plan or scheme, a common aim or goal, not whether each defendant knows of the acts or roles of each other, or of others, that controls. Although courts have, on occasion, referred to the parties' knowledge or lack thereof, the cited cases make clear that it is the participation in the same acts or transactions, or series of acts or transactions, in a common scheme or plan, that is, with a common purpose, that will determine the propriety of joinder of offenses and parties. It is not significant that a conspirator may not know of the participation or self-interest of other conspirators. It is sufficient that each defendant have participated in the conspiracy with the common goal or purpose of the other defendants.
Defendants refer the Court to the recent decision in the parallel civil case, Fidelity Funding of California, Inc. v. Reinhold, 95 Cv 3130 (ARR) (E.D.N.Y. Oct. 22, 1997). In that case, Judge Ross denied Fidelity's motion for summary judgment on the issue of whether the defendants (who include all of the defendants in this case) could be held jointly and severally liable for the total amount of Fidelity's loss resulting from the Micro fraud. In denying summary judgment, Judge Ross found that Fidelity had not made a "sufficient evidentiary showing" to permit the court "at this stage in the proceedings" to impose joint and several liability. (Slip Op. at 24). She did not find as a matter of law that the defendants did not share a common aim for purposes of joinder in a criminal case. Moreover, the Government was not a party to the civil action and, concededly, has more power than Fidelity to collect and present evidence of the defendants' criminal scheme. Further, the Government has represented that its evidence will be different from that offered by Fidelity in support of its motion for summary judgment. Consequently, Fidelity's evidentiary failings in the civil case cannot be deemed chargeable against the Government in the criminal case.
Mendlovic, Josef Goldstein and UTA have also moved for severance pursuant to United States v. Bruton, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). These defendants contend that certain statements made by Reinhold to a Fidelity representative, after the scheme had collapsed, are inadmissible against them and that potential damage cannot be cured by redaction. These statements, allegedly made by Reinhold as part of an attempt to keep the scheme alive, are admissible against all of the other defendants as statements of a co-conspirator and do not provide a sufficient basis for a severance on Bruton grounds. Greenfield and Reinhold have also moved for severance on the grounds that they will present antagonistic defenses at trial. These motions are denied as the defendants have not made any showing that they have what may be characterized as clearly antagonistic defenses at trial.
II. Motions for Bill of Particulars
Defendants move, pursuant to Fed. R. Crim. P. 7(f), to compel the Government to produce a bill of particulars. Defendants primarily seek identification of alleged co-conspirators who have not been named in the Indictment. We note at the outset that the decision whether to grant or deny a bill of particulars is within the sound discretion of the district court. See United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984).
In support of their claim that they are entitled to the names of all alleged co-conspirators, defendants cite three district court cases in which the court ordered the Government to produce such names. In two of these cases, United States v. Allocco, 801 F. Supp. 1000, 1003 (E.D.N.Y. 1992), and United States v. Chovanec, 467 F. Supp. 41, 45 (S.D.N.Y. 1979), the court provided little or no explanation or rationale for its decision. The third case, United States v. Rogers, 617 F. Supp. 1024, 1028 (D. Colo. 1985), held that not revealing the names of co-conspirators will lead to prejudicial surprise. This holding has been criticized by at least one Court of Appeals as overly broad, see United States v. Hughes, 817 F.2d 268, 272 (5th Cir. 1987), and, in any event, goes beyond the law of this circuit, as we discuss more fully below.
Defendants also call to the Court's attention two Second Circuit decisions reversing convictions on the grounds that a bill of particulars was improperly denied. Neither of these is relevant to the case at bar. In United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988), the defendant was charged with extortion directed at one particular company, but at trial was surprised with evidence of extortion of three entirely different companies. In United States v. Bortnovsky 820 F.2d 572 (2d Cir. 1987), an insurance fraud case, the Court found that the defense had been impermissibly hindered by the Government's failure to identify which of a series of burglaries were allegedly fake, and which of 4,000 documents were allegedly fraudulent. Here, rather than surprising or hindering the defendants, the Government has provided a detailed indictment and extensive discovery.
