The opinion of the court was delivered by: KAUFMAN
defendants were charged in the first count of the indictment in this action under 18 U.S.C. § 371
with conspiring to defraud the United States, and to violate 18 U.S.C. §§ 1503 and 1621.
Counts two, three and four charge Joseph Magliocco, Joseph Profaci and Pasquale Turrigiano, also defendants under count one, each with a substantive count of perjury. Briefly stated, the first count of the indictment charges that the defendants and thirty-six co-conspirators not indicted agreed among themselves at a meeting in Apalachin, New York, that if they were asked by anyone, including Federal grand juries, about the nature and circumstances of that meeting they would endeavor to frustrate the inquiry by evasion, silence or lies.
Approximately ninety pretrial motions were filed in this action.
Although careful consideration has been given to each motion separately, it will be most convenient to discuss their disposition by category.
1. Motions Seeking Dismissal of the First Count of the Indictment.
The defendants, relying on Grunewald v. United States, 1957, 353 U.S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931 and the line of cases preceding it,
argue that an indictment that charges a conspiracy to conceal a crime is insufficient and must be dismissed. In the Grunewald case defendants allegedly conspired to procure by bribery and fraud 'no-prosecution' rulings in tax cases. Since the statute of limitations on the agreement to procure the rulings had run, the government sought to gave its case by alleging a conspiracy among the defendants to conceal their earlier unlawful activity, which conspiracy to conceal continued until the time of indictment. The Supreme Court ruled that the statute of limitations (and incidentally the period during which statements by co-conspirators are admissible under an exception to the hearsay rule) could not be indefinitely extended by alleging even an actual agreement to conceal a completed crime and reversed the conviction.
The indictment in this case, however, does not charge a conspiracy to conceal another crime, but alleges rather a conspiracy to violate three specific Federal statutes. Those statutes make defrauding the United States, obstructing justice and committing perjury criminal, and merely involve activity that may be considered a species of concealment. One who agrees to lie agrees to 'conceal' the truth; obstruction of justice may well take the form of 'concealing' from an authorized tribunal information germane to its functions. But, it cannot be contended, that perjury and obstruction of justice, or conspiracy to commit either, are no longer crimes after the Grunewald case.
In fact, the Supreme Court was well aware of this distinction. It noted in Grunewald that:
'* * * a vital distinction must be made between acts of concealment done in furtherance of the main criminal objective of the conspiracy, and acts of concealment done after these central objectives have been attained, for the purpose only of covering up after the crime.' Grunewald v. United States, supra, 353 U.S. at page 405, 77 S. Ct. at page 974 (emphasis in original). See also Ingram v. United States, 1959, 360 U.S. 672, 679, n. 10, 79 S. Ct. 1314, 3 L. Ed. 2d 1503.
The main objective of the conspiracy in this case was 'concealment' the commission of fraud, perjury and obstruction of justice.
I am mindful of the fact that even though this distinction from Grunewald exists in this case, the statute of limitations for conspiracies such as are charged in this indictment is indefinitely extended. But, that is as it should be. The distinction between conspiracies of the kind charged in Grunewald and the instant one is not merely formal. The statute of limitations in a criminal case serves not only to bar prosecutions on aged and untrustworthy evidence, but it also serves to cut off prosecution for crimes a reasonable time after completion, when no further danger to society is contemplated from the criminal activity. See Developments in the Law -- Criminal Conspiracy, 72 Harv.L.Rev. 920, 963 (1959). A continuing conspiracy is a continuing danger. It is not surprising, therefore, that the statute of limitations runs from the last objective act that indicates that the original agreement, and the danger arising therefrom, is still alive. Grunewald v. United States, supra, 353 U.S. at pages 396-397, 77 S.T. at pages 969-970; Ware v. United States, 8 Cir., 154 F. 577, 579, 12 L.R.A., N.S., 1053, certiorari denied 1907, 207 U.S. 588, 28 S. Ct. 255, 52 L. Ed. 353. The main danger arising from a conspiracy fraudulently to procure treasury rulings ends when that purpose is attained, and thus it is wise in such situations not infinitely to extend the statute of limitations. But when the end or ends of a conspiracy have not been attained, the conspiracy should be considered alive so long as the danger of fruition lives. In such cases it is not that the statute of limitations has been extended but that the ends of the conspirators were pitched far in advance by their original agreement. Certainly it should be open to the government to interrupt an unlawful combination at any time before it reaches fruition. And, indeed, the Grunewald case itself was remanded with orders to submit to the jury the government theory that the end contemplated by the conspirators, to wit, procuring complete immunity for the defendants' 'clients' rather than just 'noprosecution' rulings, had not in fact been achieved. See Grunewald v. United States, supra, 353 U.S. at page 415, 77 S. Ct. at page 979.
