pre\'ention and Control .\lt
or 1970, 401(a), (a)(I), 1002(a), 21
U.S.C,A. 841 (a), (a) (l), 952(a).
17. ('rlmlnnl Law ::>7.33.2(1, I)
In considt'ring motion for judgment
of acquittAl, t'\'idence must be considered
in light ral'orllble to government.
logl'tht'l' with all inferences which may
re.1301111,ly he drawn rrom the fACts; dt'-
t""lining i:''luiry being whether there
il 'Ullst' '1lial e\"idence on which jury
might na. '>nably base finding that ac.
cuscd is guilty heyond reasonable doubt.
18. Criminal Law ::>1l44.13(3), 1159,6
Court of function on appeal
is to eonsidtr e\"idence in light most fa.
\'orAble to gowrnmt-nt And to decide, in
eddence cases, whether
reasonahle minds could conclude that fl'.
idence was with
of accused's innocence.
1166(6)
ution in v.hkh
certain dl'fcnrlant
nowledel' of rlan
or that rachel'
Bnd rln(,-d on
uana, refu.at to
('upon defendant
been able to ob-
lony of codef('nd
on, othfr than dc-
'fllml'nt's ('[rcum-
{('nelnnt'. knowl-
p.'cjudiclal error.
IIII' 14, 18 U.S.C.
371; Comprehcn-
ntion and Control
(&)(1), 1002(.),
(a)0),962(.).
I'd wu entitled
res of
I of,
te lind
e&l'nt ('"idl'ncl' in
tnt Jd('n-
IS made &II frui t
It statement by
-ndent basia. 18
Comprehenai\'e
lind Control Ad
:J), 1002(&), 21
1),952(.).
(I, 4)
m for judgment
8t 1.(' ('(,nsid/'I'cd
to R'olcrnment,
lees which may
. Ihe de-
lht're
,n which jury
',HlinK thnt ae-
11,1 rloubt.
S(S), 1150.11
ction on api"Cal
light most Ca-
d to decide, in
ases, whether
'lude that tV-
'Ih hypolheail
UNITED f. !.!AP.TINEZ
17
lB. conspil"ll('Y
)Iere assOCIation, without more,
ducs not 9uffice to demonstrate know]
,.dge of conspiracy.
COl1!>piracy <::=>t8. 1( 4)
Evidence that accused had knowl.
,.oge of existence of conspirac?' .to im
port marijuana was not to
make out II submillsible case on such
h;lrge. 18 U.s.C.A. 871.
Jack V. Eskenazi, Federal Public De-
l,'nder, courtappointed. T. Sakowih.
A,\;sL Federal Public Defender. Miami.
Fla., for Martinez and Huila.
)Irut P. Engel, Da\'id B. Javils,
ami, Fla . for Soris.
Rt,Lt'rl W. RUlIt, U. S. \tty .. J, Danid
Bruce E. Wagner. "sst. U. S,
. )Iiami. Fla. for 1,laintiHawcllee.
fltfore BELL, GOLDBERG and
Circuit Judgea.
smpSON, Circuit Judge:
We re\'iew on this appeal the judi'
m(-nts of conviction lind aentenee follow.
ing jury vudicts of guilty of Justo Fer
n:m 'I,utin('z, Oswllldo Huilll, and Lor-
..,n:tO PadillaSoris, The charges arose
from the importation into the United
St."ltcs of approximately Z8 pounds of
marijuana. We \'acate or the
ror1\'ictions of all three I!Jlpdlanb. <lnd
nmand for further proc. ',ling); in the
di<trict COllrt.
The Fad.,
On .\ugust 16, 1972, agents of the
'r ;Ieo Sen'ice began
l]"\dlbnce of the normal docking berth
"II Ihe RiI'er of the M/V MON.
TI-:GO. which was due to arril'e that
"Hning from Turbo, Colombia. From
\';,nt:lg"e points approximately 100 yards
cay f!"Om the dock the agents obsrn'ed
II". dOC'k at approximatdy
I 7'1t.I''''l;n'III>.l ..... tlhnltt""",,
.pnt t.-.ok (nur I,a. k.ICN r"'m
II ';ur, ;"'I,t;'''I;"O I"';n, Iha, rl ... or;J'
I lnJ('. l ... ,dl.h "" mor<:' IL,o _ "-rd
,..
<I ',"
!':)Q P)1. that evening. The
I n e '.ltinu<'d into the early morning
hours llf Augll.';\ 17th. Shortly alter
1:00 A.:'II. the all'cnlS binoculars
o'lal:'ned J;om('one It':\\'e the l"hip with a
l.:ld;aie under lIrm. This person,
id ... :.lifh,d 1:.ler a, the
I: nl lIuila. walked 11101 ... ";.-1,, the ship to-
w/ll.,l Ihe I,ow, wh..,rc r., I, .d the pack-
UIe on the wharf lind .. ;rned to the
A J .. r lIuilll came
\'aek /lnd mO\'ed the parI, ,',,, to a new lo-
cation a rew fee t away and once more
returned to the ship.
Two of the customs agents at this
time moved to within a few yards of the
of the pack!. 'e and resumed
th.,ir ,\1 )ut 25 minutes
the "l,tift' "'" brakelights
of nn nl'lIr im.
mt'dintcly "dja<:..,nl to tr. ,Ih:.rf, Th(oy
saw a person who was ,,,tined later 1111
the defendantappellant )tartine:i:. walk
from the direction of the warehouse 10-
ward the place where Huila had last left
the raekAge. :'Ifartinez up the
package and started toward the
parked automobile nellr the warehouse.
The two customll alentl' watching f rom
near the package then, ;.Ierged and at-
tempted to arrest Martinez., after identi
fyin&, by lItating in English
thlll th(oy Wl'l"e ' "nited Stales Customs
lIi{'nts.
rc by winiing the
in a \\ ;iI[ nrc in th{' direction of
the Ill' eith{'r relclIRcd the pack
age or 101lt his "Tip on it and it slIiled
into the )fillmi RiI'er, "fnrtinez WIIS
after II short scufMe, whereupon
one or the agents dO\'e inlo the rh'er and
retrieved the package chich
had thrown.t
While Ihel(> tl"l'nts wue taking place,
another agent npproached the
car in which .!Ilartinez; had ridden to the
dcinity of the A third man,
later identified as the c/' 1r1ant.appe].
lou,,\ !.ox,
llot rUQ. I' 0-
'1,", rrom " .. altr.
.1" '''8tH
, r,l h II ..
18 486 F :DEP.AL REPORTER, 2d SERIES
lant Padilla-Sorig, had rern;,inrd in the
automobile behind the wheel. The ClIS-
toms agent attempted to idenlify himself
in English to PadilJn-Soris.t Padilla-
Soris started the car at < "',''.! lind drove
away. Still another Ilj.[ent. waiting in II
government cchicle at Ih,' (-ntrance to
the dock area pursu('d Phdilln. Speak-
ing Spanish nnd using II It.ud .<peaker he
identified himself as n cul'>loms
Padilla-Soris then slopped his vehicle at
the side of the I'oad and sUI'rE'ndered to
the agent.
Martinez and wel"C taken
to customs {vI' inlcrrova-
tion. At the time t1'c _'-!ios!f1llce
contained in the . devcd from
th!! water was tested. It was <lder-
mined that Inc W IS marijua-
"'.
At the outset 01 the questioning, Mar-
tinez signed a wail'er of his .\Iironda
rights 3 and proceeded to gil'e a state-
ment to the customs officials. In the
course of his statement ;\lartinez fur-
the name of the man who had
off-loaded the marijL Lna from the
;\IONTEGO as lIuila.
For reallons not
the t",timony Hui1a
the same time thut \1
la-Saris were tak,'n
orne time later was II
ti ely
t
,
, d' from
,d at
f'lIdil_
ly, I;ut
1 "ken
to customs headquarters for intrroga-
lion. Whether Huilll was arrested be-
fore or after he had b(' 'n identified by
Martinez as the person depo.!iting the
2. 1t ... :tII AK('(-rlu;'u,1 II,al ,'",HUB 'IInkp
Hilly R]'anl.h.
3. '\lirm><la ". ,\riZOIlIl, :-:q SO
:<.("1. 1002, 16 1..!'A1.:!<i 001.
4. Tn "inial Ion of: (0 Tid, (',.-':.4". St'('.
31'1, (Ii) Tille' !!! l.S.C. i'll<:, K.:?ru) ''',,] l'it!e
18 l".R.C. 8<'C. 2, 11n,1 (iii) 'J'ill., .'1 ".s.C'.
1':"". 84 ' (n) nil,] 1'1 ,. 'U'. !,,,, :!.
5. In of 1'111,- l'. 'II
(n) (I),
6. )" "iorAtion "r t.';/'':, 111.
1, lu tl;"'''''i''g Ids I'('f" t;, II", I II" g"ilt)
1,IN, lrinl ju,IKe al8led:
"I ('(1II1d ""I. baSt-d On I,u
fold me mnke 8 ri"tling ".J.I,'b I kH'e 10
marijuana on the dock is not clear from
the testimony.
The grand jury indicted Martinez,
Huila, and Padilla-Soris chuging: (i)
Count I: conspiracy to import, (ii)
Count If, actual importation of, and
Count IV, possession with intent to dis-
tribute a Schedule I controlled sub-
stance, to wit the 28 pounds of
marijuana. Additionally Count III
charged Huila with distribution of
marijuana 3 and Count V eharged Marti-
nez with assaulting a federal ofii('er,'
The Trial
[ I] The tria! occurred on September
21 lInd 22, 1972. Prior to the eom-
mellcement of the trial, ;\Iartill(,z,
through his attol"ney, tendered a plea of
guilty to Count II of the indictment,
which charged importation of the mari-
juana. The prosecution apparently had
agreed in exchange to dismiss the re-
maining charges against Martinez. The
t!'ial judge, in compliance with Rule 11,
F.R.Crim.P., questioned Martinez to de-
termine whether his plea was knowingly
lmd \'oluntarily cnlelcd. In the COUI'se
of this inquiry, Martinez asserted that
his of his Mironda rights during
post-nnt'st intel'rogation had been ob-
tainl'd in exchange for n promise by cus-
toms agents that "nothing would happ.;>n
to [him]." This prompted the trial
judge to refuse to acccpt Martinez' plea
of on the apparent ground that
the plea might not have been voluntarily
entered.
1
Counsel for Martinez attempt-
fino! 110"1 he f .... 'h,l ,olunlaril)', ,,1110.
out Ihe wRh','r of "ny ri8101'.
lM,1 ,,,illy. R ",,<l;ng I hR'('- 10
make IIn,l ) "'''''1 ,10 !t nn 110('- bn<is "r ,,'I'RI
be l,n_ 111101
for """IIIel ('(1"1'<'11)" I>oint. oul 10
U8 tl,al l1Jio 1001 A .IalttoCb( or II,e
"".ler Rule 11. F.RCdm.P .. ror
of " ,,,III)' lMa. Itf ft
1len "r ,uilty ,]0<', wni .. e Il ""'''ber
"r '-"OMllluti"nal nmoog II,elD Ihe ri,hl
10 Irial by jurr ami "'f righl 10 ''(Iuf .... nl
one'. n('('u.e,.. [n QIOl'n eourt. I' .
L"nll",) :;;1,,1('11. 1900. 59
KCI. 1100. 1171. !?'.! L.f:,t2tl 418. 4Uo.
Rn,IIIallon of "nIl .... eollOquJ" belween
<'(\u".el tloe 111,11('-81<'8, 1,0""
not clear from
iirted Martinez,
1\ eharging: ( i )
to import, (ii)
rtation of, and
th intent to dis.
controlled 8ub.
28 pounds of
Count III
distribution of
'eharged Marti-
rerleral officer.'
d on Scptember
.r to the com-
rill l, Martine!!,
Idered a plea of
the indictment,
m of the mari_
"I'parently had
the reo
The
, with Rule 11,
Ih.,tinez to de
,.'as knowingl y
[n the course
: :lSserted that
I rights during
had been ob
.romise by cus
would happen
'ted the trial
plea
t ground that
,'n voluntarily
'Iinez attempt.
"l"olnr;I,, wilb.
,jluli""nl
'din,lr I 10
I of "'hi
I)' l .... in!O Out to
'"h',uem of Ibe
I-'R.('tim. P .. (or
11,p "nlty M
,. "urnllt't
, 'I,,," ri,i>t
!Q ''01)(roD!
'l{'('Mlb), ,'.
-I."i(l, 400. S9
qo:, 4:2.:;. 1-:%.
J b,lwt('u :U.r.
1"'IIMtn. bQ .....
UNITED STATES v. r.1ARTINEZ 19
,. ". '" l"ll (1913.
,J
ill
.. ,
.1<-11
th.1.
thc'
I"
."
tho:! distrkt j\ldye that. rip:hts by the Spani!!h agent
. of thc co{'rnd Ilho interrQgated him lIfter lIrrest . It
t P<\SS('l\sed suffk .... nt ('vi ckl'eloI'cd that this agent had
hich to con,jet 11;!l".. Fur told ) Iartinez that thc trial juelJ<'e wou ld
1;!;('; hael admitteu his gl,Bt of be informed II!! to wh(,ther he waived hi8
n'( of importation. Th( judge right to counsel at Ihc j,,!errogation.
r I' in refusing to This I.:!ft an in-.pli,"tion that his
I ';J 'n<ll-I' thc circurr;. failure to waive right tn ('oun"el would
II .w "f this rulill.\(. .1 for
I';." n ;-: .. ris al this jumlul'c " wcd
I;ls II' r)]l fur !lc,'erance, l'adiU \' .. ;;i"d
... ith '.hl'r pr(>trial motions. " eLl'.
,,";>.ious to have ;o.[arlinez 3\;;' \,Ie to
le"tify for Ps!lillaSoris, ,his
d, as "Ia rlinez had orrcn,: to do
"arlic.r. The :t\'ailability of this 1 .,: imo
'>Y fur PadillaSoris depended upon )11\1'.
tinn' pleading guilty and not being on
tri;l.l \\ hl'n called to the stand. It ap
1,,';11'1 d (ertain tllat Martinez wou ld
I,'f, to tllke the stand at a joint trial
11, ,II\laSoris and Huila. The court
.(. tknied Ule motion [01' sever
.... ,
\1 rtil1<'z' a member of the
1',I,hl" nrfcmkr's staff, was courtap.
for both Martinez and Huila,
110, IIVI\' moved for Se\el'ance as to Huila,
I,ruk ling thal failul'e to accept )Iarti
'" I' kntlcl'\d guil ty plea would prejudice
"11,,,1' !Juila's or Martinez rights to a
C,;r trial if his cli ents were tried
ju;"t1y." The court denied this "",lion
.unl the lrial Ilroceetled against thrre
d,(,
,\, nil' :'Pjll .... 1Ch(d the
I, "f it:i r: se, it I;ce;,me nt Ihat
" I! 11 was gin'n nn inco:Ol'ldl' and
[,!:.J,!e of his
,I"" ,1", rull)' nW"rt of the
, ",lr,'IO"'lOI. fvr n"'"l""1)'-.l of
J'ln,! 1,1"1f nn,! O<)me "f b)'
II "';I"U .... 1)( ft po",H,I)' "'H,,<,,l >Late-
., I,,,! ... In ,'(OliOtlu)'
'1'1, ,I
l-I I., " ground for n [ .....
H'\' ..... Il,. uH,lrr :.!'1
I wh.,... he ",,,,,I,] 'fl, ,"e of
.,." , .. "r" .... i .. " I " .... 11 ".,,1 1
a_ ,,,hr. 1 ... 11,,'Y ' .... "1,1 i"t ...
"
.il>' I ""'. 1 [",101-"'<1. b)'
,,' " ",,,r, ,;uu ",hi,)) ,.-n' .. ..... ",:ful1y
II. .1 from 'ar.' ''
be construed ILS unwilli11,:nl'ss to cooper
ate to his detrimcnt at trial. It \\'118
also shown that :'Ilartinez WILS told that
the chuge against him was smuggling
mariJuana, without mention of II possi -
ble cllllrg.:! of aJ;saulling a federal oHio
cer. On the "r 1";1' disclosures
the trial judge r"I"d
wns
.t Ihe statement
I.
With the :11" Ilrob[em of
the cOCI'Ced slallmdlt, \l:.crtinez' counsel
once more tendered )Iartinez' plea of
guilty t o Count II of the indictment,
The judge at this point appeared more
favorably disilosed toward acccpt .. mce of
the plea and Questioned the government
as to its position. COHrnment counsel
stated tllat the offer to clrop all charges
against )lnrtinez other th:," Count II in
exchange for II pIca of guilty to that
count was rescinded, since the govern
ment had by Ihen Ihe hurelen
of jll'(lving all of the c"unts. With the
matter of the gnillr ;,k.:J thus
of, the {oul'tnj p ,\n c1 for )Iar
linez and Huila ;no\ ,d that lIui-
In's tdnl be scw.i'd )Iarlinez' excul
palory testimony could be al'ailable to
lIuila. Again the SCl'Crance moHon was
denied and the government rested its
case in chief.
,
IIs.crl .... l
,
.!Lorney
."
.... ',"1<1
",'il'
no""
,,,
Ouila,
"
,It ... .,.
1.".1
.,

"
"
tl,e wit
nell! .In",!. Wh ,1 .. , I for
"",I
\tuih, ""o"r r"r n
in "i'.,Hie h', "", "'-' In,,1 il "",I think
Lrinl ,1. ... ,\,\ ,\,,1),' li1o .. ; e (," the
hn.i. or .. !: "I f",' 1 \hBt
for 1\," Iwo .,f 10 CU I" , ,1 IW;.,htr,
I ,..",,1,1 in n I" ,r
.\. an "J ","""I Ihe
,'(O".t 10 nN",(nt , 1 .. rt'J"""1)1
lone uf Ihe 1"'0 "b 1,lUtr ...,...
'I"eol wu ,It";,,d h)' 11,,' ... ,url.
20
486 FEDERAL REPORTER., 2d SERrES
At this time, the court granted coun-
8('\'9 motion on behalf of Padilla-Soris
(or judrment of acquittal as to Counu
II and 1\- of the indictment. The court
n(u..ed. bowen.'r, to direct acquittnl of
P dilla of the charge. The
trilll tht'n procccded with the presl:'nta-
1; In of eddl'nc:e by the defendants.
The was submitted to the jury
and all d.fendants were found ,uilty as
charged of the counu remaining for
trial. Judgmenta of con\'idion and
lenee ensued, fonowed by appeals by
each d.fendant, aM;erting \"ariOllS
grounds of error in the trial IJelow,
wh'ch we now C{'In!lidcr.
.i" /,t, nct of Jfrntinl'Z' Guilty Pica
2,3} )Iartinez raises a single point
by his appeal: that error WI.!! committed
by the trial judge when he refused to
accept his tendered plea of guilty to
('\1.,nt II of the indictment against him.
Con$iderlltion of this question must
art with the well-established proposi
tion Ihllt a "crimioal defendant has [no]
1'Il>lf'"
l
ute ri/!'ht to hl\\'c his guilty plea I'll'.
ceI,'...:d by the IUl1." Lynch \'. Ov('rhol-
ser, 1962, 369 L'.S. 719, 82 S.Cl.
1063. 1072,8 L.F.d.2d 211, 220. For ex-
ample, a federal judge must refu:<e to flC-
('('[It a guilty plea whel"l' the requil"l'-
of Rule II , F.R.Crim.P., cannot be
tr.' .. t.' It was for the \'ery reuon thllt
the' ;ial judge felt thut the voluntari-
.' :Indard of Rule 11 was not met
that he refused to accept Martinez' plea.
R'lt by II brief ht'aring the 1'rt'S-
,f the jury, the trial judge could
r d the barriers in the way of
"i I' that Martinez' plea was "01-
rt'd. Instead barriers
i the lovernmenl had all
h.od its preSl'ntlition. lind their
to t al removal eame too late for Mar-
till to ('nter his plea to Count lI.
,_ Rqle- 11 "-<,\ulrn .. I,,,r,. 1(> neo
..... ' "'"" (.r a 1,],-4 Ik'l InHI
r-f . :...... II,. 'l,f,- .b"l
.n,. In,1 ,1..r,-cm]ue '),al Il,p 1'10'1 Is
m1l'!r... hlrii) w;!10 "".ltno,an.llq: (]or 11 ... "I,
".. nfl:p ,."" .. 'lw-u,,,,, of
[4] The to accept or reject
a guilty plea. once the require-
ments of Rule 11 ha\'e been satisfied, ia
committed to the "sound judicial diacre
tion" of the trial judge, Santobello v.
York. 404 U.S. 2(i7, 262, 92 S,Ct.
4!1S. 498, 30 L.Ed.2d 427, 433. But the
FiNt (ireuit N'Quires that a trial judge
seriously lIcct'ptinl a
tendered plea [of guilty]
United Stales v. Bednarski, 1 eir. J971,
445 F.2d 364, 366. The District of C0-
lumbia Circuit goes a IItep furthe r, and
hold!,! that a trial judge should not
to aeecpt a guilty plea without
"good "'1'1;071." :oteCoy v, \'niwd Slates,
19(;6. I'$ .. \I'P.O.C. 177, 363 F.2d
306,301. Since we lack pre..-ront with
in our own cin:uit. we will weigb our
problem in the lilht of these standards.
The question before us is whether, once
Ihe requirements of Rule 11 ha.\"e been
met, "Iood reason" for rejectinl a
guilty plea exists because of the JIOUibil-
ity of later collateral attack on the judg-
ment to be entered upon the plea,
[5.6] One of the purposl'S underlr-
'lK R',le II to enable a trial judge to
dehrmine whdber a d ... fendant's luilty
plea \olunlary. ).tcCarlhy v. Pniled
1..'.5. at 465, 89 S.Ct at 1170,
22 L.F.d.2d at 421 -425. A func
tion of Rule 11 is to expedite the dispo-
sition ot attacks upon
judvments on guilty pleas by pro-
viding a cnmpl"te record of the balli'
upon which the plea was accepted. Id.
But the rule not de-!lll!ned to discour_
age the acct'ptance of guilty pleas merely
becauSl' the trial judge is uneasy or ap-
prehensh'e O\'er of a subse
quent collateral attack. Indeed, Rule 11
re<;o!!,nitcl the of such atlacks
and as just JlOinted out ill designed to
facilitate their disposition by requiring
the Irial judge to make a Implete
1.1ea.
M
.\ fucll.-r f"r ntu;",
On i,1 ... 0( b Ihl the
/riB1 j ... .1.1"",,;,,. 10 1'; a,i'(lrtioll
I .. 1 for lbe . " Set!
)1,,. .. 1,) \. 'n;I,.1 1!)(;9. 3!U l.S.
1:}9. f<!, :-:.C!. IlfiIl. 418.
) llt;'Cept or reject
once the l"('quire-
bon ia
d jUdi('ial dillCre_
Ire, "
57, 262, 92 S,Ct:
!7, 433, But Ihe
,hat a trial judlre
::IeI' IIcceptinlr a
yJ .
!'Ski, I Ci r , 1971
District of
tep further, lind
dge should not
Iy plea without
United States,
117, 868 F,2d
precedent with,
will weiih our
Ihese .. t:tndards,
, whether, once
e 11 hM'e been
Jr reJedinl' a
of the J)O!sibil_
!('k on the judl'_
Ie pIcA,
rl':lS<:1I un,krly,
IrL,1 judie to
,nl! mt'a iuilty
tI'l ", rnited
) lit 1170,
,\ func-
lite the dispo,
"lIllcka upon
, rlC'IM by pro-
nf the basia
:u,cepled. Id,
led to disc:our_
y pleas merely
uneaay or ap_
y of a lubse-
!deed, Rule II
I attllckl
to
hy rtuiring
I It eomplete
f"r rnlnlb,
il'" q Ib.1
'i "Ihal
S,-e
l1w::l. 3!11 I',S.
::,1
UNITED 1'.
21
.,rd the knowing and \"olun_
!('< , ,"re of the pIca lind the factual
\lil")" Il;i ..
I.,
for iL
t \1] The question of ,'oluntarinesa
. R'lle 11 depends also upon inquir_
",.," h th I '
I'" \0 ddel'mine whet er e pea la
i.wb" cnteH-d lind whether there ex-
;, ;:lctu?1 basis for the plea. F.or
it IS not for a .trull
jLldj.!o! 10 find (hilt II plea IS knowJngly
nd loiunt:<rily entered e,'en in the face
;r II defendllnt's unwillingness or inabiH-
I)' to 3dmit guilt, wilere eompe11ing rell,
,"' arc pre!fent for the entering of a
at' illy rka. liS long as there exists,aub-
I ,Lti.11 eddence of the defeh\fant'a
,IL" ,\t all e"el1ls, the
", .. ',,'r a guilty plea ill \'oluntlll'ily en,
to",1 i, ddermined, not by whtther
th, \I' an.' edel'nal forces inducing a de-
f,."J;uLI to plead guilty for Much forees
.... ill inl'ariably exist-but instead by a
,I..tl'rmination as to whether these forees
,lfC ("unstitutionally acceptable, So long
lUi Ihe trial judge is convinced by the
n 'nl ],e(ore him that II guilty plea is
" """rCl'd, a further sllowing that the
l l.uowingly entered and that there
I .u(ricil'nt cviclenc(' of guilt will
fy Ihe of Rule 11.
12] this Lackgru,lIld we
,i.\\" the IIction of the conrt 11.8
,,,,,Inlr), to both the Spi"it lind U}e pur-
l'"'''' of Rule 11. In the ril'sl plll('e, it
t';lllllllt he that Martinez' guilty \,Iell
involuntary in the sense of Rule 11.
\. we h;l\'e indicated, Mllrtinu freely
.t, ;1t"01 hill guilt of the charges of im-
10 .1. ", " .. \U ... ,J, l!)'o, 100 I'.R
'n S.rl, Iron, 1131', 27 Hr.!.
1... t, \1,r"nloJ ,., \""H,_I ."I,rK.
,,,.) JIL Il'e
1,1 ILl I(uilb "I .... ",ere ''I<I"il''l'<l "n'
I'"" ... rbu"," "r tILt ('('<n_thud"n
,<. 18 !,' , ... ftn.1 Court h'
I" ,I, iu" ,ulI,le It tl,at "olun'
, .. "" "r r.R('rim, I', It, itL
"I"'i, .. ,,,1 jll ori"in .,,) "alul't'. ,, __ .. ('/I,
,I",. "II 1.' no '''0'),\ llonl Ib, ",Io"" .. in_
... ,,1""'''''1 ".'plie .. ,,, ,t."e "n,1 'td,
. I '''', .. '''i .. "., ('I"", ". W,,It,,,rl,101. G
," 41 . )-'.'.!-l H)lr2, \(11.:3; \\'.d.
I\" "",I .. , " (";" l-'.2<t :JOO;
II "1'" 1/"haD, :; ("ir, 1000. 3:i6 F.2d 75,
. in1 mariju:II1:1. Also liS :o..:;,rline:r.'
y npl't,t.et!lr urged, Ihf' govern,
m, lit h:ld amrle evidence, indept'ndent of
lhe COI:rno ronfl1<sion, to convict Marti,
nt'1 of the importnt ion eh",r,.,e. It can-
not I,e in the circumsl:,nu" pl'c.<,('nt
th:,t the' ('Xi5tl'nee of a coerced,
Itlltcment renden'u. :'Ilartinez'
tf'lhlued I'ka invohmtiJry under
Rule 11. We hold th:lt til :tion of
Murtine'!;' plea w:!s not for' Jd rea-
son," :lIld was errOl'. ;o.!cCo),
\" UnitC!d supra.
We iterate that it would have been
for the judve to H:mo\'e the
clt'lld in his judl!"m('nt, o\"er the
A ,hort hearing
Ollt of the pITstnce oC Ihe j\. , ;lnd bc-
trial LI.)(krway LId have
dcmonstrlltt'd that :-'Illrtin(''!;' -it,arrest
slatenltnt wns inadmissible, I'\aetly as
was later determined. With this deter-
mination made, the acceptanc:e of the
guilty plea, if persisted in, could ha\'e
followed. This procedure woul d have
constituted "serious consideration" of
acceptance of the guilty plea. United
!=;tates \', Bednarski, supra,
Since we filld H ,t guilty
\,I':l .hould hayc b n lit." 'pted ',\'e 1'lIeate
tht eon\'klicms as to him und('r the re,
,ining counts, r, 1\' :md V, lind
n:u::md for ,'!l(kr Couut II
only, The' trial ('ourt COl'rect the
recol'd by sltting: nside the jury verdict
118 to Martinez lind the judgment lind
8entences tnereunder, followed by an ad-
judkntion of guilt under Count 11 upon
Si", II" I, Oil'
lil"li ... I" ""tu", "",I "ri,lll, il ]""eo!
II,., ,n_lilo,I"",,) ir I"'l<\,'m ill
,oqurt ,..ould nol t... ."led UD'
<"(In.liI,u["".1 In f .... "",""""utlon..
O,b,r,,i M.led, ... m u. rn. w"lun'
'wrln ... In """"""UUP be I_
lit"" (col ..... l
.... ,. a"l,lied 1<) _t,ur I,n _ ",Iou,. 'I'e thfTe-
r,,1"<! h.ve no I,,;.il '7 ;., i,lt.., III !l,p 'htUI
hC a r .... 't .. 1 1'_ ,:, n, I),., rulo t, .. " ... IUII'
bid ,Iu"" in II, ,i.". "r ourl
1' .......... U"P, :0:. rill ('.""Ii,,, ,', .\110,,1,
('f, Ilorkin' .\I.,lft""', WOO, ::9:; ".S. 23S.
t ;,1.1. 1 .. 2'H.
22
.86 FEDERAL REPORTER, 2d SERlES
'b" of the tendered pIca of ,uilty.
nd not by reuon ot the jury' " rdict.
Su'CraJlct
Tt. ,1iJ;trict j udge's failure to 1
;lU' gu ilty plea p .r:ns
is ro--d, fendant, HuBa. 'I; 'Z
'oJ hio\ attorney, ..... ho abo ore-
.) /luila, that he was will in" to
'ofy .u a witness for Huila if tht' c:nut
his guilty pIca to Count II of
the indictment. The go\'ernment was
at that time to that di . V cj _
tiron of the charges ,\1: L Un z.
11',(' ('ourt N'(,aIlt.'lI to acup 'rti-
nc'z' ;"1.'11. motions for FeveranC( n )(>-
t1 alf flf Huila and II
sumn,n.-iiy d('niC'd by the c(\urt. e 11:1(1
for Huila now urges on appeal that the
denial of I!e\"erance as to him was an
abuM of di!!C':l't'tion by the trial court.
r "', II] Under Rule 14 of Ihf FWer-
8\ Rt:!<>s of Criminal ProcedurE', it is eg-
that the grantin&' of a m"tion
for. ,everance is a matter within the
diaer.,tion of the trial judge, OJlper \'.
Cnited 1954, 348 U.S. 84, i5 S.
Ct. 151', 99 L.Ed. 101: Smith ,'. United
States, 5 Cir. 385 F.2d 34. 37.
When an appellant challenges the
of a trial judge to grant a motion te, e\'-
er, he the burden of m .. J r.;r a
dear 5h(/""inp- that "Jlrejudiee re "II'
in the 'h nilll of a fair trial" no : f
the f:cih're IQ ,.rrmt the motion. l'n;tcd
\'. 5 Cir. 1!"'73, .31
liuitC'd \'. I: eoH!'
5 Cir. 1912, F.2d II", ""3;
Smith '. {nit.'d !upra.
[I:), 'he'l'l "l'lion then is whether
d,'p! \. g co le defendant of the opportu-
nity to use the exculpatory testimony of
a co-dd('11d.1nt amounts to re-
in the denial of a fair
Byrd \'. Wilinwright, 5 Cir. 19iO, F.
211 101i, Wall a state haht-as corp:, ,: ....
g(1n-rnell by Hth Aml'ndment Due Proc-
I'!I.!I con, :derations rather than by the
eotrt'!-jlo)ldi ng relief from prejudicial
joinder prodsions of Rule 14, F.R.Crim.
P. But the criteria are similar, and in
BVrri this cil'Cuit was pre8l"nted with the
oJlf'Ortunity to consolidate and catalogue
O'lr prior rulings for the guidance of
trial judges confronted with motions for
.-- \ 'rance bued on a d(,lIire to offer ex-
cl;lpatory t el' timony of a co-defendant.
Byrd set forth the following "uide--
line<: (il the mo\'ant E:hould "show
thnt the testimony would be exculpatory
in effect"; we cautioned that such a
!howing would not require the equh-a_
lent of a statement under oath by the
co-defendant whose testimony was
op_ cit. at 1020; Smith ". L'nited
... , lpra. at 38; ( jj) the movant
to the court'l
the (o-d" f('ndant will in fact testi-
fy; in this rel'p('('t we cautioned that
"the inquiry il not as to certainty
.... hether the co-defendllnt will or will not
testify but the likelihood:" op. cit. lit
1022: SJllitlr, supra, at 38; and (iii) we
indi cnted that the trinl judg1! miaht
,'{"OJ.prJy the ('xculpatory nature
and the si"niiicnnce of the testi-
",ony to the mO\'ant'a defense, which
"might be restated in terms of the ex-
t('nt of potential prejudice to the defend-
ant if the defendant is tried without the
OPf'Ortunity to elicit the co-defendant'l
op. cit. at 1020; United
!=:t:ltes ,'. F.cl-!I,'lI, 7 Cir 1965,352 F.2d
".
f'O'i to be little doubt that
(i) rind (ii) above were salis-
-::I ill the present cue. Counsel for
Of I tinez lind Huila mlde the following
to the court as to Marlinu'
planned testimony wht'n he renewed the
I(-\-erance motion during the trial at the
clrlf.e of the gO\'emmtnt's cttJIC in chief:
the Martine!, if
he we"e &e\'ered ffom this trial, would
ti lily un '.,half of the defendant
11Iil', .,,\ """llpnte him from an)' in-
\. ,1,, ,,1 in the mattera ",l1ich Huils
with. But, under the cir-
tUI -!: 'Ices, he cannot uke the stand
he is a defendant and will
onl), inculpate himself."
The importance of ('xculpa-
l<)" l'!-_timon)' lo Huila', defense is ap-
r rot. The crucial as to Huila
w, "bther he had knowledge, either of
"
IIld c.llU\lolI'ue
.uidancl' of
j motionl for
to offer e]l;'
:oodefendant.
win. J"uidl'-
,ould "show
, ('J(clilpatory
that such a
the equil'ao
oath by the
lmony was
ith \'. United
the movant

n fact testi-
!tioned that
10 certainty
11 or wiJl not
op. cit. lit
.lind (ii i) we
udge might
atory nature
1,'Sired testi_
.n"e, which
of the 1'11:-
the defend.
without the
'!dendant'a
20; United
,5, 352 F.2d
I doubt thst
were salis.
Counsel for
1e followin.
o lIInrtinez'
r< ,rd the
11',,,1 lit the
in rhie!:
" ,.IillI'Z, if
liar . .-(,uld
' .. r ,!ant
,ny in-
:,'h Huila
'J{'r the eir-
e the
It IIlId will
I'Z' I'1I:culpa_
rcnse is ap_
to Huila
:r, either of

VNITED STATES v. MAl':' INEZ
23
F.:d
the plnn to import. the marijuana, or l'c\'l'rsai by lIuila. Briefly. he
Ihat the p;Lckagc .... hl1:h:he took from the \!.;,\ l-n"Or ('"ommitt<'il by
'if\' :o.!ONTEGO and placed on the dock the trial judrl' in denying him the right
contained marijuana to caU tn" nrl'nts a!t witn'II""!!
",-as individual other than lIujla to elicit k.Umony the
himself in a position directly to rebut of their ;dl,-tirkntion of him u fil in.
the go\-ernment's circumstantial evidence dependenth ILlde or OJ) rq,ndt' U8
of Huila'!! knowledge of {h('5(' facta. fruit of tht, Illl'l'reS!ll'd atate
The Court of Appeals for the Fourth mcnl of ((II'
Circuit has held in a simillir situation l'hould be "fford.d an ON' rtUI jj to
th;l! the failure to sever was reversible ... I'idrnre in this re, lrd II .he
e!'for. St'e United State \'. Shuford. 4 court prior to his ,elrial.
Cir. 1971. 454 F.2d 772, where #two de-
fendant.!! were ebarged with conspiring
10 knowingly submit and knowingl)' sub-
false dotumen15 to the govern
ment, in violation of Title 18 U.S.C. Sec.
371 and See. 1001. The dl'fendant Shu-
ford. before the trial lind Iwain
arkr ti,e prOlK'CUUull re"t('d, mond that
eotI"f ... ndant Jordan's calle be ,,,-,rn'd
M) that he might have the benefit of
Jordan's testimony, which was expected
to contradict the 1I'0\'ernment's evidence.
In rel'ersing the trial courts refusal to
1I'1'llJ1t a sel'erance in Ihis situation, the
fourth Circuit Mid:
"The reported dl'(Cisionl support the
proposition that a !<ev'..-ance is oblig.ll
tory "hel'e one
hWily on the t'xcull'atory testimony
of hi! codefendant, wming to give
,.Ich but for tn.:-f,ar thnt
t:lking the stand in the joint trial he
would jropardh:e his own ,1('r(
Id. at 776.
We think the conclusion reached by
th,' Fourth Circuit was sound. and con_
rh"lt that failure to grant the motion
for -,',('rallce r,':\lJted in p)Oejudicc to
l"iJjht5. Rul!! 1-1, F.R.Crim, P.
F,.IH,,,r, the ICl'ermlC(' in thi!
fl'"'!! I,OU1c!"ot h(\\"e unrl}' hw;dcn-
fome from tile lIt:.n,lpoint 01 judicial
all the Hl most would
h'lve },('I,'n two r,,1ath-<'1y .<lu,rt, uncompli-
cnted trials. The judgment "gainst Hui-
In is vncAted with directions thllt he be
llfforded Another trial \\here he will
have the opportunity to clI ll Martinet as
a \\itn('ss in his b.:half.
[1 6] We find it to dis-
"u at I.'n.th an additional I!'lllUlld for
Suf/iciwCII of tht Etridrnc8 01 to Ppdil-
m-Sori.
[1'i] ApJX'l1ant Padilla-Soris nssi.n, -
as error the court's rcfuo.,1 to
grant him II of IlClluithl on
the cOI,"pil'acy charge, COllnt r. the
close of the gowrnmrnt'll ce .
This was by the only "" . 1..; ,nit
charge against this defendllnt. the mo-
tion (or judgment of acquittal being
granted as to Counts II and IV. As this
Courl
"In considering Ule motion (or judll'-
ment of acquittal. F.R.Crim.P. Z!I(a),
the District Judll'e musl consid';r the
evidence in the light most favorable to
the GOH'nlmenl, v. Gnited
:; Cir. 1%0, 273 417:
l"nit('d v. (' ... ter. 6 ('ir. 1963,
:lll F.2d with all it,(er-
ces <hith l"t'"vmal,lr be drliwn
(rvm tilt' Cijrtwri.ht \'. Lnfted
States, 10 Cir. 1964, 335 f".2d 919.
The determining inquiry is whether
there is substantial e\'idence upon
which II jury might reasonably base a
finding that the IIceused is guilty be-
yond a dOUbt."
Blachly 1'0 l'nitpd States, 5 eir. 1%7,
10 F.2d 665, 675.
liS] Our function on' al'l'cll! is to
I;onsi!lpr the t'ddence in the ligh, m(ltOt
favorable to the g<:IH'mment, GI",,;er v.
United Stlltes, 1942, 315 U.S. GO, SO, G2
S.Ct. 457, 469, 86 LEd. 680, 'iN, and to
d,-dde in "-'\'id,
as here, "sollahle minds
could conclclde thnt the elidence is in.
with Ille hH'o\l: 1<is of the flC'
,
21
486 FEDERAL P.J:l"ORTER, 2d SERIES
c= d'j in"DIII;< nee,"
Warn ..'f, 5 ('ir. 1971,
United States '-.
44 1 F.2d 821.
19) The triticai issue 311 to Padilla-
S J"al is whether "uffici"nt ,vi
j introduced t o permit the jury
to t' nine that Padilla-Soris had
k=, wlcd,t of the existence of a
aey. Xnc>wledgc of the existence of II
ronlIp;racy musl usually apI'l'3r f
surrounding circumstances: it is
of dir<'Ct proof . Proof:of
edG"1.' rf'.4s upon 11, '>11
from ,'('ltYlint and ('Ol<lpt"ttnl
nt':,\ lvldcnce l'
!;t..t<.3 '-, Warner, supra, at S:IO.
II: . I' 1Il. withNlt more, h.
not , Hiee to knowledge.
Panel \". t:nited States, 5 CiT. 1958. 256
F.2d 308. 81 2. These pri nciples point
the way to dedlion as we reliiew tnc ev-
idenee produced by the iO\'Crnmenl to
"how 'Padilla's participation in a con
to import marijuana into the
l.lihd "1, t<'s.
(20] It _hown f ir llt thal Plldil
lagoT J n to the dock al
on the l' iolt' that th(' l'IlCk:IIW of i
juana, by Huila r
M/V "'lIS rctrit ... cd L)
tinH from its posit i(>n (If (I
dock. PadillaSori:i :: .. " I
docbide area when he wa!'. il.j'llI ..
and hailed by a tJ.e
ng(>nt a language unintelligible to
the When PadillaSoris Will
IIccMt<,<ln (,w mom!'nts later by a Span
I-h If' ltint: agt lIt hr stopped the tar he
was drL' . anti
We ,10 loot rli,count the po.'!!<ibility
that P .. .Ii1la in fllct kTl('w of existpn,e of
a conspiracy to import nJllrijllana, and
that he drove Martir.H to the dock.l'ide
area in the early m(lrning hours of Au
g!!!'t 17th in an effort to advam:e the oir
jed.!! of thAt com:pirncy. PadillaSoris
OI':ay haH" met )J/lrtinez on a prior OCCII-
sion, l'ith(r indep"ndclltiy or throogh :l
ncquaintance. It pOSl'iLle
that PadillaSoris bel:ame a m(mber of
the conspiracy earli('r on the evening of
16th, before drh-ing Martin!'J; to
the where Martinu took poI-
5ef.<ion of the rontraband. Anyone of
the,, may account for Pad-
Bi:I-:-''lris' knowledge of and Jlarticips-
tpn in a conspiracy to import marijuana
into the United States. But pouibili-
tier-. howe,-er numerous, do not supply
proof. The circumstanct'S pro,-ed must
be of inferences upon which
a Jury may reasonably find guilt be)'ond
a B. n:,ble doubt. The ,0Vemment.
wu u, ',ble in this case to show that
'adi11a eH'r knew or met ) Iarlinet or
luila prior to the trip to the docks, or
thHt he agrC"t'd with th!'m or either of
h ;1l to impo.rt "",rijnnna into the Uni t-
Shtes. All we hn,-e ;s the ('\idence
!;"t Padilla dro'e Martinn to the docks,
that he left t he docks when approached
by one eustoms agent , and that lOOn aft-
erward he surr endered without resist
ance to another customa agent . No e"j-
of an incriminating natur e was
found on his person or in the car. Pad
Illa-Soris' explanation of the trip to the
dOC'k was that he mel MartineJ; that
en'ning at the borne of a woman ac--
q\;aintance, and that at her request he
drove :'Ilartinu to the docks in her
wbile. This was not dispron>d.
+in(z when called as a witness by
--.-Soris, presumably as a corrobor-
I'rlg witness, refused to telltif)" on
Jrounds of self-incrimination.
When Padilla-Sods' p;Irticipation in
the ({'nspiraey was .lllo'H>d to go to the
lury .. n the meager and insubstant ial
I' ,f i;'lr,duced in this case, it was an
ilit,lion to return a comieUon
1'1:-1 Tf on association. :'Ilerc associa-
tion alone. will not "IiUlee t o
SUi]Ort Il conviction for
PU:'i \ .. l'lited The jury
in \l-is c. Wtul 'lot l' with e"i-
de- h m ,. hi,'h '-"a.sonable minds
MI
, .
'"
.'
1d ;uilt b\:y"nd a rellSOnable
n..- q"tAion of Padilla-Soris'
',I not have been suLmilted to
y "'nther, his motion for judg-
,r ,cquittal should hll.\"c been
Uis judgment of con,iction
r Jltant tonfinem!'nt Intence un
Count I of thc indictment are reo
vers..,], ith directions to dismiss t he in.
nd. AI (If
.. ccount
( lind r
mport IT. na
But r' bili-
5, do not 6Ufpty
lC'ell proH('
up"" 'dl
rind gui!: l ,d
The I. 'It
lie to ,hl'lI.- :t,t
met ;"IJartinu or
to the (l"(ks, or
wm or I'IU.er of
l1a into II e t"ni l-
Ihi d-nce

",hen h('(!
lid II ,I "11 aft-
wit!,oul resist-
I Xo evi-
ling niliure \\'&8
in the car_ Pad-
f the trip 10 Ihe
wt ;"Ilartinez 11 ,t
)( :It IC-
he
e dot'les in h,:r
not dis .... U\l.d.
I' a . 'ltnl'Ss by
1), as a co:robor.
to I,qlfy on
U'>n.
Irlicip:ttion in
I< .-j 10 go to the
nd in,ui.- fllntial
, it lUI
comktkn 1, -'d
;"IIere 0\1 :::..:t-
tl not lutrio:e 10
(or con '"im'.1
I.p.ra.. jl:ll
nted \\ th ,vi-
m-nd.
d
, 3 Il iIJ:l-So;-is'
n l,mitl('d to
n f;OIl fur jl>dg-
IlOld h:.\'e \; .. "n
t of eoul"idl"n
'nt 8<'ntll1Ce
Iktlnent ate reo
:. the in.
HOOD 't. DUN & BRADSTREET. INC.
:!;Ollll;!)
dietment as to the defendant-appellant, Northern District of C('(Irgia, Ri chard
Lorel1l:o A. PadiJIa-Sor is.1I C. Freeman. J., 335 F.Supp. 170, grantt:r!
credit rcporting agency lummary judV'
menl, and plaintiff appealed. The Courl
of Appeals. Ingrsham, Circuit Judy(
held that ("('rtain did not con
stitute libel under Georgia law. that oth.
er were capable of beinJ! Ii.
beioul by innuendo, that credit report
was not a "matter of general or publi c
interest" 80 III to be aCCorded a condi-
tional privilege under First Amendment.
that agency WIIS not afforded eonditionnl
privilege under Georgia law, that com
plaint Iuffieiently alleged special dam-
anrlthat genuine of fact pre-
clud('d summa ry j udgment.
As to the appeal of ;"Ilartine%, hi s con
\"ie!ions under Counts I. IV nnd V are
vacated and !l('t aside; upon rt'mand his
guilty plea to COUll! II is direded to be
"ccepled and sentellce imposed thereun-
der. .\ 5 to the appeal of Huila. his eon-
\'iel;ons under Counta I. II, III, and IV
are re\'ersed and remanded for a new
trial. Padilla-Soris' eonviction under
Count I is reversed with directions to
the indictment as to him.
Vacated and set in part lInd reo
manded with dir'L'Ctions; I"ewrsed for
Ilew trial in part; nnd I"cI'cr8<'d with
directions to dismiss in part.
0:&\111 p,.pt. HOOD, I'l:llnll UAplJ<ellant,
,',
DUS <.\; nR.\Il:'i'IHt:EI', ..... C
n .. -.\1 'pdlo>'f'.
SO). "7Z-I'l3S.
UnJte-d States C,.urt ot .\pV' ....
FUth
Sept. 11, 1973.
Rehcarina: and Reh('!lJing En Bane
Dt-nled Oct. 31, 1973.
Adion for libel predicnled on date-
menu publi shed in credit report. The
United Statel District Court for the
II. I " lip,.. "f '.ur -'1;", ,,_;,Ip 1' ...
,""\tdl",, uf Ihp urridener of tb"
I j.lqu'C a. 10 I,ion. II ,,01 ''' ... ..,..sa r)' 10
"';11. LI_ "r,li\;"".1 ',.',1<"1101l. l\oar ,te-
ul.l "r Ioi. IlI"liu" fOF ' .. , r;",,.., .. -". l,reJull!-
d,,1 10 I,io H. ..
.. " II ." .b" ... of on Ihe JObrt
"f lbe "inl ]".Ile. 11110 "'l:"me"t os ICO II,;'
Qpf"<lkoll Ih"t ul Huil. ((""'1,1 ,h"l

