Full opinion text
DAUGHERTY, Chief Judge. Defendants Hall and Taylor have filed Motions for Discovery and Inspection. Defendant Hall in his Motion also moves for the Production of Evidence Favorable to the Accused. Both Motions are supported by Briefs. The Plaintiff has filed its Response to said Motions. Defendant Hall seeks to discover the following matters: (1) Written or recorded statements, confessions, or admissions made by himself, any co-defendant, or any unin-dicted co-conspirator; (2) Physical objects obtained in investigating the case which may be used as evidence or which could be used by Defendant for exculpatory purposes to include electronically recorded statements; (3) The identity of all persons who have knowledge of the case or who have been interviewed by Government agents, whether or not the Government plans to call such persons as witnesses in the case. In this regard, he seeks (a) written statements of persons the Government does not intend to call at trial, (b) Grand Jury testimony, (c) exculpatory material, and (d) Federal and State criminal records; (4) Scientific reports or results relating to fingerprints, handwriting, or electronic tests; (5) Tangible objects to be used at trial or obtained from Defendant; (6) Information from the United States Attorney as to: (a) whether information has been received from an informant, (b) if relevant information was presented to the Grand Jury which was not recorded, and (c) if it knows of information which would mitigate the punishment of Defendant if convicted; (7) That any Order pursuant to this Motion be on a continuing basis pursuant to Rule 16(g), Federal Rules of Criminal Procedure; and (8) That his requests be considered separately. Defendant Taylor seeks to discover the following items: (1) Any notes or writings by any Defendant which is to be used as evidence; (2) Evidence to be introduced in nature of money, currency or checks relating to bribery, extortion, or conspiracy; (3) Tangible objects to be introduced at the trial; (4) Any statements or confessions made by any co-defendant which would incriminate or in the alternative exculpate Defendant Taylor; (5) Statements of other witnesses whether incriminating or exculpatory as to Defendant Taylor; and (6) any other exculpatory matters. In its Response, the Government advises the Court that it has furnished to Defendants copies of transcripts of tape-recorded conversations involving all Defendants and copies of the actual tapes themselves. It further states that no other conversations of Defendants or other persons were recorded or overheard. It appears that a few poor quality tapes are at the Federal Bureau of Investigation Laboratory and will be furnished upon return. The Government in its Response further denies it has the following requested items: (1) Written or recorded statements or confessions by either moving Defendant; (2) Exculpatory evidence except as noted in depth hereafter; (3) Any arrest and conviction or related records as to its witnesses; and (4) Any scientific reports or statements by experts. The Government asserts certain requests by Defendant Hall are not supported by authority showing his entitlement to same and thus it declines to submit such information. Included in this response are: (a) Whether information was provided by an informant; (b) Whether certain Grand Jury testimony was not transcribed; (c) and Evidence which would tend to mitigate punishment in the event of a conviction. The issues being framed by the parties, the Court makes the following rulings on the Motions for Discovery and Inspection: STATEMENTS BY DEFENDANTS The Government has responded that it has no written or recorded statements or confessions from Defendants Hall and Taylor and on this basis such request is denied. The request by both of these Defendants is broad enough to include any statements made by Co-defendant Mooney, who has previously entered a Plea of Guilty to the Conspiracy Count of the Indictment in the instant case. Rule 16(a), supra, allowing a defendant to obtain copies of statements or confessions appears to specifically relate to the moving Defendant’s own statements. The moving parties have failed to support their request as to statements or confessions by Mooney with legal authority. The Courts have held that statements of co-defendants are not discoverable under Rule 16(b), supra. United States v. Randolph, 456 F.2d 132 (Third Cir. 1972), cert. den., 408 U.S. 926, 92 S.Ct. 2507, 33 L.Ed.2d 337; United States v. Mahany, 305 F.Supp. 1205 (N.D.Ill.1969); United States v. Fassler, 46 F.R.D. 43 (S.D.N.Y.1968); United States v. Westmoreland, 41 F.R.D. 419 (S.D.Ind. 1967). The request is denied as to any statements of Co-defendant Mooney. EXCULPATORY EVIDENCE The Government advises it has no evidence which could be considered exculpatory with the possible exception of statements contained in a particular tape-recorded telephone conversation which it advises it has furnished Defendants. In its Response, the Government tendered to the Court for in camera examination all reports of the investigative agency involved in this case. The Court declines to examine these reports. The situation is analogous to the matter considered in Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) which involved grand jury testimony. The Court stated: “Trial judges ought not to be burdened with the task or the responsibility of examining sometimes voluminous grand jury testimony in order to ascertain inconsistencies with trial testimony.” Likewise, a trial judge ought not to be burdened with the task of examining investigative reports of Government agencies to determine if exculpatory material is contained therein. This responsibility is that of the prosecution. On the foregoing basis the Motions requesting exculpatory evidence are denied. IDENTITY OF WITNESSES The Motions being considered herein request many items which are dependent on the Government disclosing the identity of its witnesses or prospective witnesses. In United States v. Gleeson, 411 F.2d 1091 (Tenth Cir. 1969) the Court stated: “It is well settled in this circuit that in non-capital cases an accused is not entitled to be furnished a list of the names of government witnesses.” Among the numerous cases following this point are Nipp v. United States, 422 F.2d 509 (Tenth Cir. 1970) and United States v. Baca, 494 F.2d 424 (Tenth Cir. 1974). Those requests contained in Defendants’ Motions to include identity of witnesses, statements of same, and arrest and criminal records of witnesses are thus denied except it is noted that the Government has advised in its Response that it knows of no arrest or criminal records of its witnesses. TANGIBLE EVIDENCE The Government in its Response agrees to allow Defendants to inspect or obtain copies of all tangible evidence it plans to offer as evidence. This will be accomplished as set out hereafter. GRAND JURY TESTIMONY Defendant Hall has filed a separate Motion relating to Grand Jury testimony and therefore issues relating to such will not be considered in the instant Order. INVESTIGATIVE INFORMATION Some of the material or items requested, in particular the request seeking identity of persons interviewed by Government agents in investigating this case and statements