Full opinion text
MEMORANDUM OPINION AND ORDER MOTLEY, District Judge. Defendants in this case have moved to compel the Government to produce “all statements purportedly made by the defendants upon which the Government intends to rely at the trial of this case.” (Letter of October 28,1975 from Richard H. Kuh) (emphasis in original). They do not, at this time, seek “the entire statements of witnesses, nor for attribution to particular witnesses, but merely seek copies of (or the gravamen of) all statements allegedly made by the defendants upon which the Government will rely.” (Id.; emphasis in original). Apparently, the Government has agreed to produce statements allegedly made by defendant Pastor to Drug Enforcement Administration agents, but has resisted the production of statements allegedly made by the defendants to non-governmental third parties during the course of the conspiracy, contending that such statements are “3500 material” (18 U.S.C. § 3500) which need not be produced until trial. Defendants argue that the plain language of Rule 16(a) of the Federal Rules of Criminal Procedure requires that the Government produce the requested materials, and relies on a series of cases dealing with the scope of Rule 16(a) and — to a certain extent — with its interaction with 18 U.S.C. § 3500. In rejoinder, the Government argues that U. S. v. Perce vault, 490 F.2d 126 (2d Cir. 1974) is dispositive of the issue in this case and requires that defendants’ motion be denied. The precise point of contention appears to be whether a liberal reading of Rule 16(a) entitles the defendant in a criminal trial, before trial, to inspect and copy statements made by him that are contained in statements made by non-governmental third parties which are within the possession, custody or control of the Government, and upon which the Government intends to rely at trial. The court concludes that the defendants are not entitled to such discovery. Percevault, supra, dealt with a somewhat different question, specifically whether Rule 16(a) entitled the defendants to pretrial discovery of the statements of prospective witnesses which would be treated at trial as the defendant’s own statements through the vicarious admission exception to the hearsay rule. Reversing the District Court, the Court of Appeals held that the language of Rule 16(a) did not permit such liberal discovery, especially in view of the strictures of 18 U.S.C. § 3500. However, the court did not have before it the specific question raised in this case, where the statements sought are those of the defendant himself, as allegedly related by a third party- The precise issue here involved was thoroughly discussed in U. S. v. Feinberg, 371 F.Supp. 1205 (N.D.Ill.1974), a case in which Judge Marshall concluded that the defendant was entitled to such discovery. However, the Court of Appeals for the Seventh Circuit reversed this decision in a persuasive opinion, U. S. v. Feinberg, 502 F.2d 1180 (1974). The Court cited with approval, inter alia, U. S. v. Dorfman, 53 F.R.D. 477 (S.D.N.Y.1971), aff’d, 470 F.2d 246 (2d Cir. 1972), in which Judge Gurfein had refused to allow pretrial discovery of witnesses’ written statements which purportedly contained oral statements made to them by the defendant. In concluding that 18 U.S.C. § 3500 barred pretrial discovery of the requested statements, the Court of Appeals in Feinberg also referred to the recent amendment to Rule 16 of the Rules of Criminal Procedure, which are now scheduled to become effective on December 1, 1975. As proposed by the Supreme Court and enacted into law, Pub.L.No.94-64, 89 Stat. 370, the revised Rule 16(a)(1)(A) will require the Government to “permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government; the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent; and recorded testimony of the defendant before a grand jury which relates to the offense charged.” Both the notes of the Supreme Court’s Advisory Committee, 62 F.R.D. 307, and the Congressional legislative history of the revision, see 1975 U.S.Code Cong, and Admin. News 1368, 1390, make clear that even this limited provision represents an expansion of the scope of pretrial discovery available to criminal defendants under existing federal law. To the extent that the law may differ among the circuits, there presently appears to be no clear warrant in the Second Circuit for granting discovery beyond the scope of that which will be permitted by the amended Rule 16 as of December 1. However, it would seem unduly restrictive, in view of the fact that trial of this case will occur well after December 1, to grant any less discovery than that which will soon be clearly permissible under amended Rule 16. Accordingly, the Government is ordered to produce any and all materials to which defendants are entitled under the provisions of amended Rule 16 as set forth, supra. The Government is not required to produce the substance of oral statements purportedly made by the defendants and contained in statements of third parties except as provided by the provisions of amended Rule 16. SO ORDERED. On Motion To Dismiss Indictment Defendants were originally indicted on July 31, 1975 and charged in four counts with violating the Federal Controlled Substances Act and in a separate count with conspiracy so to do. Thereafter, on February 11, 1976, a new and different Grand Jury returned a superseding indictment. The second indictment charged an additional substantive violation of the Controlled Substances Act allegedly occurring about the time that the other substantive charges occurred. In addition, the superseding indictment made certain other changes. In Count. 1, the conspiracy count, the superseding indictment alleges that the conspiracy took place in “the Southern District of New York and elsewhere”. The original indictment had charged that the conspiracy occurred in the Southern District of New York. In Overt Act 5 of Count 1, the alleged number of phendimetrazine tablets was changed to read “one million” instead of “two million” as originally charged. Overt Act 6 in the new indictment deleted a reference to Philadelphia as the place where the alleged forgery of a signature took place. The date in Overt Act 7 was changed to read, “In or about 1974, at the APA Transport terminal in Philadelphia”, instead of “In or about 1973, in the APA Transport terminal in Philadelphia,” originally alleged. In Count 2 “100,000 phendimetrazine tablets” was changed to read “100,000 phendimetrazine capsules” in the second indictment. In Count 3, “In or about September, 1973” was changed to read in the superseding indictment, “In or about August 1973”, and the number of phendimetrazine tablets was changed to read “2,000,000 phendimetrazine tablets” in lieu of “250,000.” In Count 4, the original indictment reads, “From October 1973 up to and including June 1974” defendants obtained possession of “980,000 phendimetrazine tablets” in the Southern District of New York, whereas the superseding indictment changed the dates to read, “In or about September and October 1973”, and the number of tablets was changed to read “250,000 phendimetrazine capsules.” Defendants made an oral motion to dismiss the superseding indictment on February 18, 1976 on the