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UNITED STATES v. ZOVLUCK

August 21, 1967

UNITED STATES of America,
v.
Bernarr ZOVLUCK et al., Defendants



The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

 The defendants have filed a flurry of motions in omnibus form directed toward two indictments handed down by the Grand Jury (67 Cr. 485 and 513) charging all defendants (in thirteen and five counts, respectively) with mail fraud, 18 U.S.C. § 1341, false use of the initials "U.S.", 18 U.S.C. § 712, and conspiracy to violate the mail fraud statute, 18 U.S.C. § 371. The Government has cross-moved for consolidation of the indictments and an early trial date.

 More specifically the defendants have moved for (1) dismissal of the indictments on the ground that the Government improperly procured them by unfair conduct before the Grand Jury, and on the further ground that prejudicial publicity may have affected the Grand Jury and will preclude a fair trial; (2) an order pursuant to Rule 41(e), F.R.Crim.P., vacating search warrants used as the basis for seizure of property belonging to the defendants and directing the return of the items seized, and (3) an order pursuant to Rule 16(b), F.R.Crim.P., directing the Government to provide the defendants with an inventory of items seized and the return of certain records or copies thereof.

 The core of the first indictment (67 Cr. 485), filed on May 15, 1967, is the charge that beginning in January, 1964, the defendants devised and engaged in carrying out a scheme to defraud members of the public into believing that they could obtain free chiropractic health and medical services, whereby the defendants lured unsuspecting patients to patronize their facilities and to sign papers or obtain services (e.g. x-rays) that were not free, following which the defendants would use a series of frightening methods, including threats and false statements, to force the victims to pay money. More specifically, it is alleged that the defendants falsely represented, through a systematic campaign of telephone calls, letters and advertisements, that their chiropractic center offered free help to patients, that it was government and trade-union sponsored and that it was part of medicare and medicaid; that the defendants caused unlicensed persons to pose as doctors and lawyers in the handling of patients induced to patronize the "free" services, defrauding such patients into believing they needed costly x-rays and expensive treatments and inducing them to sign contracts for payment without realizing what they had done. It is further alleged that the defendants would attempt to force the "free" patients to pay by using notices falsely contrived to appear as official legal notices, would use the term "U.S. Credit Rating and Reporting Agency" to imply falsely that such collection method was Government sponsored, and would threaten to send out notices to tradesmen ruining the patients' credit locally. The Government contends that for the most part the victims were the poor and uneducated.

 The second indictment (67 Cr. 513) was handed down, according to the Government, for the reason that the defendants continued the aforementioned activities after the filing of the first indictment on May 15, 1967. The second indictment charges that on five dates between May 17 and 24, 1967, the defendants used the mails for the purpose of executing the same scheme to defraud.

 Defendants' motion to dismiss the indictment is denied. In support of this motion defendants' counsel in his affidavit refers to the following items of publicity most of which pre-date the filing of the indictment:

 1. Between April 21, 1967 and "the date of the first indictment herein" (May 15, 1967), the office of Dr. Zovluck was the subject of picketing by an "antipoverty organization."

 2. On April 21, 24, 25, 26, 27, 28 and May 15, 1967, Dr. Zovluck's activities were publicized on the television broadcasts of Channel 5, WNEW-TV.

 3. On May 20 and June 2, articles appeared in the Spanish language daily, EL DIARIO-La Prensa, describing Dr. Zovluck's activities, and quoting government attorneys as speaking in a manner suggesting a pre-determination of Dr. Zovluck's guilt of the charges against him.

 4. Since March, 1966, Dr. Zovluck has been under investigation by the Office of the District Attorney of New York County and the Division of Professional Conduct of the Department of Education of the State of New York. In June, 1967 the Grand Jury of the County of New York returned an information against him, and since March 28, 1967, charges of unprofessional conduct brought against him by the Department of Professional Conduct have been on trial. On November 9, 1966 a summons was served on codefendant Eisenstein by the Department of Health charging violations of the Health Code in regard to x-ray equipment. This is to go to trial September 12, 1967.

 Although the affidavit of defendants' counsel charges that the Government conducted press conferences, issued publicity releases, and permitted (and, it is intimated, encouraged) the presence of a photographer at certain proceedings in this case, defendants fail to state any facts connecting the Government with the aforementioned publicity, and the Government states in its brief that "There was no pre-indictment publicity which could even remotely be claimed to have emanated from the government". This is confirmed by the defendants' recital of the background, which indicates that the pre-indictment publicity grew out of activities of private citizens attempting to protect the public against the alleged fraudulent conduct by exposing it to potential victims.

 The Government, upon the filing of the first indictment, apparently issued a press release or made comments to the press, the exact contents of which are not clear from the papers before the Court, since the United States Attorney's Office denies making some of the statements attributed to it and asserts that except for a reference to payment by victims to the defendants it limited itself to matters on public record. The news item furnished by defendants does indicate (and this is tacitly admitted) that the Government informed the press of of the nature of the charges against the defendants and issued a statement advising victims not to make payments in response to dunning notices, but to inform the Post Office. While this Court cannot condone the Government's unnecessary issuance of prejudicial publicity, see United States v. Miller, 381 F.2d 529 (2nd Cir. July 26, 1967), or the use of such publicity as a means of obtaining evidence or locating witnesses, the Government asserts that its purpose was to advise the public of the charges so that it would be protected against defendants' continued fraudulent activities, and contends that the defendants did in fact continue their alleged frauds resulting in a second indictment. See American Bar Association "Standards Relating to Fair Trial and Free Press" recommended by its Committee on Minimum Standards for Administration of Criminal Justice, Dec. 1966, pages 2 (Part 1.1) and 5 (Part 2.2).

 In any event, whether or not the Government's communications to the press were justified, the publicity here would not constitute grounds for dismissal of the indictment, which would be an unprecedented step. Nor would it appear to require a continuance, a change of venue, or use of the more conventional remedies invoked to dissipate, or leave behind, the prejudicial effect of publicity which threatens a fair trial. The amount of publicity appears to have been infinitesimally small compared with the body of news material into which it was injected. It was not widely, prominently or frequently held up to the public over a substantial period of time. It was, in effect, a mere drop in the bucket, unlikely to have been seen, much less remembered, by the great majority of the public, or to have had any lasting influence on those few who were exposed to it. Its influence, therefore, falls far short of the permeating effect found in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). In an area where it has been said that "each case must turn on its own special facts", Marshall v. United States, 360 U.S. 310, 312, 79 S. Ct. 1171, 1173, 3 L. Ed. 2d 1250 (1959) the factual distinctions from Sheppard are enormous. The case of Estes v. State of Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965), also cited by defendant is wholly distinguishable.

 Moreover, it is now eleven weeks since the last alleged incident of prejudicial T.V. or newspaper publicity. It is highly unlikely that this case will go to trial before September, at least thirteen weeks from the last incident. The Second Circuit has recently noted the effectiveness of delays of 16 and 12 weeks in cleansing the atmosphere of pre-trial publicity. See, United States v. Armone, 363 F.2d 385, 395 (2d Cir.), cert. denied, 385 U.S. 957, 87 S. Ct. 398, 17 L. Ed. 2d 303 (1966); United States v. Bowe, 360 F.2d 1, 11 (2d Cir.), cert. denied, 385 U.S. 961, 87 S. Ct. 401, 17 L. Ed. 2d 306 (1966). The Court quoted the observation of Judge Weinfeld that "frequently in ...


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