The opinion of the court was delivered by: ELFVIN
Olin Corporation ("Olin") filed September 14, 1978 its omnibus motion which comprises twenty-one separate motions. Oral argument was held October 27, 1978. Defendant Kleiber filed a motion stating that he joined in the motions of Olin wherever applicable. Defendants Broad and Schmiege, through their respective attorneys, stated at oral argument on the omnibus motion that they also joined in the motion where applicable. The Government opposes all the motions.
There are twenty-eight counts in the Indictment. Count I charges defendants Broad, Kleiber and Schmiege with conspiracy to defraud the United States and its departments and agencies in violation of 18 U.S.C. § 371.
Counts II through XXI charge defendants Olin, Kleiber and Schmiege with making false statements and making and using false writings knowing the same to contain false statements in violation of 18 U.S.C. § 1001.
Defendants Kleiber and Schmiege are charged in counts II through XXI and defendants Olin, Kleiber and Schmiege are charged in counts IX through XXI. Counts XXII through XXVIII charge defendants with making false statements in reports filed with the Environmental Protection Agency ("the EPA"), in violation of 33 U.S.C. § 1319(c)(2).
Defendants Olin, Schmiege and Broad are charged in all such counts and defendant Kleiber is named in counts XXII, XXV and XXVI.
The motions will be discussed seriatim.
Olin seeks dismissal of the Indictment based on the alleged vindictiveness of the Government. It argues that the filing of the Indictment after Olin had fully cooperated with the Government suggests vindictiveness or at least the appearance of vindictiveness on the part of the Government. Olin also argues that the interests of justice require dismissal.
According to Olin, an Assistant United States Attorney told Olin's counsel that Olin would not be indicted if the evidence showed that knowledge of the misreporting was limited to Niagara Falls plant personnel. The Government denies that such a promise was made to Olin. According to the Government, Olin was told that its "decision not to contest the Grand Jury subpoenas issued for its witnesses and its documents, as well as their prompt presentation, would be considered in deciding what charges to bring." (Government's brief at 4.) The Government states that Olin was not charged in the conspiracy count and in seven of the felony counts purely as a matter of prosecutorial discretion. In addition, the Government disputes Olin's contention that there is no evidence of bad faith on the part of corporate officials outside the Niagara Falls plant.
Olin cites several cases in support of its contention that the Government should not be allowed to indict a defendant who has fully cooperated with the Government. At pages 4 and 5 of its brief, Olin sets forth what it describes as the common spirit of the cited cases: "Courts will not permit the Government to lull a defendant into a false sense of security by encouraging its full cooperation and then, after it has received full disclosure, indict the defendant almost as if it had never cooperated." This description of the case law is highly inaccurate. The holding in each of the cited cases
is that due process is violated when a defendant is retaliated against or it appears that a defendant is being retaliated against for the exercise of said defendant's constitutional or statutory rights. There is no indication that the Government's decision to indict Olin was motivated by Olin's intent to exercise a constitutional or statutory right. Olin has not cited any case supporting its argument that cooperation by a prospective defendant deprives the Government of the right to indict her, him or it.
Undoubtedly many of Olin's arguments concerning its cooperation and the lack of bad faith on the part of corporate officials outside the Niagara Falls plant will be argued to the jury in order to negate the element of intent. Presently, there are not enough facts in the record for me to resolve these issues and they are best left to the trier of fact.
Neither the interests of justice nor the doctrine of "manifest vindictiveness" requires dismissal. Therefore, Olin's motion for dismissal on such grounds is denied.
Failure to Present Favorable Evidence to the Grand Jury
Olin alleges that the prosecution failed to provide exculpatory materials to the grand jury and that such omission warrants either dismissal of the Indictment or an investigation by the court. At pages 25 through 27 of its motion, Olin lists some of the "evidence" it believes should have been brought to the attention of the grand jury. The first three items are presentations prepared by Miller, Cassidy, Larroca and Lewin, the law firm representing Olin at the time of the grand jury proceedings. In addition, Olin refers to statements made by some of its employees that it contends should have been affirmatively placed on the record. Other items of "evidence" also are listed as being exculpatory. Olin further complains of the prosecutor's failure to notify it of the date the grand jury was to vote on whether to indict Olin, arguing that such failure deprived Olin of an opportunity to specifically request the presentation of the cited "evidence".
