United States v. Kilroy

Decision Date17 September 1981
Docket NumberNo. 81-CR-54.,81-CR-54.
Citation523 F. Supp. 206
CourtU.S. District Court — Eastern District of Wisconsin
PartiesUNITED STATES of America, Plaintiff, v. Marlyn KILROY, Defendant.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joseph P. Stadtmueller, U. S. Atty., Elizabeth L. Adelman, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff.

Stephen E. Kravit, Milwaukee, Wis., for defendant.

DECISION AND ORDER

REYNOLDS, Chief Judge.

Marlyn Kilroy was charged in an eleven count indictment issued April 14, 1981, with three counts of mail fraud in violation of 18 U.S.C. § 1341 (counts 1, 2, and 3), one count of wire fraud in violation of 18 U.S.C. § 1343 (count 4), six counts of interstate transportation of a stolen security in violation of 18 U.S.C. § 2314 (counts 5, 6, 7, 8, 9, and 10), and one count of making a materially false statement in a loan application in violation of 18 U.S.C. § 1014 (count 11).

Counts 1 through 4 of the indictment also charge that Kilroy devised a scheme to defraud Amoco Oil Co. and to obtain money from it, and that the scheme was in substance as follows: from July 1976 through December 1979, Kilroy was the manager of the Sharon, Wisconsin Fertilizer Plant for Amoco Oil Co., a division of Standard Oil. During that time he devised and put into effect a scheme to divert payments made to Amoco to his own use, by means of having customers write personal checks to him and also of converting checks written to Standard Oil to his own use, and then mailing an adjustment memo to Amoco Oil Co., falsely reflecting a product return by the customer. He also failed to mail scale tickets, which were tickets used to write up sales, to Amoco for sales in which he diverted payments, and then induced other customers to prepay on sales and mailed false scale tickets to Amoco reflecting sales in the amount of the prepayments so that Amoco would reduce its accounting of inventory.

The case is currently before the Court on the defendant's motions to dismiss the indictment; to sever count 11; and for discovery of (a) all grand jury transcripts, (b) all checks, adjustment memos, scale tickets, bank documents and other documents on which the counts are based, (c) all exculpatory evidence including contradictory statements, (d) handwritten notes of F.B.I. agents from interviews of all Government witnesses listed in the Government's pretrial report, and (e) all witnesses and documents which the Government proposes to call or introduce at trial as evidence of similar acts committed by the defendant, pursuant to Rule 404(b) of the Federal Rules of Evidence.* For the following reasons, the motion to dismiss will be denied as to counts 1 through 4 and granted as to counts 5 through 11; the motion to sever will be dismissed as moot; and the motion for discovery will be granted in part and denied in part.

The Government has moved for discovery and inspection of any books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession or control of the defendant and which he intends to use at trial, and any results or report of physical or mental examinations and of scientific tests or experiments made in connection with this case which are within the defendant's possession or control and which he intends to use at trial or which were prepared by witnesses whom he intends to call at trial. The Government's motion will be granted.

The defendant's motion to dismiss

In considering the sufficiency of an indictment under Rule 7(c)(1) of the Federal Rules of Criminal Procedure, "allegations made in one count may be incorporated by reference in other counts. However, each count is considered as if it were a separate indictment and must be sufficient without reference to other counts unless they are expressly incorporated by reference. * * *." 1 Wright Federal Practice and Procedure § 123 at 222; Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932); United States v. Gordon, 253 F.2d 177, 180 (7th Cir. 1958). The Court may order a separate trial of any or all counts, Rule 14 of the Federal Rules of Criminal Procedure; the jury must consider the evidence separately as to each count and reach a separate verdict as to each, 2 Devitt and Blackmar Federal Jury Practice and Instructions § 11.07 (3d ed. 1977), and cases cited therein; and the Court as a matter of law must decide if the evidence is sufficient to support a guilty verdict on every count independently, Rule 20 of the Federal Rules of Criminal Procedure. Consequently, in considering a motion to dismiss each count of a multi-count indictment for failure to adequately allege a criminal offense, the Court must direct its attention to the language of each count separately, including only matters from other counts expressly incorporated by reference into the count under consideration. United States v. Garrison, 280 F.2d 493 (7th Cir. 1960).

