The opinion of the court was delivered by: GREENE
The defendants in this case -- Laura Whitehorn, Timothy Blunk, Alan Berkman, Susan Rosenberg, Marilyn Buck, and Linda Evans
-- stand indicted in this Court of conspiracy
and four counts of bombing
the United States Capitol, the National War College Building at Fort McNair, the Computer Center at the Washington Navy Yard, and the Officer's Club at the Navy Yard,
all in 1983 and 1984.
With the exception of Whitehorn,
all the defendants have previously been convicted in other federal courts of such crimes as conspiracy and illegal possession of firearms and explosives, and one of them, Buck, was earlier convicted of armed robbery and bank robbery killing in connection with the robbery of a Brinks armored car in Nanuet, New York. Again, all defendants but Whitehorn are now serving substantial sentences with respect to these offenses.
filed a considerable number of pretrial motions, and following the filing of oppositions by the government and of defendants' replies, the Court heard oral argument on many of these motions for two days on March 16 and 17, 1989. Additional hearings -- on motions requiring the consideration of evidence in addition to legal argument (e.g., motions to suppress) -- will be held within the next two weeks.
In this Opinion, the Court disposes of the pending motions as follows. The first two sections deal with defendants' challenge to the entire prosecution -- Prosecutorial Misconduct (Part I), and Vagueness (Part II). This is followed by five sections on procedural claims and requests -- Surplusage and Bill of Particulars (Part III); Witness and Evidence Lists (Part IV); Severance (Part V): Grand Jury Minutes (Part VI); and Exculpatory Evidence (Part VII); next is a motion on Courtroom Security (Part VIII); and the final two sections discuss motions filed on behalf of only some defendants -- Dismissal of Conspiracy Count (Part IX) and Double Jeopardy (Part X).
As will be seen below, and for the reasons there stated, all but one of the motions will be denied in whole or in part. The one motion the Court is granting is that which claims double jeopardy, and the indictment will be dismissed on that basis as to the three defendants (Timothy Blunk, Alan Berkman, and Susan Rosenberg) who were placed in jeopardy by their prior criminal trials and convictions based on the same evidence as that which the government expects to use in their trial on the current indictment in this Court. Part X of this Opinion discusses that double jeopardy issue.
Initially, the defendants challenge the basic validity of the indictment in three related motions to dismiss based on claimed governmental misconduct. One of these is a joint motion of all defendants for a dismissal on account of unconstitutional delay and prosecutorial vindictiveness. In addition, defendant Rosenberg filed her own motion to dismiss because of alleged prosecutorial vindictiveness. Finally, the defendants filed a joint motion to dismiss which alleges far-ranging prosecutorial misconduct and encompasses the allegations in the other two motions. Since the Court has determined that the indictment must be dismissed as to defendant Rosenberg based on double jeopardy considerations, it will not specifically address the issues raised in her motion. Instead it will consider the specific claims of unconstitutional delay and prosecutorial vindictiveness before moving to the defendants' umbrella motion regarding misconduct.
There is little doubt that the defendants have suffered some prejudice as a result of the government's delay in bringing the indictment. It is likely, for example, that the delay preceding the indictment in this case, combined with defendants' trials in other courts, has strained their emotional and financial resources. Whatever prejudice they may have suffered, however, is not nearly as great as they claim.
The most substantial prejudice resulting from the delay in this case, it is said, has been to defendants' ability to defend against the government's charges. More specifically, defendants state that because of the delay, they "are faced with the almost impossible task of trying to reconstruct their whereabouts, locate witnesses and documents and prepare a defense to events which occurred years ago."
Were this true, this would be precisely the type of prejudice that is relevant in the post-indictment Sixth Amendment context, and it would be an important due process consideration as well. See Smith v. Hooey, 393 U.S. 374, 380, 21 L. Ed. 2d 607, 89 S. Ct. 575 (1969).
However, the possibility of prejudice
is contradicted by the factual picture, for the delay in bringing the indictment in this case has not, as a practical matter, increased the defendants' difficulty in preparing for trial even close to the level of "near impossibility" that they allege. As the defendants themselves repeatedly emphasize (even in the instant motion), several of them have spent much of the last three years in trials involving many of the same issues, evidence, and witnesses as are presented in the instant case.
