UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
August 24, 1978
UNITED STATES of America
Norman TURKISH, Jules Nordlicht, Michael A. Kellogg, Frank Knell, and Donald B. Conlin, Defendants
The opinion of the court was delivered by: BRODERICK
ON PRE-TRIAL MOTIONS
In this order, I dispose of various pre-trial motions in the above-captioned case.
A. Defense Motions
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 should be ordered turned over to defendant. Those factors, paraphrased, are:
(1) Did the offense alleged in the indictment involve a crime of violence?
(2) Have the defendants been arrested or convicted for crimes involving violence?
(3) Will the evidence in the case largely consist of testimony relating to documents (which by their nature are not easily altered)?
(4) Is there a realistic possibility that supplying the witnesses' names prior to trial will increase the likelihood that the prosecution's witnesses will not appear at trial, or will be unwilling to testify at trial?
(5) Does the indictment allege offenses occurring over an extended period of time, making preparation of the defendants' defense complex and difficult?
(6) Do the defendants have limited funds with which to investigate and prepare their defense?
Application of various of these factors to the instant case leads to the determination that defendants have made a "specific showing of need" outweighing the government's fear of danger from disclosure.
The offense alleged in the indictment is not a crime of violence and defendants have never been convicted or arrested for any offense involving violence. The bulk of evidence will likely involve documents; the government has identified 25,000 documents relating to this case. Defense counsel have represented that defendants will not seek to intimidate witnesses and in fact may not have any contact with witnesses prior to trial.
Supplying the witnesses' names prior to trial will not, in my judgment, increase the likelihood that the witnesses will not appear or will refuse to testify at trial. The indictment in this case alleges offenses occurring over at least a fifteen month period. I am not persuaded by the government's fear of intimidation, which is the only specified claim of danger from disclosure.
Thus the government shall, within seven days from the date of this order, provide defendants with a list of the names and addresses of those whom the government plans to call as witnesses; this list shall be updated promptly as additional people are added to the list of planned witnesses for the government.
b. Production of statements by co-conspirators. Defendants seek discovery and inspection of any statements in the possession of the government made by co-conspirators during the course of and in furtherance of the conspiracy.
The government contends that it need not supply this material, Citing United States v. Percevault, 490 F.2d 126 (2d Cir. 1974). In Percevault, the court held that the government could not be compelled to provide statements of co-conspirators whom the government intended to call as witnesses. Where the statements sought are not those of prospective government witnesses, statutory limitations (i. e., 18 U.S.C. Section 3500) do not apply. See United States v. Fine, 413 F. Supp. 740 (W.D.Wis.1976).
The government shall, within seven days of the date of this order, provide defendants with copies of statements in the possession of the government or of the New York District Attorney's Office made during the course of and in furtherance of the conspiracy by those co-conspirators whom the government does not intend to call as witnesses at trial.
c. Identification of documents the government intends to use at trial. Defendant Turkish seeks a direction to the government to indicate which of the approximately 25,000 documents relating to this case in the government's possession it intends to use at trial, rather than "bury(ing) the defendant in paper" by merely generally making all of the documents available to defendants.
Pursuant to Rule 16(a)(1)(C), F.R.Crim.P., the government must afford the defendants an opportunity to inspect and copy all documents under the control of the government which "are intended for use by the government as evidence in chief at the trial." This phrase has been sensibly interpreted to include not only "documents which will be marked and offered in evidence by the government," but also documents "which will be relied on or referred to in any way by any witness called by the government during its case in chief." United States v. Countryside Farms, Inc., 428 F. Supp. 1150, 1154 (D.Utah, C.D.1977).
The government is directed, within 14 days of this order, to identify to the defendants those documents which it intends to offer, or to use or to refer to in connection with the testimony of any witness, on its case in chief.
It is further required promptly to identify any other documents when and if a decision is made between now and trial to offer or to use or to refer to such documents.