The Government maintains that Olin never requested its attorneys' presentation to be brought to the grand jury's attention, that the statements cited by Olin were presented to the grand jury and that some of the "evidence" is irrelevant to the case. In addition, the Government states that Olin had been notified on several occasions of the date the grand jury was to vote, but that the dates were postponed due to Olin's discussions with the Assistant Attorney General for the Land and Natural Resources Division of the Justice Department. Olin has not contradicted the Government's assertion that the statements cited at page 26 of its motion were presented to the grand jury, as opposed to being affirmatively placed on the record.
A prosecutor has a duty to present to a grand jury evidence which clearly negates guilt.
United States v. Phillips Petroleum Co., 435 F. Supp. 610 (N.D.Okl.1977); United States v. Mandel, 415 F. Supp. 1033 (D.Md.1976). However, the prosecutor is not obliged to sift through all the evidence to find statements or documents that might be exculpatory. Loraine v. United States, 396 F.2d 335 (9th Cir.), Cert. denied, 393 U.S. 933, 89 S. Ct. 292, 21 L. Ed. 2d 270 (1968); United States v. Mandel, supra. The prosecutor does not have a duty to present defendant's version of the facts.
There is no evidence of prosecutorial misconduct or of a violation of Olin's constitutional rights. The "evidence" cited by Olin does not clearly negate guilt. Neither dismissal of the Indictment nor a further investigation of this matter is warranted. Therefore, defendant's motion to dismiss for failure to present favorable evidence to the grand jury or for an investigation is denied.
Olin contends that information provided to the grand jury was leaked to the press. It cites an article published in the New York Times indicating that approximately thirty-eight tons of mercury had been discharged to the Niagara River by Olin. The Government responds that the grand jury was never given such an estimate of the mercury discharge and that the only person given the figure of thirty-eight tons was Nathan Lewin, counsel for Olin.
The Government's uncontested response satisfies me that there was no prosecutorial misconduct in this regard. Olin's motion for dismissal on the basis of grand jury leaks is denied.
On January 15, 1979 all counsel were present in court to set a date for trial. At that time, I stated on the record that Olin's motion for severance was denied. The following constitutes my memorandum on such motion.
Olin claims that the Government has improperly joined Olin with the other defendants and that the counts alleging violations of 18 U.S.C. § 1001 have been improperly joined with the counts alleging violations of 33 U.S.C. § 1319(c)(2). Olin alternatively argues that, even if joinder were proper under either Fed.R.Crim.P. rule 8(a) or 8(b), it will be prejudiced by the joinder because the jury will not be able to segregate the evidence as to each defendant; in particular, evidence will be admitted on the conspiracy count that would be inadmissible in a separate trial of Olin. Further, it is claimed that the individual defendants have defenses that are antagonistic to that of Olin. Defendant Olin also argues that a Bruton problem may present itself during the course of trial. The Government argues that rule 8(a) is not applicable when there has been a joinder of defendants. It also urges that joinder under rule 8(b) was proper. In addition, the Government contends that there is no way of telling at this point whether the other defendants have defenses antagonistic to Olin's and whether a Bruton problem will arise.
Fed.R.Crim.P. rule 8(a) has no applicability to the joinder of two or more defendants for trial. United States v. Papadakis, 510 F.2d 287 (2d Cir.), Cert. denied, 421 U.S. 950, 95 S. Ct. 1682, 44 L. Ed. 2d 104 (1975); United States v. Laca, 499 F.2d 922 (5th Cir. 1974); United States v. Roselli, 432 F.2d 879 (9th Cir. 1970), Cert. denied, 401 U.S. 924, 91 S. Ct. 883, 27 L. Ed. 2d 828 (1971); United States v. Mandel, supra. Rule 8(b) permits joinder of defendants when "they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Olin argues that there are no allegations demonstrating Olin's participation with the individual defendants in the same series of acts and transactions. Olin is not named in the conspiracy count, nor in the first seven substantive counts. Rule 8(b) does not require that each defendant be charged in each count, only that the defendants have participated in the series of acts or transactions that gives rise to the counts in the Indictment. United States v. Laca, supra; United States v. Roselli, supra; United States v. Mandel, supra, at 1046. Normally, a conspiracy count provides the connecting link among defendants and offenses. See, e.g., United States v. Laca, supra; United States v. Slawik, 408 F. Supp. 190 (D.Del.1975), Aff'd without opinion, 564 F.2d 90 (3d Cir. 1977).
