Court Records

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UNITED STATES OF AMERICA,	)
Plaintiff	)	NO. 75-26-CR-3
	)
VS.	)	ORDER ON DEFENDANT'S REMAINING
	)	PRE-TRIAL MOTIONS
JEFFREY R. MACDONALD,	)
Defendant	)

By this motion the defendant seeks transcripts of his own grand jury testimony, the testimony of all expert witnesses before the grand jury and the testimony of all other witnesses before the grand jury. The government has heretofore furnished the defendant a transcript of his own grand jury testimony, and that phase of the motion is now moot. The court having thoroughly considered defendant's motions, the briefs and argument of counsel and the results of the court's own research, is of opinion that the motion ought to be and is hereby denied in the discretion of the court and on authority of United States V. Anderson, 481 F.2d 685 (4th Cir. 1973).
By this motion the defendant seeks in effect to obtain a copy of the government's entire file including photographs, all tangible evidence and exhibits of every kind and description. In response to the motion the government has agreed to make available to the defendant in advance of the trial or at the trial pursuant to the provisions of the Jencks Act, 18 U.S.C. S 3500, certain portions of the evidence sought to be discovered by the motion. Except as thus agreed by the government, the court is of opinion that the motion is overly broad and should be and is hereby denied in the discretion of the court. United States v. Anderson, 481 F.2d 685 (4th Cir. 1973). The court reserves the right to modify this ruling should it appear later in the proceedings that the ends of justice require such action.
In this motion defendant alleges that the appearance before the grand jury of Victor J. Woerheide, Esq., an attorney for the Department of Justice, was unlawful and in violation of the provisions of 28 U.S.C S 515 (a), F.R. Crim. P., Rule 6 (d), and the rights of the defendant under the Fourth, Fifth, and Sixth Amendments of the Constitution. The court finds that Mr. Woerheide's appearance before the grand jury was duly and lawfully commissioned by the Attorney General of the United States, and the motion as based on this ground is denied on authority of United States v. Weiner, 392 F.Supp. 91 (N.D.Ill 1975). See-also In re Persico, 44 L.W. 2011 2nd Cir., June 19, 1575).

From the evidence offered the court finds no improper conduct on the part of the government attorneys during the questioning of defendant before the grand jury and the motion as based on this ground is denied.

The defendant has not offered evidence to sustain his allegation that the grand jury received and considered the testimony of improper witnesses, and the motion as based an this ground is denied.

From the evidence offered the court finds that the attorneys for the government did not intentionally and falsely misstate the scope and objectives of the grand jury investigation in order to unlawfully induce the testimony of the defendant and other persons, and the motion as based on this ground is denied.
In this motion defendant alleges that pursuant to Article 32 of the Uniform Code of Military Justice a duly appointed military officer conducted "Judicial proceedings" during the months of June through September of 1970 including four full weeks of testimony during which time the government presented all of the evidence known to it bearing on the crimes in question; that at the conclusion of these proceedings the charges against the defendant, Jeffrey R. MacDonald, were dismissed as being without foundation; and that in October, 1970, the Commanding General charged with the final authority in the matter "entered an order dismissing finally and with prejudice the charges against the defendant." On the basis of these proceedings defendant contends that the January 1975 grand jury indictment is violative of his double jeopardy and due process of his rights under the Fifth Amendment and that "recharging of the defendant under the circumstances described above is barred by the doctrine of collateral astoppel." In their briefs the parties have cited no case determining the exact question thus raised nor has the court's own research revealed a case directly in point. The recent case of Breed v. Jones,_ U.S. _, 95 S.Ct. 1779, 43 L.W. 4644 (May 27, 1975), cited and relied upon by defendant, is clearly distinguishable. This court is of opinion that jeopardy did not attach by reason of the Article 32 investigation proceedings conducted by the military and that the government is not collaterally estopped by reason of those proceedings. It is not perceived how the due process rights of the defendant have been prejudiced by the proceedings, and defendant's notion must therefore be and is hereby denied.
In this motion the defendant alleges that during the course of the Article 32 proceedings at Fort Bragg in 1970 while he was under house arrest and confined to his quarters at Fort Bragg government agents "repeatedly and unlawfully entered the defendant's rooms, conducted general searches, and examined, read and copied papers, documents and materials pertaining to the defense of the defendant" and that during that time and thereafter illegal wiretaps were placed upon telephones used by the defendant. The government has categorically denied all such allegations under oath. Even if defendant's allegations and his evidence in support thereof are accepted as true, he in unable to point to any information or evidence gained by the government as a result of such alleged unlawful activity, and defendant's motion is therefore denied. This ruling is made without prejudice to defendant's rights to renew his motion with respect to any illegally obtained evidence which the government may seek to introduce upon the trial of the case.
By this notion defendant seeks to suppress as evidence against him "all items seized and the fruits thereof of searches and seizures from the graves of Colette and Kimberley MacDonald" following the exhumation of the bodies of these two murder victims by agents of the government in August or September, 1974. Upon consideration of the evidence bearing on the question raised by this motion and the briefs and argument of counsel the court is of opinion that the graves of Colette and Kimberley MacDonald were lawfully opened at the instance of the government; that the defendant does not have standing to contest the opening of the graves; and that they were not opened in violation of the applicable statutes of New York, the state in which the exhumations occurred. The defendant's motion is therefore denied.
By this motion the defendant takes the government to task for pre-indictment delay amounting to almost five years between the date of the date of the crime on February 17, 1970, and the return of the indictment by the grand jury on January 25, 1975. The government has undertaken to justify the delay on the grounds that "because of government bureaucracy" the facilities of the crime laboratory of the Federal Bureau of Investigation was not brought into the case until the grand jury was finally convened in August of 1974. The right to a speedy trial under the Sixth Amendment does not arise until a person has been "accused" of a crime, and in this case this did not occur until the indictment had been returned. On the authority of United States v. Marion, 404 U.S. 307 (1971), the motion of defendant is denied.

In connection with this motion the defendant also moved to depose certain officials of the department of Justice, but since that time the court is informed that the defendant has filed an action under the Freedom of Information Act in the District of Columbia for the purpose of obtaining further evidence, and defendant's motion for leave to conduct further discovery in this action is denied.


F. T. Dupree, Jr.
UNITED STATES DISTRICT JUDGE

July 28, 1975