United States v. Abrahams, Crim. No. 78-327-F.

• Decision Date: 29 December 1978
• Docket Number: Crim. No. 78-327-F.
• Citation: 466 F. Supp. 552
• Parties: UNITED STATES of America v. Alan Herbert ABRAHAMS, a/k/a James A. Carr, James A. Brien, John J. Cosulich, Thomas Labus, Robert Ralph Zolla, Michael Shuster, Curtis Beck, Ira Todd Klein, Francis R. H. Nichols, Charles Anderson Wathen, Frank Post and Stephen Buzzi.
• Court: U.S. District Court — District of Massachusetts

466 F. Supp. 552

UNITED STATES of America v. Alan Herbert ABRAHAMS, a/k/a James A. Carr, James A. Brien, John J. Cosulich, Thomas Labus, Robert Ralph Zolla, Michael Shuster, Curtis Beck, Ira Todd Klein, Francis R. H. Nichols, Charles Anderson Wathen, Frank Post and Stephen Buzzi.

Crim. No. 78-327-F.

United States District Court, D. Massachusetts.

December 29, 1978.

COPYRIGHT MATERIAL OMITTED

Michael A. Collora, Asst. U. S. Atty., Boston, Mass., for plaintiff.

F. Lee Bailey, Anthony N. Cardinale, Salvatore F. Di Masi, Boston, Mass., Robert F. Peck, Jr., Salem, Mass., Eugene X. Giroux, Boston, Mass., Michael A. Ponsor, Brown & Brown, Amherst, Mass., Robert G. Wilson, III, Boston, Mass., John L. Taylor, Jr., Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., Dennis J. Oury, Wood-Ridge, N. J., Michael Manzi, Lawrence, Mass., for defendants.

MEMORANDUM

FREEDMAN, District Judge.

Alan Herbert Abrahams, a/k/a James A. Carr, and eleven others are named as defendants in a fifty-count indictment returned on August 3, 1978 by a federal grand jury sitting in Boston. The indictment focuses on the operations of Lloyd, Carr & Company ("Lloyd, Carr"), a now defunct commodity futures and options firm with which all of the defendants were associated in some capacity. Count One of the indictment charges all defendants with conspiracy to commit acts of mail and wire fraud.¹ The remaining counts charge the defendants, in various combinations, with substantive acts of mail and wire fraud.² Since arraignment, two of the defendants have changed their pleas to guilty.³ At this time, the Court has before it motions for severance, change of venue and dismissal filed by the remaining defendants.

The Severance Motions

The defendants⁴ each argue that their joinder in the same indictment is prejudicial.⁵ After weighing the benefits to the Court, the Government and the public against the possibility of prejudice to the defendants, e. g., King v. United States, 355 F.2d 700 at 703 (1st Cir. 1966), I have decided to sever defendant Abrahams from the other defendants and to deny the severance motions in all other respects.

My decision to sever Abrahams rests primarily upon the comparative uniqueness of his role in the alleged conspiracy and the apparent irreconcilable conflict between his right to a fair trial and the theory of the case likely to be relied upon by the other defendants. Abrahams was the linchpin of the alleged conspiracy.⁶ The indictment suggests that he created Lloyd, Carr, brought the other defendants into the firm, and directed its operations. In an attempt to dispute the Government's allegations that their participation was knowing and intelligent, the other defendants are likely to offer evidence tending to show that they acted in good faith,⁷ relying on Abrahams' registration with the Commodity Futures Trading Commission and his generally solid reputation in the commodities business, and that they had no knowledge of Abrahams' true identity or prior criminal background during their tenure at Lloyd, Carr. The introduction of evidence of Abrahams' prior criminal background would be highly prejudicial to him; exclusion of such evidence might be prejudicial to the other defendants.

Without Abrahams, the possibility of prejudice from trial together of the remaining defendants is too remote to justify further severance.⁸ The likelihood that the Government will introduce at trial prior statements or other evidence against some defendants that will be prejudicial to others is counterbalanced by sufficient rules of exclusion⁹ and requirements for admissibility¹⁰ to protect the defendants at trial. Also, no defendant has informed the Court what evidence the Government might offer against some codefendants which would be unduly prejudicial to others. Speculation is not a ground for severance. Cf. United States v. Jackson, 549 F.2d 517 at 524 (8th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977). Similarly, there is an absence here of a showing that exculpatory testimony would be available if the defendants were tried separately. The bald assertion that joint trial will preclude such testimony is insufficient to support a severance. See United States v. Smolar, 557 F.2d 13 at 21 (1st Cir.), cert. denied, 434 U.S. 866, 966, 971, 98 S.Ct. 203, 508, 523, 54 L.Ed.2d 143, 453, 461 (1977). See also, United States v. Wofford, 562 F.2d 582 at 586 (8th Cir. 1977), cert. denied, 435 U.S. 916, 98 S.Ct. 1471, 55 L.Ed.2d 507 (1978). Nor will the possibility of disproportionate evidence or conviction based merely upon association justify severance in this case. See United States v. Smolar, supra, 557 F.2d at 21; United States v. Alpern, 564 F.2d 755 at 758 (7th Cir. 1977). "The proper inquiry is whether the evidence is such that the jury cannot be expected to `compartmentalize' it and then consider it for its proper purposes." United States v. Dansker, 537 F.2d 40 at 62 (3rd Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Nothing before me indicates that a well instructed jury will be unable to consider the evidence "for its proper purposes."