ground that the indictment had been returned by a Grand Jury which had been presented with hearsay evidence in violation of the Second Circuit’s decision in United States v. Estepa, 471 F.2d 1132 (1972). Defendants also relied upon United States v. Gallo, 394 F.Supp. 310 (D.Conn.1975). The Assistant United States Attorney, in response to the motion, candidly advised the court on the record substantially as follows: When the matter was presented to the original Grand Jury, Charles Fernald, an alleged unindicted co-conspirator, testified before the Grand Jury concerning nine separate transactions. Other witnesses were also presented to the original Grand Jury. In presenting the matter to a new and different Grand Jury in February 1976, the jury heard only one live witness. That witness was Charles Fernald who testified regarding a 10th transaction only. The Grand Jury was presented with a transcription of Charles Fernald’s testimony before the original Grand Jury regarding the other nine transactions. The Assistant United States Attorney frankly admitted that he failed to advise the Grand Jury specifically that it was free to question Charles Fernald about his prior testimony. The Assistant did ask the jury whether it had any questions for Mr. Fernald, but he did not make clear to the jury that it was free to demand live testimony before it from Mr. Fernald rather than rely upon the cold record. The Grand Jury had no questions for Mr. Fernald and returned the superseding indictment. In United States v. Estepa, supra, the Second Circuit ruled: “We have previously condemned the casual attitude with respect to the presentation of evidence to a grand jury manifested by the decision of the Assistant United States Attorney to rely on testimony of the law enforcement officer who knew least, rather than subject the other officers, or himself, to some minor inconvenience” (at 1135). The Second Circuit admonished that, “When the framers of the Bill of Rights directed in the Fifth Amendment that ‘No person shall be held to answer for a capital, or other infamous crime, unless on a presentation or indictment of a Grand Jury,’ they were not engaging in a mere verbal exercise” (at 1136). It also reminded United States prosecutors that “The importance of avoiding undue reliance upon hearsay before a grand jury is heightened by this circuit’s view that an indictment constitutes a finding of probable cause and avoids the need for a preliminary hearing under F.R.Cr.P. 5(c)” (at 1136). In failing to advise the Grand Jury that it could question Mr. Fernald regarding his prior testimony or have him testify before them as to those transactions, the Grand Jury which returned the superseding indictment may well have been misled as to “the shoddy merchandise they [were] getting so they [could] seek something better if they wished.” United States v. Estepa, at 1137. The court finds that in this ease the Assistant United States Attorney unwittingly violated the direction of the Second Circuit that the Grand Jury not be deceived as to the shoddy merchandise it was getting. In United States v. Gallo, supra, my brother Zampano correctly observed, as the courts have previously held, that the accused has a right to have a Grand Jury make the charge on its own judgment. This includes the right to have the Grand Jury make its own evaluation of the credibility of an important Government witness. The court agrees that what effectively occurred here was a rubber stamp action by the second Grand Jury. United States v. Gallo, at 314. As my brother Zampano further pointed out in Gallo, in United States v. Umans, 368 F.2d 725 (2d Cir. 1966), the Second Circuit specifically mandated that hearsay evidence should only be used when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge. Mr. Fernald was present and could easily have testified before the second Grand Jury. The prosecutor admittedly did not enlighten the Grand Jury as to the hearsay quality of the bulk of the evidence they were receiving. The prosecutor also failed to advise the Grand Jury that Mr. Fernald could be questioned by them concerning his prior testimony or testify regarding all other transactions so that they might evaluate his credibility. Finally, the prosecutor’s action here resulted, unwittingly, in depriving defendants of Jones Act, “3500 material,” which would have emanated from testimony of Mr. Fernald before a second Grand Jury. Cf. United States v. Ramirez, 482 F.2d 807, 813 (2d Cir. 1973). As the Second Circuit said in United States v. Borelli, 336 F.2d 376 (1964), the Government ought not to be allowed to deprive a defendant of his right to impeachment by contradiction. For all of the foregoing reasons the motion to dismiss the second indictment must be granted. ON OMNIBUS MOTION Defendants Edward Pastor and Martin Weiner have presented the court with an omnibus motion supplementary to their previous omnibus motion, which was filed on January 5, 1976. The requests embodied in this more recent motion will be dealt with seriatim. I. Defendants have moved, pursuant to Rule 12, Fed.R.Crim.P., and on the authority of United States v. Strewl, 99 F.2d 474 (2d Cir. 1938), cert. den., 306 U.S. 638, 59 S.Ct. 489, 83 L.Ed. 1039, reh. den., 306 U.S. 668, 59 S.Ct. 590, 83 L.Ed. 1063 (1939), for an order dismissing the original indictment in this case, 75 Cr. 753, which was filed on July 31, 1975, and which has been “superseded” by another indictment, 76 Cr. 253, which was filed on March 12, 1976. Both indictments allege that defendants conspired to violate Sections 812, 841(a)(1), 843(a)(2), and 843(a)(3) of Title 21, United States Code, and that they committed certain substantive offenses in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2. The superseding indictment differs from the original indictment in that it contains one additional substantive count and makes changes in several dates, numbers, places and other items. The crucial passage from the Strewl case, relied upon by defendants, is as follows (at 477): “It is true that if the defendant has pleaded to the first indictment, the court will ordinarily quash it to insure his protection from double jeopardy (United States v. Maloney, Fed.Cas.No.l5,713a); but it does not here appear that Strewl had ever pleaded to the first indictment, and if he had, it would make no difference, because in any event an order was necessary.” In opposing this motion, the Government, in turn, relies on the following passage from Strewl (at 477), part of which precedes and part of which follows the previous quotation: “The 1934 indictment was not quashed by the indictment of 1937. The order which ‘found’ it ‘insufficient’ did not attempt to dismiss it; and although a second indictment is often said to ‘supersede’ the first, it does not dispose of it without an express quashal. ... As things were, both indictments stood and the prosecution was free to elect on which to proceed.” As the Government points out, the prescription in Strewl, that the trial court should quash a “superseded” indictment if the defendant has already “pleaded” to it, is, strictly speaking, dictum; Strewl himself had not “pleaded” to the first indictment. Moreover, the concern for double jeopardy problems expressed in