UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 3, 1984
UNITED STATES OF AMERICA against GEORGE G. DAVIS, Defendant.
The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
HAIGHT, District Judge:
On August 17, 1982 a grand jury of this district returned the captioned indictment against Gerald E. Lee and George G. Davis. Lee and Davis were charged in one count of conspiracy to enrich themselves through fraud, and Lee in two counts of violating 18 U.S.C. § 2314. Lee has pleaded guilty. Davis awaits trial on the conspiracy count, scheduled to begin on April 2, 1984. It is expected that Lee, now cooperating with the Government, will testify against him.
The date of the latest overt act alleged in the conspiracy count is November 22, 1977. The statute of limitations on that count accordingly expired on November 22, 1982. 18 U.S.C. § 3282; United States v. Culoso, 461 F. Supp. 128, 131 (S.D.N.Y. 1978), aff'd mem., 607 F.2d 999 (2d Cir. 1979).
The indictment was sealed upon its return, and unsealed on September 15, 1983. On March 21, 1984 Davis moved pursuant to Rule 6(e), F.R.Crim.P., to dismiss the indictment. Alternatively he moves pursuant to Rule 13 to consolidate trial of the captioned indictment with that of Indictment No. 83 Cr. 551, currently pending before Judge Conner.
I treat these motions in order. Motions to Dismiss the Indictment
Davis's motion to dismiss arises from the fact that, while the indictment was timely filed, it was sealed and not made public until after the end of the statutory limitations period.
Sealing an indictment is sanctioned by Rule 6(e)(4), which provides in pertinent part:
"The federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial." The complications that arise when the statute of limitations runs out while the indictment is sealed were most recently considered by the Second Circuit in United States v. Muse, 633 F.2d 1041 (2d Cir. 1980) (en banc).
The Government contends that, in the circumstances of the case when viewed in the light of Muse, there is no merit to Davis's motion. Initially, however, the Government attacks the motion as untimely.
It is true, as the Government stresses, that the Court set a deadline of November 17, 1983 for pre-trial motions. That action was taken pursuant to Rule 12(c). Rule 12(f) provides that a party's failure "to raise defenses or objections or to make requests" by the specified time "shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver." As noted infra, Davis's claim of prejudice resulting from delay in unsealing the indictment relates to the death of two allegedly exculpatory witnesses. Counsel for Davis did not become aware of the death of one of these witnesses, one Jerry Shanks, until early December, 1983. Counsel for defendant has also recently recovered from serious illness. I accept the Government's contention that, notwithstanding these factors, the instant motion could have been made earlier. But I conclude that good cause has been shown for defendant's failure to make this particular argument on or before November 17, 1983, the Rule 6(c) deadline; and that sufficient cause exists to excuse the actual date of filing of the motion to dismiss. Accordingly I proceed to a consideration of its merits.
The "obvious purpose" of Rule 6(e)(4) "is to prevent the requirement of an indictment from serving as a public notice that would enable the defendant to avoid arrest." Muse, supra, at 1043. And, as Muse makes clear, where there are co-defendants, good faith efforts to arrest one of them will justify the sealing of an indictment as to all. The power to seal an indictment, Judge Newman wrote for the en banc court in Muse, "is based on the legitimate prosecutorial needs of the Government to capture those properly indicted for criminal activity." Ibid.
The case at bar turns upon the Government's efforts to capture Davis's co-defendant, Lee. It is common ground that prior to August 17, 1982, when the grand jury returned the indictment, Lee had departed these shores for Ireland. In these circumstances, Davis argues, the Government cannot be heard to argue that the indictment was sealed in order to facilitate or ensure Lee's arrest. The Government's real reason for sealing the indictment, Davis suggests, was to permit completion of a grand jury investigation into another and more elaborate fraudulent scheme, involving Davis, Lee, and two other defendants. It is this indictment, returned by the grand jury in September, 1983, that is presently pending before Judge Conner. Such tactical considerations, Davis argues, cannot be condoned in derogation of his own right to timely trial under the captioned indictment.
