United States v. Borish, Crim. No. 78-32.

• Decision Date: 20 June 1978
• Docket Number: Crim. No. 78-32.
• Citation: 452 F. Supp. 518
• Parties: UNITED STATES of America v. Jeffrey A. BORISH, Samuel Ber Ginsberg, Paul E. Justice and Bernard Harry Krik.
• Court: U.S. District Court — Eastern District of Pennsylvania

452 F. Supp. 518

UNITED STATES of America v. Jeffrey A. BORISH, Samuel Ber Ginsberg, Paul E. Justice and Bernard Harry Krik.

Crim. No. 78-32.

United States District Court, E. D. Pennsylvania.

June 20, 1978.

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Robert N. deLuca, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Steven B. Gross, Philadelphia, Pa., for Borish.

A. Charles Peruto, Philadelphia, Pa., for Ginsberg.

Stephen H. Serota, Philadelphia, Pa., for Justice.

Jordon R. Pitock, Philadelphia, Pa., for Krik.

MEMORANDUM AND ORDER

BECHTLE, District Judge.

Defendants Jeffrey A. Borish ("Borish"), Samuel Ber Ginsberg ("Ginsberg"), Paul E. Justice ("Justice"), and Bernard Harry Krik ("Krik") are charged in a 55-count indictment¹ with the making, or the aiding and abetting of the making, of materially false statements in FHA Form 2700b, the monthly Broker's Report of Disbursements and the accompanying invoices and payroll vouchers submitted to the United States Department of Housing and Urban Development ("HUD") with respect to services and supplies which were allegedly not performed or furnished by various contractors and with respect to salary payments to individuals for work allegedly not performed, in violation of 18 U.S.C. §§ 1010, 2. Presently before the Court are the following pretrial motions: (1) the motions of each defendant to dismiss the indictment because of preindictment delay, pursuant to Fed.R.Crim.P. 12(b)(1) and 48(b); (2) the motions of Borish, Justice and Krik for relief from prejudicial joinder of defendants, pursuant to Fed.R.Crim.P. 12(b)(5) and 14; (3) Ginsberg's motion for severance of offenses, pursuant to Fed.R.Crim.P. 12(b)(2) and 8(a); and, (4) the motions of Borish, Justice and Krik to regulate the order of proof at trial, pursuant to Fed.R.Crim.P. 12(b). For the reasons stated below, each of the defendants' motions will be denied.

Ginsberg, trading as Sherwood Realty Company ("Sherwood"), was under contract with HUD from March, 1975, through March, 1977, as an Area Management Broker responsible for the management and maintenance of various HUD-owned, multi-family properties in Philadelphia, including the units at the Allegheny Arms/Allegheny Court Apartments. The indictment charges, inter alia, that Sherwood was reimbursed by HUD in the amount of approximately $194,000 for payments allegedly made by Sherwood to certain contractors and employees, such as Borish, Justice and Krik, when the services and supplies were allegedly either not performed or furnished or were allegedly performed or furnished in a manner materially different from that set forth in Sherwood's monthly requests for reimbursement and in the attached invoices and payroll vouchers.

Motions to Dismiss the Indictment

In support of his Fed.R.Crim.P. 12(b)(1) and 48(b) motion to dismiss the indictment, each defendant argues that there was an unnecessary one-year delay between the alleged commission of the offenses, which allegedly occurred between May, 1975, and February, 1977, and the return of the indictment by the grand jury in February, 1978, and that such delay has prejudiced defendants in the preparation of their defense, in violation of their constitutional rights to a speedy trial and due process of law. Specifically, Borish argues that, as a result of the pre-indictment delay, the physical evidence demonstrating that he in fact performed work and supplied materials is no longer available, and that the work completed in the apartment units has deteriorated during the occupation of the premises by tenants over the past two years. Ginsberg contends that, as a result of the delay, he may be unable to locate witnesses, records or other physical evidence which would exculpate him from the charges. Further, Ginsberg argues that he cannot properly rebut the charges because of the transient nature of the relevant witnesses and the depreciable nature of the work performed and the materials supplied. Justice argues that he cannot recall the names of relevant witnesses or the exact duties he performed for Sherwood between March, 1975, and March, 1977. Krik argues that the indictment could have been returned by the grand jury as early as July, 1977, in view of the Government's alleged knowledge of an independent tax investigation of Krik being conducted by the Internal Revenue Service in January, 1977. In response, the Government argues that the Sixth Amendment right to a speedy trial does not apply until after the filing of a formal indictment, and that the Fifth Amendment right to due process is not violated by the types of prejudice which the defendants argue has inured to them as a result of the asserted pre-indictment delay.