the quotation is meaningful only if the rule is read to require dismissal of a superseded indictment when a defendant has pleaded guilty to the first indictment and thus has been put in jeopardy on that charge. The ordinary rule is that jeopardy only “attaches” in a criminal case when a petit jury is empaneled and sworn, Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); United States v. Glover, 506 F.2d 291, 294 (2d Cir. 1974), or, in a non-jury case, when the trial judge begins to hear evidence in the ease. United States v. Jenkins, 490 F.2d 868, 875 (2d Cir. 1973), aff’d, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975). The fact that a defendant has pleaded not guilty to a now superseded indictment does not create any possibility of double jeopardy which requires dismissal of the first indictment at this time.. If the Government should attempt to try him on the first indictment after he had already been tried on the second (superseding) indictment, he could clearly raise the defense of double jeopardy at that later date. It is undoubtedly for this reason that the prevailing practice in this judicial district is to require dismissal of supérseded indictments only after a conviction or plea on the superseding indictment. Defendants’ only other argument against preservation of the original indictment is that “there is no rational basis for artificially keeping [it] alive”, and that it is not a “true charge” but merely “a mode of keeping this matter open while [the Government] tinkers with a series of other charges.” This is clearly an insubstantial contention, for which defendants have cited no authority. The Government has the right — and indeed the obligation — to go to trial with an indictment which the prosecutor feels accurately represents the circumstances constituting the alleged criminal activity. This court is certainly unable to say that there could be no rational basis for preservation of the original indictment. The motion to dismiss the original indictment, 75 Cr. 753, is, accordingly, denied. II. Defendants have also moved for an order dismissing the second superseding indictment, 76 Cr. 253, because of allegedly improper statements or comments by the Government attorneys before the grand jury and because of the nature of the evidence presented to the grand jury. Disposition of this branch of their motion must await further inquiry into the grand jury proceedings. However, defendants have also moved preliminarily, pursuant to Rule 6(e), Fed.R. Crim.P., for an order directing disclosure to them of all proceedings before the grand jury which returned the instant superseding indictment, including those proceedings which antedated the return by that same grand jury of a “No True Bill”. In the alternative, they ask that those minutes be disclosed to the court for in camera inspection. Inasmuch as the Government has consented to such an in camera inspection, no further discussion of this request is necessary. The requested minutes will be delivered to the court no later than May 12, 1976. Defendants have made a further request, however, which is vigorously opposed by the Government. Based upon the history of the Government’s attempts to obtain superseding indictments in this case, as outlined briefly below, defendants ask for a hearing to determine “whether any comments were made, and, if so, the content thereof, by the Government attorneys to the Grand Jury or to any Grand Jurors that were not recorded or transcribed and which may have influenced the decision of the Grand Jury or individual Grand Jurors in their deliberations.” On February 11, 1976, a grand jury, different from the grand jury which had returned the original indictment in July of 1975, returned a superseding indictment identical to the instant indictment. After it had appeared to the court, through admissions of the Assistant United States Attorney assigned to the case, that the evidence presented to this grand jury had consisted in large part of readings of the transcript of prior testimony before the previous grand jury, this court dismissed the indictment so returned for improprieties more fully set forth in the court’s opinion dated February 19, 1976. On the following day, apparently after receiving further presentation by the Government, the same grand jury which had voted the February 11 indictment voted not to return a new indictment, but rather to return a No True Bill. At the time the No True Bill was filed on February 20,1976, however, the foreman of the grand jury requested that the Part I judge either direct the defendants to appear in an identification lineup, or order that a photographic identification be held. Upon the judge’s order, additional evidence was thereafter presented to the same grand jury, and the second superseding indictment, now before the court, was returned and filed on March 12, 1976. Based upon this chronology, defendants advance two theories on which they base their request for further inquiry into the prosecutor’s conduct before the grand jury. In the first place, they apparently argue that the prosecutor’s conduct in obtaining the first superseding indictment (now dismissed) and the speed with which the prosecutor sought to obtain the subsequent indictment both suggest that he may have again utilized the same questionable practices which led to this court’s prior dismissal. This court’s in camera examination of the grand jury transcripts will be adequate to reveal whether hearsay was utilized, whether the grand jurors were advised that they were receiving hearsay evidence, and whether the jurors were advised that they could question any witnesses concerning any previous testimony which they may have delivered to another grand jury. The only remaining question on this branch of defendants’ motion is whether investigation of their second allegation of alleged prosecutorial misconduct before the grand jury merits the requested hearing. Defendants argue that the behavior of the grand jury on February 20, in returning a No True Bill and simultaneously requesting further identification procedures, is suggestive of either (1) prosecutorial pressure to vote precipitously, only one day after the preceding indictment had been dismissed, or (2) prosecutorial pressure, after the vote had been taken, to have the grand jury take more evidence and reconsider its failure to indict. Moreover, they suggest more generally that the whole course of the proceedings before the grand jury is “inherently unreliable”. Determination of this question must begin with a consideration of Rule 6(e), which provides, in relevant part, that persons having knowledge of grand jury proceedings “may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.” Thus, the showing of some valid grounds for a motion to dismiss is a precondition to a hearing revealing the grand jury proceedings. Defendants assert that “improper statements or comments by the Government attorneys to the Grand Jury that prejudice the defendant[s]” constitute grounds for dismissing the indictment. It is true, as the Government notes, that the authority cited by defendants for this proposition, United States v. Daneals, 370 F.Supp. 1289, 1296 (W.D.N.Y.1974), does not deal with the specific problem of improper