Summary
In United States v. Agnello, 367 F.Supp. 444 (E.D.N.Y.1973), that court ordered production of any co-defendants' statements which the government intended to introduce as a " co-conspirator's declaration."
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Robert A. Morse, U.S. Atty., E.D.N.Y., Denis E. Dillon, Atty. in Charge, Organized Crime Section, by David J. Ritchie, Sp. Atty., Brooklyn, N.Y., for the United States.
DelRosso & Weinstein, by Anthony N. DelRosso, Hempstead, N.Y., for defendants Carmine Piccora, Frank Questel and Raymond Suarez.
Jerome F. Matedero, Brooklyn, N.Y., for defendant Nicholas Langella.
Krivit, Levitov, Miller, Galdieri & DeLuca, by Samuel R. DeLuca, Jersey City, N.J., for defendants Anthony Bamonte and Raymond Coughlin.
Michael A. Querques, Orange, N.J., for defendant Pasquale Macchirole.
Gilbert S. Rosenthal, New York City, for defendant Anthony Bencivenga.
Vincent L. Verdiramo, Jersey City, N.J., for defendants Joseph Conte, Charles Greene, Fred Smith, Albert Grasso, Joseph Danduono and Fabrizzio Agnello.
Dennis D. S. McAlevy, Jersey City, N.J., for defendant Donald Fontana.
Joseph W. Allen, New York City, for defendant Gerard Ruggiero.
Saxe, Bacon, Bolan & Manley, by Roy M. Cohn, New York City, for defendants Hildo Gillis and John Macchirole.
Joseph J. Lombardo, Brooklyn, N.Y., for defendant Spadafora.
Seymour Margulies, Jersey City, N.J., for defendant Neil Pacilio.
COSTANTINO, District Judge.
Several of the defendants in this proceeding have made omnibus pretrial motions. Following oral argument, the receipt of briefs and pretrial conferences the court makes the following rulings:
Pasquale Macchirole
1. Motion for severance
The bases for defendant's motion are that he is seriously ill and therefore unable to stand trial, and that he anticipates that he will call certain codefendants to testify on his behalf. With regard to the latter reason the court denies the motion for severance, with leave to renew at the time of trial when a proper showing of prejudice can be made. With regard to defendant's claim of illness the court will reserve decision, pending examination of the defendant by a government appointed physician.
2. Motion to dismiss the indictment on the ground that it violates Rules 7 and 12 of the Federal Rules of Criminal Procedure
The motion is denied.
Gerard Ruggiero
1. Motion for severance
The motion is denied, with leave to renew at the time of trial when a proper showing of prejudice can be made.
Donald Fontana, Fabrizzio Agnello, Fred Smith, Charles Greene, Joseph Danduono, Albert Grasso and Joseph Conte
1. Motions to dismiss the indictment on the ground that it violates Rule 7 of the Federal Rules of Criminal Procedure
The motions are denied.
2. Motions for severance
The motions are denied with leave to renew at the time of trial when a proper showing of prejudice can be made.
3. Motions to dismiss count 13 of the indictment on the ground that it is impermissibly vague and that it fails to charge an offense
The motions are denied.
Nicholas Langella
1. Motion for severance
The motion is denied with leave to renew at the time of trial when a proper showing of prejudice can be made.
Carmine Piccora, Frank Questel and Raymond Suarez
1. Motion to dismiss the indictment on the ground that it violates Rules 7 and 12 of the Federal Rules of Criminal Procedure
The motion is denied.
2. Motion for severance
The motion is denied, with leave to renew at the time of trial when a proper showing of prejudice can be made.
All defendants
1. Motion for severance on the ground that the indictment is unmanageable
The indictment consists of fourteen counts charging twenty three defendants, and encompassing a period of over eight years. The defendants argue that unless the indictment is "broken down" none of the defendants will receive a fair trial. Although the argument has verisimilitude, the court at this stage of the proceedings does not have a sufficient factual basis to make a ruling. Specifically, the court could not direct the form or manner in which this case should be dissected.
The court is cognizant, however, that because of the complexity of the charges and the number of defendants involved, grave problems may be anticipated. For example, there are several defendants who are named in the conspiracy count only and not in any of the thirteen substantive counts. While this alone is not controlling, it cannot be questioned that during the trial a large portion of the evidence received will not apply to these defendants. Concomitantly, where the evidence to be received at trial is to be voluminous and where a jury is required to make its determination on the basis of inferences to be drawn from circumstantial evidence, substantial prejudice may arise in that the jury may not be able to decipher the facts, thus becoming confused and unable to judge each defendant on the merits of his own case.
Fortunately, the prosecuting attorney, Special Attorney David J. Ritchie, has foreseen the difficulties confronting this court. He has proffered to the court his suggestion as to how this case could be simplified if this court should find that the indictment is unmanageable.
Though the government attorney continues to object to the granting of any motion for severance, he would agree that this case is highly intricate and will require a protracted trial. Therefore, based upon the complexity of the charges, the anticipated duration of the proceedings, the number of defendants, and the fact that several of the defendants are named solely in the conspiracy count, the court is inclined to accept the prosecutor's suggestion with a view toward facilitating these proceedings. Consequently, the court orders that the following defendants are severed from the initial trial: Fabrizzio Agnello, Nicholas Langella, Anthony Spadafora, Raymond Suarez, Keith Lofton, Jasper Lester, Alfred Smith and Hildo Gillis.
2. Motion to dismiss the indictment on the ground that it is not based upon adequate evidence
After having made an in camera inspection of the Grand Jury minutes, the court finds that the indictment was properly obtained. Therefore, the motion is denied.
