United States v. Brodson

• Decision Date: 31 January 1975
• Docket Number: No. 74-Cr-98.,74-Cr-98.
• Parties: UNITED STATES of America, Plaintiff, v. Sidney A. BRODSON and Steven J. Halmo, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

390 F. Supp. 774

UNITED STATES of America, Plaintiff, v. Sidney A. BRODSON and Steven J. Halmo, Defendants.

No. 74-Cr-98.

United States District Court, E. D. Wisconsin.

January 31, 1975.

COPYRIGHT MATERIAL OMITTED

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Gregory Ward, Asst. U. S. Atty., Chicago, Ill., for plaintiff.

Gimbel, Gimbel & Reilly, by Richard Reilly, Milwaukee, Wis., for Halmo.

Shellow & Shellow, by James Shellow, Milwaukee, Wis., for Brodson.

DECISION and ORDER

MYRON L. GORDON, District Judge.

The defendants are charged in the first count of this indictment with conspiracy to violate 18 U.S.C. § 1084. The remaining six counts reallege the overt acts listed in count one. The defendants have filed a large number of motions. Discovery, severance, dismissal and suppression of evidence represent the objects thereof. I conclude that such motions should be denied.

I. DISCOVERY MOTIONS

A. Motions for Bills of Particulars

Both defendants have filed motions for bills of particulars pursuant to Rule 7(f), Federal Rules of Criminal Procedure. They maintain that they are entitled to know the theory of the government's case, but that absent answers to a number of questions, such theory remains ambiguous. The government has responded to the defendants' inquiries which do not call for evidentiary matter. In my judgment, the indictment sufficiently apprises the defendants of the essential facts which constitute the offenses charged. Furthermore, the government's "open file" policy has given the defendants equal access to the information sought. Accordingly, I conclude that the defendants' motion for bills of particulars should be denied. United States v. Cullen, 305 F.Supp. 695 (E.D.Wis.1969).

B. Motion to Disclose Reports

In order to determine whether the order was complied with, the defendant Brodson has moved that the court order the government to disclose those progress reports which it was required to file pursuant to the electronic surveillance order of Judge Fairchild dated November 26, 1973. The government opposes such disclosure on the grounds that "these progress reports are solely for the consideration of the authorizing judge and that defendant has more than ample information to determine compliance with the court order." The progress reports represent but summaries of the monitored conversations which are available in full for firsthand examination by the defendants. Also, an authorizing judge had broad discretion and can dispense with such progress reports entirely. Therefore, I conclude that the defendant Brodson's motion should be denied. See United States v. Iannelli, 477 F.2d 999, 1002 (3rd Cir. 1973); United States v. LaGorga, 336 F.Supp. 190, 194 (W.D.Pa.1971).

C. Motion for Disclosure of Exculpatory Facts

Citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Mr. Brodson has filed a motion for disclosure of exculpatory facts. He also seeks "any facts known to the government tending to impair the credibility of its witnesses, including but not limited to the substance of any agreement reached or discussed between attorneys for the government and attorneys for such witnesses." In response to such motion, the government states that "it has made available all requested discovery material and is aware of its continuing burden under Brady. . . . Further, the government is aware of its obligation to make available to defense counsel statements of witnesses at time of trial. Title 18 United States Code, Section 3500." The defendants remain free to challenge the credibility of the government's witnesses upon cross-examination. Under these circumstances, I conclude that the defendant Brodson's motion for disclosure of exculpatory facts should be denied.

D. Motion for Discovery and Inspection

The defendant Brodson seeks discovery of the defendants' recorded statements, the results of scientific tests, "warrants", the defendants' grand jury testimony and the physical evidence to be introduced at trial. The government indicates that "all such material, with the exception of grand jury testimony, is contained in the government's file, which has been open for inspection by defendants since the return of the indictment in this case. Grand jury testimony of defendant Brodson is available for inspection and copying by the individual who testified." Under these circumstances, I conclude that the defendant Brodson's motion for discovery and inspection should be denied.

E. Motion for Disclosure of Electronic Surveillance

Pursuant to 18 U.S.C. §§ 2515 and 2518(8)(d), and Rule 16(a), Federal Rules of Criminal Procedure, Mr. Brodson has filed a blanket motion for disclosure of all electronic surveillance of him, persons acting on his behalf and his attorneys.

