The opinion of the court was delivered by: WEINFELD
WEINFELD, District Judge.
The indictment charges Pilnick, five other individuals and one corporation with offenses arising out of the sale of undeveloped land in Florida to the public in 1965 and 1966. Count 1 charges all the defendants, and others not named as defendants, with conspiring to violate the mail and wire fraud statutes,
and counts 2 through 57 charge five of the individual defendants and the corporation with a scheme to defraud through the use of the mails.
Pilnick is named in all 57 counts.
Pilnick moves to dismiss the indictment on several distinct grounds, some relating to the indictment itself and others to the manner in which it was obtained. Each of the grounds will be considered separately.
MOTION TO DISMISS INDICTMENT
Pilnick first moves to dismiss on the grounds that the indictment is vague and fails to comply with Rule 7(c) of the Federal Rules of Criminal Procedure. While the indictment is wordy and hardly a model pleading, as drawn it is sufficient to withstand this motion. Its sufficiency is not determined by whether it could have been more artfully drawn or made more definite and certain.
The conspiracy and the scheme charged are sufficiently set forth to apprise the defendant of the crimes charged so as to enable him to prepare his defense and to plead any judgment entered thereunder as a bar to further prosecution for the same offenses.
The omission of details of which defendant complains can be resolved by such bill of particulars to which he is entitled, as hereafter provided.
The defendant next contends that certain counts of the indictment must be dismissed because, with respect to each, the items alleged to have been mailed "for the purpose of executing" a scheme to defraud would not have been mailed until after the defendants had received the money and the scheme was completed. Even were defendant's argument meritorious with respect to the counts charging the mailing of receipts and deeds, it fails with respect to those involving confirmations for, "the term 'confirmation' is not a word of art. It has no fixed legal meaning nor does it give rise to fixed legal consequences. It may serve a variety of purposes. Merely because the mailings enumerated in these counts are designated as 'confirmations' does not indicate what function they served in the alleged transactions or at what stage in the transactions they were placed in the mails."
Moreover, the defendant's argument as to the counts involving receipts and deeds is without merit. Neither Kann v. United States
nor Parr v. United States,
relied upon by defendant, held that the respective indictments failed to state offenses. They held, rather, that the evidence adduced at trial showed the mailing occurred after the scheme had reached fruition, and consequently, proof of an essential element was lacking. This is made abundantly clear in the recent case of United States v. Sampson,
where the Supreme Court reversed the dismissal of thirty-four counts of a mail fraud indictment, stating:
"We are unable to find anything in either the Kann or the Parr case which suggests that the Court was laying down an automatic rule that a deliberate, planned use of the mails after the victims' money had been obtained can never be 'for the purpose of executing' the defendants' scheme. Rather the Court found only that under the facts in those cases the schemes had been fully executed before the mails were used. * * * [Subsequent] mailings can in some circumstances provide the basis for an indictment under the mail fraud statutes."
Here, as in Sampson, there has not yet been a trial. The proof at trial may establish the mailings of receipts and deeds were for the purpose of executing the alleged scheme.
If not, defendant may then move for a dismissal of the affected counts.
Defendant next urges dismissal of the conspiracy count upon the ground that it alleges two separate and distinct conspiracies.
The basis of this contention is that in addition to charging a conspiracy in a scheme "to defraud purchasers of tracts of land in Western Dade County, Florida," which allegedly was carried out through the Golden Palm Acres, Inc., a corporation dominated and controlled by Pilnick, the indictment further charges in certain subparagraphs that Pilnick caused the sale of certain portions of the land to codefendant Martin Fleishman, doing business under the trade name of Atlantic and Pacific Land Company, who resold the same to the persons to be defrauded; accordingly, defendant contends that two conspiracies are charged - the Golden Palm Acres, involving all the defendants, and the Atlantic and Pacific Land Company, involving only himself and Fleishman.
However, a fair reading of the indictment makes it clear that a single conspiracy is charged and that the resale of properties through the Fleishman trade name of Atlantic and Pacific Land Company was in furtherance of its purposes. Thus, it is charged that Pilnick participated in setting up the Atlantic and Pacific Land Company and caused to be sold to Fleishman portions of the Western Dade County land for resale to those to be defrauded. The indictment sufficiently alleges Pilnick's involvement with Fleishman's operation in an alleged overall conspiracy which had a single purpose common to all co-conspirators.
Whether the government will sustain its allegation of a single conspiracy must await the trial.
Next, the defendant urges that dismissal of the indictment is compelled because of alleged violation of his rights under the Fifth and Sixth Amendments. The claim of self-incrimination and the denial of effective assistance of counsel, somewhat interwoven upon the defendant's presentation, rests upon the following circumstances: Pilnick, prior to the indictment, while the matter was under investigation, was requested to and did appear for an interview by an Assistant United States Attorney. He was accompanied by an attorney, who was present through the entire interview. Subsequently, this same attorney represented Norman Babat, who was later named in the indictment as a co-conspirator but not as a defendant, and also Julius Gladstein, named as a defendant only in the conspiracy charge. It is averred, and the government does not deny, that Babat and Gladstein had numerous conferences with the Assistant United States Attorney, and later testified before the grand jury. The defendant charges that "the actions of the office of the United States Attorney in permitting without question a lawyer having such an obvious conflict of interest to represent persons other than Pilnick and to sit in and be present at conferences, discussions and interviews, was highly improper and did violate the rights of the defendant Pilnick under the Fifth and Sixth Amendments * * * and did in fact reduce to a minimum of zero his representation by counsel in his prior interview with the authorities." This broad charge of infringement of the constitutional rights and unethical conduct attributed to the Assistant United States Attorney and defendant's former attorney dissolves upon recital of the facts.
The former attorney has filed an affidavit which is unchallenged. It appears that he conferred with Pilnick for about one-half hour prior to his appearance before the Assistant United States Attorney; that thereafter at the interview at which the attorney was present Pilnick repeated everything he had previously told the attorney. Up to this point there is no basis for any claim of adverse interest, since the attorney did not then represent Gladstein or Babat, or that at this single conference the attorney's representation was anything but adequate and professional.
The former attorney swears he never told anyone what Pilnick had told him in their sole conference preceding the interview, and that thereafter he had no further conversation with Pilnick. The Assistant United States Attorney swears he was told nothing by the former attorney concerning what Pilnick had told him, and further that no one else told him anything which could be attributed to the former attorney's disclosure of Pilnick's confidence.
Despite these unchallenged and unequivocal statements that there was no impairment of the confidential relationship, the defendant presses that when thereafter the former attorney undertook to represent Babat and Gladstein, he "must have" revealed Pilnick's confidences to those other clients; that when Babat and Gladstein appeared before the grand jury, his right to the effective aid of counsel and against selfincrimination was infringed by the government's knowing use of them as witnesses, since they were being advised by "an attorney who was privy to the secrets and confidences of Pilnick." Bluntly put, the charge is made that the attorney revealed to Babat and Gladstein what Pilnick had told him.
To support this charge and to overcome the categorical denials by both the former attorney and the Assistant United States Attorney, the defendant offers no proof; instead, he relies upon a line of civil cases which hold that on applications to disqualify lawyers from shifting sides and representing litigants in matters adversely relating to former clients' interests and involving the same subject matter of the original litigation, the court will presume that confidences were disclosed by the previous client.
The cases are entirely inapposite. They simply hold that no inquiry will be made as to what the former client told the attorney in order to avoid disclosure ...