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UNITED STATES v. SHOHER

January 21, 1983

UNITED STATES of America,
v.
Robert SHOHER, et al., Defendants



The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

 HAIGHT, District Judge:

 Defendants in the captioned matter have been charged with mail fraud, wire fraud, and the use of false names in furtherance thereof, pursuant to 18 U.S.C. §§ 1341-43, in connection with the sale of allegedly worthless oil futures contracts to approximately four hundred investors throughout the United States. Motions seeking various forms of pretrial relief on behalf of all or some of the defendants are presently before the Court. This opinion addresses the motions of defendants Dan Davis and Harvey Neiblum for an order directing the Government to furnish a bill of particulars pursuant to Fed.R.Crim.P. 7(f) and an order permitting additional discovery pursuant to Fed.R.Crim.P. 16; and the motions of defendant Davis for disclosure of the grand jury testimony of Charles Hecht and an adjournment of the trial for purposes of defense preparation.

 I.

 Bill of Particulars

 Defendants Davis and Neiblum contend that, in light of the "sweeping nature of the allegations" against them, Davis Memorandum at 1, additional particulars are needed to enable defendants to prepare a defense, to avoid prejudicial surprise at trial, and to protect against subsequent prosecution for the same offense. While this Court has no quarrel with defendants' characterization of the threefold purpose of a bill of particulars, see, e.g., United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir.1973), cert. denied, 415 U.S. 985, 94 S. Ct. 1579, 39 L. Ed. 2d 882 (1974), the specificity required to meet these standards is subject to some dispute and entails exercise of the Court's considerable discretion in assessing the sufficiency of the indictment. United States v. Tramunti, 513 F.2d 1087, 1113-14 (2d Cir.1975), cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50, 96 S. Ct. 55 (1975); United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978), cert. denied, 441 U.S. 962, 99 S. Ct. 2408, 60 L. Ed. 2d 1067. One result of the latitude accorded trial courts in making a Rule 7(f) determination, coupled with the fact-sensitive nature of the inquiry, is the limited utility of case precedent and the relative lack of concrete standards in this area. The Court is not totally without guidance, however; the complexity of the offense, the clarity of the indictment, and the degree of discovery otherwise available to the defendants are all relevant factors to consider. See, e.g., United States v. Climatemp, 482 F. Supp. 376 (N.D.Ill.1979).

 Defendant Davis's argument that "the complexity of detail involved in a fifty-three count mail and wire fraud indictment" alleging "co-schemers" and "master minds" requires special particularization at the outset of the case has merit only insofar as "the charges of [the] indictment are so general that they do not advise defendant of the specific acts of which he is accused." United States v. Leonelli, 428 F. Supp. 880, 882 (S.D.N.Y.1977); see also United States v. Clevenger, 458 F. Supp. 354, 357 (S.D.N.Y.1978). The Government has no obligation to "preview its case or expose its legal theory," Leonelli, 428 F. Supp. at 357, nor must it disclose the "precise manner in which the crime charged in the indictment is alleged to have been committed." United States v. Andrews, 381 F.2d 377, 377-78 (2d Cir.1967). In the instant action, the indictment sets forth the scheme to defraud in great detail, including the modus operandi of the salespersons employed by defendants' corporation, American Petroleum Exchange ("APEC"), paras. 5-12; illustrative examples of the misleading representations made to prospective customers, para. 12(a)-(k); the means by which defendants concealed their fraudulent activities, diverted profits, and elicited the confidence of APEC clients, paras. 14-16; and the exact dates, names, and transactions involved in over fifty instances of alleged fraud, para. 17.

 Defendants' requests for further particularization, except as noted below, are denied as "improper attempts to discover the evidentiary details of the prosecution's case," United States v. Lavin, 504 F. Supp. 1356 (N.D.Ill.1981); "to force detailed disclosure of acts underlying a charge," United States v. Mannino, 480 F. Supp. 1182, 1185 (S.D.N.Y.1979); or to "probe too deeply into the government's theory and method of proof," id. at 1186. Davis's Request 4, for example, demands particularization of how "defendants Shoher, Davis and Neiblum 'masterminded the scheme'" and of "how it is claimed defendants Emden, Alexander, Boltax and Golden 'were salesmen for APEC.'" Similarly, defendant Neiblum asks for particularization of the manner in which he was "the 'Master Mind' of the alleged scheme," Request 10, and, with reference to the various counts, seeks details of his personal participation in, or knowledge of, the activities described. See, e.g., Requests 1-3, 7, 12, 25-26, 29-31, 33, 37-39, 42-47. As noted by the Court of Appeals for this Circuit when confronted with a similar request:

 
"While neither the indictment nor the bill of particulars . . . developed in great detail the nature of [defendant's] participation in the conspiracy, that is not required. An indictment need only provide sufficient detail to assure against double jeopardy and state the elements of the offense charged. Under this test, an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.1975).

