testimony [concerning the attempted murder] could not be used as evidence against either [defendant]" was sufficient to protect against potential prejudice of trying defendants together). Defendant Ford has failed to explain why a limiting instruction would be inadequate in this case. Hence, I do not find that a Rule 14 severance is required, or even recommended, in this case.
Further, the Second Circuit has emphasized, in the very case cited by defense counsel, that "mere antagonism between the defenses [of co-defendants] is not enough" to warrant a severance. United States v. Serpoosh, 919 F.2d 835, 837 (2d Cir. 1990). The Court explained that "'the mere fact that codefendants seek to place the blame on each other is not the sort of antagonism that requires a severance.'" Id. (citations omitted). Severance due to antagonism of defenses is only necessary when "'the jury, in order to believe the core of testimony offered on behalf of [one] defendant, must necessarily disbelieve the testimony offered on behalf of his codefendant'" id. at 838, or, in other words, where the defenses are "mutually exclusive." Id. Defendant Ford has not shown, or even explained, why the defenses in this case are "mutually exclusive" as that concept is described in Serpoosh. Accordingly, I deny the motion to sever on this ground as well.
Finally, defense counsel appears to suggest that the existence of allegedly privileged documents in this case lends support to his motion to sever. (Adler Aff. PP 31, 33). I disagree. First, defense counsel has not shown that such privileged information if it exists would be admissible in his defense in a severed trial if one were to be granted. Further, defendant Ford has made no showing that his co-defendants would not be willing readily to concede their "knowledge vis a vis the lawfulness of various products." (Adler Aff. P 31). In fact, from what the Court has witnessed to date, the co-defendants' have maintained that they made every effort to know and understand the contours of the law in this area. For these reasons, I find that defendant Ford has failed to demonstrate that these allegedly privileged documents create a "need for a trial before a separate jury." (Adler Aff. P 33). See, e.g., United States v. Kouzmine, 921 F. Supp. 1131, 1134 n.1 (S.D.N.Y. 1996) (finding "no showing of prejudice sufficient to warrant a Rule 14 severance" where moving defendants argued that "they may be forced to disclose privileged attorney-client communications to defend themselves and that their actions in doing so may prejudice other defendants."); United States v. Amrep Corp. et al., 418 F. Supp. 473, 475 (S.D.N.Y. 1976) (where "only a small portion of the total evidence on the part of the defense might be included in the privileged material," court holds that there was an insufficient basis on which to grant severance where there was purported conflict between defendant corporation's work product privilege and defense of individual defendant, who as general counsel had been involved in every aspect of corporation's operations and its defense to charges in the indictment and in charges pending before the Federal Trade Commission and who claimed he had learned in privileged communications exculpatory information necessary to his own defense). For all these reasons individually and combined, I deny defendant's motion to sever.
Any other conclusion would lend the "last tried defendant" a decided benefit in having heard the testimony of the government's witnesses and in having much of the government's case before the trial. See Richardson v. Marsh, 481 U.S. 200, 210, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987) (joint trials are necessary to avoid "randomly favoring the last-tried defendants who have the advantage of knowing the prosecution's case.") Because of the stated preference in the federal system for the joint trial of defendants indicted together, see United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993), cert. denied, 511 U.S. 1042, 128 L. Ed. 2d 211, 114 S. Ct. 1565 (1994), and because the evidence of the crimes charged is highly integrated, I do not find that the defendant has proven that the mere joinder in the Superseding Indictment of persons of differing levels of authority within the business enterprise with antagonistic defenses justifies a severance; nor do I find that the existence of allegedly privileged documents alters this conclusion. In sum, I fully agree with the Government that "severance in this case, where a complex and lengthy trial is expected and where there has been no showing of prejudice whatsoever, would result in a monumental waste of judicial resources." (Govt. Let. in Opp. at 3).
III. Discovery and Inspection
The Government has represented to the Court that it has provided to defense counsel all of the and information necessary to be disclosed under Federal Rule of Criminal Procedure 16, Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) and Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). Therefore, defendant's motion for discovery is denied. See also United States v. The Spy Factory, Inc. et al., 951 F. Supp. 450, 1997 U.S. Dist. LEXIS 108, 1997 WL 7582 at *3 (S.D.N.Y. 1997) (providing that defense counsel's discovery requests were granted in part and denied in part). To the extent defense counsel is aware of any further information which has not yet been disclosed, defense counsel should so apprise the Court.