of such persons who will not be called as witnesses in this case, constitutes a request for discovery of internal Government documents made .by Government agents. Such material is specifically excluded from pretrial discovery in Rule 16(b), supra, which provides: “Except as provided in subdivision (a)(2), this rule does not authorize the discovery or inspection of reports, memo-randa, or other internal government documents made by government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses (other than the defendant) to agents of the government except as provided in 18 U.S.C. § 3500.” The Government correctly objects to such requests on the basis the Rule specifically excepts from discovery items contained in internal government investigative reports. The requests relating to these items to include whether informants were used are denied. United States v. Stephens, 315 F.Supp. 1008 (W.D.Okl.1970). United States v. Marth, 42 F.R.D. 432 (S.D.N.Y. 1967). Defendant Hall’s request that its Motion be deemed continuing is not acted upon by the Court as the request is for a procedure which operates automatically pursuant to Rule 16(g), supra. Accordingly, the 14th day of February, 1975, at 10:00 a.m. at the offices of the United States Attorney, United States Court House, Oklahoma City, Oklahoma, are designated as the time and place for the Government to furnish the Defendants the items it is to furnish them pursuant to this Order. It is so ordered this 10th day of February, 1975. ON MOTIONS FOR CONTINUANCE, TRANSFER AND TO SUPPRESS Upon consideration of the Motions of Defendants Hall and Taylor for Continuance, Transfer and To Suppress and after a consideration of the Briefs in support of and in opposition to the Motions and after conducting an evidentiary hearing on all of said Motions, the Court finds that all of said Motions should be overruled. THE MOTIONS FOR CONTINUANCE OR TRANSFER These Motions are based on alleged prejudicial pretrial publicity. The Defendants placed in evidence certain local newspaper clippings and presented the testimony of two newspaper publishers from small towns near Oklahoma City, Oklahoma who expressed their opinion that Defendant Hall could not get a fair trial here at this time because of local prejudicial newspaper publicity. The Court declined to hear the testimony of certain local newspaper reporters proffered as witnesses by Defendants for the purpose of inquiring into the source of the material which went into their newspaper stories regarding the Defendants. This declination was based on such inquiry not being material or relevant to the Motions under consideration. It is the view of the Court that it is the local newspaper publicity as placed in evidence per se and its effect on potential jurors that is material and relevant — not the source of the news stories. Our Circuit has spoken to this type motion in several authoritative decisions. In Welch v. United States, 371 F.2d 287 (Tenth Cir. 1966), cert. den., 385 U.S. 957, 87 S.Ct. 395, 17 L.Ed.2d 303; and in United States v. Cooper, 464 F.2d 648 (Tenth Cir. 1972), continuances on the basis of alleged prejudicial pretrial publicity were denied and the rulings affirmed. In United States v. Jobe, 487 F.2d 268 (Tenth Cir. 1978) a transfer or venue change on the basis of alleged prejudicial pretrial publicity was denied and the ruling affirmed. There is also an excellent discussion on the problem in United States v. Hoffa, 156 F.Supp. 495 (S.D.N.Y.1957) and in Estes v. United States, 335 F.2d 609 (Fifth Cir. 1964), cert. den., 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559, reh. den., 380 U.S. 926, 85 S.Ct. 884, 13 L.Ed.2d 814. Welch, supra, which involved an Oklahoma Supreme Court Justice, teaches that jury prejudice will not be presumed from widespread news coverage preceding and during the trial of a high placed person; that the exercise of free reporting is a right which must be balanced against the right of an accused to be tried by an impartial jury but does not dictate the conclusion that prominence brings prejudice. These cases all stand for the proposition that the procedural safeguards of the voir dire examination of jurors and authorized challenges of jurors provide the ultimate test of whether it is possible to select a fair and impartial jury from the panel selected from the vicinity where the publicity occurred. If utilization of this procedure demonstrates that it is not possible then a continuance or transfer or both on request are available for consideration. The cases also recite that the matter of a continuance or transfer rests in the sound discretion of the Court. The Court cannot say from the evidence before it that it is impossible to select a fair and impartial jury at this time in this Court to try these Defendants. It is recognized that one of the Defendants is a former Governor of this State, leaving that office as recent as January 13, 1975. But, his prominence was and is statewide and more and so was and is his publicity. Considering the high office from which he has only recently departed, it is not believed that his prominence will significantly subside in the near future. Rule 21, Federal Rules of Criminal Procedure provides that the Court upon motion shall transfer a proceeding to another district if the Court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against a defendant that he cannot obtain a fair and impartial trial at any place picked by law for holding court in that district. From the evidence before the Court, the Court is not satisfied at this time and at this stage of the proceeding that any prejudice would exist in a jury panel which would be called in this District against a Defendant which would warrant affirmative action under this Rule. Accordingly, the Motions of the Defendants herein for a Continuance or Transfer because of pretrial publicity should be denied subject to reconsideration on request after the voir dire examination of prospective trial jurors in this Court. As Defendant Hall’s Motion also includes a request that because of alleged prejudicial pretrial publicity the charges against him be dismissed, the Court should likewise deny this Motion to Dismiss on this ground. THE MOTIONS TO SUPPRESS These Motions request the Court to suppress all evidence obtained by the Government by the means of electronic surveillance of the Defendants to include telephone recorders, body recorders and transmitters. The Movants allege that this evidence was illegally obtained, thus should be suppressed as evidence herein by the Court. The Plaintiff acknowledges that it has evidence to be introduced herein obtained by means of electronic surveillance of the Defendants and states that it has delivered to the Defendants all transcripts of such evidence as well as copies of all tapes except some few tapes of poor quality which are now at the Federal Bureau of Investigation Laboratory for the purpose of an attempt to improve the quality so that they are readable and which few tapes will be delivered to Defendants upon return whether the quality has been improved or not. