Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DISCOVERY PHILIP PRATT, District Judge. During the months of July and August, 1975, 35 patients at the Ann Arbor Veterans Administration Hospital suffered a total of 51 cardiopulmonary arrests. An intensive epidemiological and criminal investigation was begun to determine the cause of these unexpected events. In June, 1976 a Grand Jury in this District returned an indictment charging the defendants with five counts of murder, ten counts of unlawfully mingling a poison in the food and medicine of certain patients, and conspiracy to commit those offenses. Before turning to the precise issues before the Court, it is appropriate to discuss some of the aspects of this case in general terms so that the rulings which follow may be put in proper perspective. The indictment presents charges that, in a most dramatic way, raise difficult issues of medicine and. law. The defendants are charged with a capital crime. If convicted they could be sentenced to life imprisonment. The fact that the defendants were nurses at the Veterans Hospital at the time of these arrests has contributed to the intense public interest in the case. Despite the eight month time interval between the arraignment and the scheduled commencement of trial, preparation has been time consuming and highly demanding. The list of complex, novel issues is quite lengthy. For example, during the course of the exhaustive pre-indictment FBI investigation new and intricate scientific tests were developed and hypnosis was employed in the process of questioning certain hospital patients. A determination as to the legal validity of either of these investigative techniques and the appropriate presentation of the issues has required extraordinary efforts by attorneys who are not well versed in the intricacies of chemistry and psychology. Nor is the case devoid of the more common problems in a criminal case. Motions with regard to the use of possible hearsay testimony, challenges to the accuracy of certain eyewitness testimony and extensive discovery motions have already been filed. These require substantial time commitments on both sides for proper preparation and presentation. In addition to legal issues which must be resolved prior to the trial, there is a staggering amount of potential factual information which might be elicited at the trial. An exhaustive investigation by various federal agencies, continuing for approximately ten months, preceded the indictment in this case. The Ann Arbor Veterans Administration Hospital, site of the alleged crimes, is a 430 bed acute-care institution which had a large staff and patient population. As is typical of acute-care hospitals, many of the staff and patients were no longer easily accessible after the incidents with which we are now concerned occurred. The task of fact gathering alone is a monumental one. When combined with the preparation necessary for the legal motions discussed above, some of which involve complex and novel legal issues, some idea of the difficulty of the case can be gained. Current estimates for the length of the trial run from 4-6 months. What this amounts to is what some commentators describe as a “big” criminal case, see Developments in the Law —Discovery, 74 Harv.L.Rev. 940, 1000 (1961), which will be very demanding for everyone involved. Highly unusual cases of the type at bar are particularly appropriate for liberal discovery treatment. Numerous commentators have noted that increased pretrial discovery in criminal cases would help our trial courts achieve just decisions in a more efficient way. See, e. g., ABA Standards Relating to Discovery and Procedure Before Trial, Part II, (1970); Developments, supra, at 1053-66: “The belief that a criminal trial should be a balanced contest between adversaries has long been criticized as a ‘sporting theory of justice’ which is particularly inappropriate in light of the high stakes involved in criminal litigation . Insofar as the sporting theory suggests that broad disclosure is undesirable as an infringement upon the opportunity for ingenuity in the use of trial tactics, it would seem to conflict with the duty of the state’s prosecutor to seek results which are in accord with the facts rather than to achieve a record of indiscriminate convictions. If the use of discovery is likely to increase the probability that verdicts will be based on the facts rather than on clever trial maneuvers, its broad use in the criminal area would be desirable.” Id. at 1063. Nonetheless our adversary system has traditionally afforded criminal defendants significantly less discovery than is available to a defendant in the civil law system. Damaska, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U.Pa.L.Rev. 506, 533-6 (1973). Yet the recognition is growing that adjustments in the “sporting theory” are necessary if the adversary system is to reach verdicts that are consistently in accord with the underlying factual realities. Even the authors of the Federal Rules of Criminal Procedure recognize this, for in commenting on the text of Rule 16 they said: “The rule is intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge’s discretion to order broader discovery in appropriate cases.” 62 F.R.D. 307-8 (1974). Courts as well have, in certain limited cases of particularized need, exercised discretionary authority to order wide-ranging discovery. In U. S. v. Achtenberg, 459 F.2d 91 (8th Cir. 1972), the defendant, a student who was accused of setting fire to a campus ROTC building, requested the transcripts of Grand Jury testimony. In granting the request, the court said, “A need for discovery because of the numerous potential witnesses and the fact that the student witnesses had scattered after the school year were asserted. Defendant’s contention was that the government had superior ability through the FBI to contact possible witnesses and that the time and expense of defendant in obtaining interviews with the many prospective witnesses would be prohibitive.” Id. at 96. In part, the Achtenberg court relied on the Supreme Court’s observation in Dennis v. U. S., 384 U.S. 855, 873, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973 (1966) that, “In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact.” In the case at bar, there is one additional factor to consider. One of the defendants is represented by appointed counsel. In addition to bearing the cost of the trial itself and the investigation of the alleged offense, the government is responsible for much of the cost of the defense as well under the Criminal Justice Act, 18 U.S.C. § 3006A. While this fact does not infringe on the Constitutional protections afforded a defendant in a criminal case and established law must not be ignored, it does suggest a persuasive reason for eliminating a duplication of effort and cost for which the government must pay. In short, the particular facts of this case persuade the Court that insofar as the law permits, maximum discovery should be ordered. DISCUSSION The defense has filed extensive discovery motions. In an effort to facilitate the discovery process the Court conducted