United States v. Amidzich, 75-CR-68.

• Decision Date: 23 July 1975
• Docket Number: No. 75-CR-68.,75-CR-68.
• Citation: 396 F. Supp. 1140
• Parties: UNITED STATES of America, Plaintiff, v. Michael AMIDZICH et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

396 F. Supp. 1140

UNITED STATES of America, Plaintiff, v. Michael AMIDZICH et al., Defendants.

No. 75-CR-68.

United States District Court, E. D. Wisconsin.

July 23, 1975.

COPYRIGHT MATERIAL OMITTED

Terry E. Mitchell, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff.

James M. Shellow, Milwaukee, Wis., for defendant Amidzich.

D. Jeffrey Hirschberg, Milwaukee, Wis., for defendant Bastian.

Harry F. Peck, Milwaukee, Wis., for defendant Waltress.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This is a criminal case in which the three defendants, Michael Amidzich, Pamela Sue Bastian, and Bruce Clark Waltress, were charged in a seven count indictment with a variety of violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U. S.C. § 801, et seq., ("the Act"). Defendants Amidzich and Waltress have filed a number of motions, most of which are denied.

Count I of the indictment charges all three defendants with engaging in a conspiracy, beginning in January 1975 and continuing to April 3, 1975, to distribute and possess with intent to distribute cocaine and tablets containing d-amphetamine sulfate, in violation of 21 U.S.C. § 846. Count II alleges that on February 4, 1975, Waltress and Bastian, possessed, with intent to distribute and did distribute, approximately 9,382 tablets containing d-amphetamine sulphate, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In each of Counts III, IV, and V, all three defendants are charged with possessing cocaine with intent to distribute and distributing it on February 9, February 12, and April 3, 1975, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Counts VI and VII charge defendant Amidzich alone with, on April 3, 1975, possessing cocaine (Count VI) and tablets containing d-amphetamine sulfate (Count VII) with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

DISCOVERY

Defendants Amidzich and Waltress have both filed motions seeking a bill of particulars. Additionally, defendant Waltress has moved for disclosure of exculpatory evidence, reports or results of scientific tests, statements attributed to codefendants which the Government intends to introduce at trial, and any evidence of similar offenses which the Government intends to rely on.

Defendant Waltress' motion for a bill of particulars inquires as to the theory the Government will rely on to show that he was an aider and abettor as to Counts I through V. Defendant Amidzich's motion seeks information unknown at the time the indictment was returned but which may have been subsequently discovered by the Government.

A motion for a bill of particulars is addressed to the discretion of the court. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545 (1927); United States v. Barrett, 505 F.2d 1091, 1106 (7th Cir. 1975); United States v. Johnson, 504 F.2d 622, 627 (7th Cir. 1974). The purpose of a bill of particulars is to inform a defendant of the nature of the charges against him so that he will have a sufficient opportunity to prepare for trial and avoid surprise, and also to enable him to plead double jeopardy if a subsequent prosecution for the same offense should eventuate. United States v. Perez, 489 F.2d 51, 70-71 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). These purposes are satisfied by the detailed indictment herein. A motion for a bill of particulars cannot be used to obtain evidentiary details of the Government's case, United States v. Johnson, supra; United States v. Cansler, 419 F.2d 952, 954 (7th Cir. 1969), cert. denied, 397 U.S. 1029, 90 S.Ct. 1278, 25 L.Ed.2d 540 (1970), or the government's legal theory, United States v. Copen, 378 F.Supp. 99, 103 (S.D.N.Y. 1974); United States v. Verra, 203 F. Supp. 87, 92 (S.D.N.Y.1962). The motions are, therefore, denied.

Defendant Waltress' other discovery motions are moot in light of the representations contained in the Government's brief and the fact that his attorney has had access to the Government's file and they are, accordingly, denied.

SEVERANCE

Defendant Waltress has filed one motion seeking a severance of defendants and another requesting severance of counts. The motion for severance of defendants is grounded upon the assertion that at a joint trial Waltress' codefendants will assert their privilege against self-incrimination and refuse to testify in his behalf, whereas if he has a separate trial, they will give testimony tending to exculpate him or minimize his complicity.