RCl"cr:.;C'CI and remallded.
AinslI"Qrth. Circuit Judge,
and filed opi nion and also from
denial or petition for rehearing.
I. Ubel l1nll SI:llIllcr a16
Under GCOI'gia law. nclion for libel
Ih.s where statement is false
and defnmatory, tcnding to injure repu-
tation of nn indi\'idual and exposing him
to public hatred, eontempt or ridicule.
Code Ga. lOS 701:
2. I.Ibd 1l11, 1 !':bn,J,' r C=> 18
and Ikfnm'th,,-y statements
m ,Ie in I', . flrd to """ll" r in his trade,
orri(e, or I'ro(, .. ion and calculated to
illjLtre th"rdn cunstitute libel under
G. ,rgja lliw. Code Ga. lOS 702.
3. Llbcl nnll STander C=>19
Under Gcora:ia law. while rlain and
words mu.'!t be
in the nQrmal and Ol'dinary menning,
IImbiguoul word.'! may be clnrified in
meaning by "rcfcrenee to the circum-
stances" and thereby Ci)l1stitute IiIx>I by
innuendo.
I.e <1i,1 Tone 'I' ...11 ",,,1 ""inl
",t>. LoT(".",-.1 fur "'1 i.,, I" ;.".
liar "'''"".r. If ,,'f
h, :os ,,-. ,I""blk .... ""ld If "te<'f'.
utr. tltl. \Oi", "nl)' 10 """t ... _l 10'
n.,.. IT;o'. II," ,]U.l"",Hiou "f bl. l'O",.I"tloQ
by re\N.,.ln, an,1 ,Ur<'Clin, 01;,.",1"",,1 of Ib"
1"'''1 WI 1(1 him nI"dc", tli>O<'<l"I"" "r
L _.lloolnl ..
892 352 FEDERAL REPORTER, 2d SERIES
they were "at pt'rfeet liberty to disreg3rd
anything of the sort".
With all of this, there could be hdt
no basis for a general claim of
prejudicial error-much less any l!llb-
stance (or II; claim of "plain error", no-
ticeable under Rule 52(b) Fed.Rules of
Crim.Procedure, 18 U.S.C.A., (on which
any contentiion here would have had to
be predicated in view of the lack of chal
lenge made to either the court's caution
sry instruction or its general charge),
We should perhllps add that we intl'nd
no implication on whetht'r the court's
voicin&, of belief that the GO\'ernment
bad produced all the witnesses it had on
the question of appellant's presence at the
would have constituted prejudi
dill fnor if it had not made clear by
its caution:.ry instruction or its charge
thl.t the ('][I'rc.,,,ion was without intended
,igni(j(lInce or erfed. For there to be
prej,,,lke, it would seem that the situa-
tion would in :my event have had to be
one in which there was such basis to view
a failure to produce witnesses as hll\'-
ing existed that appellant would upon re-
quest ha\'e been legally entitled to an in-
struction on the presumption which could
be engaged in in this regard. Whether
the situation here was sufficiently of that
character the court was not called upon
to determine, nor is it before us, for no
requE's! for such a presumption instruc-
tion was made.
[3J We have in (.other . aid lhllt
the rule of rn =:umption from failure to
produce witn. : ,'('8 is one I\'hich is to be
applied with caution, Shocnbcrg v. Com-
of Internal Revenue, 8 Cir., 302
F.2d 416, 420; that it is not one which
is abstracUy entitled to be gh'en applica-
tion; but that it is to be attorded oppor-
(unit)' for and dfect only
w1-.en there has been shown a factual area
in which it can logically operate, Jenkins
v. Bierschenk, 8 Cir., 333 F.2d 421, 425.
These cautions have application to reo
quests made for an instruction. Thty
do not, of course, prevent the court from
allowing free scope for mere traditional
general arguml"nt by counsel as to why
wHn. s or have not betn
C!\lll-d to the stand. But thr.l'e are mat_
which n,)t I>(>(ore us and
tOHdore require no f n r
No error is \,. ,\'e been in.
volved in flPI,,,llflllt'S trid, 'ld the judg.
me-lit of conviction f\c(."ordinilly not en-
titled to re\ersal.
Affirmed.
Ul\'ITED STATES ot America,
Plulntlf!Appellce.
,.
Julius L. ECIft.;LES, Dl'f, ",,,nt-Appellant.
No. l.f174.
United Slates Court of Appeals
Seventh Circuli.
&>pt. 2, 1965.
R<'h<,urlng O"nloo 'c, 1, 1965.
Rl"hl'arlng 0. ni,-d D<'l" 1, 1965.
lEn
Attorney was cOllvictcd in the Unit
ed SUites District Court (or the North
ern Di strict of Division,
Edwin A. Robs.on, J" of per-
jury, impeding of justice
alld and he appealed. The
Court of Appeals, Grant, District Judge.
held that where it appean<l in trial of
attorney that he would t.l' Lie to call
his client who was a co' 'ml to wit-
ness sland for I,'=lll(lge d .(ling into
evidence client', ,Iri{lr I' holding
attorney bl;u(;,'I. ", co. t's ,!t'nial of at-
lorney's motion r,r ,Ilrate trial was
erroneous.
Reverl'Cd r.n<l remllnc!ed.
1. Crimi .. ,,] l_'lw 1152(1)
Motion tor trial is ad-
dre :d to lOund of trial court,
\Ihlch is lIubject to review md correction
nilly if abused.
, ,

.. nl.
".
I '
j. ,
= ..
tJNlTED TATES v. I:OHELES 893
"
-,:: .'211 '<: \111M)
1, ' :imln:>1 LD.w
Cr.1erally. personll jointly it, i l'd
ould be tried together, parti.
wh il,dictment charges ry (lr
.,hich may be pro\'ed all
:Its by same evidence and" ich
from same or a series of aCls.
11. l,.imlna] Law
Single joint trial of several def(nd
ants may not be had at of de-
f, ,d3.nt's right to fundamentally ,ir
11.
..... ':".Inol Law
Facts of eaeh particular (
mine whether court abusl'd
tion in not granting separau.
",ne of ",veral dehndants.
I er-
,.
ial to
II. C, j, 'In,,1 Law
Fact that admissions of one of fe\"
f'r.tl might be introduced at
tI trial which would prejudice d"fenS!'
of rno\ant seeking separate trial would
not be sufficient to enable moyanl to iain
sq,arate trial as a matter of rirM, e-.,'n
where admissions olt. r de
fe ,danls.
6. CrIminal Law
Where it appeared in trial of attor
ney for suborning perjury, im]lCding ad
of and {oml'irllty,
thl IIttorney would Le ,.11 his
!j ,t who was a to 'Iitr.
t ,I for of gl'ttiag ;1110 l'\i,
tl (' client's l'dor .. lalel1.>nls le"J.,,"
ttO.1"y CQurt's ,J, of at-
l( NY'S ,oticm for S(T rMU- 1 :i:ll \\'I1!1
18 U.S.C.A. a71, 15'13.
1622.
I. l>'I"t ot th. ,
...... h1'Il nn .. Jollo .. .:
I 1622. SlIllor./I,tim. of l,rr11l'1I.
\\"}."e,-er pl"<lCUru .. it
"nr ptrJ"rr ",ill) of ... l, .. I1IIII;"O
"J I,,,,jury, IDd _bIll be 11" ... 1,,01 lo)n
tl,att $'2.000 Or '1Il1,ri",,,Pd "01 III t.
"'3.D. fh. Or bolh.
I 1.503. 01" ;nJ"rt"llq
rer, jNror Or tei/lie" Who--
her rorrul'lb", Or by ,h,,atll or t"rt'tI
10
,\.11., Or hn[ll'llc an)" ..-iIDf.', Itt If.,;
rourt ot IJoe Uoitl'll Stnl.. -
,,,,rupilr or b1 threats 0,. ("rre
7. ::>297( 1), SOO
Constitutional prohibitions against
clfincrimination gh'e any person the
rililht to refuse to answer questions which
miJlbt lend to incriminate him, and also
prohibit any ]lCrson on trial from being
called to witnes8 stand, and latter protec-
tion applies without regard to nature
of intcnded inquiry. U.S.C.A.Const.
Am<'nd. 5.
8. ("'<lmlnal Law
If allorney's duty to his client
, Quid require him to draw jury's atten-
. m to IJO<,<ible inference of guilt from'
a c(.dcfcndani's silence. trial judge's duty
is to order that defendants be tried
separately.
Albert. E. Jenner, Jr., Thomas P. Sui
livan, John C. Tucker, Kenneth S. Broun,
Chicago, JlI., Raymond. Mayer, Jenner
&. Block, Chicago, 11\., of counsel for
appellant.
Edward V. Hanrahan, U. S, Atty.,
,f,'hn Pc!er John Powers
Cro:..by, RaJm ..",d F. Zo;c(in:l, U.
S. for 'PI,cllce.
BeCore CAs'rLE and KILEY, Circuit
find GRANT, District Judge.
GRANT, District Judge.
This is an nppenl by Julius L, Echeles.
n mrmbC!r of the bar of Illinois lind of
this Court, from a verdict and a judg
Il'lil thereon fmding him guilty of sub-
orning perjury, impeding
or justice and con!lpiracy in violatIon of
1622, 1503 and 371, Title 18, of
I'IC Unit('d States Code.' The r6]11'Ctive
u,l .... o .... to ob-
.Inlet. 0' Ihe doe
110" of Ju.tl.."" bf' (1" ... 1 ",.t m",..
Ihlt" $:).000 Or hn;,ri'onrd ""I liON:
Ihftn I'ke Yf<I'., or
1371. Co, .. p/run/I.j to ."Mil (,t!r:".r
(lr 10 tk/,.,wd /'/littd '<;'nln. If '''0
or ,"vre (',n.I.lre tltJ'l'r 10
,,,,,,,,,It nor ... If .. "e "",In_I lloe t:nlled
or to d. f,.""d t"nit...!
or "fly a,eneY l!oterof io BD)" lnaDnU ar
for .n1 anti ane or mO.t or
.ucll .. 01Ul do an)" ad 10 elf....,t
ol>j....,1 of tt,e ron>pirner. ueh
be fined nllt mora than "10,000 or im
I
894
352 FEDERAL REPOR.TER, 2d SERIES
violations allegedly occurred during the
trial of United Statu \', I saac Hill and
Broadway Arringlon,t a narcotics ea:e,
in which appeJ1anl Etheles served as
attorney for one of the defendants,
Broadway Arrington. In this appeal,
appellant asserts three general
ments of er ror and places principal reli-
ance on the contention that the Govern-
ment did not establish II. prilll(l./ocie case
against him for the reason that there
WIUJ no ('vidence introduced at the trial
from which it ('ould reasonably be in-
ferred that appellant knew of the per-
jury, or knew the witnesses invoh'ed
intended to commit perjury or had fals i-
fied the record, such kno\\'l!:-dge constitut-
ing an c!lSential ingredient of the offense
('narged. Our review of the l'feOrn, how-
ever indicates that Ihe ('vidence on this
IHIS o( such 10 warrant
its to the jury ;Hld lhat the
drawn therefrom by the jury
cannot be s.1id to be Yet,
we do find error in the denial by the
trill l court of appellant's motion for
separate trial to be of sufficicnt gravity
to compel rt\'ersal o( appellant's con-
viction nnd remandment to the court bc-
low for new trial on all the i:u('s.
The facts most rclt'lI.I1t to
of this on the IImund nre
as follows: nrolld\\'ay in-
dicted with oth,'rs ("r ('(''''l,in,cy 10 I'io-
late the (ederal """reolics ]aw!t, it bf'ing
alleged that in late Arril, B)Gl, Arring-
ton M)ld narcotics to Mar ... in Moses at
Chicago, lllinois, was the only
government witness to thc alleged
As already noted, Julius Echelfll was
counsel for defendant Arrington.
Broadway Arrington's defense was on
alibi. He 8!ls"rted thllt he was in Hot
Springs, at the time o( the
allcged with Moses ; sJl('cifi.
cally, that he was a ,Ul!l!t in Pat Carr's
Motel in Hot Sprini'8 from April G to
April 29, H161.
I' _ ,1 lIot more II"" th-, or
b"'h.
Two witnesses, Pat Carr, the ownd
of the motel in Hot Sprinll's, and Lucil:
Smith, a fonner clerk at the motel. testi.
fied, in support of Arrini'ton's
that Arrington wos in fact a i'uest at
Carr's Motel from Apr il 6 to 29, 1961.
They identified a corroboratinll' molel
registration card as the one that had
been pl'I'pared by Mrs. Rmith in the
regular course oC durinll' Ar-
rinll'ton's stay. Arrington took the
in his own defense and testificd that he
had signed the motel registration card
on April 6, 1961, and that he stayed at
the motel until April 29. Both C:\rr and
Arrington testified that they had an in-
dependent recollection thai Arrington
and a man named Holmes had in
1I0t Springs at the end of !;farch, 1961,
at which time they signed a contract
to purcha.<e a pare!'] o( realty from a man
named Cain, and that Carr had acted
as broker in the transaction. Carr testi
fied that Arrington had returned to Hot
Springs in April to make arrangemen13
with regard to the property which Ar-
rington and Holmes had contracted to
buy.
Three days after Carr lind Smith had
te!ltified in of Arrinaton'lI alibi,
they were recalled to kstily 119 Go\'ern-
ml'nt rebuttal witnesses. They confessed
that their prior testimony relating to
Arrington's !ltay at Carr's Motel in Hot
Springs in April, 1961, WIIS and
that the registration card was s!'uriOUq,
it having bc('n pTl:l'ared at Arrinaton's
home in Chicago on :o.[IIY 24, 1963, (he d8)'
they on Arl'lnglon's behalf. The
card was (;11,,<1 out by ill",. Smith in the
rTch'nce (If (':Hr, Arrington and Arring-
ton's dl\lI)(hlf'r Barbara !>tfore
Arrington took them to EcheJes'
wh(re thty reviewed their t('stimon)' Jxo.
fore they went to court. When II, kl'd,
"Who told )'OU to id.-ntHy that card thue
liS bCing a r('cord of your motel?", Carr
answered, "The IlIwyer."
lri<'l. Court for Xorlhtrn O:.lrkt or
Il1inoi., II,e
Jul;,," J. H"trlhft". l'nitt"d Di.f.IN
" n,
h,
h,'
""
" ,
" ,
f:;
ri:-,
f.
'h
"
1
'6'
('liS.
"
f',
. I
,.
"
<
f,
,
h
"
.,.
f,
T
p!,.:t
f' J
ti-
'"t
,to
_\r-
'10
h,'
tiM,
, ,-
"
inll-

ffiN',
I"
.I.
),trt;'
(';orr

VNlTD STATES v. ECHELES
(' Q t' 2d "(! (lM:i)
Arri)) If) r. took the at - i" ,in The Court: And you- -1 "lnl to
in SUfi .:J, He a(1mitkd th t h test your intelligence hert_ Wh('n
registrnt rd was not aulh ti ,t you took the wilnrs!' ,':lIlu in the
he had II _c'd it in April, 1:' 1, ense where you were Iri. d and in
had teBtif.l'd. lind that it hnd L J1'. which you pleaded guilty :.:\('r the
pared at his home, as Carr and ilh Irial had progressed, you t"ok the
testified. Be persisted. however, in his witness atnnd and said that yol.l-
that he had been in 1I0t you admitted that the testimony you
Springs April G to 29, J961. Ar- had given in re_J1t'Ct 10 your Hot
rina-ton "Iso l(,,,tified at that tiT'" thllt Springs visit ., didn't
Echc1cs hld nuthing to do with bl Ii
the motel record. The CtIl1oquy.. ls
respect Wd as follows:
Question: Showing you De'" ,-
ant's E:r.hibit 4, Defendant AI
ton's Exhibi t 4, did your lawyer, :Ir.
Echelell have anything to do with the
preparaUon of that CIlrd?
Answer : No, sir, he didn't.
The day after giving the foregoing
testimony, May 29, 1963, and before the
calle went the jury, Arrinilon entered
a plCR oC &,uilty. At the time he entered
the plea, Arrington again slated that
Echrl\o.; had nothing 10 do with the pl' pa-
ration of the Calse registration card or
with Ih(' l'l'rjured te'Stimony:
TI,r c"urt: Mr. An ir ,'ton, the
law )00 the right to "pellk in
)'our Oll"n behal f. r give you lhe
privilege of saying anything you
would like to say.

DefclIllant Arrington: I.a\'e
n .. bei>n in pri>'On b<cfore ard T
am IIsh .. med. I would nPrr ...... !:tte
if you would do the b( ,t )<Ju can 'I;<r
me. I want to say aile oll ... r thing,
Judae, Mr. Carr didn't tell the trulh
on Mr. Echeles when he tt,lIUfL .. d
from the lIland. Mr. Echcle8 didr,'t
tell him to Ra y anything. lie :"hd
him a fe ..... questions, ):;vw I"Tij: he
had been in 1I0t li',(e
that. That did nt tell him TIO te:.<ti-
many in thi, trial. ,II I I ave
to lillY
ThHean",r, on June 27, 1963, Ulll'" his
plea of a-uilly Arrington WitS 1!('lItenct-d
to 12 years imprisonment. At the time
of his '"ntencing, Arrington m:l.le the
followinlj: statements in open court:
you?
Dcfemuml ArT! ,I
mean about the caro-
The Court: And u
that Mr. Eeheles did r
do that, isn't that riaht!
Defendo.m ArrinO/tII!:
tell the clients what to do.
<, but [
id th.n
II you to
He didn' t
The Court: He didn't tell you
what to do about that, did he? You
aai d that from the wil:llllS stand and
you said it I'ight at the lectern
at which you stand now, that
right!
Defendant .-1"
ThrCourt: TI:
Ar.
II: Y ,i r.
r . -fl't it!

The GOH'Tf II t alter
to the 'J' ,I !,':tand
jury in Chicago. Th' grllT,d jury e,en
tUlllly returned nn indictment against
Echeles-, Arrington nnd O'Neil in
,"e counts. Count One illvoll(d Arring-
ton only. It charF 1 c" of Title
18, S{--ction 1621, in Lt I\. eom-
mitt<,d perjury 'Y', :, !!uring
his n!1I'l:otica tri:ll. 1 t th;.t on
April 6, 1961, lu \ration
card of Carr', :.I<..tel. Hot E'p . Ar-
kansas, and that he had not :d the
card on or about 24, : 'i3.
Count Two chllrrl'll lbl "r about
May 24, 1963, .1'lliul 1._ E ' .. l,.,s and
Broadway Arrington k " i!.:y plt'cured
Pat Carr to P.t ,I", \rri ng
ton trial that (a) Arrin.ttJ', I in Hot
Spring!! (rum AI,ri) 6, 191i1. to April 29,
1961, to pun::h"ge ".me pruj from Pat
Carr; (b) on Apri l 6, 1961, :1.. rington
signed a cnrd of Carr's
(c) the tbn c,lrd had
been in the care Illld t( ,1r'1J of Carr's.
C&
J
896
;fot Ifre m Ar,ril 6, 1961, until produced
(In the in Arrington
.rld (d) the card was an authentic
rec(lld (If the motel-all in violation of
TlU '8, 'ion 1622 of the United

C III i"inee charged that on or ubout
!.h.y 2-i, 1963, Echelcs and Arrington
he' "Wly procured Lucille Smith to give
the lame false testimony at the Arring-
ton "ar<:otics trial as specified in Count
T .... -o with the exception of (a). Such
al"O a violation of Title 18,
'" ,n 1622,
C ,nt Four, charging a violation of
TiUe 18, Seclion 1503, alleged that on
or about May 24, 1963, Echel!'s and Ar-
rlr atnn knowingly endea\'ored to Induce
Pal r,nt lind Lucille Smith to
tnl ly at the Arrington trial.
nt Fi\'e charged th:lt from on or
ab t 'by 13, 1963, to on or about May
29. Arrington and Bar
Lala ii' rnwil,giy cOI:_"l'inrlto c(lm
mit the ;." alleged in Counts Two,
Three and Four.
The (lilly overt act charged to ha"e
h. '; Cv r lilted by Echeles was a con-
"erution on or about May 24, 1963,
IImong }:(hdes, Arrington, O'Neil, Carr
and (in Echeles' office), at ChiCa-
go, Illinois. Such act was a!1eged to
11,_\1' r tiluted a violation of Section
371 "18, prohibiting to
It -.. agllirrst the United
u.
'cfclt!bnL"- named in the
' .. ncr cntA'r"d 1'1('a8 of
u y, ... }. 'n, on Hi, 1963,
'P. t dividual1y tiled a motion for
IIl't,arate 'ial, basing sai d motion on
thne 51'1 ( 1) that he, Echeles,
\H"lld! I judiced by the admbsion in
e\iI' j'e (Of of codefendant
Ar:' ill ,n ',"hleh may al1mis
Ii,,: 11 Count One of the indictment;
Til ,t a j('inl trial would .1"IJrive him
of his li,"1t to call his co-dcfendanlll as
witl s: :md (3) that the Go\'('rnment
nay ha\-e I'ted co-defendants into
h kl nls inculpatory of him,
.-Meh I )t ndmis.sible againat him
would be against the declar-
ant, to defendant Echelu' prejudice.
The motion for severance was denied by
the trial judge from the l>cnch on J anu_
IIry 29, 1964.
[I-4} It is to the sound discretion
of the tria! court that a motion for sepa-
rate trial is addressed. Opper v. United
States, 348 U.S. 84, 75 S.Ct. 158,99 L.Ed.
101 (1954); United StIIles v. Shotwell
Mfg. Co .. 287 F_2d 667 (7th Cir. 1961),
aff'd 371 U.S. 3-11, R3 S.Ct . .J.18, 9 L.Ed.
2d 357 (1963); United St:,tca v. Kramer,
236 F.2d 656 (7th Cir. 1956). It ill also
quite clear thaI Ihis is >'ubject
to review and eurrection only if abused.
Olmstead v, United Stales, 19 F.2d 842,
53 A.L.R. 1472 (9th Cir. 1827), aff'd 277
U.S, 438, 48 S.Ct. 564. 72 L.Ed, 944
(1928); Gorin v. t,;niled Stales, 313 F.2d
611 (1st Cir, 1(63): VnHrd Slates v,
Haupt, 136 F.2d 661 (7th Ci r. 1943).
The !Jut of _<uth motions
fur <';"'r:lte lri:d fro 'lu('nli)' confront the
courts in cnses, where the
general rule has e\'olved that persons
j oi nU)' indicted should be tried together,
lIall v. United Slates, 83 U.S.App.D.C.
166, 16 F.2d 161, 163, 4 A,L,R2d 1193
(1948) . cert. den. 334 U.S. 853, 68 S.Ct.
1509,92 L.Ed. 1775 (1948), particularly
so where the indictment chlll'lIes II con-
or a crime which mn)' be prond
agninst all the defendants by the
evidence nnd which t't'fults from the snme
or a l!I'ries of acls. United Slates
v. Lebron, 222 F.2d 581, 535 (2d Cir.
1955). cert. den. 350 U.S. 876, 76 S.Ct.
121. 100 L.Ed. 774 (1950): lJr,ilt"d States
". Cohen, 124 F.2d 16 t, Hi5 166 (2d Cir.
J941) . ccrt. d('n. -'1Jb 110m. Hemstein \'.
United State!!, 315 U.S, bU, 62 S.Ct.
796, 86 I..Rd. 1210 (1942). Neverthe-
lrss, II joint trill l, howenlr desir-
able from the I,oint of view of efficient
and exprditious criminal adjudication.
may not be hnd at the expense of II de-
f "danl's ri ht to a fun .
U1il..-Barton v. Il1ted State!!, 263 F.2d
89-1, 8!18 {5th Cir. 1959); United States
v. Kahancr, 203 F.SuI"P. 78, 80 81 (S.D.
N.Y.1(62); Schaller v. United States,
221 F.2d 17, 19, 54 A.L.R.2d 820 (5th
cI:u'_

d by
anu_
,tion
l('pa_

161),
Ed.
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0
bj,'l'!
U!IN.
842,
1277
, ..
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\'.

inns
I the
oh,
"IU
lI,pr.
D.C.
1193
S.Ce
Indy
Int'
me
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}l't

I Cir.
in \'.
S.Ct.
rthe-
I,,,,,;r-
: 'nl
.tI(n,
:a Je-
{"ir
}-',2d
,1.,k5
(S.D.
t.all'!',
(5th
UNITED STATES Y. EOHELES
Clte ..
897
Cir. 1956); United States v. Haupt,
supn, 136 F.2d at 671: Hale v. United
States, 26 F.2d 430, 438-439 (8th Cir.
1928). What eanstit utes abuse of dis-
cretion in terms of safesruardinsr each
defendant's rights in such cases neees-
lIari l)' depends upon the facta in each
Ilarlicular case. Schaffer v. United
supn, 221 F.2d at 19; United
States v. Kahaner, supra, 203 F.Supp. at
81; Brady v. United States, 39 F.2d 312.
813 (8th Cir. 1930).
[5] In the proceedings bclow, defend-
ant Echeles was the occupant of what
has been termed the "uneasy chair" gcn-
erally resen'ed for co-defendants in a
conspiracy trial. Krulewitch v. United
States, 836 U.S. 440, 454, 69 S.Ct. 716,
98 L.Ed. 790 (1949) (concurring opinion
of )Ir. Justice Jackson). That is,
Echeks. as he stated in the first of the
three grounds lende..w in support of his
molion for severance, fact'd the
of defendinsr himseU in a Irial in which
lu.lmiuions would be inlroduced into cvi-
dence asra;nst his co-defendant, Arring_
ton, which, Echeles feared, would preju.
dice his own defense. However, it has
repl'aledly been held that this alone. evcn
where the admis.sions incriminate other
defcndants, is not suffi cient to enable
movant to gain a separate trial liS a
maHer of right. Unit ed Slales v. Cnron,
26G F,2d 49, 51 (2d Cir. 1959); IIa1\
v. Unitcd Stales, supra, 168 F.2d at
163; ('"abrc"O \'. Unitl'd SIMes, 167 F.2d
820, 1123 (1\h Cir. I9IS).
[6] Yl"t, the inniminatory nature of
the against his co-defendants
was not the whole of Echeles' problem in
dl'1'tnding himself in the joint trial. For
it apPl'ared that, in a trial with Arring_
Ion as a co-defendant, Arrington hltving
made J;iattmenl$ in open cou rt excuIJ18-
tory of Eche1es, Echdes would be unable
to call this co-defendant to the stand for
the of getting the Mme or ijimi-
1ar siattmenls holding Echeles blameless
into evidence. It is this circumstimce,
which con,tituted the second of the three
grounds upon which Echeles bned his
motion for sC\'crance, together with the
otherwise inconclusive nature of Ihe first
III
such ground, this Court
10 find error ir n.c trial court's
of sai d motion" 'r a ,eparate trial.
(7) The G"ernment contends that
Echeles' f ailurc 10 or aHempt to cl111
Arrington as Il witness precludes any
claim of error in this Court, citing Unit-
ed Stales v. Vasen, 222 F.Zd 8 (7th Cir.
1955) . The Vasen case, however, has
nothing to do with ee,'erance or with the
problem in this and we
do not find it coni rolling. thia
contention mi. '.'PTtcehel one of the two
fundam('nlal rloltclions afforded by the
Fifth Amend, .. 'i!:ht
crimination. By its lirst and fa-
miliar protection, this Jo'ifth Aml:ndment
provision gives any person the right to
refuse to answ('r questions which might
tend to incri minate him. But equally
important is the "unh'ersally held" in-
terpretation of thiB right prohibiting any
penon who b on trial for a crime from
bdng (<'llI'd to the j('illltBa .Imld. 8
Wigmflre on E ... id,nce 406 (Claim of
Privilqre. '22G8): McCormick on E\"i-
d"nce 257 .. 2ii!l
124) (1954). The s('{'ond prolE'l'tion ap-
plies without regard to the 11""ure of
the intended inquiry; that is, a uefend-
ant on trinl cannot be required to htke
the stand 10 answer e\'cn the most in-
nocuous, liOn inc liminilting inquITles.
Nor it make a difference whelh('f the
def('ndHnt ;s ('ailed to the by the
prosecution or a codt'!(ndant. 8 Wig-
more Oil Ellidtnce 410 (Clnim of Privi-
kgI'. 2268).
This distinction was discussed in Unit-
ed States \'. Housing Foundation of
America, Inc., 176 F.2d 665, G6G 13rd
Cir. HI49), wherein the cuurt ren
O\'('r "l.jedi'lfi. one
had been to c;lll !r.e other to
the atand. that .'uch constituted
"so fund.:ll::Jeninl an error that the judg-
ment must I,e 11;:\'erHd and a new trial
ordered", the cuurt said:
The error made from
confusing th(' privile&e of any wit-
ness not to give incriminating nn-
swers with the right of the IIccllsed
not 10 take the stand in a cri minal
;lIon against him. Both .:ome
thll.l the proteetion of the dause of
I.e :Jth whkh provides:
'0 [,('r. on shall be .:om
.t! in any .:riminal .:ase to be a
tnrSl! ngninst himself." The plain
fferE'nce between the privilege of
n .fld t1ccus(>d is that the
<Y not be required to lake
'mt! at all.
S al>lO, to the same effeet; United
v. Keenan, 267 F.2d llS, 126 (7th
Cir. 1959), cert. den. 361 U.S. 863, 80
S_Ct. 121, 4 L_Ed.2d 104 (1959): Uniwd
S ,tu \". Blnjamin, 120 F.2d 521, 522
<i Cir. 1941); Poretto v. United States,
1 I .2d 392, 394 (5th Cir. 1952).
(1IJ Thus, Echeles .:ould not prOJM'rly
cllll Arrington as a witne!',S during
"I" h<'les' in chief. For if Arrington
il d to tnke the 4nnd, as was his
aelion in alliing him and
him 10 dedine to do so in front
jlJT)' would have injected preju
,r into the record as to Arring
Luna v. United Slaws, 308
1-' d 10, 141, 1 A.L.R.2d 969 (5th Cir.
19(2), wherein it was held that the
<.Jdend:lnt had the constitutionally guar-
an rrd light of silence free from l'leju
',1 'I'lmenis, cven when they Clime
;: y fl 'm codefendant's attorney, the
celli Lid in l;\nguagc applicable here;
If an attorney's duty to his
c'ient require Jlim to draw
]",I"'s attention to the possible
of guilt from a co-defend
the trial judge's duty
1, r that the defent!anl.!l be
I raIRly.
r)\ernment further contends that
" jlO}ition in of his motion
, ranee in\'olved in-
.!' in two assumptions:
t, th:lI Arrington would be tried prior
o E,h ' s, and secondly, that Arringir,n
W" ;t claim his Fifth Amrndn1l'nt
I,n against selfincrimination if
II. witness in the trial of Echt'les.
A . h first we do
c it would have been egregious had
t!-:e t al judge, after grant ing the motion
for separate trial, also directed the Gov.
ernment to pro.:eed firllt with the .:ase
against Arrington.
With regard to the quution of whether
or not Arrington would claim the privi.
lege if he were called lIS a witne!lS during
a trial of Echeles alone-a trial held sub.
!!f'quent to his own we Clln only say that
8uch question was not properly thr Gov-
ernment's to interpose. Speculation
about what Arrington might do at a
late r Echelea trial undoubtedly would be
a matwr of !lOme collcern to Echeles, but
he should not of the pollS!-
bilily that Arrington woultl I"stif), in his
because thllt
was not a <:crttlinly. Peuple \'.
Cullough, 81 :'>Iich. 25, IS X.W. :,IS, 518
(18!l0); People v. 272 N.Y. 21:;.
5 N.E.2d 206 (1936). :-'!ort:O\'er, it would
in fact seem more likely than not that
Arrington would have testified for
Echeles for the reason that three times
previously, in open court, Arrington had
voluntarily exculpated Echelc!'!, apparent
Iy contrary to his own penal inkrest.
Spe<:ultltion as to whether or not Ar-
rington would claim the j,ri\'i!ege .!It a
later F.,hdes Iri;I1 htl3 uther
collateral n;"lml'll', \\hdlwr the
a,ked III . urh a trial
would not bc llilhin the "_,,pe of .\ning
ton's privillge, nnd ."rrington
hud not wah'cd hill privilege nil a'witness
by fully :Ibout the circum
stances on during the nar-
coli.:s trial. Such questions, I!p<'culalive
as they are, we do not now reach; th..,y
ean properly be (kdc\('d ir and II"h..,11 they
nri ... e in II fulure
Ecllrles. At Ihis .

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NICHIMEN co. y. ASHBAOH
CIte .. Jl2 F.2d _ (18155)
899
This is p,lrticulafly true where, as here,
the opportunity was so readily available
_s the court said in Schaffer v. United
supra, 221 F.2d at 19, revefsing
s. se\erance was denied: "There
being only two defendants, it would not
be H'ry time consuming but entirely
practicable to accord them separate
trials. . "
In reaching this conclusion, we take
spe<:ial note of the {act that during the
joint trial of Echeles and Arrington, the
Go\"ernment was pennitted to introduce
into evidence the incriminatory admis
sions of Arrington takcn from the tran
&cript of the prior narcotiCll trial, while
an objection was precluding
Echeles from t('ading into evidence Ar.
rin,.ton's statl'ments protesting the in-
nocence of Echl'les contained in the same
tr ,t:,ocripl While the ruling of the court
ixlow as to these evidentiary matters
WIlS perhaps the only one possibie under
the circumstances, it really served to
.; the error previously cc:nmit.
and to emphasize that the scall's of
had already been tipped to favor
the Go\ernment.
The judgment is reversed and the
cllu.o.e rl'manded for further proceedings
with this opinion.
Reversed lind remanded.
NI('UDIEX CO., Tne., PI.,llllifr-'\I'l'dlee,
"-
L mard Detendnnt,Appellant.
:So. 15141.
United States Court of Appeals
Seventh Circuit.
Nov, 12, 1965.
Action to recover damages becnuse
of fraudulent conversion, From II judg_
ll"'nt of the United Slates District Court
for the Northern District of l11inois,
E;,,<tern Division, Joseph Samuel Perry,
J" th", defendant appealed. The Court of
Appeals, Hastings, Chief Judge, held, in-
ter alla, that where under agreement title
to radios sold was to remain in seller and
accounts teeeh'able were to be delivered
to se11er, acts of buyer, or those acting
under hb diredion and control, in Illedg-
inr r:>dlos as co11ateral for a loan, assign-
ing ae<:ounts receivable to lender and fail
ing to remit proceeds of accounts, which
acts were done without knowledge, con-
sent or acquiescence of sel1er, to ita re-
sulting damage constituted fraudulent
acts of conversion under Illinois Jaw.
Affinned.
1. StIles ::I218
Where subsequent to buyet's default
in payment for transistor radiOli the par-
ties agreed that all merchandise thereto-
fore purchased and al1 radios thereafter
delivered should be delh'ered in bonded
warehouse, tiUe to remain in seller, and
there were no inter.enin,. rights of third
parties involved in transaction, the con-
tract r<'invested seller with title to radios
anl\ accounts receivable and provisions
for \,bt."Iilling J'IO, and conlrol were
In"rely 10 further ;ure :md protect title
of
2. C:>1(I1
In It .!Inles contract of personalty, ti-
tle is trnn:lferred from se11er to buyer
when parties to contract intend it to be
physical transfer is not es-
.'!l'ntial to passage of title .
S. Tro,'er lind COIJ"ellilon C:>IO
Whtre under agr",eml'nt title to ra-
dios sold wa, to in and ac-
COUIlU rf.'Co:i .. able were to be delh-ered to
seller, :lcts of buyer, or those acting under
his direction and control, in pledging ra
dios as collateral for a loan, assigning-
accounts receh'able 10 lendl'r and failing
to n:mit proceeds of accounts, wJ,jch acts
were done wilhout knowl.,dge, conM'nt or
aequh:scenee of seller, to its rc"ulUng
damage fraudul('nt ncts of
con\'elliion under Illi nois law.
4, ExccuUon =o42S, 4:a
The term "malice" as used in IlIi
nois Inso!.'ent Debtors Act applics' to
that dasa of wr<Jngs which nre inflicted

225 PREJ UDICIAL JOi;>;OER
rh .
14
other persons,71 and they may be held not to provide surn
cient As a last resort, if nothing else \\;IJ .
the prejudice, a sc\'crance must be 1
225. -- TC'slirnoll Y of :L CodefenJant
Three kinds of problems with regard to the or II
defendant may arise on a request for relief from prejudicial J
74. May Cilil aUentlon
Rezneck, The New Federal Rules of
Criminal Procedure, ]066, 54 Ceo.
LJ, 1276, 1310.
75. Not sufficient
Reversible error to
where confession (lr one coddcn-
dant admitted [n evidence Impli
('",I'd other defendants, c,'cn
though mlmC$ or other dercndants
were blanked out before confes.
sion was read to Jury. u. S. v,
Bo:u:a, C.A.2d, 19G6, 365 F.ld 206,
2]4-218, noted H167. 28 Ohio SI.L.
J. 356.
"To be sure, the trial court devised
a procedure under which the con.
fl'Ssions were introdUCed without
of the narnes of the other
J)(,,,ons implicatC<i. But their
names were in fact re"l'alcd in the
of the crt::ss('".rnin3tlon of
the cCHlfe,<ing petitioners.... An.
derson v. U. So. 1943, G3 S,CI. 599.
602, 318 U.S. 35(1, 156, 87 LFA.
829.
Ddendants obt:dn','d conks
were in3!1mio"ihle hC;'lrl>.1y lIS
to codefendants, notwithstanding
that codefendants' were
omitted from confes_lons,
olhet testimony obout tooefen.
danlS made it obvious tMt Ihe
names were thrlr . Jones
v. U. S., C.A.I!!6-I, 142 .. .2d 863,
119 U.S App.D.C.
''In the case at bar It .n \0 us
plain Ihat the expt"Jiclll <,u!:;;,
by the app<!l1ant; I. e. 10 black out
the names of Delli P:.oli and Mat
-:;:iasso would have been fullie.
Read upon the olher
e. idence of the prosecution's wit
nesses that had conn(.'(:tcd Delli
Plloli with and Pit rro
ihe ' service station' and e].'II:wh re
there could not have been
slighte5t doubt as 10 whose n;ll; '.os
ocen blacked Oul; and. if
thl'rc bn. Ihe
i\. .",,,,,Id ha'e not only I .. id
doubt. but u:l,l<."r,""orcd the
swer." U. S. v. {)(Olll ('aoh.
2d. ]956. 229 F,2d 319, 321.
firmed 1957,71 S Ct. 294. 352 L'
232, 1 I...Ed.2d 278.
See note 69 above.
7G. Severance required
U. S. v. Bona, C.A 2d, I!lGG, 365 F.
2d 200, 21'1-218, desc:'ibtd nOlI' ,5
above.
When government Insisted upon
the introduction, Igalnst
fendant and to the surrrlse of de.
fendant. of fe(!eral .,:,,'n\'5 I<'SUmo
ny thai C(h!c-r"n<Janl
that dcfcn,h:lt I n'l ht 1;.';1.'
che<;:k to 111m, h d lold h:m
thJt "ot hi' ("].1:1.'1; .. /ld
had asked his .,Id In ("" hlng It, de-
fendant was ('nlil:'-d to a m'5trial
in "iew of the potcntially grcal
prejudicial effect of the le$limony
in re]ation to 115 Imporlance
10 government's case and in \" .v
of fact Ihat situation was not Sl;S'
ceptible of correcHon by
I;on. Florcs v. U. S., CAStll.
1967, 3791'.2d 905.
At,se of discretion not 10 order sev
erance whue had
made an incriminlting
Barton v. U. S., C.A..5th, 1959, 263
F.2d 694.
Schaffer v. U. S, C.A.5Ih, 19.>.5, 221
F.2d 17,.54 A L.R.2d 820.
See Belvin v. U. S,
273 F.2d 583, 5S1.
C.A:;lh, 19GO,
'56

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Ill .,
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F.
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Ch. 5 PREJUDICIAL JOINDER 225
Rule 14
First Is the case in which onC! dcf(,lldant lakes the stand and
pUIS the blame on the other defendant. Such testimony is not
h"-rsay, since it is given in open court, and it Is admissible
t!'- :'ls1 thC' second defendant. Wbere this is in prospect a scver
nne may be ol'dcred,n but it is not I'cquh-ed.:
s
'COnd problem arises if one defendant wishes to usc the
I-,ony of a codefendant in his own behaU. One defendant
n not n:-quh'C another to take the sland at a trial in which both
a'L -'harged, since this WQuld be inconsistent with the privilege of
Il ,.Tlminal defendant not to be called to tile stand at al P' H a
dLfendant docs take the stand and testify at all he waives his
prh'iIege not to answer questions about the crime charged.-
Thus at a joint trial a dcrendant who docs not wish to tesury on
own behalf is hal'dly likely to take the stand on behalf of a co-
d"r"ncL'mt,
17. ordered
,)unsel ror ddentlant Luis
dl'S pOintedly Valdes, If
compelled to go to trial together
\\ith defendant Vega, would have to
prepare defense against IWO ad
, '. r .'aries, the United States and c0-
d Vega. They would be
united in their effort to convici
We must agree that under
Ih"se conditions, a JOinl trial would
be the equivalent of a denial of a
r .. ir impartial tria!." U. S. v.
DC,Puerto Rico, 1967, 262
F.."'Jrr
474
.
r' II tri;,1 nQI j'nproper
C iet n lOr ,kknd"nt in narcotics
I "em not error
t "r r"nure to sever .... here
c r 'nl ... ho testified m:t<Je no
, ;,( to incriminate defendant
did not le5Ufy, other than 10
laller's presentt ..... hen al-
1"TL'<i illegal acUon was formul"ed
.nd carried out. Fields v. U.S.,
CAAlh, 1967, 370 F.2d 836.
. nce was not required. even if
t('ti:nony of one dcfC'ndant on hC' r
own b,half tended to est.bllsh a
Ih- kt,\"een her and her codcfen.
n. had lK'en supplied only
,: -er.ti >1ly in the government's
case. U. S. v. K;jhn, C.A.2d, 1966.
300 F.2d 259, :!G.l, ;;crtiorarl denied
87 S.cl. 321, 385 U.S. 94S, 17 L
Ed.2d 226.
In pros:utions for narcotiC5 viola.
lions, even Ihough when one of
the defendants \"oluntarily took
the witness sland he verified .some
critical portions of the cvldencc
given by government agents, nev_
ertheless. It was Within trial
judge's discretion 10 order wdl
defendant to be tried along with
two other defendants, and record
did not abuse of &Ileh
dlscrelion. U. S. Y. Soto. C.A.7th,
J!l';.q, '!56 F.2d 729.
79. 10t require tes-
timony
U. S. v. Foundation of
America, Inc., C.A.3d, 1919, 176
F .2d 665, 666.
See U. S. v. [chelf':!!. C.Aith, 19G5,
352 F.2d 892, 897-898.
80. Wal\'er of rrl";lege
Johnson v. U. S., 1943, 63 S.C!. 549,
552, 318 U.S. 189, 195. 87 LEd.
70<.
McCormick, Evidence, 1954, f 131.
457
225
Rur. 14
PREJUDICIAL JOI:\DER
Ch. :;
for a severance so that n (It.fC'ml:mt may lx! able to call
a codefendant to Ule stand are USU.:ll!y d.'nil'd." TIle courts "
a healthy, and quite justified, whether the cl('r"'nd .nI
would call his codefendant If he coulll,"! and \\heUICr e.
defendant would /lot claim his conl'lituli0nal even In n
separate! trial.'J There arc a few cases, howc\'cr, In which it s
81. Severance refused
Where defendant and codefendant
were charged as members of con-
spiracy under one count of Indict.
m!'n! as to violation of Hobbs
Act refusal to Grant defend,'nt a
$Cvcrance from codrrcndant on
ground that dcfrndont was unnhle
in joint trial to compel effective
testimony from wou
not an abuse of discretion. S,
v. Sopher, C.A.ith, 1!l66, 362 F.2d
523, 52S-5l7, certiorari 87
S.CL 286, 38S U.S. 928, 17 LEd.2d
210.
The granting of a severance Is targe-
ty a matter of discretion; and In
prosecution for mail fraud In sal e
of securities, court exercbed Its
discretion to deny application for
severance, notwllhslandlns appll_
cants contention that his only
connection with tran1'.;1cUon had
as a "rimler" o( stock for
firm with whleh other defend.lnts
were aS50Claled and that oth
er defendants might tail to hike
stand at Joint trial, and they werl!
only ones who could testlry that
he was wholly disauoclated with
selling efforts of thei r firm, hI!
would be deprived ot his constitu_
tional rights 10 have compulsory
process for obtaining witneS5es in
his (:lVor unless he was grant ed a
separate trial. U. S. v. Berman,
D.C.N.Y.1959, 24 F.R.D. 26.
1'.2. codefendant
would be eall(!d
S:.re aSSl.:rtion that without .ever_
anee defendant could not ClIIl his
codefendants as does
not warrant on the theory
that if he could he would have
done so. Brown v. U. S., C.A.I967,
375 Fold 310, 316-317, 126 U.S.
App.O.C. 1301, certlorarl denied 81
S.CI. 2133, .lS8 U.S. 915, 18 LEd.
2d 1359.
Motion by cerlain defendants to
lhelr ease. for trial on ground that
at one of the other defcnJ_
nnll made exonerative ltate.
m' nts lind would be a necess;.ry
wilness In their lwh3lf It trial but
that he might :he
b.ndit of bi5 le,ti 'y
by I""'tling his prinl<'[:e w.
nit'll where norhing s"t- _I
was offert'll in support of _ n
and movants merely made h:>.ld
&ettlon that someone had made ',r
might make exonerative statem,"t
In their behalf. U. S. v. Tannn.
D.c.m.I967, 279 F.Supp. 457, 468.
I>cfcndanu Joined in 5ame Indict.
ment were not entitled to separate
trial on ground that testimony of
coddcndant could exculpate the,..
but llIat codefendant would
to take ltand In Joint ltial, where
no faels were furnlsht'll as 10
ture, ('xtent and ImpOrt3nce of 11.e
exculpatory testimony thnt would
be offered. In ,'epar:>te triall. U.
S. v. D.C.N.Y.I%7, 271
F.Slrpp. 150, 151-155.
83. ';1;,-pHd. III ,,!lether eoderendant
would
Denial of one codefendant's motion
(or trial made on ground
that It would afford moving code-
fendant opportunity to call oilier
codefendnnt al witness for pur
pose of explaining his pas."".!nn
o( narcotics was not abuse of ,!;,.
eretlon. moving co<ldl'T,' nl
did nOI show or a<.<crt Ihat . r
coddendant's vero'on of fo< '5
would have any e .. , 1:11 lOry '.ct
or that other eodd , :",t \" 'd
IT'ore Hhly t<"$tlf), were he lrif.'d
'I'arn:dy. Snlith v. U. S., c.A-
lh, 1967, F2d 34, 38-
n".". Is no rut
!>el" rante when dcfe.ndanu SUI:'
458