II. Bills of Particulars
Defendants' motions for bills of particulars 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. Defendant Turkish. Defendant Turkish seeks an indication from the government whether the "losses" referred to in paragraph 9 of Count One of the indictment were tax deductible. The government objects to this request on the ground that it improperly seeks discovery of the government's legal theory of the case. Paragraph 9 sets forth as critical "Objects of the Conspiracy . . . to fraudulently create purportedly tax-deductible losses . . ." The use of the word "purportedly" suggests that the government contends that the losses were not in fact tax deductible. Since indictments must be concise statements of the alleged crime, the use of the word "purportedly" should not be viewed as mere verbiage, without meaning. Certainly, the government may not mislead defendants by the use of a word which has no relevance to or is inconsistent with the government's legal claims. While the government should not be forced to reveal its legal theories, it must clarify ambiguities in its indictment.
The government shall, within seven days of the date of this order, advise defendants whether the government claims that the "losses" referred to in paragraph 9 were or were not tax deductible. If the government claims that the losses were tax deductible, it shall state by whom they were deductible.
Defendant Turkish also seeks a statement of the "other conditions" of the Crude Oil Market referred to in paragraph 10(b) of Count One of the indictment.
In his original request for a bill of particulars, defendant Turkish requested that the government specify the "other conditions of the Crude Oil Market" "fixed" by defendants according to paragraph 10(b) of Count One of the indictment. The government responded, in a letter dated June 2, 1978, page 7, # 5, that the " "other conditions' . . . included efforts by the conspirators to discourage what little legitimate, non-prearranged trading interest there may have been in the Crude Oil Market . . ." Defendant Turkish contends that the government's response is unclear because of the phrase "Included efforts" and seeks an indication whether the government's response sets forth "the full extent of the "other conditions' in the market."
The government shall, within seven days of the date of this order, indicate whether its prior response indicates the full extent of the "other conditions" referred to in paragraph 10(b), and if the government's prior response is not complete, the government shall complete it.
Finally, defendant Turkish seeks finalization of the government's representation that the government "does not now intend to contend at trial that there were any reasons for the losses by Pressner Trading Corporation referred to in paragraph 3 of Count Two (and paragraph 2 of Count Three) other than the reason set forth in (those) paragraph(s)."
The government shall within seven days of this order conclusively indicate to defendant Turkish whether it claims there were any "other reasons" for the losses, and if so, identify the other reasons.
Defendant Turkish seeks definitions of certain words used by the government in the indictment. The government's response thus far has been that the words are used according to their "dictionary meaning." In light of the need for defendants to be apprised as specifically as possible of the crime with which they are charged, the government shall, within seven days of the date of this order, specify the definitions of "manipulation", "pre-arranged", "pre-determined", "rigged", "manipulated" and "fixed" upon which it relies.
b. Defendant Knell. Defendant Knell has requested that the government identify "(e)ach of the lawful functions of the Department of the Treasury that the conspiracy is alleged to have sought to impede, impair, obstruct and defeat . . ."
The government contends that the indictment sufficiently apprises the defendant of the information sought and that further particularization would divulge the government's evidence and unduly restrict its proof.
The indictment charges defendants with "conspiracy to defraud the United States," specifically the Department of the Treasury. The statute itself is not more specific than the language quoted. The Supreme Court has held that the language means ". . . to interfere with or obstruct one of its (the United States') lawful government functions by deceit, craft or trickery, or at least by means that are dishonest. . . ." Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S. Ct. 511, 512, 68 L. Ed. 968 (1924). Thus an element of the crime charged is interference with or obstruction of a Lawful government function. Defendants are entitled to know what lawful government functions they are alleged to have interfered with or obstructed, and the government shall, within seven days of the date of this order, so indicate.
B. Government Motion.
At a pre-trial conference held before me on June 16, 1978 the government represented that it has arrangements with all defendants, except defendant Kellogg, for defendants to provide the government with statements of witnesses for defendants two days before the witness testifies. The government moved for an order directing defendant Kellogg to comply with the terms of this arrangement.
Defendant Kellogg's argument that this arrangement violates his rights under the Fifth Amendment to the Constitution of the United States was rejected by the Supreme Court in United States v. Nobles, 422 U.S. 225, 233-34, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975). To the extent that any such statements exist, defendant Kellogg shall, two days prior to the testimony of any witness in his behalf, provide the government with "written statements signed, adopted, or approved by the witness after he (or she) has read them or had them read to him (or her), or substantially verbatim statements that were recorded in some way contemporaneously with the giving of the statement." United States v. Pulvirenti, 408 F. Supp. 12, 14 (E.D.Mich.1976). See also 18 U.S.C. Section 3500.