Full opinion text
OPINION HERLANDS, District Judge: The indictment herein was filed on July 20, 1961. On April 23, 1964, defendant Birrell surrendered; pleading was adjourned at his request. On May 8, 1964, counsel was assigned to defendant by the Court; defendant pleaded not guilty. He was remanded to jail; at his request no bail was set. On July 1, 1964, defendant moved for sixty days additional time for the filing of pretrial motions. On July 6, 1964, Judge Bryan granted an extension of time for the making of all motions to September 21, 1964. On September 4, 1964, defendant moved for (1) dismissal of the indictment on the ground of taint and the production of grand jury minutes in connection with this motion; (2) dismissal of certain counts of the indictment or an order compelling the Government to elect one of the counts for trial; (3) striking certain allegations of the indictment as prejudicial surplusage; (4) a bill of particulars; and (5) discovery and inspection. As to the foregoing motions, “(1)” was denied by Judge Wyatt on June 11, 1965. United States v. Birrell, 242 F.Supp. 191, 205 (S.D.N.Y.1965); “(2)” was denied by this Court on April 3, 1967. United States v. Birrell, 266 F.Supp. 539 (S.D.N.Y.1967); “(3)” was granted by this Court on the Government’s consent; “(4)” was partially granted by this Court on January 19, 1967. United States v. Birrell, 263 F.Supp. 113 (1967); and “(5)” was, on September 21, 1964, marked off the calendar on consent of all counsel subject to restoration; was subsequently revived on August 29, 1967 and is (as supplemented by a demand for sixteen additional items for discovery and inspection) now before the Court for decision. On September 9, 1964, defendant moved to suppress files seized on July 24, 1959 and on August 22, and 24, 1959. This motion was decided by Judge Wyatt in June and July, 1965. United States v. Birrell, 242 F.Supp. 191 (1965); 243 F.Supp. 36 (1965); 243 F.Supp. 38 (1965). On September 27, 1966, Chief Judge Sugarman assigned the case to this Court for all purposes. Defendant then moved, on October 28, 1966, (1) to disqualify this Court under 28 U.S.C. § 144; (2) for an order directing the United States Attorney to file an inventory of the files seized on August 22 and 24, 1959; (3) for renewal and argument of the motions filed September 4, 1964 that had not yet been heard and decided. As to these motions, “(1)” was denied by this Court on January 9, 1967. United States v. Birrell, 262 F.Supp. 97 (S.D.N.Y.1967); “(2)” was denied by this Court on May 23, 1967. United States v. Birrell, 269 F. Supp. 716 (S.D.N.Y.1967); and “(3)”, involving certain motions made originally on September 4, 1964, was dealt with as already set forth above in detailing the disposition of the September 4, 1964 motions. Of those motions only the motion for discovery and inspection (as supplemented) remains undecided. On February 27, 1967, defendant moved for a pretrial evidential hearing to probe the genesis and evolution of the Government’s prospective trial proof in order to have the Government demonstrate that its proposed trial evidence is uncontaminated by the suppressed records and clues or leads derived therefrom. The motion was denied by this Court on May 23, 1967. United States v. Birrell, 269 F.Supp. 716 (S.D.N.Y.1967). On May 26, 1967, William J. Brennan, III, Esq., then defendant’s assigned counsel, requested to be relieved of his assignment. Over the Government’s opposition (Minutes of Pretrial Hearing, pp. 190, 194) the Court, on June 16, 1967, relieved Mr. Brennan and designated Charles N. Brower, Esq. as assigned counsel. Mr. Brennan agreed to make himself available to Mr. Brower for conference and consultation “so that Mr. Brower will be brought up to date not only on the proceedings themselves as they maybe reflected in the court reeords, but, more importantly, brought up to date in terms of Mr. Brennan’s theories of the defense, considerations of tactics and strategy, which are important in any litigation, and any other matters that would assure to Mr. Birrell that he should have the most effective representation both on the facts and on the law.” (Minutes of Pretrial Hearings, p. 222). In addition, for the purpose of assuring the most effective representation of defendant and to aid Mr. Brower in discharging his duties, the Court appointed Anthony F. Marra, Chief of the criminal defense staff of The Legal Aid Society, to serve as counsel with Mr. Brower in' behalf of defendant. On June 16, 1967, the Court granted defense counsel until August 29, 1967 to make whatever motions they thought appropriate or necessary and set the case down for trial on December 4, 1967. (Minutes of Pretrial Hearings, pp. 228, 234, 242, 261). In a series of motions made returnable on August 29 and September 5, 1967, defendant applies for the following relief: (1) the disqualification of the Court from proceeding further in indictments 61 Cr. 200, 61 Cr. 820, 61 Cr. 903 and 62 Cr. 307 because of personal bias or prejudice (28 U.S.C. § 144); (2) a preliminary injunction restraining the United States Attorney, C. E. H. McDonnell, Trustee in Chapter X Reorganization of Equitable Plan Company and George C. Levin, Esq., Trustee in Chapter X Reorganization of Swan-Finch Oil Corporation, and all other persons “from entering, removing documents from, making photocopies of or in any other manner whatsoever using any of the files and other property seized from defendant Lowell M. Birrell on August 22 and 24, 1959, and presently lodged in Room 501 of * * * [the] United States Courthouse * * * ”; (3) a pretrial hearing for the return of property unlawfully seized from defendant and suppressed for use as evidence against the defendant by orders of Judge Wyatt, June 11 and 25, 1965; and at such hearing to require the return of all such property “together with all copies, transcriptions, abstracts, excerpts, notes and other memorializations of such property * * * ” and an itemized list of all property returned; (4) an order pursuant to Fed.R.Crim. P. 12(b) and 48(b) dismissing the indictment in 61 Cr. 692 on the grounds that: “(a) some of the defendant’s property which was suppressed by the orders of the Honorable Inzer B. Wyatt, United States District Judge, dated June 11 and 25, 1965 has been lost, destroyed, mutilated, removed or otherwise made unavailable to defendant, and the remaining such property is in such a state of disorder, disarray and confusion that as a matter of law it is impossible for defendant to prepare for trial; (b) as a matter of law the Government cannot establish that the evidence which it intends to introduce at the trial of this indictment is not tainted by any of the aforesaid suppressed property; and (c) defendant has been deprived of his right to a speedy trial”; (5) an order pursuant to Fed.R.Crim. P. 6(b) and 12(b) dismissing the indictment in 61 Cr. 692 on the grounds that the grand jury was improperly selected, as Negroes, Puerto Ricans and others of lower socio-economic status were systematically and intentionally excluded from the array; (6) an order pursuant to Fed.R.Crim. P. 15 permitting defendant to depose American Leduc Petroleums Limited and the Toronto Stock Exchange in connection with 61 Cr. 692; (7) an order pursuant to Fed.R.Crim. P. 15 and 17: (a) precluding the use of evidence in 61 Cr. 692 (American Leduc) that defendant was a fugitive from justice. Should such evidence be