The blunt fact is that, because of their incarceration, the defendants have apparently been able to do little else in the last three years other than to participate in trials concerning the events surrounding the alleged bombings or to prepare for such trials. The contention that they have lost track of witnesses or are unable to reconstruct events that happened in the past therefore strains credulity, and the Court is not persuaded that the delay has caused any significant prejudice to their ability to defend against the charges in the indictment here.
Moving to the second part of the test for unconstitutional delay, the Court concludes that the government did not purposely delay the return of the indictment to gain a tactical advantage. In this Circuit, a defendant who is challenging the delay has the burden of showing that the government acted for improper purposes. United States v. Pollack, 175 U.S. App. D.C. 227, 534 F.2d 964 (D.C. Cir. 1976).
Defendants assert that "there can be no legitimate reason for the delay . . ." and that the indictment was brought when it was only to hold a club over their heads.
That contention, too, is patently erroneous.
The government offers several legitimate reasons for the delay. First, it points to a change in prosecutors and the resulting need, for at least a limited period of time, to review the files and to prepare for judicial proceedings. While such a delay is permissible,
it certainly does not fully explain or justify the three years that preceded this indictment.
However, when the statute of limitations was about to run in the instant case, and the Supreme Court had not yet issued its Murray ruling, the government finally asked the grand jury in this district to return the present indictment, and that indictment was, in fact, returned on April 20, 1988.
Then a further complication ensued. Because the armed robbery and conspiracy trial of Marilyn Buck was about to conclude just then in the Southern District of New York, the government requested that the indictment here be sealed to avoid any publicity that could affect the jury in that case, and the Court complied. On the day defendant Buck was convicted in New York, and the danger of prejudice had passed, the government requested that the indictment here be unsealed, and that was done.
The Supreme Court has recognized that it is proper for a prosecutor to delay seeking an indictment until he is satisfied that he will be able to establish the defendant's guilt beyond a reasonable doubt. United States v. Lovasco, 431 U.S. 783, 791, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977).
The government asserts that without the evidence from the Baltimore search, its efforts to prosecute this case would have been hampered so severely that it would most likely have abandoned the prosecution.
Under these circumstances, the decision to attempt to await the Supreme Court's decision was reasonable and in the interest of the sound administration of justice. See United States v. Stewart, 426 F. Supp. 58, 60 (E.D. Mich. 1976). The Court regards the government's actions as responsible, and it concludes that there is no basis for a finding of a purpose to gain an improper tactical advantage.
The defendants next claim that the indictment should be dismissed because the government brought this indictment to harass and punish them for the exercise of their First Amendment rights. Clearly an indictment brought for such vindictive purposes would be inconsistent with the government's obligations under law and would properly be dismissed. Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974). Blackledge, however, creates a presumption of an improper motive on the part of the prosecutor only in cases in which a "reasonable likelihood" of vindictiveness exists. United States v. Goodwin, 457 U.S. 368, 373, 73 L. Ed. 2d 74, 102 S. Ct. 2485 (1982). No such likelihood is apparent here.
All these factors indicate that the defendants are being "unrelentingly" prosecuted because of their beliefs; their political activities and their resolve to maintain those beliefs.
This claim -- that they are being prosecuted and punished for their political beliefs and activities -- runs like a bright thread through almost all of the defendants' motions and supporting papers. None of those assertions, no matter how often repeated, can obscure the fact, however, that the defendants are being prosecuted for bombing the United States Capitol, the National War College Building at Fort McNair, the Computer Center at the Washington Navy Yard, and the Officer's Club at the Washington Navy Yard, or that the conspiracy count further alleges that they also bombed the Federal Building on Staten Island, the South African Consulate, the Israeli Aircraft Industries Building, and the Patrolmen's Benevolent Association Building, all in New York. None of these acts falls into the category of "beliefs" or "political activities."
Bombings are violent acts, and defendants have no immunity from prosecution for such acts merely because they also hold protected beliefs or, for that matter, because they hold beliefs that may be abhorrent to the government and to many citizens. This proposition can easily be tested. Suppose that one of these particular defendants had been arrested in the act of selling illegal drugs or of robbing a liquor store. Could it reasonably be maintained that he could not legally be prosecuted by the government for these offenses on the basis that he is not popular with that government? Of course not. Prosecutorial vindictiveness cannot be inferred from the fact that the prosecutors are determined to bring to justice those who, they have reasonable cause to believe, have engaged in a series of bombings. Prosecutors are presumably equally determined -- and properly so -- to bring to justice other individuals who commit other serious crimes. Prosecutors are expected to be unsympathetic to lawbreakers, as are most law-abiding citizens.