Olin argues that there is no nexus among the counts of the Indictment and that each count represents a separate transaction, at least as to it.
The Government's argument that the conspiracy count provides a common link is unavailing as to Olin because Olin is not charged in such count. However, a common link may exist even where there is no conspiracy count. Evans v. United States, 349 F.2d 653, 658 (5th Cir. 1965). Olin was under court order, as alleged in Count II, and subsequently was obliged by statute, as alleged in Count XXII, to provide the Government with reports of mercury discharge to the Niagara River. The proof of these facts will be identical for counts II through XXI and counts XXII through XXVIII. The Indictment alleges that the defendants knowingly supplied false information in such reports. The proof as to the falseness of the reports will be identical for each defendant. What will vary is the proof of each defendant's participation and each defendant's intent in filing the report. Joinder is proper where there is a substantial identity of facts and participants among the counts in an indictment. United States v. Levine, 546 F.2d 658 (5th Cir. 1977); United States v. Marionneaux, 514 F.2d 1244 (5th Cir. 1975). The facts set forth in the Indictment herein show sufficiently the existence of a series of acts and transactions and each defendant's participation in such series. Joinder of defendant Olin was proper.
Olin also urges that severance should be granted under Fed.R.Crim.P. rule 14 because prejudice will inure to Olin by being tried with its employees and that the jury will not be able to segregate the proof as to each defendant. Although this is not a simple case, the proof as to each count can be compartmentalized. The substantive counts allege discrete acts, and much of the evidence will be documentary in nature. Usually, limiting instructions as to the use of evidence and careful charges concerning the counts pertaining to each defendant and the evidence that can be used against each defendant are considered enough to overcome any unnecessary prejudice. United States v. Levine, supra; United States v. Papadakis, supra; United States v. Laca, supra; United States v. Roselli, supra; United States v. Kelly, 349 F.2d 720 (2d Cir. 1965), Cert. denied, 384 U.S. 947, 86 S. Ct. 1467, 16 L. Ed. 2d 544 (1966). The court is aware of its continuing duty to oversee the trial and to insure that the joint trial does not cause undue prejudice to any defendant. Defendant Olin will be free to renew its motion during the course of the trial if it feels that such is warranted.
The arguments concerning a Bruton problem and antagonistic defenses are premature. Olin's papers did not allege specific facts showing why its defense is antagonistic to that of the other three defendants. It is possible that the three individual defendants may try to negate their culpability by blaming defendant Olin, but at this point there is nothing before me warranting such a conclusion. Similarly, a Bruton problem would arise only if the three co-defendants decided not to take the stand. See, United States v. Mandel, supra, at 1049.
Defendant's request for the out-of-court statements made by its co-defendants is denied.
Applicability of 18 U.S.C. § 1001
Olin argues that it was improperly charged with violations of 18 U.S.C. § 1001. Olin states that it was not required by law or by regulation to file the mercury discharge reports from 1970 through 1975 and that no federal official had the power to compel Olin to file the reports. According to Olin, the fact that the reports were filed as a result of a stipulation entered into a civil action, United States v. Olin Corp., Civil Action No. 1970-338 (W.D.N.Y.1970), brings the reports exclusively within the jurisdiction of the federal district court. Olin asserts that false statements made in a judicial proceeding are not statements made in a "matter within the jurisdiction of any department or agency of the United States." Olin argues that if it had failed to file the reports the Government could have brought an action to compel compliance with the stipulation. The Government contends that the EPA and its predecessor, the Federal Water Quality Administration ("the FWQA"), had jurisdiction over the nation's waterways and therefore had jurisdiction ...