used, defendant seeks to introduce as evidence certain depositions on file with the Court and to depose certain additional named persons. (b) barring evidence which tends to show that acts alleged in indictment 61 Cr. 692 were part of a common plan or scheme; and (e) requiring the Government to elect those counts of indictment 61 Cr. 692 which will actually be tried against defendant; (8) orders pursuant to Fed.R.Crim.P. 16 and 17(c) permitting defendant’s discovery and inspection of thirty-two enumerated items in connection with 61 Cr. 692. The many and diverse issues raised by these motions necessitate a recital of the relevant factual background as disclosed by the motion papers. On April 15,1957, a civil action was instituted in this Court by the Securities and Exchange Commission against Birrell and twenty-three other defendants. Birrell was subpoenaed to testify on October 7, 1957, but did not appear. Instead, defendant left the United States sometime during October 1957 and did not return until April 23, 1964. Sometime during 1957, approximately forty-six filing cabinets containing from one million to two million documents were moved at defendant’s request from New York City to Teaneck, New Jersey. Allegedly the files contained personal papers of Birrell, business records of the law firm of Birrell and Larson, and records of various corporations including Swan-Finch Oil Corporation and Equitable Plan Company. These documents were moved again early in 1959 to Bucks County, Pennsylvania, where they were placed in the custody of Jonathan D. Dunn, an attorney for the defendant. In January 1958, the trustees in bankruptcy of Swan-Finch Oil Corporation and attorneys for the trustee in bankruptcy of Equitable Plan Company began searching for the records of their corporations. Finally, on August 20, 1959, the location of the records was revealed at an ancillary proceeding in bankruptcy pending in this Court. A search warrant was issued on August 22, 1959, based on an affidavit of an attorney in the ancillary proceeding. The affidavit of a postal inspector supported a second search warrant issued on August 24, 1959. Both warrants were executed and returned on the respective issue dates. The seized records were first placed in the custody of the United States Marshal for the Eastern District of Pennsylvania. Sometime after November 10, 1959, they were deposited in the custody of the Clerk of the Court for the Southern District of New York. During this period of approximately three months, the records were neither inspected nor disturbed. The removal of the records from the Eastern District of Pennsylvania was pursuant to two Court orders. The first, dated October 16, 1959, and filed on October 26, 1959, was issued by Judge Palmieri of the Southern District of New York. Judge John W. Lord of the Eastern District of Pennsylvania issued the second order, dated' November 10, 1959. These orders directed the Marshal of the Eastern District of Pennsylvania to deliver the records to the custody of the Clerk of the United States Court for the Southern District of New York, subject to the further order of this Court. From November 1959 until July 1961, the files remained in the custody of the Clerk of this Court. The records were inspected and photocopied, pursuant to court order, by various attorneys in the above-mentioned bankruptcy proceedings, representatives of the Attorney-General of the State of California, and the District Attorney of the City of Los Angeles. However, no inspection or photocopying of the records by any representative of the United States Attorney for the Southern District of New York occurred during this period. In July 1961, the records were transferred from a file room in the Clerk’s office to the file room of the United States Attorney (Room 501). Judge Palmieri approved the transfer in order to insure the completeness and maintain the integrity of the files. Custody of the records, however, remained with the Clerk of the Court. Representatives of the United States Attorney’s Office and investigators from the Securities and Exchange Commission then began inspection and inventory of the documents. In 1961 and 1962, six federal indictments were returned against defendant. These charges include, inter alia, violations of the Securities Act of 1933 (15 U.S.C. § 77a et seq.), the Securities Exchange Act of 1934 (15 U.S.C. § 78a et seq.), the mail fraud statute (18 U.S.C. § 1341), and the transportation of stolen property in interstate commerce (18 U.S. C. § 2314). Bench warrants for the arrest of defendant, issued as to each indictment, were executed upon Birrell’s return to the United States on April 23, 1964. Birrell was arraigned on April 23, 1964. As the fixing of bail was adjourned at defendant’s request, he was placed in custody. On February 11, 1965, bail was set at $150,000 by Judge Weinfeld of this Court. On June 28, 1965, bail was reduced to $50,000. It was reduced to $15,000 on July 27, 1965; and defendant, after posting this amount, was released on August 4, 1965. Late in 1964, defendant moved for suppression and return of the records seized on August 22 and 24, 1959. On June 11, 1965, Judge Wyatt ordered the seized records suppressed for use as evidence against defendant, ruling that the affidavits underlying the search warrants were insufficient to establish probable cause. United States v. Birrell, 242 F. Supp. 191, 201 (S.D.N.Y.1965). By subsequent order, Judge Wyatt ordered restored to defendant those records of which Birrell could establish ownership. The Court expressed the opinion that the burden of proof was properly placed on defendant because: “(a) movant knows more about the property than anyone else and (b) he delayed more than five years in making the present motion.” United States v. Birrell, 243 F.Supp. 38, 41 (S.D.N.Y.1965). Pursuant to Judge Wyatt’s order, defendant moved, on October 25, 1965, for the return of the suppressed property. This motion was adjourned for two weeks in order that defendant, chapter X trustees in bankruptcy of Swan-Finch and Equitable Plan, and the Government might confer and agree on the return of the files. Eventually, the motion was referred to Chief Judge Ryan of this Court, who denied it on December 15, 1965, because defendant had disregarded the procedure outlined in Judge Wyatt’s order. The Government moved, on December 2, 1965, for the appointment of a single Judge to handle 61 Cr. 692, the American Leduc indictment, pursuant to Rule 2 of General Rules of United States District Courts for the Southern and Eastern Districts of New York. Chief Judge Ryan announced that all but emergency matters should be deferred pending the appointment of a Rule 2 Judge. On September 27, 1966, Judge William B. Her-lands was named Rule 2 Judge for the American Leduc indictment. 