In support of their motion, defendants rely on numerous cases involving decisions by prosecutors to increase or to multiply charges against a defendant following his exercise of a procedural due process right, such as the right to an appeal, the right to transfer venue, or the right to refuse a trial before a magistrate. See, e.g., United States v. DeMarco, 550 F.2d 1224 (9th Cir. 1977); United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976); United States v. Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976).
The application of these cases to the issue here is doubtful because defendants are not asserting that the government brought this indictment to retaliate for their exercise of such a specific procedural right. Their theory is far more amorphous: they claim that charges are being brought against them on account of their general political orientation -- a matter that would be far more difficult to prove or disprove.
In any event, it is not necessary for the Court to pursue that line of inquiry, for it is plain that these defendants are not being prosecuted on an imaginary or chimerical theory for acts which either do not normally constitute crimes or constitute protected conduct of some sort. They are being prosecuted for allegedly engaging in conduct which any reasonable person would regard as criminal: four bombings in New York, and four more bombings of as many different buildings in the District of Columbia, one of them being the United States Capitol, the seat of this nation's legislature.
C. Prosecutorial Misconduct -- General
Defendants claim next that the delay and the alleged prosecutorial vindictiveness discussed above should be viewed in the context of what they assert to be overarching government misconduct in this case, and they assert that the totality of the misconduct is so great that it warrants dismissal of the indictment under the Court's supervisory powers.
The courts have recognized that, in rare and extreme cases of government misconduct with respect to a defendant, "in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction," a court may find it necessary to dismiss the indictment. United States v. Russell, 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973).
However, most of the defendants' charges need not be evaluated under the Russell standard because they do not involve the investigation and prosecution of this case; rather, they represent unrelated complaints by the defendants against various government policies and conduct.
First. Many of defendants' claims, whether substantively justified or not, are entirely irrelevant to the instant case.
For example, their memorandum describes at great length and in considerable detail the defendants' view that the United States is or has been guilty of "war crimes" in such places as Nicaragua, Grenada, Puerto Rico, South Africa, Israel, Lebanon, and several other countries, as well as against American Indians.
The government's activities in all of these places are, of course, entirely unrelated to its investigation of these defendants, and they have nothing to do with the prosecution's effort to secure convictions here.
Even assuming that United States policy with respect to these and other countries is wrong, misguided, or even violative of international law -- which the Court will do only for the purpose of passing on defendants' claims -- that obviously does not give defendants a license to blow up buildings in the District of Columbia or elsewhere. Whatever they may wish to believe, these defendants are not the judges of United States policy or actions, with a mandate to punish the government if it acts in a manner that defendants think is wrong. The judges of that policy and of those actions are the American people at election time.
Alternatively, it may be defendants' point that these policies are relevant to this prosecution on the basis that they are being prosecuted for their opposition to them. However, there are thousands, if not millions of citizens who are opposed to one such policy or another,
and obviously those individuals have not been and will not be prosecuted on that account. The supposition that these defendants represent such a danger to United States "imperialist" designs that criminal prosecutions against them had to be manufactured, or that it became necessary otherwise to harass or intimidate them merely to silence them, is to assign to defendants roles for which they are unsuited. At the risk of repetition, the Court will note once again that, if the government's evidence matches its allegations, the defendants have committed real, live, concrete crimes which are subject to punishment under the standards of any civilized society.
Second. Defendants' memorandum in support of their motion next describes the FBI's counterintelligence neutralization program (COINTELPRO) activities in the 1960s and 1970s,
and alleged illegalities in connection with the investigation of the Brinks armored truck robbery of which defendant Buck was convicted in an earlier case. The Court could not reasonably conclude that FBI investigations, of defendants and others, conducted in the 1960s and 1970s -- many years before the bombings at issue in this case occurred and of course many years before the investigation and indictment in this case -- were intended to secure defendants' conviction under that indictment, or that they would prejudice defendants in this trial. Relatively ancient governmental misconduct does not immunize defendants from prosecution for illegal acts committed long after that misconduct occurred.