The leading case in this Circuit involving a bill of particulars regarding unindicted co-conspirators is United States v. Torres, 901 F.2d 205 (2d Cir. 1990). In that case, the court found that the district court had not abused its discretion in denying a bill of particulars seeking much the same information as is sought in the case at bar. "A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." Id. at 234 (quoting United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987)). The Court also offered the following standard of review: "So long as the defendant was adequately informed of the charges against him and was not unfairly surprised at trial as a consequence of the denial of the bill of particulars, the trial court has not abused its discretion." Id. (quoting United States v. Maull, 806 F.2d 1340, 1345-46 (8th Cir. 1986)).
At least three cases in this district are directly on point, and each, citing Torres, denied a bill of particulars. See United States v. Muyet, 945 F. Supp. 586, 599 (S.D.N.Y. 1996) ("The defendants are not entitled to a bill of particulars setting forth the 'whens,' 'wheres,' and 'with whoms' regarding the . . . conspiracy."); United States v. Jimenez, 824 F. Supp. 351, 363 (S.D.N.Y. 1993) (stating that pre-trial motions for "whens," "wheres," and "with whoms" are routinely denied); United States v. Gambino, 1995 U.S. Dist. LEXIS 10689, 1995 WL 453318, *6 (S.D.N.Y. Aug. 1, 1995) (no bill of particular required where defendants have been told "the dates and places of the offenses alleged in the indictment, the nature of these offenses, and the basic legal theory under which the Government contends that the defendants are criminally liable.")
The present indictment is detailed in its allegations. Moreover, defendants have had extensive discovery both in this case and in the related civil case. See Fidelity Funding of Cal., Inc. v. Reinhold, No. 95-cv-3130 (ARR) (E.D.N.Y. Oct. 22, 1997). The Court finds that there is no danger that, absent a bill of particulars, the defendants will be unfairly surprised at trial. Defendants' motions for a bill of particulars are denied.
III. Motions to Dismiss the SSI for Misuse of the Grand Jury
Defendants move to dismiss the present Indictment on the grounds that the Government improperly used the Grand Jury to prepare for trial. There is no question that it is "improper for the Government to use the grand jury for the sole or dominant purpose of preparing for trial under a pending indictment." United States v. Leung, 40 F.3d 577, 581 (2d Cir. 1994). We must, therefore, determine what exactly it is that the Government did, and whether such actions were in impermissible preparation for trial.
In his supporting affidavit dated January 12, 1998, counsel for Josef Goldstein stated, upon information and belief, that, in the guise of seeking the SSI, the Government had subpoenaed new witnesses in order to prepare for trial. (Abramowitz Supp. Aff. P 4.) In response to affidavits from the two Government attorneys, stating that no subpoenas had been issued (Pesce Aff P 2; Temkin Aff. P 2), defense counsel submitted a second Supporting Affidavit, dated January 26, 1998, stating that he had been "mistaken" in the earlier affidavit (Abramowitz 2d Supp. Aff. P 3), and that he now believed that a Government agent had testified before the Grand Jury (id. at P 4).
At oral argument before this Court on February 3, 1998, attorneys for the Government stated on the record that in support of the SSI, only the FBI case agent had appeared before the Grand Jury. Defense counsel asserted that there had been no legitimate need for the agent's testimony, and speculated that a primary reason for having the agent appear in front of the Grand Jury was to give him the opportunity to testify before a "live audience" (i.e., to prepare him for trial). The Court is satisfied that the Government engaged in no improper conduct and that, in any event, defendants incurred no cognizable prejudice as a result of the agent's appearance before the Grand Jury. Defendants' motions are denied.
IV. Motion for Production of Brady Material
Finally, defendant Greenfield moves pursuant to Fed. R. Crim. P. 16 for production of all Brady material. See Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The Court finds, preliminarily, that the materials to which counsel for Greenfield referred on oral argument (regarding the background and actions of a former employee of Micro) are not Brady material in that they are not exculpatory. Second, as to Brady material in general, the Assistant United States Attorney stated on the record that the Government has turned all such material over to defendants, and that it will continue to honor its obligation to furnish such material, should any such material surface in the future. Defendant Greenfield's motion is, therefore, denied as moot.
In sum, the Court finds that all parties and counts are properly joined under Fed. R. Crim. P. 8(b) and 14; that a bill of particulars is not warranted; that the Government did not misuse the Grand Jury; and that the Government is in compliance with its Brady obligations. We therefore deny all of defendants' motions.
Dated: New York, New York
February 6, 1998
ALLEN G. SCHWARTZ, U.S.D.J.