United States v. Cammisano

413 F. Supp. 886
CourtDistrict Court, W.D. Missouri
DecidedJune 2, 1976
Docket75 CR 52-W-1
StatusPublished
Cited by13 cases

This text of 413 F. Supp. 886 (United States v. Cammisano) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cammisano, 413 F. Supp. 886 (W.D. Mo. 1976).

Opinion

MEMORANDUM AND ORDER

I.

JOHN W. OLIVER, District Judge.

On May 10, 1976, we entered an interlocutory order which directed production of particular documentary evidence for this Court’s in camera inspection in connection with a pending motion to dismiss based in part upon alleged selective and discriminatory prosecution grounds. 1 The government’s response to that order was filed May 21, 1976. That response expressly refused to produce for this Court’s in camera examination the following documentary evidence:

3. All correspondence, inter-department communications, intra-department communications and referral documents *888 relating to the particular violations alleged in this prosecution which were made, retained and/or transmitted within the Department of Agriculture, within the Department of Justice and between them, together with all reports attached to such documents, correspondence and communications except as have already been provided defendants with notations as to which items have been so provided.
4. All correspondence, inter-department communications, intra-department communications and referral documents, together with all supporting documents and reports, relating to any violations of Section 601ff, Title 21, U.S.C., which occurred in the Western District of Missouri during the period January, 1972 to and through December, 1974, and which were made, retained and/or transmitted within the Department of Agriculture within the Department of Justice and between them, whether such correspondence, communications and documents resulted in prosecution or not.
5. All correspondence, inter-department communications, intra-department communications and referral documents, ' together with all supporting documents and reports relating to any violations of Section 601ff, Title 21, U.S.C., which occurred in the United States for the period January, 1972 to and through December, 1974, and which were made, retained and/or transmitted within the Department of Agriculture, within the Department of Justice and between them, whether such correspondence, communications and documents resulted in prosecution or not. 2

The case now pends on defendants’ motion to dismiss based upon the government’s refusal to comply with this Court’s order of May 10, 1976. We have carefully considered all briefs in support and in opposition to the pending motion, including but not limited to the government’s suggestions in opposition filed May 28, 1976. Defendants’ motion will be granted for the reasons we shall now state.

II.

The government bases its refusal to comply with this Court’s order on the notion that the defendants have not “borne” the burden imposed by United States v. Berrios, 501 F.2d 1207 (2nd Cir. 1974). That notion rests upon the untenable assumption that the government is under duty to comply only with court orders which it believes should be entered. On page 6 of our memorandum opinion of May 10, 1976, we expressly rejected the government’s contention in regard to the nature of the question then presented to the Court for its determination. We there stated:

The question presently before this Court is not, as the government suggests, whether defendants have presently established, within the language of United States v. Berrios, 501 F.2d 1207,1211 (2nd Cir. 1974), upon which the government expressly relies, whether “others similarly situated have not generally been proceeded against” and that, under the circumstances, defendants were, in fact, “singled out for prosecution.”

Rather, as we concluded in our May 10, 1976 Memorandum Opinion, “the quite narrow question presented by defendants’ pending discovery motion is whether defendants have made a sufficiently particularized showing to require this Court to enter an order requiring the government to make further production for this Court’s in camera inspection.”

Jurisdiction and power to answer that question are vested in this Court rather than in the Special Attorneys in charge of the prosecution of this case. The government’s reading of Berrios does not afford a proper ground for the government’s refusal to comply with this Court’s order of May 10, 1976. In Berrios, the Second Circuit merely indicated that if it had been sitting as the trial court, it would have required some *889 thing more than the affidavit of defendant’s counsel to support an order for further discovery. 3 The Second Circuit stated that “Upon the meager preliminary showing made here, we doubt whether we would have granted a hearing or ordered the production of evidence for such a hearing, since Berrios appears frankly to have embarked upon a fishing expedition.” The Second Circuit, however, recognized that it was not sitting as a trial court and that, as an appellate court, it was bound by principles stated in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). The Second Circuit therefore properly concluded that “Although we might have proceeded differently in this case, we cannot on this record say that Judge Judd abused his discretion in ordering the government to turn over to him for ‘study’ its memorandum recommending prosecution.”

The Court of Appeals in Berrios vacated Judge Judd’s production order only because it concluded that the trial judge “went too far” when he ordered direct release to the defendants of all portions of the material which he ordered to be produced without first determining whether the data produced would tend to establish the elements of the defendants’ defense of selective and discriminatory prosecution.

This Court, of course, has not reached; indeed, it is unable to reach, the question of whether or not the data which we have ordered produced for our in camera examination may or may not tend to establish the elements of the defendants’ alleged defense of selective and discriminatory prosecution. We have, however, found and concluded from the data presently before the Court that the defendants have made a sufficiently particularized showing to require the government to produce additional data for this Court’s in camera examination, in order that the question of whether such data may or may not support the defendants’ alleged defense of selective and discriminatory prosecution be determined on the basis of fact, rather than conjecture and speculation. We believe that defendants are entitled to no less, as a matter of due process.

This Court has been required, as the Seventh Circuit en banc was required in United States v. Falk, 479 F.2d 616, 617 (7th Cir.

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413 F. Supp. 886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cammisano-mowd-1976.