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939) holds that testimony obtained from intercepted telephone messages in violation of Section 605 of the Federal Communications Act, 47 U.S.C. § 605, is inadmissible and should be suppressed as evidence on motion. The case of Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957) holds that there is no violation of 42 U.S.C. § 605 if a telephone interception is done with the consent of one party to the telephone conversation. Congress in 18 U.S.C. § 2511 appears to codify the ruling of Rathbun by providing in legislation that: “(2) * * * (c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. (d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.” Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) holds that the recording of a defendant’s conversation in his office with a federal agent which is recorded by a recording device concealed on the body of the federal agent is not illegally obtained and is admissible in evidence and United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) holds that the use of a radio transmitter carried on the person of an informant which transmits to Government agents the conversation between a defendant and the informant does not violate any of the defendant’s rights and recordings made from such transmissions are admissible in evidence. Nardone, supra, also provides that a defendant in a criminal case who asserts that evidence against him was improperly obtained by wire tapping has the burden of proving to the trial court’s satisfaction the truth of the assertion. Our Circuit in Nolan v. United States, 423 F.2d 1031 (Tenth Cir. 1970) had occasion to treat with the procedure and the burden of proof in a case in which it was alleged that evidence had been obtained by the Government by illegal wire tapping. It was held in Nolan, supra, that after inspecting the recordings and transcripts of alleged illegal electronic surveillance, the burden was on the defendant to prove that illegal electronic surveillance of himself had occurred and then the ultimate burden of persuasion against illegality and taint was on the Government and at the same time defendant was required to go forward with specific evidence demonstrating illegality and taint. The Defendants appear to claim with reference to these Motions that the evidence obtained by electronic surveillance of them was (1) illegally obtained by the Government and (2) that any consent regarding the same by the informant (John Rogers) was obtained by the Government by coercion. The Defendants presented no evidence of a direct 47 U.S.C. § 605 violation. This was so notwithstanding the Court more or less insisting that a knowledgeable and responsible person from both the FBI and the IRS for the State of Oklahoma be presented for examination on this point. Such persons were presented and were examined. The Court finds and concludes that no evidence has been presented to show a direct 47 U.S.C. § 605 violation. The Defendants have failed to carry their burden in this respect. The informant called by the Defendants testified that as to all recordings and tapes he freely and voluntarily gave his consent to the Government to all interceptions and recordings and transmissions, both verbally and in writing on some occasions. All of the Defendants’ efforts were directed toward establishing that such consent of the informant was coerced by the Plaintiff and thus was involuntary. Questioning in this direction dwelled largely on the informant’s past difficulties with or investigations by the Federal Government in other matters than the subject matter of this Indictment. Coercion is defined in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) as the exertion of such pressure upon an individual as to disable him from making a free and rational choice. In Good v. United States, 378 F.2d 934 (Ninth Cir. 1967) and McClure v. United States, 332 F.2d 19 (Ninth Cir. 1964), cert, den., 380 U.S. 945, 85 S.Ct. 1027, 13 L.Ed.2d 963 it is stated that an expectation of leniency is not coercion. In United States v. Osser, 483 F.2d 727, 730 (Third Cir. 1973), cert. den., 414 U.S. 1028, 94 S.Ct. 457, 38 L.Ed.2d 221, the Court stated: “Our inquiry on appeal is limited to whether the consent was voluntary and uncoerced, not whether the motivations for it were altruistic or self-seeking. As the court said with respect to hopes for leniency in United States v. Zarkin, 250 F.Supp. 728, 737 (D.C.C.1966): We can think of no time in which a party to a telephone conversation would permit the police to intercept that conversation when he, himself, would not seek something from the police in return, assuming he is of sound mind and knows the police are police. He might merely be seeking police protection from threatening phone calls. Or, he might be an undercover policeman who seeks his paycheck. Or, indeed, he may be seeking leniency. However, so long as pressure is not initiated by the police for the purpose of overbearing the will of the party, this Court does not believe that the authorization given by the party is involuntary.” The Court finds and concludes from the evidence that Defendants have not in any sense established that the consent of the informant to the electronic surveillance of Defendants by means of his telephones and his body was coerced by the Government. His consent to such electronic surveillance of Defendants appears to have been freely and voluntarily given and moreover, was given in concert with participation therein by the Attorney General of Oklahoma, the chief law enforcement officer of the State of Oklahoma. No evidence has been presented to the Court which would constitute in any sense the exertion of such pressure on the informant by the Government which disabled him from making a free and rational choice about consenting to electronic surveillance. The evidence discloses that the informant went to the Federal Government with information about this case — the Federal Government did not go to him. And this was the first information coming to the attention of the Federal Government regarding this case. And he went to the Federal Government after conferring with the Attorney General of Oklahoma. It further appears that such consent was given without the use by the Government of any force, threats or promises; that his criminal tax investigation had been concluded favorably to him and the following civil tax examination had been concluded and settled, both prior to the occurrence of anything which has been brought to the attention of the Court with reference to the subject matter of this Indictment. Also, an SEC investigation of the informant by the Federal Government appears to have been concluded several years ago and the matter of a “special campaign fund” which the Government was interested in appears to have been resolved, though perhaps not concluded, prior to the occurrence of the informant’s first visit to the FBI with information about the subject matter of this Indictment. The informant testified that this campaign fund matter had absolutely nothing to do with his consent to the electronic surveillance of Defendants. Accordingly, the Motions to Suppress the evidence obtained by the Government by means of electronic surveillance of the Defendants should be overruled and such evidence admitted at trial with .the jury to be given appropriate instructions as to its consideration of the same. The Defendants’ Motions