United States v. Ahmad

53 F.R.D. 194, 1971 U.S. Dist. LEXIS 12200
District Court, M.D. Pennsylvania·Decided August 2, 1971·No. Crim. No. 14950·Published·Cited by 14 cases

Opinion

MEMORANDUM OPINION AND ORDER

HERMAN, District Judge.

The indictment concerning which a Bill of Particulars is sought is a document consisting of 15 legal-size pages, plus several pages of exhibits. It is divided into 10 counts.

Count No. I, the conspiracy count, charges that the eight named defendants, on or about January 1, 1970, the exact date being unknown to the Grand Jury, and continuing to on or about January 7, 1971, in the Middle District of Pennsylvania and elsewhere, conspired with four other named persons and with other persons unknown to the Grand Jury to commit certain offenses against the United States, which, in the language of the acts involved, were violations of (a) Title 18 U.S.C. § 1361, willfully injuring and committing depredations against property of the United States; to wit, files, books, records, etc., of the Selective Service System; (b) Title 18 U.S.C. § 2071, willfully and unlawfully removing, mutilating, and destroying files, records, books, etc., of the Selective Service System; (c) Title 50 U.S.C.App. § 462(a), willfully and knowingly interfering with the administration of the Selective Service Act and rules and regulations made pursuant thereto; (d) Title 18 U.S.C. § 844(f), maliciously damaging and destroying by means of an explosive personal and real property of the United States and departments and agencies thereof; (e) Title 26 U.S.C. § 5861(d), willfully and unlawfully possessing firearms (describing them in detail) which were not [197]*197registered in the National Firearms Registration and Transfer Record; (f) Title 18 U.S.C. § 1201, unlawfully seizing, confining, kidnapping, abducting, and carrying away and transporting in interstate commerce a person for ransom or otherwise.

There is set forth in pages 3 and 4 of the indictment in narrative form many of the details surrounding the alleged conspiracy1 and thereafter there follows description of 35 overt acts upon which the conspiracy is based.

For the most part the alleged overt acts include the approximate date of the act, the parties involved where known to the government, the place where the act took place, and the nature of the act. In certain of the acts, however, which we shall hereinafter discuss, more particularity should be given.

Count II charges Elizabeth McAlister and Eqbal Ahmad with the violation of §§ 876 and 2 of Title 18 substantially in •the appropriate language of § 876,2 averring that on or about August 20, 1970 they willfully and knowingly caused to be delivered by the Post Office Department a letter to Philip Berrigan addressed to Patricia Rom, at Lewisburg, [198]*198Pennsylvania, containing a threat to kidnap Henry Kissinger, quoting what appears to be a substantial part of the letter.

Count III charges Philip Berrigan with the violation of the same sections of'Title 18 of the code, substantially in the appropriate language, averring that on August 22, 1970 he willfully and knowingly caused to be delivered by the Post Office Department a letter to Elizabeth McAlister addressed to Grace Marie Russell, at 315 West 86th Street, Apartment 1-C, New York, New York, containing a threat to kidnap Henry Kissinger, and quoting what appears to be a substantial part of the letter.

Count IV charges that Philip Berrigan on or about May 24, 1970, contrary to rules and regulations promulgated by the Attorney General of the United States and without knowledge and consent of the Warden of such institution, caused to be sent from the United States Penitentiary, at Lewisburg, Pennsylvania, written communications for Elizabeth McAlister in violation of §§ 1791 and 2 of Title 18 of the United States Code. This is in substantially the language of § 1791.

Counts VI, VII and X each charge Philip Berrigan with attempting to send, on specific dates, contrary to the rules and regulations, written communications from the said penitentiary to Elizabeth McAlister in violation of Title 18 U.S.C. § 1791. These, likewise, are substantially in the language of the act.

Counts V and VII each charge Elizabeth McAlister with attempting, on specific dates, to introduce into and upon the grounds of the United States Penitentiary, at Lewisburg, Pennsylvania, a package containing written communications for Philip Berrigan in violation of Title 18 U.S.C. § 1791.

Count IX charges both Eqbal Ahmad and Elizabeth McAlister with attempting, on or about August 20, 1970, to introduce into and upon the grounds of the said penitentiary a package containing written communications for Philip Berrigan, contrary to Title 18 U.S.C. § 1791, and substantially in the language of the act.

The defendants seek a multitude of things in their motion for a bill of particulars, averring that the 1966 amendment to Rule 7(f) of the Federal Rules of Criminal Procedure liberalized the granting of such a bill, and citing as recognizing this liberalization: Nesson v. United States, 388 F.2d 603 (1st Cir. 1968); Walsh v. United States, 371 F.2d 436 (1st Cir. 1967); United States v. Jaskiewicz, 278 F.Supp. 525 (E.D.Pa. 1968); United States v. Tanner, 279 F.Supp. 457 (N.D.Ill.1967); United States v. Palmisano, 273 F.Supp. 750 (E.D.Pa.1967); 1 Wright, Federal Practice and Procedure § 129, at 282 (1969), among other authorities. Indeed, on the basis of these authorities, defendants seek a complete script of the government’s case, including, in an indirect fashion, to discover most of the government’s evidence and lists of witnesses, and in some respects seeking many of the things they sought in their discovery motion, which motion was considered in a memorandum opinion filed this date. In light of such sweeping requests for particulars one is tempted to deny all of them on the ground that such requests could be nothing but a fishing expedition. United States v. Dolan, 113 F.Supp. 757 (D.Conn.1953).

We agree, however, with defendants, that the amended Rule 7(f) has liberalized to some extent the granting of the bill of particulars, 1 Wright, Federal Practice and Procedure § 129 (1969); 8 Moore’s Federal Practice-Cipes, Criminal Rules § 7.06 (1970), and cases cited by the text writers.

Generally in a complex case such as this one some particulars are perhaps indicated, United States v. Onassis, 125 F.Supp. 190 (D.D.C.1954), but even under the amended rule a bill of particulars is not a matter of right but [199]*199the grant or denial of such a bill is within the sound discretion of the court.

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United States v. Ahmad, 53 F.R.D. 194, 1971 U.S. Dist. LEXIS 12200 (M.D. Pa. 1971).

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