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UNITED STATES v. SPY FACTORY

March 7, 1997

UNITED STATES OF AMERICA
v.
THE SPY FACTORY, INC. d/b/a "Spy Factory," RONALD KIMBALL, MARLIN RICHARDSON, a/k/a "Brud," and TRACY EDWARD FORD, Defendants.



The opinion of the court was delivered by: SOTOMAYOR

 SONIA SOTOMAYOR, U.S.D.J.

 Roger Bennet Adler, newly appointed Criminal Justice Act counsel for defendant Tracy Edward Ford, moves this Court (1) for reargument and reconsideration of this Court's ruling regarding the constitutionality of 18 U.S.C. § 2512; (2) for a severance of defendant Ford from his co-defendants pursuant to Rule 14 of the Federal Rules of Criminal Procedure; (3) for an order directing the Government to provide pre-trial discovery and inspection pursuant to Rule 16 of the Federal Rules of Criminal Procedure; and (4) for a bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. By letter brief, the Government opposes defense counsel's requests. For the reasons to be discussed, the Court denies defendant's motions.

 I. Reargument and Reconsideration of the Constitutionality of 18 U.S.C. § 2512

 Because defense counsel presents no new bases factual or legal for this Court to reconsider its prior ruling regarding the constitutionality of Section 2512, see United States v. The Spy Factory, Inc. et al., 951 F. Supp. 450, 1997 U.S. Dist. LEXIS 108, 1997 WL 7582 (S.D.N.Y., Jan. 8, 1997), the Court declines to do so. To the extent that counsel implies that prior counsel involved in the constitutionality motion might have been "[]connected to the financial tentacles of the Spy Factory," (Adler Aff. P 17), I find that such conflict of interest, if any, did not influence either prior counsel's advocacy of the vagueness motion or the Court's ruling thereon.

 Further, to the extent that counsel reiterates defendants' prior assertion that Section 2512 is vague as applied to defendant Tracy Ford, I conclude that counsel's assertion lacks merit. While counsel is correct that mens rea is an essential element of any criminal offense (see Adler Aff. P 19), counsel appears to misunderstand fundamentally the mens rea applicable to a Section 2512 prosecution. (See, e.g., Adler Aff. P 17 (arguing that "the indictment fails to plead . . . that TRACY FORD knew that the possession and sale of this equipment was unlawful.")). The Government need not prove, as counsel seems to imply, that defendants knew that the devices at issue were illegal. Rather, the Government bears the burden of proving merely that defendants "intentionally . . . manufactured, assembled, possessed, or sold any electronic, mechanical, or other device, knowing or having reason to know that the design of such device rendered it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications." 18 U.S.C. § 2512(1)(b) (emphasis added). Therefore, the Government need not show that the defendants knew the devices were illegal, but rather that defendants intentionally possessed and sold items whose design they knew or had reason to know rendered them primarily useful for surreptitious interceptions.

 Thus, counsel's argument that "there was nothing and no one to alert [defendant Ford] that a claimed portion of his employer's product line had allegedly strayed beyond the permissible bounds because the products in question were capable of being employed by customers not under his control or in his presence, for non-consensual *fn1" purposes," (Adler Aff. P 23), has no legal significance. The very cases cited by defense counsel reveal that unless knowledge of a specific legal duty is set forth as an element of a crime which is not the case under a Section 2512 prosecution a defendant is presumed to know what the law prohibits. See United States v. Golitschek, 808 F.2d 195, 202-03 (2d Cir. 1986) (explaining the difference between laws containing a knowledge of a legal duty as an element of the offense and laws that do not, and providing that "when we say that ignorance of the law is no excuse, or, . . . that everyone is presumed to know the law, we mean only the law that makes the offense punishable, not the law that in some circumstances sets out legal requirements that must be known in order to have committed the offense."). Cf. Liparota v. United States, 471 U.S. 419, 420, 85 L. Ed. 2d 434, 105 S. Ct. 2084 (1985) (finding that Government must establish that defendant knew conduct was illegal where statute provided for prosecution of "whoever knowingly uses, . . . or possesses [welfare] coupons . . . in any manner not authorized by [the statute] or the regulations.") (emphasis added); United States v. Bishop, 412 U.S. 346, 360, 36 L. Ed. 2d 941, 93 S. Ct. 2008 (1973) (construing the term "willfully" in the Internal Revenue Code to connote the "voluntary, intentional violation of a known legal duty."); Lambert v. California, 355 U.S. 225, 2 L. Ed. 2d 228, 78 S. Ct. 240 (1957) ("passive" statute which penalized felons for failing to register in city violated due process where Government could not demonstrate actual knowledge of duty to register).

 For these reasons, I deny defendant's motion to re-argue or reconsider the constitutionality of Section 2512 on its face or as applied to defendant Tracy Ford.

 II. Severance

 Where a moving defendant has been properly joined under Rule 8(b), "a district court should grant a severance under [Federal Rule of Criminal Procedure] 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539, 122 L. Ed. 2d 317, 113 S. Ct. 933 (1993). The defendant must prove that there would be "substantial prejudice" to him from a joint trial. Id. at 540 (citations omitted). It is left to the "sound discretion of the district courts" to determine the risk of prejudice in failing to sever the defendant and any remedy that may be necessary. Id. at 541. See also United States v. Serpoosh, 919 F.2d 835, 837 (2d Cir. 1990) (noting that the Second Circuit has "described the decision to deny severance as 'virtually unreviewable,' because appellants must show prejudice so severe as to amount to a denial of a constitutionally fair trial.") (citations omitted).

 In the instant motion, defense counsel attempts to emphasize the "disparity of proof" between defendant Tracy Ford and defendants Ronald Kimball, Marlin Richardson and The Spy Factory, Inc. (see Adler Aff. P 30-31). Although it is true, as defendant underscores, that Tracy Ford is not named in Counts 2 through 12, 17 through 27, 32 to 42, nor 48 through 61, (Adler Aff. at 10 n.2), and that defendant Ford did not join the employ of Spy Factory until years after it began selling the devices at issue, defendant Ford has not proven that any disparity of proof present in the instant action rises to the level that would necessitate the drastic remedy of severance.

 The Second Circuit has repeatedly recognized that "differing levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials." United States v. Scarpa, 913 F.2d 993, 1015 (2d Cir. 1990) (quoting United States v. Chang An-Lo, 851 F.2d 547, 557 (2d Cir. ), cert. denied, 488 U.S. 966, 102 L. Ed. 2d 530, 109 S. Ct. 493 (1988)). Even where the evidence offered against the individual defendants varies in kind and degree, there is no inherent prejudicial spillover in such circumstances, particularly where the court instructs a jury to consider the evidence against each defendant, on each count, separately. See, e.g., Zafiro v. United States, 506 U.S. 534, 539, 122 L. Ed. 2d 317, 113 S. Ct. 933 (1993) (providing that "less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice."); United States v. Devillio, 983 F.2d 1185 (2d Cir. 1993) (trial judge's "explicit limiting instruction to the jurors that [the] 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 ...


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