for Disclosure of Electronic Surveillance and to Suppress same requested a hearing at the earliest possible date which request has been granted and the hearing conducted. The Court assumes from the Response of the Plaintiff to said Motions and the events of the evidentiary hearing which has been conducted that the Plaintiff has or soon will furnish all the demands of the Defendants with reference to electronic surveillance material. In this connection it appears that no judicial approval was sought with reference to the Plaintiff’s electronic surveillance conducted herein. Those requests of Defendants in the Motions under consideration for internal government documents made by Government agents in connection with this case are not discoverable under Rule 16(b), Federal Rules of Criminal Procedure. The requests of Defendants as contained in their Motions under consideration that the Indictment herein be dismissed as to them because of illegally obtained evidence is denied for there has been no showing made that the Indictment was based upon illegally obtained evidence as heretofore set out in this Order. Defendants’ request for a continuing disclosure need not be treated by the Court in view of Rule 16(g), Federal Rules of Criminal Procedure. Defendants’ final request for a protective order that the electronic surveillance material be only disseminated to counsel of record for Defendants and not disclosed to anyone else without the expressed written permission of the Defendants is denied. Defendants’ supporting Brief is silent on this point. No showing has been made to the Court under Rule 16(e), Federal Rules of Criminal Procedure, to warrant granting this request. In view of what has been presented to the Court in regard to these Motions and this included request, the Court in its discretion finds no need for such a protective order. Moreover, it would appear that such a protective order would be unduly restrictive on the Plaintiff in its utilization of such material prior to and at the trial. It is so ordered this 10th day of February, 1975. ON MOTION TO DISMISS FIRST DEFENDANT The defendant, W. W. Taylor, has filed herein his Motion to Dismiss the Indictment. The thrust of his first proposition is that Count I alleges defendant David Hall attempted to extort money from him and that this is a complete defense to the charges in Counts II, V and VI, that he schemed to bribe Hall and John Rogers. He claims that bribery and extortion are mutually exclusive and reasons that he could not be both a victim and conspirator. He concludes: “Essentially the indictment fatally contradicts itself when it alleges that the same transaction constitutes both extortion and bribery.” The argument is deceptively appealing for it ignores the allegations concerning the bribery of John Rogers. In Count I Hall as the sole defendant is alleged to have attempted extortion from W. W. Taylor, R. Kevin Mooney and/or G.I.C. Count II charges a conspiracy by Hall, Taylor and Mooney in violation of 18 U.S.C. § 371. The object of the conspiracy is to violate 18 U.S.C. § 1952 by interstate travel and the use of interstate communication facilities with intent to promote and carry on an unlawful activity. The unlawful activity is described as a scheme to bribe Oklahoma officials in violation of 21 O.S. § 381 and for them to accept the bribe in violation of 21 O.S. § 382. Twenty-one overt acts in the furtherance of the conspiracy are detailed. Specifically the agreement by the conspirators Taylor and Mooney to pay $50,000 to Hall and his offer to Rogers to pay him one-half of this sum to influence his action as Chairman of the Board of Trustees of the Oklahoma Public Employees Retirement System in considering Taylor’s investment proposal for the System is alleged. Counts V and VI are the only other counts involving Taylor. These allege that on two different occasions he and Mooney traveled from Texas to Oklahoma City to carry on a scheme to bribe David Hall and John Rogers in violation of the travel act. It has been noted with approval that it is the modern trend of the federal courts to hold that bribery and extortion as used in the Hobbs Act are not mutually exclusive. United States v. Braasch, 505 F.2d 139, 151 n. 7 (CA7 1974). A defense similar to one projected by the defendant Taylor was rejected in United States v. Kahn, 472 F.2d 272, 278 (CA2 1973), the court stating: “Almost every bribery case involves at least some coercion by the public official; the instances of honest men being corrupted by ‘dirty money,’ if not non-existent, are at least exceedingly rare. The proper response to coercion by corrupt public officials should be to go to the authorities, not to make the payoff. Thus, unless the extortion is so overpowering as to negate criminal intent or willfulness, we would be loath to allow those who give in to the illegal coercion to claim it as a total defense to bribery charges.” Nevertheless, if we accept as valid the premise of the defendant that he cannot be both the victim and seducer of Hall, it does not follow that the Indictment is fatally defective. By analogy he has suggested that it is like charging Hall with rape and Taylor with prostitution when they go to bed with each other. Extending the analogy further, the court knows of no reason that the rapist and the prostitute could not unlawfully conspire to lure a third party into their bed to seduce him for their mutual profit. Here, regardless of whether we treat the allegations of payment to Hall in Counts II, V and VI as extortion or bribery the counts clearly charge the attempt to bribe Rogers. The transactions between Taylor and Hall cannot be held to have immunized both for their transgressions against Rogers. Both the giver and the taker of a bribe may be charged as co-conspirators to violate 18 U.S.C. § 1952. United States v. Coralio, 281 F.Supp. 24, 28 (S.D.N.Y.1968): “ . . . But this indictment does not charge a conspiracy to commit bribery but rather a conspiracy to violate Section 1952 in that, as part of the conspiracy, the alleged conspirators would travel and would use a facility of interstate commerce in furtherance of the bribe. There is an essential element of the offense here charged which would not be required in a charge of conspiracy to bribe, namely, the travel in interstate commerce or the use of a facility in interstate commerce to aid the unlawful activity.” Finally, if there were repugnancy among the counts, and the court does not agree that there is, this does not require a dismissal of the Indictment against the defendant. The technical charge of repug-nancy applies to a contradiction between material allegations in a count. Sunderland v. United States, 19 F.2d 202 (CA8 1927); United States v. Briggs, 54 F.Supp. 731 (D.D.C.1944). While such repugnancy may render a count bad, repugnancy between counts does not necessarily render an Indictment objectionable. There is no rule which forbids the joinder of offenses otherwise properly joined on the ground that they are inconsistent. See United States v. Van Scoy, 482 F.2d 347 (CA10 1973). In People v. Anderson, 75 Cal.App. 365, 242 P. 906 (1926) the court sustained a two-count Indictment, the first for extortion and the other for bribery, over objection that the commission