prosecutorial comments before the grand jury, but rather with an instance of off-the-record remarks by a Government employee who was improperly present at secret grand jury proceedings, in violation of Rule 6(d), Fed.R. Crim.P. And it is also true that the court in Daneals apparently relied upon the cumulative effect of that and other errors in grand jury proceedings to dismiss 150 selective service indictments which were returned in that District after four days of grand jury deliberation. However, despite the somewhat inapposite nature of the citation to Daneals, it seems conceivable to the court that some prosecutorial comments before the grand jury could be so clearly improper as to warrant dismissal of an indictment, if the defendants had been prejudiced thereby. The only question at this juncture is whether defendants have made a sufficient showing to warrant a hearing. The Government argues, first, that even if the prosecutor had urged the grand jury to vote precipitously, the defendants were not injured thereby, since the grand jury voted a “No True Bill” anyway. That is certainly true as to that one occasion; however, the broader inquiry suggested by defendants is whether the pressure hypothetically placed upon the grand jurors which was reflected in their February 20 action also led to a vote in favor of indictment on earlier (February 11) and later (March 12) occasions. The Government also argues, without citation of authority, that, even if the prosecutor attempted to persuade the grand jury to consider more evidence and to reconsider its return of “No True Bill”, it had an absolute right to do so. While this may be true as a general principle, the clear implication of the defendants here is that the prosecutor went beyond merely requesting further consideration and exerted undue and improper pressure on a grand jury unwilling to indict. And the prejudice inuring to the defendants from any impropriety here is clear: they were again indicted. It is no answer to say, as the Government contends, that the defendants would have great difficulty in establishing any prejudice at a hearing because the same grand jury and another had already indicted them for virtually identical offenses. The court cannot rule, as a matter of law, that defendants could not show that they were prejudiced under these circumstances. While it is true that the “courts generally have been most cautious in invalidating indictments for alleged grand jury misconduct of the prosecutor,” Beatrice Foods Co. v. United States, 312 F.2d 29, 39 (8th Cir. 1963), cert. den., 373 U.S. 904, 83 S.Ct. 1289, 10 L.Ed.2d 199 (1963), this court is persuaded that defendants have made a sufficient showing of possible impropriety and resultant prejudice to warrant a hearing to investigate their allegations. See, United States v. Rintelen, 235 F. 787, 794 (S.D.N.Y.1916) (Augustus Hand, D. J.) In the court’s view, the limited nature of the inquiry requested by defendants will not offend those considerations which have led to the general policy of secrecy for the grand jury proceedings. See, United States v. Proctor & Gamble Co., 356 U.S. 677, 681 n.6, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). The defendants’ motion for a hearing is, accordingly, granted. The hearing will be held on Monday, May 17, and will be limited to the question whether there were any improper off-the-record remarks by the prosecutor. Testimony of Assistant United States Attorney Timbers and of the grand jury reporter will be received. The court’s ruling that defendants have made the requisite showing to warrant a hearing does not, of course, imply any view on the merits of defendants’ ultimate contentions. III. Defendants have next moved, pursuant to Rules 6(f) and 12, Fed.R.Crim.P., for an order directing the production of the attendance records, without divulging the names, of those persons constituting the grand jury which returned the instant indictment, insofar as those records indicate the attendance of each grand juror at sessions that either heard evidence or received instructions bearing upon the alleged criminal activity underlying the instant superseding indictment. Defendants argue, in accordance with the reasoning of People v. Brinkman, 205 Misc. 337, 126 N.Y.S.2d 495 (Queens Co.1953), rev’d, 286 A.D. 889, 142 N.Y.S.2d 389 (2d Dept.1955), aff’d, 309 N.Y. 974, 132 N.E.2d 334 (1956), that if all the jurors who ultimately voted to return the instant indictment were not present to receive all the evidence and instructions bearing on the case, then they were unable to make an informed decision to indict the defendants, and the indictment ought to be dismissed. Defendants acknowledge, as they must, that the law in this Circuit does not require dismissal of the indictment under those circumstances. United States ex rel. McCann v. Thompson, 144 F.2d 604 (2d Cir. 1944), cert. den., 323 U.S. 790, 65 S.Ct. 313, 89 L.Ed. 630 (1944), a decision of Judge Learned Hand, early adopted the rule that each of the jurors who ultimately votes for an indictment need not have heard all the evidence which had been presented to the grand jury in the case. Defendants urge, however, that this rule reflects a dated concept of the grand jury’s function, and that it does not accord with more recently heightened concern that the grand jury be a vigorous and independent deliberative body, not merely a subject for the manipulation of overzealous prosecutors. They further note that, if the records should show the absence of one or more of the grand jurors from sessions at which the grand jury received evidence or instructions, dismissal of the indictment would not automatically result, if the prosecutor could show, for instance, that the evidence presented to the grand jury on the date of absence was merely cumulative of evidence which the jurors received at other times. The court is not persuaded, however, either that the reasoning of McCann reflects a benighted conception of the grand jury’s function, or that this court is in a position to fly in the face of precedent established by the Court of Appeals. Defendants apparently acknowledge that the rule established in McCann has been generally accepted in the federal courts, and not only in this Circuit. The only authority they urge is that of the New York state courts which, though persuasive, is clearly not binding on this court, especially in the face of local federal precedent to the contrary. More importantly, the reasoning of McCann remains persuasive to this court: “Since all the evidence adduced before a grand jury — certainly when the accused does not appear — is aimed at proving guilt, the absence of some jurors during some part of the hearings will ordinarily merely weaken the prosecution’s case. If what the absentees actually hear is enough to satisfy them, there would seem to be no reason why they should not vote. Against this we can think of nothing except the possibility that some of the evidence adduced by the prosecution might conceivably turn out to be favorable to the accused; and that, if the absentees had heard it, they might have refused to vote a true bill. No one can be entirely sure that this can never occur; but it appears to us so remote a chance that it should