1. MOTION TO RECUSE Defendant moves, pursuant to 28 U.S. C. § 144, to disqualify District Judge William B. Herlands from criminal eases 61 Cr. 200, 61 Cr. 820, 61 Cr. 903 and 62 Cr. 307 (and possibly New York County Supreme Court indictment 2490-59) on the ground that Judge Herlands (hereinafter “the Court”) has a personal bias or prejudice against defendant. Motions of defendant in these actions seeking the return of property suppressed as evidence, pursuant to the July 1, 1965 order of Judge Wyatt, were referred to the Court on August 28, 1967. According to defendant, the first sentence in a prior opinion in an unrelated civil suit shows bias or prejudice on the part of the Court. In Re Equitable Plan Co., 185 F.Supp. 57 (S.D.N.Y.) modified, Ings v. Ferguson, 282 F.2d 149 (2d Cir. 1960), disposing of a motion to quash subpoenas duces tecum, begins as follows : “This action is another chapter in the attempt to unravel the affairs and make whole the victims of Lowell Birrell, presently a fugitive from justice under indictment for crimes arising out of his financial activities.” (185 F.Supp. at 58) This same contention was the basis of a prior motion by defendant to disqualify the Court from presiding over 61 Cr. 692, •the American Leduc indictment. United States v. Birrell, 262 F.Supp. 97 (S.D. N.Y.1967). The Court denied this request on the grounds (1) that defendant had overlooked the statutory requirement of stating “the facts and the reasons” for his belief that bias or prejudice existed, presenting, instead, mere conclusions; and (2) that the Court had simply expressed “relevant judicial opinion” and showed no extra-judicial or personal bias or prejudice. The single quoted sentence, the Court pointed out, occurred “in a totally extraneous case in which the Court summarized the relevant context of the dispute before it, in reliance upon the then uncontroverted record.” United States v. Birrell, 262 F.Supp. 97, 100 (S.D.N.Y.1967). The rationale of the Court’s pri- or opinion applies to the instant motion. The present moving affidavit is as inadequate as defendant’s former affidavit. The Court is aware of its duty not to recuse itself when there is no sound reason to do so. In the absence of persuasive circumstances calling for recusation, this obligation is even greater when inordinate delay in the administration of criminal justice would result from such a disqualification. Such a result would occur here because precisely the same relief demanded by these motions —the return of the suppressed property —is requested in an identical motion in the American Leduc case, which the Court is required to decide. Defendant also cites as evidence of bias certain remarks made by then Assistant United States Attorney Gerald Walpin in the sentencing proceedings of defendants in United States v. Garfield et al., 61 Cr. 360 before the Court in 1962 and 1963 (Defendant’s Affidavit of Prejudice, pp. 3-6). There is no claim that any opinions or statements about defendant were made by the Court; nor is there any claim that the Court acquiesced in or agreed with any statments or opinions made by the Government in these proceedings. Rather, it appears that defendant contends that the Court’s hearing of these remarks is sufficient to show personal bias or prejudice. Mere exposure to unfavorable remarks or statements made in the course of adversary proceedings is not enough to show bias or prejudice on the part of the Court against defendant. Were that so, few judges could escape disqualification. Cf. United States v. Weldon, 384 F.2d 772, (2d Cir., Oct. 30, 1967). Defendant finally contends that certain conduct of the Court after it was assigned as the all purpose judge herein indicates personal bias or prejudice (Defendant’s Affidavit, pp. 7-9). Defendant points to the Court’s action at the pretrial conference of October 14, 1966, scheduling hearings on numerous pretrial motions despite notification that defendant was filing an affidavit of prejudice. The efforts of the Court to expedite the trial herein does not evidence bias or prejudice. It is the trial judge’s duty to prevent a defendant from utilizing an affidavit of prejudice for the sole purpose of delaying and otherwise unjustifiably embarrassing the administration of justice. United States v. Murphy, 19 F.Supp. 987, 988 (W.D.Mo.1937). See also Rosen v. Sugarman, 357 F.2d 794, 797-798 (2d Cir. 1966) (Friendly, J.). Defendant also points to certain statements of the Court as indications that these motions would be decided unfavorably to him. Whether examined singly or together, these statements are legally insufficient to show personal bias or prejudice. Defendant repeatedly submits quotations out of context and ignores the requirement that “[t]he fair meaning of any remark must be interpreted in the light of the context in which it is uttered”. Foster v. Medina, 170 F.2d 632, 633 (2d Cir. 1948) cert. denied, 335 U.S. 909, 69 S.Ct. 412 (1949). Moreover, disqualification based on alleged bias and prejudice cannot be predicated on tentative opinions of the Court based on the papers and testimony before it. For the reasons heretofore stated, defendant’s motion is hereby denied. So ordered. 2. MOTION FOR PRELIMINARY INJUNCTION Defendant seeks to enjoin the United States Attorney, the Chapter X Trustees of Swan-Finch Oil Corporation and Equitable Plan Company and all other persons from entering or making any use whatsoever of the files seized on August 22 and 24, 1959, pending the determination of a motion for the return of said property. (Motion number 3, infra.) The Government is precluded by Judge Wyatt’s suppression order of June 11, 1965 from offering any of these files into evidence. On the other hand, the trustees are not subject to any such retraint. Indeed, they are using the documents in various civil proceedings, including one now pending in this Court in which Lowell Birrell is named as a party defendant. McDonnell v. American Leduc et al., Civ.No. 137-160. This latter litigation is now actively in the pretrial stage; and attorneys of the Equitable Plan trustee are marking as exhibits photocopies of documents in the suppressed files and using them in the deposing of prospective witnesses. Defendant asserts that the injunctive relief sought is necessary in order to prepare properly for trial, to preclude the prosecution from a cumulative means of discovery beyond that provided for in the Federal Rules of Criminal Procedure, to safeguard his Fifth Amendment privilege against self-incrimination, and to preserve the Court’s ability to grant the ultimate relief demanded — return of the suppressed property. The present motion involves the reconciliation of important competing interests and policies: the right of a defendant in a criminal case to a fair and impartial trial vis-a-vis the right of the Chapter X trustee, representing many large and small creditors, to vindicate pecuniary and economic rights in an expeditious manner. The Court is sensitively aware that its duty to insure the fairness of the criminal proceedings before it demands adherence to standards higher than those required by due process, McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and even the “probability of unfairness” is to be prevented, In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1954). The ultimate issue before the Court is whether a practical accommodation of the rival interests and policies can be achieved; or whether vindication of the rights of the defendant justifies and compels resort to the drastic remedy of an inter-court injunction. The power of a criminal court to enjoin concurrent civil proceedings involving the same subject matter was recognized in United States v. Simon, 262 F.Supp. 64 (S.D.N.Y.1966), rev’d, 373 F.2d 649 (2d Cir. 1967), cert. dismissed, sub nom. Simon v. Wharton, 386 U.S. 1030, 87 S.Ct. 1485, 18 L.Ed.2d 591 (1967). A civil action for damages had been brought in the Eastern District of New York by a reorganization trustee against an accounting firm alleging a conspiracy to despoil