several conferences akin to the Omnibus Hearings used in several United States District Courts around the country, Cf. 37 F.R.D. 95 (1965). These conferences resulted in substantial voluntary and mutual discovery. There remain, however, several issues on which the parties are unable to agree. Accordingly, this opinion will resolve the discovery disputes which remain as to: 1. The discoverability of statements allegedly made by the defendants to third persons, not government agents, which are in the possession of the government; 2. The discoverability of certain FBI 302 forms; 3. The discoverability of any overt acts not named in the indictment which will be relied upon at trial; 4. Whether certain FBI 302 forms never seen by the U.S. attorneys are discoverable under the dictates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). I. Under the authority of F.R.Cr.P. 16(a)(1)(A) the defendants seek discovery of statements allegedly made by them to individuals not employed by the government, which are in the possession and control of government attorneys. The government asserts that such statements are manifestly beyond the purview of the rule and thus undiscoverable. The Rule in relevant portion provides, “Upon request of a defendant the government shall 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 . . . ” There is some judicial opinion in support of the defendants’ position. The most detailed analysis of the problem is found in U. S. v. Feinberg, 371 F.Supp. 1205 (N.D.Ill. 1974); rev’d. in part 502 F.2d 1180 (7th Cir. 1974); cert. denied, 420 U.S. 926, 95 S.Ct. 1122, 43 L.Ed.2d 396 (1975). In Feinberg the trial judge faced the identical issue presented here and determined that the literal interpretation of the rule, and the one most consistent with its purpose, was that “disclosure may be ordered of statements made by a defendant regardless of to whom they were made.” U. S. v. Feinberg, supra, at 1211. Aside from the language of the rule itself, the district court’s opinion notes that one of the purposes of the rule is to apprise the defendant of statements he may not always be aware of which are in the possession of the government. This approach to the problem has found favor elsewhere. U. S. v. Walk, 533 F.2d 417 (9th Cir. 1975) (dissenting opinion); U. S. v. Morrison, 43 F.R.D. 516 (N.D.Ill.1967); U. S. v. Baker, 262 F.Supp. 657, 671-2 (D.D.C. 1966). See also views of Representatives Holtzman and Drinan, H.R. 94-247, 1975 U.S.Code Cong, and Admin.News, 706. The government’s position finds support in U. S. v. Walk, supra; U. S. v. Pollack, 175 U.S.App.D.C. 227, 534 F.2d 964 (1976). These decisions read the Rule to limit such statements to those obtained by the government directly from the defendant and not through any third party. The rationale of these cases is (1) consistency with the Jencks Act, and (2) avoidance of the possibility of revealing statements that are too far removed from the supposed source to be reliable. The intermediate position is that while statements made by defendants to third persons, not agents of the government, may come within the ambit of the rule, they are discoverable only as provided for by the Jencks Act, 18 U.S.C. § 3500. U. S. v. Callahan, 534 F.2d 763 (7th Cir. 1976); U. S. v. Feinberg, 502 F.2d 1180; U. S. v. Kenny, 462 F.2d 1205 (3rd Cir. 1972); U. S. v. Pastor, 419 F.Supp. 1318 (S.D.N.Y.1976); U. S. v. Smith, 405 F.Supp. 144 (E.D.Pa.1975); U. S. v. Dorfman, 53 F.R.D. 477 (S.D.N.Y. 1971), aff’d. 470 F.2d 246 (2d Cir. 1972). This approach is bottomed on F.R.Cr.P. 16(a)(2) which provides that “statements made by government witnesses or prospective government witnesses” may not be discovered except as provided for in the Jencks Act. It is premised on the desire of Congress to protect potential witnesses from threats of bribery or coercion and to protect government files against unwarranted and excessive intrusions. U. S. v. Walk, supra; U. S. v. Feinberg, 502 F.2d 1180, supra. In U. S. v. Wilkerson, 456 F.2d 57 (6th Cir. 1972), cert. denied, 408 U.S. 926, 92 S.Ct. 2506, 33 L.Ed.2d 337 (1972), the Court of Appeals for this Circuit ruled that a statement in an FBI memorandum recording a conversation with a government witness which included a confession by the defendant was discoverable only through the Jencks Act. The court went on to say, however, that the government’s answer to defendants’ request for the production of any relevant statements made by the defendant was lacking in candor: “The better response would have been to say that the Government did have a statement from a witness who was to be called to testify, and that this statement concerned admissions made by the defendant to the witness at a previous time, but that the statement of the witness, in the Government’s view, was not producible under Rule 16(a).” U. S. v. Wilkerson, supra, at 61. Accord: U. S. v. Feinberg, 502 F.2d 1180, supra. See U. S. v. Cannone, 528 F.2d 296 (2nd Cir. 1975). In light of the foregoing, the Court concludes that Rule 16(a)(1)(A) does encompass statements made by the defendants, regardless of to whom they were made. However, the Jencks Act governs the discoverability of such statements as were made to government witnesses. As to statements made to persons not government witnesses, known to the government, those statements are discoverable. If the government is aware of any such statements not recorded on the non-witness 302 forms that have been turned over to the defense counsel, it is hereby ordered to provide those forthwith. As to such third party statements in the possession of the government of prospective witnesses, the government is ordered to provide the defense, forthwith, with 1. The fact of such a statement; 2. Whether a recordation of such statement exists in any form whatsoever; 3. The name and address of the individual to whom the statement was made; and 4. The date on which and place where the statement was made. These orders are made under the Court’s discretionary power to control discovery granted under Rule 16. Should the government present valid written reasons, an appropriate protective order will be issued. II. The major area of contention between the parties concerns the discoverability of the FBI 302 forms. There are three categories of 302 forms with which the Court is concerned: (1) 302’s in the possession of government attorneys relating to government witnesses; (2) 302’s relating to individuals whom the government does not intend to call; and (3) 302’s in the possession of the FBI, relating to individuals not prospective government witnesses which have never been seen by any U.S. attorney at all. The defense has, in effect, requested discovery of all such 302 forms in the government’s possession. As indicated previously, the government has agreed to provide the defense with 302 forms in the second category. As to the other categories, the government asserts that they are not discoverable because they do not come within the parameters of the Jencks Act. This discussion will first concern itself only with 302’s relating to prospective government witnesses. The Jencks Act, 18 U.S.C. § 3500,. provides that no statements or reports made by prospective government witnesses in the possession of the government may be discovered until the witness completes direct examination. The government claims that 302 forms are not “statements” within the meaning of the Act. The Act defines a “statement” as “(1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is substantially a verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement ’. . .” 