,
,.
.,
,
'.
,.
,.
,
Ch. 5
JOINDER
225
Rul. 14
held that a scverance 15 necessary on this ground. In one the sec-
ond defendant had three times, in open court In a prior proceed-
Ing, exonerated the defendant now seeking 11 severance. 111US
the probability seemed strong that he would give helpful testi-
mony at a separate trial, particularly if the sCCQnd defendant
were t.rled first. fI In another case severance was ordered even
though an oICidavit for the government quoted the second rle-
fcndanl's lawyer as saying he would advise his client to claim the
gest that tt'lilimony of codefendant
IS not available to th('m unle"
lhey are tried separately. and the
unsupported possibility that such
testimony might be forthcomi ng
doe. nol make denial of molion
for severance erroneous. U. S. v.
Kahn, C.A.7th. 1007, 381 F.2d 824.
841, certiorari denied 8S S.Ct. 591,
389 U.S. 1015, 19 L.Ed.2d 001.
Denial of severance, in consplmcy
prosecution, as to codefendant
who alleSedly conveyed to vletlm
thre:1t. from defendants, was not
libuse of discretion although code-
fendant stilted that he would not
teslify in khalf of defendants in
any trb[ in which he was also de-
fendanl, wMre cO<lc(endanl's affi -
(hvlt that he lnkndcd to
invoke privi!cge a.:ain'l
crimInation whether he testified liS
codefendanl or liS defense
witness, motion was not made un-
tll aft er defendants had testifi ed in
their own behalf, and all defend-
ants put forth single defen$(',
without attempting to shift
among th(mselves, although de_
fendants claimed that codden-
danl'l refusal 10 testify was not
brought to Ihelr attention untl] [m-
mediately before their motion.
i(olod v. U. S .. C.A.10!h, 1967, 371
f.2d -'''3, 900-992.
E\'cn if J"int tria] of two defendants
t.lade [t IMS ![l;ely that one \\oold
give ex<;"ulpllOry evid' neil for the
other, that did not make denIal of
motIon for severance elToneous, at
least In absence of noything Indi
elI!in, that codefendant woul d
ha\'e given exculpatory evidence.
U. S. v. Kahn, C.A.2d, 1966, 366
F.2d 259, 263--264, certiorari de-
nied 87 S.CL 321, 385 U.S. 948, 11
LEd.2d 226.
-rv,'o of defendants who were
charged with conspirins to bribe
were nol entitled to a severance
on ground that testimony of co-de-
f .. ndants to their de-
fense :lIld that such
would not be n\'lIilab]e to them
unless ea<h defendant ..... tried
sepamtel y so thaI
could be put on the stand. Gori n
V. U. S., C.A.Ist, 1963. 313 F.2d
64]. The court said, III 645--646,
that Ihe argument WII unrealistic
nnd that there was no tl:a$On to
think a codcfend:mt would be more
wilf,ng to waive his privilege In a
separate tria] than In a Joint Irial.
U. S. V. Pilnick, D.C.N.Y.I9G7, 261
}-.Supp. 791,800.
U. S. v. lAil,lhton, D.C.N.Y.I967, 265
F.Supp. 27, 31.
U. S. V. Van Allen. D.C.N.Y. I 96I, 28
F.R.D. 329, 338-339.
84. ProbabUlty of testimony strong
U. S. v. Echeles, C.A.7Ih, ]965, 352
F.2d 592. In that case the court
said, at 898: "With regard to the
question of whether or not Arring.
ton would claim the pri\"i]ese If he
were called as a wilnes, during a
trial of Echele, alone-a held
subSl"quent to his own-we can
only say thai was
not properly the (jovernment"s to
interpose. .bout \\hat
Arrington mIght do at a later
Echdes trial undoubtedly would
be a maller of some concern to
Echcles, but he should not be fore_
closed of the poS$ibillty thnt Ar-
rington would tesllfy In his behalf
merely thai e\"entuallty
was not a certainly."
159
225 PREJUDICIAL JOINDER
Rull 14
prhi]r'gc even in a. sc:ond trial. TIle court pointed out that the
second (lefendant might be tried first, and that the prh ilr
might no longer hi! ,n-ailr.Nc to him when called as a \\itn lne'l
that en'n if the mo\'ing lkr"ndant were tried first, the So ,nr'
d"r 'hnt might ignore h; 1 ,-YCt"s advice and wah'c the pn1:_
1(
TIle final problem Is well illustrated by the dcclsion oC th( Fifth
Circuit in De Luna v. United Slates... It Is of course 'h,. "
that the Constitution pl'Ohibits any comment on the ;1, IN'
criminal defendant to take the stand." The De Luna n
sidcrcd thc applicati on of this rule where (inc defendant, \\110 h -
tesUCicd, w\sh('s to con l"'( iI, on Ule failure of a coddc, ! Iflt to
take the stand.
De LWHl and Gomez \\"(2 rkd together on narcotics chargM.
COffiN :e!;tiried In his own {('nS(! and put all the blame on Dc
Luna. De Luna did 110t te1"lify, but his attorney arguC'd that
Goml"'Z was the sole culprit. 'The attorney for Gomez in hi" d.1I'-
Ing argument rderred fOl'Cefully to Ihe fact that his client was
Innl'sl enough and had courage enough to take the stand and
the whole story but t hat the jury had not heard a word fl'Orn D:!
Luna. The jury acquilloo Gomez but convictoo De Luna.
On appeal Dc Luna's conviction was re"ersed. The majority,
speaking through Judge John :-OIinor Wisdom, said Utat the com
ments of the attorney for Gomez were proper from his point flf
"jew, since "his attorneys should be free to draw all ration 01
infeN'nccs from the faHure of a codefendant to testify, J
attorney is to comment on the ('ffC'et of :my intert'. ,1" 1'1\
fniilu"C to produce material "\",kncc in hi s '. r to
witnCSlOcs who ha\'c know\, of pertinc'nt fadS." 1.1"11 :1
men!s, however, while I'roj;'\" from ConlC'z's point of \io.;", \\('I"l!
85. might UI ble
or wah-cd
U. 5 v. D.C.:-':.Y,I ;G,
f.Supp. 2112. The ("Ourt &;lid, at
2"1 ,285. that it was I nough for
_"('rannl that Ius shown
around for the <:lnim
thnt she needs Pitkin', evidence;
that the need almost ceru;n
Iy go unutisficd in a Joint t!"lnl ;
and that there Is
greater lik,.Hhood or lI'ing him
If they are tried Wparatcly."
See U. S. v. Glenson. DeN.V,1967.
265 f.Supp. sao, 881-882, for later
dCI.::Iopments in this
8G. Oe I .. una case
'":,A.Sth. 1962, 3GB f.2d 140, I At R
3d 969. rt'heui ng denird C.A511
1963, 324 f,2d 375. noted W:;J., :ll
.. Rev. It), IS Slar .. t
690, 16 Vand.LRe\'. 1241, 49
Vn.L.Rev.
81. Con,IHbtlon prohibits ("<I""
Griffin v. State of Califolnl", I' .. ,
85 S.CL 1229, 380 U.S. G09, It L
F.d.2d 106.
88. 10 drnw
IIonnl
308 f.2d nt 143.
nil
460
Cft. j
PREJUDICIAL JOINO!<;R
prejudicial to Dc LUna and inconsist('nt with his right not to have
conunent made about his decision 10 exercise his conslitutional
privilegc.- The conflicti ng Interests of Gomez and De Luna
cl-eated a dilemma that could have been resolved only by trying
them separately." Judge Griffin Bell concul'lX'd in the result,
agreeing that D:J Luna had been pl-ejudiccd, but thought Gome:t's
nttorney did not havc the right to comment on Dc Luna's failure
to tcstiry.1I
Although other COUlts in subSCfjuent cases similar to De Luna
have recognized the problem to be "substantial and trouble-
some," II! no court has Celt obliged to re\'C!l'SC on that gJ'Ound. I n
the later cases, unlike De LlUla, the defendants have presented
unified, rathCI' that connieting defenscs, and onc defendant would
have no motive to seck to discredit nnother," nor could he clai m
89. Prejudicial to coderendant
308 F.2d at 1::0-155.
90. Separate Idals re'luircd
''Thus. the joint tria.l or two de
kndants put Justice to the or
simult"l'I'ously racing in <.oppOSi te
directions. And JI'stice Is not
Junusrnccd.
''In short, for ench of the derendants
to see the race of Justice they
must be trit'd separately." 308 F.
2d at 143. ISS.
91. View of eencurri!!!; Judge
"It was pr<lper in the defense ot
Gomez tor his counsel to comment
upon the that he had taken
the stand, but it was impr<lpcr tor
him to comment upon the fact
that de Luna had not tnken the
Itand. The Inrerence which plain
ly WOuld arise agaInst de Luna by
to the eHcct that Gom
C<e t'sllfied. Hke the Inference that
ariscs l!l any CHnt rrom the fail.
ure to testify. Is one that must be
cncd,m.,ted by ad.nonilion of the
In charge." 308 F.2d at ISS
(c( "rring opinion).
92. Problem tr<lublesome
Hayes v. U. S., C.A.8th. 1004. 329 F.
2d 209. 221, certIorari denied 84
S.Ct. 1883, 3n U.S. 9SO. 12 LEd.
2d 748.
93. not conflicting
'l1lc important factual distinction
De Luna and the instant
ClUe. however. 15 that in the for.
mer. one co-defendant 5UcressruUy
shifted all of the blame to the olh
er co-ddendant. whereas hct(!, all
eOdefendants put forth a single.
unJried defense based on the theo
ry that the prosocution witnesses
fahricated a preposterous S\o.
ry against them." Kolod v. U. S ..
C.A.lOth. 1967, 371 F.2d 9&3. 991.
''The degree of antagonism, ho ..... e'eT.
is not a!'J great as that In De I."na
where the defenses were mutually
exclushe. TIlere, if one ddc;:,(!
were b<'licved. the other (;(,,,1..1 not
be. Tn the ca_e. it is not
de:!.T that K,'hn co\lld not have
been round [nnOX"nt if S:!.chs Ind
Curran were so fOllnd." U. S. v.
K"hn. C.A 7th. 1%7.381 1'.2d 824.
841. certiorari denied S8 S.Ct. S91.
389 U.S. lOIS, 19 L.Ed_2d 661.
"The situ::.Uon here is markcdly dif.
ferent. The pOSition or both Snell
and the defendant (through his at-
torney). far from bei"g Intagonis-
tie. w:as that they did not e\'en
know each othcr prior to the
trial." U. S. v. Barney, C.A7th.
1006.371 ".2d 166. 171.
Dc Luna rulc applies only ""hc're tM
defendants pre'nt connieting IUI d
Irreconcilable ....
161
PREJUDICIAL 226
Rwl 4
226. Cases
l\rany of the cas discussed in the thr('(! ltC"Ctkms immediately
preceding arc C:l.SC'S, but 1
1
1(' r 1.>ltms or joinder In a
conspiracy prO! ('ution arc so critiC<l.} tr.1 'p..'watc ll"Calment or
that subject is r qujred.
To the prosecutor a conspiracy offers many advan
tages. but such a prosecution also creates "a !':criollS danger of
unCoh'ness to thc defendant." l Justice Jackson, speaking for
hImself and Justices FrankCw'ler and Murphy, has commented:
The una\'ailing protest of courts against the srowing habit
to indict for conspi raq in lieu of prosecuting for the sub-
stantive offense itself, or in addition '1, la, suggests loose
practice as to this offense constitutes a 'iOllS IhfC;!.! to
hirness in our administration of
A conspiracy count in an indictment plV\ Ut'S a sufficient con
necling link to join many defendants charged with many dif-
ferent substantive offenses," and even failure of proof on the
conspiracy count will not work retroactively to make the joinder
improper so long as the charge of conspiracy was put forth in '
b'OOd faith. '
A conc:piraey prQ"CCution greatly 1(!SS('ns the right, twice pro-
tected in the Conslitution, to trial in the vicinage, since venue'
In a conspiracy prosecution can be laid in any district In which
any conspirator did any of the acts, however innocent, Intended
91. Serious danger of unfnirness
Developments in the Law-Criminal
Conspiracy, 1959, 72 Harv.L.Rev.
920, 922.
"It can be readily seen, therefore,
that a conspiracy trial crenles real
and serious possibilities of confu
in the jury, which may in
dulge in unwarranted imputations
of guilt, particularly where the c\'
l<'k:'tce is Or circumstan.
lIal ;ll'<l whae Ihere arc mnny de.
fpn<l,mls." V. S. ,'. Kohn, C.Ailh,
1967, :1.81 F.2J 839, certiol"lrl
dellied sa S.Ct. .':!)I, 3S9 U.S. lOIS,
I!) LEd.2d f>61. In Ihis cnse denio
al of a !e\,en. ce was (:pheld.
446, 93 L.Ed. 790 (concurrlns opin
ion).
99. ConnectlnJl I:nl; for J(l1:1der
Sce I 144 abovc at 1>' If', 58 and 76-
SS.
I. Failure o{ proof
Sc-haefer v. U. S . 1960.80 S.Ct. 946,
3G2 U,S. 5] I, " L&l ,2d 921. noted
)6], Mina,L.Rev. 1066.
Scoe t Ii' . ho\'e at notes 86-92.
r'II 5ce
Renr'>':l] was held ... qulrl'([. howl.'\"
er be1:au.e of the comrlcltity of
the with rc::;ard to fl'fll
anlS who played only a l:IlilK,r
rol .. , Ihe con rtr cy chMgcs
had been di U. S. v.
Dr. 'lIN. C.A.2d, lOOS, 395 F.2d t
881.
98. Un;vailing protest of .. ourts
Krulewitch v. U.S., 1949, 69 S.Ct.
716, 719-720, 336 U.s. 4010, 445-
463
I

-
225
PREJUDICIAL J OI:\"DI:R
Ch. S
Rule 14
prejudice if his attorney were not at
(:lilure of another to testi ry,s. In ado.::'
the bene'! I" of the De Luna rule do not
'ms lx:o(on and no r.-
jury rlI1:Ui Both of those requ(
LUna.
j to comment on the
t ms held that
'-' to il defendant if no
a1 asked during the
. d b 'n ll"":3.de In De
Rhonl' ". U. S., C.A.l!lGG, 365 F.2d
980, 9SI, 125 U_S.App.D.C. 47.
"Here, unlike the situat ion In De
Luna, Bennett did not place t he
sole blame for the wrongful acts
charged upon co-def('1\,J,.mt."
Hayes v. U. So. C.ASth, 19G4, 329
F.2d 209, -22. certiorari dpnl<'d 84
S.CL I' J, '17 U.S. 980, 12 LEd.
2d i4$.
94. ,( h)' aUomc)' forbidden
r.1'-re ract . ,( defendant js unable
to comment on refusal of codefen.
dant to lestlfy will not Justify sev-
erance of trial In which there 1$
cohesion of crime alleged, defend-
lints charCed and proof adduced,
:md there must be showln that
real prejudice wiI[ result from de.
fendant's lnllblHty 10 commenL
U. S. v. K:thn, C.A.7th, 1967, 381
F.2d 824, 839-841. certiorari de-
nied 88 S.Ct. ;;91, 31\9 U.S. 1015,
19 1''31.
\Vhere 1)'[: TC t'" O( r . Lrt.s pn;;ent-
ed th"ir w1't" H Ihe C'QlIrt
in.tn;(tcd :", ir coul' .. nol to re-
fer to h!h;Te of :ony of d femhnts
to t"lle the ' .. :ld nnd this In,true_
lion was 10 protect rights under
Amend. 5 of the
two silent dett'nd:tnts, _nd the de-
fenses of the three defcndonts were
not mUlually and third
dd,.1d:mes COUIl,,]S closing argu.
'nt tOQk cd".:nl"tc of su(h
[, '!C'lt h,.'. ing lab'n the
'I, .-e wu na i"g tl> ,I P' "ju-
01'" \"""rd . '<:111 from ','Jch de-
f . ',1', 'ily ta cor- I'll, and
:c IS not n('.-, !taled.
U, S. v. n .. :,>&1i:t, C.A.7th, 1968.
394 F.2d 30 I, motion denied C.A.,
F.2d 327.
"We anree with the conCurring opi n_
Ion in De Lun:t, however, to the
eit" ' $ 'h ce, by Ihe
alt.. r.ot be pennlul.
ble L' S. ,,, C.A.Gth,
196;,3:, f.2d 2.59, 26.5.
U. S. \'. 27.
f.St ;- 420.
COt... counsrl not to CCl";l.
m r.1 M upon lIle
to 'lda:I!$ to
eM \0' I lif)'ing
fe .' e r. f ,Cis
of .. v. U. S . C.
A.' . , 20:1, 2n. (cr.
ticr;t!i ,,,.cd S.CL 188J, 3n
U.S. 9:), 121.Ed.2d 74s.
Note, of Defendant, In Crim.
In:tl 1967, 42 N.Y.U,
LRc\', :013, 526,
95. Xo 5e-.-cra.'1ec &QuaM
luld not auen that he
was 'ed by Jclnder of hit
c.: )f (c""ft'ndanl In
th: I, U<lifif'd
W 'ill n"t. thereby
e y , . failt!re to
1 if.in<rlr,1;1l3'
1: J Icrair Lf
a' re II no time
"- . the Ifinl did the
.1 to Ihe court th:t t
SC'.:!fllJ::t! shcu:d be iranl(!\] be-
cause testimony
wO'jld With lri .
Ie,,,,",. or " 1,,: 'Ing It, It,
0" r= inj-" rather Ih,'n
':c t."t ' '.e, and In th"t
f, ,r,,,.:' .... :ry a !-:.pted cwd,'n-
t:ant's t '. ny, thereby Obl8ill'
i:'1: b_ .: ef il vithout $ubll'("ting
hin-.seif to tW<\J!-l'umllUllion.
Rhone v. U. S, C.A.I966, 365 F.2d
9&0.9'1, )2:; ,<: Al'l' D.C. 47.
96. 1'>:0 m', d
u. S. \'. 1)-
F.2d I( ,
A.ilh, 1%6, 371
liL
462
Ii '"

DEPOSITIONS
Aul. IS
RULE 15. DEPOSITIONS

241. When Authorized.
242. Motion for Order.
243. How Taken.
2<14. Def endant's Counsel and Payment of E:cpenses.
245. Use of Depositions; Objections.
Text of Rule 15
Ch.5
(n) When Taken. If it appears thttt tt prospective witness mllY be
unable to attend or prevented from attending II trial or hearing. that
his test imony is material and that it is necessary to take his deposl
tion in order to prevent a failur e of justice, the court at IIny time
after the filing of an indictment or information may upon motion of
n defendant and notice to the parties order that hi s testimony be tak
en by deposition and that any designated books, documents
or t.l!l;ible objects, not privileged, be produced at the same time and
place. Il a witness is committed for failure to aive bail to appear to
testify at a trial or hearing, the court on written motion of the wit-
ness and upon notice to the parties may direct that his deposition
be taken. After the deposition has been subscribed the court may
discharge the witness.
(b) Nolice of Taking. The party at whose instance a deposition
is to be taken shall give to every other party reasonable written no-
tice of the time and place for lakin". the deposition. The noti ce shall
state the name and address of each person to be examined. On mo-
tion of 1'1 party upon whom the notice is served, the court for cause
shown may extend or shorten the time.
(c) Defenc1ant's Counsel and Payment of E:cpensl'!!-. If a defend
tint is without counsel the court shsl1 advise him of his r ight and tiS-
sign counsel to repr esent him unless the defendant elects to proceed
without counselor is able to obtain counsel. If it appears that a
deter.dant at whose instance a deposition is to be taken cttnnot bear
the upense t hereof, the court may direct that the expensea of travel
and subsistence of the defendant's attorney for attendance at the
examinat ion shall be paid by the government. I n that event the
mnrshnl shall make payment accordingly.
(d) How Taken. A deposi ti on shall be taken in the manner pro-
vided in civil actions. The court at the request of a defendllnt may
direct thnt a deposition be taken on written interrogatories in the
manner provided in ci\'il actions.
(e) USt'. At the trinl or upon un}, hearing. n pnrt or al1 ot a
depooi ition, so far as otherwise admissible under the rules of evi-
472
at
a
"
d,
" .J
d,
0<
ti
"
P'
P'
" .,
.1
d,
.,

tI
n
t.

u
tl
,;

rr
"
ti
,1
u
S
A
F,
.,' .,' ...... .. .:. ,. , .. :. '.. '\:' .; '1'
I' . ;" .' .;" .. ' .," ..... ':., ... ';.\.' '. ,<":'\11 .. :, . 00' .. "<"'r,If. ..
'..::..,'.,' ._.'" ... ' . ..;,; .. ; . '. ". '". .: '." ...... "'-,. .
Ch.5
DEPOSITIONS 241
Rul. 15
deuce, may be used if it appears : That the witness is dead ; fir that
the witnen is out of the United States, unless it appears that the
nbsence of the witness was procured by the party oUering the
deposition; or that the witneu is unable to attend or tClstify be-
cause of sickness or infirmity; or tbat the party offering the deposi-
tion has been unable to procure the attendance of the witness by
subpoena. Any deposition may also be used by any patty for the
purpose of contradicting or impeaching the testimony of the de-
ponent ns a witness. It only n part ot a deposition is offered in
e\'idence by a party, nn adverse party may require him to offer all
of it which is relevant to the part offered and any party mlly offer
other parts.
(I) Objecl ions to Obj ections to receiving in ed-
dence a deposition or part thereof may be made as prodded in tidl
actioas.
241. When Authorized
There are important differences between the rules for deposi-
tions in civil cases and Rule 15, authorizing depositions in crimi-
nal cases. In chillitigatl oll depositions may be taken as a mat -
ter of r ight at the instance of any party and may be for dis-
covery or to obtain evidence. Under Rule 15, however, deposi-
tions may be taken in a criminal case only upon court order, at
the instance of a defendant or a material wlt:1ess.
in o rder
information that he could not d irectly under the depo3i-
tion and discovery procedures of the Criminal Rules.
t
A request
I. 1\"Ot fOf diKovery
U. S. v. Steffes, D.C.Mont.!OO4, 35
F.R.D. 24.
Stal e vf:lCUCil
A Vennont statute. 13 Vt.S A- I
6i21, enacted 1:1 1951, has been
construed as allowing defendant In
a cnminal case to h3.\c "unlimited
discovery" by r:lMIl5 of deposi-
liens. State \'. Mahoney, 1961,
176 A.2d 747, 122 VI. 456.
Fo: a;"l the favorable ex-
perience under the sttlluU!. see
I..;>..,gro=k, E; .. perlment
in CrimiMI Dixo:e')', I!Hr:. 53 A-
B.A.1.732.
2. Relaled civi l case
In handling motions fer silly of cl ',,!
sliit lIntll disposition of criminal
pro$eeutlo:l on relnted matters.
:lnd in ruling on motions undec
civil discovery prceedllres. ju:lge
should be senSitive to diffel"i!l\u in
rules of discove:)' in civil and
crimina' caus. Campbell v. East-
land. C.A5th. 1002, 307 f .2d 47S.
denied 83 S.Ct. 502, 371
U.S. !>55. 9 f.. .Ed.2d 502.
If related Civil litigation Is pending
at the same time as a civil ,,:0'
ceedins. lhe takins of depositions
in the ciVil action may, In the dis-
Cl"i!tlon of the court in which the
civil nelion Is pending. he stayed
<173
241 DEPOSITIONS Ch.5
Rul. 15
to take a deposition In ZI criminal case, it Is said
l
is to be granted
only in "exceptional situations." 3
In order to obtain ZI court order for the taking of a deposition
in a criminal case, the moving party must establish (1) that the
prospective witness may be unable to attend or prevent from at-
tending a trial or hearing, (2) that the testimony of the witness
is material, and (3) that it is nC!CeSSary to take the deposition of
the witness In order to prevent u failure of justice. All three
conditions must be met.' If they are the motion to take the
d!!pOsmon Will be If one or more condition is not sat-
isfied the motion will be denied.-
pending diSpO$itlon of the criminal
charges. See the di.;cussion or
this m:atter In connection with
Civil Rule 30.
3. Exceptional s1luatlons only
U. S. v. Whiting, C.A.2d, 1962, 308
F.2d 537, 541, certiorari denied
Crowe v. U.S., 53 S.Ct. 722. 372
U.S. 909. 9 L.Ed.2d 718.
U. S. v. Birrell. D.C.N.Y. I967, 276 F.
Supp. 798, B22.
U. S. v. Glessin:;. D.C.Minn. 19SI. II
F.R.D. 501, 502.
which they :are necessary 'in Older
to prevent 11 failure of justice:
"2. Unlike the pnlctic:e in civil eas-
es In which depositiorts m3y be
lnlten as a mailer or right by no-
tice without permission or tha
court (Rules 26{.) and 30. Federal
Rule-! oC Civi l Procedure). this role
perml" depositions to be taken
only by order or the court. ma.de
in the exercise of disc",tion :and
on notice to all parties. It was
contemplated that In crimi n:al eas
es depositions would be used only
In e:l'cepllonal situations. as h(l.lJ
been the practice heretofore."
Advisory Note ....... ---...
The Advllory COmmittee Note to"" ns mils met
Rule IS(a) Is as follows: "I. This In re United State-!, C.A.lst. 1965,
Me continues the exbting law 348 F.2d 624.
pennilting defend.Jnts 10 take dep-
ositions In certain limited classes
or ca5e!II under dedimus potestatem
and in peC1)eIUam rei memoriam,
28 U.S.C. 644, [now repealed].
This statute has bei:n gener:ally
held applh::able to criminal cases,
Clymer v. United St:ates. 38 F.2d
581. C.C.A.IOth; Wong Yim v.
United 118 F.2d 667. C.c.
A.9th, certlorur! denied 313 U.S.
SS!!, 61 S.C!. 1112. as L.Ed. 1544;
United Slntet v. Cameron, 15 Fed.
7!!4. C.C.E.D.Mo.; United St:>tes v.
Hofmann, 24 F.Supp. 547, S.D.N.Y.
COn!n!, Luxenberg v. United
St3tes. 45 F.2d 497. C.C.AAth. cer-
tiOr:lri denied. 233 U.S. 820, 51 S.
CI- 34::;, 7:; L.Ed. '"36. The role
the limitation of the
st3tute that the t 3k!:ljt or deposi_
S. Motion granted.
That government
trial of tax :: ___ CC:':'-.:::'_:'-'. :::
future and _C_::.::::-.::.-.:--;::::
Derendants ch:l.r{led with conspmng
to tr3.nsmlt to foreIgn government
tions is to be rC5lricted to c:ases in 6.
See note G on page 475.
474
c
n
. . . ,,'.'" . . .' '. ..
. . . \ '
_" - - ., I
227 ARRAIGNMENT Ch. 5
RUI" 14
v. U. s., o.::.A.I0th. to: Io'.:!d
UI. l;o><tlo< .... 1 U S.Ct. 10:0. n l
U.S. !HJ8. :Z L.EJ.ld 120.
t:. ;;. ,'. I\:en"n . C.A.Sl".
IOlli.
"_y v. t:. S . C . .\.5th. 1"'. Ui .'.:4
515. coo.tlo ...... Ilenlod to S.CL
t',S. "0. t:; L.E<I.!d II
t:. S. v. JAC;"..,n. C."".'t". In,. tOI
I.
., 0.11 .. 10 dem""' ..... 'e ... of 4",-
c",U"n by tria' ju,'." In deny'""
", &M ... "ft. ",uat ,hnw ,han
me ... fut IbAl .o"'.f .. nd;..n'" ",1>0..,
...... e .... .. ny
"..... tried ... ; &l the veno
l.al1, It m".' bf> demo ... t .... tetl that
.. connle. ..... ." l>.eJudld .. 1 th:l.l
.. n..... ...e.... In-eooncl"'ble. aod
th:>.\ ,h.. ju.y would unju5UU_bly
Ihat ,hi. amllict .10tH! tlemon_
",ted 1M' bolh we... ",1I . y. U.
S. Y. ftobb".on. C.A.uro.
U.S.A;>p.D.C. hii.
n. Soloctlvo v.rd,c,"
U. !:l. v. HUlu" C.A.nh. 11U. 41$
'QT.
18. Ow ....... h.lmlng 0' g .. 11t
lIanin.ton Y. CalUomla.. IUt. n s.c .
17!'. ns u.s. !50. :3 L.Ed.:d :u.
22. Convl<:U,," .eve.oed
U. S. v. Vflrel1l. C.A.Hh, a6'. 101 F.2d
CUt 1o",,, tJenled " S.CI. un.
u.s. Ii/ IO. U L.d.:d
23. aul '"
In .. cue In "'hleh tho coM .. , I"., of
one ddendlLnt Inc.lmln.ted cod.-
fendanl. th .. confu.lon ..... 1>1'(I1>*.ly
-.,)ml ... lble ..... Inst Ih .. firs' defftnd .. nt
and hi. tOnvlction ........ DIlI.me<!. .1_
lIIou.,. tn., eonvlcdon of the eod.efand
ant .... reY'trsed. U. S. v. Lyon. C.,\.
llh. Ul F:d SM . .,.rUO'Grl dO
nJ..t at S.Ct. 131. U.s. a u . 21 L.Ed.
:d 111.
RULE 15. DEPOSITIONS
241. When Authorized
The subjeet of depositions in criminal casu was taken in hand by
Congress, R.'5 a part of the Organized Crime Control Act of 1970. and is
now governed by 18 U.S.C.A. 3503.''' ' This statute covers the en-
tire ground-and covered by Rule 15 Mnd large
ti on:! of its are taken without change from Rule 15.
by the i
fit the instance of the government are now authorized for the fint
time. If the government moves for an order allowing a deposition.
it must include in its motion a certification by the Attorney Genernl
or his designee "that the legal proceeding is against a penon who is
belie\"ed to have participated in an criminal activity." I&:
explained by Representative porf, when tbe bill was before
the House of Representatives, follow! :
The concept of organized (riminal activity is in scope man the
concept of organized crime; it is me:mt to include any crimin:!.1 :activity
\1..1 1970 s tatu
II U.S.C.A. l :1,.;.03. added by Act Of Oct.
15. 1910. Pub.L. U_IS2. f 1101.
C, .,'fi.al ion by "'no'",y a'"e,al
' 8 !,i.S.C.A. t lS03(aj.
Mte. Atto'ney .... l O. lila <I ',o:nee
" ... the ."",,1"'<1 ce,tltl",.tlon.
'he 1.lal coutt I. not 10 rna", .. ,,_
novo or .... "",, the
pro<:..."jln!l' I" In rut ..... a l>I',...,n
132
IM!I .... ved to "., ... pattlelpU'" In an
crimina.! .euw!t)'; "nl""
.Iw def.nIl .. nt .ho ... bad t.11b. OIl tlw
PlIrt of tI,_ .."vernme"t, t"e coutt I.
onl7 to &aCe""ln wheth., th ... "n
'-n .. proper te. tlflcal1on. U. S. v.
5In"leton. C.r\.2r1. 460 F.: .. IUS
{note" 4 n .. I . C.m.L. II .... III ,
eeMlota.1 U S.CI. 1$H. 110
U.S. '!I . 31 L.E<Ud 110.
Ch.5
collectively und
poientiJI fo r in
;$ no
collective crimil
Mafia, the Cot
Such a defend1l
the Migratory l
avoid criminal j
protttr: :!.8ainit.1
The statute also
deposition may be t
rnovl?l/ (or the ordel
thel', the statu te d:
taking of a deJ)O:l iti
rule had allowed a {
ditions. The slatu
order t he taking of
stances it is in the
tive witness of a
A final major chl
be used in a cri mi na
to testify concernin,
Other differences
the rul", may be brief
the plaC1! tor taking
t be rrt!iJenl at
to exercise that rilll:
(3) the court rnn.y n
both the defendant a
sition is taken at the
fendan! is unabl e to
\6.l "0'11""1 .., c""'ln,
II' Con ... ItIOC. S'no (d,
a10).
15.3a l!"ul>. lon.1 c .... u,
If the Ih ....... peelfl" co,.
15(. ) ... met. Ihen II
ct..,..,...un ... lUI of
mel. U. S. v. Sln_Ieto
450 F.t<I 114' (nOl ed "1
L.Rew. 141.) .,.M""'.ri
Ct. ISM. 410 U.S. '51. :
tl. 4 Refu . .. t o t .. llI),
II U.S.C.A. f UOJ((J.
18 U.S.C.A. I lSGS(b).
11 U.S. CA. I 3SGS(h) .

Ch.5 I)EPOSITIONS 241
Rul, u
collectively IlJ'lderuken since in 111 such ill$tmccs there is an inerased
po(etltiJi for intimld:uion of Government witneeS. In add'lion, there
j; flO requirc=etlt thaI the trill at hand be of that soct. It is access to
coUectil"e crimiru.[ power dUI endltlSets the witness-whether of the
M.!fil, the Communi5t Puty, the Black Plnlher Puty, or the KKK.
Such a no m.Jtter ",lut he i, being tried for-l vioillion of
the Migrltory Bird Act, for iMtlnce-Qn bring this power 10 bClr 10
3"oid criminll liability, lnd that is what this provision is designed 10
profect 19ainst.11..:!
'I!:;e also differs from the rule in that under the statute a
deposition may be taken only of a prMpective oC the par ty who
moves for the order. The rule had not been so limited in terms. Fur
thel. the statute changes the standard for granting an order fOf the
taking: of a depollition. As set out in the text in the main "olume, the
rule had allowed" deposition only on a showing of three specified CQn
to
change made by the i that a deposition may
be used in a criminal case if "the witness refulWs in the tria! or hearing
to te:nif:,' conteming the subject of the deposition or part otfered."IU
Olhli'r differences between the statute and the prior practice under
the rule may be briefly noted: ( 1) the court is now to change
the! fOE' ta.kin/!' the dep03ition: IU
court may now
the defendant and his attorney and may do so whenever the depo-
sition is taken a.t the instance of the government as well as when the de-
fendant is unable to bear these expenses; 1 .. 1 (4) it is specified that a
16.3 "O'O""'ud crlml n ol "c""lly"
iii CO"Ir.Rtc. Hnlll (d.Uy 00:1. 1,
IS;,) .
".S. lE.cepl lonol cr,eu"'"U """
Ir the 'h"'" IPecHte.,l ",,"dlllon" Of Rul.
are mel . ben tlla "uceptlon.l
clr<:wnl .. nce." tut ot . 10 " I"e I.
meL U. S. v. SJnt:latol\. C.A.fd.
4';(/ F td 1111 ("Oted , RUL.C.m.
L.Re,. HS.) cetll ...... rI denied " s.
Ct. 1$(/11. fiG 1:.1:"1. '!t. U l..d.2d 180.
AoIu ... 10 , utl l y
II V.S.C.A. IlSI(O.
U V S.C. A. J lSOl(b) .
"., P""."U 01 de ' end,",
11 t:.S.C.A. t 3>Ol(I.
15.7 P ly",.nt of "'pt" ...
I! U.S.C A. I U03(e).
Compa..
.. 110 c:ornmltted
perjury durin .. bankrupt cy proeo.ed.
Inr 1""01"1 ... derenda .. t8 cOI""\lO .... lIon.
In reLo.tlon 10 QUlOLLUonl .. ked ..
1.0 dlf'ndant" Inlerut In ""ttoln
modon picture rum, 1I"0uld be &Ito ....
e.,I to lake dtpolhlons 'n Sp.lo to
.rive derendant an op""rtu"lty to
. lIow will' 1010 dUll ..... wllh Spanloll
GonMl_nl had *n .. ,. .. lint: tllLo.
and other rn..... but CO\Irt ... ould
reQUire defend.nt to .-y Irani u.
IItn_ or ", .. ernrnent "Uorney pi"
.. IItr dl.m nlte or $IT per d.y
tor period ot time '""nl In Sp.ln
wllere tile... .... "" ey'der>et ,hat
defendant did not h ..... tile .blUly
to ... .uch ""ndlllo,," .nd wbere
d.rt"".", lI.d r"Ued to ,.,.,.,.n ...
1 F ....... , . to."" _10
n'l 133
241 AHR:\IGNL'lIEl'T Ch. r.
Rul . 15
rl"position of a party defendant cannol be taken without his consent: , ...
(:i) it spedfied that the s..'Ope of examination :lnd
at a deposi tion shall !>e such as would be allowed in tbe t rial itul: lUI
(6) the government is required to make 8\'ailable to the delendnnt any
statement of a witness that the governm<.>nl would be requ ired to mah
:n"ailable if the witneM were at the tri81.''''0
1'.' o. d, hn"'OM
,g 1:.S.C .\. I 31oOl(d).
1 . t 0 1 eum' "a.i on
IS U.S.C . .\. f '""l(d).
16.10 Product . tatom."U
18 G.S.CA, I 3:>01(0).
Supplement to Note, in .\Ioin Volume
eoun,d wu
" .... 'Iou.ly In Spain Inte ..... le ... I"" .. 11_
nu.... U. S. v. Dronato D.C.:-O.Y.
un. 3!1 !". SUPI'. 12.t.
3. E.uptlonal oi .uulo"o O"ly
.. ci l ed b)' Ih. coUrt In
'". $ .... nlOn. D.C.l!o.IUI. F.Supp.
141. .
V. S. ' .. P'-.'ern. D.C.sX.IKt. 3(13
tie. U2.
MF dt..;:u""" i .. the ... .. Ie'" .. "" .... llIe
ol&lu'. ,Ita, ..... ...,p_ R .. I.
no... permit.. de_ltlons onl,. In
cf""" .... I .. nceo.. I! 0.5.
C A. I 1;0l( .. ).
S .. IJ". v. C. o\..2d. nrz.
F.:N III!. cenloran donled n S.CI.
IS'",. C.S. '51. Ii t...EJ.!d Ill.,
It Ih ...... opeclfle-d
""ndltlon. 01 U(o) ..... met. ..
'''0 cl"""m.tancu" 10 ..
of .", 'ule Is met.
4. All condition. muot ". mit
Tho rac, that .. ... Un ... ....... un .. Jllln&" to
"lle<><l ....... not t.a.nUn>Ounl '0 MII\
unebl. 10 "ueod. U. S. y. ll&,Yu,In.
un. nl 914. rtlorarl
denl'<l U S.C . 400. 3i3 u.s. ZI
311.
of p",",,1 10 on .... k
Inr to I .. ke d,,,,,,,I .lon 01 ,..I.nt ...
"'ho may be unable '0 a . tend Irla1
10 abo_ .bal Ut. wlln"'. I. unava ll
able. InAl de_lUon I. nec ....... ry 10
p .. I"Uu ... ot J ustice, .. nd Ibat
1M l ull""'DT I. ma,.,I. 1 10 Ills de
l enH, C. S. ,'. S""nslon. D.C.N".Y.
3!1 F.SIIPP. un.
Mo",on , ' a nted
I .. " ..... , "lal and ... "" lI.d
I .. to de le,,", (oUn"1 medl.,.1
coMlrml"lL' art lo.cl ...... I.
and b""neltl . " condition pre
HDtlnlr an), tra ... 1 t o United S .... I ..
"nd ... 110 h.d Inlormed deten" CDun.e1
' ha, h ..... o .. ld "'" wlllln" to ."bml! 10
depo.J,lon In Enll.!I4. 11. S. v.
_nsleln. D.C N".T.IKt. lOJ F.Sul>p.
no.
6. Mo, la n .... , .. _
\Vh.... no .tle<j .. ata . 110 .... " ............ d.
fo. "'kin. ot "epOoltlo .. 01 I>""""""U".
,,I'De ... OU141u. Untied Stal ... lnca
hit only ... , ...... 1 t o .tl . .... t rial ......
h ll. or ....... ot and P_Ulloo II
ha .. , .. r .. ed to Unl.ed 81.t nd d .. ,-
I .... trl.l Jud ... IITQnted ... ell .. ltn ....
... t .. POO."" ' .... m ;\1'..:1<:<> 10 Unitt<!
SI.t .... nd beek lor P"'PDM 01 t .. tIt,._
In, but ."eh .. I'na" ... ,1Iftd 10 atterut
I rla l. denial of .notlon 10 take de_I
ilon of ... Ii .. e ... o"'alde United SIt ...
...... not .n ab" ... Of dt..;: .. t!o... U. S.
v. PIIchl. C ..... nil, 1\1 F.Z" 1f1.
.e.llo ..... 1 denllO<l 9: S.CI. n. 404 O.S.
Il.n. 30 L. Ed.2d n.
DefMd.nt ... o .. ld nOt be I>IIrmltltd to
",ke d"1>"'I11Io" of <Il'IOn .. 110 .....
p".@nIlT f" .. hlve r .... m JuatlCt o"t:>-
Jeet 10 . rnol PU'O"iUll to OU(.lttond-
I .... o, der Of con.emp' 1 ..... 10<1 bT ,,\0-
trlci court. U. S. v. RO .. nstah . o.c.
N".\".1919. :03 t-.SIIPI>" l tO.
Whe .. codefendant w'" lu.IUn t..-
lllaU.,. who had ... lIfull,. .bHal..r
1I1""'lf to It. "" .. ntr,. ... Itlo ... bJdI
Unlt.-J S"" .. did no, ltav, dlplo ..... tJoI
.... 1.Ulo .... a<><l llIua ...... aflol'd'" ,.,...
l eet lon 1 ....... nctlons tlta ...
ba ....... h' 100" p.,jllrloua
Ille .. ..... no . 110 .. 1,.. ."'" <Odd .....
"nl ........ tllIn., 1<> I .. UI'1 aOMI "'.-
m.". cOllld not .. e ..............
<
Dele .. danl ... o .. ld be ""rmltte-d to take
ot ""non .. 110 .. t HUmon7
... o .. ld b<o ... I ..... n' to ... tlon o f
134
Ch.5
..
..
WIIU.,.. ' 0
". 8'onSlon
.. .. Pl>. I:". '
243. How Taken
43. Civil Rul,.. "I>PII.' bl .
Tlte CI1l R .. I ...
ble by 18 no.,",. ,". ",
IlIe ... .... " . ,
244.
Defendant's
Rule 15(c) has now
st atute gives til been
e:tpe e Cour t
f nses of travel and
or attendance at th
atth. e
e Instance of the
stance of a defendant
".. : ------- -- ---
Ch. 5
DEPOSITIONS
2214
.... torlu wii.bout d...,IOI.. .... In
ad"""'" of defendant'. trl.l of & .. b
""nee of III; n.ae. defend.-nt would
not b6 P'I"nIU-.l 10 .... k. depOSlllon by
".,tlen Inlerl'OjfatoriU of code,end
anI U. 8. ,'. FI ... e ....... D.C.:>:.Y.Uiil.
:!S. 1-'.8 .. pp \!U
Convino"'9 .howl"9 01 ,ruud .. llly
<
t I. not n.U .... ry thai defend.nt.
who to tllke depo.ltion of ..
proIP6C,I\'" .. who may btl un
Ilblt 10 ott.nd trial . how that Ihe
IU tl,,,on)' wll1 ... acquit him. U.
IS. v. IJroruoton. O.C.:>:.Y.lnl. '2\ F.
!<UIIp, 1209
9. Oloc'lllo" of co ....
Th. Ilkln .. of d.po.ltlon of dUnn of
fON!ljfn co .. nl.)" .nd the ... ttlnll' of eon
dillon. for II ...... lIhin J .. d .. e. dla
c"U,,", U. S. v. H.YUlln. C.A.Zd.
is''. .'.1<1 911. urtlo....,.1 denied
S9 SCt. U S U.S. n l-Ed,!d
'H.
242. !\lot ion for Order
ll. on movinG P""Y
SM U. S, ,'. 1I..,-u11ll. C.A.!d. U". U!
F ,W 'II, 9SI , certior .... denied 8' S.C!-
' 00. sn U.S. hi. 21 L.d.2d 37 .
U, S, \". \' .. D.C.Puerto Rico I,."
tS! F.Supp, hJ n. ZI.
Dooren".n .0 """., de_Ilion
. .. I<en oJ( p..,.peo:;t". wllMN wttn may
be ' 0 ;>.ltend trl .. , must sho ...
that It II practlceble t .. ob . .. ln Ihe
t e "lmony and ,hat tbe propooed wi.
nen ill . I,h .. ult:tt una,.II .. ble for
"'1I1l .... 10 l eotlfy by d __ i , I .. ". U.
S. v. Ilronst .. n. D.C.:>:.Y.191l. 3U F .
net.
213. How Taken
4.1. Civil Ruin .. bl.
'fhl CIYII ...... 1 Rt) ... m"de .pplle,,
ble b)' I! U.S.C.A. I !SOl(d). but It I.
th .... ' P"Cltl.-l that tbe acope of ex
Rule IS
TakI". of ,le_lUon of .. P .... ptot:Uv
wltnau who ,,>&y btl u .... 10 1.1
Und upeclaUy on th' " .. 01
Irlal ... nd Ih, .. Uln .. of <:<>ndIUo ...
for .ueh ...... 1 ...... r. d .... ly wltbln
t.I .. 1 cou,,', dlac .. Uon. U. So v.
Bro""ton. D.C.;.Y. lnl. 321 I".Supp.
1%81.
21. Llml,. to cennl,",len" .ul.
See Camornla v, Cree", 19TO, .0 S.C!-
lnO. In U.S. In. 2i L..Ed.:d 'd, on
r emand 9! 49 . , 47' r .M til.
3 C.I.'d J. Altho",h Ihe Cou" had
... ""Iort It In th.t
CUf. It. cGrta l"ly "'001,1 "urn
to P'lrmlt US. by Ih' proOO\Cuilon I" ..
c .... 01 the d,_I(I"n of . n
u"avall.ble wi In ... ,
I .... a .,. hold In U. II. , .. SI".letOn. C . 1..
2.1. 4$<) lIi8. c'''lo .... 1 d,,
nled iJ S.C .. \.)(16. 410 I,; ,S, 9!l, 3f I "
UO,
.....,11.' In .ffldavlt . ubmltt.-l by
ct_f..... "",unHI tMI depOn'n' Md
<Moon to WI14Y1 that P'lrHn would
not a llen(\ .ny trial COnducled In
L'nlted St.teo. .._nt oo.ny f. ct ....
el.boratlon . how'l1I\' lh:1t wltn ...
<:<>ul<l "'" b. p ..... nt .... u 1 ..... lrlcl.nl
to per mll del>Ollllon of pe....... U . .!:I
R ..... ""teln. D.C.:':. y , un, Sill F,
Supp. :to.
l!>. on appul ' rom I l "al
,,,d9m .nl
U. S. Y, Ha.vutln. C.A.td. 1961. nl F.ld
'41, ""rtio ..... 1 clenlt-(\ It S.C!- tOO. In
u.s. t$l. II 1..(Ud ' :4.
amlnatlon a nd Cto ... u.mlno.Uon I.
limit ed 1o Ihat which .. ould be al
lowed at t he trl", 1 .... 1f.
20l0i. Defendant's Counsel and Payment of E!'l:pense1:l
Rule 15(c) has now been by 18 U.S.G.A. 3503(d). The
st atute gives the court power to require the government to pay the
e:t pen.ses of travel and subsistence of the defendant and his attorney
for attendance at the examination whenever the deposition is taken
at the of the government or whenever it is taken at the in
stance of a defendant who to be unable to bear thp. eJl'pl'nse.
130
245 ARRAIGNMENT Ch. 5
Rul. 15
245. Use of Dep08itions; Objections
Rule 15(e} has now beoen superseded by 18 U.S.C.A. 3503(). The
statute is the same the former rule, except that an additional ground
on which a deposition may be used under the statute is that the
refuses in the trial or bearing to concerning the suhjed of the
deposition or part offered."
Supplemtmt to Notes in Main Volume
U 01 d.pooU;on
SIne. .. u v .. ,Ue. In Pn)HCutlon for
anm,r,rUnll' .. Uen. Inl O St .. tu
<:<>mpll ... l wllh 110 1 .. lutory proeMu ....
... lIh .&."",,1 10 14kln .. ot
of QlIen ..... Inll whom material wit
C(I,npl .. lnt.o hd "1M 10 In
.u .. their pre-enee "I Itl .. 1 .001 dt-
tenden. kno .. ln.l)' .... I .. e<! . I.M 10
confront wltneate. In J)4Ira(I" .
cour t dId nol ur In .lltnlttlnlf ouch
de_hlo" Iutlmony .. fler ol'd"rln
.. !len ...... turned 10 U. 8. ,'.
Lt",ll. C.A.'III. U12. 46<1 F.2" 251.
RULE 16. DISCOVERY ." NO INSPECfJON
251. History
Alore recently. speaking in the context of cri minal discovery, the
Court hlUl said:
The advcnaty 5ystC'm of trial is lu.rdly an end to itself; it is not
yrt a poker g1rne in which players enjoy an lbsolute right
to COIlew their nrds until played.'l
Further liberaliution of eriminal discovery in the federal courts .p.-
pears to be only a matter of time.11.:
14.' /1101. PO ... . gam.
\Vltol., ... y. Florida.. nl0. 9CI SOC!. InJ.
13K. 3" U.S. 1'. n. tI L.Ed.:d Hi.
'4,2 "urth.,. llbe r. Uullo"
Th" Am,rlcan o..r .u.o..lallon Pr'OJ"d
on Stand ....... for Cr lml ... 1 Jou,ke lou
mo .. .. e dla
, .. cUe... for c. lmlnal ca .....
Ihan II PfOylded by applicable 1&..- In
an)' Jurl ... letlon In Ihe United SIAIU."
252. Policy Con.sideratiolUl
15. .... bl. 10 bro."
ABA P ' Oje<:t 0" Sta.nd .. td. for C.l m
Inal Ju.liM. Dt.<:overy .nd P ....
e.dur e B<otOte TTi .. I. TMLD . UU.
Commenl. To .... '" Eftee. lve Cdml ... 1
olaeO""ry: A Pr'Opo .... d Revilion ot
Ft-d ..... t I-tlll. '6. IS VUI.L.R ....
US.
n. BUI I
"Certal .. ly JuUe Hind o .. enl.led tho.
caM. Tb ..- I, .. lonl\' way from
.... .nry ad ntq.: elthOIl"" he
hu a lload ..... ny. JIl.' .... (10,,1><1'"
ten4 10 b.JI .... Ihet mool Indleted per'
... na .... frlllIl,.. no ..... tI 100 .... tn>n.g.
ABA ProJeet on St.&nd&td.a for
1 .. 1 JIIOUoe. and Proo;IId" ...
T1'lal. Tenl.or .IM1. P. I.
Til. ABA """"mm.nda.Uo .... U"""'y In
f1llence<i t h .. AdI..,..,. C<Nnmlttee on
Crimln&1 Rill .. I" II" Jan .... .,. It'lG
I>ro_l. ( ... ute .... l ......... ...:Im.nl of
Rill . ". 41 .'."1.0. 517.
See U. S. v. AII .... d, D.C.h.It'I. 1-:1
F.RD. 181. 1:10. cit i ng W.lgM ( Wrl,hl
A EllIolI S"pp. ).
ly they ........... nt('! oth ..... ,"; ...,<1 tb.
.,.,. Iou f&r .... I.er ...... """ for
In ..... tlr.llon and ... t IMle until recent.
Iy. beller , .. ..,....... Prl,ndly. Til"
l-'I fth Amend .... nl T .. mon-o .. , Th.
C ... for ConltllllU""el Chann. UU.
II U.Clne.,-R& ... 611. SH.
"It Is cl ..... h ....... er. that, ..... n ""Ith
",,' .xpan.olon of the ria"" of "'CII_.
the defend .. n' In a c.lml .... ' C&M <Iou
not enjoy .... ry .. d.&o' .... 01' more
ad.anl&,J.,. ,h .. " 110. "t ..... " ADA
ProJlIC1 On St .. """ro. fO<' C.lmln.'
DI_ery and ... Ht
to ... T.lo,. T.,nl.Dr UI1. P. ts.
136
Ch.5
253. Discol"e,
There is a reo
that it be "rele-va
54.' R.le".",,)'
T""'t thb fll]
<lMenda.nl, own 1\
ICrlbed ..... nd Jur
1>0 ....... r examl".
I. ""_
m&le r l .. l. "h<N4Il\
s
33. OIICOV y 1111<1
U. S. v. I .... C.A.7th
24'-!41. 'I"olln, I
(W.I,M SuPP.).
.. nalYllo 01
<:Iu".' .... 218, "'n
o3lvlalon clUtlJr r ...
In. autborls"... til,
. Irlct Or def'r 0311<:
mll31 be mad, b.
It 11 Only 11110<1
the .. 11 lod.-..<l In
lion to .11_ ....
motl"" under fa)
""Itd. a o3.fend&nt
order t
OWn wrltlen Or ..
.... ooonf_lone In I
..,ven unenl. ahMnl
UDda. !
Ihen that tho. a:
o3ioe:
a
:1ott e.. &110 ...
&0,'. motion."
U. S. ". Ern'nl. C.A
sn. III U.8.AI>0.
Wrlll"'. _'ed 1911
Wrl,"1 died by 110.
U. S .. C.A.D,C"'1J
U.S.Al>p.o.C. 18t .,;
8.Ct. 51. U.!'\. .!
See U. S. v. COOl<
1'.2d IIlU. IOtt.
See U. s. v. n ... h ....
F.ld UU. 1150.
SIIPI>.) .
U. S. Y. GarrelL 0.(
SUI>I>. tir.
.. nl baa .-IttU&!
to dlKo ...,.. ot ....,
atate"",nt. In ...........
...11. of ""l>Ott. ot P
"""mJnallon. and 0
.....d .. In COnnllC'tio"
tNtlmo"y
{tnd.Dt bet.,.. .... ,
v. 'VIlli". o.C.OL'"
n. elllnll Wrl'''t. _
Sib. "11. 4lO f'.ld 2
.. " ' . " ;;-, .. ,,"', .
I . I' of ". ". ' ... ,.} ',..,
. ., .. )
. . . . ' , '<', ..
Ch.5
DEPOSITIONS
241
",10='';0." .. re\;:!.ting to n;:!.tlonal
United llIld
of foreign gov. United St;ltes without