of one precluded and refuted any possibility of the commission of the other. It is within the power of the Grand Jury to indict a defendant for offenses which may seem “repugnant”. United States v. Valenti, 74 F.Supp. 718 (W.D.Pa. 1947). Next the defendant contends that: “Said Indictment does not state a claim in Counts II, V and VI because the facts alleged to support the bribery allegations do not state an offense under Section 381 or Section 382 of Title 21 of Oklahoma Statutes, which in turn destroys the conspiracy charge under Section 371, Title 18 United States Code in Count II and the ‘Travel Act’ charges under Section 1952 of Title 18, United States Code in Counts II, V and VI of the Indictment.” Essential to the validity of Counts II, V and VI are adequate allegations of an intent to carry on any unlawful activity. Section 1952 of Title 18, United States Code defines “unlawful activity” so far as pertinent here, as “extortion, bribery, or arson in violation of the laws of the State in which committed”. In United States v. Rizzo, 418 F.2d 71, 74 (CA7 1969), cert. denied, 397 U.S. 967, 90 S.Ct. 1006, 25 L.Ed.2d 260 the court held: “The gravamen of the charge under Sections 371 and 1952 is the violation of federal law. As it relates to the substantive counts, the offense is the use of an interstate facility, with the intent to promote or further an unlawful activity in violation of state law, and the performance of some act designed to promote or further that illegal purpose. Reference to state law is necessary only to identify the type of unlawful activity in which the defendants intend to engage. It is not necessary to allege the elements of the state substantive offense intended to be committed.” Citations omitted. The unlawful activity alleged in these counts is two-fold: the bribery of John Rogers and David Hall in violation of 21 O.S. § 381 and the acceptance of a bribe by David Hall in violation of 21 O.S. § 382. The defendant Taylor’s argument ignores the allegations concerning the bribery of Rogers and maintains that the allegations concerning the bribery of Hall are insufficient to show a violation of Oklahoma law for the reason that Hall was not a member of the Board of Trustees of the Oklahoma Public Employees Retirement System and that Taylor’s investment proposal would never come before him in his official capacity as required by 21 O.S. §§ 381 and 382. Assuming arguendo the insufficiency of the allegations to establish unlawful activity consisting of bribery of David Hall, such defect is not fatal to the Indictment. The allegations concerning the attempt to bribe Rogers are sufficient to establish the necessary unlawful activity. Pursuant to the scheme to bribe him it is alleged in Overt Act 3 of Count II that Hall offered him $25,000 to help Hall get the investment proposal from Taylor accepted by the Board of Trustees. John Rogers as Secretary of State was Chairman of that Board and the matter would come before him in his official capacity. The essential elements of a violation of 21 O.S. § 381 are sufficiently covered by these allegations.- Proof in support of these allegations concerning the attempted bribery of Rogers will establish the unlawful activity essential to conviction of the defendant Taylor of conspiring to violate 18 U.S.C. § 1952 in Count II and the substantive counts of violations of the Travel Act in Counts V and VI. The validity of the Indictment is not affected by the fact that the pleader may have mistakenly stated the acts alleged to be a violation of both 21 O.S. §§ 381 and 382. Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610 (1931). In Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927) the defendants had been charged with conspiracy to commit offenses against the United States in violation of (1) the National Prohibition Act, (2) the Tariff Act and (3) the Treaty with Great Britain and in considering the attack upon the Indictment the court stated: “The validity of the indictment is attacked, first, because it charges that the conspiracy was to violate the treaty, although the treaty creates no offense against the law of the United States. This is true, but that part of the indictment is merely surplusage and may be rejected. Bailey v. United States [5 Cir.], 5 F.(2d) 437; Remus v. United States [6 Cir.], 291 F. 501; United States v. Weiss [7 Cir.], 293 F. 992, 995; United States v. Drawdy [5 Cir.], 288 F. 567, 570. The trial court took this view. But it is contended that this is to amend the indictment, and comes within the inhibition of the principle of Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849. That decision condemns the striking out of words from an indictment. The action here complained of is merely a judicial holding that a useless averment is innocuous and may be ignored.” In United States v. Strauss, 283 F.2d 155 (CA5 1960) the defendant was charged in a single count with conspiracy to violate both the Mail Fraud and the Bankruptcy Act. The court found the charge insufficient with regard to the Mail Fraud Statute but adequate as to the Bankruptcy Act. It then stated: “It is further clear that the failure of the indictment against appellee Strauss to charge adequately a violation of the Mail Fraud Statute is effective merely to eliminate that charge from the case; and so long as the remaining portions of the indictment adequately charge a crime, the presence of the surplusage will not justify dismissal of the entire indictment as it related to appellee.” .See also Bary v. United States, 292 F.2d 53 (Tenth Cir. 1961). Accordingly, having determined that there is not cause to dismiss any of Counts II, V, and VI of the Indictment against the defendant W. W. Taylor, his Motion to Dismiss will be denied. IT IS SO ORDERED. ON MOTIONS TO DISMISS SECOND DEFENDANT The defendant, David Hall, first moves the court to dismiss count 1 of the Indictment for the failure to state factual elements sufficient to establish a violation of 18 U.S.C. § 1951 as it purports to do. Specifically, he contends that the count is defective because it does not allege he “actively induced the payment of money to him by those making the payments”. The test of sufficiency of an indictment is that “it contains ‘the elements of offense intended to be charged and must be sufficient to apprize the accused of the nature of the offense so that he may adequately prepare a defense’.” United States v. Mason, 440 F.2d 1293, 1296 (CA10 1971), cert. denied, 404 U.S. 883, 92 S.Ct. 219, 30 L.Ed.2d 165. It has been further stated: “The sufficiency of indictment must be determined on the basis of practical rather than technical considerations and the validity of attacks on them must be considered from a broad and enlightened standpoint of right reason rather than from a narrow view of technicality and hairsplitting.” Robbins v. United States, 476 F.2d 26, 30 (CA10 1973). There are two essential elements giving rise to a violation of the Hobbs Act: Interference with commerce and extortion. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Applying the definition of extortion contained in the statute the elements may be enlarged in this manner: (1) interference with interstate commerce (2) obtaining or attempting to obtain, or conspiring to obtain property from another, (3) with his consent, (4) induced by wrongful use of actual or threatened force, violence, or fear or under color of official right. United States v. Howe, 353 F.Supp. 419 (W.D.Mo.1973). Only the sufficiency of the allegations to establish the fourth element is questioned here. The defendant apparently assumes that it is necessary to allege that he used or threatened force, violence or fear to induce the payment of money. This construction of the statute ignores its disjunctive language and fails to distinguish extortion by private individuals and extortion by public officials. The distinction is pointed out in United States v. Kenny, 462 F.2d 1205, 1229 (CA3 1972), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176: “ . . . But while private persons may violate the statute only by use of fear and public officials may violate the act by use of fear, persons holding public office may also violate the statute by a wrongful taking under color of official right. The term ‘extortion’ is defined in § 1951(b)(2): ‘The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.’ The ‘under color of official right’ language plainly is disjunctive. That part of the definition repeats the common law definition of extortion, a crime which could only be committed by a public official and which did not require proof of threat, fear or duress.” In United States v. Braasch, 505 F.2d 139, 151 n. 8 (CA7 1974) the court commented: “It may be true that duress is an essential element of a case prosecuted under the provision of the Hobbs Act relating to ‘wrongful use of actual or threatened force, violence, or fear’, but coercive extortion is not the only type outlawed by the Act. The other is inducing payoffs ‘under color of official right’; and that offense does not require proof of coercion.” In pertinent part count 1 alleges the attempt to obtain money “which money was not due him from W. W. Taylor, R. Kevin Mooney and/or G.I.C., with the consent of said persons and/or corporation, induced under color of official right, that is to say to obtain said money by virtue of the defendant’s position as Governor of Oklahoma.” This alleges the inducement of a payment under color of official right. The motivation for the payment was for the Governor to use his power to influence the actions of certain members of the Board of Trustees of the Oklahoma Public Employees Retirement System. It focused upon the office of the Governor and the acts that defendant Hall was to perform were to be undertaken in his official position. The defendant Hall was allegedly using his office to attempt to obtain the payment of money to him and such conduct constitutes a violation of the statute. In United States v. Braasch, id. at 151 it is stated: “ . . . The use of office to obtain payments is the crux of the statutory requirement of ‘under color of official right’, and appellants’ wrongful use of official power was obviously the basis of this extortion. See United States v. Staszcuk, 502 F.2d 875 (7th Cir. 1974). It matters not whether the public official induces payments to perform his duties or not to perform his duties, or even, as here, to perform or not to perform acts unrelated to his duties which can only be undertaken because of his official position. So long as the motivation for the payment focuses on the recipient’s office, the conduct falls within the ambit of 18 U.S.C. § 1951. That such conduct may also constitute ‘classic bribery’ is not a relevant consideration.” Count 1, therefore, sufficiently alleges the elements of the offense intended to be charged.- The defendant’s second Motion to Dismiss is directed at counts 2, 3 and 4 of the Indictment. The first theory propounded is that “said Indictment is fatally inconsistent in that it alleges a set of facts in count I that provide a complete legal defense for defendant Hall as to all subsequent counts.” Hall is named in the first four counts of the Indictment. As noted above the first count charges attempted extortion of money from Taylor, and Mooney. Count 2 charges a conspiracy by Hall, Taylor and Mooney in violation of 18 U.S.C. § 371. The object of the conspiracy is to violate 18 U.S.C. § 1952 by interstate travel and the use of interstate communication facilities with intent to promote and carry on an unlawful activity. The unlawful activity is described as a scheme to bribe Oklahoma officials in violation of 21 O.S. § 381 and for them to accept the bribe in violation of 21 O.S. § 382. Twenty-one overt acts in the furtherance of the conspiracy are detailed. Count 3 charges defendant Hall alone with a substantive violation of 18 U.S.C. § 1952 by making an interstate telephone call from San Diego, California, to John Rogers in Oklahoma City to promote and carry on an unlawful activity. Specifically the unlawful activity intended in this count is to bribe John Rogers in violation of 21 O.S. § 381 and facilitate the acceptance of a bribe by the defendant David Hall in violation of 21 O.S. § 382. Count 4 makes the same allegations with respect to a telephone call from Salt Lake City, Utah to John Rogers in Oklahoma City, Oklahoma. Apparently it is defendant Hall’s theory that somehow it is inconsistent for him to attempt to extort money as alleged in count 1 and to use interstate facilities, and conspire to do so, to bribe John Rogers to influence the Board of Trustees of the Oklahoma Public Employees Retirement System. In short, he argues that he cannot be an extortionist, conspirator and briber together. There is, however, no logical inconsistency in the three roles. He is an actor in all three and not a victim. The court perceives no reason or legal barrier to conclude that Hall could not attempt to extort money from Mooney and Taylor and attempt to bribe Rogers by offering to share with him the money he was to receive. Counts 1 through 4 are not mutually exclusive. Rule 8(a), Federal Rules of Criminal Procedure provides: “Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Since it appears that the offenses alleged against the defendant, David Hall, in counts 1, 2, 3 and 4 of the Indictment are based on “two or more acts or transactions connected together or constituting parts of a common scheme or plan” the court concludes that there is not an improper enjoin-der of offenses. If defendant’s argument focuses solely on his role in count 2 as the receiver of a bribe and his co-conspirators as the givers of that bribe, and he relies on the principle that the giver and receiver of a bribe cannot be prosecuted for a conspiracy because the crime of bribery requires the participation of two parties, then his reliance is misplaced. In United States v. Corallo, 281 F.Supp. 24, 28 (S.D.N.Y.1968) the defendants including both the givers and taker of a bribe were charged with conspiracy under 18 U.S.C. § 371 to violate 18 U.S.C. § 1952 to carry on the unlawful activity of violating New York Bribery laws, and the court answered such argument in this manner: “ . . . But this indictment does not charge a conspiracy to commit bribery but rather a conspiracy to violate Section 1952 in that, as part of the conspiracy, the alleged conspirators would travel and would use a facility of interstate commerce in furtherance of the bribe. There is an essential