18 U.S.C. § 3500(e). The government represents, and the experience of the Court confirms, that in this District the overwhelming majority of witness statements are memorialized in FBI 302 forms or their equivalent. It is usually the case that a government agent speaks with a potential witness and then returns to the office and dictates a report from either his notes or his memory. These reports are generally provided routinely at trial as Jencks material, albeit excised to delete the conclusions of the interviewing agent. The Supreme Court first construed the definition of “statement” as used in the Jencks Act in Palermo v. U. S., 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). In Palermo, the defense sought discovery of a 600 word memorandum which summarized parts of a three and one-half hour conversation. The Supreme Court affirmed the trial court’s refusal to permit discovery of the statement. In the course of holding that the report was not a “statement” within the meaning of the Jencks Act, the Court said, the Jencks Act “. . . was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital. Quoting out of context is one of the most frequent and powerful modes of misquotation. We think it consistent with this legislative history, and with the generally restrictive terms of the statutory provision, to require that summaries of an oral statement which [1] evidence substantial selection of material, or [2] which were prepared after the interview without the aid of complete notes and hence rest on the memory of the agent, are not to be produced.” 360 U.S. at 352-3, 79 S.Ct. at 1225. The Court noted that, “In expounding this standard we do not wish to create the impression of a ‘delusive exactness.’ The possible permutations of fact and circumstance are myriad. Trial courts will be guided by the indicated standard, informed by fidelity to the congressional purpose we have outlined.” 360 U.S. at 353, 79 S.Ct. at 1225. Thus, Palermo provides the Court with a general standard which it must apply to the facts of the case before it. The Court has the obligation to inquire into the circumstances of the making of these statements to determine if they come within Jencks. Goldberg v. U. S., 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976); Campbell v. U. S., 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961). The focus of the inquiry has been variously characterized, but it is clear that the inquiry depends on “the good sense and experience of trial judges” subject to appellate review. U. S. v. Stephens, 492 F.2d 1367 (6th Cir. 1974). Generally, the Court must determine if the contents of the 302 were read to and approved by the potential witness, were signed by him or was a contemporaneously recorded, substantially verbatim recital. Campbell v. U. S., supra. In more general terms, Justice Stevens said that the inquiry should be directed to determining whether the circumstances are such that it would be fair to permit either party to use the statement at trial to refresh recollection or impeach credibility. Goldberg v. U. S., supra, 425 U.S. at 114, 96 S.Ct. 1338 (concurring opinion). When Campbell came to the Supreme Court for the second time, Campbell v. U. S., 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963), the majority held that a statement copied from notes which had been read to and approved by a government witness came within the definition of “statement” provided by 18 U.S.C. § 3500(e)(1). In upholding the trial court’s determination that the oral reading of the notes was for the witnesses’ approval and that the interview report was an accurate copy of the then destroyed notes, the Supreme Court said, “The district judge was entitled to infer that an agent of the Federal Bureau of Investigation of some 15 years’ experience would record a potential witness’ statement with sufficient accuracy as to obviate any need for the courts to consider whether it would be ‘grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness’ own.’ Palermo v. United States, supra, 360 U.S. at 350, 79 S.Ct. 1217.” Campbell v. U. S., 373 U.S. at 495, 83 S.Ct. at 1361. Given these general guidelines, the Court is of the opinion that in the case at bar the 302 forms relating to potential government witnesses presumptively come within the Jencks Act as either statements approved by witnesses or substantially verbatim recital of such statements. After viewing numerous such statements in other cases, as well as some of the records and investigative techniques utilized by the FBI in this case, the Court is convinced that it would be a rare instance when the reports would either “(1) evidence substantial selection of material, or (2) which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent . . . ” Palermo v. U. S., supra, 360 U.S. at 353, 79 S.Ct. at 1225. Thus, the Palermo standard for prohibiting production is not normally met. Given the expected number of witnesses in this case (well in excess of 100), and the normally thorough practice of FBI agents in interviewing, this presumptive approach is the most feasible. Were the Court to hold hearings into the discoverability of each and every 302 form involved, the already severe docket problems of this Court would become completely unmanageable. This decision also comports with the Congressional purpose to promote, rather than hinder, discovery. The Court will, however, be vigilant to protect the rights of the government and its witnesses. In particular cases of real need, the government may present a 302 form together with a request for a protective order which will be granted if the interests of justice so dictate. The Court will also insure, and all attorneys in the case will be expected to assist in .this undertaking, that examination of witnesses will not be sidetracked unnecessarily into inquiries using the words of FBI agents, instead of the witnesses themselves. To decide otherwise would, however, make it too easy for the government to immunize from discovery material that Congress clearly intended to be made available to a defendant, merely by varying the technique of interrogation. The Court is concerned that the rights of defendants may be restricted unnecessarily by a reliance on form over substance. U. S. v. Lewis, 167 U.S. App.D.C. 232, 236, 511 F.2d 798, 802 (1972); Cf. U. S. v. Morrison, supra, 43 F.R.D. at 519. The government next argues that if the 302 statements are found to come within the Jencks Act, they are made expressly discoverable only after the witness has finished testifying on direct examination. The statute does so provide. 