United States v. Buschman, 74-CR-130.

• Decision Date: 07 January 1975
• Docket Number: No. 74-CR-130.,74-CR-130.
• Citation: 386 F. Supp. 822
• Parties: UNITED STATES of America, Plaintiff, v. John Wayne BUSCHMAN, a/k/a Flapper, a/k/a John Thomas, a/k/a Robert Beck, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

386 F. Supp. 822

UNITED STATES of America, Plaintiff, v. John Wayne BUSCHMAN, a/k/a Flapper, a/k/a John Thomas, a/k/a Robert Beck, et al., Defendants.

No. 74-CR-130.

United States District Court, E. D. Wisconsin.

January 7, 1975.

COPYRIGHT MATERIAL OMITTED

William J. Mulligan, U. S. Atty. by D. Jeffrey Hirschberg, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff.

William M. Coffey, Milwaukee, Wis., for defendants John Wayne Buschman and Marjorie Buschman.

Russell L. Stewart, Milwaukee, Wis., for defendants David Gordon Cresca and Paul Edward McCrary.

Philip L. Atinsky, Milwaukee, Wis., for defendant Simmerman.

John J. Valenti, Milwaukee, Wis., for defendant Cresci.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This is a criminal case in which the six defendants have been charged with a conspiracy to transport stolen motorcycle parts in interstate commerce. Four of the defendants have filed a variety of pretrial motions. Since many of the motions are duplicitous, they will be discussed in accordance with the subject matter to which they pertain.

GRAND JURY MINUTES

One group of motions seeks discovery of the grand jury minutes. The Government has offered to comply with the rule of United States v. Cullen, 305 F.Supp. 695 (E.D.Wis.1969), which requires production of the minutes of a witness' grand jury testimony twenty-four hours before the witness testifies. Since defendants have not even attempted to show a "particularized need," United States v. Cerone, 452 F.2d 274 (7th Cir. 1971), cert. denied, 405 U.S. 964, 92 S.Ct. 1168, 31 L.Ed.2d 240 (1972), compliance with the Cullen rule is sufficient, and the motions must be denied.

SEVERANCE MOTIONS

Another set of motions seeks severance under Rule 14 of the Federal Rules of Criminal Procedure. Count I of the indictment charges all the defendants with participation in a conspiracy (18 U.S.C. § 371) to transport in interstate commerce goods of a value in excess of $5,000, knowing the goods to be stolen (18 U.S.C. § 2314). Counts II through V contain allegations only against one defendant, John Wayne Buschman, at to substantive violations of 18 U.S.C. §§ 2314 and 2. Defendants Cresca, Simmerman, and McCrary argue that: (1) there will be a spillover onto them of the evidence against Buschman; (2) there is a gross disparity in the quantum of evidence as against them and Buschman; (3) the jury will be unable to judge their cases separately; (4) they will be unable to call codefendants to testify; and (5) they will not be able to comment on their codefendants' failure to testify.

The defendants have been properly joined in Count I (conspiracy) under Rule 8(b). The issue, therefore, is whether the moving defendants have made a sufficient showing that they would be prejudiced by a joint trial to warrant severance. Rule 14 of the Federal Rules of Criminal Procedure provides:

"If it appears that a defendant * * * is prejudiced by a joinder of * * * defendants * * * or by such joinder for trial together, the court may * * * grant a severance of defendants * * *." (Emphasis added.)

Whether to grant a motion for severance is a decision within the trial court's discretion. United States v. Tanner, 471 F.2d 128 (7th Cir. 1972), cert. denied 409 U.S. 949, 93 S.Ct. 269, 34 L. Ed.2d 220 (1972).

Defendants' argument that they will be prejudiced by a joint trial because of the spillover effects of the evidence against Buschman is not sufficient to make out a strong probability of actual prejudice. The argument that defendants will be unable to call codefendants and elicit exculpatory evidence from them must be viewed in the light of the cases interpreting the rule of United States v. Echeles, 352 F.2d 892 (7th Cir. 1965). Specifically, United States v. Isaacs, 493 F.2d 1124, 1160 (7th Cir. 1974), holds that this situation can require a severance only where the defendant will in fact be unable to have a fair trial in the absence of the codefendant's testimony.

Defendant Simmerman's attorney has submitted an affidavit stating that Cresca and McCrary would testify at a trial involving only Simmerman, and that they would testify at such a trial that they never saw or talked to Simmerman prior to the indictment. It is difficult to believe Cresca and McCrary would waive their Fifth Amendment rights at a separate trial. Further, this testimony does not appear to be so exculpatory in nature that its absence would deny Simmerman a fair trial, since whether or not Cresca and McCrary had contact with Simmerman is only some evidence of whether Simmerman was a member of the conspiracy and is not conclusive.