Under Rule 14 of the Federal Rules of Criminal Procedure, a severance of defendants may be granted, "If it appears that a defendant * * * is prejudiced" (emphasis added) by a joint trial. Where the indictment alleges a conspiracy or that the defendants were principals and aiders-abettors, the rule is that defendants jointly indicted should be tried together unless "the possibilities of danger to a fair trial have become realities of prejudice in the jury." United States v. Kahn, 381 F.2d 824, 839 (7th Cir.), cert. denied, 389 U. S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967). In Kahn the Court went on to state at 841:

"As with the right to comment on the silence of a codefendant, there is no absolute requirement for a severance when defendants suggest that the testimony of a co-defendant is not available to them unless they are tried separately. The unsupported possibility that such testimony might be forthcoming does not make the denial of a motion for severance erroneous." (Citations omitted.)

See also, United States v. Isaacs, 493 F. 2d 1124 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974). The mere assertion by defendant Waltress' attorney, unsupported by affidavit or otherwise, that at a separate trial the codefendants would waive their privilege against self-incrimination and give testimony exculpative of the defendant is an insufficient showing that a joint trial would be prejudicial. United States v. Buschman, 386 F.Supp. 822 (E.D.Wis.1975). Waltress' motion for severance of defendants is therefore denied.

In support of his motion for severance of counts, defendant Waltress argues that evidence of one crime will be improperly used to prove others, that the jury may view the evidence cumulatively, and that he may wish to testify only as to some of the counts. Severance of counts against a single defendant is within the discretion of the trial court. United States v. Barrett, 505 F. 2d 1091, 1106 (7th Cir. 1975). The rule is that the possibility that the jury will improperly use evidence of one crime in deciding whether a defendant is guilty of another or will use the evidence cumulatively can be prevented by proper instructions. United States v. Pacente, 503 F.2d 543, 548 (7th Cir. 1974); United States v. Williamson, 482 F.2d 508 (5th Cir. 1973); Blachly v. United States, 380 F.2d 665 (5th Cir. 1967). Further, the mere assertion that a defendant "may" wish to testify as to some counts and not others, unsupported by affidavit or other information showing that genuine prejudice will occur to the defendant's trial strategy, is not a sufficient reason for granting a severance of counts. United States v. Williamson, supra, at 512. Contrast, Cross v. United States, 118 U.S.App.D.C. 324, 335 F.2d 987 (1964). Waltress' motion for severance of counts is thus denied.

SUPPRESSION

Defendant Amidzich has filed a motion to suppress as evidence property seized from the premises at 5641 South 22nd Street, Milwaukee, Wisconsin, during the execution of a search warrant on April 3, 1975. A second motion seeks the return and suppression of property seized from defendant Amidzich's person at the time of his arrest on April 3, 1975. The third motion is to suppress as evidence property seized from a 1974 Lincoln Continental automobile with Wisconsin license number LC 1639, which automobile was allegedly being driven by defendant at the time of his arrest.

Defendant attacks the search warrant on the grounds that (1) the affidavit in support insufficiently establishes the probable cause required for its issuance, and (2) some of the information contained therein was illegally obtained. The affidavit of Special Agent Charles F. Lee of the Drug Enforcement Administration ("DEA") contains the following facts:

1. On February 9, February 12, and April 3, 1975, Special Agent Thomas J. Stacy of the DEA had conversations with Bruce Waltress and/or his girl-friend Pam relative to purchasing cocaine. On each occasion, Special Agent Lee and other DEA agents observed Waltress leave his residence at 220 North 32nd Street, Milwaukee, travel to the residence at 5641 South 22nd Street, Milwaukee, enter and remain there for a few minutes, and then return to his own residence where the cocaine was transferred to the buyer, Agent Stacy.

2. On February 9, 1975, subsequent to the transaction, Stacy informed Lee that Waltress had stated: "I have to go down and pick up the stuff and I'll be right back."

3. On February 12, 1975, about 40 minutes after Agent Stacy completed his cocaine purchase and departed, Michael Amidzich arrived at Waltress' residence, entered, and departed after approximately 10 minutes.

4. Michael Amidzich occupies the residence at 5641 South 22nd Street and drives a 1974 Lincoln Continental automobile bearing Wisconsin license plates number LC 1639, which automobile was observed at the 5641 South 22nd Street residence on February 12, 1975, and was driven by Amidzich to Waltress' residence.

5. On April 3, 1975, some 40 minutes after Waltress delivered cocaine to Agent Stacy in exchange for $1,500, Amidzich arrived at Waltress' residence, was arrested upon his departure by the surveillance agents, and had in his possession $1,350 of "Official Advance Funds."

These facts were sufficient to establish that there was probable cause to believe that Amidzch was supplying drugs to Waltress and that additional drugs, along with the proceeds of drug...