18 U.S.C. § 3500(a). The statute also provides that, “Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial.” 18 U.S.C. § 3500(c). Thus, in view of the complexity of the case and the large number of witnesses, strict adherence to the schedule imposed by the Jencks Act can be expected to lengthen the trial considerably beyond its currently projected four to six month length. Needless to say, the recesses occasioned by delayed production of Jencks Act material, caused by the necessity of giving defense counsel time to assess the 302s so that adequate assistance of counsel can be afforded, will seriously hamper the efficient, orderly and fair conduct of the trial. The subject of the trial will be difficult enough for the parties, the Court and jurors to assimilate without the added hindrance of numerous delays. Courts have long recognized that they have inherent power not limited by statute or rule to insure that due process of law is provided and that criminal trials are fair and efficient. U. S. v. Jackson, 508 F.2d 1001 (7th Cir. 1975); U. S. v. Cammisano, 413 F.Supp. 886 (W.D.Mo.1976); 17. S. v. Germain, 411 F.Supp. 719 (S.D.Ohio 1975); U. S. v. Winchester, 407 F.Supp. 261 (D.Del. 1975). Such power has traditionally been used sparingly. • However, this case presents the Court with a truly extraordinary situation. It has been recognized that delays in the trial process because of repeated recesses can interfere with the fair administration of criminal justice. U. S. v. Goldberg, 336 F.Supp. 1 (E.D.Pa.1971). More significantly, denial of the information requested here, because of an overly strict adherence to the Jencks Act raises potential deprivations of due process and effective assistance of counsel. See Palermo v. U. S., 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (Brennan J., concurring); U. S. v. Moceri, 359 F.Supp. 431 (N.D.Ohio 1973). Both of these problems present themselves in this case in ways that are much more immediate than in any of the reported cases this Court has examined. It is axiomatic that when fundamental constitutional guarantees are involved, the statutes of Congress must give way to the enforcement of the constitutional right. In U. S. v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), the Supreme Court held that a presumptive privilege “fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution . must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that ‘the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer.’ Berger v. United States, 295 U.S. [78] at 88, 55 S.Ct. 629, 79 L.Ed. 1314. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.” 418 U.S. at 708-9, 94 S.Ct. at 3108. While the Chief Justice was referring in Nixon to the necessity of producing evidence at trial, the principle is the same: when two principles of law conflict with one another the criminal justice system demands that the principle favoring greater discovery in favor of the accused must prevail, particularly where, as here, the principle favoring disclosure is of constitutional origin. Upon consideration, the interests of due process of law, effective assistance of counsel and the fair and efficient conduct of criminal trials require that in the very particular facts of this case, the time restrictions of the Jencks Act be overridden. It is to be stressed that this ruling is limited in nature and is compelled by the constitutional considerations referred to. Therefore, the government will be required to turn over to the defendants by January 10, 1977 FBI 302 forms relating to the anticipated testimony of potential government witnesses. Any requests for protective orders must be filed with the Court by that date in lieu of production to the defense. It is expected that all defense counsel will cooperate with the Court to insure an orderly, fair trial within the parameters set forth above. III. The defendants have requested production of all FBI 302 forms in the possession of the government which have never been examined by government counsel. The government responds that 50-60 per cent of the reports collected by the FBI in their investigation of this case fall within this category. They assert that in accordance with its statutory and professional responsibility the FBI has turned over to the U. S. Attorney’s office all relevant reports. While the government accepts and even embraces the dictates of Brady v. Maryland, supra, it asserts, without having examined them, that no Brady material exists in this last category of 302 forms. Brady is emphatically a duty on the prosecutor to disclose evidence. No authority has been presented to the Court that agents of the FBI, who are not attorneys nor officers of the Court, are legally competent nor that the prosecutorial duty is delegable to them. Here the defense has made particularized requests for Brady material. As observed in U. S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), “if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge.” The Agurs court noted that a prudent prosecutor will resolve doubt in favor of disclosure. In view of the nature of the request, and considering the fact that the U. S. attorneys in charge of this case have consistently refused to examine this material themselves, the Court will order that it be made available to defense counsel for their examination. In view of the government’s assertion that none of this material is relevant, there can be no likely damage to the government’s case. Nor in view of the assertion of the government should the Court be compelled to sift through this huge mass of material. An appropriate protective order can easily be drafted to protect the privacy of the persons interviewed. IV. Finally, the government declines to identify, in response to a request in a bill of particulars, the overt acts to be relied upon by the government at trial which are not named in the indictment. More specifically, the defendants seek to discover which, if any, of the other 36 respiratory arrests which occurred during the alleged conspiracy period will be relied upon. A district court has broad’ discretion to compel or decline to compel answers to bills of particular. Will v. U. S., 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Wong Tai v. U. S., 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927); F.R.Cr.P. 7(f). As indicated while the indictment charges 15 respiratory arrests, in actuality 51 occurred at the Hospital during the relevant period. The medical records relating to the 15 charged arrests are voluminous. There is no reason to doubt that the medical records of other patients suffering such arrests will be less so. In order to be effective, defense counsel need to know which, if any, of the other 36 arrests they must concern themselves with and prepare for at trial. In view of the possible delays at trial if the defense is surprised, and the fact that investigation of all 36 other arrests would impose undue costs on the defense and the government the Court will require the government to provide the defense with a list of the names of patients suffering arrests which the government will prove at trial, including the date and time of the alleged arrest. The foregoing determinations, it should be emphasized, are reached with particular