The final argument relates to the inability of these defendants to comment on their codefendants' failure to take the stand at a joint trial. The law is that inability to comment on a codefendant's refusal to testify compels severance only where the defendants have mutually exclusive antagonistic defenses. Contrast DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962), with United States v. Kahn, 381 F.2d 824, 840 (7th Cir. 1967), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967), rehearing denied 392 U.S. 948, 88 S.Ct. 2272, 20 L.Ed.2d 1413 (1968). There has not been a sufficient showing of antagonistic defenses to fall within the DeLuna rule as interpreted by Kahn.

Since defendants have not made a sufficient showing that actual prejudice will result from a joint trial, their motions to sever must be denied.

DISCOVERY

Defendants Buschman and Simmerman have filed discovery motions. These appear to be moot since the Government has made its entire investigative file available to defendants' attorneys.

BILL OF PARTICULARS

Defendant Buschman has filed a motion seeking a bill of particulars. Under Rule 7(f), this motion is directed to the court's discretion. Defendant argues that the indictment is not clear enough to enable him to prepare his defense and prevent surprise at trial. A reading of the indictment shows that it informs the defendant of the charges against him with sufficient specificity to enable him to prepare for trial. Further, the motion seeks information contained in the Government's file which has been made available to the defendant. Therefore, a bill of particulars is unnecessary, and this motion is denied.

CONSTITUTIONALITY OF 18 U.S.C. § 371

Defendant Simmerman has argued that the conspiracy statute, 18 U.S.C. § 371, is unconstitutional as applied to him and seeks dismissal of the indictment. He claims that it is violative of the double jeopardy clause of the Fifth Amendment because the same facts are sufficient to prove the state law crime of theft or the federal crime of interstate transportation of stolen property. He also argues that the statute is so ambiguous as applied to the facts of this case that he is not informed of the nature of the accusations against him.

No cases have been cited by the defendant in support of the above arguments. His double jeopardy argument is meritless, since 18 U.S.C. § 371 has at least one element not required for either theft or interstate transportation of stolen property — that two or more persons conspire. Further, the statute is not so ambiguous as to fail to inform the defendant of the "nature and cause of the accusation." Cf., United States v. Edwards, 458 F.2d 875 (5th Cir. 1972), cert. denied sub nom. Huie et al. v. United States, 409 U.S. 891, 93 S.Ct. 118, 34 L.Ed.2d 148 (1972).

MULTIPLICITY

Defendant Buschman is charged in Count I of the indictment with participation in a conspiracy to violate 18 U.S.C. § 2314, and in Counts II through V with substantive violations of 18 U. S.C. § 2314. He has filed a motion seeking dismissal of the indictment or an order requiring the Government to elect from among the counts on the ground that they are multiplicitous. He charges that the Government has fractionated a single course of action and that the result is multiplicitous.

This argument must fail. Count I charges conspiracy (18 U.S.C. § 371), and Counts II through V charge separate substantive violations of 18 U.S.C. § 2314. This is permitted. United States v. Caesar, 368 F.Supp. 328, 335 (E.D.Wis.1973). Defendant Buschman's motion to dismiss or elect must, therefore, be denied.

SUFFICIENCY OF THE INDICTMENT

There are several motions challenging the indictment. Defendant Simmerman has filed two motions, one seeking dismissal and the other seeking to have the indictment made more definite and certain. Defendants Cresca and McCrary have joined in the motion to dismiss.

The indictment herein fulfills the requirements of Rule 7(c), as it alleges, in the language of the statute, the elements of the offense. Simmerman's motion to make the indictment more definite really seeks a bill of particulars which is not necessary here (see discussion above). These motions must be denied.

SUPPRESSION MOTIONS

A total of twelve separate suppression motions have been filed by the defendants. They can be divided into three general groups. One set seeks to suppress telephone conversations intercepted pursuant to an order issued by Judge Myron L. Gordon on February 8, 1974 (Misc.App.No. 13). In another set of motions, defendant Buschman seeks to suppress evidence obtained by the execution of seven search warrants on February 18, 1974. Buschman has also filed a motion to suppress all eyewitness identification based on prior identification procedures.

1. Suppression of Telephone Interceptions

The following arguments for suppression have been asserted by the defendants: (1) 18 U.S.C. §§ 2516-2519 is unconstitutional; (2) the order did not allow interception of intrastate conversations, and the Government did not comply with 18 U.S.C. § 2517(5) in presenting these conversations to the grand jury; (3) the statement contained in the application concerning the use of other investigative procedures was insufficient; (4) there was no timely notification of interception as required by 18 U.S.C. § 2518(8)(d); (5) the...