First, with respect to a speedy trial claim based upon pre-indictment delay, Fed.R.Crim.P. 48(b) provides that, in post-arrest situations where a defendant has been held to answer to the district court, the court may dismiss the indictment if there is unnecessary delay in presenting the charge to a grand jury or in bringing a defendant to trial. United States v. Lovasco, 431 U.S. 783, 789 n. 8, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 319, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The Supreme Court has held that a lengthy pre-indictment delay is irrelevant to the application of the speedy trial clause of the Sixth Amendment because only a formal indictment or information, or the actual restraints imposed by arrest and holding to answer a criminal charge, engage the particular protections of that provision. United States v. Marion, supra, 404 U.S. at 320, 92 S.Ct. 455. Second, with respect to a due process claim based upon pre-indictment delay, the court must consider the reasons for the delay as well as the prejudice to the accused. United States v. Lovasco, supra, 431 U.S. at 790, 97 S.Ct. 2044. Investigative delay is fundamentally unlike delay undertaken by the Government solely to gain tactical advantage over the accused. Id. at 795, 97 S.Ct. 2044. The Supreme Court held in Lovasco that prosecution of a defendant following investigative delay, wherein the prosecutor refuses to indict a defendant until he is satisfied that he is able to establish a defendant's guilt beyond a reasonable doubt, does not deprive the defendant of due process even if his defense might have been somewhat prejudiced by the lapse of time, because investigative delay actually embodies the concept of fundamental fairness inherent within the constitutional guarantee of due process. Id. at 791, 796, 97 S.Ct. 2044; see United States v. Marion, supra, 404 U.S. at 324-325, 92 S.Ct. 455, and United States v. Frumento, 405 F.Supp. 23, 28 (E.D.Pa.1975), aff'd mem., 559 F.2d 1209 (3d Cir. 1977). Our task is to determine whether compelling the defendants in this case to stand trial would deprive them of their Sixth Amendment right to a speedy trial or of their Fifth Amendment right to due process because of the delay in the Government's return of the indictment. See United States v. Lovasco, supra, 431 U.S. at 790, 97 S.Ct. 2044; United States v. Marion, supra, 404 U.S. at 326, 92 S.Ct. 455.

In this case, we hold that neither the defendants' Sixth Amendment right to a speedy trial nor their Fifth Amendment right to due process of law has been violated by any pre-indictment delay. First, because the pre-indictment delay in this case did not follow an arrest, the Sixth Amendment and Fed.R.Crim.P. 48(b) clearly do not support the defendants' speedy trial claims. Second, we find, on the basis of the pleadings before us, that none of the defendants has met his burden of establishing that the alleged pre-indictment in this case resulted from the prosecutor's intentional delay in presenting the indictment to the grand jury so as to gain a tactical advantage over him rather than from the prosecutor's necessary and reasonable investigation of the facts and circumstances supporting the indictment, and that none of the defendants has met his burden of establishing that any prejudice allegedly inuring to him as a result of this delay amounts to a denial of due process. In their arguments based upon due process grounds, the defendants do not allege prosecutorial misconduct which would reflect a specific intent by the Government to harass the defendants or to place them at a tactical disadvantage. In light of the nature of this case — namely, a conspiracy to defraud, over a period of almost two years, a large federal agency by the use of numerous documents containing allegedly false statements — and in light of the lack of any allegation that the pre-indictment delay was the result of tactical rather than investigative delay, we find at this time that the defendants have failed to establish a denial of their due process rights as a result of pre-indictment delay. Further, although events at trial may demonstrate actual prejudice, we find at this time that defendants' claims of substantial prejudice to their right to a fair trial are speculative and premature and, therefore, are insufficient to support a motion to dismiss. Allegations of dim memories, inaccessible witnesses and lost evidence are insufficient, without more, to demonstrate that the defendants cannot receive a fair trial or to justify dismissal of the indictment. United States v. Marion, supra, 404 U.S. at 325-326, 92 S.Ct. 455. Having considered both the nature of the pre-indictment delay and the consequential prejudice alleged by defendants, we hold that there was no violation of defendants' Fifth Amendment right to due process of law. Therefore, the defendants' motions to dismiss the indictment, on the grounds that their Sixth Amendment right to a speedy trial or their Fifth Amendment right to due process has been violated by pre-indictment delay, will be denied.

Motions for Severance

Borish, Justice and Krik filed motions, pursuant to Fed.R.Crim.P. 12(b)(5) and 14, seeking relief...