01
6. Motion refused
Trial court properly denied motion
to t;lke dClK"ltlon of certain for
eign Q!lt;on;lls where there was no
showing thaI thei r testimony
might have been materllll. U. S.
v. Steel, C.A.2d, 1966, 359 Fold
381.
It is not enough under Rule 15(11)
lha.t the testimony of II is
material ;lnd that his deposition Is
r:eeded in order to prevent a faU.
ure of jllStice. The deposition can
not be ordered unll!!U it also ap-
pears that he wlli be unable to at
tend the tri;l]. A bare a551!rtion
tha.l the witness might not be able
to appear is nOt enough. In re
United States, C.A.Ist, 1965. 348 F.
2d 624.
Court denied applicatfon to t:lke dep-
OSition ot witne$! who was in the
United States Md subJe<:t to sub-
poena despite claim o( defendant
that witr.ess could not t3ke time
from 0. busy mediC"-1 proclice to
come to trial and that it would be
expensive to bring him from Phila.
delphia. Pa., to Hot Springs, Ark.
U. S. v. Massi, D.C.Atk. I968, 2n
F.Supp.37 L
The naked fact that witnuses were
outside at the United States does
not, of itsel(, constitute an ade-
quate basis for lin inference that
they may be "unable to IIttend"
wilhln Ihe meaning of Rule 15(11).
U. S. v. Birrell. D.C,N.Y.IOO7, 276
F.Supp. i!l8. 822--824.
Rul. 15
COurt would not authorize deposi
tion of witness abroad sought be.
cause witnI:ss, who was otherwise
able and willillJ to testify, de.
c1ined to come to United St;ltes
solely for usserte<l reuson tbat he
desired assur:l.Ilce of Immunity
against arrest should authorities
conclude that IUs testL-nony W:lll
U. S. v. Soblen. D.C.
N.Y.I96I. 203 F.Supp, 542, af.
fjrmed C.A.2d. 1002,301 Fold 236,
certiora.ri denied 82 S.C!. 1585. 370
U.S. 944, 8 LEd.2d 810.
Defendant, who had be-en Indicted
for failure to 8nswer questionnaire
propounded to him in connedion
with census, wu not entitled 10
take deposition o( DirectOr of Bu
reau of Cen$US pursuant to thb
rule. thougb be was allegedly a
hostile ,,;tness. in absence of
shOwing that he W:IlI unable to at
tend or might be prevented from
attending tria!. U. S. v. Rieken
bac!!er, D.C.N.Y.I96I, 27 F.R.D.
"'.
Motion to delK"ition WIIS dc
nied where it was sought thereby
to permit witneu to testify and
still remain fugitive. U. S. v. Van
Allen. D.C.N.Y.lOOI. 28 F.R.D. 329.
affirmed C.A.2d. 1005, 349 F.2d
720, 769-7i0.
Though testimony of witness would
clearly be materi:a.l. deposi<ion
would not be ordered of person
expKted to government's chief
since there was no JugCes
tlon th;:!.t she would be unable to
attend the trial. U. S. v. Grado.
D.C.Mo.19S7. 154 F.Supp. 873.
Where there was no proof or even
indication that petitioner's ::c.
countant was II prospective \,;[t
ness in future prose<:ution of peti
tioner for income tax evnio:! a:1d
for mllk/n; ft:luduient retums, a!lJ
it was not established t..'1at [t was
ne<:essary to tak" the deposition of
the aCCOunt:lnl to prevent a f3i1ure
of jUstice, petitioner was nOl enti
tied to Uke the depOSition of the
petitioner. Appl1cation. ot Russo,
D.C.N.Y.1956. 19 F.R.D. 278. 3f.
firmed C.A.2d. 1957.241 F.2d 285.
certiot:lri denied 78 S.C!. 18, 3.:iS
475
I'
241 DEPOSITIONS
Ch.5
Rule IS
There is language in some cases indicating that defendant
is entitled to take a deposition under Rult! 15 only on a show.
ing that the testimony would tend to exonerate It has
been correctly observed, however, that read in context these
cases mean only that
r would be
less he hoped it would tend to exonerate him, but the gpyern-
ment ca."mot defeat his motion by even a highly plausi ble fore-
cast that the defendant will be disappointed in this hope.
Although the decisions recognize a considerable discretion in
courts passing on motions to take a deposition,' the rule does
not pennit a judge to conclition authorization of a deposition upon
the witness consenting in writing to open its files to investigation
by the United States. It
The rule does not permit authorization of a deposit ion on mo-
tion of the government, though t here have been proposals for
many years that this should be permitted. William Howard
Taft, later to be Chief Justice, urged this as long ago as 1905. II
The original advisory committee that drafted the Criminal Rules
would have allowed this, U but the Supreme Court, which had
U.S. 816, 2 L.Ed.2d33. The appel.
late court held that the Civil
Rules. r;lIMr thlll'l the Criminal
Rules. were applicable to this mo-
t ion to suppress made prior to In
dictment, but agreed with the reo
suit.
In pnecuUon for fallure to submit
for induction into anned forces.
defendant wu not entilled to take
deposition.. of members of presi.
dential appeal board, since their
testimony wOlil d not be material.
U. S. v. Giessing, D.C.Mi nn.195I ,
II F.RD. SOl.
7. Would tend to none .. "
See U. S. v. Broker, C.A.2d, 1957, 246
F.2d 328, 329, certiorari denied 7S
S.CL 63, 355 U.S. 837, 2 LEdold
<9.
U. S. v. Whiting. C.A.2d, 1962, 308
F.2d 537. 541, cert!or::lrl denied 83
S.Ct. 722, 734. 372 U.S. 909, 919, 9
L.Ed.2d 718, 725.
8. Convi ncing 3howing of materiali
" U. S. \'. Hagedorn. D.C.N.Y. I 966, 253
F.Supp. 969, 971.
9. Discretion of court
In re United States, C.A.lst, 1965,
348 F.2d 624. 626.
U. S. v. Whiting, CA.2d, 1984, 308
Fold 537, 541, certiorari denied
83 S.Ct. 722. 372 U.S. 909, 9 L.Ed.
2d 718.
U. S. v. Broker. CA2c!, 1957,246 F.
2d 328, 329. certiorari denied 78
S.Ct. 63, 355 U.S. 837, 2 LEd.2d
49.
Hemn \'. U.S., CA5th, 1955, 22.3 F.
2d 371, 375.
10. Condition improper
MadisonLewis, Inc. v . MaCMahOn,
CA.2d, 1962, 299 F.2d 256.
-
II .
Taft, The Administration of the
Criminal L:nv, 1903, 15 y,l., LJ. I,
10.
12. Proposed by or,gl nal commillee
Second Preliminary Draft of Federal
Rules or Criminal procedure, Feb-
naary 1944, pp. 90-94.
476
Ch

w<
an
d ,
go
to
go
,.,
an
by
cO'
of
Cri
Th.
,
"
,
b

p
C
L
Fo,

,

p

I
13.
Thi.
Il

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9
14.
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o
o
o
Orf,
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r
. . . ' . , .... : .. . r .......
'.' . ,- "'" ' ....
. - .. '. -, .
Ch, (j DEPOSITIONS 241
Rut. IS
earlier thought such a procedure "questionable," U inserted the
words "upon motion of a defendant" in what Is now Ru!e 15(a),
and made certain other changes in the rule in order to make it
clear that depositions may not be taken at the instance of the
gO\'enunent,U When a new committee was formed years later
to propose amendments to the rules, it recommended again Ihnt
government depositions be permitted, but this recommendation
was rejected by the Standing Committee on Rules of Practice
and Procedure and was not included in the changes recommended
by the Judicial Conference to the Supreme Court. u
The gingerly treatment of these proposals is In large part be-
cause it is WlcJear whether taking depositions at the instance
of the gm'emment would be consistent with the Confrontation
CritlCisms of proposal
The proposed rule Is of doubtful
wisdom. There Is much that a
jury may lelm In weighing the
credibili ty of a witness by
hlm on the witness stand lh3t Is
not presenl from rca ding the cold
,",-om of n deposition, Maguire,
Proposed Kelv Federal Rules of
Crintinal procedure, 1943, 23 Or,
L,ReI', 5(;, 63.
For criticisms of this rule
while in the Preliminary Drafl. see
Stewart, Commentll on Fedel1lf
Rules of Criminal Procedure, 1943,
S John !'obrshall L.Q. 200, 269;
PhHlips, Su,!"sestions and Com
on the Proposed Federa'
Rules of Criminal Precedere, 1943,
17 Fla..W. 230, 23'\.
13, QUe5llontd by Supreme Coen
TrJ$ St3lemen! was made In unpub-
l!shed comments by coun on
In enrlier draft of the proposed
rules. See Orfleld, Depositions In
Federal Criminal 1957,
9 S.C.!..Q. 376, 381.
II. Government deposItions nOl
permitted
See the remarks of the Hon. G. Aar
on YoungGu;s! In N.Y.U, Institute
on Fedel1l1 Rules of Criminal Pro-
cedure, 194(;, p. 165.
O:tield, In Federal Crim
Inal Procedure, 1957, 9 S.C.L.Q,
376,
15. Recommended ngain by new
com;niUee
Preliminary Draft of Pro.
posed Amt:ldmentJ 10 Rules of
Criminal Procedure, Much 1964.
pp. 8-11.
18, NOI reco:nmended by Judicial
Conference
The recommendations of the Judlclal
Conferer.ce lire set out at 39 F,R.
0.69,172-173.
Regret ilia! the amendments to Rule
15 were not adopted is I'oieed In
Orfield, The Federal Rules or
Criminal Procedurc. 1966, 10 51.
Louis U.L.J. 445. 449.
The proposal had been crhiclzed,
in !';ote. 3;; Notre
Dame Law, 35, "I.
The Special Committee on
Rules of Pl"'OCedure of the
Clln Bar Asloclalion also opposed
adoption of the propOSed ehlUlgu
in Rule 15. In a report of August
1965 it Mid, in part; "If the testl.
mony of such an absent witness Is
of such ;lreat Impo...cance tMt '3.
failure of 11I51ic8' might result In
the absence of his testimony. It
should be apparent that the wit-
ness Is impon:U"I! enough 50 that
the jury should have a chance to
see and observe his
3S F.RO, 95, IDS.
241 DEPOSITIONS Ch. 5
15
Clause of the Sixth Amendment. In a famous case, the Supreme
Court said:
The priIm.ry obje<:t of the constitution:tI provision in ques
tion, was to pre\'ent depositions or ex parte affidlvits, such
as were sometimes ldmitted in civil cases, being used
the prisoner in lieu of l person:tI exrunin:ttion :lOd cross-
eX!lminltion of the witness in which the has the
opportunity, not only of testing the re<:olle<:tion and sifti ng
the conscience of the witness, but of compelling him to 5tand
Cue to face with the jury in order that they may look at him,
:.nd judge by his demeanor upon the stand and the m3nner in
which he gives his testimony whether he is worthy of beliefP
This would seem to prohibit the use of depositions e.'I(cept where
right of confrontation has been waived. But in the very
passage the Court went on to say that general rules of
law must occasionally give way to considerations of public poli-
cy and the necessities of the case." Were it otherwise there
could be no exceptions to the hearsay rule in a criminal prosecu-
tion, at least if the evidence is offered against the accused, It and
it is entirely clear that this is not the law." Indeed very re.
17. Riaht of eGilfronta.ion
M:tttox v. U. S., 1895. 15 S.Ct. 337,
339. 156 U.S. 237, 242-243, 39 L.
Ed. '09.
This Is quoted .... ith approval by the
Court In Barbflr v. Page, 1968. 88
SCt. 1318, IJZO, 390 U.S. 719, 721
20 L.Ed.2d 255. In thM ease the
C.,,,,rt al,o said "a ,,;tness Is
not 'umwnllable' for purposes of
fONlgoing exception to the
confrontation require::lent unless
prosecutorial authorities have
made a goodfaith effort to obtain
his presence :tt trial." 88 S.CL at
1322, 3!lO U.S. at 72-1--725.
18. Generlll rules must give way
Motto:>: v. U.S., 1895. 15 S.Ct. 337.
156 U.S. Z37, 243. 39 L.Ed.
409.
19. Offered ag(linst the ac<::used
Outof-court statements offered
against a cri:r,;nal defendant must
sU:>'iye the hurdles 01 both the
he;l"Sey rule and the COnfronta
tlOn Clause. If the (lccused
such h !Iis own
there is no prob:em with
the Confront:tlion Clause, while
the Due Process Clauses of the
Firth and Fourle8nth
are limitations_s yet little dis-
eussed In the cas_to any eJr.clu
sion of evidence offered by an ac-
cused. See Ferguson v. State of
Georgia, 196], 81 S.Ct. 758, 773.
365 U.S. 570, 602, 5 L.Ed.2d 783
(concurring opinion).
ZOo Exception, to hearuy rule rec_
ognized
H the witness Is :tbsent by the con-
nivance or procurenlent of the ac
cused, his testimony at a prellml
nary examination may bfl received
at the trial. Reynolds v. U. S. ,
1874, 93 U.S. ]45, 148. Z5 LEd.
244.
Dying de<:larations and testimony at
a former trial arlt admlS5ible.
Mattox v. U.S., 1895, 15 S.Ct.
337, 156 U.S. 237. 39 L.Ed. 409.
MeCo=ick,
<83-187.
Evl!:!enc:e,
''''.
Case no lon:;er authoritati ve
pp.
West \'. Stale of Louililna. 1903. 2-'
S.Ct. GSO, 194 U.S. 258, 43 L.Ed.
478
Ch.
renl
on t
T
tion
had
ho\\
l hal
me<
Sup

sitic
, r.
"'"
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E
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"

Ih.
T.
S.
21.
Poin!
5.1
.n
Ch. 5 m:POSITIONS 241
Cl!ntly the Court, in holding the Confrontation
on the states, said:
Rul. 15
Clawe binding
The case before us would be quite a different one had
Phillips' stltement been bken 3t a full -fledge<! hearing at
which petitioner been represented by counsel who h3d
b..aen si"en l complete and adequ3te opportunity to cr05S'
exa.-nine. There are other 3CI:ll0gouS which
might not hll wi toin the scope of the constitution3l rule reo
Cjuiring confront3tion of witnesses.1<
This could reasonably be read as permitting the llse of deposi.
Hons against a defendant Il he and his counsel wel"e present and
had an adequate op!>Qrtunity to crossexamine. It is just as well,
howe\'er, that not all constitutional Questions need be decided, and
that rules do not press to, or beyond, constitutional limits. As a
member of the ol'iginal Advisory Committee obselTed when the
Supreme Court refused to adopt that committee's proposal for
government depositions: "The Court's action in eliminating depo.-
sitions on behalf of the government may have been prompted by
a feeling that the government could better afford to lose a few
cases th.:ln ma."'e even a gesture which might be Interpreted as
(a,-m'ing trial on a paper record," ::
Even under Rule 15 as It stands hard problems of the applica-
billty of the ConIrontation Clause are possible, though so far as
can be told from the reported cases, they have never arisen,u
There Is no problem if a deposition is taken at the Instance of the
defendant and offered in evidence by him, His ri ght under the
Confrontation Clause can be waived,U. and surely there is a waiver
965, slIys thllt II deposition Is ad-
missible against the accused in a
SUile prosecution. It is no longer
authoritat Ive since it rests on the
premise th:tl the SIl<th Amendment
1$ nOI applicable against the
Slates, Ilnd this Ii clearly not now
Ihe law, See Pointer v. State of
Tell:as. 1965, 85 S.Ct. 1065, 380 U.
S. 400, 13 L.Ed.2d 923.
21, UmilS to oonsl ilutionaJ nil'
POi nter v. SI:t11! or Teus, 1965, 85
S.C!. l OSS, 1069-1070, 380 U.S.
400,407,13 L"Ed.2d 923.
22, Comment of c:ommiltel! memt;er
De$$ion, The New Federal Rules of
CriLlinal H. 1!l-I7, 56
Ya le LJ. 197, 21S.
47!l
23, Possible problems Wlder u.bl-
I", rule
These problems are discussed with
Bre3t foreslghl In N.Y.U. Instltule
on Federel Rul es of Criminal Pro-
cedure, 1946,pp. 191_19a
24. Righi waivnble
Diu v_ U. S, 1912,32 S.Ct. 250, 223
U.S. 442, 56 L.Ed. 500.
Kemp v. Government of Canal Zone,
C,C.A.5th. 1948, 167 F,ld 938, 940.
Durns ex reI. Burns v. Sanford, D.C.
Ga,194S. 77 F.Supp. 464, 465.
L
,
241 DEPOSITIONS Ch. :;
Rul. 15
under the circumstances described. The problems arise in three
situations. First, a deposition is taken on molion of the defend-
a.,t but the witness :;::ives answers Wlfa\'orll.ble to the defendant.
TIle cefend::mt naturolly does not offer the deposition but the
prosecution does. Is the deposition admissible? This is the
easiest of the three situations since the motion by the defendant
(01' taking of the
of
if he was not present and represented by counsel when it
was taken.:' Cautionary instructions are plainly inadequate as
..
a remedy and a should be granted.!T If the codefend
ant was prescmt and represented by counsel, present law simply
gives no to the question whether the deposition is usable
against him. It be hard to find a waiver by the codefend
ant who has neither sought to have the deposition taken nor
fered it in evidence. If the case ever arises the court that has
it will ha':e to make new law on the appllcntion of the Confronta
tion Clause in this si tuation.
F innlly the rule provides that if a material witness is commit,
ted fot failure to give bail or otherwise meet conditions of release,
the court on the written motion of the witness and upon notice
to the parties may direct that his testimony be taken by deposi.
tion and may then order the wi t ness released from As
2:>. But SH
There IS sta:e court authority to the
contrary. E. . , State v. Tomblin.
1897, 48 P:u:. 144, 51 Kiln. 841;
State v. McCall. 19, 149 P.2d
580, 158 I<;:n. 652. In the ]:ltter
case the court said: "The fact that
defer-dent had the depOsi-
t ion u he was entitled to under
tbe did not constitute
n waiver of his rIght to be con
fronted with the wltr.ess before
the jury." 149 P.2d at 581.
25. Not .dmlulble
This to follow a fortiori from
Pointer \'. St:lte of "ieltU, 1965, 85
S.Ct. 1065, 380 U.S. 490, 13 L.Ed.
2d!l23.
21. Caullonary InnructlonJ inade
quate
See 224 above.
28. M.!IIerla' witness
See also Rule 46{b), 766 below.
And see 18 U.S.C.A. 3149, adopted
in 1966: "U it IIppeal"'5 by affidavit
tbnt the testimony of a person Is
material in nny criminal proceed
inll. lind if It Is shown that it may
become Impracticable to secure his
presence by subpena, a judicial
Officer shall impose conditions of
relellse pUl"$uant to se<::t!on 3146.
No material witness shall be de--
talned because of inability to com
ply with any condition of release
If the testL'I'Iony of such witness
can adequately be by
depOSition, and furtber detention
i, not to prevent a fail
ure of justIce. Re!ease may be
delayed for /I. reasonable period ot
time until the deposition of the
witness can be taken pursuant to
480
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Ch.5 DEPOSITIONS 242
Rul. 15
\\as predicted when the rules were this procedure is
;.Jrely, if ever, used, and so is not of practical importance. U it
wel'e used the deposition could clearly not be admitted against a
defendant not present and represented by counsel at the hearing,
fOl' reasons similar to those stated in connection with the use of
a deposition adverse to a codefendant. Use of the deposition
against a defendant present and represented by counsel at the tak-
ing of the deposition would raise the same haro qUestion discuss-
ed above about the limits of the Confrontation Clause.
242_ lUotion for Order
A deposition may be taken only by leave of court granted on
motion. Provisions of other rules about motions apply to such a
motion.:IO Rule 15(a) requires that notice of the motion be
given to all parties_ The burden is on the moving party to demon-
strate the availability of the proposed witnesses and their will-
ingness to appear, the materiality of the testimony t hey are ex
peeted to give, and that injustice will result if the motion is de-
nied." This showing may appropriately be made in an affidavit
in support of the motion,Sf
Federal Rules of Criminal Pro-
cedure.:'
29. Predlctfod when rules adopted
the comments of Judge Alexan_
der Holtzo!f in N.Y,U. Institute on
Feder:.] Ru]es of Criminal Proce-
dure. 1946, p. 196.
722
U. S. \'. Grado, D.C.Mo.I9,57,
Supp. 878.
U. S. v. Ausmeier, D.C.N.Y.I946, 5
F.RD.395.
3'2. Showin, made by Ilflldll.vit
Rule 47, 1802 below.
U. S. v. Hagedom, D.C.N.Y.I966, 253
F.Supp. 969, 970.
U. S. v. Egorov, D.c.N.Y.I963, 34 F.
RD. 130. 131.
Sei! U. S. v. AUlimeler, D.C.N.Y.19.16,
5 F.RD. 395, 396-397-
U Slrould be made pn:HIlpUy
U. S. v. Foster, D.C.N.Y. 1948, 81 F.
Supp. 281. 264.
Motion 5101 untimely
Government objection that motion
for depositions at persons who
had been deported was untimely
bee./luse not made untll after they
See note 34 on page 482.
I
I
,I'
242 DEPOSITIONS Ch.5
flul. 15
Denial ot n motion to ta.l;:e a deposition is an interlocutory or-
der and is not appealable. It is reviewable on appeal from n
judgment of conviction,"" but
attached a condition,
not authorized by the rules, to the for taking the cieposi.
another case held that mandamus was available to the
go\'ernment when district court's order tu!ting the
d::!,ositio!1 w::u t i:e result of n misconstruction of the rule.)7
243. IIo\\" Taken
If the COll,'t Grants a motion for the! taking of a deposition, t he
moving ;mrly must give to every other party reasonable written
\.as rejected, be-
cause pri'l, to deportation it
could not h:l\'e been shown tha:
they wo\;ld be unable to attend the
trial. U. S. v. Egorov. D.C.N.Y.
1963. J.i F.R.D. 130.
4. lITo:lon untimely
Motion 10 talte deposition, made alt-
er delay and on o,.en-
in,; day or lri:!], was properly de-
nIed. U. S. \'. Whiting. C.A2d.
19"'2. 305 F.2d 537, certiorari de-
nied 83 S.C!. 722, 372 U.S. 909, 9
L.Ed.2d 7'25.
See U. S. v. Birrell, D.C.N.Y.I961,
276 F.Supp. 798. 823.
In pl'Qsecu:ion for smuggling mer-
chandise into United States, whe",
three months befo", trial govern-
merlt named person in Ger-
many ::5 a coconspirator and mo",
two months before trial had
lI!ljHi.ed delerldant th:lt it would
offer a witness who would testIly
that such !)t rson had m:lde state-
mer.ts incrurinating defendant,
there was no abuso of discretion
In denyi:l3 defend:lJ\I's motion.
m:J.de on eve of trial, to take in
Cerma:ly. by written interro;a(o.
ri(!J, the deposition of such person.
U. S. ,'. Broker, C.A.2d, 1951, 246
F.2d 323. rlenied 78 S.Ct.
63, 355 U.S. 837, 2 LEd.2d 49.
"Ap;lellant's moUon was filed at 4:00
prior to the trial. The prosecuting
::nomey \':as cnlaged in trying
CasH lind was IInable to go to
Florida to ((Ike the depesitlon.
The motion ;':lVt no tell50n lor Lie
I .. pse of IS dllYJ appoL'l!-
me",t of defense cOl,lnsel ;\nd t11e
filing of thl' motion, lind we c.1n-
not now consider in determining
tlte propriety of the order, COlln-
scl's afterthought in hIs appellate
t11at tit had meanwhile been
itl." Heflin v. U. S, C,A,Stll, 19s:5,
r!3 F.2d 371. 375.
35. Re. lewahle on . ppeal from fl-

U. S. v. Steel, C.A.2d, 1006.359 F.2d
3SI, 3&2.
U. S. v. Kelly, C.A.2d, 1005.349 F.2d
720. 169, certiorari denied 86 S.Ct.
1461.384 U.S. 947, 18 t..Ed.2d 544.
U. S. v. Whiting. C.A.2d, 1002. 308
F.2d 537, 541. eertlor:!rl denied
83 S.Ct. 722, 372 U.S. 009, 9 L.Ed.
2d 118.
Hemn v. U. S., C.A.Slh, J955, 223 F.
2d 371, 375.
311. Mand.mus granted defend:lJ\t
Madisont.ewis, Inc. Y. MacM:lhon,
C.A.2d, HIS2, 299 F.2d 256.
37. l'Ib ndamus ; ranted ;overnment
In rc United Stales, C.A.ht. 1965,
;US F.2d 624.
p. m. on Frirlay. only five days
482
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Ch. 5 DEPOSITIONS 243
Rul. 15
notice of the time and place for taking the deposition and the
name of the person to be examL,ed.:J.S A subpoena may be issued
to be served on the person whose deposition is to be taken,:III al-
though in many cases this will be either unavailing or unneces-
sary or both. If the deponent resides in the district in which the
deposition is to be tal,en he may be required by subpoena to at
tend an examination only in the county in which he resides or is
employed or transacts his business in person. If he Is not a resi -
dent of the district, he may be required to attend only in the
county where he is served with a subpoena or within 40 miles
from the place of service or at sllch other place as is fixed by the
court 411
The notice of taking the deposition need not state the name of
the person before whom it Is to be taken. Although in civil cases
it has been said that It is "better practice" to include that infor-
mation,' it Is hard to see why this is so, and decisions in civil
cases are clear that it is not required. U
Rule 15 (d) incorporates by reference the provisions of the Civil
Rules on the manner of taking depositions in criminal cases, and
the discussion of the relevant Civil Rules is applicable to tht>Se
details in taking a criminal deposition.'" It is specifically pro-
38. NDUee or taking
Rule 15(b).
An earlier dratt IVDuid have pro-
vided that "if the name I, not
knDwn, 1\ descriptiDn suffident tD
Ident!fy him." Orfield, Deposi_
tiDns !n Feder3! Criminal Proee-
dUf(l, 1957, 9 S.C.L.Q. 376, 383.
That language dD!"S appear in Civil
Rule 30(a), and the deletiDn Df it
in the eOllT@lIpondin:ll Criminal
Rule would seem deli!)er3tely In-
tended tD produce a different re-
suit. Yet Crimina] Ru!e 17(1).
IOmewh"t irn:Dnslstently. provides
that an order permItting a deposi-
tiDn authDrize, the elerk to issue
lub;>oenas fDr "the persons n3lned
or deseribed therein."
3!l. SlIbpoena allthorized
Ru!e 17(1) (I). On subpoenll5 sener
ally, see n 271_279, below.
<10. Place of enminatlon
Rule 17(f) (2). See 278 below.
41. Belter prac:tiee
NortOln v. Cooper-Jarrett, tnc., D.C.
N.Y.I940, I F.RD. 92, 9-4.
4.2. Name of Olffieer nDt required
YDnkers Raeeway, Inc. v. Stan_
dardbred Owners Ass'n, D.C.N.Y.
1957,21 F.RD. 3.
Zweifler v. Sleeo Laces, Ine., D.C.N.
Y.19!iO, II F.RD. 202.
Nonon v. CooperJarrett, Ine., D.C.
N.Y.l940, I F.R.D. 92.
43. Civil apillieable
The fnllDwlng provisions of the Civil
Rules appear to be relev:mt, nnd
the dil(lllSiDn Olf them in the apo
vDlume of Ihis Trealise
ShDUld be eonsulted: Civil Rules
20(c) (e"amination and crou-e.'C_
aminatiOln); 28 (peI"$OTlS before
whom depositions may be Uken);
2!l regarding Ibe tak_
Ing Olf depositions); 3O(e) (recOlrd
of examination; oath; objealons);
30(d) (mDUDn 10 tennlnaU! or llmit
examination); 30{e) to
483
243 DI::POSITIONS Ch.5
15
vidcd in Criminal Rul e 17(b) I however, that on motion of a party
upon whom the notice of laking the Cleposition is selVed, the
court few cause shown may extend 0[' shorten the time. The
protective orders authorized by Civil Rule 30 (b) should be l1IU'!ec-
cssary in a criminal deposition since the court can take such mat
i(1 10 uccouut in passing on the motion for taking the deposi
ti on. Civil Rule 2G(b) , on the scope of t he examination, can have
at Ix>st limited applicat ion to criminal depositions, since Rule 15
(a) limits such depositions to material testimony and the Civil
Rule nllows tcslimony inadmissible at the trial so long as it is
)'{']cvnnt to thesubjed matter involved in the action.
Rule 15 (d) provides that the cour t at the r equest of a def end-
ani may direct that a deposition be taken on written interroga-
tOI'jcs in the manner provided in eivil This incorpor-
ates thc pl'oc.:!durc set out in Ch'U Rule It does not author-
i.w inrorrogntories t o an adverse p..1rty;" a very different proce-
dure provided [or in Civil Rule 33, Rule 17 (a) also provides that
if a court grants a motion for the laking of a deposition it may
also order thut any designated books, papers, documents or tang-
ible objects, !lot pri vileged be produced at the same time and
platt,Ol
244. Defclldalit's Couasel amI Payment of Expenses
Rule 15 (c) of t his rule introduces a new featuI'(! ror the purpose
or protecting the r ights of an indigent defendant. II a defendant
is without counsd Ule court must advise him of hi s rights and ns-
counsel unless the defendant elects to wi t hout counsel
01' is able to retain counsel. If it appears that a defendant at
witness. changes; sit:ningj; 30(f)
(ccrliricalion and filing by officer:
notice or fi ling): 30(&)
(f:ll1u re 10 attend or to 5e!".'e sub
pacnn; expenses); 32 (effect or et
tort :Iud irregularities in deposi
lions. Whether Civil Rule 37(a)
(refusal to answer) is applicable is
unclear. For stated in the
lui, Ci ... il flule 26(h) a l best a
limited applicat ion to a cri minal
deposition,
4-l. Ofoposilion on writlen int ..... roga.
t oties
E\en befo,.,. the rules. it W::IS said
the court had inhetl'nt pO,vcr
to do so in the case berore II. U.
S ..... Dockery, D,C,N.Y.U)43, 50 F.
Supp. 4to,
4:;. Civil Rule 31
See the discussion of that rule in the
civil volumes or this Treatise,
46. Inter rogatorl" to adverse party
nOI authorIzed
U. S. \', Schluter, O.C.N.Y.1956, 19
F.R.O. 'lIS,
47. l>roduction of doc:umenls
1\'0 r"pOrted case hu been found in
which this power been e::er
cised.
to authorize this, th('ugh it refused
18 1
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Ch. ;; DEPOSITIONS 245
Ru le 15
whose instance n depositi on is to be taken cannot bear the ex-
pense thereof,u the court may direct that the e."<penses of travel
and subsistence of the defendant's attorney for the attendance at
the exami nation must be paid by the government.
4I
In that event
the marshal must make payment nccordingly.1ICI The Criminal
Justice Act of 1964 makes provision, for cases falling within it,
Co!" reimbursement to counsel of "expenses reasonably incur-
red."
245. Use or Depositions; Objections
Rule 15(e) in providing when nnd for what purpose a depo-
sition may be used at the trial gen(!rally follows the correspond
ing provisions of Civil Rule 26(d) A subpoena in a civil
case runs only within the district where issued or 100 miles from
the piace of trial, while a subpoena in a criminal case runs
throughout the United and, if the witness Is a national or
resident of the United States, even into a foreign Ac-
48. Showing not made
motion tor order to lake
depoliiUons at expense or govern
ment or witnesses alleged to be in
Germ:lny was denied, where it
W:IS not shown to what the wit
nesses would testify, or that wit
nesses were available, or that if
available the witnesses would vol
untarily present themsehe. to
gi\'e the dePOSitions, or betore
whom lhe depositions could be
taken In Germany, or that defend
ants were unable to bear the ex
pense. U. S. v. Ausmeier, D.C.N.
Y.I 946, F.R.D. 395.
49. ElI:pense. paid
Acc1.lsed was entitled to havo his
courtappointed counul reim
bursed for expenses
and relSO:'lably incurred tnr trovel.
ing and subSistence in Interview
ing informer at Informer's resi
tor, it necessary, expenses
re:l5On3bly Incurred In laking In-
former'. deposition, for e:;.
pense. incurred for
lTa\'el 3nd subsi!ltence in viewing
scene of alleged crime. U, S. v.
O.C. Ala. I 963, 32 F.R. O.
313.
so. nUl see
Although in U. S. v. Germany, D.C.
Ah\.l963. 32 F.R.D. 343, 345, the
court could see no difference "be
t ..... een taking a deposition (for
which the role provides payment)
lind t he oral InterView of wit.
ness (fo: the Uni ted Stlltes .aY$
there shall be no payment)," the
Administr:ltive ot the Unit
ed Stat4!'S Courts ruled that there
were no appropriated funds for
the beter kind of expenses, lind
the court held that the defendant
must be discharged for ' ",Uure to
pay these expenses. U. S. v. Ger-
many, O.C.Ala.I96J, 32 F.R.O. 421.
51. Crimi"at Justlce Act
18 U.S.C.A. 1 3006A(d).
U. S. v. D.C.CaI.l965,
248 F.Supp. 291.
52. Civil Rule 2a{d}(3)
see the of lhat nole In the
ciVil \'o!umes of this Tre;1Iise.
53. Throu:;::,:;lut United StatH
Rule 17{e)(I). See 1270 belnw,
$4. Into a foreign COIl. .. try
28 U.S.C.A. II 1183, 1184:
11(e)(2). See t 211 below.
485
, 245 DEPOSITIONS ell. 5
RU!ij I S
cordingly the principal difference between the provisions for civil
and criminal cases is that in civil cases a deposition may be used
is at a greater distance than 100 miles from the place of trial,
while this portion of the criminal provision requires that the
ness be out of the
Although this is said by the Advisory to be "the
only difference" between the rules for clvll and criminal cases,oM
thi s is not accurate. A deposition may be used in a civil case if
the witness is unable to attend or testify beeause of age or im-
prisonment. Th<JSe af(! not grounds for use of the deposition in
<l criminal case. Presumably the witness who is in prison can be
required to attend by a of habeas corpus ad
Perhaps the committee thought that age alone does not prevent
a witness from attending a trial unless It is associated with sick-
ness or infinnity, grounds for use of a deposition recognized for
both criminal and civil cases. Further there is nothing in Crim-
inal Rule 15(e) corresponding to clause 5 of Civil Rule 26(d) (3),
which authorizes the court to allow use of depositions in "ex-
ceptional circumstances" other than those mentioned in the bal
ance of t11::1t rule.
The grounds on which a deposition may be used in a cri minal
case are (1) that the witness is dead, or (2) that the witness is
out of the United States, unless it appears that hIs absence was
procured by the party offering the deposition, or (3) that the wit.
ness is unable to attend or testify bef:-ause of sickness or infinnity,
or (4) that the party offering the deposition has been unable to
procure the attendance of the witness by subpoena. In addition
it is provided that if the deponent docs appear as a witness and
testify his depoSition may be used to contradict or impeach his
lestimony/'& In addition Rule 15(e) h<lS a provision to Civil Rule
55. \vittlen 01.11 ot United
St)tes
It 15 nOwhere explaIned why the dep
o$it!on of a witness out of tbe
United Stntes may be used if hl.!I
r.tte:l(\anc'J can be compelled by
5I1b;x;e:l:l. under the statutes and
r ule eit::d in above.
56. All'v:SOry Committee Note
S-e the Com::l;ttee Note to
Rule IS(e), G<lt in the Appen.
dix in volu:r.e 3.
G7. IIllbea! corp1.lS ad testiflcandLim
28 U.S,C.A. I 2241(c)(5).
U. S. v. McGaha, D,C.Tenn.IOO2, 205
F.SLlPP.
G8. of deposition
Rul e \5(e).
Bcca1.lse these ;"I>C gcne:ally slmil3r
to the provision, of Civil Rule
2G(d)(J), and there lire ml1:ly more
Civil than criminJI eases involvinll!
this the disc"ssion of
thJt rule in the civil volumes or
this Treatise shoul:! be C')nSIIUed.
ell.
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WATERGATE SPECIAL PROSECUTION FORCE
Memorandum
TO
The File
FROM
James F. Neal
SUBJECT: Motion to Quash Nixon subpoena.
DEPARTME..'lT OF JUSTICE
DATE: Oct. 3, 1974
(Dictated but not
read)
This memorandum is being written in anticipation of
a motion to quash the subpoenas issued to Nixon and anticipa-
tion that the motion will be accompanied by a report concluding
that Mr. Nixon is not now and will not be in the foreseeable
future physically able to travel to this city and testify
in person.
The subpoena and motion raise two questions: First,
what position should be taken with respect to its own sub-
poena, and second, the position the Government should take
respect to the subpoena issued by defendant Ehrlichman.
Nixon is not an essential witness for the Government.
his testimony would be important to help establish
a complete chain of custody of certain Hhite House recordings,
the Government is satisfied it will be able to prove the
integrity of the recordings it seeks to have admitted in
evidence without his testimony. Thus, the position we
should take with respect to our own subpoena is that being
satisfied of Mr. Nixon's unavailability to testify in person
we would not press the issue were this the only question .
(I t should be noted that establishing Mr. Nixon's unavail-
ability is an important element of our ability to prove the
integrity of the tapes without his testimony.)
The Government has a duty, however, to insure, to
the extent possible a fair trial for every defendant . Conse-
quently, we cannot wash our hands of the matter if a defendant
pushes his subpoena to Mr. Nixon. We must take a position
that is supportable in the law. I believe we should suggest
chat the Court promptly determine if Mr. Nixon "may be unavail-
- 2 -
able " to appear in the foreseeable future as a witness
in this cause. If t he answer i s affirmative, the Court
should determine if Mr. Nixon is physically able to be
depos ed and his testimony preserved. If the answer is
negative, the matter is resolved, at least for the present.
If, on the other hand, the answer is that Mr. Nixon is, or
in the near future will be, able to submit to a deposition,
the Court should order him to appear at a prescribed time
and place for the purpose of giving such deposition. I n the
event this takes place, the Government should be allowed to
propound its questions to Mr. Nixon and the defendants should
be allowed to cross-examine him on this testimony. Then the
defendants should propound their questions with Mr. Nixon
as their witness and the Government should be allowed to
cross - examine.
The remaining question, and perhaps the most sensi -
tive one, is the procedure for determining Mr. Nixon ' s
ability to appear in person as a witness or to give a deposi-
tion. I suggest the Court appoint a panel of distinguished
physicians of this area to make an investigation and to re-
port to the Court the answer to the following questions:
1. Is Mr. Nixon presently able to travel to this
city and testify?
2. Will Mr. Nixon be available to testify in person
in this city in the foreseeable future?
3. If Mr. Nixon is not able to travel to this city
to testify in person and with the physicians concluding he
will not be able to do so in the foreseeable future or con-
clude they cannot make such a finding at the present time
to a reasonable degree of medical certainty, then they should
determine if Mr . Nixon is presently able to be deposed at
an appropriate time and place in California. The report on
this question should specify the circumstances and precautions
that should be taken in respect to such a deposition. If
Mr. Nixon i s unable to give a deposition at the present time,
physicians should report whether he will be able to be deposed
in the foreseeable future, again specifying the conditions
and precautions surrounding such a deposition. Finally, if
III . ' ..
- 3 -
the doctors can come to no conclusion on any of the above
questions, they should report to the Court their opinion
whether and when it would be appropriate for them to con-
duct a further investigation in an attempt to answer these
questions.
It is my suggestion the Court leave to the panel of
physicians. at least in the first instance, the type of in-
vestigation they conclude necessary and appropriate. Thus,
if these physicians determine it is sufficient simply to
review and analyze the medical reports and records on Ur.
Nixon ' s present physicians, we should accept such a view.
If, on the other hand, the physicians determine they should
conduct their own examination and testing of Mr. Nixon they
should be authorized and empowered by the Court to do this.

s.u- ........... 's. _, T.. ........t..-u li
____ _ "toC:' ..
GOVERNMENT ' S MEMORANDUM IN OPPOSITION
TO !! MOTIONS TO QUASH SUBPOENAS
TO RICHARD M. NIXON
The United States submits this memorandum of
points and authorities In opposition to the motiona
of Richard N1xon to quash the subpoenas served upon
him by the United States and by Defendantw HO h
!IIIIIt Ehrl1chman.
STATEMENT OF FACTS
Mr . Nixon has asked the Court to employ its dlacre-
tlonary power , under Rule 11(c) of the Federal Rules of
Criminal Procedure which permits the court to quash or
..... modify a subpoena that Is "unreasonable or oppressive , "
.. In order to quash the subpoena of the United States
commanding hin to appear as a witness In the present case.
o.
He has made similar motions as served
upon him by Defendant _ Ehrl1chman . The
sole reason offered to justify quashing the subpoena of
1/
the United States- is the witness' assertion that his
physicia1 condition "is such that compliance with the
1 . other grounds on which the witness resists
defendanlfSj subpoena' are not asserted . and , in any
event , would have no bearing, with respect to the gov-
ernment's subpoena . In addition, the witness ' admittedly
premature attecpt to invoke "executive privilege" in
response to defendants' subpoenas is manifestly inapt .
since this privilege inheres in the government, for the
benefit of the government . and may not be asserted on
the basis of a deciSion of a private citizen acting in
his private capacity . Moreover , the opinion of the
Supreme Court in United States v . Nixon, U. S.
(1974) , makes it plain that the prIVIIege-ri not
available to a coconspirator who would use it to conceal
evIdence of a criminal conspiracy in the face of a demon-
strated need for such evidence at trial .
SUbpQeNa _ would be
""
detWl111iental to h13 !leal bh and welt1l:d
-
pose i 6e-l"i'ott"3 11sk to nls life. II From an examination of
his supporting papers , it appears that the witness does
y
not object to testifying as such, but only to traveling
to the District of Columbia in. the immediate future.
While the United States is willing to withdraw its
subpoena if compliance with the subpoena would impose
'at
an U
ndue hardship on ,,! .. ..... t....... Mr N1
. xon' A n
view of
the importance of a fair and full adjudication of the
present case and the apparent insubstantiality of the
witness' supporting Court
should not quash the subpoenas at this time. rnsteadJte
would suggest that the Court follow the accepted procedure
of appOinting impartial experts to advise it as. to whether
the witness' condition makes it unreasonable to
compel him to travel to the District of Columbia.
ARGUMENT
We wish it to be understood that the United States
has no desire to compel any witness to travel or testify
2. There is no suggestion that the witness is
so debilitated that he is unable to respond to questions.
Cf. United States v. Carter, 493 F.2d 704, 707 (2d Cir.
1974); Burton v. United States , 175 F.2d 960, 963 (5th Cir.
1949); United States v . Sweig, 316 F.Supp . 1148 , 1165-68
(S . D. N.Y. 1970), aff
1
d . 441 F. 2d 114 (2d Cir . ) , cert .
denied, U.S . (1971). On the contrary,
himself points to the possibility that ll the testimony be
taken out of court in such a I'lay as not to risk the
impairment of his health.1I Witness ' Motion to Quash
Subpoena of Defendant Ehrlichman , at 5 .
3,.., II.,.
at the cost of his life or health. As the cases cited
by Mr. Nixon show, it has been held that even a defen-
dant may not be compelled to appear if he is mentally
or physically incompetent . See United States v. Doran,
<61.\ ('''It), 328 F.Supp. 1261, 1262 (S.D. N. Y. 1971); United States
v . Keegan , 331 F . 2d 257,263- 64 (7th Cir .)/'f)
At the same time, it is central to our system of
justice that parties be given thj "Opportunity, not only
of testing the recollection and sifting the conscience of
-
-
a witness , but of compelling hi.m to stantld face to face
-
-
with the jury in order that they may look at him, and
judge by his demeanor upon the stand and the manner in
which he gives his testimony whether he is worthy of
belief . " Barber v . Page . 390 U.S. 719, 721 (1968),
quoting Mattox v . United States . 156 U.S . 237, 242- 43
(1895) . Consequently . the public duty of giving material
testimony in a criminal case before the body that must
decide the guilt or innocence of the ..... accused is
one "which every person within the jurisdiction of the
Government is bound to perform when properly sununoned ."
See United States v . Bryan , 339 u . s. 323 , 331 (1950) .
The importance of this duty -- a matter that repeatedly
3/
has been emphasized by the Supreme Court- demands the
most careful scrutiny of each and every application for
3 . See . e . K . Branzburg v . United States . 408 U.S .
665 , 68a-\1973l ; United States v. Bryan, 339 U.S. 323,
331 (1950) ; Blackmer v. United States, 284 U. S. 421, 4)8
(1932); Blair v . United States, 250 U.S . 273 . 281 (1919) .
CMt. .... ;.) I
v.t
( lin)
is/
relief from its requirements. Thus , in every case in
which accomodations have been made for the sake a wit-
ness' or a defendant's health , the necessity of deviating
from normal trial procedures or schedules has been
uncontested or overwhelmingly documented . See,
United States v . Singleton, 460 F.2d 1148 , 1150 (2d Cir.
Burton v . United States, 175 F.2d 960, 963 (5th
Cir. 1949); United States v . Podell , 369 F. Supp. 151 , 153
(S.D.N.Y.), writ of mandamus granted on other grounds3
sub nom. United States v. Carter, 493 F.2d (2d Cir .
1974); United States v . Doran, supra, 328 F . Supp. at 1263-
64.
The record made by the witness here, however, does
not constitute such a compelling showing of phYSical
i ncapacity to attend trial. .Mit. t ............ "i iln ...
Except for the unsubstantiated assertions of counsel ,
the witness ' motions to quash entirely on
41
the single affidavit of the witness ' personal physician .-
"this physician./ \.(O."\"a,,,
Significantly, _Rta .ef notatsti7that carefully
supervised travel to Washington is at all incompatible
with the ... therapy he has prescribed . The affidavit
simply states that Mr . Nixon should : (1) wear an elastic
stocking; (2) take oral medication; (3) avoid "prolonged"
4. In his motion to quash Defendant Ehrlichman ' s
subpoena. Mr . Nixon alludes to "the affidavits
of the examining physicians ." Witness' Motion to Quash
Subpoena of Defendant Ehrlichman , at 5 . However, the
only affidavit of a physician that has been served on the
government is that of John C. Lungren, _ M. D. ,
that he" "advised" that , other physicians concur
in his recommended therapy. .
1
,
standing or walking could
resul t 1n increased velnous congestion j (4) avoid
"extended" trips which require such sitting or create
- '-Iv
a risk of traumatic h PE hemaorraglng j and (5) remain
,
1n J,' controlled environment " where periodic blood tests
and examinations may be performed . Nowhere does the
witness or the affiant indicate that these conditions
cannot be met if the witness complies with the subpoenas .
even if the witness' showing 1n this
case were less equivocal , the Court would be well advised
to seek Independant expert guidance concerning the
witness ' condition. We say this for two reasons. Fi rst.
5. We do not wish to suggest what precautions the
witness should take in order to minimize any risk to
his health while discharging his duty of giving
material testimony before the jury . But we do think the
following sense observations are relevant to
ascertaining whether. in light of the affiant ' s allega-
tions
3
it is reasonable to insist on compliance with
the subpoenas . Certainly . Mr . Nixon can continue to
wear an elastic stocking and take oral medication while
in transit and in Washington. By having the affected
leg elevated , or by reclining as necessary, he can avoid
prolonged Sitting. standing or walking . as
prescribed . And , by utilizing any of the large number
of ample medical facilities in the metropolitan area ,
his condition may be monitored 1n accordance with this
physician ' s recommendat ions . Beyond this, the Court may
provide appropriate facilities and supervise the ques -
tioning of the witness in a manner consonant with his
medical needs . See , e . a. , United States v . Doran , 328
F.Supp . 1261
3
1971); United States v.
2/
Sweig, 316 F. Supp . 1148. 1167- 68 (S . D. N. Y. 1970), aff'd,
441 F . 2d 114 (2d Cir.) , cert. denied,."olU. S. ,11- (1971)
(defendant with severe cardiac brought
to trial with l1 extenslve precaUitions.
11
i nclud .. lng frequent
and lengthy re
1
esses . facilities for the defenaant to lie
down and nurse on call outside courtroom) .
- 6-
the unprecedented nature of this case - - its "magnitude
and seriousness" -- make it especially important that
the Court take every reasonable step to assure itself
that ....... 'iZi f 'H iil ..... i!Iu it is, 1n fact, truly
imperative that a propsectlve witness be excused from
his obligation to give material testimony at trial. cr .
United States v. Doran, supra, 328 F.Supp . at 1263 .
Second, the fact that the witness here 1s not a neutral
est
or detached witness 1n the case, but has
himself been formally accused of participating 1n the
conspiracy for which defendants are standing trial should
make the Court still more hesitant to accept the witness'
protestations of inability to testify without some Indepen-
dant verification.
That the Court has the power to appoint medical
experts to assist it in matters within its jurisdiction
is hardly open to debate. See, Advisory Committee
Note to Rule 706 , Proposed Rules of Evidence for United
States Courts and Magistrates 99 (1972) (the "inherent
power of a trial sNnt judge to appoint an expert of his
own choosing is virtually unquestioned!'). Rule 28(a) of
the Federal Rules of Criminal Procedure explicitly empowers
the court to appoint its own expert witnesses. Accordingly,
the Court of Appeals for this Circuit has held that where
the competency of a witness is in question, the trial judge
may appoint a physician to a examine the witness to
obtain expert testimony concerning the degree and effect
of the witness' disability. United States v. Benn, 476

lS"l. v.s..
''' I( (1151)
6/
F.2d 1127 (D.C. Cir. 1973).- In fact , for particular
..... instances in which the courts have ordered appointed
physicians to examine a defendant or witness who pleads
he is physically unable to appear at trial. one need only
look to the very cases relied on by Mr . Nixon . See ,
United States v. Keegan. supra. 331 F.2d at 263-64
(court ordered examination and inspection of medical record
by Public Health Service physicians). See also' Natvig
v. United States. 236 F. 2d 694. 698 (D.C. Cir . 1
(court appointed physician to examine witness who had
heart attack on eve of trial); United States v . Bernstein,
417 F. 2d 641 (2d Cir . 1969) (affirming denial of continuance
where district court relied on -opinion of court apPointed
physician instead of accepting conclusion of defendants '
physicians that appearance at trial would pose "risk to
their health and lives'!).
Finally. the claim advanced by Defendants Haldeman
and Ehrlichman that they are "now entitled to take Mr .
71
Nixon's deposition
l1
- does not make independ$Jlt u .....
verification "by court appointed physicians
6. Benn was concerned with the appointment of a psychia-
trist to aid the trial court in ruling on the competency of
a mentally retarded complaining witness . The Court of
Appeals noted that the basis for ordering a medical examina-
tion of a witness "stems from the trial court ' s inherent
power to conduct those inquiries necessary to a full and
f air adjudication . " 476 F.2d at 1130 n . 12 (citations
omitted) .
7. See Defendant Ehrlichman ' s Motion for Continuance
and Severance. at 11; Defendant Haldeman ' s Motion for
Suspending of Trial and Continuance , at 8- 9 . Of course.
no party is entitled to depose a witness without first
securing leave of the court on wotion . See, e ' K" 1 C.
Federal Practice and Procedure S 242 , \1969).
Wright,
-8-
of'
w.... any the less imperative a.B desirable . To begin
with, since Mr. Nixon has not made a sufficient showing
that he is physically unfit to testify at trial, it
"
follows that defend*ants, who rely completely on the
-
. ' ..... witness' papers to demonstrate .... unavaila-
bility, are not presently entitled to depose the witness.
A defendant's motion to depose a witness must be denied
in the absence of a compelling showing of the witness'
1...-. (probable') unavailability. See, ihtt ,i t ......
,.,.-4-. L",
) l )..lJ.t.
(,,,,) .

tr+. J.t'Ajf-l, {
v.,.