The Court finds defendant's request for the Court to inspect the Grand Jury minutes unnecessary and lacking in legal merit.
As the Supreme Court has explained, "the grand jury proceeding is accorded a presumption of regularity, which generally may be dispelled only upon particularized proof of irregularities in the grand jury process." United States v. Mechanik, 475 U.S. 66, 75, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986) (O'Connor, J., concurring). Here defendant Ford provides no such particularized proof of any irregularity.
Instead, defense counsel seeks to send this Court on a fishing expedition searching for vague and nebulous violations of law that might have taken place in the grand jury. Such vain endeavors will not lightly be undertaken by this Court and are certainly not required under the law. See, e.g., United States v. Mechanik, 475 U.S. 66, 75, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986) (O'Connor, J., concurring); United States v. Burford, 755 F. Supp. 607 (S.D.N.Y. 1991) ("In the absence of any showing of 'particularized need, or a gross and prejudicial irregularity influencing the grand jury, or some similar compelling reason,' a defendant's motion to have the Court inspect the grand jury minutes should be denied.") (citing cases). For this reason, the defendant's motion is denied.
IV. Bill of Particulars
The Second Circuit has recognized that "the principles governing requests for a bill of particulars are well settled." United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988). A bill of particulars should be granted under Federal Rule of Criminal Procedure 7(f) where it is necessary "to permit a defendant to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." Id. The Government need not, however, "particularize all of its evidence." Id. "The decision to grant or deny a bill of particulars is within the sound discretion of the district court." Id. (citing United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984)).
In the instant case, the indictment and the pre-trial discovery provided by the Government more than adequately apprise the defendant of the nature of the charge against him. As the Government explains:
Ford has been provided with a plethora of information about the charges in this case, including the following: an eight-page complaint and accompanying 106-page affidavit filed against co-defendant Richardson and others; a 22-page indictment; a 41-page superseding indictment; voluminous discovery (including numerous tape recordings of Ford and co-conspirators); the Government's brief and accompanying affidavit in opposition to the defendants' pretrial motions; and significant amounts of information imparted in many meetings and conversations with the Government. . . . In addition, as to one of the requests made in Ford's motion, the Government specifically informed defense counsel in a letter dated February 5, 1997, that the Section 2512 violations are limited to devices that were manufactured or sold by Micro Electronics or Cony manufacturing. . . . Count One of the Superseding Indictment more than sufficiently sets forth dates, participants and the objects of the conspiracy, including the names of unindicted co-conspirators, as well as numerous overt acts in furtherance of the conspiracy, including specific dates, locations, participants and particulars of the acts.
(Govt. Let. in Opp. at 4, 5). In light of the breadth and depth of this information, defense counsel's insistence on a bill of particulars has no foundation. The request is hereby denied. See, e.g., United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) ("Generally, if the information sought by defendant is provided in the indictment or in some acceptable form, no bill of particulars is required."); United States v. Cephas, 937 F.2d 816, 823 (2d Cir. 1991) (holding that bill of particulars was unnecessary even where "the government did not list the specific activities which showed how [defendant] furthered the criminal enterprise or the conspiracy" because "such specific acts need not be alleged with respect to every named defendant, if the indictment is otherwise sufficient and names the other persons involved in the criminal activity."), cert. denied, 502 U.S. 1037, 116 L. Ed. 2d 788, 112 S. Ct. 884 (1992); United States v. Young & Rubicam, Inc., 741 F. Supp. 334, 349 (D. Conn. 1990) ("A bill of particulars is appropriate only where the charges of an indictment are so general that they do not advise the defendant of the specific acts of which he is accused.") (citing United States v. Matos-Peralta, 691 F. Supp. 780, 791 (S.D.N.Y. 1988)); United States v. Facciolo, 753 F. Supp. 449, 451 (S.D.N.Y. 1990) (providing that bill of particulars was unnecessary, especially where "the Government has supplied defense counsel with a list of the intercepted telephone calls the Government is likely to introduce at trial [and] . . . copies of the wiretap applications, tape cassettes of intercepted phone calls, and log sheets."), aff'd sub nom., United States v. Skowronski, 968 F.2d 242 (2d Cir. 1992).
For the reasons discussed above, defendant Tracy Ford's motions are denied in all respects.
Dated: New York, New York
March 7, 1997