element of the offense here charged which would not be required in a charge of conspiracy to bribe, namely, the travel in interstate commerce or the use of a facility in interstate commerce to aid the unlawful activity.” Finally, if there were repugnancy among the counts, and the court does not agree that there is, this does not require a dismissal of the Indictment against the defendant. The technical charge of repug-nancy applies to a contradiction between material allegations in a count. Sunderland v. United States, 19 F.2d 202 (CA8 1927); United States v. Briggs, 54 F.Supp. 731 (D.D.C.1944). While such repugnancy may render a count bad, repugnancy between counts does not necessarily render an Indictment objectionable. There is no rule which forbids the joinder of offenses otherwise properly joined on the ground that they are inconsistent. See United States v. Van Scoy, 482 F.2d 347 (CA10 1973). In People v. Anderson, 75 Cal.App. 365, 242 P. 906 (1926) the court sustained a two-count Indictment, the first for extortion and the other for bribery, over objection that the commission of one precluded and refuted any possibility of the commission of the other. It is within the power of the Grand Jury to indict a defendant for offenses which may seem “repugnant”. United States v. Valenti, 74 F.Supp. 718 (W.D.Pa. 1947). As a further ground to dismiss counts 2, 3 and 4 the defendant states that: “Said indictment does not state a crime in counts II, III and IV because the facts alleged to support the bribery allegation do not state an offense under Section 381 or Section 382 of Title 21, Oklahoma Statutes, which in turn destroys the conspiracy charge under Section 371, Title 18 of the United States Code in Count II and the Travel Act charges under Section 1952 of Title 18 United States Code in Counts II, V, and VI of the indictment.” Essential to the validity of counts 2, 3 and 4 are adequate allegations of an intent to carry on any unlawful activity. Section 1952 of Title 18, United States Code defines “unlawful activity” so far as pertinent here, as “extortion, bribery, or arson in violation of the laws of the State in which committed”. In United States v. Rizzo, 418 F.2d 71, 74 (CA7 1969), cert. denied, 397 JJ.S. 967, 90 S.Ct. 1006, 25 L.Ed.2d 260 the court held: “The gravamen of the charge under both Sections 371 arid 1952 is the violation of federal law. As it relates to the substantive counts, the offense is the use of an interstate facility, with the intent to promote or further an unlawful activity in violation of state law, and the performance of some act designed to promote or further that illegal purpose. Reference to state law is necessary only to identify the type of unlawful activity in which the defendants intend to engage. It is not necessary to allege the elements of the state substantive offense intended to be committed.” Citations omitted. The unlawful activity alleged in these counts is two-fold: the bribery of John Rogers in violation of 21 O.S. § 381 and acceptance of a bribe by David Hall in violation of 21 O.S. § 382. The defendant Hall’s argument ignores the allegations concerning the bribery of Rogers and maintains that allegations concerning acceptance of a bribe by Hall are insufficient to show a violation of Oklahoma law for the reason that Hall was not a member of the Board of Trustees of the Oklahoma Public Employees Retirement System and the Taylor investment proposal would never come before him in his official capacity as required by 21 O.S. § 382. Assuming arguendo the insufficiency of the allegations to establish the unlawful activity consisting of accepting a bribe, such defect is not fatal to the indictment. The allegations concerning the attempt to bribe Rogers are sufficient to establish the necessary unlawful activity. Pursuant to the scheme to bribe him it is alleged in Overt Act 3 of Count 2 that Hall offered him $25,000 to help Hall get the investment proposal from Taylor accepted by the Board of Trustees. John Rogers as Secretary of State was Chairman of that Board and the matter would come before him in his official capacity. The essential elements of a violation of 21 O.S. § 381 are sufficiently covered by these allegations. Proof in support of these allegations concerning the attempted bribery of Rogers will establish the unlawful activity essential to conviction of conspiracy to violate 18 U.S.C. § 1952 in count 2 and the substantive violation of the Travel Act in counts 3 and 4. The validity of the Indictment is not affected by the fact that the pleader may have mistakenly stated the acts alleged to be a violation of both 21 O.S. §§ 381 and 382. Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610 (1931). In Ford v. United States, 273 U.S. 593,47 S.Ct. 531, 71 L.Ed. 793 (1927) the defendants had been charged with conspiracy to commit offenses against the United States in violation of (1) the National Prohibition Act, (2) the Tariff Act and (3) The Treaty with Great Britain and in considering the attack upon the Indictment the court stated: “The validity of the indictment is attacked, first, because it charges that the conspiracy was to violate the treaty, although the treaty creates no offense against the law of the United States. This is true, but that part of the indictment is merely surplusage and may be rejected. Bailey v. United States [5 Cir.] 5 F.2d 437; Remus v. United States [6 Cir.] 291 F. 501; United States v. Weiss [7 Cir.] 293 F. 992, 995; United States v. Drawdy [5 Cir.] 288 F. 567, 570. The trial court took this view. But it is contended that this is to amend the indictment and comes within the inhibition of the principle of Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849. That decision condemns the striking out of words from an indictment. The action here complained of is merely a judicial holding that a useless averment is innocuous and may be ignored.” (Emphasis supplied) In United States v. Strauss, 283 F.2d 155 (CA5 1960) the defendant was charged in a single count with conspiracy to violate both the Mail Fraud and the Bankruptcy Act. The court found the charge insufficient with regard to the Mail Fraud Statute but adequate as to the Bankruptcy Act. It then stated: “It is further clear that the failure of the indictment against appellee Strauss to charge adequately a violation of the Mail Fraud Statute is effective merely to eliminate that charge from the case; and so long as the remaining portions of the indictment adequately charge a crime, the presence of the surplusage will not justify dismissal of the entire indictment as it relates to appellee.” See also Bary v. United States, 292 F.2d 53 (Tenth Cir. 1961). Accordingly, having determined that there is no cause to dismiss any of counts 1, 2, 3 and 4 of the Indictment against the defendant, David Hall, his Motions to Dismiss will be denied. IT IS SO ORDERED. ON MOTIONS FOR PRODUCTION AND EXAMINATION OF GRAND JURY MINUTES AND EVIDENCE Defendant Hall has filed a Motion For Production of Testimony Heard by Grand Jury And For Examination of Grand Jury Minutes and Evidence. In such Motion he requests to examine the minutes of the Grand Jury for each session in which evidence was produced with respect to the Indictment. He specifically requests copies