Third. Much of the alleged government misconduct was committed against persons and organizations other than the defendants themselves or the Armed Resistance Unit (ARU), the Revolutionary Fighting Group (RFG), and the Red Guerilla Resistance (RGR), with which these defendants were allegedly affiliated at the time of the bombings.
For example, defendants condemn the FBI's investigation of CISPES, the May 19th Communist Organization, and the John Brown Anti-Klan Committee, asserting that both the general investigations of these groups, and specific investigations in connection with the bombings charged in the instant indictment, were illegal
Defendants' point that the "illegal investigations of CISPES, May 19th Communist Organization, and the John Brown Anti-Klan Committee are woven into the very fabric of the current case"
is a generalized assertion without meaning, particularly in terms of the standing of these defendants to complain about injury to others -- an issue that is critical in this context. Defendants respond that standing is not necessary because theirs is a due process claim. Assuming that the investigations of the groups listed by defendants were sufficiently outrageous to offend standards of decency and fairness,
"the fact remains that 'the limitations of the Due Process Clause . . . come into play only when the Government activity in question violates some protected right of the defendant.'" United States v. Payner, 447 U.S. 727, 737 n.9, 65 L. Ed. 2d 468, 100 S. Ct. 2439 (1980) (quoting Hampton v. United States, 425 U.S. 484, 490, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976)) (emphasis in original).
The short of it is that defendants do not have the generalized right they assert to ensure that the rights of others are not violated. If an illegal activity infringes on their constitutional rights or otherwise protected civil liberties, the Court can and will provide a remedy. However, the Supreme Court has made it clear that if the activity violates the rights of others, even if they be "friends, families, and political associates,"
it is they who must assert the injury, not the defendant in a criminal case or some other third party. Payner, 447 U.S. at 737 n.9. On this basis, then, defendants' allegations that the rights of others were violated, even if true, would not justify a dismissal of the indictment.
D. Specific Prosecutorial Misconduct
Defendants' only assertions of government conduct relating to their own rights in relation to this investigation and prosecution are claims of (1) excessive sentences, (2) oppressive prison conditions,
(3) improper electronic surveillance, and (4) an illegal search of the Alameda apartment in Baltimore. The test for evaluating such claims, according to United States v. Russell, supra, 411 U.S. at 432, is whether the government's actions violate "fundamental fairness, shocking to the universal sense of justice."
Second. Defendants fare no better on their claims of improper prison conditions.
This Court has previously considered and investigated the conditions of defendants' confinement at the D.C. Jail, ordered a number of modifications,
and approved them as so modified. Contrary to defendants' assertion that they are being held at that facility in restrictive conditions of confinement because of their political beliefs, these conditions are warranted under the general standards of the U.S. Bureau of Prisons and the D.C. Department of Corrections because of defendants' history of fugitivity and the involvement of some of them in escapes. See the Court's Memorandum and Order of September 6, 1988.
Here, too, defendants seek to transform their political beliefs from a shield into a sword. The defendants have a right not to be treated more restrictively than other inmates on account of those beliefs. At the same time, those beliefs do not entitle them to special preferential status when security measures are applied to them as to others with similar records evidencing actual or potential fugitivity. See Part VIII, infra.
Third. Defendants maintain next that the government is guilty of misconduct in that it used illegal electronic surveillance in the course of its investigation of them. Indeed, they claim that the government falsely made several denials -- that it used a trap and trace (or possibly even a wiretap) on the telephone of the Alameda apartment occupied by several of the defendants in Baltimore, and that it had monitored a conversation between one Brian Harrigan and defendant Evans. While defendants concede that consensual monitoring is not illegal,
and that traps and traces did not require a court order in 1985, they assert that these instances indicate (in the face of previous governmental denials regarding such practices) that deception exists regarding wiretapping in this case, and they seek to explore, in an evidentiary hearing, the full extent of their electronic surveillance by the police.
Such a hearing is not necessary, at least not at this time. The Court has ordered the government to produce Elsur indices and affidavits
regarding all electronic surveillance conducted of any of these defendants. If those indices indicate illegal government surveillance of the defendants in connection with this indictment, the Court will take further appropriate action. Similarly, if there are inconsistencies between the government's indices and the defendants' information regarding electronic surveillance, the Court will consider what action is appropriate, depending upon the apparent reliability of the information produced by the two sides.