In re United States , 348 F.2d 624 (1st Cir . 1965) ; United
States v. Whiting, 308 F.2d 537, . 541 (2d Cir.
Even proof that a prospective witness is outside the
jurisdiction and declines to appeat to testify at trial
"
does not necessalrily establish the required unavailability.
United States 34-9 F.2d 720, 769 (2d Cir . 196; };)
In short, before s.d. ' B countenancing a deposition
and dispensing with the fundamental requirement that a
witness "stand face to face with the jurY, 1I Barber v . Page,
supra, 390 u .s. at 721, the should have before it
more than the ambiguous asservations of a single physician
and the bald assertions of two defendants that the witness
8/
ft. bO" must "convalesce in his home."-
Moreover. even if it were possible for defendants'
to an adequate showing of ,",pt unavailability without
8. Defendant Haldeman's Motion for Suspending of Trial
and for Continuance , at 1; Defendant Ehrlichman's Motion
for Continuance and Severance, at 1.

!
i
I
I
I
I
I
I
I
"
-9-
r ecourse to ... inspection of the witness ' medical
r ecords or actual examination of the witness by an
I ndependant panel of physicians, defendants ,
on the record as it now stands, would still not be
entitled to a deposition. In addition to proving unaval1-
ability. defendants must demonstrate that , In the language
of Rule 15(a) , P.R. Crlm.P . , it t the deposition Is
"necessary" "to prevent a faIlure of Justice . " Defendants
speculate that such a "failure of Justice" would ensue
were the witness not to testify i. .... because "Richard
M. Nixon Is an indispensable witness . . . whose testimony
will be highly exculpatory __ for the defense . " Haldeman
II Memorandum at 1; cr. Ehrllchman Memorandum at 2.
2!
Yet, there is reason to doubt that the witness ' failure to
appear would deprive the defense of such critical evidence
10/
as to constitute a "failure of justice ."- Much ot what
the witness could testify to is ai .... in the

torm ot tape recorded conversatiom that haveJ:been supplied
'-.... t, . \ ..... f-
to the defense . As tor the specific .. .. I l La s .... deTendants
9. It this Is so, we would think it all the more
important that the Court avoid ordering depositions it
at all possible and that the witness appear before t he
jury so that the jurors msy judge by "the manner in which
he gives his testimony whether he is worthy of' belief' . "
Barber v. Page, supra, 390 u.s . at 721. This consideration
thus militates in favor of' the appointment of' independant
medical experts as a mechanslm for securing a satisf'actory
determination of whether resort to deposition is truly
neces!lary.
10. The government does not consider Mr. Nixon ' S
testimony indispensable to its case . If the is
available, either for deposition or f or trial
testimony, the government would conduct limited examina-
tion relating to the authenticity of the tape recordings
. ,la that will be offered as evidence.
I
t
I
I
I
I
I.

I

- 10-
state they would elicit tetslmony from the witness,
mueh of the testimony would mereiy be cumulative , and
11/
almost all of it Is available fr om other sources .
,proposition /.
Nor does the ' 7 that." as an unlndlcted co-
conspirator, Mr . Nixon 1s In a position to give testimony
"ss vit al and indispensable as that of any . party. n
.... on-"" .... - ..... 8 , defendants ' conclusory
allegation ;;i.'"'''''.''''''. "'.''' ....... expected testimony

Is actually " hIghly exc.!.ulpatory ." Whether any Wid tlUIl.
defendant has information that might tend to eXCUlpate
12/
his codefendants Is not a matter of prIor! knowledge.
Indeed. Oefelldant Ehrllchman ' s observation that " fine
distinctions" should not be drawn "bewteen situations
'" whetre a party i8 involved and where a mat erial witness

who is alleged to be a coconspirator is inVOlved," id.,
helps place the matter in proper perspective . Were Mr .
Nixon a cO- defendant and were he to refuse to take the
stand, defendants could hardly complain of a "failure of
W
Just ice ." In sum, in the absence of a firmer basis for
concluding ., ...... '.' ................ , . ' .......... .......................... t hat
11. Most of the specific items of which the witness is
said to have "sole" and "exclusive" knowledge turn out ,
upon inspection , to be conversations with and communications
to other persons. such as Richard Kleindeinst , Henry Peter -
son , and defendants themselves -- all of whom are available
to testify at defendants' bidding.
12. In fact, in considering defendants motions for
severance in this case , the Court found that defendants
"failed to indicate the exculpatory im10rtance of the
particular testimony they desire to e1 cit from their
eodefendants . " United States v. Crim. No. 14- 110
(D.D.C. July 9, (Memorandum The showi ng
...,z RI .tt.' of the exculpatory importance of the
particular testimony defendants Haldeman and I Ehrlichman
indicate they would obtain from the witness is no
more convincing.
is(ient ' 9 1..
a 11 "
...
t

,
,
t
t
t
f
I
I
I
I
,
, ,
I I
I I
-11-
the witness' testimony 1s "necessary" to avoid a "faIlure
of Justice," the suggested alternative of deposing the
witness Is not viable. In any event, even a fIlm of
the deposition of a witness Is not a scmple+- substitute
. -tt..t -l,.1J .....or
for his personal and '!:i ? ; I 3,. r
\ ... .. '" "',. tKt"h 1/.( .... :l-..H' f ... ", -/ul-J";"'d
w.ttd..,uJt tohs-;;itmpOlll;afie, ..-oot:"alnlng an
impartial and independant expert evaluation of the witness'
,ms pac' 20. _1::>. :U:: .. o. physical capacity to comply with
the outstanding subpoenas.
CONCLUSION
For the foregoing reasons, the motions to quash the
,
subpoenas to Rlcha? M. Nixon should be denied.
13 . A far more careful and convincing showing .. that
particular, highly exculpatory 11 _ testimony has been
withheld from a defendant than has been made here would
be aM., ,_1.1 .. required to support a claim of injustice
in that situation. See cases cited, Government ' s
dum in Opposition to Defendants ' Motions for Severance;
note 12 supra.
'"'" OnU04 .. outlO1U .M' _r __ --
, , '." .... 'eo In oppcdt''''' te ..,tlon.
of to qu h tho .ubP"" ...... "..d upon
M. br tho Unlt.d St .... and bJ
_
'Ple ,o,"on cror,. .. j .. ,H,
-...... h . . .. h .'e "
ph,, !'''1 ,MtU ..
q ... !:1 Ii \ho .. b.o,,,' , .r
", ' " .. to .. "" .. ,
______ l-=-_J __ _
2J 'P.l .. 1; 1lu '''11-, AP.,..,.
1VrJ.,.}.o 7A. rJ */ -
rt ... tt...!i .... ""'-"- f', wh...tj...,
__ ;-,t ...-...x 7"'-< ..,L..4 .........
u.. ,.-_,,-l, ..... u.., 17k
5.,.", . 0, ... , .4 c...;.
In r So.tftJ '1 'N (tc-, u 'b:
t....>: .1",_ ,u- :'Jlw, -- 1-.., M.-..
<t ,v "" II, /J..7;.7/ U
[J.. ..... !,.;'" -u.,. Cd. ""7 r4oc...,. k
.llmlJ') , ,..,.,..,t -r-t So, '4&1 st..w ,
_,9'" ex $010, (,,11)
-2-
to hls he alth &/111
lAX. ""11..f:{ peee a 6010 .. 6 1SKOI iii
/i
L- / . - .. ""'-'Y,h., 'he witness d08s
- hie papa
l
. "' I. '10&8" From an el<amlnat1on of
J!...i. /7(,) ff Ut. not object to tut1fylng as aueh .- but only to travel1ng
2 T4 ... c"'.'.= b."_'.".' ... '"h" ..... '.=,.. '_" ' .... .
....,...d -6< _
i ck. CL.:lJ rk .:Y Itr
"tV A /c,..(u! (l...[ rfu..t R...a...."
)
dubpoena if e pileoue with the
an undue hardship on .au
the importance of a fair
present ease
ull adjudication of the
Inaubatantiallty of the
wltne88 that 'the Court
t that the Court follow the accepted procedure
would Buggea c..-..t:
J d 1 ' u t ... Whether of appointing impartial experts to a v se :
the wltnesa ' condition makes 1t unreasonable to
1
"
_
'h
Dlatrlet of Columbia..:L l'- eompel hiM to trave
u..<. -
-We I" sb 't to b:e::1:I1ldexetoot! that the Uhited States
hi. Ill! dull e te eelllpel "'"' .i'", to tPII".l 01" ".et1'!':i
There 1s no sugsestion that the
ao debil1tated that he la j
,

r;k.12 ;;.... 7:Iu.
TI<.u az,. a
-au. tk), ru. wdL
.

, . ' i f) ::r-,.,L Zl>
..;) "0..4; """' '1 a< "' .... "
tk H. "lt4.-

- ..:!::I -r; , / .
. I/<.<A ;N<t.L -zk "-'-<- n>-<-
-
@
It (.6 UHOJ"-
-'0-
It: ..... ~ I .. ~ ~ ... CW lM.t.. c--......z... "--" r ~
At the same time , it is central to our system of
Just i ce that par ties be given the"opportunity, not only
of testing the recollection and sifting the conscience of
-
a witness , but of compelling hi . m to stan face to face
with the Jury 1n order that they may look at him, and
Judge by his demeanor upon the stand and the manner in
which he gives his testimony whether he is worthy o ~
belief . " Barber v . ~ 390 u . s . 719 , 721 (1968) ,
quoting Mattox v . United States , 156 U. S . 237 , 242- 43
(1895) . Consequently , the public duty of giving .rt '.l
testimony in a criminal case before the body that must
decide the guilt or innocence of the ..... accused is
one "which every person within the Jur isdiction of the
Government is bound to perform when properly suromoned . II
See United States v . Bryan , 339 U. S. 323 , 331 (1950) .
The importance of this duty -- a llI a tltH!l" tll'l at repe atedly
57
MJJ ~ e e n emphasized by the Supreme Court demands the
most careful scrutiny of each and every application for
~ See , e . g ., Branzburg v . Uni ted States , 408 U. S.
6 6 ~ 68s-T19f3) ; Uni ted States v . ~ , 339 u . s . 323 ,
331 (1950) ; Blackmer v . United States , 2811 U. S. 421 , 9 8
(1932) ; ~ v . United Statep , 250 u . s . 273. 281 (1919) .
.. ;:.:""",:::,::;., .
.......... ....:.

t:A,O);

,.............6<.
..... Ii 8 .... ' _ep_ .... dde .. f'ee'n,d ... nll ' ,,""!iee""tt h t be nl! celt e i tI, 0 f do ev 1&610g
from pormal
tnlpl flloeedtues 61 eebedalee .;

"""'" w.L
..... ti
URIUultQEieli QP Q"8PI'AeillllR8}.Y QliIll"mented

See, .
=;;;;-
------- United StateB v. Singleton, 460 F. 2d 1148, 1150 (2d Cir .
\
rJ'( 1972) ; Burton v. United States , 115 F. 2d 960 , 963 (5th
v,r,, -'
1.\,1
0
I",}) Cir . 1949); United States v. Podell , 369 F.Supp. 151, 153
\
(S . D. N. Y. ) , writ of mandamus granted on other grounds.
sub nom. United States v. Carter, 493 F.2d 104 (2d Cir.
I J..t. 'I
1974); United States v. Doran, 328 F.Supp. 1263-
64(SP.N,"-: 1111),
Nllr __
J

The llIade by lIer e. sees
S'--1
.. 7k.
"rial. __ ;.'.'. ...... ... ...... WiIa
61leept 1"01 the aUiQPt10ps Of IIO"PSQ) .
the
w'tness ' lIot19. UI '9 "sat _ P911t on
,i!;t
............... ",., .... "'"'"''''.,",.'1"'"""",,,,,,.,,,8,..., . '1"'" , ........ ' " '.ill ......... J:1.'T!i ,,;. ,
,this t ..... .. 1
Significantly, ):hb. nflfllli:a"" does not' ' vthat carefully
",....,.. ....
supervised travel to Washington 18 at all incompatible
with the ... ...
simply states that Mr, Nixon Should : (I) wear an elastic
stocking; (2) take oral medication; (3) avoid "prolonged"
&' In his motion to quash Defendant Ehrlichman's
subpoena , Mr. Nixon alludes to "the .2' g affidavits
of the examining physicians." Witness ' Motion to Quash
Subpoena of Defendant Ehrlichman , at 5 , However, the
only affidavit of a physician that has been served on the
government is that of John C, Lungren , " M, D., 9t: . ba'l'l8l>ett .....
state, that hel "advised" that. other physicians concur
in his recommended therapy,
result In increased velnouB congestion; avoid
"extended" trips which require such sitting or create
a risk of traumatic lea n: hem!.or*,glng ; and (5) remain
In a"controlled environment" where periodic blood tests

and examinations may be performed . n. I r:? sMe
#J' ".o. 'l6 C:L __ -a.... .M..t....."..t: ... .,c .... ll..
+' ... I _ 1: ts that these conditions '1.1
cannot be met if the witness complies with the subpoenas.
E.r ....
Furthermore. even if the 3 ' ' showing In
........,:l.--. 1<1 u. ..... ""1A< W __ "C4t..
wefoe less equivocal, '1(11,,14 ee ad:wl&ed
.-... t--L ,f -.G. _
te eeck It1ifeperni6l'1ti .... guidance cop:epP1pg the
11'1 .. Z; u.;.._ ...... ;-z. .......
'.Ij,tI'lSSS ' 119ll11t'OR ""Ii lliloy tka.& fa1" "uo ICUSOiiS. li'liM.
.:... -H . ..-,Jv see.. a.-.I I'b c.........z __ H" AJ, ...... .J;
-J./.M 4
,. We do not wish to suggest what precautions the
witness should take in order to minimize any risk to
his health while gf , g discharging his duty of giving
material testimony before the jury. But we do think the
following iiR8e observations are relevant to
ascertaining whether. 1n light of the affiant ' s allega-
tions, it is reasonable to insist on compliance with
the subpoenas. Certainly. Mr. Nixon can continue to
wear an elastic stocking and take oral medication while
in transit and in Washington. By having the affected
leg elevated. or by reclining as necessary. he can avoid
prolonged periOd) of sitting, standing or walking, as
prescribed. And, by utilizing any of the large number
of ample medical facilities 1n the metropolitan area,
his condition may be monitored in accordance with this
physician' S recommendations. Beyond this, the Court may
provide appropriate facilities and supervise the ques-
tioning of the witness in a manner consonant with his
medical needs. See, e.K. , United States v. Doran, 328
F.Supp. 1261, 1971); United Stat,s v.
316 F.Supp . 1148, 1167- 68 (S . D.N.Y. 1970 , affid.
4"'1ilF.2d 114 (2d Cir.) , cart.
(defendant with severe caralac ,..' 7 aa brought
to trial with "extensive precau].tions, " includ-.1ng
and lengthy resesses, facilities for the to lie
down and nurse on call outside courtroom).
.. ':: .\Tt RGATE SPECIAL FORCE
...
:::::::;. OF JUST[CE.

Memorandum
TO

James F . Neal
Associate Special Pros ecutor
I
Peter H. Krei ndler 0't-
Counsel to the Spec i al Prosecutor
DATE: October 9 , 1974
Pl-' .K:sk
Sl:BJ EC7: The Court ' s power to order that a deposition be
t aken of Richard M. Nixon.
are two memoranda prepared by David Kaye concern-
Cour t ' s to order t hat a deposition be taken of
: ::..Y.O:l pursu ant to Rule 15 of the Federal Rule s of Criminal
Rule 15, as you know, provides that the Court may
orc.e = a. de ? osit io:J. o f a prospectiv e vritness upon the notion
0= ,: :::e':enca!"" t i!:: it appears "that a prospective witness may
be to a tte!'.c. or pre vented frorl attending a trial or
... " As Davi.d Kaye points out in his firs t mert'orandum. ,
t :-,e has L-:.h!i!.=ent power to appoint a t e a m o f impartial
r.'.eci ::;.:" to d etermine whether a Hitness will be able
t o a t =ial. view of the statert'nts of Dr. LUngren ,
\ ;:-.;' c=: .;-e=e c;.:-e ='..:.l.:...y tailored to s ave Mr. Nixon from any of
t :--.e ::::,:::'2:-.5 '=-="..a-=. .... c .!l.d attach to e ither an appearance at trial
0= ::=al with defe nda nts and a ll couns el present ,
t tis a appropriate case for the Court to
to name its own experts . Dr. Lungren's
c= indicate a clear possibility of
p=e : ':'=":' ::e .
has not discovered any case law, it
-'-,,-= '::::.a::e must be a presUJnption in favor of a
... i t=:. -as3 a."..-:?earing at trial. Thus , even if defendants
,,'e=2 = ::e sa:=- s =.:.ee with a deposition , the Government should
ha'.-e ..:...= :::-.:.S:" - -::c :"::sist upon live testimony unless it is clear
t.': a :: -=--= ::-=cs;: =-_ witness is unavailable. Accordingly, we
-:'::' e position that to protect the integrity of the
the public interest, Judge Sirica must
e:-:e =:::"s2 :-.is c...:.s =:=etion to appoint an independent team of
-:: 0 c e'::e=:- "":'=:e t-lhether Hr . Nixon is, in fact, abl e to
tes-:::"::::- .
; .::.citio::.a2..1y , you have aske d whether a de position can be
orce=;,c ::. 0 .... , leavir:.g open the possibility that Mr. Nixon may
be to at trial in the future. It is clear from
i..;,f::: v.c!:'di r. C; 0': Rule 15 that the Rule conteIl'.pla tes preserving a
Cent r al Files
Chron
PHK Chron ___
PHK Subj ect ""'--

,
- 2 -
\,;itness's testili',ony by deposition when it appears that the wit-
ness nay be unable to attend , not just ~ . , h e n it is clear that
he will not be able to attend . Thus, if Judge Sirica appoints
a tea.r:! of r..edical experts , the experts should be required to
state , if they conclude that Mr. Nixon in his current state
is unable to attend , whether he may be able to attend in a ~ ~ n t h
or t\o,'O .
PO. t tach-'7.ents
'0
WATERGATE SPECIAL PROSECUTION FORCE DEPARTMENT OF JUSTICE
Memorandum
TO
Peter Kreindler
DATE: October 9, 1974
FROM David Kaye "bl'-
SUBJECT:
Defendants' Request to Depose Mr. Nixon
I have located no cases dealing specificall y with
the question of the evidentiary showing of a witness '
unavailability due to sickness that a defendant must
make to obtain a cour t ordered deposition pursuant to
Rule 15, F.R. Crim. P. or to 18 U.S.C. 53503. Therefore ,
I can only offer the following observations. As my
memorandum of October 8 demonstrates, it is well within
the discretion of the trial judge to appoint medical
experts to examine Mr. Nixon to determine whether he
will be available as a witness at trial and whether
he is able to be deposed in California. Conversely,
whether the judge may instead rely upon the materials
furnished by Mr . Nixon in deciding whether to allow the
defense or the prosecution to depose Mr. Nixon is equally
within his discretion . In the present case , two facts
militate in favor of appointing independent experts
rather than permitti ng defendants to rely on the witness '
experts . Where (1) the witness himself is implicated
in criminal activity and has an interest in not testi-
fying, and where (2) the witness ' testimony may be of
crucial importance to the defense or the prosecution,
the court shoul d be especially careful before allowing
the witness to be examined outside the presence of the
jury.
WATERGATE SPECI AL PROSECUTION FORCE
DEPARTMENT OF JUSTICE
Memorandum
TO Peter Kreindler
DATE: October 7, 1974
FROM David Kaye ~
SUBJECT: Court Appointment of Medical Experts to Examine
Mr. Nixon
James Neal has proposed that the court in United
States v. Mitchell, Crim. No . 74-110 (D . D.C. ), should
select a panel of distinguished physicians to determine
whether Mr. Nixon ' s physical condition will make him
unavailable as a witness at trial and whether he is or
will be able to be deposed in California. See Neal,
Memorandum on Motion to Quash Nixon Subpoena, O ~ 3 ,
1974. This memorandum examines some of the questions
raised by this proposal, namely: (1) the power of the
court to appoint such a panel; (2) the consequences
of a refusal by Mr. Nixon to submit to physical examina-
tion by this panel; and (3) the type of finding by the
panel that would enable Defendant Ehrlichman to depose
Mr . Nixon pursuant to Rule 15, F.R. Crim. P., or that
would permit the government to do the same under 18
U. S.C. S3S03. !/
I. The Power of the Court to Appoint a Panel of Physicians
to Examine a Witness.
That a court may appoint experts to assist it in
matters within its jurisdiction is all but irrefragable.
As the Judicial Conference's advisory committee on the
rules of evidence noted, "{tJhe inherent power of a
1/ This memorandum does not address the question of whether
the "organized criminal activity" certification required of
the government by S3S03 can validly be made in this case .
Two opinions of divided panels of the Second Circuit suggest
that this requirement can properly be fulfilled here. See
Rient, Memorandum on Deposing Mr . Nixon pursuant to 18 U.S.C.
3503, Sept. 18, 1974. These opinions also discuss the con-
stitutionality of S3503.
-
- 2 -
trial judge to appoint an expert of his own choosing is
virtually unquestioned.
M
Advisory Committee Note to Rule
706, Proposed Rules of Evidence for United Courts
and Magistrates 99 (197 citing v .
298 F.2d 928 (2d 1962);
Trials at Cornmon Law SS 663 &
Indeed, Rule 28(a), F. R. Crim. P. ,
empowers the court to appoint its own expert
w Accordingly, the Court of Appeals for this
circuit recently held, in United States v. Benn, 476
F.2d 1127 (D.C. eir. 1973), that where the competency of
a witness is in doubt, the trial judge may, on his own
motion , appoint a psychiatrist to conduct an examination
of the witness to obtain expert testimony concerning the
degree and effect of the witness' disability. I
therefore conclude that the court has the authority to
appoint a panel of physicians to examine Mr. Nixon
2/ 476 F.2d at 1130. Under the circumstances of the
case, the court held that the trial judge did not err
in not ordering an examination of the complaining witness,
a mentally retared 18 year old girl , who testified that
she had been raped.
Of course, here we would be seeking the appointment
of court experts for an examination of the physicial
ability of a witness to travel and testify rather than
to aid the judge or jury in assessing the competency
of the witness ' proposed testimony. But the court noted
I
in Benn that the basis for ordering a psychiatric examina-
tion-ol a witness *stems from the trial court ' s inherent
power to conduct those inquiries necessary to a full and
fair adjudication." 476 F.2d at 1130 n. 12 (citations
omitted). See also Winn v. united States, 270 F . 2d 326
(D.C. Cir. has inherent power to order
thorough mental examination of defendant to determine
sanity). Accord , United States v. Baird , 414 F.2d 700,
710 (2d Cir . 1969); Pope v. United States, 372 F.2d 710
(8th Cir. 1967), vacated and remanded on other grounds.
392 U. S. 651 (1968); United States v. Albright. 388 F.2d
719 (4th Cir. 1968). An impartial determination of whether
a witness' health makes it impossible for him to give
material testimony is as important to a full and fair
adjudication as is an unbiased examination of a witness '
competency to give evidence. In addition, Rule 28(a) contains
no express limitation of the uses to which court appointed
experts may be put.
- 3 -
or his medical records for the purpose of advising the
court and the parties of Mr. Nixon's availability as
a witness at trial and his capacity to give a deposi-
tion.
II. The Consequences of a Refusal by a Witness To
Submit to Court Ordered Examination.
The power of the court to appoint a panel of
physicians to examine Mr. Nixon does not ineluctably
imply a concommitant power to compel him to submit to
such an examination. 3/ The strongest argument against
the court ' s authority-to order a witness to undergo an
examination (or face citation for contempt) comes from
the realm of civil procedure. In two cases decided
around the turn of the century, the Supreme Court held
that a federal court could not order a physicial examina-
tion in the absence of a statute or rule providing for
such examinations. See Camden & Suburban R. Co. v.
Stetson, 177 U.S . 1 7 ~ 1 O O ) ; Union Pac. R. Co. v. Botsford ,
141 u.s . 250 (1891). The Court emphasIzed the "inviolability
of the person" and the fact that , with limited exceptions,
"no order of process commanding such an exposure or sub-
missi on was ever known to the common law in the admini-
str ation of justice between individuals . " 141 U.S. at
252 . 4/ Even under today ' s civil practice , a district
court-can order a physical examination only of a party ,
and it cannot enforce its order by a contempt citation.
See Rule 35, F. R. Civ. P . , Sibbach v . Wilson & Co., Inc .,
JI2 U.S. 1 (1941) .
11 Thus, the inherent power of the court to appoint a
psychiatrist to exanine a prosecutrix in a rape case (see
United States v . Benn , 476 F.2d 1127 (D . C. Cir . 1973---
does not mean that the woman cannot refuse to be examined
by the court ' s expert . Cf. United States v . Dildy , 39
F.R.D. 340 (D . D.C. 1966)-.-
4/ More recently, Sibbach v. Wi l son & Co. , Inc., 312
U.S . 1 (1941) , held that Congress had properl y authorized
the Supreme Court to prescribe a rule of civi l procedure
(Rul e 35) giving the district courts power to order physi-
cal examinations of parties in civil cases. I n Schlagenhauf
v. Holder, 379 U.S. 104 (1964), this rule was upheld against
constitutional attack.
- 4 -
There are two obvious differences between the civil
practice and the situation in United States v. Mitchell.
and each points in an opposite dIrectIon. For one, the
proposed examination here is not of a party, but of a
witness. Forcing one who is not a party to the litigation
to submit to examination seems particularly odious. 5/
On the other hand, while it is clear that a witness could
not be compelled to submit to examination in civil liti-
gation , we are concerned here with a criminal case. This
distinction was emphasized in United States v. Baird, 414
F.2d 700, 710 (2d Cir. 1969), and a number of cases have
held it within the inherent power of a federal court
to order a defendant in a criminal case who raises a
defense of insanity to undergo a psychiatric examination
by an expert chosen by the prosecution. See id . ; United
States v. Albright , 388 F.2d 719, 722 (4thlCir:-1968);
igPe v. United States, 372 U.S. 710, 720-21 (8th Cir.
67) (en bane), vacated and remanded on other grounds,
392 U. S. 651 (1968). Contra, State v. Olson, 274 Minn.
225, 143 N.W. 2d 169 (1966). -- --
These cases also stress the notion that "[a]n accused ~
who asserts lack of criminal guilt because of insanity
and who fully cooperates with psychiatrists engaged by
him for examination purposes . . . ought not to be allowed
to frustrate a similar comprehensive examination by the
State ... " pOP
a
v. United States, su1ri' 372 F.2d
at 720- 21. To some egree, the same prine p e applies
here. A witness who asks to be excused from his obligation
to give evidence in a criminal trial on the basis of affi -
davits of physicians of his own selection should not be
able to preclude the court from verifying the reasons the I
witness advances for releasing him from his duty. ~
In any event, whether or not a court may hold in con-
tempt a witness who declines to cooperate with the court ' s
experts, it would seen that a refusal by Mr. Nixon to under-
go examination by impartial experts could be considered by
the court to support an inference that the motion to quash
is not well founded.
5/ To the extent that the court appointed panel would only
examine existing medical records, the invasion of personal
liberties is vastly reduced.

- 5 -
III. The Showing Required for Deposing a Witness
A. By the Defense Under Rule 15
Rule 15 permits the defense to obtain a court order
for the deposition of a witness when (1) "it appears that
a prospective witness may be unable to attend or prevented
from attending a trial or hearing," (2) "his testimony is
material," and (3) "it is necessary to take his deposition
in order to prevent a failure of justice." Rule lS(a),
F.R. Crim. P. See also 1 C. wright, Federal Practice and
Procedure 5241, at 6/ As for the first re-
quirement, n[a) showing that a prospective witness may
die before the t r ial, or may be unable to attend because
of sickness or disability, should be sufficient to demon-
strate unavailability." 8 Moore's Federal Practice Para .
1503 [I), at 15-9 (1974). Consequently, if the court
appointed experts were to conclude that it is likely that
Mr. Nixon will be unable to testify at trial but is or
will be able to have his deposition taken in California,
Defendant Ehrlichman would have little difficulty in
making the necessary showing for him to secure a Rule 15
deposition from Mr . Nixon.
B. By the Government under S3503
Where Rule 15 allows a deposition only on a showing
of the three conditions specified above, 18 U.S.C. S3503
speaks more broadly. It allows the court to order the
taking of a deposition "whenever due to exceptional cir-
cumstances it is in the interest of justice that the
6/ In addition, it may be necessary for the defense to
show that the prospective witness is willing and able
to testify at the taking of his deposition. See United
States v. Bronston, 321 F. Supp. 1269
The defense may also move to depose a prospective
witness under 18 U.S.C. S3503. The showing statutorilY
required of the defense is the same as that demanded of
the prosecution, described infra, except that defense
depositions are not crime cases .
- 6 -
testimony of a prospective witness of a party be taken
or preserved.
w
In United States v. Singleton, 460
F.2d 1148 (2d Cir. 1972) , cert. denied, 410 u.s . 984
(1973), the Second Circuit held that the measure of
the "exceptional circumstances " required in S3503 is
the same showing demanded in Rule 15 motions . Thus,
if it appears that Mr. Nixon may be took sick to testify
at trial . the prosecution should be permitted to take
his deposition in order to preserve hi s testimony. 21
7/ Cf . United St ates v . Carter, 493 F.2d 704 (2d Cir. 1974)
ldoctor ' s affi davit established that critical government
witness had suffer ed serious heart attack and could not be
expected to travel f rom his home in Seattle to appear for
1
trial in New York for several months); United States v.
Singleton, supra , 460 F.2d 1148 (government witness too i l l
with luekemia to leave his home in Alabama to attend
trial in New York).
ATERGATE SPECIAL PROSECUTION FORCE DEPARTMENT OF J USTICE
Memorandum
TO Peter Kreind1er DATE: October 15 , 1974
SUlI)ECT: Nixon Documents
Attached are the documents you requested.
The first indication that Mr. Nixon might be
suffering a recurrence of phlebitis came in an
A.P. dispatch the evening of September II, widely
reprinted in the September 12 editions of local
papers. The "source" quoted in the dispatch, I was
informed at the time by an A.P . reporter here in
Washington, was Edward Cox. David Eisenhower appear-
ed on the Today Show the morning of September 12 and
also reported the recurrence of phlebitis . Dr. Tkach
was interviewed on September 13 , reported the presence
ot a second clot and told the press that Mr . Nixon
was resisting efforts to get him to go to the hospital.
Mr. Nixon entered hospital on September 23.
The Lundgren interview you requested took place on
September 30 and was reported in October 1 editions.

-
1 . . " ~ ~ . I
Relative Describes Nixon
As in Pain and Depressed
i
, ..
"
"
to commetu 0 ...
0'
NEW YORK DAILY NEWS
Tha Pain, the Strain
Nixon Bears It: David
By PAUL HEALY
Wuhinetoll, Sept,.11 (New. Buruu)_Richard
M. Nixon n in some peln lrom pbleblti! but other_
wise appears to be bearinl' up llirly well, hi! son_in_
law, DI\'id Eisenhower, told The New. tOOay.
-no. phl,bitb l.o had.. WI ....... to.ot 1b.Io." ..... Ulll&" oDd
...... pal.., oDd it'. jUt the ..... heth .. (NI ...... tl_ciOJl) r-tl
...... or ....... w EiMu.o.u said ... a lolfpljom, l:lta-ri_,
H ... 14 that D.iWr h Dor hb ...u. Juli<r, had _ 1M
t ......... Prni4n1 iA """t 111.10 ..... llIot hto Imp....; ... t .....
to aid .. It San Cl ................ , N ... oo .... "b .. rinll
up p .. tl1 ... Jl." H. oald lhal b nd pl.MId 1<0 1Ir CD'
to Collfornl. !hi, _kor>d to vi.it h r pa .. n",
DaY!4 .... wid obolol tOfIOrb that NItoD ..... d ..
p........d, 100.1 said he .......... bl. to a-. th ..... A _JrObo. of
th.t N ..... fomil'-doo .... hl 1<0 bo Triolo', hlUloaad. Eohnnl
th.t f'Hoo loot lLl,hl ..... aid that
N";.on .... - ... 0 d..-p d.pnsol""H .. hith ..... IIOt lifled hr ,h.
full pard.n puled IoJ .. II, Pr .. idOl1' Fonl. ...,..,..
'AIUIII'" Spirits W.r. WId
Duld uld that h. 'USllmtd
H
N;'.D'. IPlriU .... Iltttd
by tho pardon o..on_nL H. di...,.."tocI the f ........ Pt.ool,
:=-: tbvo .... __ ?....al
Da..w _itd .. porto u..t JoJi. tnip, but iI't.,...; ..... with
Ford ... botbaU of pardo. fOT be. t.tII ... "h'l co.,pleul,
ridiClll"""H h, .. id. '"Th ...... ""thin, t. th,t n aU. W,,,"
tH. Ihl Ford. thr .... r fo,lt Ii", ; .... Ih, "';fII.!I .... I t
hal al"Q'1 bttn 0 -...i .... Tho Id f Julio
.... in' It tho .tupid .. t thin, 1' .. evor hurd of In "11il' ..
H. aid u..t !';'on .... d .. pl, IDlHosted iJI -.. d ......
Ill lotori .. J ..... rd of Mo loot ....,. bo om... "E ...., tim
, ha toll<td, 1>0 I ........ ted 00_ IOJ>llt flftl. th f.o.mil, OIl
u.. _k btt"oro th.t .... I,....U ........ ", .. bln, llI.t .... 1eI 1>0
pnHl"ftd. posolhl, for 0 D ..w dId. _
1""0 ... bt .. bt.n .. """. th .. N;'on ... .an .... Okh
12 ",lllio. t.r hi, '"' .. ,.;".
n, ra.,ll, ..... 100... hG Wkod to tho AP """ .. hi ODt tho
Doctor Rules Out Nixon Testimony for 1 to ~ Months!
,,, ,,,,",
,
,
j
-------
mUTEO STA'rI:S DISTRICT COURT
}"OR THE DISTRICT OF COLUHBIA
UNITED STATES OF AMERICA
v. Crim. No. 74-110
JOHN N. NITCHELL , cr al.
Defendants.
HEmr.ANDUH OF THE UNITED STATES
I N OPPOSITION TO liOTIONS TO QUASH
SUBPOENAS TO RICHARD H. NIXON
The United States submits this memorandum in opposition
to the u:otions of Richard H. llixon to quash the subpoenas
served upon hie by the United States and by Defendant Ehrlich-
y
moo.
Mr. Nixon asks this Court to quash the subpoenas issued
to him on behalf of the United States and Defendant Ehrlichman
on the grounds "that the physical condition of the witness is
such that compliance with the subpoenas would be detrimental
2/
to his health and would pose a serious risk to his life."-
1/ The motions to quash are the only matters before the
Court at this time. Defendants Ehrlichman and Haldeman. in
their motions for a continuance filed on September 27 and Octo-
ber 9, respectively, claim they are "now entitled to take ;1r.
Nixon's deposition ." A deposition of a proop(;ctivl'! witness in
a criminal case pursuant to Rule 15 of the federal Rules of
Criminal Procedure or pursuant to 18 U.S.C. 3503 only may be
taken with leave of the Court upon motion of a party. There is
no such motio;l before the Court. Accordingly, the governI:lcrt
nt this time does not address the right of defendants to tuke
Hr. Nixon's deposition, although it does not believe the de-
fendants can I:lake a sufficient showing to warrant this procedure.
2/ With resjleet to the Ehrliehman subpoena, Ur. Nixon nsserts
the additio:l.al ground of "executive privilege." It is hir,hly
doubtful that a former President, in his private capacity, can
assert this privilege ... 1'I1ch inheres in the goverm:tent, for the bene-
--continued --
-
-
L
...
"'::r""
- 2 -
AS we demonstrate below, the showing in support of the motions
falls far short of the clear and convincing evidence of sub-
stantial risk to I1r. Nixon's health that '\o,'ou1d warrant grant-
ing the relief sought. Accordingly, the Court would be fully
justified in denying the motions to quash and requiring Mr.
Nixon to comply with the subpoenas.
Nevertheless, the government does not object to the Court .
Out of an abundance of caution, appointing a panel of three
doctors, with expertise in the area of cardio-vascular disorders,
to conduct an independent examination to determine whether Mr.
Nixon in fact will be able to testify without seriously 1m-
pairing his health. Clearly. this panel should be free to
determine the scope of the examination necessary to permit it
to give the Court a full and reliable report. In addition, as
we discuss below in detail, the panel should be free
to consult with other physicians to determine what precautions
and arrangements, if any, the Court should adopt to insure that
Mr. Nixon would not incur undue risk in testifying.
In this regard, the Special Prosecutor wishes to inform
the Court that the government will not insist upon Nr. Nixon's
testimony as part of its direct case. If Mr. Nixon does appear
"
the request of any of
'h,
def endan t s ,
'"
reserva the right at
that time to
questions
regarding the authenticity
government will
offer into evidenea .
-- continued--
fit of the government. Sec, .g.,
prr
p
C
v. United Statcs, 157 F.Supp.
a.k
of
"it
".
government wishes
",_ Nixon limi ted
tape recordings the
l'lC ourt does not have to reach this
any presumptive privilege for testimony
to the issues before this Court (the only testimony
clicited) must yield. See Unitad States v. Nixon ,
94 S.Ct. 3090, 3110 (1974).
11 The eovernment intends to establish the authenticity of
the tape recordings without the testimony of Nixon nnd will
submit to the Court a memorandum supporting the government's
theory. Thus, Hr. Nixon's testimony on this issue would support
an alternative theory of admissibility.

I
J
. r
- 3 -
This procedure viII eliminate the need for Mr. Nixon to appear
on two separate occasions and viII reduce substantially any
risk to his health .
ARGUHENT
It 1s true, of course , that courts have discretion under
Rule 17(c) of the Federal Rules of Criminal Procedure to quash
a subpoena when there is a substantial risk of serious impalr-
ment of the witness ' health . At the same time , however , it
i s central to our system of justice that parties be r;iven the
"opportunity, not only of testing the recollection and sift-
ing the conscience of a witness , but of compelling him to stand
face to face with the jury in order that they may look at him,
and judge by his demeanor upon the stand snd the manner in
which he gives his testimony whether he is worthy of belief. "
Barber v. Page , 390 U. S. 719 , 721 (1968), quoting v.
United States, 156 U.S . 237, 242-43 (1895). the
public duty of giving testimony in a criminal case before the
body that must decide the guilt or innocence of the accused
is one "which every person within the jurisdiction of the
Govermnent is bound to perform when properly summoned." United
States v. Bryan, 339 U.S. 323 , 331 (1950). See also Br3nzbur&
v . United States, 408 U. S. 665 , 688 (1973) ; B13ckmer v. United
States , 284 U. S. 421 , 438 (1932); Blair v . United States , 250
U.S. 273 , 281 (1919) .
Accordingly , courts must carefully scrutinize each and
every motion to quash to insure that there is no unwarrsnted
intrusion on the public ' s right to 3 full and impartial trial
or on the defendant's constitutional right of confrontation.
A motion to quash should not be granted unless the court has
determined that there is a clear and convincing showing the
f
r
r
L
- 4 -
witness would seriously jeopardize his health by testifying
and that the Court is incapable of instituting arrangements
appropriate to protect that witness ' health. See generally
United States v. Singleton, 460 F.2d 1148 , 1150 (2d Cir . 1972),
denied, 410 U.S. 984 (1973); Burton v. United States,
175 F.Zd 960, 963 (5th Cir. 1949); United States v. Podell,
369 F. Supp. 151 , 153 (S.D.N.Y.) , writ of mandamus granted on
other grounds sub nom. United States v. Carter, 493 F.2d 704
(2d Cir. 1974); United States v. Doran, 328 F. Supp. 1261 ,
1263- 64 (S.D. N. Y. 1971) .
The showing submitted
affidavit of his personal
by Mr. Nixon , based
4/
physician.- docs not
solely on the
constitute
this compelling showing. Indeed, an examination of the papers
5/
indicates that Hr. Nixon objects not to testifying, - but to
t raveling to the District of Columbia. Significantly, how-
ever , Dr. Lungren does not conclude that carefully supervised
t ravel to Hashington would endanger his patient's health or
would be incompatible with the therapy he has prescribed.
His affidavit simply states that Hr. Nixon should: (1) wear
an elastic stocking; (2) take oral medication; (3) avoid "pro-
l onged" periods of sitting, standing or walking which could
4/ In his motion to quash Defendant Ehrlichman ' s subpoena ,
Mr . NIxon .1Uudes to "the affidavits of the examining physicians.
Witness ' Motion to Quash Subpoena of Defendant Ehrlichman, at. 5.
However, the only affidavit of a physician that has been served
on the government is t.hat of John C. Lungren, M.D. , st.ates
that he is "advised" that other physicians concur in this
recolllJlended therapy.
5/ There is no suggestion that. the witness is presently so
debilItated that he is unable to respond to questions. Cf.
493 F.2d 704 , 707 (2d Cir. 1974YT
175 F.2d 960. 963 (5th Cir. 1949):
316 F. SuPp. 1148, 1165-68 (S.D.N.Y.
cert. denied, 403 U.S.