regard to the facts of this unusual case. It is the Court’s considered judgment that the discovery ordered here must take place if a fair and expeditions trial is to be had. MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO STRIKE The above named defendants in this criminal action have moved to strike the non-murder, poisoning counts of the indictment against them and the overt acts related to such counts. These counts charge the defendants with mingling poison and conspiring to mingle poison with the food or medicine of certain persons with intent to injure them in violation of the Michigan criminal law, M.C.L.A. 750.436, and the federal Assimilative Crimes Act, 18 U.S.C. § 13. It is the defendants’ contention that such acts may be brought as a criminal violation under the federal assault statute, 18 U.S.C. § 113 (under one or more of its subsections) and therefore, by the very terms of the Assimilative Crimes Act, the federal offense must be charged and the state provisions are inapplicable. The government resists such a motion, relying primarily on the thesis that even if these acts could be charged under the federal assault statute, they are better described by and fit more precisely within the terms of the state statute, and may be charged pursuant to the Assimilative Crimes Act. DISCUSSION As an initial precept, the Court must reject the government’s contention that these acts could be charged under either the state poisoning statute or the federal assault statute and that the prosecution has discretion to choose the statute which best suits its theory and strategy of the case. The Assimilative Crimes Act provides: “Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of anv act or omission which, although not made punishable hv anv enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State. Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.” (Emphasis added). The government would read this underscored language to indicate the Congressional intention that the Assimilative Crimes Act would apply unless a statute of Congress expressly forbade, in legal terms, the precise act at issue. Thus, under the government’s view, as long as the state statute brought to bear through the Assimilative Crimes Act presents a “different theory” than an arguably relevant federal statute, an indictment under the state statute is permissible. Accord: Fields v. U. S., 438 F.2d 205 (2nd Cir. 1971); cert. denied, 403 U.S. 907, 91 S.Ct. 2214, 29 L.Ed.2d 684 (1971). Shirley v. U. S. 404 F.Supp. 675 (E.D.Tenn.1975); U. S. v. Chapman, 321 F.Supp. 767 (E.D.Va.1971); U. S. v. Jones, 244 F.Supp. 181 (S.D.N.Y.1965); aff’d. on other grounds, 365 F.2d 675 (2d Cir. 1966). The defendants, on the other hand, contend that the plain meaning of the statute is that as long as any enactment of Congress prohibits the acts charged under state law and the Assimilative Crimes Act, a federal court is jurisdictionally limited only to the federal statute. Thus, in the defendants’ view, if the “generic” conduct charged in the indictment is prohibited by an Act of Congress, the government may proceed only under the federal statute. Accord: U. S. v. Butler, 541 F.2d 730 (8th Cir. 1976); U. S. v. Big Crow, 523 F.2d 955 (8th Cir. 1975); cert. denied, 424 U.S. 920, 96 S.Ct. 1126, 47 L.Ed.2d 327 (1976); U. S. v. Word, 519 F.2d 612 (8th Cir. 1975); cert. denied, 423 U.S. 934, 96 S.Ct. 290, 46 L.Ed.2d 265 (1976); U. S. v. Olvera, 488 F.2d 607 (5th Cir. 1973); cert. denied, 416 U.S. 917, 94 S.Ct. 1625, 40 L.Ed.2d 119 (1974); U. S. v. Patmore, 475 F.2d 752 (10th Cir. 1973); U. S. v. Robison, 376 F.Supp. 1024 (D.Hawaii 1974). The Supreme Court’s few decisions interpreting the Assimilative Crimes Act give no definitive answer to the question posed. See Note, Federal Assimilative Crimes Act, 70 Harv.L.Rev. 685, 692 (1957). Most recently, the Court held that the Assimilative Crimes Act is constitutional insofar as it makes state laws enacted after the 1948 codification of 18 U.S.C. § 13 applicable to federal reservations. U. S. v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958). Since it was not faced with the precise question before the Court now, it is not surprising that there is little guidance in that opinion. The Court merely observed that: “Congress thereby made it clear that, with the exception of the enlarged list of offenses specifically proscribed by it, the federal offenses in each enclave were to be identical with those proscribed by the state in which the enclave was situated.” 355 U.S. at 290, 78 S.Ct. at 294. See Franklin v. U. S., 216 U.S. 559, 30 S.Ct. 434, 54 L.Ed. 615 (1910). Some indication of what was intended by “offenses specifically proscribed” is found in Williams v. U. S., 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946). In Williams a person had been convicted of statutory rape committed on an Indian reservation. Arizona law made the age of consent 18, federal law, 16. The Court held that a conviction under the Arizona statute and the Assimilative Crimes Act could not be had where the victim was between the ages of 16 and 18 because several federal statutes governed the “precise acts” of the defendant and the Court would not countenance the redefinition and enlargement of such federal statute as fornication, adultery, and rape. In a footnote, the Court elucidated its reasoning in terms applicable to the case at bar. “Arizona’s definition of rape and the punishment that Arizona prescribed for its commission differ from those relating either to rape or carnal knowledge under the Federal Criminal Code. These differences well illustrate the confusing variation from the definition of a federal crime and from provision for its punishment which would have to be considered if indictments were permitted under the Assimilative Crimes Act for every act committed within a federal enclave and which might come within a State’s enlargement of the same offense.” 327 U.S. at fn. 11, 66 S.Ct. at fn. 11, p. 781. The legislative history of the Assimilative Crimes Act is consistent with this restrictive view of the Act’s reach. Originally the Act was passed as Section 3 of the Act of 1825 to fill voids in the then extremely skeletal Federal Criminal Code. Justice Story, author of the Act said of it “The criminal code of the United States is singularly defective and inefficient . . Few, very few, of the practical crimes (if I may so say) are now punishable by statutes, and if the courts have no general common-law jurisdiction (which is a vexed question), they are wholly dis-punishable. The state courts have no jurisdiction of crimes committed on the high seas, or in places ceded to the United States. Rapes, arsons, batteries, and a host of other crimes may in these places be now committed with impunity. . These are cases where the United States have an exclusive local jurisdiction. And can it be less fit that the Government should have power to protect itself in all other places where it exercises a legitimate authority? That Congress has power to provide for all crimes against the United States is incontestible.” Quoted in U. S. v. Press Publishing Co., 219 U.S. 1, 12, 31 S.Ct. 212, 215, 55 L.Ed. 65 (1910). Times have changed considerably, since Justice Story’s day. The Federal Criminal Code has expanded greatly. Indeed, unlike the early 19th century, Congress now has provided specific statutes dealing with assaults. 