Fourth. Finally, defendants assert that the government's misconduct in its search of the Alameda apartment in Baltimore was so serious that it goes beyond a mere Fourth Amendment violation and the need for the suppression of the evidence and warrants the use of the Court's supervisory power to dismiss the indictment.
A legitimate question exists regarding the legality of the Baltimore search and the use of evidence discovered in its course. Judge Norman P. Ramsay of the District Court for the District of Maryland conducted a full hearing on this issue in the context of the Baltimore indictment of defendant Whitehorn. Following the hearing, Judge Ramsay found that the bomb sweep then conducted was illegal, and he suppressed the evidence discovered during that sweep. However, that decision was reversed by the Court of Appeals for the Fourth Circuit
based on reasoning that was later sustained by the Supreme Court in Murray, supra.42 There is no basis for a decision by this Court holding that conduct which was found by the Courts of Appeals for the Fourth and the Second Circuits
not to warrant suppression of the seized evidence is so outrageously offensive that it warrants dismissal of this prosecution under the Court's supervisory power.
Defendants assert that they have evidence of misconduct that was not presented to Judge Ramsay. While defendants are entitled to a hearing on new evidence regarding this issue, it is not clear, based on the defendants' characterization of the new evidence and the opinions of the two Courts of Appeals that have considered this question, that the evidence actually is new.
With the exceptions noted, the motions for dismissal on grounds of unconstitutional delay, prosecutorial vindictiveness, and prosecutorial misconduct will be denied.
The defendants have next moved to dismiss the indictment on the ground of impermissible vagueness, pointing to various alleged failings in the indictment. These will now be considered seriatim.
First. Defendants maintain that the conspiracy count does not allege the requisite agreement as to the manner and means, but that claim has no merit. Paragraph A of Count One clearly states that the defendants "did willfully and knowingly combine, conspire, confederate, and agree. . . to commit offenses against the United States . . . ." The conspiracy count then goes on to specify the goal of conspiracy, the manner and means used, and specific overt acts committed by specific defendants in furtherance of the conspiracy. Thus, the language of Count One contains a sufficient allegation that the defendants agreed to the same type of conduct. Hamling v. United States, 418 U.S. 87, 117-18, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974).
Second. Defendants contend that the manner and means section is impermissibly vague in that (1) it alleges only "generic" acts and (2) it does not indicate which defendant or defendants employed the manner and means described. In fact, however, the manner and means listed in the indictment are more than specific enough to inform the defendants of the charges against which they must defend. For example, paragraph eight of the manner and means section states that the "defendants and co-conspirators, using [certain specific] organizational names . . ., would place and explode bombs at various locations including . . .," and it then goes on to list eight different bombings, the dates on which they occurred, and the organizations that claimed responsibility for them. Similarly, paragraph fifteen states that the defendants possessed alias identification documents, and it lists the aliases used by each defendant corresponding to the particular documents. And paragraph sixteen states that
The defendants and co-conspirators would obtain and possess ammunition, bulletproof body armor, firearm accessories, and firearms, including UZI rifles, shotguns, handguns and silencers.
In sum, the conspiracy count sets out with great specificity the acts allegedly committed by the defendants. Because the defendants are charged with conspiracy, it is not necessary that the government specify which defendant is responsible for which acts -- if an agreement is shown, co-conspirators are equally responsible for all acts committed in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 646-47, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946).
Defendants maintain also that the government's failure to specify which of them was involved in each of the manner and means, or to allege that all defendants agreed to all manner and means, is particularly problematic in this case because the goal of the conspiracy "squarely implicates the Defendants' First Amendment guarantees to express opposition to policies of the United States."
In support of this argument, they rely on United States v. Peraino, 645 F.2d 548, 551-52 (6th Cir. 1981), and Castro v. Superior Court, 9 Cal. App. 3d 675, 88 Cal. Rptr. 500 (1970), both of which hold that there is a higher standard for proving a conspiratorial agreement when defendants are involved in the exercise of First Amendment rights.
As the Court has had to remind defendants again and again, the goal of the conspiracy, according to the indictment, was not simply to advocate changes in government policy, but to do so by "violent and illegal means." There is no First Amendment right to blow up government buildings, irrespective of the perpetrator's motive. If anything, the Castro and Peraino decisions support that conclusion.