of the transcript of the testimony of unspecified witnesses who could be described as (a) an unindicted participant, (b) an unin-dicted co-conspirator, (c) a governmental agent, informant, or “false friend”, or (d) one who offered incriminating testimony. He also requests to be allowed to inspect all documentary and physical evidence presented to the Grand Jury. The Government has Responded to said Motion. It states the Grand Jury minutes are filed with the Clerk of the Court and that it does not object to Defendant examining same. The Government urges that the Motion be denied as to all other matters. GRAND JURY MINUTES The Court will grant Defendant Hall’s Request to Inspect the Grand Jury minutes as they relate to this case only and this Order is the authority for the Clerk of this Court to allow Defendant or his attorney to inspect same as they are relevant to Defendant’s Indictment in this case. GRAND JURY TESTIMONY In his Motion, Defendant Hall urges he has a particularized need for the Grand Jury testimony. He states that in this conspiracy case the information is necessary to impeach the testimony of witnesses, test their credibility and to prepare Motions to Dismiss. He further urges that such testimony will aid his counsel in developing facts to “show entrapping activities of ‘false friends.’ ” He also states such testimony is necessary to prepare a proper cross-examination of parties expected to testify to include Rogers and law enforcement officials. He further moves that in the event all testimony was not transcribed, that the Court make an inquiry as to why all testimony was not transcribed and that the Indictment be dismissed. The Government in its Response advises that not all testimony before the Grand Jury in this matter was transcribed. It urges it is not required to do so. The Government is correct in this regard as there is no requirement that Grand Jury testimony be transcribed. United States v. Cooper, 464 F.2d 648 (Tenth Cir. 1972); United States v. Goad, 426 F.2d 86 (Tenth Cir. 1970). Defendant Hall’s request for the Court to inquire as to why all testimony was not transcribed is denied. His Motion to Dismiss on this basis is likewise denied. The basis for Defendant Hall’s request for Grand Jury testimony upon a showing of a “particularized need” is found in Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). Dennis which arose in the Tenth Circuit has been considered numerous times by that Court. Some of these cases include Cargill v. United States, 381 F.2d 849 (Tenth Cir. 1967); United States v. Quintana, 457 F.2d 874 (Tenth Cir. 1972); and United States v. Parker, 469 F.2d 884 (Tenth Cir. 1972). Another matter which should be considered in regard to a request for transcripts of Grand Jury testimony is that the Jencks Act in 18 U.S.C. § 3500 was amended in 1970 to include Grand Jury testimony of a witness among those statements which must be made available to the defense after a witness testifies. This amendment is wholly consistent with the ruling in Dennis which held that the Grand Jury testimony for which a “particularized need” was shown should have been available for examination while the witnesses were available for cross-examination. The determination as to what constitutes a “particularized need” rests in the sound discretion of the Court. United States v. Parker, supra. It was held in Parker that the disclosure of the Grand Jury testimony need only be accomplished at such time “while those witnesses were available for cross examination” citing Dennis. Thus, the Jencks Act 1970 Amendment appears to have codified the holding in Dennis without the showing of a “particularized need.” In the instant case, the allegations as to “particularized need” relating to impeachment of a witness’ testimony would apply in any and all proceedings. The allegations relating to testing the credibility of witnesses and to aid in preparation of cross-examination is not peculiar to this case. It is doubted that these statements constitute a showing of “particularized need.” Many circumstances present in Dennis are not present herein to include a long period of time between the happenings or events involved and the time of the Grand Jury testimony and the time of trial. Some of the Dennis circumstances are present in this conspiracy case as alleged by Defendant Hall. Under the circumstances, and out of an abundance of caution, the Court in exercising its discretion Orders the Government to provide copies of the Grand Jury transcripts of witnesses to the proceedings which were recorded to Defendant Hall upon the payment of the customary fees for copies of transcripts. Said transcripts shall be delivered to Defendant Hall or his counsel in the offices of the United States Attorney, United States Court House, Oklahoma City, Oklahoma, at 10:00 a. m., Friday, February 14, 1975. DOCUMENTARY AND PHYSICAL EVIDENCE The Court has in another Order in this case considered multiple requests for material which is to be used by the Government as evidence in this case. It appears that transcripts and duplicate copies of the tape recordings and matters relating thereto which are to be used in the trial have been furnished Defendants, except for a few tapes now at the Federal Bureau of Investigation Laboratory which will soon be furnished to Defendants. On the basis that these tapes or some of them may have been heard by the Grand Jury the Defendants’ request for this evidence as presented to the Grand Jury has been satisfied. Other evidence under previous Orders will be turned over to Defendants at the same time and place designated above. This should include any other documentary or physical evidence presented to the Grand Jury. The Court in the exercise of its discretion under these circumstances grants the request to inspect all documentary and physical evidence presented to the Grand Jury on the above basis. It is so ordered this 12th day of February, 1975. ON MOTION FOR DISCOVERY REGARDING NAMED WITNESS Defendant Hall has filed a Motion for Discovery of Information Regarding John M. Rogers, Jr. Said Motion which is supported by a Brief requests that the United States Attorney furnish information as to its witness Rogers which would tend to discredit or impeach his testimony. Defendant Hall requests information as to any agreements made with Rogers concerning the investigation of matters concerning this case and his furnishing testimony to the Grand Jury and in the trial of this case. In the Motion, Movant also seeks knowledge of information which would suggest that Rogers has been involved in any unlawful and illegal activities. This Motion is quite similar to another Motion filed by Defendant Hall which has been considered by the Court relating to Co-defendant Mooney and other witnesses. Defendant’s primary authority cited in support of the instant Motion is the case of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) which was also his primary authority in the companion Motion relating to Co-defendant Mooney. This Motion is also closely related to Defendants’ Motion for Disclosure of Electronic Surveillance, et al., for which the Court conducted an evidentiary hearing on the issue of whether the Government witness Rogers had been coerced into agreeing to tape record cer