The government correctly notes that unless Mr. Brodson's counsel can in some fashion document his suspicions that the government has been listening in on his telephones, the government is under no obligation to determine whether such suspicions are justified. United States v. Alter, 482 F.2d 1016 (9th Cir. 1973). The foregoing is true notwithstanding Mr. Brodson's generalized contention that

"The government's position may have had some validity in an era when a presumption of regularity and candor concerning the activities of Department of Justice employees could be invoked. Defendant respectfully asserts that he uses his telephones to converse about matters of interest to the Department of Justice and that this fact alone should be sufficient to require the government to disclose whether counsel has been subjected to electronic surveillance."

The government has agreed to advise the defendant Brodson whether he was subject to electronic surveillance, in accordance with its obligation under Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

II. SEVERANCE MOTIONS

A. Motions to Sever Defendants

Citing United States v. Martinez, 486 F.2d 15 (5th Cir. 1973), the defendant Brodson has moved this court for an order severing his trial from that of defendant Halmo on the grounds that Mr. Brodson's defense requires Mr. Halmo's testimony. The motion is supported by affidavits from Mr. Brodson and his attorney which: 1) purport to show that Mr. Halmo's testimony would be exculpatory; 2) indicates Mr. Halmo's willingness to testify in a trial in which he is not a defendant; and 3) sets forth Mr. Halmo's refusal to testify in a joint trial.

The government's position is that Mr. Halmo's explanation of his conversations with Mr. Brodson would not really be exculpatory unless Mr. Halmo were prepared to testify that such conversations were in code and did not concern gambling. The prosecution then asserts:

"Since defendant Halmo has not indicated that his testimony will be exculpatory in that his conversations with Brodson did not involve betting or wagering, the value of his testimony is not sufficient to warrant severance of defendants."

In United States v. Isaacs, 493 F.2d 1124, 1160 (7th Cir. 1974), the court of appeals for this circuit held that severance is required when the defendant will in fact be unable to have a fair trial in the absence of the codefendant's testimony. Standing alone, Mr. Halmo's statement that the defendant Brodson "is not and was not engaged in the business of betting or wagering" does not appear to be so exculpatory in nature that its absence would deny Mr. Brodson a fair trial; this follows from the fact that the taped Halmo-Brodson wagering conversations are not fully explained by such a statement. In my judgment, the defendant Brodson would have to come up with an offering similar to the one suggested by the government before Mr. Halmo's testimony would acquire an exculpatory dimension sufficient to justify severance. The defendant Halmo's motion to sever defendants suffers from the same deficiencies.

B. Motion to Sever Counts

The defendant Brodson has also filed a motion for on order severing the trial of the conspiracy charge (count 1) from the trial on the substantive charges (counts 2 through 7) upon the grounds that the conspiracy charge is so complex that the jury could not keep the offenses distinct. I conclude that the motion to sever counts should also be denied. The conspiracy charge and the substantive charges are of similar character and are based on the same alleged acts or transactions. See Rule 8(a), Federal Rules of Criminal Procedure. Moreover, the defendants in all counts are the same, and the dates of the alleged conspiracy coincide with the dates of the substantive offenses. Under these circumstances, the prospect of any prejudice from such joinder of counts is minimal.

III. MOTIONS TO DISMISS

A. Motion to Dismiss I

The defendant Brodson has moved to dismiss all or portions of this indictment on nine grounds. First, he claims that 18 U.S.C. § 1084 is unconstitutionally vague in that the language "engaged in the business of betting or wagering" is such that persons of ordinary intelligence must guess at its meaning. However, the district court in United States v. Smith, 209 F.Supp. 907, 917 (E.D.Ill.1962), rejected the same type of challenge. See generally, Bohn v. United States, 260 F.2d 773 (8th Cir. 1958), cert. den. 358 U.S. 931, 79 S.Ct. 320, 3 L.Ed.2d 304; Kahn v. United States, 251 F.2d 160 (9th Cir. 1958), cert. den. 356 U.S. 918, 78 S.Ct. 701, 2 L.Ed.2d 714.

Mr. Brodson's second ground for dismissal is that the indictment does not sufficiently notify him of the charges against him. Insofar as this indictment follows the language of the statute, it fulfills the requirements of Rule 7(c), Federal Rules of Criminal Procedure.

Third, the defendant Brodson challenges the indictment as being "defective for multiplicity in pleading" because each date in the indictment occurred "on or about" the date of each other. As Mr. Brodson's counsel notes, however, the date of an offense...