be left to those instances in which it can be made to appear that the evidence not heard was of that character, in spite of the extreme difficulty of ever proving what was the evidence before a grand jury.” 144 F.2d at 607. The argument of McCann is, thus, a practical one. It does not assume that the grand jury is merely to be a mechanism of the prosecutor. To the contrary, it merely presumes that the individual grand jurors are honest and conscientious in their voting, fully cognizant of their oath, but nevertheless sometimes able to find a prima facie case on less than all the evidence presented. If this opinion reflects any conclusion concerning the grand jury process which is not in accord with contemporary standards of justice, then it is for the Court of Appeals, not this court, to make an appropriate correction in the law of this Circuit. The motion to obtain the attendance records of the grand jurors is, accordingly, denied. IV. Defendants have moved, pursuant to Rule 16, Fed.R.Crim.P., for pre-trial discovery of certain evidence. Inasmuch as the Government has indicated that it is presently complying with this request, the court merely orders that all such production be completed no later than May 12, 1976. V. Pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and other federal decisions, defendants have asked for certain exculpatory material concerning two alleged co-conspirators, Ira Sachs and Saul Green. In response, the „ Government indicates that it intends to adhere to the schedule, previously approved by this court, of producing all material potentially useful for impeaching the Government’s witnesses on the night before the witnesses are expected to begin their testimony. The rationale for this court’s prior approval of this schedule was that, since disclosure of this material might disclose the identity of the Government’s witnesses pri- or to trial, the Government need not produce the requested material at this time. United States v. Cannone, Slip Opinion No. 142 (2d Cir., decided September 26, 1975). However, since the material requested pertains to two men whose identities are already known to defendants that rationale clearly does not require any further delay in production by the Government. Accordingly, the Government is instructed to turn over to defendants that material which they request in this branch of their notice of motion no later than May 12, 1976. VI. Defendants also ask that the court reconsider its previous decision, embodied in a brief opinion dated February 12, 1976, denying defendants access to certain Brady material and a list of the Government’s witnesses prior to trial. The court’s previous decision was premised upon the contents of an affidavit which the Government had submitted for the court’s in camera inspection and which, the court held, constituted a sufficient “showing that [disclosure of the identity of the Government’s witnesses prior to trial] would not be in the best interests of justice.” Cannone, supra, at 64. Defendants argue, first, that the identity of at least six potential witnesses has already been disclosed to them due to the fact that these persons were either named in the indictment, named as unindicted co-conspirators in the Government’s supplemental bill of particulars, or, in one case, revealed at a photo identification incident to the grand jury proceedings. Thus, they again argue that the rationale of this court’s previous decision has been undercut as to these individuals. The court agrees and, therefore, directs the Government to produce to the defendants no later than May 12, 1976 all materials requested in parts 4(D), (E), and (F) of defendants’ previous omnibus motion filed on January 5, 1976, insofar as such materials pertain to Horace Johnson, Charles Fernald, Douglas Berry, Ira Sachs, Saul Green, and Edward Gallagher. However, the court declines to further alter its previous ruling and will not require the Government to produce other Brady material or the names of other witnesses at this time. In so ruling, the court considers immaterial any possible impeachment of the content of the affidavit previously submitted to the court, but rather predicates its decision upon the apparent significance of a subsequent deletion from the Court of Appeals’ original opinion in Cannone. The slip opinion by Judge Smith in Can-none quoted with approval a footnote from the Second Circuit’s previous decision in United States v. Baum, 482 F.2d 1325 (2d Cir. 1973), to the effect that, absent a specific need for concealment, “prevailing concepts of criminal justice oblige the prosecuting attorney to disclose to the defense the names and addresses of witnesses he intends to call at the trial.” 482 F.2d at 1331, n.3, quoted in Cannone, supra, at 63. The Court then indicated that “[ijmplicit in this statement is the notion that, once the defense moves for disclosure of the identity of the government’s witnesses, the government bears the burden of making a prima facie showing that such disclosure would not be in the best interests of justice.” In so ruling, the Court explicitly rejected the approach of the Court of Appeals for the Ninth Circuit in United States v. Richter, 488 F.2d 170 (9th Cir. 1973), which had required “that the defense’s motion for disclosure not even be considered unless it is accompanied by a specific showing of materiality and reasonableness.” Cannone, supra, at 64. In their original omnibus motion, defendants, citing the above quotation from Baum, requested that the Government provide a witness list “[s]o that the defense is not substantially hampered in its preparation for trial, and so that continuances and potentially costly prolongation of the trial is not necessary. . . . ” Defendants also noted that the Cannone court’s rejection of the Richter requirement for a specific showing of need by defendants put the burden of objecting to such disclosure on the Government. Cannone was argued on September 4, 1975 and decided September 26. The Government sought modification of the decision, but rehearing and rehearing en banc were both denied on February 17, 1976. When the opinion appeared in the Federal Reporter, however, United States v. Cannone, 528 F.2d 296 (2d Cir. 1975), the entire passage quoted, supra, had been deleted, without explanation. The question, therefore, is what significance should be attributed to this deletion, in view of the Government’s attempt to seek modification of the decision. Although it still remains clear, in view of the decision in Baum and the remaining portions of the decision in Cannone, that the district court has the discretion to order production of a list of the Government’s witnesses prior to trial, the effect of the excision appears to be an approval of the Richter requirement that defendants justify their request for production of a witness list by a specific showing of materiality and reasonableness. The burden is on the defendants to make some particularized showing of need, beyond the obvious assertion that such a list would facilitate preparation for trial. It follows from this interpretation that defendants have not made a sufficient showing of need to justify production of a witness list. It is entirely possible that they merely felt that