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UNITED STATES v. KOLE

December 22, 1977.

UNITED STATES of America,
v.
Tom KOLE et al., Defendants.



The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

BRIEANT, District Judge.

 By Indictment filed November 9, 1977, the four defendants herein were charged with the crime of conspiracy. Additional related substantive counts are also pleaded, arising for the most part out of the alleged conspiracy. Defendants have pleaded not guilty and the Indictment is set for trial on January 30, 1978.

 Requests by defendants for certain particularizations and discovery have been ruled upon by the Court, but there remains open a single disputed item of particulars sought.

 The Indictment charges that the defendants, three of whom are alleged to have been officers or directors of REA Express, Inc. ("REA"), a common carrier in commerce, conspired with each other and others to the grand jury known and unknown, to (Indictment P10) "embezzle, steal, abstract, wilfully convert to their own use and the use of others, wilfully misapply and wilfully permit to be misapplied, monies, funds, credits, securities, properties and assets of REA" arising in whole or in part from its business as a common carrier engaged in commerce, all in violation of Title 18 U.S.C. § 660.

 In a separate part of the Indictment, under the heading "Objects of the Conspiracy," the following allegation is made:

 "It was a part of said conspiracy that the defendants, TOM KOLE and RICHARD SIMPSON, would use their high positions of trust within REA to embezzle and convert to their own use in excess of $100,000 of the moneys of REA which were used in part to finance the defendant, TOM KOLE's personal horseracing business, to pay-off personal loans to the defendant, RICHARD SIMPSON, and to pay cash to politicians." (Emphasis added.)

 It is with respect to the last item underlined above that defendants request particulars, which the Government has declined to furnish.

 The purpose of a Bill of Particulars in a criminal case is, as stated in United States v. Bonanno, 177 F. Supp. 106, 119 (S.D.N.Y. 1959), an opinion by then District Judge Irving R. Kaufman:

 "The defendant is generally held to be entitled to those particulars necessary to enable him to prepare his defense, avoid surprise and plead double jeopardy. (Citations omitted.) The fact that affording the defendant such protection may, in some cases, require some disclosure of the government's evidence is not a bar to the relief where the particulars demanded are, in fact, necessary to the preparation of the defense. (Citation omitted.) On the other hand, the government should not be forced unnecessarily to disclose its evidence and witnesses in advance of trial."

 This Court has previously observed at the pre-trial hearing in this case, that a "politician" is usually the same person described as a "statesman" by those who agree with his policies. We are told in "Dictionary of Word and Phrase Origins," Vol. I, p. 277 (New York, 1962) that:

 "an expert manipulator of political affairs, especially one who regards the great game of politics as his career, is known as a 'politician.' This word has always had somewhat unsavory connotations with, as one authority puts it 'implications of seeking personal or partisan gain.' For this reason, even the most skilled political operators often shun the label 'politician' much preferring to be called statesmen."

 It is to be observed that the Indictment does not charge that the payments to the "politicians" were in themselves unlawful, except to the extent they represent an allegedly improper diversion of the assets and funds of REA. In the broad meaning of the word politician, there is comprised public officeholders on the federal, state and local level, and party officials, as well as those eminences grises who lurk in the background wherever statesmen and party officials are found, and use power by manipulation without responsibility.

 Since both REA and the racing stable allegedly operated by defendant Kole did business in a great number of states, the totality of persons who could be included within the description of "politicians" as ...


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