assets. Subsequently, an indictment based on the same transaction was returned in the Southern District of New York against certain named members of the firm charging them with violations of the Securities Exchange Act of 1934. The defendants in the criminal proceeding moved to enjoin the trustee from taking their depositions in the civil action until the completion of the criminal trial. The District Court, in enjoining the taking of depositions for a ninety-day period, cited two authorities: the “All Writs” Act and the federal criminal court’s inherent equity jurisdiction or supervisory power over the administration of criminal justice. Since the scope of pretrial discovery is much broader in civil than in criminal proceedings, the Court found that the deposing of the defendants would enable the Government to obtain “a full disclosure of the . . . [defendants’] ease while relying on the rules to prevent disclosure of its own * * *” (262 F.Supp. at 73-74). Therefore, the probability of unfairness in the criminal trial justified the resort to injunctive relief. In reversing the order of the District Court, the Court of Appeals for the Second Circuit assumed, without deciding, that a federal criminal court has power to issue an inter-court injunction. The Court, however, found this case inappropriate for such relief because it was not shown that civil discovery would interfere with the criminal trial or the preparation of the defense. The defendants’ rights were protected by the availability of the privilege against self-incrimination in the civil proceedings. We recognize that, in appropriate circumstances, a federal criminal court has the power to enjoin concurrent civil proceedings in order to prevent unfairness in the criminal trial. The inherent power of a federal court to supervise the administration of criminal justice and the explicit mandate of the Federal Rules of Criminal Procedure provide sufficient bases for such relief. Under Fed.R.Crim.P. 57(b), where “no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute”. Moreover, to prevent unfairness in criminal proceedings, a federal court clearly has the power to affect persons not party to the criminal action. Rea v. United States, 350 U.S. 214, 217, 76 S.Ct. 292, 100 L.Ed. 233 (1956); Go-Bart Importing Co. v. United States, 28 U.S. 344, 355, 51 S.Ct. 153, 75 L.Ed. 374 (1931); In re No. 32 East Sixty-Seventh Street, 96 F.2d 2, 153, 157 (2d Cir. 1938). See also, Ex parte Lennon, 166 U. S. 548, 17 S.Ct. 658, 41 L.Ed. 1110 (1897); City of Fresno v. Edmonston, 131 F.Supp. 421, 427 (S.D.Cal.1955). The extreme remedy of an inter-court injunction should be employed only “in exceptional circumstances”. Interference with proceedings in another court should be avoided where other adequate remedies are available. United States v. Simon, 373 F.2d 649, 653 (2d Cir.), cert. dismissed, sub nom. Simon v. Wharton, 386 U.S. 1030, 87 S.Ct. 1485 (1967); D'Ippolito v. American Oil Co., 272 F.Supp. 310 (S.D.N.Y. Aug. 18, 1967). Furthermore, in the absence of prejudice to the criminal defendant, the Court must insure the right of the trustee to litigate his civil action in an unhindered and expeditious manner. Defendant relies on United States v. Simon, supra and United States v. American Radiator & Standard Sanitary Corp., 272 F.Supp. 691 (W.D.Pa. August 8, 1967) as authority for the issuance of injunctive relief in the instant case. We do not agree. The present case is factually distinguishable because of an illegal search and seizure. Since the seized files — the subject matter of the present motion — are suppressed for use as evidence against the defendant, all clues and leads derived therefrom are likewise inadmissible as fruit of the poisonous tree. Therefore, any evidence adduced by the trustee through the use of the suppressed files in the civil suit is inadmissible in the criminal trial. The inability of the Government to utilize evidence so obtained by the trustee invalidates defendant’s claim that his privilege against self-incrimination is or may be violated. The charge that the United States Attorney. is obtaining a cumulative means of discovery is likewise rejected. While in Simon and American Radiator, the prosecution might use civil discovery to obtain disclosure of the defendant’s case, no such unfairness occurs in the instant case. Defendant’s bare assertion that “Insofar as the trustees * * * proceed to ferret out documents from defendant Birrel’s files and to conduct investigations and formal or informal examinations of witnesses * * * evidence is being amassed which is and has been available to the government prosecutor”, (Memorandum of Law in Support of Defendant’s Application for Order to Show Cause With Stay, p. 4), is unsupported by the record before this Court. There is no factual showing of evidence received by the Government from the trustees. Indeed, the United States Attorney has repeatedly avowed his intention to rely on independently obtained, untainted evidence. In the absence of any proof to the contrary, we must accept this oft-repeated representation as true, at least at this juncture. Defendant complains proper trial preparation will be impossible unless all other parties are temporarily enjoined from removing, photocopying and using the impounded documents. He asserts that during the eight-year sojourn of these files in the United States Courthouse many documents have been lost, mutilated and misplaced. He seeks a protective order to preserve the integrity of the files and to allow him an opportunity to use them. Moreover, he argues that the continuation of the status quo will prevent the Court’s granting the ultimate relief requested — the return to defendant of “all original documents and copies thereof”. (Defendant’s Memorandum, pp. 7-8.) Whether documents in the impounded files have been lost or damaged is a question we need not decide here. The moving papers are replete with conflicting statements and contentions on this issue. In any event, prohibiting the trustees, the only persons presently examining the files, from temporarily removing, photocopying and using the documents now cannot undo any alleged past damage. The Court is unpersuaded that proprietary or constitutional rights of defendant are being undermined by the trustees’ continued access to and use of the files pending decision on the motion for return of property (Number 3, infra.) It is undisputed that defendant has had and continues to have untrammeled access to the impounded files to prepare his defense. He has refrained from using them in the exercise of his own free choice. The trustees, on the other hand, would be seriously prejudiced if injunctive relief were granted. In contrast to the situation in United States v. Simon, supra, the trustees’ civil litigation is in the advance pretrial stages. Photocopies of many documents from the impounded files have already been marked as exhibits in that action. Enjoining use of the documents would delay the civil litigation. This court will not impair the jurisdiction of another coordinate court except “in exceptional circumstances”, not apparent here. In the absence of actual or probable prejudice to defendant, neither logic nor precedent supports emasculation of the rights of civil litigants and the undermining of jurisdiction of a sister federal district court. One must note that in United States v. Simon, supra, the case upon which defendant relies