!'Ir. Nixon nIiiiscIrPOInts to the
be taken out of court in such a
way as of his health. "
I'lotion Ehrlichman , at 5.
- 5 -
result in increased vcinous congestion; (4) avoid "ext.ended"
trips which require such sitting or create a risk of traumatic
hemorrhaging; and (5) remain in a "controlled environment "
where periodic blood tests and examinations may be performed.
Neither the memorandum in support of the motions nor the
affidavit. indicates that these conditions cannot be met if
the witness takes appropriate precautions in complying with
the subpoenas.
The government, of course, is not qualified to determine
what precautions would alleviate the concerns expressed by Dr.
Lungren. But:, it is clear that. Hr. Nixon can continue to wear
an clastic stocking and take oral medication while in transit
and in Washington. By having the affected leg elevated, or
by reclining as necessary, he can avoid prolonged periods of
sitting, standing or walking, as prescribed. And, by utilizing
any of the large number of ample medical facilities in the
metropolitan Washington area, his condition may be monitored
in accordance with his physician's recommendations. Beyond
this, the Court may provide appropriate facilities and super-
vise the questioning of Mr. Nixon in a manner consonant with
his medical needs. See, ~ . & . , United States v. Doran, supra ,
328 F. Supp. at 1263; United States v. Sweig, supra, 316 F.
Supp . at 1167-68 (defendant with severe cardiac condition
brought to trial with "extensive precautions," including fre-
quent and lengthy recesses, facilities for the defendant to
lie down and rest, and trained nurses on call outside courtroom) .
Nr. Nixon 's showing also is insufficient because it does
not rule out the possibility that Mr. Nixon will be able to
testify in the future . Indeed, a medical report released
yesterday indicated that Mr. Nixon i s responding well to
treatment, that his condition has not flared up since he left
J
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the hospital, and that there have been no complications.
(Washington Star News, October 15, 1974, at A-2.) It may be
that after an additional period of convalescence it will be
possible to conclude with reasonable certainty that ~ ! r . Nixon
will be able to travel safely to Washington to testify before
the end of the trial. As this Court well knows, the trial or
this case will take at least two more months, Bnd it would be
improper to quash the subpoenas unless the Court concluded
that Hr. Nixon could not: testify at any time during the course
of the trial.
Even 1f the showing in support of the motion co quash
were considerably stronger, the proper course, under the
circUDstanccs of this case, would be to appoint an independent
panel of doctors to conduct whatever examination they believe
is appropriate and to report to the Court on Mr. Nixon's
health and his physical ability to testify.
The Court, of course, has the power under Rule 28(a) of
the Federal Rules of Criminal Procedure to appoint medical
experts to assist it in matters within its jurisdiction. See
Advisory Committee Note t o Rule 706, Proposed Rules of Evi-
dence for United States Courts and Magistrates 99 (1972) (the
"inherent power of a trial judge to appoint an expert of his
own choosing is virtually unquestioned"). Accordingly , the
Court of Appeals for this Circuit has held that where the
competency of a witness is in question, the trial judge may
appoint a physician to examine the witness to obtain expert
testimony concerning Lhe degree and effect of the witness '
disability. This power "stems from the trial court's inherent
power to conduct those inquiries necessary to a full and fair
adjudication." United States v. Benn, If 76 F.2d 1127, 1130 n.12
J
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.1
D.C. GiL 1973). Indeed , the very authorities cited by Mr.
Nixon support the Court's authority to appoint physicians to
examine a defendant or witness who pleads he is physically
unable to appear at trial. Sec United States v. Keegan , 331
F.2d 257, 263-64 (7th Cit. 1964) (court ordered examination
and inspection of medical record by Public Health Service
physicians); see also Natvig v. United States, 236 F.2d 694,
698 (D. C. Cit. 1956} , cert. denied . 352 U. S. 1014 (1957) (court
appointed physician to examine witness who had heart attack on
eve of trial); United States v. Bernstein, 417 F.Zd 6'11 (2d
Cit. 1969) (affirming denial of continuance where district
court relied on opinion of court appointed physician instead
of accepting conclusion of detendants' physicians that appear-
ance at trial would pose "risk to their health and lives" ).
There arc three reasons Chat make it particularly appro-
priate for the Court to exercise its discretion in this casco
First, the unprecedented nature of the trial -- its "magnitude
and seriousness" -- make it essential for the Court to take
every reasonable step to assure itself that Mr. Nixon in fact
will be unable to testify before quashing subpoenas directed
to him. fL United SCates v. Doran, supra, 328 F. Supp. at 1263.
Second, Mr. Nixon is not a neutral or detached witness.
lie has been formally accused of participating in the conspiracy
for which defendants arc standing trial, and it would be only
natural for him to seek to avoid an obligation to testify.
Thus, the Court should be hesitant to rely solely on Nr. Nixon's
supporting papers.
6/
trist-to
mentally
Bcnn was concerned with the appointment of a psychia-
ara-the trial court in ruling on the competency of a
retarded complaining witness.
J
.,
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Although the government has no reason [0 question the
integrity of Dr. Lungren, the Court cannot ignore the fact
that he has attended Mr. Nixon as his physician since 1952 .
Any loyalties that have developed during this association of
more than 20 years might unintentionally color Dr. Lungren ' s
advice. Indeed, it is clear that Dr. LUngren was focusing on
Mr. Nixon's exposure to subpoenas when he conducted his tests
and acted as an advocate in public reports which were struc-
tured [0 be favorable to Mr. Nixon's legal position . II
Finally, in addition to providing an impartial, up- to-
date evaluation oC tlr. Nixon's medical condition, an independent
panel of doctors would be able to consult with the Court on
Lhe appropriate sa.fcguards and procedures for minimizing the
risks, if any, that would be occasioned by Nr. Nixon traveling
to Washington for the purpose of testifying. Only with this
advice can the Court finally determine whether ~ ! r . Nixon is
in fact able to testify.
CONCLUSION
For the reasons stated above , the motions to quash should
be denied without prejudice , and the Court should appoint an
indepcndent panel of doctors to examine ~ l r . Nixon to deter-
mille whether, under appropriate conditions , Mr. Nixon will be
able to testify at any time during the trial of this case.
1/ In a news conference on September 30, 1914, he
stntea that Mr. Nixon would not be ,1ble to tcstify, but might
be able to eive 1I "written deposition ." (New York Times,
October 1, 1974, at lB.)
- 9 -
Prosecutor

A . [ant Special Prosecutor
ct-
Attorneys for the United States
Watergate Special Prosecution Force
1425 K Street, N. W.
Datcd, October 16, 1974.
Of Counsel,
Gerald Goldman
Peter F. Ricnt
Lawrence las on

CHARL.E$ A . HUFNAGEL, M.D.
CH ... ''' ..... ,.. . DI: .. .. " .... [NT 0 .. $ UII GERY
SUAGIlO,."NCHIE ..
GEOJlGETOWN UNIVERSITY HOSPITAL
3800 RESERVOJR ROAD. N.W.
WASI-4INGTON. D.C. 20007
29 November 1974
The Honorable John J. Sirica
Judge, United States District Court
United States District Court
Washington, D.C .
Dear Judge Sirica:
The report of the medical panel is submitted W.Lth this l etter . All mem-
bers were In agreement with the opinions it cpntains. The dates stipu-
lated are the expression of our judgement at the present time and are
subject to modification by unknown future medical developrrents.
If required by the court the panel can submit the medical reasons and
data upon which it based its report. This would involve specific in-
formation regarding his condition, which we have been instructed is
confidential.
I would be pleased to meet with you to discuss the reasons for the
opinions expressed by the panel, if you wish.
CAH/dg
Sincerely yours,
Charles A. Hufna
Chairman, Medi
. D.
,
TO: The Honorable John J. Sirica , U. S . District Judge
FROM: Medical Panel--Gharles A. Hufnagel, M.O., Chairman;
RichardS . Ross , M.D. and JohnA. Splttell, Jr., M.D .
SUBJECT: The Physical Condition of Mr. Richard M. Nixon
On November 25" 1974, we visited the Long Beach Memorial
Hospital where we interviewed Doctor Eldon Hickman and reviewed the
medical records. x-rays. special studies and laboratory data of Mr .
Richard M. Nixon . Subsequently, we examined Mr . Nixon at his home
on the same date. The examination of Mr . Nixon was carried out with
his consent and cooperation. On the basis of the above, we submit the
following opinions in response to the questions posed in the court order
filed on November 13. 1974:
U) Mr" Nixon 1s not presently able to travel to Washington,
D. C. to t estify .
(2) It is difficult to predict with accuracy when such a trip to
Washington, D. C. might be accomplished without excessive risk. If re-
covery proceeds at the anticipated rate, and there are no further com plica-
tions, we would estimate that such a trip should be possible by February
16,1975.
(3) Mr. Nixon is not presently able to appear and testify at
a site near his home.
(4) If his recovery proceeds at the anticipated rate, and there
are no fmher complications, we would estimate that he should be able
page two 26 November 1974
The Honorable John r. Sirica
to testify at a court room near hi s home by February 2.1975.
(5) Mr. Nixon is not presently able to be deposed by the
parties in this case.
(6) If recovery proceeds at the anticipated rate , and there are
no further complications, we would estimate that he should be able to
give a depositiol'). in his home by January 6,1975.
(7) If a deposition is to be taken as described in response
to (6) above, we suggest it be obtained in no more than two daily sessions
of no longer than one h o ~ each. There should be adequate opportunity
for rest behveen sessions. A physician should be in attendance to moni-
tor Mr. Nixon' s condition during the taking of the deposition.
26 November 1974
CAH/dg
Respectfully submitted ,
(Handwritten copy signed by each member of medical panel attached)
J
.

1' _ .... D)_ .'W
(LI. .... I_n
'.
Ur-." ITED STATf.S GOVERNMEKT DEPARTMENT OF J USTICE
Memorandum
TO Peter M. Kreindler
DATE: 30 Nov . 1974
Counsel to the Special Prosecutor
FROM : David Kaye
SUBJECT: Cont inuance to Obtain Testimony of a Sick Witness
I have spent some hours locating cases discussing the
showing a defendant must make to obtain a continuance
1/
because of the illness of a wltness. - I have concluded
t hat although a lesser standard 1s usually employed , there
1s some support for the position that the defendant must
submit an affidavit showing that the testimony \'Iould be
favorable to the defense and that the witness will proaably
be available 1n a reasonable time.
Generally, if a continuance 1s sought for the purpose
of securing the attendance of witnesses , "it must be shown
who they are, what their testimony will be, that it will be
r elevant under the issues in the case and competent, that
1. In none of these cases
jury present .
factor of a sequestered
DOJ-1971-()4

J
'.
-2-
t he witness can probably be obtained if the continuance 1s
granted , and that due diligence has been used to obtain
- .
their attendance for trial as set." Neufleld v. United
States, 118 F.2d 375, 380 (D.C.Cir . 1941), cert. denied,
315 u.s. 798 .
Numerous cases emphasize the elements of probable
availability and the expected nature of the testimony .
Thus, in Eastman v. United States, 153 F. 2d 80 , 84- 85
(8th Cir. 1946) , cert. den1ed , 328 U.S. 852, the court of
appeals saw no error 1n the denial of a continuance to
obtain the deposition of a witness in the Armed Forces
stat ioned 1n Europe where "the motion did not show definitely
that t he testimony woul d be available at the next term"
and it was "difficult to discern what value the testimony
of the absent witness could have been to defendants ." See
also Dearinger v. United States, 468 F. 2d 1032 (9th Cir .
1972) , where a similar r esult was reached, in part , due to
the existence of "some doubt as t he ultimate availability
of [the] witnesses," id. at 1035.
In particular, the simple fact that the expected, testimony
would be highly material is not enought to compel a continuance.
In United States v. Lustig, 163 F . 2d 85 , 89 (2d Cir . ), cert.
denied , 332 U.S. 775 (1947 ), the court of appeals held that
lower court exercised its discretion in
,
/
(
- 3-
a defense motion for a continuance made on the ground that
a defense witness had suffered a coronary thrombosis 1n
view of the fact that the testimony, n!f ever
would only have been cumulative to that of [the defendants] ."
See also United States v . Reed , 476 F.2d 1145. 1147 n.1
(D.C .Cir. 1973); Jackson v. United States , 330 F.2d 445 (5th
Clr .1964), cert . denied, 379 u.s. 821 (affirming denials of
cont i nuances to allow the defense to present cumulative
testimony) . Even if the sick witness is alleged by the
to have partiCipated 1n the crime and 1s conceded
to have "oaterlal information ," a one-week continuance 1s not
if counsel only advises the court generally that tne
',;ltness 1 testimony is important to "the whole truth" but does
not specify the testimony to be elicited . Payt on v . United
222 F. 2d 796 (D.C.Cir. 1955). See also v .
United States , 210 F.2d 473 (5th Cir . 1954) (defense must
allege what the absent witness would testify to if present) .
The defense, in short, must do more than show material ity .
It must identify "substantial favoring evidence," United States
v. HarriS, 436 F.2d 775, (9th Cir. 1970), and it should
make this showing by way of affidavit . United States v. Trenary.
473 F.2d 680, 682 (9th Cir. 1973) .
:

--
UNITED s'rATES
v .
FOR THE DISTRICT OF COUJMBIA
Plaintiff
Criminal NO . 74- 110
JOHN MITCHELL. et al .
Dcfendant
roTtON TO QUASH SUBPOENA.
Richard ~ I . Nixon . through his undecsigned counsel ,
respectfully moves purs uant to Rule 17 , Federal Rules of Crimi-
"
I'
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,
nol Procedure, to quash a certain subpoena to testify and pro-
duce documents or materials in this proceeding . The Bubpoena,
issued upon the application of defendant John D. Ehrlichman
o n September 4 . 1974 . and served upon the witness on September
,, 19 . 1974 , com.mands him to appear to testify and proouce certain
documents and materials in this case in Washington, D. C., on
I September 30, 1974 .
II
On September 20, 1974 , the date for compli-
ance with the subpoena as served was suspended by the court
i:
pending the filing of these papers . A copy of the subpoena
II is attached hereto as Exhibit 1\ .
The groundB for thiB motion , which are more fully
discussed below, are as follows:
1. The phys ical condition of the witness at this
time is such that compliance with the subpoena would be detri-
mental to hiB health and would seriously increase the risk of
L
"
I,
'I
"
:i
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II
II permanent injuJ::y or incapacitation .
, .
Both the materials demanded , and
Ii
,I the subject matter of the testimony sought , arc privileged
I!
I
II
II
:1
'I
as confidential Presidential communications, and are subject
to compelled disclosure under subpoena in a criminal case
only upon a specific showing of necessity for tho testimony
or the materials. Such a shOl1ing has not been made .
3 . The of the subpoena is un-
reasonable and oppressive in that it lacks the specificity
required to determine whether the materials sought are re10-
vant and admissible as evidence .
ARGUHENT
Com"liance \'ith The Subpoena \.ou1d Pose
A Serious Risk of Permanent Injury to
The Health of the Witness.
Based on the affidavit of John C. Lungren , M. D.
11
and on the information and belief of counsel , the facts as to
Mr . Nixon's current physical condition and prognosis are as
follows :
Mr . Nixon has suffered since the mid-1960's from re-
,I current phlebitis or inflammation of the blood veins .
d
phlebitis
I
is often accompanied by blood clotting, a serious condition
1/ The Affidavit of Dr . Lungren has not yet been received by
counsel . It has , however , been read over the tolophone , and
the Affidavit of lIerbert J . Miller , Jr ., attached hereto as
Exhibit B, sets forth its contents. The Lungren Affidavit wil l
II be fil(!d as soon as it is received by counsel.
"
"
:1
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Ii which the life of those if afflicts . Should emboli
(clots) formed in the veins become detached and reach the lungs ,
;1 permanent damage or death may result.
i!
During the week ending September 13 . 1974 , Mr . Nixon
:1
1
was examined by Dr. John Lungren at Palm Springs , California
I
I and by Dr. Walter Tkach in San Clemen to , California . Both
.1 found a worsoning of the phlebitis condition, this time af-
i:
II
'I
I
Ii
,
fecting the upper loft leg , and recommended hospitalization for
diagnostic tests and treatment . Mr. Nixon entered Long Beach
Memorial Medical Conter in Long Beach, California , on September
23. and has remained there through this date .
At the of his admission to the hospital . it was
believed that the diagnostic tests would be completed and
available on September 30 or October 1 , and counsel so reported
to this Court at a conference on September 27. However , in
tests performed after Mr . Nixon's admission to the hospital,
an embolus was discovered in tho right mid lung l ateral surface,
and further tests were discontinued to permit treataent of this
potentially extremely dangerous condition. The embolus in the
lung is responding to treatment , and the tests originally plan-
11 ned have been resumed . Counsel are now informed by the attend-
I
Ii
ing physician that the tests are expected to be completed on
Friday, October 4, 1974 , and the results and analysis wil l be
available to counsel by approximately the middle of the week
of October 7.
"
"
,
,
;1
"
p
II
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"
Ii
"
"
Assuming that further complications do not occur.
!i
, Mr. Nixon will be released from the hospital on October 4
Ii
II or 5, and will be placed on ambulatory prophylactic anticoag_
Ii
11
"
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II
!I
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:!
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il
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!,
ulant therapy for a period of approximately three to six months ,
depending on his response to such therapy. The therapy includes
oral medication, frequent testing. and restricted phyaical
activity, and requires that Nixon refrain from travel .
Counsel expect to have more complete information on
/>Ir. Nixon's condition after the test results have been obtained
and analyzed, and if requested, we will make a further report
to the court at that time. lIowever , even on the basis of the
information obtainable at this time, it is clear Hr. Nixon
cannot comply with the subpoena in the immediate future with-
out impairing his physical condition and creating a potentially
very serious risk to his health.
In determining whe ther to require attendance of a
witness pursuant to subpoena , Court must be assured that
the physical and menta l health of the witness will not be
damaged , impaired or in any way harmed in any significant way . "
In re Loughran , 276 F. Supp. 393 , 430 (C . D. Cal. 1967) . The
II fact of a physical disorder trial excessively painful
I
or risky" to the defendant's health , united States v.
328 F. Supp. 1261, 1262 (S.D. N.Y. 1971): see United States
I,
'I
h
I
,I
:
F
d
"
II
v. Keegan, 331 F.2d 257, 263-264 17th Cir. 1964), constitutes
ii
"
"
"
I
II
I'
II
ii
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I,
il
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I
I
II
II
I
-5-
a ground for precluding trial altogether . Where merely fore-
going the testimony of a witness is at stake, rather than
foregoing trial altogether, the risk to the individual's
health should be given the weightiest consideration by the
trial court. At the very least, where the witness's testimony
is shown to be necessary, courts have granted a continuance of
trial to permit the witness to recover from hie illness, or
ordered that the testimony be taken out of court in such a wey
as not to risk impairment of his health. See Burton v . United
States , 175 F.2C1 960, 963-964 (5th Cir. 1949); Newton v . United
States , 162 F.2d 795 , 797 (4th Cir. 1947); United States v .
PodelL. 369 F. Supp . 151 (S.D. N.Y. 1974) .
At the present time, based on the affidavits of the
examining physicians , we submit it is clear that requiring
Nixon's attendance pursuant to the subpoena would pose
serious riSKS to his health. In addition , Mr . Nixon plainly
is unable to perform the review of his Presidential materials
which are presently and will for some time remain in Washing_
ton, D. C. __ necessary to comply with the portion
I of the subpoena. For these reasons , the subpoena should be
I
quashed .
I
!
I
B The Materials and Testimony Sought Are
I
. Privileged Presidential Communications
!! the ::u::: ::s:::o::c::e::::l:o:::::
t
o:y
Ii
-6-
y
Mr . Nixon' s appearance , relate exclusively to
between the President and his aides. Such communications arc
,
,.
it privileged," and their disclosure may be com-
ii
I
pelled only upon a specific need for evidence
in a pending criminal trial . " United Stntes v . Nixon ,
u. s.
94 S. ct . 3090 , 3110 (1974) . In that case, the
il Supreme Court held that once a claim of privilege had been
Ii
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II
11
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II
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II
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made , it was the "duty of the District court to treat the
subpoenaed material as presumptively privileged and to require
the Special Prosecutor to demonstrate that the presidential
material was 'essential to the justice of the [pending criminal}
case.' "
'd.
In sharp contrast to the specific identification of
conversations subpoenaed by the Special Prosecutor and the
showing of relevance and admissibility made by him as to each,
see id. at 3103- 3104. the present subpoena is so broad and
unspecific as to make impossible any intelligent judgment as
to exactly what is desired , much 1e85 as to whether the need
for any particular materials is sufficient to overcome the
privilege . Mr. Nixon has no desire to withhold materials
legitimately necessary to Mr . Ehrlichman's defense. But as the
:1
I, ' the subject matter of the antici-
:1 pated questioning is known. it is impossible to judge whether
11 the pdviloqe is applicable. we suggest that it would be
l' appropriate to require at least a proffer from Mr . Ehrlichman
II of the subjects upon which he would examine Mr . Nixon so that
:' an informed decision on privilege may be made . Cf. capitol
Vend in Co . v. 36 F. R.D. 45. 46 (D.D.C. 1964) .
"
'I
Ii
"
il
-7-
"
,
I. Supreme court recognized, it is "necessat"y in tho public intcrcs
II
to afford presidential confidentiali ty the greatest protection
consistent with the fair administration of justice." .!!!. at
3111. To do 80 requires a continuing insistence that a pre-
liminary showing of necessity be made in each case .
Such a
showing has not and cannot be made as to the present subpoena,
and for that reason i t should be quashed .
The Duces Tec um Portion of t he Subpoen;J.
and to Comoly
The portion of the subpoena requires the
witness to bring with him "all documents , books , records , tape
recordings. writings, drawings, graphs , charts , photographs,
,
phono records , and other intangible matters which refer to or
'I
I. relate to the concealment or cover-up of the break-in into
I'
Democratic National Ileadquarters and the i nvolvement as to
the same by agents or employees of The White House or the Com-
mittee for the Re-election of the This blanket
I! Clescription does not comply .... ith the requirement of Rule 17(0)
11 Federal Rules of Criminal Procedure , that the materials sought
I,
; be "designated. " The words " which refer to or relate to the
concealment or c:overup" are not SUfficient "to apprise a man
of ordinary intell igence what documents are required" or to
enable the court "to ascertain whother the requested documents
I have been proouc:cd." 8 Wright (" Federal Practice and
J
II
"
-6-
Procedure 12211. p. 631 (1970); see Seuden v. B o ~ t o n Insurance
f Co . 34 F.R.D. 463 , 466 {D. Del. 1964} . Read broadly . the
II
!I
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II
II
'I
I,
il
demand would seem to require any document or tape in which
any reference is made to the investigations of the Watergate
affair from June 1972 to the present timc ; and while the
documents conceivably relevant to the issues in this case ara
surely only a small fraction of such materials , the witness
I'
Ii has no way of determining which are or are not demanded by
the subpoena.
Furthermore , to requiro a search of all Presidential
I materials produced since the date of the watergate break-in
II to select materials covered by the subpoena would impose an
unreasonable burden on the witness . without any specification
of particular conversations or documents , a complete search of
ness where it is within the power of the demanding party to
more particularly describe the materials felt to be relevant to
the case . See Flichinger v . Aet na casualty & Surety Co 37
F.R.D. 533 . 535 (W. O. pa . 1965); Rosee v. Board of Trade of the
II City of Chicago , 36 F. R. D. 684 , 691 (N. D. Ill . 1965) .
,I overbreadth and lack of specificity in this subpoena is even
The
II
:1
more egregious than the one involved i n Shel t on v . United States
131 U. S. App . D. t:" . 315 , 326 , 404 F. 20 1292 , 1303 (1968) , ~ .
denico , 393 U.S. 1024 (1969) . where the Court of Appea ls
"
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il -9-
II
11 affirmed this court ' s quashing of a criminal defendant's
I,
II subpoena as "unreasonable and oppressive" when it demanded
I
I
of a House subcommittee chairman "all information concern i ng
I the Klan in his possession , custody. control , or maintained
I
I by or available to him or obtained by him prior to or during"
Ii
il
I
an i n vestigation. See also . ~ . Margo!es v . United States ,
402 F . 2d 450 , 451-52 (7th Cir . 1968) (upholding quashing , on
ground of excessive breadth. of criminal defendant's subpoena
for all electronic eavesdropping equipment logs for city FBI
office cover i ng period of year and a half) .
CONCLUSION
II For the reasons stated herein , the subpoena shou l d be
II qu.,hed
il
I
II
I
,
'i
II
Respectful ly submitted ,
Miller , cassidy. Lar r oca & Lewin
1320 19th Street , N. \ ~ . , Suite 500
washington , D. C. 20036
202/293- 6 400
Attor neys for Richard ~ L Ni xon

C:)-296
r;2. .. 1 12/7;
.s, ... 10 f'ro.hlcc Or Or.J.d
..... -,=" =---==
Cr. __ 21 lit,,. 10 .. ;1
FOR THE
DISTRICT OF COLUMBIA
C:-:ttfO 0,
}
No. 74-110
,.
JOHN M . lvllTCEELL, et aI,
T, P.ICHARD M. N.D{ON
PresidentiaL Compound
San CLemente, California
.,. '1 .. nded to a;ope.:!.r in the United District Court for the
(I ,. ' - , ' -.:i Columoia It John Marshall &, Constitution
Washi:l.gtOJ:l on the 30th day of September, 1974;l.t 9:30
- ----..........
in tne ci t;.' OJ
o'clock A :U
:0 tes:ify in the of United S.t.3.t.es v. Mitchell, et aI , and to remain
Wltil called lor trial of that cause, when called; and bring with you all document"s,
books, records, tape recordings, writings , drawings, graphs, charts,
phor:o records, and other int:mgiolc matters which reler to Or relate to the -
concealment or cove:- _up of the break-in into Democratic National Headquarters
and the involvement as to the same by agents or employees of The White House
or the Comntittee for the Re-election of the President .
Defendant John D. Ehrlichman.
Andrew C" .. L C /fo-t/
.. ;t.;; Defendant Eilrli<;!lInan
Street, 12th floor
____ k:d.i1n!! Flo rida33l3 0
, In :t "Unit>d Stat .. ," Qr "d.ienC:.nt' tbe con =, be.
RETURN
Receive-d this subpoena (It on
f!ndo:1 e.t
serveG it on withL-l !!2med
by delil'ering a copy to II and to h
the fee for one day's attem!a!!ce <lnd the
age al!owed by law.:
Dateu :

:::cr ..
___ .... _._S

T,,:,,! ..... S
. i , ,. -. ,
. ;. ", .. :.
EXHIBIT A
r
.
I'
:i
il
I'
,I
II UNITED ST1\TES ,
I
I
1
Plaintiff ,
II v .
'I
!j JOHN MITCHeLL. et ill
"
1
'1
Defendant.
:1 -----
'i
I,
Criminal No. 74-110
il AFFID1I.VIT OF
" HERBERT J. MILLER. JR.
I'
ri OISTRlCT OF COLUMBIA. 59 :
I H c ~ b e r t J. Miller , Jr ., being duly sworn, deposes
i1 and says as follows,
1. I am an attorney admitted to practice in the
I!
:1
II District of Columbia . I am submitting this affidavit in sup-
!!port of il motion to quash a subpoena served upon my client ,
,I
!I Richard M. Nixon, by the defendant John Ehrlichman .
,I 2 . On October 2, 1974, 1 spoke by telephone with
'! or . John C. Lungren. Mr . Nixon's attending physician in LOng
I
I
Beach . California. to determine the present status of Mr . Nixon's
Ihealth and the outlook for the near future . Dr . Lungren in-
j: formed me that he will execute an affidavit and transmit it
I! to me by mail , for filing in this court, stati ng the following
.'
H information:
I'
t
l
'I
o. Dr . Lungren is a citizen of the United States
Ii and a resident of the state of California .
Ii
He received a Doctor
It
Exhibi t
"
"
j:
,
"
-2-
"
.;
Nedicine Degree from the University of Pennsylvania in 1942.
,.
,
;' HO is a Fellow of the College of Physicians: a Fellow
"
!i Of the American College of Cardiology; a Diplomate of the
ii American Board of Internal. Medicine; a past Fell.ow in Cardio-
lj
!1 1ogy of the National Heart Institute (University of Southern
Ii Call.fornl.a); former Chief of Staff of Long Beach Hemorial Medi -
i
l
cal Center ; former Chief of 11edicl.ne at the Long Beach Memorial
I Hedical Center ; and an AssOcl.ate Clinical Professor of Medicine
"
!I at the University of California at Los Angeles Medical School .
Ii
Il Beginning in 1952 and at i ntervals thereafter . he has attended
11 Richard M. Nixon as his physician .
I b . Dr . Lungren is informed that Mr . Nixon de-
veloped an active phlebitis in his left log during the mid-1960's
while on a visit to Japan, and again during a visit to the 11id-
,
! east o'arlier this year. Phlebitis is an inflammation of the
!: veins frequently associated with blood clotting, Which is a
Ii serious condition likely to recur in those who have once ex-
!! perienced it . Emboli formed in a clot in the leg may travel
il through the heart to the lung, and there obstruct a blood vessel
Il which could produce death or serious injury.
II c . on September 11, 1974 , Dr . Lungren examined
li Mr . Nixon in Palm Springs , California . At that time he observed
: increased soreness along the saphenous vein in the upper left
I: thigh area , and obvious enlargement of both the calf and thigh
II areas of the l eft leg . It was his impres sion at that time that
li the patient had a chronic phlebitic condition in that leg which
"

"
"
II -3-
II
,I
Ij was showing a reactivation and possible development of embolic
I phenomena (thrombophlebitis) _ On the basis of his examination,
I
' he concluded that immediate hospitalization was advisable for
the purpose of treatment and tests to determine the possible
causes and extent of the illness , and he so recommended to
!oIr. Nixon .
'I
I. Medical center on September 23 and tests began on the same date .
d . />II' _ Nixon was admitted to Long aeach Hemorial
II1\. combinntion of a profusion lung scan plus an airway patency
t lung scnn revealed the presence of a pulmonary embolus in the
right mid- lung field , lateral surface . This embolus posed a
pot ential danger to the patient's life and further tests were
discontinued in order to administer rapid anticoagulation therapy
! b
Y
means of int ravenous heparin and oral coumadin . A second
profusion lung scan completed on September 30 indicates that
the pulmonary embolus is resolving itself , and that there is
no evidence of any new embolic phenomena in either lung .
e . On September 30, 1974 , tests were resumed
on the phlebiti s condit i on. It is hoped that the results of
J these tests will eliminate possibl e causes of the thromboembolic
"
condition more serious than the chronic phlebitis . The tests
should be comple ted by October 4 , and the results together with
his analysis of them can be maile a vailable to totr . Nixon's counsel
I
i n Washington , O. C ..
some time during
'he
week of October 7 .
I
f. OL Lungren expects that Hr . Nixon will be
I! rel eased f r ~
,he hospital on October 4 or 5 . Following his
"
.,
ii
ii -4-
I;
I(
!i
:; roleuse , !l r . Nixon will be continued on ambulatory <:I nticaag u-
rl lation therapy to minimize the chance of recurrence o f t he clot
)j formation. This therapy I"ill continue for a period of from
,.
i! three to six months . During this time Nr . Nixon I"ill receive
I! oral a nticoagulant medication, will wear an elastic support
ii stocking, and will be kept on a regimen of limited physical
.'
ii' activity.
II g. The limitations on Mr. Nixon's physical
I activity will involve . first . the avoidance of prolonged periods
i of sitting. standing or walking which could result in increased
I veinous congestion in the affected leg which might produce
Ii further clotting . and .econd, the avoidance of any po ible
il trauma which. given the anticoagulant therapy he will be re-
"
li ceiving , coula l ead to hemorrhaging somewhere in the body .
I! These conditions suggest that Mr. Nixon remain , during the
j! period of his therapy, in the controlled environment of his
home , with periodic blood tests and examinations to determine
the progress of the treatment and to detect any recurrence of
!I clot formation .
II
i'
h . with respect to travel , Mr . Nixon's treatment
I Will preclude extended trips by automobile, airplane or other
j
1means which require prolonged sitting, which expose him to the
I risk of a trauma likely to lead to hemorrhaging, or which make
ll it impracticable properly to monitor his condition.
Ii
i. It is impossible to predict at this time the
'I
' duration of the therapy prescribed above, for it depends upon
the progress made in reducing or eliminating the current phle-
"
Ii
II
.,
Ii
II
-5-
/1 biHe eondiHon.
jl lant medication will be required for three to six months . The
Dr . Lungren believes that the oral anticoagu-
restrictions on physical activity will continue until such time
as his condition stabilizes .
j . In Dr. Lungren ' s professional judgment, the
j failure of Hr. Nixon to observe this prescribe<! therapy would
I
I pose a serious risk to his health.
k . Dr. Lungren is advised that Dr . Siebert: pearSOl
,I
i ASSOciate Clinical professor of Surgery at the School of
Medicine, Dr . Eldon Hickman, Assistant Clinical Professor of
Surgery at UCLA School of Medicine, and Dr . Earl Dore, Director
of Nuclear Medicine at Long Beach Memorial Medical Center , each
of whom has personally examined Mr . Nixon and has consulted with
Dr . Lungren in this case , concur in his recommendation on the
necessity for the prophylactic ambulatory anticoagulation therapy
I
I described above , including the restrictions on Mr . Nixon's physi-
1 cal activity, and in his assessment of the nature and extent
of the risk to Mr . Nixon's health if such therapy is not under-
taken and the regimen of restricted physical activity not fol-
lowea.
I
lsubscrib&d and sworn to
jbefore me this aay
10f October, 1974.
,
I: .. ".,O
Notary Public

(I My commission expires:
,I
"
i
'<
"
Ii
Ii
!I
q
I,
iI
CERTIFlCi\TE OF SERVICE
I hereby certify that on this the 3rd day of October ,
'j
I
11 1974 , true copies of the 'foregoing Motion and Exhibits were
l! mailcd , first-class , postage prepaid , to the following ,
II
"
I:
Ii
I
,I
11
'I
H
Leon Jaworski , Esquire
Special prosecutor
1425 K Street. , N. H.
D. C. 20005
John H. Bray . Esquire
Federal Bar Building
William G. Hundley, Esquire
1709 New York Avenue , N. W.
Suite 205
washington, D. C. 20006
John J . wilson, Esquire
815 15th Street . N.W.
Washington. D. C. 20005
Jacob A. Stein, Esquire
1200 18th Street , N. \-/' .
washington, D. C. 20036
William S . prates , Esquire
66 Flagler
12th Floor , concord Building
Miami, Florida 33130
Herbert J . Miller . Jr .

UNITED STATES OrS'rRICT COURT
FOR THE DIS'l'RrCI' OF COLIJMBrA
il UNITED
Ii
STlI.'l'ES ,
Plaintiff
"
I'
v. Criminal No . 74-110
JOHN MITCHELL. ct a1 .,
Defendant
NOTION TO QlI1\.SH SUBPOEW\.
RiChard M. Nixon , through his undersigned counsel. h e r e b ~
moves pursuant to Rule 17. Federal Rules of Criminal Procedure ,
to quash the subpoena served upon him on the application of the
United states to testify in this proceeding . The subpoena , dated
: September 18 . 1974 , and served upon the witness on September 19 .
commands him to appear and testify on October 1 . 1974 . The date
I
:: for compliance was suspended by the Court on September 20 pending
Ii the filing of these papers . 11 copy of the subpoena is attached
I hereto as Exhibit 11 .
"
,
The ground for this motion is that the physical conditic
-
-
life. The basis for this claim is ful ly set forth in the motion
-
and accompanying affidavit addressed to tho subpoena served by
- "
-2-
,
j: the defendant John Ehrlichman, which we incorporate as if fully
:1
,
jl
!I
[I
I'
ji
Ii
:1
set forth herein .
Ii
1/
II
II Dated: October 1974
I'
,I
"
'\
\
Miller. Cassidy. Larroca
& Lewin
1320 Nineteenth Street, N.W.
0 , C. 20036
(202) 293-6400
Attorneys for Richard M. Nixon
-.
: .....
FOR T:iS
0:;' CO .... m3H
,-- Cr . No. 74-110
LO F:icnard N. "Ni;,on

(I-rl httreb'" t()m;"/'-cni!cd to ll?pear in !ht Ur:iti!1 Distrkt Colll!; for the
3rd &; Constitution Ave . , N.' .. / .
Distric: of at Court.OOi;1 No . 20 in oi
l';ashir:gton on tce 1st ely or Octob!i!"!' 19 H at 10: 00 o'elock A.::l. to
testify ia the CUtl.
This sllbpcea:l is Or: 01' tite'
united States.
___ __ ___ .. 19.IL
Neal
-rr..HBS F.
-----;e- -rr-----------------------.
ji c",,:,.
By _____
DZ;-';":J '::'.i<.
.J.'; 2::;. _ K . t ;:;u:k_K ... _i:."..-... ___ _
,oIU!.eH i'"ashin<;to:l, D. c. 20005

ar.::: O:!
W;::,;r.
hf copy to h
.lio<i!'C D? law.
'rr2.\'e.! _______________ S
.t
ned 1<lacieri:li"' to h
____________ .,-__ _
'fo"'L ___________
I ser\"ed it
the fee lor one :ltte:ldanee :'..nd tl:.e
:D;: __________ . _________ _
, 1,'.,', 0' .. can he.
'F , "..ilu.,.. r . ..,; roO' h. .. ... o!
S;.,t .. o. u .. u 0: a:.,e; .... :. !. USC ICS.

... -"
r
,
"
'I
I
I,
I'
"
,.
CERTIFICATE OF SERVICE
I hereby certify that on this the 3rd day of October ,
1974, t rue copies of the foregoing Motion and Exh ibit were
mailed , first-class , postage prepaid , to the following:
Leon Jaworski , Esquire
Special prosecutor
1425 K Stre et , N. W.
John M. Bray. Esquire
Foderal Bar Building
\ ~ i l l i r u n G. HUndley. Esquire
1709 New York Avenue, N. W.
Suite 205
Washington, D. c . 20006
John J. \.ilson, Esquire
815 15th Street. N. W.
washington, o. C. 20005
Jacob A. stein, Esqui re
1200 18th street, N. W.
washington, D. c . 20036
William S . Frates, Esquire
66 w. Flagler
12th ploor , Concord Bui l ding
nerbert J . Mi ller , J r.

"
AFFIDAVIT OF
DR. JOHN C. LUNGREN
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
John C. Lungren, being duly sworn , deposes and says
as follows,
1 . I am a citizen of the United States and a resi-
dent of the State of California . I received a Doctor of Medi-
cine Degree from the University of Pennsylvania in 1942 . I
am a Fellow of the American College of Physicians ; a Fellow
of the Amer i can College of Cardiology; a Diplomate of the
American Board of Internal Medicine; a past Fellow in Cardio-
logy of the National Heart Institute (University of Southern
California); former Chief of Staff of Long Beach Memorial Medi-
cal Center : former Chief of Medicine at the Long Beach Memorial
Medical Center ; and an Associate Clinical Professor of Medicine
at the University of California at Los Angeles Medical School .
Beginning in 1952 and at intervals thereafter , I have attended
Richard M. Nixon as his physician.
2. I am informed that Mr . Nixon developed an active
phlebitis in hi s left leg during the mid-1960 ' s while on a
visit to Japan , and again during a visit to the Mideast earlier
this year . Phlebitis is an inflammation of the veins frequently
associated with blood clot t i ng , which is a serious condition
likel y to recur in those who have once e xperienced it . Emboli
formed in a c l ot in the l eg may travel through the heart to
the lung, and there obstruct a blood vessel which could produce
death or serious injury.
3. On September 11, 1974 , I Mr . Nixon in
Palm Springs, California . At that time 1 observed increased
soreness along the saphenous vein in the upper left thigh area,
and obvious enlargement of both the calf and thigh areas of
the left leg . It was my inpression at that time that the patient
had a chronic phlebitic condition in that leg which was showing
a reactivation and possible development of thrombophlebitis.
On the basis of my examination , I concluded that immediate
hospitalization was advisable for the purpose of treatment and
tests to determine the possible causes and extent of the ill-
ness, and I so recommended to Mr . Nixon .
4. Mr. Nixon was admitted to Long Beach Memorial
Medical Center on September 23 and tests began on the same date .
During testing, a combination of a profusion lung scan plus
an airway patency lung scan revealed the presence of a pulmonary
embolus in the right mid-lung field, lateral surface . This
embolus posed a potential danger to the patient ' s life and
further tests were discontinued in order to administer rapid
anticoagulation therapy by means of intravenous heparin and oral
coumadin . A second profus i on lung scan completed on September
30 indicated that the pulmonary embolus was resolving itself,
and that there was no evidence of any new embolic phenomena in
either lung .
5. On September 30 , 1974 , tests were resumed on the
phlebitis condition. It is hoped that the results of these
- 2 -

tests will possible causes of the thromboembolic
condition more serious than the chronic phlebitis . The tests
should be completed by October 4 , and the results together with
my analysis of them can be made available to Hr . Nixon ' s counsel
in Washington , D.C. , some time during the week of October 7 .
6 . !1r . Nixon was released from the hospital on
October 4 , 1974 . Nr. Nixon will be continued on ambulatory
anticoagulation therapy to chance of recurrence of
the clot formation . This therapy will continue for a period
of from three to six months . During this time Mr . Nixon will
receive oral anticoagulant medication , will wear an elastic
support stocking , and will be kept on a regimen of limited
physical activity.
7 . The limitations on Mr . Nixon ' s physical activity
will involve , first , the avoidance of prolonged periods of
sitting, standing or walking which could result in increased
veinous conges t ion in the affected leg which might produce
further clotting; and second, the avoidance of any possible
trauma which , given the anticoagulant therapy he will be re-
ceiving , could lead to hemorrhaging somewhere in the body .
During the period of his therapy , Mr . Nixon should remain in
a controlled environment , with periodic blood tests and examina-
tions to determine t he progress of the and to detect
any of clot formation .
8 . With respect to travel , H.r . Nixon ' S condition
precludes extended t r ips by automobile , airplane or means
Which prolonged sitting, which expose him to the risk
- 3 -

of n trauma likely to lead to hemorrhaging. or which make
it impracticable properly to monitor his condition.
9. It is impossible to predict at this time the
duration of the therapy prescribed above. for it depends upon
tho progress made in reducing or eliminating the current
phlebitic condition. I believe that the oral anticoagulant
medication will be required for three to six months. The
restrictions on physical activity will continue until such time
as his condition stabilizes .
10. In my professional judgment, the failure of Mr.
Nixon to observe this prescribed therapy would pose a serious
risk to his health .
11. I am advised that Dr . Siebert Pearson, Associate
Clinical Professor of Surgery at the UCLA School of Medicine ,
Or. Eldon Hickman , Assistant Clinical Professor of Surgery at
UCLA School of Medicine, and Dr . Earl Dora, Director of Nuclear
l1edicine at Long Beach Nemorial Medical Center , each of whom
has personally examined Mr . Nixon and has consulted with me in
this case , concur in my recommendation on the necessity for the
prophylactic ambulatory anticoagulation therapy described above ,
including the restrictions on Mr . Nixon ' s physical activity, and
in my assessment of the nature and extent of the risk to Mr . Nixon ' s
health if such therapy is not undertaken and the regimen of
restricted physical activity not followed .
Subscribed and sworn
to before me this d.:t.;{
day of October,
6,. j
Notary Public
My Commission Expires: 1113 1':'77
- , -
OFFICIAL 511:AI.
EllEN E. BEST
No ...... _'" C"hk>tNo
,"<' ...... o,,1C1I ''''
un ANGlen COU"lY
MY CO ..... ''''0 .. ... '' ....... , .. I). ,."

(J) u/c/--<aW tK- <2
w-dttVKJ

(
1 k i'L.tlJ, I tiM
'-?/./1> r/ ,).l-rl1 ",'j.1,C
.--,-
{1A.kIw,c fv-<..