3. Motion to discover and inspect statements by codefendants pursuant to Rule 16 of the Federal Rules of Criminal Procedure
Count XIV of the indictment charges that during the period beginning on or about January 1, 1964, and ending on September 12, 1972, all the defendants "did knowingly and willfully combine, conspire, confederate and agree together, with one another and with others, to
embezzle and steal foreign shipments of freight in violation of 18 U.S.C. § 659 (1971), to unlawfully remove merchandise from customs in violation of 18 U.S.C. § 549 (1971) and to transport in interstate commerce stolen merchandise known to have been stolen in violation of 18 U.S.C. § 2314 (1971)."
In Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), the Court sounded the following warning:
Recently a federal district court has held that a defendant is entitled to see copies of "all statements the government intends to offer against him as his admission whether they were made by him directly or indirectly or by his agent or by a coconspirator during the course and in furtherance of the conspiracy." United States v. Percevault, 61 F.R.D. 338 (E.D.N.Y., filed Oct. 26, 1973) (Weinstein, J.).
It is of course well settled that a statement made by a coconspirator during the course and in furtherance of a conspiracy may be offered in evidence against a defendant as if it were his own utterance. Unquestionably these statements are detrimental to a defendant's case in that they can be damaging while the defendant may be completely unaware of their existence. This will be especially true where the conspiracy charged involved crimes purported to have been committed over a period spanning eight years and which involve many diverse acts committed by diverse parties.
The government opposes discovery of any statements not actually made by a defendant. It argues that Rule 16 refers only to statements made by the defendant. In essence the government urges a strict construction of Rule 16. This, however, would fly in the face of the legislative history of the rule, 8 J. Moore, Federal Practice ¶ 16.01 (2d ed. 1965), and the case law arising thereunder. Dennis v. United States, supra.
Additionally, the government relies upon United States v. Louis Carreau, Inc., 42 F.R.D. 408 (S.D.N.Y.1967) to support its position. The court in that case held that Rule 16 did not entitle defendants, two corporate officers, to discover statements made by a bookkeeper employed by them to government agents. The ruling hinged upon the court's finding that the statements did not constitute a statement of a defendant producible under Rule 16(a) and that the defendants had failed to show that it was material to the preparation of their defense.
Clearly the holding in Carreau has little import to the case sub judice. The statements of coconspirators can be admitted into evidence against a defendant as if they were his own. Consequently, they should be deemed to be statements made by the defendant under Rule 16(a) or in the alternative they should be deemed to be of such importance as to necessitate their discovery under Rule 16(b). Surely such a ruling would in no way compromise the government's case.
With regard to statements of codefendants other than those which the government intends to introduce as coconspirator's statements, the government stands in a different position. Each defendant can discover and inspect copies of his own statements. Whether a defendant
will allow other defendants to examine his statement is subject to the discretion of the defendant and his counsel. Absent a showing of "particularized need" or other good cause, the court should not intervene in these matters. United States v. Westmoreland, 41 F.R.D. 419, 427 (S.D.Ind.1967). The defendants have failed to make any showing that the statements of other codefendants are material to the preparation of their defense.
Accordingly, the motion to discover the statements of other codefendants is denied, except that it is ordered that the government prior to trial, permit each defendant to inspect and copy or photograph copies of any relevant written or recorded statement made by any coconspirator during the course and in furtherance of the conspiracy charged which the government intends to introduce against that defendant as his admission, which are 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.
4. Motion for Bill of Particulars
Pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, the defendants move for an order directing the government to answer certain particulars. The government resists the motion in its entirety. Since the particulars involved have application to each defendant in this case, the court's disposition of the requests will apply to each of them.
It has long been settled that a defendant is entitled to those particulars which are necessary to enable him to prepare his defense, to avoid surprise, and to plead double jeopardy. United States v. Murray, 297 F.2d 812 (2d Cir. 1962); United States v. Tanner, 279 F.Supp. 457 (N.D.Ill.1967); United States v. Baker, 262 F.Supp. 657 (D.D.C.1966); United States v. Van Allen, 28 F.R.D. 329 (S.D.N.Y.1961); United States v. Smith, 16 F.R.D. 372 (W.D.Mo.1954) (Whittaker, J.).
In the Smith case, then Judge Whittaker stated:
Questions as to what particulars should be furnished a defendant are subject to the sound discretion of the
court, Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545 (1927), and should be decided on the basis of the indictment used and the surrounding circumstances of the crimes charged. United States v. Tanner, 279 F.Supp. 457 (N.D.Ill.1967). Although the rule can be simply stated its application to the specific facts of any given case, especially those involving conspiracy charges, can be perplexing. In conspiracy cases, if the government is to rely upon proof of specific acts to establish the case, there is no question that the defendants alleged to have participated in such acts should be furnished with sufficient detail to fairly apprise them of the transactions to be proved so that they will have a reasonable opportunity to meet the charges of performing the specific acts. On the other hand where the government is going to rely on the inferences which may be drawn from the "numerous details and circumstances of one kind or another, which may be found to constitute a significant pattern of actual or prospective conduct", the government should not be required to furnish particulars. United States v. The Metropolitan Leather & Findings Ass'n, Inc., 82 F.Supp. 449, 454-455 (S.D.N.Y.1949) (Medina, J.).
The controversy in this case stems from the government's refusal to provide answers to the following particulars:
With regard to counts one through thirteen:
With regard to count fourteen:
In light of the above discussion of law and on the basis of the form of the indictment drawn, i. e., the sparsity of specific allegations of wrongful acts, the duration of the period during which the alleged offenses were committed and the number of defendants involved, the
court directs the government to furnish the particulars for requests A through E to each of the defendants individually, as may be required by the facts and circumstances of this case. The government's obligation is limited to that information it is aware of or in the exercise of good faith it should be expected to ascertain. The government shall not be required to respond to requests F through J.