If Davis had accurately identified the reason why the prosecutor sealed the indictment, there would be authority for dismissal. United States v. Heckler, 428 F. Supp. 269 (S.D.N.Y. 1976); United States v. Sherwood, 38 F.R.D. 14 (D.Conn. 1964), aff'd sub. nom. United States v. Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382 U.S. 843, 15 L. Ed. 2d 84, 86 S. Ct. 89 (1965). But I reject Davis's argument because I cannot accept its basic premise.It is true that Lee had fled to Ireland before the indictment was filed. However, the Government retained a lively interest in his "capture," to use Judge Newman's word in Muse. I am satisfied by AUSA Denton's representations in this case that the Government reasonably believed its prospects of capturing Lee were better if Lee were to travel outside Ireland. In furtherance of that assessment, the Government requested and obtained the assistance of Interpol. The Government also reasonably believed that if Lee learned that he had been indicted by a grand jury here, he would be more likely to keep to ground in Ireland. Therefore the indictment was sealed. The accuracy of the Government's assessment appears to be confirmed by the fact that arrangements were ultimately made for Lee's return to the United States from a country other than Ireland.
In these circumstances, I hold that the Government procured the sealing of the indictment in aid of precisely that "legitimate prosecutorial need" contemplated by Rule 6(e)(4) and sanctioned by a line of appellate authority beginning with United States v. Michael, 180 F.2d 55, 56-57 (3rd Cir. 1949), cert. denied, 339 U.S. 978, 70 S. Ct. 1023, 94 L. Ed. 1383 (1950), of which Muse, supra, is the most recent expression in this Circuit.
That holding does not end the inquiry. As Muse observes, the Court must balance "adequate recognition of the legitimate interests of both prosecution and the defendant." Id. at 1043. The defendant's interest is in avoiding a stale prosecution. His primary protection is the five-year statute of limitations, as enacted in 18 U.S.C. § 3282. Muse considered the interaction of that statute and the sealing of an indictment for the indicated legitimate prosecutorial need. In Muse, the Second Circuit en banc undertook to:
". . . provide guidance for determining how much protection should be afforded a defendant when an indictment is returned within the limitations period but maintained under seal until that period has run in order to serve the prosecutorial interest in arresting an indicted defendant." Ibid.
The Muse court answered that question as follows:
"We think the defendant's interests are adequately protected by permitting him to secure dismissal only when he can show prejudice occurring during the period when the indictment was sealed, or perhaps only during the post-limitations portion of that period. Only prejudice occurring during either of these periods could be attributable to the prosecutor's decision to seal the indictment; any prejudice occurring prior to the sealing of the indictment is unrelated to this decision, and thus irrelevant to the issue in this case." Id. at 1043-44 (footnote omitted).
In a footnote dropped from the text at this juncture, Judge Newman regarded it as "unnecessary to this case to choose between these two time periods or to determine whether different standards of prejudice might be appropriate to each of the two periods." Id. at 1044 n.2.
As noted supra, Davis's claim of prejudice arises out of the death of two potential witnesses. One was Jerry Shanks and the other was one Martin Hambrose. As best I can deduce from the motion papers, Shanks died in early December, 1983. I base this upon the following statement in the affidavit of Daniel P. Hollman, Esq., counsel for Davis, submitted in support of the motion:
"On November 30, 1983, your deponent called Seattle, spoke to Mrs. Shanks, who advised her husband was under treatment, and under too much stress to be interviewed. Shortly thereafter, Mr. Shanks passed away."
As to Hambrose, I am told in the Hollman affidavit that he "had died sometime after Thanksgiving of 1982." Paragraphs 27-35 of the Hollman affidavit, which formed the factual basis for the motion, are attached to this opinion as Appendix A.
The conspiracy count in the indictment charges that at the pertinent times, Lee and Davis were officers of the Frigitemp Corp. Frigitemp was engaged in the business of marine construction. The indictment alleges that the defendants and others engaged in a criminal conspiracy to enrich themselves through the fraudulent submission of fictitious invoices in connection with the acquistion and improvement of a manufacturing plant in Summerville, South Carolina. Frigitemp formulated plans to establish a plant in Summerville to manufacture foam insulation panels for Liquified Natural Gas vessels. Frigitemp officers sought the assistance of Dorchester County, South Carolina in financing the acquisition and improvement of the plant. Ultimately, Dorchester County issued industrial revenue bonds, the proceeds of the bond issue being intended to be used for financing the acquisition and improvement of the Summerville plant. The co-conspirators, the indictment alleges, agreed to submit fictitious invoices to Frigitemp, in order to create the false appearance that funds had been expended for design and engineering work on the plant. In furtherance of that scheme, the conspirators purchased and utilized a "shell" corporation called Interchange Design, Inc... The conspirators submitted fictitious invoices of Interchange Design to Frigitemp. Frigitemp passed the fictitious invoices along to the Trustee of the bond issue, who unsuspectingly paid them. Thus fraudulently obtained funds were funneled through Frigitemp to Interchange Design. Further distributions occurred from Interchange Design to other corporations controlled by the conspirators. Thus an overt act alleged in the indictment is that:
"On or about June 6, 1977, defendant George G. Davis received an Interchange Design check for $30,000.00, payable to Mamoni Shipping Co., Ltd."
