The opinion of the court was delivered by: MANSFIELD
MANSFIELD, District Judge.
Defendants have made voluminous motions seeking discovery, severance
and dismissal of various counts of the indictment.
The introduction to the indictment charges the defendants with having devised a scheme to defraud applicants for mortgage loans by means of a "shell" corporation named Colombia Resources Ltd., which was falsely represented to the victims as having large amounts of money available for such loans. The thrust of the alleged scheme was to obtain advance fee payments from the applicants and convert the money without ever consummating the loans. The substantive counts allege that in furtherance of the foregoing scheme the defendants
made various interstate phone calls (18 U.S.C. §§ 2, 1343);
sent various letters and telegrams (18 U.S.C. §§ 2, 1341, 1343);
caused and induced various individuals to be transported in interstate commerce (18 U.S.C. §§ 2, 1343);
transported in interstate commerce various sums of money which were known to have been taken by fraud (18 U.S.C. §§ 2, 1343);
and conspired to do the foregoing acts (18 U.S.C. § 371).
In addition, defendant Neiman is charged with having used a fictitious name in furtherance of the scheme (18 U.S.C. § 1342).
The defendants Crisona and Parks have moved for a severance on substantially the same ground, i.e., that the testimony of a co-defendant could exculpate them; that the co-defendant would refuse to take the stand at a joint trial; and that the only hope of obtaining the needed testimony would be in a separate trial. Lonardo has submitted a statement to the effect that Parks would testify on Lonardo's behalf at a separate trial but not at a joint trial. Crisona has stated in an affidavit that defendant Neiman told him he would not testify for him at a joint trial but that he did have testimony that could demonstrate Crisona's innocence.
As a general rule persons joined in the same indictment should be tried together, at least where a substantial amount of the evidence to be offered at trial will be the same as to all defendants. United States v. Lebron, 222 F.2d 531, 535 (2d Cir.), cert. denied, 350 U.S. 876, 76 S. Ct. 121, 100 L. Ed. 774 (1955); United States v. Cohen, 124 F.2d 164, 165-166 (2d Cir. 1941), cert. denied, 315 U.S. 811, 62 S. Ct. 796, 86 L. Ed. 1210 (1942); United States v. Kahaner, 203 F. Supp. 78, 81 (S.D.N.Y.1962); United States v. Berman, 24 F.R.D. 26, 29 (S.D.N.Y.1959). In the absence of a showing that he will be unable to obtain a fair trial in a joint proceeding, a defendant's desire for a separate trial must yield to the public interest in avoiding unnecessary duplication and expense and in utilizing available facilities and personnel to best advantage toward assuring speedy trials for all of those accused. United States v. Kahaner, supra; United States v. Berman, supra.
The decision as to whether or not a severance should be granted is therefore left to the discretion of the trial court, Opper v. United States, 348 U.S. 84, 95, 75 S. Ct. 158, 99 L. Ed. 101 (1954); United States v. Aviles, 274 F.2d 179, 194 (2d Cir.), cert. denied, Evola v. United States, 362 U.S. 974, 80 S. Ct. 1057, 4 L. Ed. 2d 1009 (1960); United States v. Lebron, supra; and the burden is upon a moving defendant to come forward with facts demonstrating that he will be so severely prejudiced by a joint trial that it would in effect deny him a fair trial altogether. United States v. Haim, 218 F. Supp. 922, 931 (S.D.N.Y.1963); United States v. Van Allen, 28 F.R.D. 329, 338 (S.D.N.Y.1961). Here the moving defendants fail to sustain that burden. No facts are furnished as to the nature, extent and importance of the "exculpatory" testimony that would be offered by Parks on behalf of Lonardo, or by Neiman on behalf of Crisona, in separate trials. The result is that we are left entirely to speculation with respect to the all-important question of whether their testimony would in fact be significant enough to warrant separate trials and to render a joint trial unfair, after taking into consideration the complicated nature of the charges and proof and the protracted additional trials that would be required. The moving parties would also dictate that the Court accept their bald conclusory statement of prejudice even though they may not yet have heard or seen all of the proof to be offered by the Government at trial. Furthermore, we are asked to accept statements that Parks and Neiman (who is represented to be a person possessed "of a very lengthy criminal record involving fraud and including at least ten convictions in federal and state jurisdictions") would give testimony helpful to Lonardo and Crisona, respectively, in separate trials without even the benefit of direct statements to such effect under oath from Parks and Neiman themselves.
Quite aside from the speculative nature of any testimony that might be offered by co-defendants in separate trials, there is the fact that both Neiman and Parks, even though they presently are of the view that they could give helpful testimony in separate trials, are free to change their minds overnight. For instance, it is obvious that if a severance were granted, and if the defendants with the "exculpatory" testimony were tried last, they might balk at putting themselves on record in their co-defendant's case before they are tried. It would be an unwise rule indeed that would require the Court, upon the mere say-so of a co-defendant, unsupported by factual proof and revocable at will, to grant a severance. Without implying that any of the parties here are motivated by improper considerations, such a rule would put the machinery of justice at the mercy of the unscrupulous, who would be free to play fast and loose with the Court, unrestricted by any definite standards.