such a showing was unnecessary, as it indeed was under the language of the slip opinion. If this be the ease, they are free to apply again to the court for the requested order if they can make a more compelling showing of need. The request for a witness list is denied at this time. Moreover, the request for production of further Brady materials at this time is denied, for the reason that such production would entail disclosure of the identity of the remaining Government witnesses. Further production of Brady materials will be in accordance with the schedule approved in this court’s order of February 12, 1976. VII. Defendant Pastor has moved for an “update” of his medical condition and, based upon that updated report and the reports and testimony previously adduced concerning his physical ability to stand trial, he moves for an order directing further continuance of the trial. The Government has consented to a further medical examination of Mr. Pastor. By separate order, the court has directed the Government’s physician to examine Mr. Pastor. Should this doctor conclude that Mr. Pastor is able to stand trial as scheduled on May 17, Mr. Pastor’s physician will also have an opportunity to examine him and present his own observations and conclusions to the court. If Mr. Pastor’s doctor concludes that he is unable to stand trial, the court will conduct a hearing prior to the commencement of trial to facilitate resolution of the conflicting evaluations. VIII. Defendant Pastor finally has taken the very serious step of asking this court to recuse itself from further consideration of this ease. Fully cognizant of the seriousness of the charges he is bringing, Pastor invokes the provisions of 28 U.S.C. § 144, which provide, in pertinent part: “Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.” As required by the remainder of the statute, Pastor’s application includes an affidavit setting forth the facts upon which the allegation of bias or prejudice is based, along with a certification of counsel that the application is made in good faith. Defendants properly point out that, to be legally sufficient to require recusal, the affidavit must show an objectionable inclination or disposition of the judge, and must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment. Berger v. United States, 255 U.S. 22, 33-35, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Rosen v. Sugarman, 357 F.2d 794, 798 (2d Cir. 1966); Wolfson v. Palmieri, 396 F.2d 121, 124 (2d Cir. 1968). As the United States Supreme Court has stated: The basis of the disqualification is that ‘personal bias or prejudice’ exists, by reason of which the judge is unable to impartially exercise his functions in the particular case. It is a provision obviously not applicable save in those rare instances in which affiant is able to state facts which tend to show not merely adverse rulings already made, which may be right or wrong, but facts and reasons which tend to show personal bias or prejudice. It was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise . . . .” Ex parte American Steel Barrel Co., 230 U.S. 35, 43-44’, 33 S.Ct. 1007, 1010, 57 L.Ed. 1379 (1913); see also Barkan v. United States, 362 F.2d 158 (7th Cir. 1966), cert. den. 385 U.S. 882, 87 S.Ct. 170,17 L.Ed.2d 109 (1966). The Supreme Court has further made clear that “[t]he alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). Should the affidavit supporting the motion fail to state a legally sufficient basis for recusal, and fail to show that bias or prejudice which the statute requires, then the judge shall not be disqualified, for there is a duty on the part of the judge not to recuse himself or herself when there is no proper occasion to do so. Rosen, supra, at 799; Wolfson, supra, at 124; Hodgson v. Liquor Salesmen’s Union, Local No. 2 of State of New York, 444 F.2d 1344, 1348 (2d Cir. 1971). Bearing in mind these judicially imposed standards for judging the sufficiency of an application for recusal, the court turns to an examination of the grounds proffered by defendant Pastor in his .affidavit. Although Mr. Pastor contends that they cumulatively indicate “a pattern of abusive and unnecessarily harsh rulings and actions” which “mitigates [sic] against the Court’s ability to continue to preside in this matter in a completely unbiased and impartial manner”, they will be treated singly in the first instance. Mr. Pastor’s first contention is the very serious one that various of the court’s rulings have been heedless of the precarious state of his health and have, in fact, contributed substantially to a significant worsening of his condition. Specifically, he notes that the court had been apprised from an early stage in this litigation that he suffered from a serious chronic heart condition, which both Government and defense experts were later to diagnose as severe and advanced triple-vessel coronary artery disease. An awareness of the potential severity of this condition led the court, on the defendant’s motion, to order medical examinations to determine whether Mr. Pastor was physically able to withstand the rigors of a criminal trial. These examinations were conducted in New York City on February 11 and 12, 1976 by two physicians, Dr. Leslie A. Kuhn and Dr. Meyer Texon, who were selected by the defendant and the Government, respectively. Soon thereafter, the court received reports from the examining physicians, in which Dr. Kuhn concluded that Mr. Pastor’s participation in a trial at that time would create a substantial “risk to his health and might have life-threatening consequences”, while Dr. Texon stated that “it is very unlikely and only remotely possible that a myocardial infarction will occur” during participation in a court proceeding, and that congestive heart failure was “most unlikely now”. Because of differences of opinion between the two experts, the court ordered a hearing scheduled for February 17 to resolve the critical factual question whether Mr. Pastor was able to stand trial. On Friday, February 13, 1976, Mr. Pastor’s counsel orally advised the court, in the presence of the Government’s counsel, that he had been informed by Mr. Pastor’s wife that the defendant’s condition had become progressively worse since his return to his home in Philadelphia following the physical examination conducted by Dr. Texon on February 11, and that oxygen had to be administered to him on the night of February 12. At that time, over objection of Mr. Pastor’s counsel, the court made the order which he most severely attacks, requiring that he be present in court on the following Tuesday, February 17, at the hearing to determine his ability to stand trial. Three days later, on February 16, Mr. Pastor was hospitalized in Philadelphia with congestive heart failure, a diagnosis subsequently confirmed by the Government’s physician, Dr. Texon. Consequently, Mr. Pastor was unable to be in court on the 17th, and the date of trial was adjourned to May 17, 1976. Mr. Pastor suggests that this order that he be present at the hearing on February 17, was unreasonable and unnecessary in view of his medical history and in view of the fact that “he was to perform no role” at that hearing, “the very purpose of which was to hear medical testimony on his