so heavily, the defendants sought sole custody of their own files in order to properly prepare for trial. In rejecting the defendants’ demand, the District Court found “no likelihood that the defendants’ preparation for trial will be unduly hampered by the * * * continuation of the present arrangement with respect to the Lybrand documents”. (262 F.Supp. at 78.) While in Simon, the documents were the property of the defendants, in the instant case, the respective proprietary rights of the defendant and those of Chapter X trustees in the impounded files have not yet been adjudicated. Finally, the Court is not persuaded that Judge Wyatt’s suppression order expunged the jurisdictional basis for the several access orders to the impounded files granted since October 16, 1959 by Judge Palmieri. On the contrary, Judge Wyatt’s order of July 1, 1965, specifically provides that: “a. the property will remain in the custody of the Clerk of this Court, subject to further order of this Court, as provided in the order of this Court made by Judge Palmieri under date of October 16, 1959 * * * ”. United States v. Birrell, 243 F.Supp. 38, 41 (S.D.N.Y.1965). This order, representing the law of the case, is binding on us. Defendant’s motion for injunctive relief is hereby denied. So ordered. 3. MOTION FOR RETURN OF DOCUMENTS Defendant demands a pretrial evidential hearing to adjudicate ownership of the documents in the impounded files and to return to him those papers to which he can demonstrate that he has a possessory interest. The forty-six cabinets and other files are now in the custody of the Clerk of the Court and, for purposes of storage, are located in Room 501 of the Courthouse, a room also used by the United States Attorney for keeping files. Defendant asserts that, if the documents continue to be retained in their present quarters, he will be unable adequately to prepare for trial and that various of his constitutional rights will be prejudiced, including, inter alia, the privilege against self-incrimination (Fifth Amendment), the right to due process of law (Fifth Amendment) and the right to the assistance of counsel (Sixth Amendment). The Government does not object to the return of any of the impounded documents, except for those previously marked as court exhibits in other proceedings. The Government firmly reiterates that it will not use upon the trial any of the suppressed documents nor any clues, leads or information derived from such documents. It does, however, insist that, as a prerequisite to the return of any papers, defendant must satisfy his burden of proof of ownership of specific papers whose return is sought, as explicitly prescribed by Judge Wyatt’s order of July 1, 1965. Of salient importance is the Government’s contention that the Court should not, at this time, hold evidential hearings on the issues posed by defendant’s motion because such hearings would consume many months and would delay the trial scheduled to start on December 4, 1967 and estimated to require only ten days for the prosecution’s case. The Chapter X trustees are deeply concerned with preserving their access to the records. Their argument, supported by uncontrovertible facts, is that the records are vital to actively pending civil litigation and that, therefore, the files should remain in the court’s custody. The Court must accommodate these competing interests in a manner that will safeguard the defendant’s right to a fair trial and his other constitutional rights and, at the same time, protect the legitimate interests of the Chapter X trustees. This dual objective can best be achieved by deferring until after the trial a full-scale evidential hearing to resolve the question of defendant’s ownership of the documents and their return to him. The Court hereby orders the files to remain in the custody of the Clerk of the Court but orders the files to be transferred from Room 501 to Rooms 607K and 607L of the Courthouse. Defendant is hereby granted free and untrammeled access to the files in said rooms both day and night. He will be enabled to arrange and collate documents in whatever manner he sees fit as well as to photocopy any records he desires to remove or to introduce as evidence at the trial or to use in any manner or for any purpose at the trial. No one will be permitted to examine or make a record of any papers so handled by defendant. No representative of the Government will be allowed to enter said rooms or to utilize the files therein pending the completion of the trial. The right of defendant and his attorneys to confer privately with witnesses in said rooms in conjunction with the records will be completely safeguarded at all times. Upon request of defendant’s attorneys, the Court will arrange to furnish them with separate locked filing cabinets (to which they will have exclusive access) in which they may store collated records for use in preparing for trial and during the trial. The Chapter X trustees are the only persons aside from defendant who will be allowed access to the files. Such access will, however, be subject to the close supervision of the Court and will be permitted in such manner and at such times as will not in the slightest degree impinge upon, hinder or obstruct defendant’s efforts to prepare for trial. A direct representative of the Court will be available at all times whenever access is sought to said rooms to ensure prompt and effective execution of the Court’s directives as set forth herein and to guarantee full protection of defendant’s rights. The Court’s representative will perform the additional fraction of making sure that none of the documents is destroyed or removed from the said rooms, subject to defendant’s privilege of having photocopies made. This procedure will furnish additional assurance that the records will remain intact until they are distributed eventually to their rightful owners. Furthermore, it will insulate defendant against possible allegations that he has added, destroyed or removed papers from the impounded files. This aspect of the integrity of the files is particularly significant because, in the event of a conviction, the Court will conduct a post-trial hearing at which the Government must demonstrate the untainted character of its trial proof. Defendant, however, asserts that Rule 41(e) of the Federal Rules of Criminal Procedure requires that a motion for the return of property be determined and all unlawfully seized evidence be returned prior to trial. The Court is not persuaded that such an approach is compulsory. The policy that there be minimal delay and interference with the trial of a criminal indictment supports the general rule that a hearing under Rule 41(e) should be held in advance of trial. The present case, however, presents the unusual feature that persons other than and in addition to defendant claim ownership of many of the suppressed items. As already indicated, the large number of’ papers involved — variously estimated at from one to two million— and the warmly contested nature of this adversary hearing, plainly demonstrate that the proceeding to unravel the tangled skein of proof and to adjudicate the ownership of each and every document will unavoidably consume many months. Far from furthering the purpose underlying Rule 41(e), a pretrial hearing, in the particular circumstances of this case, would serve only to vitiate this policy by inordinately postponing the trial, in a long-pending