As against the wholly speculative nature of the prejudice suggested by Lonardo and Crisona, there is the undisputed fact that if this case goes to trial, the proceeding will be a protracted one, involving relatively complicated proof and numerous witnesses, with the result that if the severance requested were granted, the expense, delay and difficulty would be enormously increased. In the absence of any facts establishing that the defendants would in fact suffer any prejudice at a joint trial, a severance would not therefore be justified at this stage of the proceedings. If at a joint trial the possibilities suggested by the moving parties do transpire, the trial court will be in a better position to determine whether any prejudice results and, if so, whether a fair trial can be assured through instructions to the jury, see United States v. Aviles, 274 F.2d 179, 194 (2d Cir.), cert. denied, Evola v. United States, 362 U.S. 974, 80 S. Ct. 1057, 4 L. Ed. 2d 1009 (1960); United States v. Bozza, 365 F.2d 206 (2d Cir. 1966), or only through a severance. United States v. Berman, supra.
United States v. Echeles, 352 F.2d 892 (7th Cir. 1965), and United States v. Gleason, 259 F. Supp. 282 (S.D.N.Y.1956),
which are relied upon by Lonardo and Crisona, presented circumstances significantly different from those here. In each of those cases a co-defendant had made an exculpatory statement helpful to the moving defendant. The statement was acknowledged to exist and to be exculpatory (in Echeles it was before the court), and it had been made under circumstances where there had been no motive to fabricate or to create it for the purpose of obtaining a severance. Furthermore the time and expense involved in separate trials was relatively insignificant, in contrast to a trial here expected to last over one month. In short, the courts in Echeles and Gleason were afforded indisputable facts enabling them to evaluate the necessity for a severance to achieve justice, which are not presented here.
Equally speculative is the motion of the defendant Parks for a severance based on the possibility suggested by his attorney that the Government may offer a statement given by Lonardo to the FBI which may contain statements incriminating Parks. There is no assurance that the statement (assuming it exists) does in fact incriminate Parks or that if it does it will be offered or used by the Government at a joint trial. Furthermore, even if the Government did seek to introduce the statement and it did tend to incriminate Parks, this would not ipso facto give rise to grounds for a severance. Opper v. United States, supra; United States v. Aviles, supra; United States v. Delli Paoli, 229 F.2d 319, 321 (2d Cir.), affd., 352 U.S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1956); United States v. Bozza, supra. In any event, the trial court will be in a far better position than this Court to evaluate the effect of such a statement in the light of circumstances obtaining at the time of trial.
Crisona's contention that he is entitled to a severance for the reason that he is innocent of any wrongdoing and will be prejudiced in a joint trial by his being associated with Neiman, must be rejected not only for the reasons set forth above but because it is sharply disputed by the Government, which asserts that it will prove that Crisona played an integral part in the alleged scheme to defraud, that he was well aware of Neiman's alias, and that he knowingly lent his services to inducing the victims to part with money.
Motions for Bills of Particulars
All defendants have moved for extensive particulars, the propriety of which will hereinafter be decided in accordance with the fundamental principles that follow. The purpose of a bill of particulars is to minimize surprise at trial and to permit the defendant to plead double jeopardy in the event of a subsequent prosecution against him for the same offense. E.g., United States v. Klein, 124 F. Supp. 476 (S.D.N.Y.1954). Bills of particulars should not be utilized for the purpose of compelling the Government to disclose prior to trial its evidence, its theory or its witnesses, United States v. Rosenberg, 10 F.R.D. 521 (S.D.N.Y.1950); United States v. Lebron, supra; United States v. Kahaner, supra, nor should the purpose be to preclude the Government from utilizing proof it may develop as trial approaches. United States v. Malinsky, 19 F.R.D. 426 (S.D.N.Y.1956). On the other hand, a defendant should not be deprived of information which he must have in order to prepare a defense to the charges against him solely because of the fact that he seeks information which might be used by the Government as evidence. United States v. Cimino, 31 F.R.D. 277 (S.D.N.Y.1962). In short it is necessary to strike an equitable balance - a balance that safeguards the defendant's rights and gives effect to the recent liberalization of the Federal Rules of Criminal Procedure with respect to bills of particulars, but also protects against possible intimidation of prospective Government witnesses and minimizes the danger of perjury at trial.
A. Motion of Defendant Crisona11
The scheme to defraud which is the subject of the indictment is already set forth in considerable detail in the "Introduction" which describes its general nature, the names of numerous intended victims (Par. 1), the false representations (Pars. 2, 3, 8 and 9), and the method to be used to carry out the scheme (Pars. 3-7). The "Introduction" is in turn ...