 Clearly the Government has adequately apprised defendants of "such ultimate facts as are needed to prepare a defense." United States v. Orsini, 406 F. Supp. 1264, 1266 (E.D.N.Y.1976). Indeed, in light of the indictment's considerable specificity, certain of defendants' requests for particularization border on the frivolous. Defendant Davis, for example, asks the Government to "detail each of the [false and fraudulent] representations allegedly made" to unsuspecting investors, a request that is amply answered, in the view of this Court, in para. 12(a)-(k) of the indictment. By the same token, defendant Neiblum's query -- "Did Harvey Neiblum cause the matter referred to [in each count] to be delivered by the United States Postal Service?" -- appears to be adequately answered by the Government's affirmative statement to that effect in the indictment. Defendant's demand for further particularization as to how this was accomplished, Neiblum Request 43, goes beyond the requisite scope of a bill of particulars.

 Certain other requests simply probe too deeply into the Government's theory of the case. For example, defendant Neiblum's Request 41 asks: "If there was authorization, does the Government claim such authorization was invalid, illegal, or insufficient? Please explain." Requests 4 and 5 query whether Mr. Neiblum has been "indicted for fraudulent transactions in which he did not personally participate" and, if so, "based upon what theory?". Defendants' further requests for the names and addresses of every person or entity to whom fake representations were made, Davis Request 10, Neiblum Request 31; the sales office from which each transaction emanated, Neiblum Requests 14-15; the names and addresses of all APEC salespersons or individuals who participated in its formation, Davis Request 8, Neiblum Requests 8, 24; and a complete list of the several hundred APEC investors, Davis Request 8, Neiblum Request 23, must be characterized as impermissible inquiries into the "evidentiary details of the prosecution's case." Lavin, 504 F. Supp. at 1361. This is especially true in light of the Government's disclosure of the date, customer name and address, and transaction involved in over fifty instances of alleged mail fraud. See United States v. Mahany, 305 F. Supp. 1205, 1209 (N.D.Ill.1969) ("The indictment sets out the scheme to defraud in great detail and specifically charges three instances of mail fraud giving exact dates and persons defrauded . . . it is clear that no further evidentiary details are necessary here either to prepare a proper defense, to avoid prejudicial surprise, or to defend against further prosecution for the same offense.").

 Defendant Davis directs the Court's attention in particular to his Request 6, wherein he asks the Government to explain "what is meant by: (a) 'contracts for the future delivery' of oil; (b) 'contracts for speculation' . . . ." Defendant contends that he is entitled to further particularization of this language because it is language "also employed by the Commodity Exchange Act" and defendant wishes to be prepared to "properly plead double jeopardy in the event of prosecution for alleged violations of commodities laws." Davis Reply Memorandum at 37. While it appears to this Court that the meaning of the terms cited is fully explicated in the indictment considered as a whole, defendant's concern is, in any case, unwarranted, given the well-established rule that the entire record of a proceeding, not simply the indictment, may be referred to if a subsequent prosecution is alleged to constitute double jeopardy. Russell v. United States, 369 U.S. 749, 764, 82 S. Ct. 1038, 1047, 8 L. Ed. 2d 240 (1962); United States v. Haldeman, 181 U.S. App. D.C. 254, 559 F.2d 31, 126 (D.C. Cir.1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977). Accordingly, any latent ambiguity as to the nature of the contracts sold can readily be clarified by reference to additional documents, including the trial transcript, in the event of a double jeopardy threat.

 Defendant Davis also urges the Court to grant his request for clarification of paragraph 18 of the indictment. As noted by Mr. Davis, he is the only defendant charged with a violation of § 1342 -- use of a fictitious name or address in furtherance of a § 1341 scheme -- on an apparently "vicarious" basis. In short, with reference to all other defendants charged in Counts 45 through 51, the Government has specified the fictitious name allegedly used by each defendant and the date on which that alias was employed. In order to clarify the indictment sufficiently to apprise defendant of "the specific act of which he is accused," Leonelli, 428 F. Supp. at 882, the Government is directed to inform defendant Davis of the "fictitious, false, or assumed title, name, or address," 18 U.S.C. § 1342, he is charged with using. Absent this information, defendant's efforts to prepare an adequate defense to the § 1342 charge will be significantly hampered.

 The Government has acceded to defendant's request for identification of alleged "co-schemers known and unknown to the Grand Jury" by providing a list of twelve individuals "who the proof at trial may establish to be co-schemers with the defendants." Defendant Davis's contention that this "select list" is not sufficiently responsive to his request is rejected, with the proviso that the Government has an ongoing obligation to provide defendants promptly with the names of any additional "co-schemers" as to whom the Government expects to introduce evidence at trial. Failure to comply will result in preclusion of the evidence. Beyond this, the danger of prejudicial surprise at trial or preclusion of the opportunity for meaningful defense preparation is negligible.

 II.

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