18 U.S.C. § 113. In commenting on the relationship between federally defined sex crimes and the Assimilative Crimes Act in Williams v. U. S., supra, the Supreme Court said: “The interesting legislative history of the Assimilative Crimes Act discloses nothing to indicate that, after Congress has once defined a penal offense, it has authorized such definition to be enlarged by the application to it of a State’s definition of it. It has not even been suggested that a conflicting State definition could give a narrower scope to the offense than that given by Congress. We believe that, similarly, a conflicting State definition does not enlarge the scope of the offense defined by Congress. The Assimilative Crimes Act has a natural place to fill through its supplementation of the Federal Criminal Code without giving it the added effect of modifying or repealing existing provisions of the Federal Code.” 327 U.S. at 718, 66 S.Ct. at 782. (Emphasis supplied). The reasoning the government would have the Court adopt is best exemplified by the case of Fields v. U. S., supra. In Fields the Second Circuit Court of Appeals upheld the conviction of a man who was accused of shooting with intent to kill, wound and maim under the Assimilative Crimes Act and an Ohio statute. Noting that the government could have proceeded under the federal assault statute, the court nonetheless upheld the conviction saying “where the state statute proved a theory essentially different from that provided in the federal statute, the government can proceed under either statute . what the government may not do is proceed under the state statute when the precise act is prohibited by a federal statute.” Fields v. U. S., supra at 207-8. The difference the Fields court found was that federal law prohibited assaults while Ohio law prohibited certain batteries, thus fitting the facts of the case “more precisely” This approach does violence to both the plain wording and the purpose of the Assimilative Crimes Act. The Act plainly is not operative when “any enactment of Congress” speaks to the conduct charged. The legislative history, dating back to the very beginnings of the Act, shows that it was intended to be interstitial in character. State crimes were to be assimilated when nothing in the federal criminal code spoke to the allegedly criminal conduct. The fact that the federal criminal code is now more extensive than formerly does not change this legislative purpose. Should it so desire, Congress could easily delete the phrase in the Act that refers to “any enactment” and replace with words that clearly adopt the construction the government urges here. Until it does so, the Court is persuaded that U. S. v. Butler, supra, and the cases therein are correct. If the generic conduct with which a defendant is charged is prohibited by any act of Congress, a federal court is without jurisdiction to entertain a charge under the Assimilative Crimes Act. Were it otherwise, the Act would simply be a device enabling prosecutors a wider choice of possible charges than that provided in the federal criminal code, a policy decision not entrusted to the courts. For the reasons stated above the Court cannot accept the government’s primary argument in opposing this motion. This, however, does not end the inquiry. For while the defense assumes and the government concedes that the acts of poisoning as charged under this indictment constitute a federal assault, this Court can accept such an assumption uncritically only at its peril. The coverage of the federal assault statute is a question of law which is not subject to stipulation of the parties, but rather must be decided by the Court. The issue at hand is whether it was the intent of Congress that any of the provisions of the federal assault statute should apply to an act of poisoning, particularly under the proofs and theory which the government intends to present in the present case. Unfortunately there is a dearth of legislative history relating the intent of Congress (if any intent was manifested) when that section was passed. The Court is, therefore, relegated to the task of construing the intent of the legislature with little historical assistance. Some guidance was given in U. S. v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430, where the Court said: “We recognize that where a federal criminal statute uses a common-law term of established meaning without defining it, the general practice is to give that term its common-law meaning.” 352 U.S. at 411, 77 S.Ct. at 399. But the Court in that case went on to conclude that the term “stolen” had no accepted common-law meaning. It then stated: “Freed from a common-law meaning, we should give ‘stolen’ the meaning consistent with the context in which it appears. . It is, therefore, appropriate to consider the purpose of the Act and to gain what light we can from the legislative history.” 352 U.S. at 413, 77 S.Ct. at 400. In this case the defense contends that “poisoning” has uniformly been held to constitute an assault or assault and battery at common law, citing several state decisions in support of this contention. Although not cited by the defendants, the Court also notes that 6A C.J.S. Assault and Battery § 70 states that: “administering poison or any other harmful drug or substance to a person, with intent to inflict injury, amounts to an assault and battery." For several reasons, however, this Court is not persuaded by this argument. In the first instance the cited case law can be countered with other state decisions to the contrary. See People v. Sanford, 65 Mich. App. 101, 237 N.W.2d 201 (1975); Madden v. State, 1 Kan. 340 (1862). The statement in C.J.S. is supported by case law from only three states, all mentioned by defendant. Secondly the older cited cases in several instances conflict with the present legal view within the respective states. Thus, while Carr v. State, 135 Ind. 1, 34 N.E. 533 (1893) supports the view that “an assault is involved in the unlawful infliction of an injury by administering poison,” the state has an explicit poisoning statute, Ind.Stat. § 35-1-57-1, very similar in form to that of Michigan. This fact leads to the final reason for the Court’s conclusion, namely that whatever the scope of “assault” under the criminal “common law,” the criminal common law has almost universally been discarded by or subsumed under state statutory criminal codifications, which control both the scope and nature of criminal acts and their punishment. To the extent that state criminal codes and their periodic revision now represent the evolution of the criminal common law, one can.find no uniform treatment of the criminal act of administering poison. A survey of state criminal law in 40 of the 50 states reveals three separate approaches to criminalizing the act of poisoning. Some states have separate poisoning statutes, apart and distinct from assault