In Castro, the court noted that a demonstration is a legitimate exercise of First Amendment rights, but it further emphasized that "this does not, of course, clothe petitioners with immunity from prosecution for violations of laws which the state may legitimately enforce, even against those who are exercising such rights." 88 Cal. Rptr. at 506. Similarly, in Peraino, an obscenity case, the Court of Appeals said that an agreement to distribute materials which constitute expression "may have both legal and illegal purposes depending on varying community standards." 645 F.2d at 551-52. Terrorism and bombings do not constitute protected expression, and they are illegal in every community.
Third. Defendants maintain further that the substantive counts should be dismissed as vague because they do not inform the defendants of their alleged participation in the offenses. The face of the indictment reveals that all the defendants are charged under the aider and abettor statute, 18 U.S.C. § 2, and defendants therefore have notice that the government is proceeding under that theory. In that context, the claim that the indictment is fatally flawed because it does not specify the precise nature of each defendant's involvement is quite simply "devoid of merit." Pollack, supra, 534 F.2d at 971.
Moreover, the language of the substantive counts closely tracks the statutory language of 18 U.S.C. § 844(f). "Ordinarily, it is proper for an indictment to be drawn in the language of the statute." United States v. Nance, 174 U.S. App. D.C. 472, 533 F.2d 699, 701 (D.C.Cir.1976). To be sure, where the language of the statute is too generic to inform a defendant of the nature of the charges against him, more specificity is required. Id.; see also, United States v. Thomas, 144 U.S. App. D.C. 44, 444 F.2d 919 (D.C.Cir.1971). However, the indictment satisfies these standards by specifying the dates of the bombings, the buildings bombed, and the agencies of the United States that owned or used them. No more is necessary.
Fourth. An indictment must inform a defendant of the elements of the offense and the charges against which he must defend, and it must enable him to plead double jeopardy as a bar to future prosecutions for the same offenses. Hamling, supra, 418 U.S. at 117-18. As indicated above, the indictment in this case is extremely specific and detailed, and it satisfies all of the requirements of Hamling.
What the indictment does not do, as defendants correctly point out, is identify the specific policies of the United States the defendants sought to change. These policies, however, are referred to in the indictment only to describe the goal of the conspiracy; they are not essential elements of the crime charged. As defendants repeatedly and properly emphasize, it is not illegal to disagree with or to attempt to change government policies. See Noto v. United States, 367 U.S. 290, 297-98, 6 L. Ed. 2d 836, 81 S. Ct. 1517 (1961).
What is illegal is to do so by violent means. Thus, the failure of the indictment to list the policies the defendants sought to change is immaterial:
defendants are fully informed as to the offenses against which they must defend, and the vagueness motion will be denied.
Surplusage and Bill of Particulars
The defendants have moved to strike from the indictment, and more particularly from the explication of the manner and means by which the goals of the alleged conspiracy were to be achieved, and from the listing of the overt acts in furtherance of the conspiracy, such language as "among others," "but not limited to" and "in part."
In support of the motion, they argue that these terms erroneously and improperly suggest to the jury that they are charged with offenses and conduct in addition to those actually listed in the indictment. The government responds that most of the language about which the defendants complain is contained in the "Overt Acts" section of the indictment, which refers to proof rather than to charges; that the jury therefore could not infer the commission of additional crimes; and that defendants are not prejudiced. The Court disagrees.
To expect a jury to assume that the inclusion of language indicative of additional misconduct has no real meaning and does not charge the defendants with additional crimes merely because it is contained in the "Overt Acts" section of the indictment, is to ascribe to a jury of laymen an ability to draw distinctions that even lawyers have difficulty making. As Judge Richey of this Court said in United States v. Hubbard, 474 F. Supp. 64, 82 (D.D.C. 1979), "regardless of their location in the indictment [such words] may encourage the jury to draw inferences that the defendants are believed to be involved in activities not charged in the indictment." See also, United States v. Freeman, 619 F.2d 1112 (5th Cir. 1980); Marsh v. United States, 344 F.2d 317, 320-22 (5th Cir. 1965); United States v. Brighton Building and Maintenance Co., 435 F. Supp. 222, 230-31 (N.D. Ill. 1977), aff'd, 598 F.2d 1101 (1978); but see, United States v. Climatemp, Inc., 482 F. Supp. 376 (N.D. Ill. 1979). This reasoning applies a fortiori to language in the manner and means portion of the indictment.