I am compelled to conclude, therefore, that nothing in Grunewald v. United States, supra, or the line of cases that preceded it requires the dismissal of the indictment in this case.
Turning from Grunewald v. United States, some of the defendants argue for dismissal of the indictment on the ground that the trial of this case would be so massive and confusing as to be violative of the Fifth Amendment of the Constitution.
It is true that a trial so massive and complicated that no jury could follow the evidence or separate defendants from each other would be a deprivation of due process. See Note, Federal Treatment of Multiple Conspiracies, 57 Colum.L.Rev. 387, 403-04 (1957); cf. Gwathmey v. United States, 5 Cir., 1954, 215 F.2d 148 (civil condemnation suit). But while the difficulties inherent in mass trials are formidable they are not insurmountable. Twenty-three defendants will be tried in this case, but larger trials have been effectively handled in the past and affirmed on appeal. See, e.g. Capriola v. United States, 7 Cir., 1932, 61 F.2d 5, certiorari denied Walsh v. United States, 1933, 287 U.S. 671, 53 S. Ct. 315, 77 L. Ed. 579 (59 defendants); Allen v. United States, 7 Cir., 1924, 4 F.2d 688, 698, certiorari denied Hunter v. United States, 1925, 267 U.S. 597, 45 S. Ct. 352, 69 L. Ed. 806 (75 defendants). See also United States v. Stromberg, 2 Cir., 268 F.2d 256 (18 defendants). There are no special factors apparent at this stage of the proceeding that indicate that a fair trial cannot be had. Certainly there is no merit in dismissing an indictment merely because it is asserted that prejudicial error might be committed at the trial.
Nor is the indictment in this case too vague. All an indictment need do in order to withstand a motion to dismiss is 'sufficiently apprise the defendant of what he must be prepared to meet', United States v. Smith, 3 Cir., 1956, 232 F.2d 570, 572 and give him the basis of a plea of former jeopardy. See United States v. Behrman, 1922, 258 U.S. 280, 288, 42 S. Ct. 303, 66 L. Ed. 619.
'The particularity of time, place, circumstances, causes, etc. * * * is not essential to an indictment.' Glasser v. United States, 1942, 315 U.S. 60, 66, 62 S. Ct. 457, 463, 86 L. Ed. 680. In effect, it is merely necessary that the elements of a conspiracy be set forth with sufficient particularity for the defendants to understand what they are charged with having conspired to do. In the instant case the conspiracy is charged with clarity, to defraud, obstruct and lie to any inquiry.
The breadth of an unlawful agreement cannot bar the government from prosecuting it. The correct remedy for one faced with a broad but otherwise sufficient indictment is not dismissal but a bill of particulars. Cefalu v. United States, 10 Cir., 1956, 234 F.2d 522, 524.