proceeding already deaccelerated by delays to a standstill. The rule and its equitable antecedents invest the Court’s power with flexibility as to the timing of hearings. Pertinent to this element of the scheduling of hearings is the proposition that, even though property is suppressed for use as evidence, a defendant in a criminal case is not automatically entitled to its return. Where suppressed evidence is “otherwise subject to lawful detention” because of the rights of others, defendant cannot compel its return before trial. That defendant is indigent and represented by court-assigned counsel is, of course, a fact that must be considered in determining the timing of any hearing. The Court is sensitively aware of the following admonition by the Supreme Court: “It is a serious imposition upon appointed counsel to require dissipation of energy and time in preliminary skirmishing. Moreover, the delay occasioned by this extended interim proceeding is itself offensive to the ideal of speedy administration of criminal justice.” Coppedge v. United States, 369 U.S. 438, 457, 82 S.Ct. 917, 927, 8 L.Ed.2d 21 (1962) (Stewart, J., concurring). To require the Court and defendant’s assigned counsel at this time to engage in months of pretrial hearings to determine the ownership of the suppressed documents — an issue entirely unrelated to the substantive merits of the indictment — is neither good law nor good sense. Unnecessary further delay in commencing the trial of this indictment, returned over six years ago, is “offensive to the ideal of speedy administration of criminal justice”. Defendant also requests more specifically the immediate return of approximmately fifty percent of the impounded records. During oral argument, the attorney for the trustee of Equitable Plan Company frankly stated that he had no interest in approximately one-half of the documents, representing the so-called Bohack and Dupont files. These are the files encompassed within defendant’s specific request. The records in question are not physically separated from the general mass of documents. They are distributed throughout the file cabinets. As with the other impounded files, protracted hearings would have to be held in order to determine which particular papers the trustees do not claim. The Court declines to engage in lengthy pretrial hearings on collateral matters and thereby to delay the commencement of the trial. The procedure for the immediate return of these documents is prescribed by Judge Wyatt’s order: “ * * * application to the Court based on the written agreement thereto of the United States Attorney, of the Trustee of Swan-Finch Oil Corporation, and of the Trustee of Equitable Plan Company * * * ” United States v. Birrell, 243 F.Supp. 38, 41 (S.D.N.Y. 1965) . Defendant demands “all copies, transcriptions, abstracts, excerpts, notes and other memorializations” of the impounded documents. In view of the Court’s postponement of the hearing for the return of the records until after the trial, it is unnecessary to pass upon this demand at this time. Defendant will be entitled to the return of the copies and originals of all documents to which he proves ownership at that post-trial hearing. See, e.g., Goodman v. United States, 369 F.2d 166, 168 (9th Cir. 1966) ; United States v. Kraus, 270 F. 578, 581 (S.D.N.Y.1921) (L. Hand, J.) Opposing defendant’s motion for the return of copies, the Government argues that, under the authority of Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503 (1954), the suppressed evidence may nevertheless be used to impeach the testimony of defense witnesses as to collateral matters. Although the Walder doctrine has been approved by the Court of Appeals for the Second Circuit in the factual context of the particular eases considered by it, other recent decisions have cast doubt upon its continuing vitality. Because the precedential authority of Walder has been so seriously attenuated and because the trend of current constitutional developments points in another direction, this Court respectfully declines to follow Walder. The Government should be restricted to using untainted evidence in the impeachment of witnesses just as it is similarly restricted in making out its direct case. In the vast majority of criminal cases, it would be more appropriate to defer making such a ruling until the trial. However, in view of the vast number of suppressed documents with which we are concerned, fairness to defendant persuasively suggests that the ruling be made as early as possible. Cf. McNabb v. United States, supra. Defendant’s motion for the return of documents is denied without prejudice to a renewal thereof after the trial. So ordered. 4. MOTION TO DISMISS THE INDICTMENT A. Negligent Suppression of Evidence Defendant charges that the Government’s negligence as custodian of the impounded files has resulted in the loss of material and relevant documents and has left those remaining in such a state of disorder that the indictment must be dismissed. Defendant demands a pretrial evidential hearing to probe this issue fully. The prosecutor’s negligent suppression of material evidence tending to exculpate the defendant compels the Court to take remedial action, either by granting a new trial or by dismissing the indictment. In United States v. Consolidated Laundries, 291 F.2d 563 (2d Cir. 1961), the trial judge had ordered the Government to turn over to the defense all documents in its possession relating to a certain prosecution witness’ testimony. The Government, however, negligently failed to produce one file during the trial. The Court of Appeals for the Second Circuit found that the Government was “custodian of . . . [these papers] for its own benefit” and through negligence had breached its duty “to keep the evidence of which it was custodian in such manner that it would be available for use upon the trial by all parties”. (291 F.2d at 570.) Concluding that the negligently suppressed evidence was material to the defense, the Court reversed the conviction and ordered a new trial. In United States v. Heath, 147 F.Supp. 877 (D.Hawaii 1957), appeal dismissed, 260 F.2d 623 (9th Cir. 1958), defendant, in a prosecution for income tax evasion, had voluntarily turned over some of his books and records to the Internal Revenue Service. Defendant moved for discovery and inspection of his papers in the Government’s possession but the Government was unable to produce some of defendant’s records. Finding that the lost documents were “relevant to the charges in the indictment and necessary for the preparation of the defense”, the Court ordered the indictment to be dismissed. (147 F.Supp. at 878.) Defendant’s position is that the policy and rationale of these illustrative decisions require the dismissal of the indictment. On the other hand, the Government, in distinguishing the above-cited cases, points out: that the Clerk of the Court and not the prosecutor has had and has custody of the documents; that various civil litigants have used these files since November 1959 and, therefore, responsibility for any alleged loss is diffuse; that no representative of the United States Attorney’s Office or the Securities and Exchange Commission inspected the records until July 1961; and that, rather than being negligent, the Government has exercised the utmost care with respect to the documents. The Court need not decide, at this time, whether the Government was in