ability to participate in Court proceedings.” However, in so arguing, Mr. Pastor neglects to indicate that the Government sought to question him at that time concerning his voluntary testimony before a federal administrative hearing in Washington, D.C. several weeks earlier, and concerning the degree of his recent activity in managing his own pharmaceutical business in Philadelphia — both activities bearing on his ability to withstand stress and engage in some limited physical activity. Mr. Pastor further speculates that the added tension incident to his impending appearance at this court on February 17 may well have contributed significantly to the congestive heart failure which then necessitated his hospitalization. While the court, in deciding a motion to recuse, must accept as true the facts stated by the moving party in his affidavit as the basis for his belief that prejudice exists, Rosen, supra, at 797, the court need not accept as true speculation of this degree, as to which reputable cardiologists might well differ. Even if it could be persuasively demonstrated that there was, in fact, a causal relationship between the court’s order and Mr. Pastor’s incident of congestive heart failure, such a relationship, standing alone, does not constitute cogent evidence of the existence of judicial bias or prejudice. Nor, in the court’s view, is that incident reflective of a pattern of disregard for the defendant’s concededly serious heart condition which indicates bias or prejudice. The decision to subject any man to the rigors of a criminal trial is one of the utmost gravity. But the decision is rendered yet more difficult when the health of the accused is precarious. It is incumbent on the courts, no less than prosecutorial agencies, to avoid imposing punishment before conviction, even if that punishment is one brought about by the defendant’s own physical condition. On the other hand, however, the courts have a clear duty to ensure that those persons accused of criminal activity be brought to trial as soon as possible within the limits of due process. And they must ensure that those persons able to stand trial, even with some physical discomfort, be obliged to do so. It appears to the court that its decision to order Mr. Pastor to appear at the hearing on February 17 is merely reflective of the foregoing considerations, particularly in the face of conflicting expert testimony as to his ability to stand trial. The worst that could conceivably be said of the decision is that it was the product of an erroneous weighing of the medical evidence before the court (although the court believes this to be untrue); it was not a decision indicative of bias or prejudice against the defendant. Defendant Pastor’s second allegation of prejudice is that the court unfairly refused to adjourn the February 17 date for the commencement of trial in view of the fact that his counsel first received a copy of the most recent superseding indictment on the afternoon of February 12, when there was only one business day remaining before the first day of trial. In Mr. Pastor’s view, the sudden appearance of this new indictment, with its additional count and other changes (detailed supra), combined with the fact that he was seriously ill, clearly necessitated an adjournment in order to ensure that he received his rights to due process and to the effective assistance of counsel. The court is unable to find in these circumstances any legally sufficient evidence of bias or prejudice toward the defendant. The original indictment had been on file since July 31, 1975 and, according to the Government, all evidence on which the addition of the new count was based had been produced to the defense some months earlier. Moreover, the Assistant United States Attorney in charge of the case indicated that he had informed Mr. Pastor’s counsel at the beginning of the preceding week that a superseding indictment would be filed and that he had informed him of the substance of the charge. The zeal of Mr. Pastor’s counsel to represent his client with meticulous care is in accordance with the highest standards of the Bar, and has been evident throughout all stages of this litigation. However, the court must also have regard for the congested nature of the dockets in this judicial district, and must often require adherence to scheduling deadlines which may appear harsh to individual litigants, but which are necessary to ensure the expeditious handling of a large volume of civil and criminal cases. In these circumstances, the court is unable to find that its refusal to adjourn the scheduled date for the commencement of trial either potentially constituted a denial of constitutional rights or, much less, constituted evidence of extrajudicial bias or prejudice such as to warrant recusal. Mr. Pastor’s remaining allegations may be dealt with more succinctly. He first notes that the court orally denied, on February 12, 1976, a very substantial motion to dismiss the indictment which had been made on the ground that the statute on which it was predicated was constitutionally defective in various respects. Since the court indicated at the time it rendered its decision that a written opinion would follow explaining its decision, and since the court has not yet filed that opinion, Pastor contends that this delay “suggests a cavalier disregard of the defense motions and issues genuinely made and raised.” Even assuming that this court had no intention of filing a written opinion on that motion, such a circumstance would indicate no impropriety, let alone any cognizable bias or prejudice; this court is under no obligation to file a written opinion explaining its decision on any motion, although that may be the better practice in some situations. Mr. Pastor’s next contention is that this court acted improperly in writing directly to him on March 31, 1976 and directing him to procure other trial counsel who would be able to represent him at trial on May 17, 1976 — the date then scheduled for commencement of trial — -if his present counsel should be unable so to do because of a serious back and leg ailment which then appeared to require hospitalization and an extended period of convalescence. Pastor’s counsel, who was then in the hospital, was not consulted prior to the issuance of the letter, but he received a copy of this communication. Moreover, his associate was personally advised by the court of its actions a day later in open court, where the direction was repeated. Pastor argues that this “invasion” of the “constitutionally sacred attorney-client relationship”, especially in view of the fact that Mr. Pastor was still recovering from his congestive heart failure at the time he received the letter, reflects a continuing attitude of unfairness and presumably, prejudice toward the defendant, rather than the letter’s obvious concern for preservation of his right to a speedy trial. The court is simply unable to agree that this action on its part was, in any way, violative of Mr. Pastor’s rights, much less indicative of bias or prejudice against him. The letter speaks for itself. In summary, the court cannot agree that the factual allegations contained in the affidavit of Mr. Pastor’s counsel, either considered alone or