The opinion of the court was delivered by: BRODERICK
In this order, I dispose of various pre-trial motions in the above-captioned case.
Defendant Norman Turkish's motion, filed May 31, 1978, for discovery and inspection in connection with his motion for dismissal or suppression due to conflict of interest is denied as moot. An evidentiary hearing on the conflict motion was held before me on July 12-14, 1978 and post hearing briefs have been submitted. Thus there is no need for further discovery.
Defendants Norman Turkish, Frank Knell, Donald Conlin, and Michael A. Kellogg have filed motions for discovery and inspection and bills of particulars.
Preliminarily I take note that Count 1 of the indictment charges defendants with "conspiracy to defraud the United States," a charge which is hardly a paragon of precision. It is not circumscribed by the statutory parameters which are present in the case of a conspiracy to commit an offense. Absent its historical function of reaching areas which Congress has not yet legislatively attended to, a charge of "conspiracy to defraud the United States" under 18 U.S.C. § 371 might well have long since been held to be unconstitutional in failing to delineate with adequate precision the criminal conduct charged. See Goldstein, Conspiracy to Defraud the United States, 68 Yale L.J. 405. Certainly defendants charged with "conspiracy to defraud the United States" are entitled to a relatively definitive statement of what it is that they are charged with having done.
Considerations of the relatively unstructured nature of a charge of "conspiracy to defraud the United States" have influenced the disposition of defendants' motions herein.
I. Discovery and Inspection
Defendants' discovery and inspection demands are granted to the extent already complied with by the government, and to the further extent indicated below, and in all other respects denied.
a. Identification of Government Witnesses. Defendants seek a list of the names and addresses of those people whom the government intends to call as witnesses at trial.
It is clear that the defendants are not entitled to this material as of right, and the decision as to whether they will receive it is within the discretion of the court. The applicable standard is "whether "a specific showing of need for disclosure by the defendant' outweighs "a specific showing of need for concealment by the government.' " United States v. Goldman, 439 F. Supp. 337, 350 (S.D.N.Y.1977), Quoting United States v. Cannone, 528 F.2d 296, 302 (2d Cir. 1975).
In Cannone the Court of Appeals held that the trial judge had abused his discretion when he mandated the disclosure of the identity of the government witnesses. The Court of Appeals found that the defendants had made no showing of need to counter the government's showing of need for concealment, and the district court had not made a Sua sponte determination that the danger the government posited was negligible. In Cannone, "the defense made only an abstract, conclusory claim that such disclosure was necessary to its proper preparation for trial." Id. at 301-302. See also United States v. Goldman, Supra, 439 F. Supp. at 351.
In the case before me, defendants argue that they need the information sought if they are properly to prepare for trial because there are numerous people who traded in the crude oil market, and the indictment charges a conspiracy covering over fifteen months of activity and involves the entire crude oil market. The government argues that there may be intimidation of witnesses if their identity is revealed because some of them are people with whom the defendants may have contact at work or at social engagements.
Defendants have cited various cases where the trial judge found that disclosure was proper. One of these is United States v. Price, 448 F. Supp. 503 (D.Colo.1978). In that case, the defendant posited and the judge utilized various considerations in determining that a list of witnesses ...