(Ju'4
UNITE') STATES DISTRICT COURT
FOR TIfE DISTRICT OF COWMBIA
ON'ITE,) .sTATES 0,," J\."IERICA,
Crim. No . 74-110
v
JoaN N. MI'l'CIIELL, et al,
______________ --JI
DEFEND.'-"'l'l' JO:tN O. EHRLICHMA.'l'S REFLY TO )\Q'ITON TO OOI\.'iH
FILED ON BE!tA.lJ" OF -'"''''''"0"''--____ _
Richard M. Nixon is an indispensable witness the
defense. Ehrlichma, has previOUSly stated in his
Motion for Continuance and Severance, a copy of which is
attached hereto as Exhibit MA", not less than thirty (30)
factual issues on which Richard M. Nixon should testify in
this case .
TilE r,'ACTS TO W'fICH MR. NIXON Wll,'L TESTIFY
The government has that Mr. EhrLichman, as
part of the participated in a whereby the
CIA '-'Quld be used as a mechanism to thwart and subvert the
investigation during the aftermath of the break-in of
O.emocratic National lIeadquarters . On June 22, 1972, L. patrick
Gray, Director of the FBI , told John Dean that the FBI
had discovered several checks that had passed through Bernard
Barker ' s bank account , one of those arrested in with
the break-in . Mr. Gray indicated that the FBI was investi-
gating whether or not sums which went directly from CRP to the
bank account were part of an effort by CRP to finance the
watergate bugging and break in . At that time, the FBI
entertained the theory that the break-in was a CIA operation,
, ................. " .... H._ .... , .. __ .... _ .......... _" ................ _, ... ., ...... ...-..... __ ."""_
----
notwithstanding the CIA'S dcniill of this contention . The
government will contend that on June 22 , 1972 01':an recommended
to Haldeman that the CIA be used as a vehicle to prevent the
FBI from discovering that CRP was the source of the 11atergate
burglars' funds. Government Exhibits 1. 2 and 3, tape record-
ings of conversations on June 23, 1972 . reflect
between Mr . Nixon and Defendant Haldeman which might tend t o
support this theory. As a result of these meetings , evidenced
by Exhibits 1 and 2, the Director of the CIA, Helms , and his
Deputy Director, General Walters , were asked t o attend a
meeting at the Wnite House. The government will contend that
t he purpose of the meeting was to use the CIA to subvert a
legitimate then being conducted by the FBI .
The evidence will reflect that Mr . Ehrlichman was in
attendance at the CIA-Wnite House meeting on June 23 , 1972.
Mr . Nixon ' s testimony is indispensable in that such testimony
will establish that Mr . was not apprised of the dis-
cussions held between Mr. Haldeman and Mr. Nixon on June 23.
1972 . Mr. Ehrlichman was told by President Nixon on July 6 and
7, 1972 , that the purpose of the meetings was lawful . as
Mr. Ehrlichman thought . Questions were raised concerning
whether or not CI A activities might be jeopardized by an FBI
i nvestigation involving Hessrs. Ogarrio and D3hlberg . The
President expressed great that a vigorous
WOuld lead to grave consequences for the CIA. former government
officials and other subjects of a national security
would be compromised.
It was in this context that Mr. Ehrlichman apprOved a
CIA as to whether or not a comprehensive FBI investig<ltio
-2-
... D.,. .... ", ""'" .... ,". , ..... " ..... ., .. ....... "" .... "." TW"". " """ "C""" . , ...... " .. """'''
would compromise CIA activities . The result of that invcstiga-
t ion, as Ehrlichman learned, was that the CIA would not be
compromised. As a result , Ehrlichm?n, in a conversation with
A=ting FBI Director Gray, told Gray to go forward with his
investigation as Gruy sa'N fit.
The sinister motives which the government seeks to attach
to Mr. Ehrlichman ' s contact with the CIA on Watergate in late
June, 1972, require that President Nixon testify and establish
what kno,,rledgc Mr. Ehrlichman was privy to at the time , and to
establish the lac);: of specific intent .
theory that the government will argue in this
case involves the question of clemency. The government will
seek to introduce evidence to the effect that in early January,
1973 Ehrlichman met with Charles and John Dean in con-
neetion with clemency offers which were to be made in an in-
direct manner to Howard Hunt to assure Hunt ' s silence . In
furtherance of the conspiracy, the governmcnt will offer a tape
of January 8 . 1973 conversation , Exhibit 5 , where the President
discusses the matter of executive clemency for Ho .... ard Hunt with
Charles Colson. The evidence Mr . Ehrlichrnan intends to
will establish that Mr . E."<lrlichman never approved of any offers
of clemency to Howard Hunt from the wnite House .
I{
Nixon will testify that the issue of executive clemency was
raised during a conversation with Mr . EhrUchman in July, 19.,2 .
During that conversatio:l,_ Mt. NixQD advised,l:lx; Eibr lichman that
executive clemency for any watergate burglar was out of the
question . The evidence will sho .... that because of this clear
"
statement, Mr. Ehrlichman stated t o Mr. Colson in January, 1973
that no offers of clemency could made to Mr. Hunt. Mr .
Nl.%:I ' s testimony is indispensable to establish that when the
-3-
",' . ....... , ... ", "0.0 '''.'.0 ., ... " ........ ........ .-" ..... " .. "", ... "" . ,..,,,," fl""" <_ "0"".0
L
matter was rais<'!d by Mr.Colson on January 8 , Hr . E:.'lrlichman was
not told of conversation , nor was his advice requested .
Mr . Nixon will testify that Colson ' s request for clemency for
Hunt was kept from Ehrlichma, until much Jater .
The government has contended in connection with both the
obstruction of justice charge a,d the conspiracy charge that Mr .
Ehrlichman partic ipated in a cover-up of grandiose proportions
to conceal the involvement of high level officials at the Wnitc
House and of CRP in the of the break-in and bugging of
Democratic National Headquarters . as -"ell as other illegal
activities . Mr . Nixon's testimony is indispensable on this
subject on not less than two specific issues .
First . Mr. Ehrlichman never advocated a cover-up.
Instead, as the tapes reflect. Mr . Enrlichman advocated fulJ and
complete disclosure . One of the issues in this case wi II be
when Mr. Ehrlichman first took the position of fuJJ and com-
plete disclosure . Mr . Ni xon will testify that John E:.'lrlichman
advocated and was told by Mr . Nixon that full and comglete dis-
closure was the order of the day, on or about J 6 2 and
again in A'lgllst of 1972 . Mr . Nixon will further state that Hr
.
Ehrlichman never varied from this position unti l his resignation
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on April 29 . 1973. At the time Mr. Nixon received and accepted
.
Mr. Ehrlichman's resignation as Assistant to the President for
Domestic Affairs . Nr . Nixon acknowledged that EhrJichman had
played the role cf the President 's CO:lscience. reconunending fu 11
diSclosure, and that the President and not res-
ponsible for any concealment of facts which might have occu rred,
NO tape of that conversation was made.
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, ... ...... '" "". ..... "". " ...... ' ""'t ... . ........ "''''''',""" ' '''''''''''. ,.,"" ,,,,,,. "' .. .... ",' .. " ...
On the second ?art of the cover-up issue. the govern-
ment , in its opening statement , said that Mr . Ehrlichman ' s
motive in the cover-up was the concealment of the break-in of
Dr. J . Fielding's offices by of the Special
Investigation unit of the White House . In this regard. Mr.
Nixon will testify that in the aftermath of the theft of the
Pentagon Papers in June. 1971. he. as President. became con-
cerned about the unauthorized disclosure of national security
Mr . Nixon instructed that a Special
unit be establisned to investigate the disclosure of national
secrets lind to take such steps as might be required to assure
that such disclosures were terminated.
There were a number of specific disclosures which were
under investigation during the latter part of 197 1. IncJuded
was the theft of the Pentagon Papers . the SALT leaks (which
inVOlved the leak of the strategy of negotiations in connection
with the Strategic Arms Limitations Talks) and a leaK in con-
with the Indian- Pakistani dispute (which was the cause
of the compromise of a CIA agent) , The President believed that
in order for this unit to have maximum effect its very
could not be disclosed e xcept on a strict "need to know" re-
quirement . That unit was under t he genera l supervision of John
Ehrlichman .
Perhaps the most significant information the unit was in
possessio::l of was in connection with the no" infamous Moorcr-
Wellender-Radford leak . This particular leak had drastic con-
sequences in connection with the na t ional security of the Unite(
Stat es . Disclosure of the facts of the Moorer- Wellender-Ra''':fon
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affai r would have, in the opinion of the President , seriously
impaired the utility and efficacy of the Joint Chiefs of Staff
and made more difficult t he pressing relations with members of
his Cabinet , as well as adversely affecting the conduct of the
war in Vietnam and the President ' s ongoing attempts to achieve
peaceful stabilization in Asia .
Tne government will contend that when Hunt , on March 16 ,
1973 , conveyed to Paul O' Brien his demand for $130, 000 . 00 , Jest
he revie'" his options and reveal the " s !'! amy things he had done
for the !(nite House ", Ehrlichman participated in a cover-up
and that the object of the cover-up was to preclude disclosure
of the Fielding break- in, as stated above . I n fact , Overt Act
NO. 45 of Count I of t he Indictment relates precisely this ques-
tion.
However , Mr . Nixon's testimony will assist in establish in
t ha t that conversation was relat<'l!d to Mr . Ehrlichman ' s review
of what information Mr . Hun t might have as to the o t her highly
secret activities of the "Plumbers' " unit , each of which were
and are lawful in nature, and ' .. as in di rect response to Mr.
>.
Nixon ' s order imposing secrecy on this unit and its operations .
lI'he gove r nment through its opening statement , has made this
subject an issue in this case , and, as a result , Nr . Nixon ' s
1 In connection with the prosecution in the United states
v E.'1rlichman, case No . 74- 116 , the government has char<;Jed !>Ir .
Ehrlichman with not only participating in th<'l! break-in of the
office of Dr . Lewis Fielding. but also a conspiracy to conceal
the same , I n this regard , the Honorable Gerhard Ges e ll, the
trial judge, ruled tha t the President ' s imposition of secrecy
on the unit 's activities was relevant , and,
interrogatories t o Ri.chard M, Nixon. who was then President of
the United States , in lieu of requiring a si tting President to
appear in Court as a witness .
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._ " ' oc" .... " "", " ._ ,,"-", _,., " .... ..... ,,, ........ ""',,' ....... ,,,,. ,,_ <000<000 """n' " .N' " _ ,,.
on this question is
The has contended that the meetings at
Costa, California in February, 1973, were part of an effort
to preclude an by the Senate committee on
Presidential activities into the Watergate matter .
However, Mr . Nixon will testify that that was not the purpose
of the meetings . Mr . Nixon will testify that the purpose of
the La Costa meetings was to develop a strategy whereby the
f acts would be cl.1sclosed and at the same avoid what he thoug t
".-auld be a political witch hunt. That was the purpose eommuni-
eated to Mr. Ehrlichman and it was on that premise that
Ehrlichman participated in the at La Costa.
On March 30, lQ73 , Mr . Nixon removed John and assigned
John as legal adviser and investigator into t he
watergage matter. These were giVen, but are not
on a ta?e. Mr. Nixon ' s testimony as to these ins tructions are
necessary to clearly indicate to the u the na
Ehrlichman ' s activities in April of 1973 a'ld will estab1isn
t hat Mr. Ehrlichman was not engaged in a cover-up but , rather,
was "engaged in a l awful investigatory function.
within this subject would be discussions between Mr . Nixon and
Attorney Genera l Richard Kleindienst on March 31, 1973 on this
ques t ion .
In the ta?Cs which the government seeks to
offer in evidence are highly exculpatory a5 to
Ehrlichman , on the issue of a cover-up. Mr . Nixon ' s testimony
is indispensable on this iss'Je t o establish that t here were no
other cO:l vcrsations or communications on this subject with Mr .
Nix<Jn .
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While a more comprehensive statement of Mr . Nixon's
testimony could be developed, if sufficient time were available ,
Defendant Ehrlichman submits that in light of the foregoing
Mr. Nixon's testimony is absolutely indispensable in this c as e .
ARGmIEN'T
In seeking to quash the subpoena issued on Nixon,
Mr . Nixon , through his counsel . asserted a number of specific
arguments . First. Mr . Nixon has contended that he is unable
to travel by reason of thrombophlebitis and in this regard has
attached the affidavit of his physician . It is apparent that
the illness. from which Mr . Nixon now suffers, is only a bar to
travel and not a bar to testimony. Rule 15. Federal Rules of
Crimincal PrOcedure and 13 USC Sec , 3503. establish that under
these circumstances Hr . Ehrlichman is entitled to ha;,re a deposi-
tion of Mr. Nixon taken to perpetuate his testimony in the event
that when Defendant commences his case in chief, Mr .
Nixon willbe unable to appear in Court . In the atta=hed
on page 11. the three standards for the authorzation of a
deposition are stated. These standards arc:
(a) prosPective witness may be unable to testify.
(b) The is material .
(c) The is necessary to prevent a fai1ure of
justice.
Defendant Ehrlichman submits that each of these three
have been established. AS a result, a deposition must be ta'<c.n
to perpetuate the testimony in the event that, when called
Mr . Ehrlichman ' s case in chief , Mr. Nixon is physicaUy una',)le t c
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respond to the subpoena no'" outstanding.
The second portion of the Motion to Quash is related only
to the produetio:l of documents. In this regard. Hr . Ehrlichman
is willing to provide with a more precise description
of t he dOC1.lments to be produced at trial . To that extent, the
Court would have the po .. er to modify the subpoena and defenda:lt
is willing to cooperate with the Court and with Hr .
Nixon on this issue.
However. production of documents is an entireJy different
matter than the necessity for perpetuating Hr . Nixon's testimo:ly
and the necessity for his presence at trial. shouJd his
permit. As to these questio:'ls , Mr. Ehrlichman is entitled to
have a:'l order entered in his favor a l lowing a deposition to be
taken to perpetuate Nixo:l ' s tcstimo:'lY and. thereafter, re-
quiring Mr . Nixon to appear and to testify on behalf of Defendant:
Ehrlichman .
FRATES FWYD PEARSON STEWkltT
PROENZA & RICH!'IA'I. P . A.
Attorneys for
Twelfth floor CO:'lcord Building
By! ____
wm . Snow Frates
By' ____
Andrew C. Hal J
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, ... . ",,:1, ,.,," .-....... "' ... , '-,,, "' ..... __ "0,""," "'''''''''100.''''''''" " .... <000< _ _ ........ , " .... ...
CER1'IFICA're OF SERVICE
I HEREBY CERTIFY t h<:lt <:I true copy of thO'! foregoing
Reply to Motion to Quash was furnished by hand this 16th d<lY
of October , 1974 , t o t he follo .... ing :
Leon Jaworski . Special Prosecutor
watergage Special Prosecution Force
1425 K Street . N. W.
D. C. 20005
William G. Hundley, Esq .
Plato Cacheris. Esq.
Hundley <:Ind C<:Icheris
839 17th Street . N. W.
Washington , D. C. 20006
John J . h'i1son, Esq.
Suite 500
Wnitcford, Hart . Carmody &
815 15th Street . N.W.
11i;lshington , D. C. 20005
J<:Icob A. Stein, Esq.
Stein, Mitchel l, Mezines
1200 18th Street . N . W.
W<:Ishington, D. C.
David Bress , Esq.
Greene, Esq.
Ginsburg, Feldman & Bress
1700 Pennsylvani<:l Avenue , N.W.
W<:lshington, D. C. 20006
John M. Br<:lY, Esq .
Arent, Fox. Kintner , Plot kin& Kahn
1815 H Street . N .W.
washington, D. C.
Herbe r t J . MilJ e r . Jr ., Esq .
Miller, Cassidy, LarrOC<l & Lewin
] 320 19th Street , N. W. Suite 500
By __ ____ ___
And r ew C . Hall
- JO-
UNJTE]) STATES OF AMEKIGA,

UNIT E O ST A l)IS,.!{1<: 'l' CO! III l'
FOR 'Jllt:: lJJsnUCT OF CuLUMUlA
Criminal No .
J JOHN N. MITCHELL, et aI. ,
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DEFENDANT JOHN D. EIJl{L1CHMAN'S
MOTlOr-. FOR CONTIf\:UANCE AND SEVER1I.NCE
Defendant, JOHN D. EHRLICH/>.1..AN, hereby move. t l';$ Court for
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the entry of an order severing Defendant Ehrlichman from hi. codcfcnd .. "t.
and continuing the trial date. As grounds for the sa>nc , Defendant Ehrli ch>n;!.n
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.ubmits that:
1. Defendant Ehl'lichman to be issued a subpoena requiring
Richard M. Nixon to appea r and to testifr as a w;lne.s for the defens e in
this cause:
z. That subpoena i. valid, outstanding and rcquire. compliance:
3. That Richard M. Nixon ill an Indi&pen8able witness in this
cause who s e testimony will be highly exculpatory for the defense on the issuct
involved;
' 4. That IHchard M, Nixon has J'epresented to the Courtlhat, sub_

lequentto the issunnce of the subpoena , ho has suffered the aggravation of a
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previous illness , lhl'ombophiebitis, and as a resuH requil'es prcsent
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ho'pitali7.ation and treatment;
5. That this condition has becn complicated by the lodging of a blooii
clot in Mr. Nixon ' . luns. thcl'eby precluuillC travcllo the Di . trict of
Columbia at this time:
6, That the rrlCdical condition of Mr: Nixon is such as to require Mr.
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,j Nixon to be hospitali7.ed ;J.nd thercaf(er to convalesce lit his hom;:: in San
Clemente, C;llifornia:
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7. That Defendant EIll'lichm;).n i s willing to exhaust such l'i1:hts as
provided to perpetuate this testimony;
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II , TI,,,t it ill un ' ai .' rind" vivl"tion or due process of
law w c"m",e"cc t he td .. l in this cause, to rOlluire Ddcnudnl I::hrlichmall
t o m"kc opening statements ami 10 CroS9 examine government witnesses
without lirst beine. .. Hawed to perpetuate t his vHal ;:tnu imlispcL\eabJc testimony
9. That to perpetuate such lcslimony in" prope r Mnnnc r Mr. Nixon
must be deposed, by vide<;> tape, and that such a depos i tio n may not be
eommcnccd until Mr. Nixon's heaHh ;rnproves subs t antially. and once that
" deposition is commenced it ",ill take not less than two we eke to conclude;
,

(Sec Nawig v . United Stales , 2:36 F . 2:d 694, 98 U, S , App. O. C. 3')9 [1956J ;
ccrl . den. 352: U. S, 1014; !Jurlo" v, United 17S F . 2d 960, l'chearing
den. 176 Fed. C65 [5th Cir. 1949] cert. den. 338 U. S . 909);
10. That it is manifestly unfair to sequest er the jury in this cause an
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requi re that jury 10 idl}' sit by for such a delay; and
ll, That Delemlant Ehrlichman is the onl y defendant that has
subpoenaed Mr. Nixon thereby allowing the trial to go lorward as to his co_
defendants and during which Mr. Nixon's medical problems can either be
I favorably resolved or , in the alternative, his testimony can be perpetuated,
Mr . Nixon is a mat cri Ol l and indispensable wHness in this ca use, Mr.
Nixon has sole and perlonal knowleci'ge of the following lacts to which he can
, bo expected to testily in t hc tri .. t of this case:
(1) The nature, contcnt and extcnt of his knowledge of the of
th e Watergate break- in and COVer - UJl a nd which pal"ls t he r eol we r e
imparted by him to D<:!endant EhrHchman.
(2) His reason and motive lor i ncluding Defendant Eh r liehman in
t he Helms_WalleTS meeting 01 June 23. 1972.
(3 ) lns t l'uelions to Dcf enda nt Ehrlichma n r egardi nG, the Nixo"
Estate plan gh' e n June Z6 , 1972. which l' cCjuil'cd ;\nd wel'C t hc
pu r poses of Ille<:tinr." bctween De l endant Elu'h chlllan ;\nd John Dc .. " .
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..... Ot'''' '' ' ""' to ' <00 ......... ", . .. , _." 00-.. ,_ ......... . "oe ........ , .. ,,'" "OlIO , ___ .... , . , ., .....
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Mitchell (rom the Chairm,,,,,;j,il'..,f The CUlnlniltcc
to I{cdccL.
(5) llis cxpl<ln<l.tioll to DcIcm/ant Ehdichm"n of the rca son [or th.::
J\lne 2.3 mcctil1[;.
(6) Hi" instru ctions to Dc!cntlanl Ehdichman in July, 1<)72.
concerni!>!; (a) offers of clemency to those involved in the Watergate
burglar,. , (b) the scope of the FBI in"cstigalion of lh"t crime.
(7) Unl;'pc<l conversations in laic July and in August, 1972 with
Dc!endant Ehrlichman alone in which Defendant Ell1'1ichman
proposed and advocated 1'1. full and complete disclosure of all known
facts concerning Watergate both by the President (or someone on
his behalf) and by The CommHtee to Reelect .
(S) Any decisions which he, Richal"<) Nixon , ITladc wilh rc spccllo
those p)'oposals .
(9) Untapcd convcrs:lUons with Defenuant Ehrliehman ;.lone including
i nstructions [01' the execulion of part of those proposals .
(10) Specific information received in August, September , and
December , 1972 from the Atlorney General as a result of the
Department of Justice invcstil:ation of the Watergate burglary anu
his disposition of that info r mat ion,
(11) An untapcu conversation on September 20, 1972, in which
Defendant Eh rHchman was instructed to prepa)'e certain substantive
work anu perform substantive duties in November and December ,
1972, and January, 1973. which conversatiun will cstablish the
factual accuracy of the defense contcntion that durins those months
Defendant Ehrlichman w;ls cnC;lged fulllimc in governmental
reo1"[",;lni7.a\ion, pel','onncl nmU<.;I's, budt:d problems and p1"c,\r;lt)On
of the President's Sl"te of the Union Address .
_3 _
"", ," .. ,,,. , ... ,,' 1'.'. " ..... ,"_, .... ,." .. "_'.,"""''''''''''' ' ''''''''_,'00(,,,,, " ... <0.,,,". ,.,,0,"0,.'''','' '.'
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which j"dructiollS were l:ivnll th"l "U ",.,Ue r:; Pc'"t,,;ning to the
Spec;,,) Investiga(ion,; Unit WO;>'"O imprcsGccl with the highest
security c1;lssificaHo/1 and werc not to he revealed by any govcrn_
ment employee or other person having knowledge of them. Tltis
"vidence is 10 the allegations contained in Overt Act 45 of
Count J on the IndictmCllt and constitutes an ... 1 clement of
tlle defense.
(13) The absence of any con"orsal;on oz' other communication
between Richard Nixon antl Dc(nndant Ehrlichman in January. 1973
concerning clemency for Hownrd Hunt or anyone else involved in
the Watersate burglary.
(14) A conversation with Dc!endant Ehrlichman in 1972 in which
Defenda nt EhrJichman advocated and recommended discontinuance
of the prosecution of Daniel Etlsberg, the President's decision on
that recomnlendation and the disposition of that decision.
An unrecorded convcn;ation amon!; Hichard Nixon, Defendant
Ehrlich",an and Mr . Haldeman. in ",hich instructions were !;iven
which explain the fact, purpose and scope of the Dean-Moore_
Haldeman-Eh rlichman meeting at LaCosta in February, 1973
rcfel're<l to in Overt Act 35 of Count I of the Indictment.
(16) Unrecorded convers .. tions on and after Febrna,'y 24, 1973,
with Ddenrlant Ehdichman and/or Mr . Haldeman concerning the
resuUs of the LaCosta meetings including insb'netions conccrning
Jolm Dean's duties, and method of reporting to the Pres ident and
the dnlies of Defendant Ehdichman relative t o Watergate alld ,ts
aftermath.
(17) The' absence of any conversation or other CO'llllluIl;cali oll wilh
EhdiC'lml'1" from March II through March 30, 1973, cOn-
cernlng the conlent of Rich,"'d Nixon's cOllvers<ltions with John
..- ""'to ' ''',,' "0" ,,,.w " """'.'A' ."._","""' ''''' .. ,0< .. , .... ,."". ,,_ <_.,. ",""0 .,,"' "", .. , ...
DCiln 01f,,;1' I),,,,, tl!(Jr.e "..,,,,,..,Ic<l Oil I"JIl'" ;,Ild J'n.vidcd 10 the
Defc'''!a))I,; loy II,e J'ror.celllo.',
(18) An unrc(;onJed (or. alleast. unpl"oduced) (;ouvel'sation
between Rich:o.rd Nixon ami Defendant Ehrlkhman on Mar(;h 30. 1973
in whi(;h inslru(;lions we ... :: given 10 take John Dean's place as legal
advisol" and investigator in r ell'tion to Ihe WaLergate burglary and
aftermath. the Senate Select ConuniLLce hearing. and related
mailers . the l'cports rendered 10 Rkhard Nixon by Defendant
Ehrlichman pursuanl to thcse instructions in Mr. Nixon's thcn_
capacity ;:\. the chicf law enforccment oHicer of the United StatC$ <lnd
the tender of one or more of these reports 10 Ihe Attorney General
of the United Stales.
(19) The portion of the conlent of an unrecorded meeting between
Richard Nixon and lUcard Kleindienst March 31, 1973. whi(;h was
related to Defendant Ehrli(;hman,
(20) Unrecorded instructions on April 5, 1973, to Defendant
Ehrli(;hman to meet with Judge Mathew Byrne in connection with
the Administration of the FBI.
(21) Confidential (;ommuni(;<llions 10 the Pl'esidcnt in 1972 and 1973
con(;crning acls of administrators and other employees or the FBI
in l eaking or giving l'esults oC the investigation of the W<ltcrgale
matter to l:cd pel"sons. including media rcporteJ"/; ;
instructions give 10 Defendant EhrHehman to (;Onvey to Patrick Gray
and John Dean (;on(;er ning thil s i tuation; all relating t o Overt A(;t 4
of Count I oC the l.ndi(;tment and the disposition of Ihe (;ontenls of
Howard laCe in June, 1972.
(22) Unl"ecol'(]ed (;OnvCI"sations with Defendant EhrHchmllll in which
instructions wel"e ::,iven for negotiation with Senators Ervin and
Baker fOI" the creation oC agreed I'ules of pro(;edure for the Senate
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t>..,J",,, L',nu"'\Io.;e ""tI lJ,,)entl ... ,,1 reCUnl'nentl"llon,;
for lull of ,,11 [:,cts con"""nilll: the W ... ter{;ate ]""Uer .
(23) Unrecon1cd convel's"tions witlf Dcfcntlant Ehdichm ... n in
which of privilcge wcrc discllsseu and Defendant Ehrlich.
m ... " made l'ecommenGations for all White House personnel (except
the Presitlenlj to appear and testify fully before the Grand Jury
without assertion of any pri\'ileGe and without immunily from
prosecution.
(24) Facts relating to the i1ulhenLicity, custody and genuineness of
a report rend'Hed Lo him by DcIend ... nt Ehrlichman April 24, 1973
relating to the Watergate anu aftermath.
(25) The circumstances of two telephone calls lnade by Defendant
Ehrliehman in his behalf and in his presence to PMl"ick Gray on
April 15, 1<)73 from his office, the tape of which has not been
produced, including the portion heard Mr . Nixon and the.!:.'!.
gestae reactive conversation (also apllarent by unrecorded, or at
leaSlunproduceu) conceming Mr. Gray's adminission that he
destroyed evidence Lurneu over to him by Mr. Dean.
(26) All unrecorded telephone conversation between Richard Nixon
and llenry Peterson including instructions concernins the national
securily restrictions on activities of the Speciailnvesitsalion Unit ,
which call was made in Defenuant Ehrlichman's presence and
rea[f;rmeu standing instructions to him; relatcd to Overt Act 45
of Cuunt I of Lhe l..ndictment.
(27) An unrecorded conversation April 29, 1973 <>t Camp David with
Dciendant Ehrlichman alone , in which Defendant Ehrlichman's
"'Uempts to unCO,"Cl the Watercatc In."lltel' wel'C acknowledged, c e1"l ai"
inf..,rmatiOll known to Dcfendant Ehrlicllll\an lI"as disclosed which is
exculpatory ju naturc, "nu po::rntission was given fOl" Defenda"t
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lise in aiding the inVc"tit;"Uon."
(28 ) Un"ccorded (or \lnproduced) convcrsMions with llen,'y Peterson
r e coun\ins statements to Peterson and othe,' prosecutors by John Dean, either
e)!culp;ltory or matcrially inconsistent.
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(2:9) DcCend .. nt E.""hrlichm.an's recommend.alion!i to him (or disclosure
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and their pro:dmate relationshi p to Mr. Nixon' s aSllignment to John
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knowledge of the f .. cts .
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(30) The purpose of Richard Nixon's instructions to Dehndant EhrI;ehm;).n
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t o solicit inlormilt iol! from the attorney general March 2.7, 1973.
In addition to the foregoing. Mr. Nixon will testily relating to
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patory manner as to Mr. Ehrlichman.
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From the foregoing , it is readily apparent that Mr . Nixon lIas
cxclusiv(: knowledge of a gr(:at number of exculpato!") facts which a r c tho
subject of thi s action and which cannot be duplicated through other
evidence. The intercsts of justice compel thai Mr. Ehrlichman be given
the right to demonstTitte to the jl:rr the complete factual background which
is now the b:uis of the charges against him, TIle reconunended procedu.re
" of a severance, continuance a.nd deposition is the only way in wnch
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Defemllnl Ehrliclm1nn's !unonmcntal con5tilutiClnal r i ghts can be prolected,
While judicial continuances a r c generally considered disc r etiona ry
with the Court , under the circu.mstances of thi6 ca5e. the failu r e to gr"nt
t he ins tant Illotion 50 as to perpetuate Mr. tes t imony and then,alter
commenCe trial wo"ld amount to 3n abu5e of that di5c r clionary and would
const itute;"\ !undamcntal del'1".,"tion of 1>!r. hrlichm:u,'s constitution"l
)'ight to due l'l,.,ce5S of bw "",1 Iv "d"'I\l.' t ciy confronl his <lccuser:; , Th"
1: :lul ho r ities belu\\" ddcnd.,nl' s l" i l:ht to the "clief "equesled
,
,,11<1 On
(he ""'lie. t he ">otion be ,;rantcd.
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In de .. lin" with the "hfi . "H':C n!;I wilncS5 vit,d 10 an action. two
Courts have reversed tr; .. i courts in refu sing 10 srant c.anlinua,,,.:cs hcc<lusc
a party waS ill and unable 10 Give testimony in 11 case.
In Gaf'p<lr v. K<lum, 193 }., 2d 964 (31"(1 Cir . 197'1) the Court ,evers.n
the tdal court lor failins Lo a continuance. The Court stated:
An examination of the complaint, "5 we have
intliciltcd, shows IhM Kassrn was ch"rgeci with
ncgliscnt drivint; and failure to observe the
la"'s of Pennsylvania in to Ihe operation
of moteor vchicles . These illiccations were
.lcnicu in Kassm's answer lind as third p<l.rty
pl"inLiU he "Uegot! ncglif.cncc On t he part
of the third party defendant Smct7.cr, the
aU,or dr;"". in the accident.
We think c :ue wal gravely pl'cjudiced
hI' tho fnct that he was not pres ... nt . P"rticul arly,
Gaspar and his witneues testified that the
accident \'las caused by Kassm's negliGence in
ilUowinG his Cdr to cross the road anu strike
Smetzer's car at or ncar:!. n:!.rrow bridge.
One of Ga.par's witnesses. Chasar, the Chief
of Police 01 thc Pcnnsyh'ania township where the
accident occurred, testified over objection th"t
l{assm In:!.ue damaging DrilL a t the
scene of the accident, and these statelnents were
not convincingly rebuted by Ihe deposition lakcn
in the Bucks County arbitration proceedings which
was l'e1ld to the jury in Ihe elise "t bar. The
ddense aue.Led Kassm to th(, se admissions
is not clear nor is the ground of the dcpositio:l's
admission. However, in the view we tilke of the CaSe
it is not nccc ssilry to dccide these diHicult evidentiary
ql,estions. As we havc said. Kassm'a entire defensc
On the i,sue of liability consi sted of reading to the
jury the rleposition t"kcll in the nuck'" Count)'
proceedings .. nd tho j><'rs uasivencss of Ihis evidence
was obviously Ic ssened the langua[':,e
difficulties and thc IhM l{assm was queslloned
by opposing counsel .
. "
Moreover, We ca n ICC no pressi!)!: for hast e
alhcit we arc aware of the <lnnoy .. nce ( .. used tn:'l tr ial
judec wllcn his c<lrefullr trial cai';:n(!<lr is
disnrl'<lnr:c-tl. hut \\'e cannol obltcure Ihe raet
t hnt w ... d.,,,, the I;round", l'l'un whid, Ih. di,a i n;,:u i sh"d
tlit-Ir;,-t .imlre ,.ct,cl W<'t" i nltufli<,,,nt. \\,,, .In .. 01 "nnsidel"
t ile ",oti on ior eontin,,;,nc..: '0 b. ,t.-he;,"t on it .. f:.cc.
It is custuntaT)' 10 sr<lnt a on 110,' t:1'o,lIld of
of" pal"ty. W, ("unclLld,' Ih;'1 1, ...
",<IS {o, t he' <lei.;:" ... " of his ('.,,,<'. Ih,.1 the
I:rantin,: of" ,'ontinuaJU'" would not h",', ""dull' !lHj"tI' .... t!
tl ... ",I",,' 1""li .. "",I th", II,, ,",'Ii<>" W:\S
""I "",Ii,,"L,'" by 1",'rl'""lin"li,,n. h,,,II'I",,,,'n,: 01' b"d
f"ith ''', Ill. [lad "r 1\" ","11 or hi<; ,',,,,n."!' II j" II ...
I:.w t h.lt when, "''''e of IlIl' f"r"l.:"in,: "1'1"'.,, . th,'
-1-
...... OI .o n ... ". ,, "," .. '.'''" '" , ....... , . .... ............. "-''''<'''''. , .. ", ...... , .... , .... "" . ..., .... , ." . ,
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dcni;!! or" {"o"ti"""'H:c fo," is of
d':"rctio,, . Curnw!!!1 v. Cornwell. i3 J\PI'.lJ. C.
?33, 118 F . ?<.l 396 (1911); Ila'r,d, v. Morccnth"".
67 App. n. C. 119, 89 F .?<l 1;163 (D. C. Cir. , 1')37) ,
""d Davis v. Oper"!ion Ami!;o, Inc., 378 F.lti
101 (10 Cir . 1')(,7). Su<:h is the e"se oow before
U", Co"rl. Cf. l.chm;,n v. United 5tatcs, 313
F. S"pp. (E. D. Pa. 1970).
10 Harrah v. !I.!orl.'<mthau , 89 F . ld 863 (D. C . Cir . 1937) the Court of
Appeals set the blamlards for a COJltiol"'n<:e. In that case the Court said
The record discloses nothing else On the subject
t han is outlined abo,"e . The high profcssional
char"cter "nd st<lnding of counsel {or Dunning
6atisfy us thaI the motion W<lS matie in good {::.ith
"nd, in the "bsen<:e of" showing to the contrary
Or of some injury res"lting to the other parties,
We think lhe court uclow should have delayed the
trial. In s<lying this we are, of <:ou,"e , not unmind.
{ul of the nde tnat a postponement or <:ontinuanee is
largely within the discretion of the tri al court and
unle5s i.t;s shown (0 have be"n abus.;:d th.;:ro is nO
ground for reversal. Fidelity & Deposit
Co. v. L . Bucki I.: Son Lumber Co., 189 U.S, 135,
143, "23 S. CL 58l, 47 L. Ed. 744 . If thero were
anything in this f(,<:ord <:halkllging Lhe good f"ith of
thc motion (oJ" contita'''''<:<:-, the profession"l ability
or ehara<:ter or trllth{ll]n.;:ss of the ph)"sici""s who
made "ffidavit w the inability of Dunnino; to appe<lr .
or eVen if th'He were a showing th"t a continu<lncc would
have res,dted in loss to lh(' other p"rlills, we
should ntot now hesitate to sustain the adion of the low"r
<:Ol1l"t; bul h('r(' we <lre confronted with" <:"Se in whkh,
as appe<lrs. the pl"intiff w"s his onl)" witness and was
sO seriously ill that appearan<:e in cou,t would
prubably have res"lted in his dealh. Insisting upon
a trial in thcse circ"mstan<:es must necessarily h<lv"
resulted in prejudi<:e to Dunning's righls. There may
h<l'c been ;;ood reaSOns for the rcfllS<l1 to !;r"nt tbe
<:nntinuanee, but if therc were it the duly of
("ounsel to h:l.'e shown them b)' the ... ,cord. for we
<:an know only what the record <:ontains.
Sin<:c Mr. Nixon is an unindicted <:o<:onspirator , and since his
t estimony i s <lS vita] anti as indispensible as that of any party, it wou ld
be re,ersable .;:rror to [ail to grant a conlinuan<:e .. Fine distinctions
between situ ... lions where" party is in,"ol,"cd anti when: a 'TI<lterial wit"<:-.':s
who is <llleo;ed to be" coconspirator is involvcd not int",[""e
with steps ne<:('s s"")" to ;1SS"I"(' th<lt ;1 deknclant in a criminal <:as.;: is
able t o obtain [,lil ""d compl<:'t" due I,}" o<:ess o{ law .
. , .
....... "',, ..... '" ...... 0. ", .... , ... ,." ..... .... , ...... " ",0< .. ",. ,.,,, ,. ,, 00' '''''' .... "",,", """ "" ",.,
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... molion 10 continu,-, is denied.
In Dod v. 12J All. 894 (1l.1. 1924) the Court <leaH wilh
the 'Lueslion of '" witne_s , absent due to in the context of '" can
I
", t;nuance . The Court held ,
[I, ZJ Dc(ore proc.:ecdinJ:: to trial counsel (or
the defendants n\ovc<l for a (O,,(inuancc of the
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cases on the grol,nd th",t a mal..,rial witness ,
one William II. 'I'dI'll. was ill iHH! unable Lo
attend court, he havin::: rcccnLJr fil'.urcd in <:In
""lomnbil .. accid<:nl, and wall suUcring from
injuries rCl>uiting thcrdrolll. The lIcfcndanU
produced the certificate of II ductor to the
cflcct tll.1t he first sOl'" Mr. Tripp On l'o\'crnocr
<I , 19ZZ. A comparison of daLes shows thai the
doctor sn.w j.1r . Tr ipp on the day following the
acddent and five day Ii prior to the date sct for
thc trial of the caSCll . the latter being Novem-
ber 9. 1922" This c:ertificate sets forth thc then
pI"escnt physic:al concl iti on of Mr. Tripp which.
in the opinion of thc doctor. woulcl nOt permit
him to travel . and woulcl demancl th,,"t he be kept
quiet.
. "
in c<lses of thi s cha racter, that c:1aims
aga i nst the es t utes of deceaS..,cil,..:rsons , it
seems to U" that e'"ery reasonable latitu.le
shouici bc alloweci ill bringing hcforc the court
anci jury all the c:j,"cumstanc<'s unci (actl which
woulcl aio the la'ler in coming to a just ano
],roper conclus i on . I n the caSeS whic:h we are
nOw it would seem to be partic:ularly
un{ol"l"Unale if Ihc cicfencianl should be dep";\"cd
o f the bendil of Ih matcrial tstimony soldy
within Ihe knowlcdr,c o{ Tripp, and which, if pre-
sentcd 10 th.., jury, might leO!.d Ihem to O!. different
concllLsiorl from that t o which they .. rrived" The
certifi("atc of the l'h),,;ic ian, in tel"ms . "c!'HS to
Ihe then pre!'ent contlilion of Ihe wi lness Tripp
and his at Ihal time to attend court, or
depose. It can he reason:"lbly dcduc:ed . however,
fl"om such a ccrlHicnle. Ihal thc incapacity o( the
witness was lcn'porary r;>.lllC' than permanent or
likely 10 <;ont inue for a long p<:rioci . The affidavi.t
fully aud e>:piicitly slat .... " thc fa,ts to which the
witne"s woold tcslifr . Whih it fJoils to I: i\"c in
precise "",,,",15 til" of cx pC<;ta ti on,
it ,na)" n';lsonablr 1 .. , i"(","r,,d from it, tal,,-,,;1S
a \\"hol .. . that "ud. f:-l ... 1S 11'''"e been obtuincd
f rom til" wit,wss hiIllH"lf, a'H' 'o"ld not hon"c
ori&inat "tI in Ih" llHnd o f the ;>.ff i ,,,,t "
, .. .. " ....... " "ft ....... '""" " ..... ..... ., "H ... .-....... , ... "" .. ,_ I.,,, ",... '_00 ............. , .. '"
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']'I",,-e ,,0 "(,,('m(,,,1 (ilher in
th" ""]'Iifi",,(e of tlo" l'ily"j"i.lll 0,- in II",
.. ffidavit as to the <-.'<ped"tioll of !"'ocuring
the allendanc(' of the witness "t .. f"tUI'e tilne ,
but Ihere, again, the inc"l'acity apre,lI-iog
!" he. IcmilO,.,r), . ;.ny detetminati," as to
it,; duration could be "a"ily or eS-
ti<nated b)' the plaintiff ,,1) by the dciendanl.
Although ndLlter the eenif,cate of the physi-
nor the "ffid""it arc in perfect form, We
think tll"t 5ubst"nti.tlly comp))" with the
rules govern;n:; such malL"rs . At the hear-
inc before uS it was "ot claimed either in
brief Or i" argument th.1t the abl<el1t witness
w"s in a condition to attend "Our ( or to give
hi s deposition.
We think th" first e"eeplion of the defend-
ant m,-,st be sustained. Having ,-cached this
conclusion, the other exceptions ,,,,cd oot be
considered.
I'
,! In Wiele)' v. Buz7.ard, 124 S. W. '"2d 898 (Ct . Civ. ApI' . 1939) the Court

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held that i! the absence of a mater i al witness would be prejudicial, it
would be error not to eonti"ue the t rial. The Court stated:
The"e is yet atlother reason why Lhe case
should be reversed.
Appellants sou:;ht a continuance because of
the absence of Mrs . Maggie Wigley_ She
was ill, (e"ble and unable t.o attend the trial.
We consid"r her the most importan.t witness
in this CaSe. We think the court and .iury
should sec her and hear her testif)'. If she
gi"es the appearance of one mentally capable
of knowing tne e"lent . purpose and consequence
of her acts, the ap?ellecs have nothin Lo fear .
The overruling of the motion for a contin.uance
on account of the absence of Mrs . f>,'[aggie Wigley,
was error.
Simil,uiy, in Bernard's Fur Shop v. Dc Wilt, 10"2 A. "2d 462 {Mun. Ct.
ApI" O. C., 1954) the Court ,-eve r sed a I"ial court's refusa l to grant a
continuance on Ihe following reasonin!: :
\1',. think ,he"e was e1"1or . Th" COLlrt was "d_
";sed that aI'P('il"nt's rhief officer who was to
b .. its ch .... ( ",it,ll'sS un"h1e to be' prcsent
1.","caLlse of jllness. Thir. Gl;',ell1ell\ w,,"
ported hI' a <loctc.,-'s c<ltifie"te . in
tI", rccor,1 questions the truthfull",,,s of Ihe
,;t"t"llll'nl 0" certificale. Althou!'.h ,-ontin_
\lances on the <late 10" tl";,d ",',' 10 be dis-
("",",a!'.I,I, ",h"1\ a pa"ly "I" an
iI111,0"I",,[ j" L1n"h1" to I", [,,,-,.ell! b
e
-
r,,,,"c of ill,\l",<s , th,' 1""'1\' ""I:hl "('t to he
dCI'l"lvcd of the uppol"t""il)' o f 1',""".-,,1;"1:
.... 0 .. .. " ''''10 >t.,"" ' ........ "., .. .. ", ........... ,."." .. ,,,,,,,, _,.,,". "ot>. <0""0'0 ." .. " . ""
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,BP,-, ,\, ""\""''''',',' "10"",<110,,,,1' 1"-,",, 1:'"''''10',1
,,"\i1 I)", \v"" .,1,1(, 1<> ",,,,,,' I" .. "uri
",,(il Io<.:r .1'"1"",;1; .. " "",,1-1 1" 1"\",,,. 'J I ... "rr",'
of cOUIl!>cl to IIlil,u]"I<: as \n 11,, wit-
nCIi!;'" testimony was nut 5u(f;cicnt justification
[or the tlcnlal uf the co"ti"uancc. O"e issue in
the case was thr d",c of !H'rde" o( II,.. notice
to Guil. Appellee'" cddcm:c Ill,,! the notice
was Hrvctl on tho:- abs""l ",jlness on June Z9.
I\pl',,1)1Inl'5 ",""wcr, "O')';(i,-<I hy :),", witn..:"s ,
stilled the noti ce waS served 0 .. 2.. II mere
stipulation as 10 Ihe ... I,'slimon}, woul<J
i,artlly have had t ho same weight before a jury
ali the lestimony of the witness
While (he Granting of a mOL ion ior '" i s
sec Fr"nklin ,', So"Lh Ca rol;"". 218 U,S. ]61 , 30 S.Cl. />40 , 54 L . Ed.
980 (J910). the denial of ... continuance where there i$ an i ll and .. bsent
material witness . until a deposition under Rule ]5, F.R, Cr, P . is taken,
is errOL' . Sec Nalv ig ,'. U, S. 236 L 2d 6\j.j (D, c. 1')56).
Rule IS, F. R. Cr . P . contemplates the propriety of a continuance
lOT the takins of a deposilion as reque sted. To obtain a deposition, a
defendant must show,
(I) The rrospective <',itnen may be u"able to testif)';
Se(' U. S. v . }-!"f!edorn, 253 F. Supp. 969 (So D. N. Y.
19(,6)
(2) That the is male rial; See U.S, v. Er,0I'O",
34F.R. D. 130 {E,J).N.Y. 1963), and
(3) 'I'/, t deposition is necesllllry to prevent a h.ilure
of j"slice, Sec 8 Moor("s Federal Practice
[3J.
Simil1lrly, unller 18 U.S.C. 3503, <Jeh,ndanl Ehrlichman is 11.1$0 entitled
to have Ihe <JeposiUon of Mr , Nixon t ak..,n, Sec U, S. v. Singleton. 460 Fell .
11'18j2d. Gil', 1972), ).11' . Ehrlichman has made the required showing
and is nOw entitled to take Mr. Nixon's <Jeposition to JlerpeluaLe Ih"t
te s ti mony,
11
.. _ ... , .... . .............. _. "'-.., ..... . t ""' ... ..... ............. 0<, ...... , .,"'. ,,_ ,_ ................ , " """ ...
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CONCLUSION
Defendiln!, JOliN D. EIIHLICIlMIIN, hils made il clear and
positive showinG that the testimony of Richard 1\'1. Nixon is indispensable
to his delenac. Mr . Ehrlichman further demonstrated to this Court that
he has beer. <Ii l igen! in attemptinG t<.> proc..,rc the tcsllmony of Mr. Nixon.
Further , Mr . Ehrlichman has dcmonstratcd that at this time Mr . Nixon
is ill ami unable 10 lClIliry at tdal. Furth.."" Me. Ehrlichman has
dCmO'lSLr1l\cd to thc Court that it would be unduly prejudicial La commence
the trial without firel havinG opportunity to perpetuate Mr. Nixon'",
testimony. The Federal Rules of C r iminal Procedure clearly contemplate
that a t1cpoliil i on be taken under the circumstances in instant cllse.
To require the trial \0 commence on Octoher I. 1974. al now set. would
result in prej udice (Inti a violation ol Defenda"t Eh rli chmOln's
right to due process of law. Mr . Ehrlichman is willing to commence a
deposition.oi Mr . Nixon as soon as his health permits ami . upon the
completion ol that deposition. to go to trial in this cause in an orderly
manner . If the trial is on October I. 1974. this vital
and testimony may never be forthcoming . Certainly.
under such circumstances, each and every required showing has been

milde. Furlhel" , since Defendant Ehrlichman is I he only delendant in
this cause who has sought to obtain the testimony of Mr. Ni xon by way
of subpoena, Ihe sranting of a continuance coupled with ol severance would
in no way prejudice the richts of Ihe United States ol lime rica , nor that
of any ot her dclentlan!.
Based on the [ore/.:oinl: , Defendant J:hrllchman respcct fullr
th"l Ihe Il"ial in Ihis cal.lse be continllo.)ci . t hat /l.lr . Nixon's
-IZ-
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tlcl'o,.ilion ue ;, ulhorl;o;ctl , and Ih"l Defcnd"nl j:hdlcl"nan uc
frolll his cOtlcfoldanls.
ynATI:S FLOY)) PE,\HSON STE\':AHT
PROENZ" .. I, IUCH"-IAN, p , A.
Attorncys for Dct",,,J"nl EhrUcJunan
Twclfth floor Concord Building
lI.!iazni , Florida ))130

And,'cw C. 110111
.IS.
.. _ ... .. ... ", " . 0,,_ '" ... , .-.,. . .................. _ ..... 0( .. , .... ,.", ,,_<_ """,... .. , ... , .. .. .
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c/:l\ 'fJ FJ(;IITJ-: OF S/';l\V leI':
CEHTIFY that <I true and correct copy of the forcsoinc
Motion for Continuance and Severance was furni&hcd by mail this
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27th di,,}' of ScplCIllh<lr, 19,4 to the [oilowing:
Leon Jaworski, Special Prosecutor
Spedal Prosecution
1425 :':5 treet, N. W.
Washington, D. C. lOOOS
Force
William C . Hundley, Esq.
Plato Cachcris, Esq .
Hlmtllcy and Cllbhcris
ji 839 171h Street, N. \'.' . - Suite
500
t
;

John J. Wilson, Esq.
Whiteford , liart, Carmody
815 15th Street, NW.
Washington, D. C. lOOOS
to Wilson
Jacob A. Stein, Esq.
Stein, Mitchell, Mczincs
I 1200 18th Street, N. W.