cumulatively, constitute a legally sufficient showing of that personal bias or prejudice required to cause a judge to forego consideration of a case. Nor does the court find present here those “circumstances in which a judge may wish to recuse himself although a legally sufficient affidavit of bias or prejudice could not be presented against him.” Wolfson, supra, at 125. The motion for recusal is, accordingly, denied. MEMORANDUM OPINION ON SUBSEQUENT MOTION TO DISMISS Defendants Edward Pastor and Martin Weiner stand indicted on one count of conspiring to violate Sections 812, 841(a)(1), 843(a)(2), and 843(a)(3) of Title 21, United States Code, and four counts of violating Section 843(a)(3) by allegedly illegally obtaining various quantities of the drugs phendimetrazine and phentermine. On this motion, they seek to dismiss the indictment pursuant to Rule 12, Fed.R.Crim.P., on constitutional grounds. However, as the court has previously ruled, the motion is denied, for the reasons more fully set forth herein. Defendants’ arguments are primarily directed at the statutory scheme embodied in 21 U.S.C. §§ 811 and 812, both on its face and as it operated to effectuate the scheduling of phendimetrazine and phentermine as “controlled substances” within the meaning of the Drug Abuse Prevention and Control Act of 1970 (Drug Abuse Act), 21 U.S.C. § 801 et seq. Briefly summarized, the arguments are as follows: (1) in giving to the Attorney General the authority to add new drugs to the lists of controlled substances which it initially enumerated, the Congress undertook an illegal delegation of legislative power to an officer of the Executive branch of the Government; (2) such a delegation creates an unwise and improper concentration of power in the hands of the Attorney General which is subject to abuse; (3) the standards promulgated by Congress to guide the Attorney General in the exercise of his authority are so vague as to give no guidance to the delegee; and (4) assuming, arguendo, the validity of the delegation effected by the statute, the Attorney General abused his discretion in scheduling phendimetrazine and phentermine by (a) improperly considering factors extrinsic to the statutory scheme and (b) failing to consider all the factors which the statute requires him to consider in making his decision. These arguments will be treated seriatim, I Defendants’ first contention, of unlawful delegation, is premised upon the authority given to the Attorney General of the United States by 21 U.S.C. § 811 to add to the schedules of controlled substances, enacted by Congress and found in 21 U.S.C. § 812, certain drugs or other substances which he finds have a potential for abuse. Inasmuch as other sections of the Drug Abuse Act set forth serious criminal penalties for unauthorized dealings in controlled substances, defendants argue that this grant of scheduling authority constitutes an unconstitutional delegation of legislative power, enabling the Attorney General to render criminal conduct which had previously been innocent. Before dealing with the specific statutory mechanism established by the Drug Abuse Act, it should be noted that the doctrine of unconstitutional delegation has been one of limited vitality and infrequent application in the federal courts in recent years. See Jaffe, Judicial Control of Administrative Action 69-72, 85 (1965); 1 K. Davis, Administrative Law Treatise §§ 2.01, 2.02, 2.06 (1958); Gellhorn and Byse, Administrative Law 60-65 (1970). Only twice has the United States Supreme Court invalidated congressional delegations to governmental authorities. Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935); Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935); Davis, supra, § 2.06. Both cases “dealt with delegation of a power to make federal crimes of acts that never had been such before and to devise novel rules of law in a field in which there had been no settled law or custom.” Fahey v. Mallonee, 332 U.S. 245, 249, 67 S.Ct. 1552, 1554, 91 L.Ed. 2030 (1947). Although transactions in the particular drugs here involved have apparently not been previously illegal, it is clear that drug possession and use has long been an area involving criminal sanctions. To say that Congress cannot delegate its power to legislate, by virtue of the separation of powers mandated by the United States Constitution is merely to declare an axiom which is of little assistance in deciding the merits of a particular statutory scheme. The Supreme Court has indicated that a delegation is “. . . constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of the delegated authority.” American Power Co. v. S.E.C., 329 U.S. 90, 105, 67 S.Ct. 133, 142, 91 L.Ed. 103 (1946). What is important is that the authority given to an officer of the Executive branch be guided and circumscribed by criteria which are intelligible both to the officer involved and to a court which might be reviewing the administrative decision at a later date. Thus, the propriety of a delegation is usually dependent upon the adequacy of the statutory standards promulgated to guide the administrator (as defendants argue in their third point). However, defendants do not argue, on this branch of their motion, merely that the statutory standards are unduly vague or meaningless so as to vest an uncontrolled discretion in the hands of a government officer. Rather, they stress that the grant to the Attorney General of the authority to “create new crimes” by adding new substances to the schedules of controlled substances is invalid, irrespective of the quality of the criteria governing the exercise of his discretion. In so arguing, they explicitly disclaim, as they must, any contention that Congress cannot authorize administrative agencies (including Executive departments) to promulgate regulations necessary or relevant to their effective functioning, violation of which would constitute a criminal offense. United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911). However, they attempt to distinguish the delegation at issue here from that involved, hypothetically, in a grant of power to the Secretary of Health, Education, and Welfare, which would, in their view, be “at least arguably necessary to the exercise of reasonable controls over pharmaceuticals.” The critical distinguishing factor, they argue, is that the power to schedule drugs is here vested in the nation’s chief prosecutorial officer. This latter contention appears to be without merit, and is certainly irrelevant insofar as the question of the validity of the delegation is concerned. Since the essential evil of excessive delegation is that Congress thereby abdicates its legislative responsibility to a member of the Executive branch, the identity of that official and the nature of his duties appear irrelevant to resolution of the delegation questions. As defendants frankly admit, their contention that this delegation is impermissible by virtue of the office of the delegee, i. e., the Attorney General, rather than his mere position in the Executive branch of the government presents this court with a question apparently of first impression. Two other courts have considered the validity of a closely similar delegation of scheduling authority to the Secretary of Health,