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UNITED STATES v. NELSON

April 11, 1985

UNITED STATES OF AMERICA,
v.
GEORGE PHILIP NELSON, HAK SOO GHUN, a/k/a "Hak Soo Dickenson," THOMAS S. GALGANO, and ROBERT THOMAS HARVEY, Defendants



The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

 The indictment in the instant criminal prosecution was filed on May 14, 1984. This indictment contained forty-six counts, and originally included seven defendants. The indictment alleged that the defendants devised, and participated in, a scheme to defraud approximately twelve hundred investors out of more than eleven million dollars.

 The indictment alleged that the defendants were all connected, in a variety of capacities, with the firm of Nelson, Ghun and Associates, Inc. (hereinafter referred to as "NGA"). Through their connection with NGA, the defendants are alleged to have defrauded investors out of thousands of dollars by obtaining investors' funds for managed commodity futures accounts, for managed commodity futures pools, and for a "private placement program" through which investors could lend funds to NGA.

 Five counts of the indictment in the instant case have been completely resolved through the entry of guilty pleas by the three defendants named in those counts. David Alan Franklin, George Wilson Glass and Robert V. Simon have entered guilty pleas. Only Simon remains to be sentenced. Thus, forty-one counts of the indictment and four defendants remain in the instant case.

 Counts one through three and five through thirty-seven charge that the remaining four defendants committed various acts of mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343. Counts thirty-seven through forty charge that the defendants Nelson and Ghun committed commodity fraud in violation of 7 U.S.C. §§ 6o and 13. Counts forty-one and forty-two charge that Nelson and Ghun gave false testimony under oath in violation of 18 U.S.C. § 1623.

 The indictment alleges that Nelson and Ghun were officers and principals of NGA. It also alleges that Harvey was a salesman, a sales manager, and eventually, the chief operating officer of NGA. It further alleges that Galgano was a salesman for NGA.

 Defendant's Motions

 Defendants Nelson, Ghun, and Harvey have filed a series of motions. Galgano has neither filed any motions nor joined in his codefendants' motions. Harvey has requested this Court to issue the following orders:

 
1) For an order dismissing the instant indictment;
 
2) In the alternative, for an order severing his trial from that of his three remaining codefendants;
 
3) For an order granting a bill of particulars;
 
4) For an order compelling the production of a Government witness list;
 
5) For an order compelling early disclosure of Brady material;
 
6) For an order granting certain discovery pursuant to Fed. R. Crim. P. 16.

 See Harvey's Notice of Motion, dated November 2, 1984.

 Ghun, in his omnibus motion, has requested this Court to issue the following orders:

 
1) That Ghun be provided with the names of all witnesses, and with the following information for each witness:
 
a. A full record of arrests and criminal convictions of any prospective witness the government intends to call at the trial of the above-captioned matter.
 
b. The full and complete statement of all promises, rewards, and/or inducements of any kind made by the government, its prosecutors, its agencies, or its agents to induce or encourage the giving of testimony or information made to: (1) any prospective witness whom the government intends to call at the trial of the above-captioned matter; (2) any witness who testified before the grand jury; or (3) any witness who assisted the government in its investigation and preparation of the above-captioned matter.
 
c. A declaration as to whether the witness has ever testified before, and if so, the circumstances of that testimony.
 
d. Any evidence which may be used to impeach or discredit any witness the government intends to call at the trial of the above-captioned matter, particularly, but not exclusively, inconsistent statements of a witness or between witnesses, statements of a witness or prejudice against the defendant by a witness, or admissions of poor memory by a witness.
 
e. A full and complete statement of any and all criminal cases presently known by the government to be pending against anywitness the government intends to call in its presentation of its case in chief at the trial of the above-captioned matter, regardless of whether of not these cases are the subject of promise, reward or inducement.
 
f. A full and complete statement of any and all criminal conduct which the government has knowledge has been committed by any witness the government tends to call in its case in chief at trial regarding which there hasbeen no conviction, regardless of whether or not these crimes are presently the subject of a promise, reward or inducement, and regardless of whether or not these crimes are presently the subject of a pending criminal charge.
 
g. Whether or not the government has requested or authorized the payment of any sums of money to any informant, cooperating witness, or coconspirator who has agreed to testify for the government, who participated in the investigation which generated the above-captioned indictment, or to any other prospective witness.
 
h. Any logs, records, or other documents relating to the payment of any sums of money to any individual set forth in subparagraph (g), and the source of any such payment.
 
i. The identities of any and all witnesses who have offered immunity by the government.
 
j. Whether or not any government witnesses have been hospitalized or treated for psychiatric or emotional disorders or alcoholism of drug abuse, and if so, the names of any institutions involved andthe dates of any hospitalization, and any and all reports relating to any treatment for such condition.
 
k. Whether any prospective witness has been incarcerated in federal or state prison, and if so, the prison records of any such witness.
 
2) Directing the Government to disclose, in advance of trial, all evidence of alleged prior or subsequent similar acts which it intends to introduce at trial.
 
3. Directing the Government to provide Ghun with a premarked exhibit list no later than one week prior to trial and to also provide Ghun with drafts of any transcripts of conversations which the Government will utilize at trial.
 
4) Directing the Government to disclose statements it intends to offer pursuant to Fed. R. Evid. 803(24) or 804(b) (5).
 
5) Directing the government to furnish Ghun with the substance of all statements it intends to offer pursuant to Fed. R. Evid. 801(d)(2), (C), (D) and (E).
 
6) Granting on behalf of Ghun all motions made by codefendants which are not inconsistent with the particular motions filed by Ghun.
 
7) Granting a bill of particulars.
 
8) Dismissing counts thirty-seven through forty of ...

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