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W:nshinst on, D. C.
David C . .Brcn, Esq.
Thomas Greene, Es<.j.
Gim:buC{;. Feldman & Bress
1700 Pennsylvania Avenuc , N. W.
WashinGton, D. C. Z0006
John M. Ilray, E$q.
Arcnt, Fox, Kinlllcr, Plotkin &.: Kahn
1815 II Street, N. W.
W .. shington, O. C.
By
Andrew C. Ball
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UNITED STATES OF AMEIUCA,
JOHN N. MITCHELL, et al.,
UN1TF:D $TATF$ nr$THTCT COITRT
FOR THE DIST JUCT OF COIJUMDlA
Criminal No . 74 - 110
DEFENDANT JOHN D. EHRLICHMAN'S
MOTION FOR CONTIN UANCE AND SEVERANCE
Defendant, JOHN D. EHRLICHMAN, hereby moves this Cou rt for
I the cntry of an order severing Defendant Ehrlichman from his codefendants
II
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and conUnuing the trial date.
As grounds for the same, Defendant Ehrl ichman
submits that :
!
1.
Defendant Ehrlichman caused to be issued a subpoena requiring
Richard M. Nixon to appear and to testHy as a witnes s for t he defens e in
this cause;
Z. That subpoena is valid, outs t anding and r(l quircs compliance;
3 . That Richard M. Nixon is an indispensabl e witness in this
cause whose testimony will be highly exculpatory for the defense on the issues
involved;
4 . That Richard M. Nixon ] , a ~ r e prc6 (mt c d to the Court that , s u b ~
sequent to t he issuance of the subpoena, he has suffered lhc aggravat ion of a
previous illnes5 , throm.bophlebiti s , a nd a s a res ult requires pl' esent
hospitalization and treatment;
5. That this condition has hecn com.plicated by the lodging of a blood
clot in Mr. Nixon's l ung, thereby precluding travel to the District of
Columbia " t t hi s t ime;
6. That the medical condition of Mr: NL'<on is such as t o rcquire Mr .
Nb'on to be hospitalized a nd thereafter t o convalesce at his home in San
Cl emente. Co. li fol"nia ;
7. That Def endant Ehrliehma n is w illing to exhaust s u ch rights as
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8. Th .. t it is manifestly unfair ant.! a violation of due process of
l .. w to eommence the h'ial in this cause, to require Defendant Ehrhchman
to make opening statements and to cross examine government witnesses
without first allowed to perpetuate thi s vital and indispensiilble testimony:)
9. That to perpetuate such testimony in a proper marmer Mr. Nixon
must be dCPC"H:d, by video tape, and that such a deposition may not be
commenced until Mr . Nixon's health irnp J:'OVCS substantially. and once that
deposition is commenced il wi ll take not l ess than two weeks to conclude;
I (See Nat";!; v. United States , 236 F . Zd 694 , 98 U,S, App. D. C. 399 [1956] ;
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ccrt. den. 352 U.S. 1014; Burton v. United St ates , 175 F . 2d 960, rehearing
den. 176 Fed. 865 [5th Cir . 1949) cort. den, 338 U.S. 909);
10. That it is IT\anifestly unfair to sequester the jury in thi s cause and
r to require that jury to idly sil by Ior lIueh a delay; and
U. That Dc!endant Ehrlichtnan is the only dc!endant that has
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subpoenaed Mr. Nixon !.hereby allowing the trial to go forward as t o his co -
and during which Mr. Nixon's medical problems Can either be
, favorably resol ved or , in the alternative, his testifllOny can be perpetuated,
Mr . Nixon is a material a nd indispensable witness in this cause. Mr .
Nixon has sol e and personal knowledge of the following facts to which he can
be expected to testify in the trial of this case:
(I) The nature, content and cxtent of his knowledge of t he facts of
the WUergate bteak_in and cov''''' - up a nd wltieh parts thereof were
imparted by him to Defendant EhrliehnlOln.
(2) His reason and fllOtivc fo r including Dc!endant Ehrliehman in
t he Hel lTul - Waheu meeting o f June 23, 1972.
-----
(3) Instructions to Defendant Ehrlichman regarding t he Nixon
Estate plan gi"en June 2(" 1972, which required and were the
purpoaes of meetings between Defendant Ehrliehtnan and John Deall .
_2_
(<I) he discusscd with Defendant Ehrlich",an the John
Mitchell from the of The Commitlee
Reelect.
(5) His explanation to Dc!endant Ehrlichma" olthe the
June 23 Helms-WaHers meeting.
(6) His (unlaped) instructions to Defcndant EhrHchman in July, 1912
-
concerning Cal offcrs of clemenc}' to thOle involved in the Watersate
burghl.ry, (bj the scope of the FBI imcatigation of that crime.
- (7) Untapcd conversations in late July and in August , 1972 with
Delendant Ehrlichman alone in which Defendant Ehrlichman
proposed and .. dvocated a full and complete di.clo,ure of 811 know,n
{ .. cis concerninG W .. tergate both by the Prelident (0): someone on
hi. behalf) and by The Committee Reelect .
(8) Any deci l ions which he, Richard Nixon, made with relpect to
thole propolab.
(9) Untaped conversations Delendant Ehrlichrnan alone including
instructions for the execution of part of those pl'oposah.
(l0) Specific information received in August, September , and
December , 1912 {rom the Attorney General as.a result of tho
Department of Justice invesUJ;ation of lhe Watergate burglary and
hil disposition of t hat information.
(11) At: untaped conversation on September ZO, 1972, in which
Defendant Ehr!ichman was instructed lO prcpare certa in substantive
work and perform substantive duties in Novcmber and December ,
1972, and Januar}" 1913, which conversation will establi.h the
factual accuracy of the defensc cont ention that duri ng thosc .nonths
Defendant Ehrlichman was engaged lull timc in gove rnmc:ntal
rcorganization, personnel Illatterl, budget p roblems and preparation
o f t he Pre6idcnt's State of the Union Address,
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(I Z) Unro;o,<:nrd"d convcrso.tions with Defendant Ehdichman in
which ins tructions werc give n that all matters pe rtaining to the
Sp('ciai Invcl til>ations Unit were impressed with the highest
sl!curity chus ification and were! not to be revealed by any gOVCT'\_
mcnt empioy("c or other person having knowlcds c of them. This
cvidenc(" i " m a terial to the allegations contained in Overt Act 45 of
Count I On the Indictment and con" titutcs an c s scntial e lement of
the defen s e.
(13) The abs ence of any conversation or other comrnunicatiOll
between Hichard Nixon and Defendant Ehrlichman In January, 1973
concerning clemency for Howard HlUlt or anyone else involved in
the Watergate burglary.
(14) A conversa tion with Dofendant Ehrlichman in 1972 in which
Ddcndant Ehrlichlnan advocated nnd recommended discontinuance
of the pros ecution of Daniel Elhberg, the President's dccision on
that rceommendation and the di s pos ition of that dec:hion,
(15) Atl unrecorded eonver .... tion among Richard Nixon, Defendant
Ehdichmrul and Mr . Haldeman, in which instructions wcre given
which el<plnin the lact. purpose and scope of th'" Dean-Moore-
Haldem. n_Ehrlichman mceting at LaGosta in February, 1973
referred to in O"ert Act 35 of Gount I of the Indictment.
(16) Unrecorded converu.tions on ano after Fehruary 2:4, 1973,
<
with Defendant Ehrlich"'an and/or Mr. Haldeman conce r ning the
results of tho LaGost. meetin&s including instructions concerning
John Dean's duties , and method of reporting to the P r esident and
the duties of Defendant Ehrlichman relative to Watergate and its
aftermath.
(\7) The abs ence of nny conv(' r sation or other ('omtnwlication with
D('fendant Ehrlichman from March 21 throuth March 30, 1973, cOo_
ccnling the content of Richard Nil<on'. conversations with John
_4_
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Dean other lI);l.n those recorded on tapes and provided to the
Defendants b ~ ' the Special Proseculor.
(18) An unrecorded (or, at least . unproduced) conversation
between lUchard Ni"on and Defendant Ehrlichman on Marcll 30, 1973
in which instn,clions were given t o take John Dcan', place as legal
advisor and investigator in relaUon to the Watergate burglary and
aftermath, the Senate Select ComfTliltee hearings and related
matters , the Teports rendered to Richard Nixon by Defendant
Ehrliehman pursuant to these instructions in Mr . Nixon's t h e n ~
capacity as the chief law enIorcement oIIicer of the United State. and
the tender of one or more of these reports to the Attorney Ceneral
of the United States.
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(19) The poriion of the content of an unrecorded meeting betwccn
Richard Nixon and Ricard Kleindien.t March 31, 1973, which was
related to Defendant Ehrlichman.
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(2:0) Unrecorded instructions on April 5, 1973, to Defcndant
Ehrlichman 1.0 meet with Judge Mathew Byrne in conncctlon with
the Administration of thc FBl.
(2:1) Confidcntlal communications to the President in 1972: and 1973
coneornin!; acts of administrators and other employees of t he FBI
;n leaking or giving result s of the investigation of the Watergate
Il\aUcr to unauthorized persons , includi ng media repor t el's;
instructions give to Defendant Ehrliehman to convey to Patrick Cray
and John Dean concer ning this situation; all relating t o Overt Act 4
of Count 1 of the Indictmcnt and thc disposition of the contents of
Howard HWlt's safe i n June , 1972: .
(2:2:) Unl' ccorded conversat ions wHh Dc!endant Ehrlichm;)n in which
inst r uct ions were given for negotiation witll Sen;>tors Ervin ilnd
Baker [or the cl'cation o[ agreed rules of procedure fo r the Scmate
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::'clcct Committee anti Defenda"t .l::brlichmall's rcco.mncndaUons
for full d'sclosurc of all b.cts conccrmne; {he Wate r gate matter.
(23) Unrecorded convcnations w:ith Defendant Ehrlichman in
which que s tions of privii(!cc were discussed and Defendant Ehrlich.
man made recommendations [or all White Hou.e pcr O\(lnnel (except
the President) to nppcar and tcstify fully before the Grand Jury
without anertian of any privilege and without im.munity from
(24) Facti relating to the authcnticitr. custody and genuinenoss of
ill report rendered to him by Ddendant Ehrlichm;t.n April 14, 1973
relating to the Wa tergate burglary ",nd aftermath.
(2:5) The circum.st.anccs of two telephone calls made by Defendant
Ehrlichman in hi. bchal! and in hi. presence to Patrick Gray on
April 1", 1973 from his office, the tape of which has not been
produced, including thc portion heard by Mr. Nixon and thc rc!
gestae rcactive convcrsation (also apparent by unrecorded, or at
least unproduced) concerning Mr. Gray's adminission that he
destroyed cvidence turned over to him by Mr. Dean.
(26) An.lfnrecorded telephone conversa.tion between Richard Nixon
and Henry Petenon including instructions concerning the naUonal
security restrictions on activi ties of the Special Invesitsation Unit .
which call was made in Defendant Ehrlichman's presence and
reaffirmed standing instructions to him; related to Overt Act 45
of Count I of the Indictment .
(27) An unrecorded conversation April 29, 1973 at Camp David with
Delendant E:hrlichman alone, in which Defendant Ehrlichm.an' .
attempts 1.0 uncover the WatcrgOltc maller were acknowledged, certain
inlornlahon Imown to Defendant Ehr!ichman wa.!: di"closed which is
exculpator}' ill nature, and permission was given for Delendant
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LA. Olio"". ,"" .. II,"", .... _ II .... ' .......... -. -.0 ........... toe .. , ........... "'000 COIICO<f>O ..... _ . ... ,,_""
Ehrlichm"n to r et a in the posses s ion of c-crt;tin p,.,. .. iocntl:tl p"!>Cr" (or
use in aiding the
either !
(Z8) Unrecorded (or unproduced) conversations with Henry Peter!on
recountins 6talemenlS t o Peterson amI other prosecutors by John Dcan,
exculpatory or materia lly inconsistent .
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(Z9) Defendant Ehrlichman's recommendations to him for di s closure
I and their proximate relat ion!hi p to Mr. Nixon's a .. isnrnent to John
Dean of March 2Z to go to Camp David and prepare a report of biB
knowledse of the facts .
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(30) The purpose of Richard Nixon' s instructions to Dcfmdant Ehrliehman
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to solicit information from the attornq' Keneral March 27. 1973.
in ;l.ddition to the foregoing, Mr. Nixon will testify rdating to
the iaels and eircumstances of the government's allegations in an excul_
patory manner a. t o Mr. Ehrlichman.
From the foregoins . it is readily apparent that Mr. Nixon bas
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exclusive knowledGe of a great numbe r of exculpatory facts wllich arC the
subject malleI' of this action and which cannot be duplicated through other
evidence. The interests of justice compel that Mr. EhrlicJlnl3.n be given
the riSht to demonstrate to the jury l he complete factual backS round which
i, now the basis of the charges against him. The reeommended procedure
of a severance, eont"inuance and deposition is the') only way in wlich
Defend.ltIt Ehrliehman's fundamental constitutional ri ghts can be protected.
I While judicial continuances are generally considered discretionary
with the Court, under the circumstances of \.his case. the failure to srant
the instant motion so as to perpetuate Mr. Nixon's t es timony and there<>fter
commence trial would al1"">Ounl to an abuse of that discretionary and would
constitute a fundamental deprh'ation of /1.11' . Ehrlichman's eon$titutional
ri!:ill to due proce ls of law and \.0 adequa tely eon[ron1 his accusers . The
authoritiCi discuued below establish dcIendant ' s right to t he relief requc.;;ted
and based on the lame,
thl! motion should be granted.
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In <lealing with the "bscncc of" witness vital to an action, two
Courts have trial courts in refusing to grant continuanc"s hecause
a party was ill and unable to give testim.ony in a case.
In Gaspar v. Ka s nm, 493 F. 2.d 964 (3Td Cir . 1974) the Court reversed
the triaL courl for failing to grant a contin""n"c. The Co..,rt stated:
An examination of the complaint, ;1S we have
indicaLcd, shows that Kassm was charged with
negligent dr;,-ing and failure to observe the
laws of P"nnsylv3nia in respect to the operation
of motoT vehicles. These allegations werc
denied in I<assm's anSwer and a s third party
plaintiff he alleged nesligence on the part
of the third party delendant Smetzer, the
other driver in the accident .
We think Kassm's case was gravely prejudiced
by the iact that he was not present. Particularly,
Gaspar and his witnesses testified that the
accident WaS cau5ed by Kassm's ne gligence in
allowing his car to cross the road and strike
Smetzer's car at or near a narrOW bridge.
One of Ga5par's witnesses , Chasar , the Chic!
of Police of the Pennsylvania township where the
accident occurred, testified ove r objection that
Kassm made damaging oral admissions at the
scene of the accident, and these statenHlnts were
not convincingly rebuted by the deposition taken
in the Bucks County arbitration proceedings which
was read to the jury in the case at bar . The
defense asserted b.v KaSSIn to these admissions
is not clear nOr is the ground of the deposition's
ad'nission. However, in the view we tl1ke of the caSe
it is not nece ssary to dedde these diHic\tlt evid"ntiary
questions. As we have said, Kassm's er.tire defense
On the issue of liability consi Sled of reading to the
jury the deposition t aken in the Bucks County
proc<,edings and the persuash'eness of this <,,,,dence
"'as obviously lessened by the apparent language
difficulties and the fact th"t Kassm was questioned
solely by opposing counsel .
Jl.lorcover, We can sec nO pressing necessit)' for haste
albeit we arc aware of the annoyanc" c3u5('d to a trial
judge when h i s carelull)' arr;lnge<i trial is
disan'anged, but we e;lnnot let this obseurl' the f;tct
that We de"m the grounds upon whi c h tho! distin,.::uish.:d
district jud):e act<:<i were insuf,ic;';'n!. We do not e o nsi,h:r
the motion for continuance \0 be <ldici('nt on its faef' ,
It is custO'llar)' to gr;t"t ;t co"linu;tllc<' on Ihe ground oI
oI a part y. We condud,' Ill"t t<'sllmony
was necessary lor the <lefcnse of his ca,,,", that tho.:
t::)'antin!! of;t cnntinuance would not ullduly pr\'judiccd
t h ... olhe'- p;tl'ties, "nd th,u the e'"nlin,,'"'' " lI"'tion "'.15
not motivated by procr:'lstin:o.tion. 11,,<1 plan"in..: or b"d
fnith On the p;t1'1 of or hi" It the
law thaI where none of the fO""l:oinlo: "PP' -;!", the
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<lenial of a continuance for Uln,."" is .. hus" of
dillcrctiol1. Cornwell v. Ct>tllwclJ, 7j ApI" D. C.
233, lIS F .2d 396 (l9'H) ; liarrnh v. Moq;cnthau,
61 API'. D. C . 1l9 . 89 F . 2d 863 (D. C. Cit., 1937) ,
and OJ.vis v . Opct<ltion Amigo, Inc. , 378 F.2d
101 (!O Cir.1967). S<leh is case nOw before
the Court. Cf. Lehman \- . United States_ 3J3
F . Supp. 249 (E.D.Pa.I,)70).
In Harrah \', MOtllenth"", 89 F . 2d 863 (D. C. Cit. I'll?) the Court of
Appeals set out t he . !amlards for a continuOlnce . In that case the COUTt '011<1:
l'h" record discloses nothing che nn the subject
than i, outl i ned above. The hilah professional
character and standing of for Dunning:
"alidy us lhal the motion was made in good failh
nnd, in the absence of II sho,,;0l.l 10 the contrary
Or of some injuq' resultinG to the other parties,
we think the cou r t below should have delayed the
trial. In say inS thill we are, 01 course, not unmind-
ful of the rule that a postponement or continuance is
largely within the dillcretion oIlhe trial court and
unle.s it is shown to have been abused there is no
lIuUicient ground for rcverlal. Fidelity & Deposit
Co. v. L. Bucki &:: Son Lumb<-r Co., 189 U. S. 135,
143 , 23 S. Ct. 582, 47 L. Ed. 7<11 . 1I there were
anything in this record challenging the sood Iaith of
the motion for continuance. the professional ability
o r chllracter or truthfulneSS of Ihe physicians who
made affidllvit to the inability of Dunning to appear ,
or evcn if there Were a showing that a continuance would
havo in sorious los. to the other parties, we
should not now hesitate to "ustain Ihe action of the lower
courl; but here we. arc confronted with a case in which.
a. appears , the pillintifl was his only witness and wal
so seriously ill that hi" appea.rance i ll court would
probabl}' have resulted in his dealh. i nsisting upon
a Irial in these circumstance nust necessarily have
rcsulted in prejudice to Dunning's rights . The re may
have been good rC<lsons fo r the refus,, 1 to grant Ihe
eontint!ance . but if there were it w<is tho duty of
counsel to have s hown them by the record. for we
can know only whal the record contains .
Sinco Mr . Nixen is an unindic;ted co-c;onspirator, and since hi,
t estimony is a. vital and as indispensible a. thai of any par tr, it would
be reversable crror to fail to grant a continuance. Fine disti nction.
brlween situations where a pllrty i s involved nnd whcre a malerial witne
who is nUegcd to be a co- conspirat o r is involved should not interfere
with st ep s neces.ary t o assurc t hM a defendant in a criminlll case is
able to obtain full and complete due procelS 0' law.
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O\.her courts have reversed where il material witness is ill and
a motion to continue is denied.
lrI Dod v. Gl"imes, 123 All. 894 (R.!. 1924) the Court dealt wilh
the q\leslion of a witness, absent due to illn-.ss , in the context of a con_
Hnuance. The Court held:
[I, 2]l3efore proceeding to trial counsel for
the defendants moved for a eonlinu.UlC<:- of the
caSeS On the ground that a material witness,
one William H. Tripp, was i!l and unable to
attend court, he having recently fi gured in an
automobile accident, and was suffering from
injuri('s resulting ther('from. The defendants
produced the certificate of a doctor to the
effect that he first saw :"Ir . Tripp on November
4, 1922. A comparison of dates shows that the
doctor saw Mr . Tripp On the day following the
accident and five days prior to the date Set for
the trial of the cases, Ihe latter being Novem-
ber 9, 1922. This certificate sets forth the then
present physical condition of Mr . Tripp which,
in th(' opinion of the doctor, would nol permit
him to travel , and would demand that he be kcpt
quiet .
. * *
III cases of this character, that is, claims
against the estates of d('ceased persons, it
secms to uS that ev('ry reasonable latitude
should be allowed in bringing before the court
and jury all the circumstances and facts which
would aid the latter, in coming to a just and
proper conclusion. In the caSeS which we arc
nOw considering it would seem to be particularly
unfortunate if the defendant should be deprived
of the b<lnefit of the material tcstimony solely
within the knowledge of Tripp, and which, if pre-
sented to thc jury, might lead them to a differ<:-nt
conclusion from that to which tll('Y arrived. The
ecrtiOcat(' of the itl. terms , rci('(s to
the then pres('nt coadition of the witness Tripp
and his inability at that time 10 attend court, Or
depose. It can be reasonably deduc('d, howe"cr ,
from such a e<lrlifi eate, that the ineapacily of the
witness was tcmporary rather than permanent Or
likely to continue for a long pl!riod. The affidavit
fully and explicitly stalC'S the facts to which the
would tes1.ify. While it fails to ghe itl.
precise words the of such expectation,
it rnay b.:: inicrl"<'d i,om it, take" as
a whole , th"t such facts 1l\ust h"",, been obtained
from the himself. and could not ha""
originated i" the mind of the affiant.
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Thcr(> is nO specific .to.lcment either in
the coniHe .. tc of the physician or in the
affida.,it as to the cxp",ct;uion of procuring
the attendance of the witnc at .. fuh\re time ,
but there, again, tlw incapacity appearing
to be temporary. any dct()rminaHon as \0
its duration could b(> a. "o,,,,ily reached or ell-
timated by the plaintiti al by the defendant.
Although ne ither the "crllf"";).!,, of the physi-
cian nOr the aHid""it arc in perfect form, we
think lhal they substanl\:l.lly comply with the
rules governing such matters. At the h"'ar-
ing berot" us it was not e1njmr;d either in
brid or in argwnent that the abs"nt wilne"s
was in a cOr1di!ion to attend court or to give
hi, deposition.
We think the first exception of the defend_
ant must be sustained. Having reached this
conclusion, the Olher exceptions need nOI be
considered.
~ in Wigley v, Uuuard, 12:4 S. w. 2:d 898 (Ct . Civ. App. 1939) the Court
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held that if the absence of a mateda! witness would be prejudicial , it
would be error not 10 continue the trial. The Court stated:
There is ~ ' e t another reil.80n why the eaBe
should be reversed.
Appellants sought a continuance becaus e of
the absence of Mn. Maggi.e Wigley. She
was ill, feeble and unable to attend thc trial.
We consider her the most important witnclS
in Ihis case. We t hink the court and jury
should lee her and hear hcr testif}'. If she
gives the appearance of one mentally capa ble
of knowinG the extent, purpose and COnll'quence
of her acts, the appellees hase nothing 10 fear.
The overruling of the . noti on for a continuance
on nccount of the absence of Mrs . Maggie WiCle)' ,
was error .
Similarly, in Dernnrrl'. Fur Shop v. De Witt , 102: A. 2d 462 (Mun . Ct.
App. O. C., 19!>4) the Court reversed a trial court's rcfu.al to grant a
conUrmance on the following reasoninl:'
W(' think tlwrc was error. Th., Courl W<l1 ntl-
Vii /HI that nppellanl's chief officer who was to
be its chid witn('ss was unabl ... to b ~ ' prcscnl
because of illness. This lII"tclllent ,,3 S :sup-
ported b)' 3. doctor's certHiC'3.tf'. i':otniuS in
thc r('cord questions tne truthfulncss of Ihe
"tatclllcnt or ccrtH;C'atc. AlthOUGh contin _
u; .. ,,:,,! on the dat c Sf't for Irial nrc to be til.-
cour"gl'<l, ne'"crLl"'le88 whe" n pnr!)' or an
impOI"t"nl witncss is unn\.llf' to \.If' present be-
C""Sl' of Uh,css, the party ought I10t to be
deprived of the opportunity of 1)1"{-sl.lnting hil
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J\ c'",1.>nu""nc 1><1,,, ue","" 1"".I11 l..,J
until the was ahle to come to court Or
""lil h",- u('pusit i otl could h(' l"kt". T1", offer
of opposing cOllnsd to stipu],,!c as to the " 'it-
nesS's testimony was not sufficient justification
for the denial of the continuance. One issue in
thO'! case was the date of f,cn";cc of t !" .. notice
to quit . Appdlce's cddcnc(l was :h"t the "alice
was On the aos ... ,,: witness 0" June 29 .
ApI)cl);:."t's answcr, n,rified hI' tb.:, witness.
stated the notice was served 0" Jul)" 2. A merc
stipulation as to the witness's testimony would
hardly have had the same weight bC'for(' a jury
as the testimony of the witness hcrsclf.
While the granting of a motion for a continu"'[lcc is discretionary.
Sec Franklin "oJ. South Carolin", ZI8 U. S. 161 , 30 S. Ct. 640, 54 L. Ed .
980 (1910), the de"ial of a contirluance where thore is at> ill and absent
malerial witness , until a deposition under Rule 15, F.R.Cr.P. is taken,
is UrOr . See Nat"oJig ,'. U. S. 23(, F . Zd 694 {D. C. 195M.
Rule 15, F . R. Cr . P . contemplates the propr i ety of a continuance
for the taki"g of a deposit i on as requested. To obu. i " a deposition, a
dcIendant must show:
(I) The prospective witness may be unable to testify;
See U. S. "oJ. Hagedorn, 253 F . Supp. 969 (5. D. N. Y.
1966)
(Z) That the testimony is material; See U. S. v. Egorov,
34F. R. D. 130 (E.D. N.Y. 19(3), and
(3) The deposition is necessary to pre"oJ"nt a failur"
of justic('. See 8 Moore's Federal Practic('
03 [3] .
Similarly, undel' 18 U. S. C . 3503, dcIendant Ehrlichma!l is also entitled
10 bave the deposition of Mr. Nixon taken. See U. S. v. SinSI elon, 460 Fed.
1148 (2d . Cir . 1972) . 1>.lr . Ehrlichman has made the required showing
and is now entitled to lake Mr . Nixort's deposition to perpetuate t hat
testimony.
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CONCLUSION
Defendant , JOHN D. EHRLICH/I,IAN, has made a clear and
positive showin!: that the testimony of Richard M. Nixon is indispensable
to hill defenle . Mr . Ehrlichman further demonstrated to this Court that
he h a ~ been diligent in attempting to procuT'" the te"timony of Mr . Nixon.
Further, Mr . Ehrlichman has demonstrUed that at tJus time Mr . Nixon
i. ill and unable to testify at trial. Further, Mr . Ehrlichman ha,
demonstrated to the Court that it would be wlduly prejudicial to commence
the trial without fiut having opportunity to perpetuate Mr . Nixon's,
testimony. The Federal Rules of Criminal Procedure clearly contemplOlle
that a deposition be taken under the circwnlllanccs in t,he instant c;tac .
To require the trial to commence On October I, 1974, as nOW set, would
result in substantial prejudice and a violation of Defendant Ehrlichman'S
right to <.Iue process of law. Mr . Ehrlichman's willing t o commence a
deposition of Mr . Nixon as soon as his health permits ami . upon the
completion of that deposition. to go to tdal in this cause in an orderly
manner . If the trial is commenced on October I , 1974, this vital
and indispensable testimony may never be forthcoming. Cert;t.inly.
under such circumstances, each lind every required showing hal been
made . Further , since Defendant Ehrlichman is the only defendant in
t his cause who has sought t o obtain the testimony of Mr . Nixon by way
of subpoena. the granting of a continuance coupled with a SeVerance would
in no way prejudice the rights of the United States of America , nOr that
of any other defendant .
Based on the foregoing, Defend3nt Ehrlichman respectfully
submits that thc trial in this CaUsc be continued. that I\l r . Nixon's
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deposition be author'7.ed, and that Defend;).nl Chrlichmau be severed
from his co_ddcndanls .
FRATES FLOYD PEARSON STEWART
PRO}:NZA 1. P. A.
for Defend"nt Ehrlichman
Twelfth lIoo r Concord Building:
Miami , Florida HIlO

Wrn. Snow Frates
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CI':HTlFlCATE OF SERVICE
11IEHEllY CERTIFY that a true anu correct c o p ~ ' of the forecoing
Motion [or Continuance and Severance was furnished by mail this
21th day nf September , 1974 to the following:
Leon Jaworski , Special Prosecutor
Watergate Special Prosecution Force
14 25 :':5 treet, N. W.
Washington, D. C. 2.0005
:; William C . llullU!CY . Esq .
Plato CacheTis . Esq .
Hundley and Cashed.
839 17th Street, N. W Sui te 500
". aah ington. O. C. 2.0006
John J . Wilson, Esq.
WhitcCord, !-Iart, Carmody &. Wilson
815 15th Street, NW.
Washington, D. C. ;!:O005
Jacob A. Stein, Esq .
Stei n, Mitchell , Me"'ne s
IlOO 18th Street, N. W.
Washington, O. C.
f David C. Oreu, Esq.
~ Thomas Creel'll' , EI<] .
I Ginsburg, Feldman" Bress
~ 1700 Penn.yivani .. A\'cnuc, N . W.
Washington, D. C . 2:0006
John M . Bray, E_q.
Arent , Fox, Kintner , Plotkin < Kahn
ISIS H Street. N. W.
Wa sh ingt on, D. C.
~ C ' ~
Am.lrew C. Hall

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require this defendant to cross examine government ,-'tnesse.:; with_
out first !..eing allowed :0 perpetuate this vital and i:1dlspensable.
tes tlmony;
8. That to perpetuate such testimony 1n a proper manner
Mr. Nixon must be dep0sed , and that such a deposition may not be
commenced until Mr . Nixon 's health improves substantially, and
once that deposition is commenced it will take not less than two
weeks to conclude ; (see Natvig v. United States, 236 F.2d 6911, 98
U.S . App . D. C. 399 (1956) ; cert. den. 352 U. S . BUrton v .
Unl+ed States, 175 F . 2d 960, rehearing den. 176 Fed . 865 (5th
Cir . 1949' cert . den , 338 u.s. 909);
9 . That it 1s manifestly unfair to ;;e'!uester the jury in
this cause and to require that jury idly to sit by for such a de -
lay;
10. That while defendant Ehrlichman so far :5 the only cte_
fendant who has subpoenaed Mr . Nixon , defendant also
the testimony of Richard Nixon to be material and in-
dispensable to his defense . Therefore, the trial must not go for-
w<:.rd until l1ixon ' s medical problems can either be favorably
reSOlved or , in the alternative, his testimony be perpetuated;
oed
11 . Mr . Nixon is a material and inctispensable witness in
t;his case . Mr . Nixon has sole and personal knowledge of the fol-
lowing facts to whi ch he can be expected to in the trial
of this case :
(1) The operating procedure employed by Mr . Nixon
and defendant Haldeman that encompassed full and complete
contemp0raneOUs disclosure by Haldeman Lo Nr . lJixon of
all Haldeman's actions and activities of any substan-
tive importance - and the complete lack of any
discl:dure regarding .any cJver-up activities
or knO<lledge by Haldeman, i.e. -
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(7) Any knu.'Iledge regarding the
de!'C'noant Haldeman's files - or any ,tr.er W'11-
H,use C les or records ..
(8) In.,tructions to defendant Haldeman l"t"-
g.ardlng th", Nixen Estate plan glvt'n in -'-972,
""h re'1'Jired &no were the purr>, 0:' noeetings
between defendant Haldeman and John Dean.
(9) A description or his :n<; with
-,';'ant Ii'llder.tan c:mcerning the ;ohr. ;:1 1
I''i',;ignation from the Chairmanship cf th., C<....m:r;ittee
tJ Hee-'.ect , and \o;hether he discussed \I'1tt!
the possibility or deslrabiU' of re:'.ving Jeb
M::Icruder from his Committee post .
(10) Hls r ."mtaped) l'1structions dl'fendant
Haldt?-ma:J in June or July 1972 concerninr (a) of!''''rs
of clemency to th):;;e involved 1n tll" Watergate bu;,-
glary , (b) the scope of the FBI ir,veOiti;::atior.
tllat crime .
(11) Untape d conversations in late ,I d)j and
in 1972 and at several subse.; en" o"c').sions
prl r . ilarch 1973 with defendant Haldem.'ln alene
:I,n \'Ihien defe ndant Haldeman propc'sed and
a full and complete disclosure f all
Watergate both by the ,'or
someone 0n his behalf) and by the to Re-
elect - and a full public dlsc lo ".Ire by defendant
Haldemar.. of all facts known to him.
(121 IIny decisions which he, RiclWI'd N1.xon,
made with rpspect to those proposals,
(13) Untape d conversations in Septen,ter. Oc -
tober'. Ncvember and December 1972 in 11hi ch defend&nt
-
" -----------------------------------------------
- 5-
HaldE'Jr.an was instructed to cer!. i! n
ant:j ve war;';: and r erform suustar. t! ve ,1\ t
t>;overuber sr.d December 1972, and J '.nllar
ruary 1973. which conversation /ILl i: . 'l.O J ';n<=
factua' of the defense c
j .:'111.- montns defendant !hLiP!T.an w, ; -d
full in g:>vernmental 1'-
sC'r,nel c:latters , ',jh!te HO'else staff
intt:n.,e national secCirity matt"'r .
'i, und
discussion between r' Nlx<.Jrj and
"n,j!>nt a;der.an in Novcmbel' 1972 r'S;lr'd.'n
e
; a
tilte I'!'." :-d1n ')f a telephc!.e conv'r,",,, ;n b _""',:1
Hunt and Charles Coll"z.
(1'
;1ru:Junl, ","le:'! between Nh; m ,'"n:!
iald(,man in Je.:1U'.l::OY 1973 or at a:1y t:r
to 1)73 , concerning ('1"'II.en(y r.r
'1;.."ard Eunt or 2.nyone eh;e involved in the iiiJ.te:-'-
gate burglary Gr paymeLts t') del"endl1Y . iI, '
' .. laer<;ate case , or the cClluliissicn f I <'l"'J\.r:1 by
in the case .
(16) conversations he In:J.Y
, " .. lth
Ha deman in January , February .r f.!::\1'l'h 197) 1'1:: -
r;'lrilng er:,ployment for .Jeb Magruder 'lnd Bal'l Porter,
and an,,' inclusion in such conversat1.(ns of ar,y r '.-
ference "'_ Ma!{rlld' r and Porter having ""lmm!t'
T ,-rJul'Y in ,.ratergate inv"",stigat! '1 r trlal.
\1'7) Any unrecorded convE'I'""t1on
!:'x '-, d"fendant Ehrlichman and defendant He_
i< instructions were given which 1-"n
----

-6-
fact, purpose and scope of the Dean-Moore-Halcteman-
Ehrllchman meeting at LaCosta In Pebruary 1 9 7 ~ . re-
ferred to In Overt Act 35 of Count I of the Indict-
ment.
(18) Unrecorded conversatIons on and after
February 2 ~ . 1973. with defendant Ehrllchman and/or
defendant Haldeman concerning the results of the
LaCosta meetings, includIng instructIons concern-
ing John Dean's duties , and method of reporting to
the PresIdent and the duties of defendant Haldeman
relative to Watergate and ita aftermath.
(19) The nature of Richard Nixon's activities
and discussions regarding Watergate and cover-up
in March and April 1973 - and his knowledge of de-
fendant Haldeman's activities In that period and
the reasons for same .
(20) Any instructions he may have given to
defendant Haldeman regarding contacting Mitchell
with respect to the Hunt threat on March 21 - and
<,
any understanding he may have had regarding Halde-
man's expected actions on that subject.
(21) His understanding of "it would be wrong".
(22) Defendant Haldeman's recommendations to
him for disclosure and their proximate relation-
ship to Mr. Nixon's assignment to John Dean of
March 22 to go to Camp David and prepare a report
of his knowledge of the facts.
(23) The purpose of sendIng Dean to Camp
David to write a report in late March 1973 - and
what was going to be done with the report?
-
I

-7-
Actions taken as a result of Dean's
faIlure to deliver a report.
(25) The purpose and content of intensive
and lengthy discu8sions with defendant Haldeman
at Key Biscayne over the weekend of March 23, 1973.
(26) The reasons for instructing defendant
Haldeman to listen to tapeB of March 21 and Sep-
tember 15 - and the clrcumBtances of the aubseQuent
reports on their contents .
(27) Explanation of the many ambiguities, 1n_
consistencies, and erroneous impressions conveyed
by the tape recordings to be produced at trial by
the Prosecutor.
(28) Unrecorded conversations wIth defendants
Haldeman and Ehrllchman In which instructions were
given Ehrllchman for with Senators
Ervin and Baker for the creation of agreed rules
of procedure for the Senate Select Committee and
defendant Haldeman'! recommeqdations for full dis-
closure of all facts concerning the Watergate matter ,
including Haldeman's own proposed public statement.
(29) A number of late March and early April
1973 unrecorded conversationa regarding getting the
full story on the public record. the means of doing
so , the concern regarding the effects of the Ervin
Committee , frustration in these efforts because of
concern for defendants' rights, etc .
(30) A lengthy unreCOrded conversation at
San Clemente on or about April 6, 1973 in which
Haldeman he participate in a one-hour
I!
"
II
II
II
II
,I
i
-8-
television interview on CBS with Dan Rather r,'r'
the purpose telling publicly all he km ',./ r>=gard-
i!'",g Watergate and its aftermath - as a counter-move
tC' the delays in Haldeman's appearance bei";re the
Senate Committee and the personal attacks on him
by Senator Weicker.
(31) Discussions with Haldeman and Ehrlichman
on the evening of April 15 regarding possible charges
against Lhem.
(3?) Unrecorded (or unproduced) conversa-
t
1
Jns with Henry Peterson recounting statements to
Peterson and other prosecutors by John Dean, either
exculpatory Or' materially inconsist.,:_t.
(33) Any instructions to defendant Haldeman
regarding his Senate Or Grand Jury testimony -
specifically any instructions as to telling the
truth at Senate hearlngs.
(34) In addition to the foregOing, Nixo:1
will testify relating to the facts and circum-
stances of the government ' s allegations in an ex-
culpatory manner as to Mr . Haldeman .
From the foregoing , is readily apparent that Mr . Nixon
II has eXClusive knowledge of a great number of exculpatory facts
which are the subject matter of this action and which cannot be
duplicated through other eVidence . The interests of just i ce
compel that Mr . be given the right to demonstrate to
the jury the complete factual background is now the basis
of the charges against him . The recommended procedUre of a
suspending of trial , a continuance and a deposition is the only
..
. .
-9-
way 1n which defendant Haldeman's fundamental constitutional
rights can be protected.
so
KRICK R
ROSS 0 'DONOGHUE
GEORGE A: FISHER
Attorneys for defendant Haldeman
I hereby certify that on this 9th day of October 1973.
copies of the foregOing Motion and attached Memorandum were de-
livered by hand to the following:
Leon Jaworski, Esq.
Special Prosecutor
William Hundley, Esq.
Attorney for defendant Mithcell
David Bress, Esq.
Attorney for defendant Mardisn
Jacob A. Stein. Esq.
Attorney for defendant Parkinson
William S. Frates, Esq.
Attorney for defendant Ehrlichman
IN THE UNITED STATES DISTRICT COURT
UNITED STATES OF AMERICA,
v.
JOHN N. MITCHELL, et al . ,
Defendants
1 Cr1m1,.l No . 7'-110
I
MEMORANDUM IN SUPPORT OF ANNEXED MOTION
While judicial continuances are generally considered dis-
cretionary with the Court, under the circumstances of this case,
the failure to grant the instant motion so as to perpetuate Mr.
Nixon's testimony and thereafter commence trial would amount to
an abuse of that discretion and would constitute a fundamental
deprivation of Mr. Haldeman's constitutional right to due process
of law and adequately to confront, his accusers . The authorities
'.
discussed below establish this right to the relief
requested and based on the same, the motion should be granted.
Defendant Haldeman, in order to avoid repetition, hereby
incorporates herein the law port!on ,of Mr . Ehrlichman's motion,
being pages 7 - 11
..
For the foregoing reasons, the annexed Motion should be
granted.
Respectfully submitted,


"
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J)Hti N . "l1 TCHELL . al .
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DEFWllMi1' Ii . R. IlA!...DEMJ..Il ' S MOTION 11 .3US?ENDW,;
_____ TrHAL i1ND FOR CON'!':N!'ANCE
!l . R. ilaldcl"".nn , C,;,urt f;..r the
cf J"JEoj' sU;.Irtol,dtnr; and c mt.lnuing Lt. tr1'l.1 . As
defendant r.alderr.an submits '), ," ;
1 , t.r .. r endnnt Haldeman 1s cal,;:ling t 1 .. :I;.I,<1ud a Su[v,pna
rep!r:ng fL-::har'111 . NI>_ n to appear and t', 'IS L ",l'neJs
\ (\ .. r'ns .. In this -::au:Je ;
c . 'hat. IUchArd tlixon sr In11r>1-"n1;",i Ie "jtre"", In
has been h"'''f::-l1z'?'d an'.! r. l.reat.lf.ent
That Lhls _' ,' "
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1\ tlL C ('l::.t. Nlx;;n ' s lU!Lr , thereby rh:: ,I,.dr" .: ... /d tJ
tl,,, fl::; rl \. f COlumbIa at time ;
:. in hI. r .
" . n
If" 1 s to' j 11.: .. to '" .... a.g t ..;u:h
r)' /!d .. d t pe r retuate th1., '.
". I..; unfal, 'r . .-!
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- 2-
require this defendant to cross examine with-
out first. alloweo to perpetuate this vital and indispensable
test.imc'n;; ;
8 . That. to pe:'petuate such testimony in a proper manner
Nixon must be dep:>sed , and that such a deposition may be
cOlllmencl"d unt.il MI' . Nixon ' s health improves s ub stant.ially . and
:mce t..hat deposition Is cOII".menced it will tw.::e r:ot. less than two
" weeks to conclude ; (see Natvlg v . United Stat.es . 236 F. 2d 98
U. S . App . D.C . 399 (1956) ; eert . den . 352 U.S . 1014 ; Burton v .
Un!'ed ;:OLdtes , 175 F . 2d 960 , rehearing d",n . 176 Ped . 865 (5th
Cir . 194q
,.
t.his cause
lay ;
eert . den . 338 U. S . 909);
That 11. 1s manifestly unfair to thE' Jury In
and I.e require that jury idly \,(, sit !1y for such a de-
10. That whlle defendant Ehrlichman so far t.he 'nIy de _
fendant wh::> has subpoenaed Mr . Nixon , defendant Hnldemll :1.150
cc.nSid"rs the t.estimony of Richard NiJCon to be material and in-
Therefore, t.ht' trial mast not go for -
wt>.rd until Nr . lli xon ' s medical problems can either be f a vorably
re;;olved or , ill the alternative , his testimcny be
ood
11. Mr . Nixon is a mate rial and Able witness 1n
':his case . Mr . Nixon has sole and pe rs ()nal knowledT:e o f t.he 1'01-
facts to whi ch he can be expected t, testify In the trial
o f t.his case :
(1) The operating p r ocedure employed by Mr . Nixon
and defendant Haldeman that encompassed full and compl et. e
contemp)raneous disclosure by Haldemal, to !l1xon of
all Haldeman's act I ons and actlv1tielS of any subst.an-
tive importance - and the complete of anJ
discI ..1111'" regarding any Watergate cNer- up activjt. i cs
knc...:ledge by Haldeman , i . c . -
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de!','n<ihnt Haldeman ' " files - or alii U,<,I' Ir." \
li-use fll"s or records.
(til Ir . a.ructions t.o defendant H::.lcem'ln I' _
sa:-dlng !h" Estate plan 1>1"',,11 In Junto .'172 ,
:h re'l'Jired and \oIere the r mt...,tlq";"
bet ... cen defend .. .nt Haldeman and John neall.
(9) It description of his ,no;
; "r ,JHllt 11-.1dt'r;;an c.:.i1cernlng the
f:,um the Chairmanship rf tI,, ;,; ttee
tJ h.>,'lect , ar.d "'"hether he dlscus,-",-:! witl.
th(' rc.sslbll1ty or df'slrablJt'
from his Committee yO,,\' .
(10) !lis ,1Iltaped) l:-.stl'ucti l'n"
Haldt'IMl.:'1 tn June or July 1972 O(:11('e1'nJ r.; (a)
r C!"" ,I; :: to t\.Jse involved 1n 1 il" Io'atl-,"g{\'." bu:,-
..-:lary , (b) the scope of the FBI lrvt!.>U, Jl10n f
thJl:" crlrr.e .
in AUI :,,\ 1972 and at several l>ubse I ,"'u 0 ;Cl\sion:,
rrJ t- ::arch 1973 with defendant naldemRn 81c.l1e
In defendant Haldeman and ',(1" cated
a f'-111 and complete disclosure 'f all kn?wn !'"ct.s
Watergate both by the P)"t!5!,1"nt OJ'
!)0mf'one ,,11 his behal f) and by the Re-
eject - and a full public d1sclc 'urI' by defenciant
llaldt'lC,an of all facts known to h1m.
(1<:) Any decisions whIch he, Rlch:'I'\.i 1.1x.Jn ,
made wIth r"'spect to those propOS8iS ,
\13) Untaped conversations 1n Oc -
tcb"r, II :emb .. r und December 1972 in which
-5-
lIald,Ir.at, W(lS instruct .. d to "r'cl,Rl'''' c I",',;!. ;L-
J v(: wor;" and! f"!'fc:rm sukH.fint I Vt! .Iut 1,.
t'ov(:n,Le, ,u,d December 1<'>'12 , nnJ J ',mlll.r' .l-
:'''''''Y 1973, which convers&.Llon dl':' . n-
f::tl' T 1,1'.1 '. of the defcnae
'I' "',lien
:tH se !:Iontll:; defendunt. !I'l.l. j""d:'l W, . n ,. d
r ... 1. t.i' .e in t;:)vern:r.ental reorgali!za'i .. 5 , ):, ,'_
",('f.n! :';hit e lIe;)se stilrf ",,:v1.
lntl l1:;e nstler.a: SeCJ1'!t.y ma'.l,.":':J .
discussion bltW(0rl /f- . ;,'1 Hr .... :,J
l."r .. l''' ',f Ii t eleph",.p ccny. r,'
Hunt :;rod Char les C,11
Th., ,"sen:.:! .f any
1:/.JCI.man in JIl!"lU'l!"Y 1973 o r at "Ii;.
'1'
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1
;;1' to March 1)73, concern1n!l: {' ,n . 'n, y fc 1"
Hunt or anycne ehe 1nv'Jlvtd in
'- n"SI;' In the case .
(J6) conversations h .. ':b.llt> '": . :<lth
Ha (l"man in January. February l" ;;al_h 197) It--
t>' .. for Jeb Magl'uf1er 'l!:d P' l' tcr ,
aw! .1n.1 Incluslon In such conversat hr.s ofu.y /',-, -
ference ;.. Ma.l7rudt"' r and Porter i''lvlng r;'-:nm;t'",J
, .",r.IU/':1 In '!atergate inv"!'stlgat!. r" trial .
\ 17) Any unrecorded conVf>I':< .. t t:m I</l, .... l .. ; r_!
J. Ehrllchroan und defcndant ;;,,1 -;"".an ,
,n 'Itl'>' Instructions ... ere given whJ;.:h
- ~ .
- 6-
fact, purpose and scope of the Dean-Moore-Haldeman-
Ehrllchman meeting at LaCoata 1n February 1973 . re-
ferred to in Overt Act 35 of count I of the lndlct -
ment .
(18) Unrecorded conversations on and after
February 24 , 197 3. with defendant Ehrllchman and/or
defendant Haldeman concerning the results of the
LaCosta meetings , including instructions concern-
ing John Dean ' s duties , and method of reporting to
the President and the duties of defendant Haldeman
relative to Watergate and its aftermath.
(19) The natur e of Richard Nixon's acti vities
and discussions regarding Watergate and cove r-up
1n March and April 1973 - and his knowledge of de -
fendant Haldeman's activiti es 1n that period and
the reasons for same .
(20) Any instructions he may have given to
defendant Haldeman regarding contacting Mitchell
wi th respect to the Hunt threat on March 21 - and
any underatanding he may have had regarding Halde-
man ' s e xpected actions on ~ h a t subject .
(21) His understandi ng of "i t would be wrong".
(22) Defendant Haldeman ' s r ecommendations to
him f or disclosure and their proximate relation-
ship to Mr. Nixon's assignment t o John Dean of
March 22 to go to Camp David and prepare a report
of his knowledge of the facts.
(23) The purpose of sending Dean to Camp
DaVi d to write a report in late March 1973 - and
what was going to be done with the report?
~
"

- 7-
(211) Actions taken 85 a result of Dean's
fallure to deliver a report .
(25) The purpose and content of intensive
and lengthy discussions with defendant Haldeman
at Key Biscayne over the weekend of March 2), 1973.
(26) The reaaons for instructing defendant
Haldeman to listen to tapes of March 21 and Sep-
tember 15 - and the circumstances of the subsequent
reports on their contents.
(27) Explanation of the many ambiguities , 10_
consistencies , and erroneous impressions conveyed
by the tape recordings to be produced at trial by
the Prosecutor.
(28) Unrecorded conversations with defendants
Haldeman and Ehrllcnman 1n which instructions were
given Ehrllchman fOr n e g o t l ~ t l o n wi th Senators
Ervin and Baker for the creation of agreed rules
of procedure for the Senate Select Committee and
de f endant Haldeman ' s recommeqdations for f ull dls-
closure of all facta concerning the Watergate matter,
including Haldeman ' s own proposed public statement .
(29) A number of late March and early April
1973 unrecorded conversations regarding getting the
full story on the pub11c record , the means of d01ng
so , the concern regard1ng the effects of the Ervin
Committee, frustrat10n in these efforts because of
concern for defendants ' rights, etc .
(30) A lengthy unrecorded conve rsat1on at
San Clemente on or about Apr11 6 , 1973 in which
Hs1deman recommended he psrticipate in a one -hour
>
, .
-
"
,
, .
. '
II
II
..
II
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- 6-
interview on CBS w1t.h Dan Rather r, r
t.he purpose :f telling publicly a.ll he kr.t<l r"'gal"d -
Lnr: lI11tergatt'! WId its &ftermath - 'Is a counter-move
tt t.he delays 1n Ealdeman ' s appearance b-'i' Qr., the
Senate Conmlttee and the personal 1It.';acks .m h1m
by Welcker .
(31) Discussions with Haldeman and Ehrl1chman
on the evening of April 15 regarding possible charles
aeainst them .
(32) Unrecorded (or unproduccd) c('nvcl'sa-
I.' ,os with Henry Peterson recounting statements to
Petersen and other by John Dean , e1ther
exculpatory or mater1ally InconslsLt.:'t .
(33) AllY instructions to defendant Hnldet:lan
hls Senate or Grand Jury testlr.Hmy -
specifically any instructions as to telling the
truth at Senate
(34) In addition to the foregoing , Mr . Nixo:'!
will testify relating to the factI! and cil'cllm-
of government 's allegations in an ex -
'I culpatory manner as to Mr . Haldeman.
I,
r:
Prom the foregoing , i' 1s readily 1l1-,psrent. that Mr . N1xon
;! ha5 exclu5ive knolo'ledge of a great nwnber of excu1l,ator y facts
,
wh1ch are the l!ubJect matter of th1s action and which cannot be
\. duplicated through other evidence . The interests of Justice
compel that Mr . Haldemar: be siven the right to demonstratE' to
the Jury thc cQrnplete factual background whi .:h is now the basis
of t he charges against h im. The procedure of a
:+ suspending of t.r1a1 , a conti nuance and a deposition is the on ly
.'
.
. ,
I'
I!
,
- 9-
way in which defendant Haldeman's fundamental constitutional
rights can be protected.
s
l _ ~ . __ L_
TR R
ROSS O'OONOGHOE
GEORGE A: FISkER
I hereby certify that on this 9th day of October 1973 ,
copies of the foregoing Motion and attached Memorandum were de-
livered by hand to the following:
Leon Jaworski, Esq.
Special Prosecutor
William Hundley , Esq .
Attorney for defendant Mithcell
David Bress, Esq .
Attorney for defendant Mardian
Jacob A. Stein, Esq.
Attorney for detendant Parkinson
William S . Frates , Esq .
Attorney for defendant Ehrllchman
<
.-,
't. ' , .
1 ' )\
.'I;"i
UNITED
JOHN N.
IN THE UNITED STATES DISTRICT COURT
STATES OF AMERICA, )
,.
l
Criminal No .
)
MITCHELL, et al. ,
l
Defendants )

IN SUPPORT OF ANNEXED MOTI ON
While Judicial continuances are generally considered d1s-
cretlonary with the Court . under the circumstances of this case ,
the failure to grant the instant motion so as to perpetuate Mr.
Nixon ' s testlmony and thereafter commence trial would amount to
an abuse of that discretion and would constitute a fundamental
deprivation of Mr. Haldeman ' s const i tutional right to due process
of law and adequately to his accusers. The authorities
discussed below establish thi a defendant's right to the relief
,
requested and based on the lame. the motion ahould be granted.
Defendant Haldeman , 1n order to avoid repetition. hereby
incorporates here1n the law port ion ,of Mr . Ehrllchman's motion ,
being pages 7 - 11 tfiereot. -"
For the forego1ng r ealona . the annexed Motion should be
granted .
Attorneys f or defendant Haldeman

Folder 9/2: Peter Kreindler (PMK) Materials/watergate Special Prosecution Force (WSPF) Files From CR 74-110 (U.S. v. Mitchell, Et Al.) Re: Richard M. Nixon (RMN) Testimony/deposition in That Trial

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Folder 9/2: Peter Kreindler (PMK) Materials/watergate Special Prosecution Force (WSPF) Files From CR 74-110 (U.S. v. Mitchell, Et Al.) Re: Richard M. Nixon (RMN) Testimony/deposition in That Trial

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of foreign gov. United St;ltes without

cert. denied, 403 U.S.

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