fact the custodian of the files and, if so, whether it was negligent with respect to the security of the records. At this stage of the case, defendant has failed to make an adequate factual showing that documents material to his defense which were in the impounded files at the time of the illegal search and seizure are now missing. Defendant’s moving papers contain much conclusory language declaring important records lost. But only one of the affidavits submitted by defendant purports to be based upon personal knowledge of one who actually witnessed the state of the records prior to the seizure and at the present time. In this affidavit, Curtis Carter Whitney avers that various documents which he believes were in Bucks County in 1959 are now missing. The force of this belief is, however, blunted by his further statement: “I have not, however, made a thorough search of the files at Foley Square for these items”. (Affidavit of Curtis Carter Whitney, p. 5, attached to defendant’s supplemental affidavit). Controverting defendant’s position, Robert S. Stitt, Esq., attorney for the Chapter X trustee of Equitable Plan Company' — who was actually present at the time of the search and seizure — has given impressive testimony before this Court that “these records are complete and they are in the same shape as they were when originally brought into custody”. (Record of Argument, August 29, 1967, p. 509). Mr. Stitt, moreover, pointed out that the impounded files never contained all relevant and known records. (Record of Argument, August 29, 1967, pp. 507-508). In view of these conflicting factual averments, the Court cannot conclude on the moving papers before it that documents are indeed missing. Immediate dismissal of the indictment is, therefore, not justified. Nor has defendant sufficiently shown why a pretrial hearing is needed. No specification has been made of prospective witnesses who might supply additional facts as to the state of the documents. Defendant blandly urges that such a hearing be held in order to subpoena witnesses, particularly attorneys for various civil litigants, who are “reluctant to volunteer affidavits”. (Supplemental Memorandum, p. 38). Defendant’s moving papers do contain detailed statements by these attorneys. It is not clear what new facts might be adduced by holding an evidential hearing. In the absence of a more specific showing of need, the Court is reluctant to delay the trial further by holding a lengthy pretrial hearing. Such a hearing is likely to last longer than the trial itself because defendant will first be required to prove that documents in the files at the time of the seizure are now actually missing. In view of the magnitude of the records, such an inquiry will unquestionably be protracted. Assuming, arguendo, that the Court should find that documents are missing and that this condition is attributable to governmental misfeasance or nonfeasance, the issues of materiality and relevancy of the missing documents would then have to be decided. Such issues cannot be resolved in vacuo: disclosure of both the Government’s and defendant’s cases would furnish a realistic frame of reference within which the significance of missing documents, if any, can be adjudged. In a pr,ior ruling on defendant’s motion for a pretrial evidential hearing on the related issue of taint, this Court outlined the desiderata favoring a post-trial rather than a pretrial hearing. United States v. Birrell, 269 F.Supp. 716, 727-728 (S.D.N.Y.1967). These considerations are equally applicable in determining the timing of a hearing on the issue of negligent suppression. In addition to involving a vast expenditure of judicial time, a pretrial hearing might not fully resolve the questions of the materiality and relevancy of any lost documents. The Government has represented that it has a witness pool of undefined size, from which particular persons will be called as the exigencies of the trial require. Consequently, any disclosure by the Government at a pretrial hearing would be only tentative. Should there be a shift in the Government’s trial strategy, supplemental hearings either during or after trial would have to be held. It is desirable to avoid such a fragmented approach. Another salient factor militating against the holding of a hearing before trial is the real possibility that defendant’s right to a fair trial may be prejudiced. If, in order to show materiality and relevancy, defendant discloses his entire defense and his motion to dismiss is denied, the prosecution would obtain an unfair advantage at the trial in chief. That a similar disclosure of the prosecution’s case would result is of no corresponding impact; the resources and flexibility of the Government are much greater than those possessed by any criminal defendant. The Court concludes that defendant’s motion to dismiss the indictment should be denied without prejudice to its renewal at trial. In the suppositious event of conviction, a post-trial hearing can be held if the Court deems it necessary, to fully explore this issue. The issues of materiality and relevancy can then be examined in the context of the trial record. Should it be found that negligent suppression of material evidence has occurred, the Court can order the appropriate relief, such as dismissal of the indictment or a new trial. Of course, in the event of acquittal, the need for such a hearing would be mooted. The Court naturally is reluctant to subject the defendant to the formalities of an unnecessary trial. In the present case, however, defendant has not demonstrated that the trial will be an empty and futile gesture. In any event, full protection of defendant’s rights can be achieved by deferring any hearing until after trial. Defendant’s motion based upon alleged negligent suppression of evidence is denied without prejudice to its renewal at or after trial. So ordered. B. Taint From, The Suppressed Records Pervades The Government’s Case Defendant contends that dismissal of the indictment is necessitated because the Government will be unable to prove beyond a reasonable doubt that its trial evidence has a completely untainted and independent origin. The Government has repeatedly represented that it intends to rely on lawfully obtained and uncontaminated evidence. The Court cannot rule as a matter of law that the Government will not fulfill its obligation. See, e. g. United States v. Harrison, 265 F.Supp. 660, 662 (S.D.N.Y.1967); United States v. Avila, 227 F.Supp. 3, 8 (N.D.Cal.1963). Defendant’s motion based on alleged taint is denied without prejudice to its renewal at or after trial. So ordered. C. Denial of A Speedy Trial Accusing the Government of materially delaying the trial, defendant claims that he has been deprived of his Sixth Amendment right to a speedy trial. Defendant argues that a pretrial hearing is necessary to determine this issue. The right to a speedy trial is considered to be defendant’s personal right; it is deemed waived unless promptly asserted. A defendant must demand a speedy trial in order to preserve his Sixth Amendment right. United States v. Lustman, 258 F.2d 475, 478 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958); United States v. Maxwell, 383 F.2d 437, (2d Cir., August 8, 1967). The defendant at bar, never having demanded a speedy trial, has waived this Sixth Amendment right. The demand rule, consistently followed in this circuit, serves the salutary purpose of