The Government states that its evidence will show that Mamoni Shipping Co. was a company formed by Davis and one Sukhamay Bose for the purpose of implementing the fruad.
Against this background I cosider the allegedly exculpatory testimony of Shanks and Hambrose.
A preliminary question arises with respect to Shanks. Under the analysis in Muse, Davis is required to demonstrate prejudice "occurring during the period when the indictment was sealed, or perhaps only during the post-limitations portion of that period." In the case at bar, the indictment was unsealed on September 15, 1983. Shanks died in early December of that year. If we look only to the fact of Shank's death for evidence of prejudice, then the prejudice did not occur "during the period when the indictment was sealed." The death of this witness would then become a fortuitous misfortune, not cognizable on the present motion.
However, focusing upon the date of death to the exclusion of all other factors would pay insufficient attention to Davis's legitimate interests. What controls is the availability of the witness to give testimony, an ability which may be compromised or lost by illness manifesting itself a substantial amount of time before death. Of course, such circumstances trigger the well-recognized obligation on the part of a defendant to take the deposition of a favorable witness if that witness is ill, and defendant is concerned that he may not be available at trial. United States v. DiFrancesco, 604 F.2d 769, 777 (2d Cir. 1979), rev'd on other grounds, 449 U.S. 117, 66 L. Ed. 2d 328, 101 S. Ct. 426 (1980).
In the case at bar, I am told that after the indictment was unsealed, Davis advised his counsel, Hollman, of the incident involving Shanks which Hollman describes in P29 of his affidavit. I am not told when Davis first told Hollman about Shanks. When he did so, "Davis advised Shanks had cancer and would have to be reached as quickly as possible." Hollman affidavit at P30. Davis spoke by telephone to Shanks, at a date not revealed by the record; Hollman thereafter telephoned Shanks at his office in Seattle on October 20, 1983. Ibid. Shanks was cooperative, and suggested that Hollman call him during the week of October 24 to set up an appointment. But by October 27, when Hollman attempted to telephone Shanks again, Shanks was in the hospital where he remained at least through October 31. Hollman's continuing and unsuccessful efforts to interview Shanks before the latter died are set forth in the Hollman affidavit at P30. One can infer that Shanks felt better at least briefly, since in a November telephone conversation Shanks's wife advised Hollman that "he [Shanks] had a relapse, and was not really coherent." (emphasis added). But from October 27, 1983 until his death, the position in respect of Shanks, as described by the Hollman affidavit, is one of basic unavailability by reason of illness.
I may also infer that, as late as October 20, Shanks was healthy enough to be first interviewed and then deposed by the defense. Thus the defense had just over a month from the unsealing of the indictment on September 15 to consider and react to the charges, appreciate the alleged importance of Shanks's testimony, interview him, and arrange for his deposition. I am not prepared to foreclose Davis's reliance upon the Shanks's testimony because a deposition was not accomplished in the month immediately following the unsealing of the indictment. I conclude that Mr. Hollman proceeded with reasonable dispatch in informing himself of the case and attempting to interview Shanks. That is all, in my view, that the law required in the circumstances.
Accordingly, I must consider the nature of the Shanks testimony. Two questions arise: is the testimony exculpatory; and is it admissible?
Davis's brief on this motion indicates that the defense regards the testimony of Shanks (and Hambrose) concerning what Lee said at the incidents in question as exulpatory of Davis. But the Government argues that these witnesses' testimony concerning Lee's statements would not be admissible at trial, so that Davis could not be prejudiced by their unavailability. The Government theorizes that the only arguable basis for admitting Lee's hearsay declarations is as a co-conspirator's statements under Rule 801(2)(E), F.R.Evid., and the rule cannot apply because it is limited to statements "offered against a party . . ." The argument is correct; but Davis argues in his brief that Lee could be cross-examined as to his prior statements under Rule 613, and Shanks and Hambrose called as witnesses to undermine Lee's credibility if Lee had denied in his testimony the accounts of the meetings attended by Shanks and Hambrose.