Rule 7(d) of the Federal Rules of Criminal Procedure permits the Court to strike portions of an indictment to protect defendants from "immaterial or irrelevant allegations . . . which may . . . be prejudicial." Fed. R. Crim. P. 7(d) Advisory Committees's note. The government has been unable to point to any purpose that might be served by the language objected to by defendants. Indeed, there can be no such purpose since in its proof of the conspiracy count the government is not limited to events described in the "Overt Acts" section of the indictment; any relevant and material evidence tending to prove the conspiracy and the manner and means by which it was to be achieved is admissible. United States v. Lewis, 759 F.2d 1316, 1344 (8th Cir. 1985); United States v. Elliott, 571 F.2d 880, 911 (5th Cir. 1978). In sum, the language objected to by the defendants is both prejudicial to them and unnecessary to the indictment. The Court will accordingly order it stricken.
B. Use of the Term "Violent "
Count 1 of the indictment charges that it was a goal of the conspiracy to
Defendants claim that the word "violent" is surplusage and is unduly prejudicial in that none of the offenses charged includes violence as an element. Here again reliance is had on the opinion in United States v. Hubbard, supra, and it is claimed that Judge Richey struck from the indictment language less inflammatory than the word "violent."
With due respect to the Hubbard court, this Court concludes that the term "violent" is appropriate here, and further that, in context, it is not prejudicial. To be sure, the commission of an act of violence is not a formal element of the offenses charged in the indictment. However, it is difficult to conclude that the deliberate setting off of bombs in a number of buildings are not acts of violence. The term "violent" is defined as "moving, acting, or characterized, by physical force, esp. by extreme and sudden or by unjust or improper force; furious; as a violent assault." Webster's Collegiate Dictionary, 5th ed. By that definition, as by any common sense understanding of the term, the offenses here charged are violent offenses.
The term "illegal" does not as fully or as accurately describe the charges here as does the term "violent." Indeed, if illegality only were alleged, the alleged effort to influence, change, and protest the policies and practices of the government could have amounted to nothing more than, say, the distribution of pamphlets in places or at times not permitted by law or ordinances. Those would be entirely different charges,
and the term "violent" is therefore necessary, or at a minimum appropriate, to describe to the jury what it is that defendants were allegedly attempting to do. See United States v. Sciandra, 529 F. Supp. 320, 322 (S.D.N.Y. 1982).
It should also be noted, finally, that defendants are not prejudiced by use of the term "violent," for the jury would be faced, from the first day of trial, with opening argument and evidence referring directly to bombings and the effect of bombings, thus bringing to their attention that the trial will be about violent crimes. On a matter such as this, the Court clearly has discretion. United States v. Poore, 594 F.2d 39, 41 (4th Cir. 1979), and for the reasons stated, it exercises that discretion by denying the request to strike the term "violent."
Defendants have also moved for a bill of particulars. The majority of the issues raised in that motion have been mooted either by the government's responses to defendants' requests or by the Court's decision to strike surplusage.
Several requests remain, however.
As discussed elsewhere in this Opinion, the indictment in the instant case is not too vague (Part II, supra), and it adequately informs the defendants of the charges against them. Additionally, any danger of surprise is mitigated by the familiarity of the defendants with much of the government's evidence from previous trials, see Part I-A, supra, and by the fact that they have been provided with extensive discovery. Such discovery can obviate the need for a bill of particulars. United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979).
Defendants' request for particulars essentially seeks information regarding the degree of their participation in the conspiracy and the substantive offenses, and they ask for greater details concerning the manner and means by which the conspiracy was allegedly carried out. Given the detail already provided in the indictment and the discovery, defendants' request for a bill of particulars amounts to an effort to procure evidentiary material, which the Court will accordingly deny. United States v. Pollack, supra, 534 F.2d at 970.
The motion to strike surplusage will be granted in part and denied in part; the motion for a bill of particulars will be denied.
Witness and Evidence Lists
The defendants move the Court to direct the government to produce a list of the witnesses and of the exhibits it expects to present at trial. The defendants argue that they need this material "because of the complexity of the charges, the scope of the acts alleged in terms of both duration and distance, and because all of the events are alleged to have occurred at least several years ago, making preparation for trial difficult, if not impossible."
Moreover, they maintain that without an exhibit list, ...