insuring that the right to a speedy trial is not employed “as a sword for defendant’s escape, but rather as a shield for his protection”. Note, The Right to a Speedy Criminal Trial, 57 Colum.L.Rev. 846, 853 (1957). The requirement of a demand is premised “on the almost universal experience that delay in criminal cases is welcomed by defendants as it usually operates in their favor”. United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir. 1963). Precedent and policy require the denial of defendant’s motion. Other circumstances strengthen that conclusion. Defendant has not shown that the six-year delay since the indictment was returned on July 20, 1961 is attributable to the Government. It would appear quite convincingly, at least on the present record, that defendant’s own acts were the primary factor in the delay. From July 20, 1961 until April 23, 1964 — the period between indictment and arrest — defendant was residing in Brazil. Whether defendant could have returned voluntarily to the United States during this time is a question that need not be decided at this time. There is no evidence before the Court on the basis of which the Government could be blamed for the pre-arrest delay of almost three years. Defendant’s assertion — that the Government prevented him from returning to the United States — is unsupported by a single affidavit of any person having personal knowledge. This same contention was categorically rejected by the referee in the disbarment proceeding brought against defendant by the Association of the Bar of the City of New York in 1961. The referee’s finding was subsequently approved by the Appellate Division of the New York State Supreme Court. In the Matter of Birrell, 13 A.D.2d 220, 215 N.Y.S.2d 293 (1st Dept. 1961). Since defendant’s return to the United States, the trial of the indictment has been delayed over three years. Of this period, however, it is clear that approximately thirty-three months’ delay was brought about either by defendant’s numerous and, in some respects repetitive, motions or his temporary inability to proceed because of change of counsel. The Sixth Amendment does not proscribe all delay but only unreasonable delay; “and a defendant cannot exploit a delay which is attributable primarily to his own acts or to which he has consented.” United States v. Lustman, supra, 258 F.2d at 477. The remaining ten months of delay was caused by the suspension of proceedings, except for emergency matters, from December 1965 until September 1966 pending the appointment by the chief district judge of a Rule 2 judge. Because the ease-load in this district is extremely heavy, there are times when the Rule 2 assignment of a complex and protracted case (like the present one) must await the availability of a trial judge. Under all of the attendant circumstances of the case, the Court cannot conclude that this delay is undue. Defendant’s actions have delayed the commencement of the criminal trial for thirty-three months. Moreover, if defendant was, in fact, a fugitive from justice, he is responsible for almost three years of additional delay. In any event, this defendant’s claim is barred by the demand rule, as was that of the defendants in United States v. Lustman, supra, and United States v. Maxwell, supra, where there were unreasonable delays of four and five years respectively. Defendant’s motion to dismiss based upon alleged denial of a speedy trial is denied. So ordered. 5. MOTION TO DISMISS BECAUSE OF ALLEGED DEFECTS IN THE GRAND JURY SELECTION Defendant moves to dismiss the indictment on the ground that the grand jury did not represent a fair cross-section of the community in the Southern District of New York. He asserts that Negroes, Puerto Ricans and members of the so-called lower socio-economic strata of the community have been systematically and intentionally excluded from the array. Two specific procedures are challenged : the use of voter registration lists as the primary source of names of grand jurors and the practice of the jury clerk to excuse prospective jurors who demonstrate that such service would cause undue financial hardship. The method by which grand jurors are selected in the Southern District of New York has been examined and approved in numerous decisions in this circuit. Both of defendant’s contentions have been reviewed and rejected. United States v. Kelly, 349 F.2d 720, 778-779 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966); United States v. Bowe, 360 F.2d 1, 7 (2d Cir.), cert. denied, 385 U.S. 961, 87 S.Ct. 401, 17 L.Ed.2d 306 (1966); United States v. Agueci, 310 F.2d 817, 833-834, 99 A.L.R. 2d 478 (2d Cir. 1962), cert. denied, sub nom. Guippone v. United States, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963); United States v. Greenberg, 200 F.Supp. 382 (S.D.N.Y.1961); United States v. Van Allen, 208 F.Supp. 331, 335-336 (S.D.N.Y.1962). The use of voter registration lists as the primary source for jurors has been consistently upheld as constitutional since “it does not discriminate against any identifiable racial, social or economic group”. United States v. Bowe, supra, 360 F.2d at 7. Those persons who are not registered to vote do not constitute such an identifiable group because it is “undisputed that in New York registration is available to all qualified persons, with strict legal prohibition against discrimination based on race, sex, religion, national origin or wealth. United States v. Van Allen, supra, 208 F.Supp. at 335-336. The excusing of prospective jurors because of financial hardship has also received judicial approval. United States v. Flynn, 216 F.2d 354, 386-387 (2d Cir. 1954). Moreover, it has been repeatedly recognized that “as a practical matter and subject to proper supervision by the District Courts, jury officials must be vested with a large measure of discretion to determine whether a particular individual should or should not be excused from jury service.” United States v. Kelly, supra, 349 F.2d at 779. Since defendant has failed to set forth any facts which have not been fully considered and rejected in prior cases, the principles of stare decisis compel this Court to deny defendant’s motion to dismiss. So ordered. 6. MOTION TO. TAKE DEPOSITIONS A. Toronto Stock Exchange: Defendant’s Request to Take Deposition Fed.R.Crim.P. 15(a) reads, in part: “If it appears that a prospective witness may be unable to attend or prevented from attending a trial * * * ”. The reasonable interpretation of the foregoing provision is that the movant must submit some factual basis, either in the form of evidence or good hearsay, reasonably implying that the “prospective witness may be unable to attend or prevented from attending a trial”. In the present case, no such showing —however liberally the motion papers are construed in favor of defendant — has been made either in the moving affidavit of defendant’s attorney or in his supplemental affidavit. The latter (at pp. 26-27) simply contains his ipse dixit: “clearly the Toronto Stock Exchange * * * win foe ‘unable to attend or prevented from attending’ ” the trial. The naked fact that the Toronto Stock Exchange is located in Canada does not, by and of itself, constitute an adequate basis for the inference that it “may be unable to attend” within the meaning of Rule 15(a).' A contrary interpretation would mean that Rule 15(a) should be applied as automatically authorizing the taking of the deposition of any fore