statutes; others have assault and assault and battery statutes, which specifically mention poisoning under a certain degree of the crime, (i. e., aggravated assault); in the last group of states there is no explicit mention of poisoning in the criminal code and it is presumed (or made clear) that the act is covered by the assault provision. There is no clear majority among these groups to indicate the prevailing view regarding the nature of the crime of poisoning. The Court therefore, is left with the conviction that, as in Turley, supra, there is either no clear common law rule including poisoning within the concept of assault, or if such did at one time exist, it no longer has any application in reality. It then must turn to other indications of legislative intent, including the general context of the federal criminal statutes. Although it is recognized “that in the absence of a plain indication of an intent to incorporate diverse state laws into a federal criminal statute, the meaning of the federal statute should not be dependent on state law,” United States v. Turley, supra, Jerome v. United States, 318 U.S. 101, 63 5. Ct. 483, 87 L.Ed. 640 (1943), this does not mean that state views should be totally ignored. The very existence of the Assimilative Crimes Act witnesses Congress’ awareness of pertinent state criminal codes and their applicability in federal actions. Looking at the state codes, one does find a fairly common thread that the act of wilfully poisoning another person must be treated as a serious felony and not merely as a misdemeanor. Therefore, some states explicitly or implicitly encompass this act within the felony of “aggravated assault,” or “assault with a dangerous weapon;” others, as indicated above, have separate felony provisions on poisoning. No state statute or recent decision has been found which punishes one for administering poison with intent to injure as a mere misdemeanor (i. e., simple assault) with little or no expectations of confinement in the sentence. Yet the defendants here would contend that the charged act of administering a drug to precipitate respiratory arrests can come within § 113(e): “simple assault (a misdemeanor), by fine of not more than $300 or imprisonment for not more than three months The context of the federal criminal code under other prosecutable actions indicates that Congress did intend that the act of poisoning merit more serious consequences. Thus, under 18 U.S.C. § 1111(a), any “murder perpetrated by poison” is described as a “willful, deliberate, malicious and premeditated killing” for which a convicted defendant “shall suffer death” (unless the jury qualifies the sentence). It is considered equivalent to felony murder in seriousness, while any other murder is considered to be “murder in the second degree,” punishable by imprisonment “for any term of years . . . ” This Court believes it would have been inconsistent to elevate murder by poisoning to first degree murder yet provide the poisoning with intent to injure be considered a misdemeanor only. For these reasons this Court concludes that it was not Congress’ intent to include the administration of poisoning with intent to injure within the scope of § 113(e). Equally clearly, the charged conduct is not comprehended by § 113(a) (assault with intent to commit murder); by § 113(b) (assault with intent to commit any felony except murder or rape) or by § 113(d) (assault by striking, beating or wounding). This leaves only § 113(c) as a potential federal assault charge for these actions. Section 113(c) refers to “assault with a dangerous weapon, with intent to do bodily harm . . . ” The Bill of Particulars filed in this action by the government states that the defendants’ conduct relevant to the so-called “poisoning counts” of the indictment consisted of injecting a muscle relaxant drug into the intravenous tubing of hospital patients, using a syringe. The issue, therefore, is whether this specifically charged action would constitute an “assault with a dangerous weapon” under federal law. It is recognized that it is the device’s latent capability, coupled with the manner of its use, which is determinative of whether an object can be characterized as a dangerous weapon. U. S. v. Johnson, 324 F.2d 264 (4th Cir. 1963). Under such an expansive concept it is manifestly conceivable that a syringe or hypodermic needle could be used against the person of another as a “dangerous weapon.” It seems to this Court much more questionable when the syringe is injected, not directly into the person of another, but rather into a piece of tubing which is in turn connected to the patient. A syringe used for injecting is clearly not a dangerous weapon per se; but rather such a classification depends on what is being injected. In the traditional “dangerous weapon-assault” case, the dangerous weapon produces the injury. As charged here the syringe was merely a vehicle for effecting the entry of the muscle relaxant drug into the intravenous tubing. It is unclear at this stage whether the government intends to prove syringe injection piercing the wall of the tubing or injection through a disattached end of the tubing. The Court queries whether, if the latter, an eyedropper might not effect the same result. If so, would use of an eyedropper causing the same result make it a “dangerous weapon?” Clearly it is the “poison,” (the muscle relaxant in this case) which causes the injury. However, no federal case has been cited in which poison, per se, is considered to be a “dangerous weapon.” The state views are conflicting in this regard. Some state laws implicitly include the use of poisoning within their “assault with a deadly (or dangerous) weapon” provision. See Ga.Code § 26-1302; La.Rev. Stat.Ann. § 14:33.1, § 14:34; Me.Rev.Stat. Tit. 17-A § 208, § 209; N.C.Gen.Stat. § 14-31. The majority of states, however, as mentioned above, have specific poisoning statutes or refer explicitly to poisoning as an example of “aggravated assault.” Considering the lack of any express legislative intent, the absence of federal decisions on this issue, the lack of any clear indication that either the use of a syringe or the use of poison itself comprises a “dangerous weapon” within the meaning of § 113(c), the conflicting views of the several states and the availability of the Assimilative Crimes Act, this Court concludes, that as a matter of law, the specific acts charged do not constitute an “assault with a dangerous weapon” under the federal criminal code and the charge of the state poisoning counts pursuant to the Assimilative Crimes Act is, therefore, proper and correct. Accordingly, defendants’ motion to strike the state poison counts is denied. IT IS SO ORDERED. MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO SUPPRESS TESTIMONY OF RICHARD NEELY On the night of July 30, 1975, while a patient at the Ann Arbor Veterans Administration Hospital, Richard Neely suffered a respiratory arrest from which he subsequently recovered. He was questioned about the events occurring before the arrest by agents of the Federal Bureau of Investigation on August 20, 1975 and again on October 21, 1975. During