The Venue Motions

I turn now to the defendants'¹¹ motions for change of venue which are based upon prejudicial pretrial publicity.¹² Because of my conclusion that Abrahams must be tried separately and because Chief Judge Caffrey of this District determined as recently as July of 1978, in another matter, that Abrahams could not receive a fair trial in the Northeastern section of the United States, United States v. Abrahams, 453 F.Supp. 749 at 753 (D.Mass.1978), I consider Abrahams' venue motion first.

In July, Judge Caffrey granted Abrahams' motion for change of venue in a case charging him with making unsworn false statements concerning his identity and background to a United States Magistrate during a removal and bail proceeding in violation of 18 U.S.C. § 1001. Applying the standards enunciated in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); and Patriarca v. United States, 402 F.2d 314 (1st Cir. 1968), cert. denied, 393 U.S. 1022, 89 S.Ct. 633, 21 L.Ed.2d 567 (1969), Judge Caffrey stated that:

. . . the extensive pretrial publicity in all Boston media — with respect to the allegedly unlawful behavior of the defendant and Lloyd, Carr & Co., defendant's prior convictions, and the other charges pending against him — has created in the District of Massachusetts an atmosphere of pervasive community prejudice so inflammatory as to substantially reduce the reasonable likelihood of Abrahams obtaining a fair trial before a panel of impartial jurors anywhere in this District. I also find that the media, in the exercise of First Amendment rights which are not questioned by this Court, see, e. g., Nebraska Press Assn. v. Stuart, 427 U.S. 539, 547-70, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), have made it impossible for Abrahams to receive a fair trial anywhere in Massachusetts, the rest of New England, or the Northeastern section of the United States, including New York, New Jersey, or Pennsylvania.

United States v. Abrahams, supra, 453 F.Supp. at 753. The record before Judge Caffrey included a "voluminous collection of newspaper articles," id. at 751, which "painted a black and bleak picture of Mr. Abrahams," id. at 752. That same collection is before me today as part of the record, supplemented by articles which have appeared since Judge Caffrey's decision.

In light of the collection of articles before Judge Caffrey, which collection is now before me, his findings, which I adopt, and the more recent publicity concerning defendant Abrahams, which includes a Boston Magazine article naming him as a "Turkey of the Year" for his "scams against those seeking scams" and illustrated by what appears to be a United States Marshal's Office mugshot of him, I am compelled to grant Abrahams' motion for change of venue because of prejudicial pretrial publicity. I find specifically that Abrahams has shown a likelihood of prejudicial publicity precluding a fair trial, see United States v. Abrahams, supra, 453 F.Supp. at 751, that there is an "incriminating nexus" between the pretrial publicity and the charges against Abrahams, cf. Patriarca v. United States, supra, 402 F.2d at 317, that, contrary to the Government's assertion, the publicity has been so inflammatory and pervasive that its effect has not and will not be cured by a passage of time permissible under the Speedy Trial Act. See United States v. Abrahams, supra, 453 F.Supp. at 753-754. I am satisfied that there exists so great a prejudice against Abrahams that he cannot obtain a fair trial anywhere in this District. Fed.R.Crim.P. 21(a). See n. 12, supra.

The prejudicial publicity concerning Abrahams was not limited to this District. As Judge Caffrey noted, the major metropolitan newspapers in other parts of the Eastern United States have carried stories concerning Abrahams and his difficulties. United States v. Abrahams, supra, 453 F.Supp. at 754. Moreover, Abrahams, since Judge Caffrey's decision, has been tried on various charges in both Michigan and Texas. I note also that Lloyd, Carr had branch offices in Connecticut, Georgia, Pennsylvania, Michigan, Illinois, Missouri, Texas and California, and that its activities have been the subject of the CBS Television Network show "60 MINUTES," a video tape of which was viewed by the Court at the hearing on the venue motions in this case. In an effort to ensure a fair trial for Abrahams, and keeping in mind the locations of the activities of Lloyd, Carr and the prejudicial publicity, I have selected the District of Arizona, located at Phoenix, as a forum where he is likely to obtain a trial before untainted jurors.

With Abrahams severed from this case and venue of the charges against him transferred to Arizona, the venue motions of the remaining defendants...