United States District Court, Southern District of New York
January 4, 1990
UNITED STATES OF AMERICA
BRUNO FACCIOLO, LAWRENCE TAYLOR, AND RICHARD SKOWRONSKI, DEFENDANTS.
The opinion of the court was delivered by: Edelstein, District Judge:
MEMORANDUM & ORDER
Defendants Richard Skowronski and Lawrence Taylor move this
Court (1) to suppress wiretap evidence, (2) for a bill of
particulars (3) for additional discovery, (4) to facially
challenge the indictment, (5) that venue is improper, and (6)
for severance. Defendant's motions are denied in all respects.
I. Wiretap Evidence
Defendants argue that the wiretapped conversations obtained
during the first period of interception should be suppressed
since the Government seeks to use those conversations as
evidence that the defendants committed a crime other than those
specified in the first wiretap order. Further, defendants argue
that since the Government has not sought authority to use these
conversations in this trial pursuant to 18 U.S.C. § 2517(5),
the wiretap authorization statute, it may not use them at all.
Both of these arguments are without merit.
In this circuit, intercepted conversations relating to an
offense not specifically designated in the wiretap order may
still be introduced as evidence relating to that offense under
18 U.S.C. § 2517(5) when the judicial officer authorizes the
continuation of interception after being "made aware of
`material facts constituting or clearly relating to [the] other
offenses' in the application for the continuance." United
States v. Ardito, 782 F.2d 358, 362 (2d Cir. 1986) (quoting
United States v. Masciarelli, 558 F.2d 1064, 1068 (2d Cir.
In this situation, this standard was clearly met. The initial
30-day wiretap authorization in this case was made by Judge
Weinstein in the Eastern District, on November 6, 1989. The
initial affidavits submitted to Judge Weinstein indicated that
"[t]he organization's activities also involve the commission of
armed robberies and burglaries by the core members." The
progress reports supplied to Judge Weinstein set forth the
conversations relating to the instant infraction. The December
7, 1989 re-application added the instant offense, 18 U.S.C. § 1951,
as an authorized offense. As a result, the judicial
officer was "made aware of the `material facts constituting or
clearly relating to'" the instant violation in the
Accordingly, defendants' motion to suppress these
conversations is denied.
II. Bill of Particulars
Defendants move for an order that the Government produce a
bill of particulars. The defendants have failed to establish
that the Indictment did not "set forth the essential elements
and facts needed to inform [him] of the charges."
States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984). The
important question is whether the information sought is
necessary, not whether it is helpful. United States v.
Guerrerio, 670 F. Supp. 1215, 1224 (S.D.N.Y. 1987); United
States v. Payden, 613 F. Supp. 800, 816-18 (S.D.N.Y. 1985). The
Government will not be compelled through a bill of particulars
to disclose the manner in which it will prove the charges or
preview its evidence or legal theory. United States v. Torres,
901 F.2d 205, 234 (2d Cir. 1990); United States v. Bortnovsky,
820 F.2d 572, 574 (2d Cir. 1987). Thus, an application for a
bill of particulars seeking in effect to obtain evidence must
This Indictment adequately informs the defendants of the
charges against them, and comports with the specificity
requirements of Rule 7(c) of the Federal Rules of Criminal
Procedure and applicable law.
Further, in this case, the Government has supplied defense
counsel with a list of the intercepted telephone calls the
Government is likely to introduce at trial. The Government has
provided copies of the wiretap applications, tape cassettes of
intercepted phone calls, and log sheets. This material is
sufficient for the defendants to glean the essential elements
needed to be informed of the charges against them.
III. Additional Discovery
The record indicates that the Government provided defense
counsel with detailed discovery after the defendants' motions
were filed. Defendants may expect that the Government will
continue to provide further discovery as required by law.
IV. Challenges to the Indictment
Defendants seek to dismiss the indictment because (1) it is
not sufficiently detailed, (2) it is too vague, and (3) it
fails to allege an overt act. These challenges are meritless.
It is sufficient if an indictment sets forth the elements of
the crime charged. The instant indictment does that. The
vagueness argument fails.
The Hobbs Act, 18 U.S.C. § 1951, does not require that any
overt act be committed in furtherance of such a conspiracy to
make out a violation. United States v. Persico, 832 F.2d 705,
713 (2d Cir. 1987); United States v. Tolub, 187 F. Supp. 705,
709 (S.D.N.Y. 1960) (Kaufman, J.).
In sum, these motions are denied.
Defendants allege that venue is improper in the Southern
District of New York since the object of the conspiracy was
located in Brooklyn, in the Eastern District. In this circuit,
"it is firmly settled law that a conspiracy may be prosecuted
in any district in which the agreement was formed or in which
there was an act in furtherance of the conspiracy." Word v.
United States, 589 F. Supp. 806, 807 (S.D.N.Y. 1984), (citing
United States v. Lewis, 676 F.2d 508, 511 (11th Cir.), cert.
denied 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982)).
The indictment alleges that the conspiracy took place in the
Southern District of New York and elsewhere. The facial
validity of that indictment warrants trial in this district.
Further, the Government indicates that it will offer evidence
that conversations about this robbery occurred within this
district. Defendants' motion is denied without prejudice to its
renewal at the conclusion of the Government's case.
Defendant Skowronski argues that his trial should be severed
because he stands to suffer prejudicial spill over from the
proof to be offered against his co-defendant Taylor. Severance
is unwarranted in this instance, however, since both defendants
are alleged to be members of the same conspiracy. As a result,
the evidence to be offered against one defendant in a joint
trial would be admissible against each individually in separate
trials. United States v. Bari, 750 F.2d 1169, 1178 (2d Cir.
1984). That Skowronski alleges that he played a lesser role
than co-defendant Taylor is of no moment. "It is almost
inevitable in an unlawful scheme or conspiracy
involving several defendants some will be shown to have been
more culpable than others." United States v. Panza,
750 F.2d 1141, 1147 (2d Cir. 1984).
Accordingly, Skowronski's motion for severance must be
It is hereby ordered that the defendants' motions are hereby
denied in all respects.
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