both of those interviews Mr. Neely stated that he had no memory of any events just prior to the arrest. He viewed a group of several photographs, which did not include a picture of defendant Perez, at the second interview. On December 16 and 17, 1975, Mr. Neely voluntarily submitted to interrogation while in an hypnotic state. On December 16, during a session lasting about one hour Mr. Neely narrated certain events he believed occurred the ,night of his respiratory arrest, and described in a vague way two individuals he believed were by his bedside that night but made no identification. Later, the night of December 16, while not in a hypnotic trance, Mr. Neely was visited by an FBI agent who encouraged him to tell everything he knew so that the perpetrators of crime could be brought to justice. The next day, during another hour-long hypnotic session, Mr. Neely again recounted certain events and described, in a vague way, certain individuals he felt were at his bedside just before the arrest. At the end of the session, after coming out of the hypnotic state, Mr. Neely was shown a group of photographs which did include the picture of defendant Perez. While he stated that he recognized Mrs. Perez as one of his nurses, he did not make any identification of an individual who he believed had been in his room immediately prior to the arrest. On January 9,1976, while a patient at the hospital, Mr. Neely spontaneously told FBI agents that he knew who the individual in his room was. The agents again showed Mr. Neely the photographs exhibited to him on December 17. He immediately and unqualifiedly selected the photograph of defendant Perez. In addition, Neely had several conversations with others in which he appeared to display a lack of memory of the pertinent events or the identification of persons other than the defendants. Thus, during the course of the hypnotic sessions he referred to a Caucasian nurse and a Mexican male employee being in his room immediately before the arrest. On December 17, 1975, after the hypnotic session, he identified a person who is not shown to have any connection with this case as one of the nurses who harmed him after he had been told she was a Filipino. Pursuant to a court order, Mr. Neely’s deposition was taken in early October, 1976. At the deposition, while under oath, Mr. Neely stated that he had known from the time of the arrest that it was Mrs. Perez who was in his room immediately prior to his arrest, but that he purposely did not tell the FBI about her in order to protect her. He testified that he had even gone so far as to pass over her picture knowingly without comment on three occasions when FBI agents displayed it to him for purposes of identification. He stated that he began to doubt his decision to say nothing about Mrs. Perez’ presence in his room during his conversation with the FBI agent the night of December 16, 1975. He testified at the deposition that he finally changed his mind on January 9, 1976, at which time he immediately informed the FBI of the true facts. Mr.. Neely stated that inasmuch as he remembered the events of the night in question all along, the hypnotic session had no effect on his memory. Count I, paragraph 8, and Count VI of the Superseding Indictment allege that the defendants unlawfully poisoned Richard Neely on July 30, 1975. The defendants have moved to suppress all testimony by Richard Neely which purports to identify defendant Perez as the person present at his bedside just prior to his respiratory arrest. As grounds therefor the defendants assert that the pretrial investigative procedures employed by the FBI denied the defendants due process of law, relying on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The government responds that the photographic arrays presented to Mr. Neely were not violative of Simmons and that defendants’ attacks on the procedures employed are really attacks on Mr. Neely’s credibility which must be weighed by the jury as the trier of the facts. The defendants’ motion raises perhaps the most unusual legal issues in this extremely complicated criminal case. There was not just one photographic identification in this case, but three. Overlaid on the question of whether one, or all, of the photographic displays were unduly suggestive is the fact that between the first and second photographic displays, the witness was placed under hypnosis for two separate one-hour sessions and questioned by federal agents familiar with the government’s investigation while in a trance state. Most unusual, however, is the fact that because of the deposition the Court has before it the entire testimony of Mr. Neely in advance of trial. Of necessity, as what will follow ; makes clear, the Court must not only scrutinize the identification procedures to determine if they violated any constitutional command, but must also examine the testimony of the witness Neely as a whole to determine in advance of trial, whether it must be stricken in its entirety. I. In the briefs and at oral argument on the motion, both parties analyzed the issue, initially at least, in terms of the two-pronged test of the suggestiveness of the photographic array and the resultant likelihood of irreparable misidentification as applied by the Courts of Appeals in the wake of Simmons v. United States, supra. E. g., United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970). While there are indeed differences between the picture of defendant Perez and the other photographs shown Mr. Neely, the cases discussing the issue of when a suggestive photographic display leads to an irreparable likelihood of misidentification are inapposite. Such cases involve situations where a crime had been committed by a person whose identity is unknown to the witness. E. g., United States v. Jennings, 528 F.2d 222 (6th Cir. 1975); United States v. Scott, 518 F.2d 261 (6th Cir. 1975); United States v. Clark, 499 F.2d 889 (6th Cir. 1974); United States v. Cunningham, 423 F.2d 1269 (4th Cir. 1970) (all bank robberies); United States ex rel. Phipps v. Follette, 428 F.2d 912 (2d Cir. 1970) (robbery). In the instant case the crime charged is of such a nature that it is not likely that Mr. Neely perceived that anything of a criminal nature was occurring immediately preceding his respiratory arrest. In addition, Mr. Neely had appreciable contact preceding the alleged criminal act with the individual whom he ultimately identified. At the time of the arrest, he knew Mrs. Perez and had known her for a period of time as one of the nurses who cared for him. Consequently, the photographic display, even if suggestive, cannot be said to have fixed in Mr. Neely’s mind the image of a person which had not been there before. Instead it was a vehicle that enabled Mr. Neely to attach a name to a person he previously knew and recognized but could not identify by name. Once the focus of the inquiry shifts from the narrow confines of the propriety of the photographic display to the constitutionality of the whole course of the interrogations conducted by the FBI of Mr. Neely, the issue becomes more intricate and complex. The Supreme Court has stated its con