I agree with this general proposition as well; but its practical effect upon the case at bar depends entirely on what Lee's testimony turns out to be. That is because Rule 613(b) permits extrinsic evidence (such as the testimony of Shanks or Hambrose) only in respect of a "prior inconsistent statement" by a witness such as Lee. Davis's brief (p.7) argues for the applicability of Rule 613 by undertaking to anticipate Lee's testimony:
"Lee would testify on direct that Davis received $30,000.00 as a payoff in the South Carolina deal. That Bose had no part in it. Lee would deny he told Davis, before Shanks or Hambrose, that Bose was a participant."
Obviously, we cannot tell what Lee's testimony, on direct or cross, will be until he gives it. If that testimony emerges in a fashion other than Davis predicts, the argument under Rule 613 may well be undermined. That would arguably occur, for example, if Lee testified that Davis and Bose were co-ventures in Mamoni Shipping Co., and jointly benefited from illicit payments generated by the "South Carolina deal."
Since a defendant's burden in cases of this nature is to demonstrate "substantial actual prejudice," Muse, at 1043, I have concluded that the position can only be properly evaluated at the end of trial, and in the event of a conviction of Davis. At that time we will know just what Lee's testimony was on the pertinent points, as well as the totality of the evidence against Davis.
I reach the same evidentiary conclusions with respect to the suggested testimony of Hambrose. The preliminary questions of timing do not arise as to him. Hambrose died after Thanksgiving of 1982. The statute of limitations expired on November 22, 1982. Hambrose's death therefore occurred after the statute of limitations ran out, but before the indictment was unsealed. Even by the more strict measurement suggested in Muse, Davis may cite Hambrose's death as a potential source of prejudice; and the Government cannot argue that a deposition should have been taken after the indictment was made public, the witness having died before the indictment was unsealed.
In these circumstances, I hold that there is no basis to dismiss the indictment before trial. My conclusion is without prejudice to a renewal after trial in the event of conviction.
In view of the Court's analysis of the evidence that Lee may give on behalf of the Government at trial, it is in my judgment appropriate that the prosecutors be instructed not to discuss that analysis with Lee in preparing his testimony, and I so direct.
Motion to Consolidate
I deny Davis's motion to consolidate this trial with the criminal indictment pending before Judge Conner. The motion is untimely. There is no reason why it could not have been made as soon as both indictments were made public. The motion now comes, as a practical matter, upon the eve of trial, after the Government has made its trial and witness preparations and this Court has reserved the time. I am also persuaded by AUSA Denton's letter of March 27, 1984 at pp. 4-5, that the case would in any event inappropriate for consolidation under Rule 13.
For the foregoing reasons, defendant's motions are denied. The case will go forward in conformity with this opinion.
It is SO ORDERED.
27. The thrid [third] and last, argument in support of the dismissal of the Indictment is the fact Davis suffered actual prejudice in the delay in unsealing of the Indictment. Your deponent has discussed with Davis his defenses to the 1982 Indictment, and the witnesses Davis believes he should call in his own defense. Your deponent now finds that two of these witnesses became sick during the delay period and have died. The delay in the unsealing of this Indictment has precluded Davis from presenting a complete defense.
28. Your deponent became aware of the importance of the first witness, Jerry Shanks, in late 1983 when Davis advised of his knowledge of the facts involved in the Indictment.
29. Davis advised that Jerry Shanks could have been called as a witness in this case, and would have been able to testify to the following facts: Shanks was an employee of Frigitemp from 1974 through mid-year 1978. Shanks worked for, and was personally acquainted with Gerald Lee. Shanks had heard of both Shuk Bose and Mamoni Shipping Company. Shanks and Davis were co-workers, and also personal friends. Shanks would have testified that he was present at Pete's Tavern, located on the corner of 18th Street and Irving Place during mid-1977. Shanks was at the bar with Davis discussing the problems of the Goose Creek L.N.G. Contract. Gerald Lee was also at the bar, was drinking, and appeared slightly intoxicated. Lee came over to Shanks and Davis, and told Davis that, as they had previously discussed, some money was due to Bose. Davis said he remembered that being a problem. Lee in the presence of Shanks and Davis, laid a check on the bar in front of both of them. Lee explained to Davis it was a $30,000.00 Interchange check. Lee pointed out that it was not payable to Bose but to Mamoni Shipping Company, and that Davis would have to get the check deposited into the account. Lee said this should satisfy Bose. Davis picked up the check, placed it in his pocket, and told Lee he would take care of it. Lee returned to his companions at the bar. Shanks told Davis that he knew of Interchange since he had seem some papers where Interchange was supplying services. Shanks said, based on what he saw take place at Frigitemp before, that he believed Lee was stealing from Frigitemp through use of the Interchange Company. Shanks said that what he had seen, in payoffs and diversions of funds to Ferro Mechanical, they are stealing the place blind. He did not know how long this could go on. Davis advised Shanks that he was resigning. Mr. Davis did submit a resignation and changes were made to keep him employed.