Some of the defendants argue further that in any event the indictment must be dismissed because the agreement as charged does not embrace any contemplated conduct made unlawful by either 18 U.S.C. §§ 1503
Indeed, it has been held that the broad final clause of § 1503, making unlawful activity which '* * * corruptly * * * influences, obstructs, or impedes * * * the due administration of justice * * *,' must be construed to embrace only acts 'similar in nature' to those enumerated by the preceding specific clauses. Haili v. United States, 9 Cir., 1958, 260 F.2d 744, 746. The defendants argue, in effect, that since none of those preceding clauses is precisely met, the indictment in this case, which charges a conspiracy that embraces obstructing justice by giving false and evasive testimony to Federal grand juries, is insufficient. But, a reading of the section in its entirety makes clear that the purpose of the statute is to render illegal interference with the judicial functions of the United States, and that the final clause was added in order to cover those means of interference the draftsmen were not prescient enough to enumerate. Thus, while § 1503 might not apply to the correctional or investigatory arms of the government, see Haili v. United States, supra; United States v. Scoratow, D.C.W.D.Pa.1956, 137 F.Supp. 620 (obstruction of the F.B.I.), certainly obstruction of grand jury functions is within the purview of the statute. See United States v. Siegel, D.C.S.D.N.Y. 1957, 152 F.Supp. 370; United States v. Solow, D.C.S.D.N.Y.1956, 138 F.Supp. 812, 814.
As for the argument that the contemplated obstructive behavior charged in the indictment cannot be described as 'defrauding' the government for purposes of § 371, it is well established that the 'fraud' involved need not be pecuniary. See, e.g. United States v. Klein, 2 Cir., 1957, 247 F.2d 908, 916, certiorari denied 1958, 355 U.S. 924, 78 S. Ct. 365, 2 L. Ed. 2d 354. Further, in the leading Supreme Court case the court said that a conspiracy '* * * to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest,' would state a crime against the government under the statute. Hammerschmidt v. United States, 1924, 265 U.S. 182, 188, 44 S. Ct. 511, 512, 68 L. Ed. 968. Section 371 is a broad statute designed to deal with unlawful means of interferences with governmental functions. See Developments in the Law -- Criminal Conspiracy, 72 Harv.L.Rev. 920, 944 (1959). And the same allegations that supported a prosecution for conspiracy to obstruct justice have been found sufficient upon which to base a count under § 371 before. Outlaw v. United States, 5 Cir., 81 F.2d 805, 807, certiorari denied 1936, 298 U.S. 665, 56 S. Ct. 747, 80 L. Ed. 1389. ('The United States were here to be defrauded of doing justice.') Thus though §§ 1503 and 371 overlap to some extent, this is not a reason to bar a prosecution under either of them.
In any event, since the allegations under both sections deal with the same facts, will be supported at trial by the same evidence, and will receive substantially the same charge, I can see no prejudice resulting to the defendants. If it appears at the trial that there is likelihood of any, it can be dealt with at that time.
Finally, the defendants address a series of arguments in support of their motions to dismiss, to the status of the Federal Grand Juries which they allegedly conspired to obstruct and mislead. The argument that the indictment is deficient because it does not allege that there was a particular grand jury in session at the moment when the alleged conspiracy was formed need not detain us. This indictment charges a conspiracy to obstruct and mislead grand juries to be convened, the last overt act in furtherance of which was committed only a few days before the filing of the indictment. See United States v. Perlstein, 3 Cir., 126 F.2d 789, 796-797, certiorari denied 1942, 316 U.S. 678, 62 S. Ct. 1106, 86 L. Ed. 1752. Also, unlike Ingram v. United States, supra, this indictment alleges knowledge on the part of the defendants sufficient upon which to base a finding of anti-federal intent.
The defendants argue that they cannot be charged with conspiring to obstruct justice by interfering with the grand jury investigations into the gathering at Apalachin, because it is not alleged that anything unlawful took place at that gathering and grand juries have no power to investigate gatherings which they characterize as proper.
The grand jury is an important investigative body with broad powers and functions. United States v. Cleary, 2 Cir., 1959, 265 F.2d 459, 461.
'It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.' ...