The opinion of the court was delivered by: GURFEIN
This is an indictment in two counts charging (1) a conspiracy to violate 18 U.S.C. § 1955 (Act of October 15, 1970, 84 Stat. 937)
and (2) a substantive violation of that section. There are eight defendants. Five of them, Anthony Politi, Philip Politi, Harry Weis, Frank Bracey and Arthur Dilworth, make the following motions: (1) for a bill of particulars; (2) for discovery and inspection; (3) for inspection of the Grand Jury minutes; (4) to suppress any evidence seized; (5) for Brady material; (6) for a severance; (7) to dismiss the indictment on the ground that 18 U.S.C. § 1955 is unconstitutional; (8) to dismiss the indictment on the ground that it fails to furnish the defendants a sufficient description of the charges against them; and (9) for a protective order against dissemination of any documents to the press.
MOTION FOR BILL OF PARTICULARS BY PHILIP POLITI, DILWORTH, WEIS AND BRACEY
The Government has consented to many of the items sought. The rest of the items need not be supplied by the prosecution except to the following extent.
As to Item 4c, the Government states that no electronic or mechanical surveillance has been made "connected with this case." The Government agrees to check whether there has been any electronic surveillance of the persons or premises of any of the defendants. This item will be held in abeyance.
As to Items 4e and 4f, the Government states that no searches or seizures were conducted except at the time of the arrest of the defendants; and agrees to furnish copies of search warrants, affidavits and inventory relating to those searches and seizures under Rule 16.
The motion to suppress evidence will be held in abeyance until this material is furnished. The defendants, if disposed to press the motion to suppress, should do it promptly thereafter.
Items i, j and k are denied; i and j are requests for evidentiary matter; k calls for the date when the particular defendant entered the conspiracy. This is frequently shown by circumstantial proof and it would be unfair to limit the Government by limiting such proof. See United States v. Kahaner, 203 F. Supp. 78, 84 (S.D.N.Y. 1962), aff'd, 317 F.2d 459 (2 Cir.) cert. denied, Keogh v. United States, 375 U.S. 836, 84 S. Ct. 73, 11 L. Ed. 2d 65 (1963).
THE MOTION FOR A BILL OF PARTICULARS BY ANTHONY POLITI
The equivalent items denied in the foregoing are similarly denied. Defendant also seeks the manner or means by which he was involved in the subject illegal gambling business. The particulars of the agreement among conspirators are not required to be furnished. United States v. Tellier, 19 F.R.D. 164 (E.D.N.Y. 1965), aff'd 255 F.2d 441 (2 Cir.) cert. denied, 358 U.S. 821, 79 S. Ct. 33, 3 L. Ed. 2d 62 (1958). Defendant also seeks to know the exact dates when he allegedly picked up the policy gambling bets (3b) and whether there are any other overt acts not listed upon which the Government intends to offer evidence. The former is evidentiary; the latter is frivolous, for it seeks to* elicit the Government's whole case. These items are denied.
BRACEY'S MOTION FOR A BILL OF PARTICULARS
Equivalent items previously denied in this memorandum are also denied as to Bracey. In addition, the defendant seeks to know where, other than the Southern District of New York, the places of the alleged conspiracy were (Item 1). The Government should so state so as to apprise the defendant of the geographical extent of the conspiracy in order to determine possible future double jeopardy. Bracey further wishes to know the specific involvement of each defendant and co-conspirator in the operation of the alleged gambling business (Item 3). This is evidentiary and would unduly limit the circumstantial evidence producible by the Government. See United States v. Kelley, 254 F. Supp. 9, 16 (S.D.N.Y. 1966), aff'd in part and rev'd in part, 395 F.2d 727 (2 Cir.) cert. denied, 393 U.S. 963, 89 S. Ct. 391, 21 L. Ed. 2d 376 (1968).
Defendant wishes to know the day or days when the gambling business had a gross revenue in excess of two thousand dollars. The indictment charges criminal activity for a period of little over two months. This is sufficiently narrow to enable the defense to prepare. See United States v. Lebron, 222 F.2d 531, 535 (2 Cir.) cert. denied, 350 U.S. 876, 76 S. Ct. 121, 100 L. Ed. 774 (1955). This item is refused.
Defendant also seeks the time and place when all eight defendants accepted bets, etc. (Items 5, 6 and 7), the identity of persons present at overt acts (Item 9), the names of persons who made statements and their contents (Item 10). This is purely fishing for the Government's evidence. Item 10 will be ...