30. Following this disclosure by Davis to your deponent, the latter took steps to reach Mr. Shanks. Davis advised Shanks had cancer and would have to be reached as quickly as possible. As can be supported by the telephone records of this office, your deponent first called Jerry Shanks at the Locheed Shipbuilding Yard in Seattle, Washington, telephone number 1-206-343-6020 on October 20, 1983. Your deponent advised he represented George Davis and believed Mr. Shanks might have some information concerning a 1970 South Carolina stock deal. Mr. Shanks said that Mr. Davis had called him earlier, and that he was expecting a call from the attorney for Davis. In reply to my question, Mr. Shanks said he was familiar with the South Carolina matter, and knew of Shuk Bose. Mr. Shanks advised he was friendly with Davis and that he would talk to your deponent, and to call him during the week of October 24th to set up an appointment. On October 27, 1983, your deponent spoke to Carl Foreman, a co-employer of Shanks at Locheed, who advised Shanks was in the hospital, with a high temperature, and did not know when Shanks would get out of the hospital. On October 31, 1983, your deponent again called Seattle, talked to Foreman, who advised Shanks was still in the hospital and did not know when he would return to work. Thereafter, your deponent called Seattle again, spoke to Foreman, who advised that Shanks home telephone number was 1-206-643-1709. In November 1983 your deponent called Shanks at home, and he advised he had a relapse, and was not really coherent. Shanks was still undergoing treatment and it was agreed to call again on Monday, November 28, 1983. Four calls were made to the Shanks residence on that date with no response. At the end of November 1983, your deponent went to Los Angeles, California on other business, and in the hope that while on the West Coast arrangement could be made to interview Mr. Shanks. On November 30, 1983, your deponent called Seattle, spoke to Mrs. Shank, who advised her husband was under treatment, and under too much stress to be interviewed. Shortly thereafter, Mr. Shanks passed away.
31. The Government may argue that since Mr. Shanks died a couple of months after the 1982 Indictment was unsealed, that the sealing did not deprive Davis of the testimony of a supportive witness. However, as the facts indicated, Mr. Shanks was not able to testify at all since he was under treatment. Had the Indictment been opened in August 1982, no doubt Mr. Shaks would have been able to testify in early 1983 since he remained on his job through early October 1983.
32. Following this situation, your deponent again discussed with Davis whether he could recall any other situations that might be used in his defense. Davis recalled a lunch he had with Martin Hambrose and co-defendant Lee.
33. Davis stated that Martin Hambrose would be able to testify that Hambrose had knowledge of certain facts that would have been helpful to Mr. Davis in the defense of the charges contained in the 1982 Indictment. Mr. Davis related those facts which he believes would have assisted in his defense.
Sometime during 1977, Mr. Davis received a telephone called at his office from a man who introduced himself as Martin Hambrose. Mr. Hambrose related that he was in the salvage business and wanted an appointment to meet with Mr. Davis relative to the possibility of purchasing salvage material from Frigitemp. He stated that Corporate Personnel suggested he contact George Davis.
Sometime later, Mr. Hambrose visited with Mr. Davis, introduced himself and stated that he owned a salvage business (Mr. Davis does not remember the name of the Company). Mr. Davis advised that he did not believe Frigitemp had any volume of material that Mr. Hambrose would be interested in but he nonetheless, had someone from the office meet with Mr. Hambrose to discuss the possibilitiies. Sometime later, Mr. Hambrose returned to the office and had a brief discussion with Mr. Davis as to the potential purchasing of rejected foam panels. Mr. Hambrose indicated that he thought it possible that the scrap metal could be re-liquified as per a project Frigitemp was considering and reused as a chemical. Mr. Hambrose inquired as to an estimate of the volume of foam panels that might be available. Mr. Davis advised that Frigitemp was rejecting a considerable quantity of foam panels because they did not meet their specifications. However, Mr. Davis also advised Mr. Hambrose that Frigitemp was receiving full credit from CPR Upjohn for all panels rejected by Frigitemp. As a result of this, Frigitemp was not in a position to offer the panels for sale since they were the property of Upjohn. Mr. Hambrose then asked Mr. Davis if he would inquire of Upjohn as to the possibility of purchasing the rejected panels. Mr. Davis indicated that was possible, but that there would be no point in making such an inquiry of Upjohn, unless there was a market available for the sale of the panels. Mr. Davis expressed a reservation as to the availability of the buyers who would have the capability of using same. Mr. Hambrose stated that he would make some inquiries to determine this potential market.
During the following week, Mr. Hambrose called Mr. Davis and met with Mr. Davis on one Occasion for lunch. At this lunch meeting, Mr. Hambrose told Mr. Davis that the had a potential buyer for the foam panels. Mr. Davis then agreed that he would pursue the matter further and asked Mr. Hambrose to come to his office the following Monday. That afternoon Davis advised G. Lee and asked how he wished to handle this matter. Lee said let me speak with Hambrose on Monday.
The following Monday, Mr. Hambrose came to the office. Mr. Davis placed a call to Jerry Lee on the speaker phone and advised Mr. Lee that Mr. Hambrose was in his office and was interested in purchasing the rejected foam panels. Mr. Davis then advised Mr. Lee that Frigitemp could not sell the panels directly to Mr. Hambrose, since they were the propery of Upjohn by virtue of Upjohn giving Frigitemp a full credit for all defective paneling. However, Davis told Lee that they would need an outlet when Frigitemp started manufacturing. Jerry Lee then told Davis that rather than try to discuss this over the phone, that Davis and Hambrose meet him for lunch. Hambrose and Davis then left the office and went to an Italian restaurant on Irving Place (Davis believes the name of the restaurant was Jimmy's) where they met with Lee. Hambrose told Lee that he had a potential buyer for the defective paneling. Davis then explained to Lee that Frigitemp would either need to keep the panels at a discount price or get a commission from CPR Upjohn, otherwise, Frigitemp could not sell the paneling to Hambrose. Davis advised Lee this did not prevent him from making a deal on the panels Frigitemp would produce. Lee then suggested that a deal might be make with Upjohn to see their reject panels until Frigitemp started manufacturing, but Frigitemp would have to receive either a finder's fee or a commission on any panels purchased. Lee told Hambrose that Frigitemp would seek to resolve the panel sales with a commission from Upjohn, but if that did not prove feasible, he expected Hambrose to pay the commission.Hambrose indicated that either one of those alternatives would be acceptable at the right price.
At that point, a restaurant employee came to the table and told Lee that there was a telephone call for him. Lee left the table to take the call and Davis continued his conversation with Hambrose. Lee returned to the table a few minutes later and appeared to be in a very agitated state. Davis asked him what the problem was and Lee replied that he was getting tired of "that little son of a bitch" trying to screw him. Davis asked who he was talking about and Lee said Bose. Lee asked Davis if he remembers having obtained a $30,000.00 check payable to Mamoni, which Lee had given Davis to pass to Bose. Davis told him that he remembered the check and stated Bose now had the money. Davis then asked Lee what is the problem now. Lee said that Bose wanted additional money as a commission for some Bearer Bonds that had been purchased. Lee said you know that problem with Bose, well he had now called the broker and may get Mel, Joey and myself in jail, if he doesn't stop stirring shit. Lee said Bose stated that he wanted additional money as a commission. Lee then asked Davis to call Bose and see if this could be settled once and for all time.Davis said he would call Bose. Lee then apologized to Hambrose for the interruption of the meeting, but told him that he would have others check with Upjohn about the possibility for arranging a purchase of the rejected foam panels. Lee then left the restaurant. A short time later, Davis and Hambrose left the restaurant.
From time to time during the next couple of weeks, Hambrose called Davis to ask him what was going on with the Upjohn deal. Davis told Hambrose that he had not heard anything further from Lee but that Hambrose should feel free to call Lee and make a direct inquiry. Davis than gave Hambrose Lee's telephone number and thereafter, did not hear from his again. Davis does not think Lee and Hambrose ever put a deal together.
34. Subsequently, Davis advised Hambrose had died some time after Thanksgiving of 1982. Again, the unsealing of the Indictment would have permitted the defense to obtain his deposition, or, at least, apply to the Court for relief.
35. Thus, the actions of the Government in sealing the Indictment was prejudicial to Davis and served to deny to him ability to prepare his defenses to this criminal action.
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