Counts 1 through 4. The defendant challenges counts 1 through 4 of the indictment on the ground that the scheme which he allegedly devised to defraud Amoco Oil Co. is described to be "in substance" as set forth in paragraphs 6 and 7 of count 1 of the indictment, and as incorporated by reference in counts 2, 3, and 4, and also that paragraphs 6 and 7 of count 1 describe two different schemes, creating the risk that the jury will not arrive at a unanimous verdict if some jurors believe that he committed one scheme and some that he committed the other. Paragraph 6 describes a course of conduct wherein the defendant allegedly had customers write personal checks to him and converted checks written to Standard Oil to his own use, and then mailed an adjustment memo to Amoco Oil falsely reflecting a product return. Paragraph 7 describes a course of conduct wherein the defendant allegedly failed to mail scale tickets, reflecting sales, to Amoco for sales in which he diverted payments, and then induced other customers to prepay on sales and mailed false scale tickets to Amoco reflecting sales in the amount of the prepayments so that Amoco would reduce its inventory accounting.

Defendant argues that because counts 1 through 4 of the indictment allege that his scheme was "in substance" as described, the counts are defective under Rule 7(c)(1) of the Federal Rules of Criminal Procedure, which requires that the indictment contain a definite written statement of the facts constituting the offense charged. See, e. g., United States v. Williams, 203 F.2d 572, 574 (5th Cir. 1953), condemning "indirect expressions, implied allegations, argumentative statements, and uncertainty due to generalizations in language" contained in an indictment.

The purpose of the definiteness requirement is to apprise the defendant of the charges against him to enable him to prepare a defense and to enable him to plead any judgment as a bar to future prosecution for the same offense. United States v. Pope, 189 F.Supp. 12, 17 (S.D.N.Y. 1960); United States v. Haldeman, 559 F.2d 31, 126 (D.C. Cir. 1976). As in a conspiracy charge, where the Government need not set forth all of the overt acts allegedly committed in furtherance of the conspiracy, where a scheme to defraud is charged the indictment need not set forth all of the overt acts committed in furtherance of the scheme. United States v. DePalma, 461 F.Supp. 778, 798 (S.D.N.Y.1978) (scheme to defraud creditors in a bankruptcy proceeding). See also United States v. Haldeman, supra, at 126 (charge of obstruction of justice); United States v. Mayo, 230 F.Supp. 85 (S.D.N.Y. 1964) (words "among others" not stricken where they were included in the means paragraph of the indictment describing the proof to be offered at trial, as opposed to the paragraph setting forth the gravamen of the charge). Indeed, as the Court in Haldeman pointed out, inclusive language included in the means paragraph of an indictment broadens the scope of the acts to which jeopardy attaches and thus provides the defendant with expanded protection. 559 F.2d at 126.

The defendant complains that the language "in substance" may mean that the grand jurors who voted for his indictment may not have agreed on the nature of the scheme to defraud which the defendant alleged engaged in or that they may have voted the indictment on the basis of some scheme other than what is alleged. Where a scheme is described as being "in substance" composed of elements (a)(e), however, the meaning of the phrase "in substance" is that elements (a)(e) constitute the essence of the scheme, not that the essence may differ in material respects from what is alleged. See the American College Dictionary, definition of "substance"; Webster's New World Dictionary of the American Language, definition of "substance." Unlike an accusation that a defendant acted in a certain way "among others" or acted through "various illegal and unlawful means" or did certain illegal acts "among others," see, e. g., United States v. Mayo, supra; United States v. Hubbard, 474 F.Supp. 64, 80-81 (D.C.D.C. 1979); United States v. Pope, 189 F.Supp. 12, 25-26 (S.D.N.Y.1960), an accusation that a defendant acted "in substance" in a described way is specific with regard to the essential elements of the conduct of which the defendant is accused.

In an appropriate case the defendant may seek explication of inclusive language contained in the means section of a charge or the section of a conspiracy charge describing overt acts through a motion for a bill of particulars. United States v. Hubbard, supra, at 80-81. The defendant suggests that if counts 1 through 4 are not dismissed, the Government be ordered to provide him with a bill of particulars. The function of a bill of particulars is to enable the defendant to prepare an adequate defense, and a bill is not required if the indictment itself includes sufficient detail or if the Government has provided the information called for in some other manner. 1 Wright Federal Practice and...

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    ...States v. Kramer, 711 F.2d 789, 796 (7th Cir.1983); United States v. Schembari, 484 F.2d 931, 935 (4th Cir.1973); United States v. Kilroy, 523 F.Supp. 206, 211 (E.D.Wis.1981). Since the defendant was sufficiently aware of the charges against him, and of what he was going to have to defend h......
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  • Kompare v. Stein
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    ...Flomenhoft, 714 F.2d 708, 712 (7th Cir.), cert. denied, 465 U.S. 1068, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984). Cf. United States v. Kilroy, 523 F.Supp. 206, 214 (E.D.Wis.1981) (holding that the prosecutor had no duty to reveal exculpatory information to the grand jury). Furthermore, a violat......
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  • Prosecution deferred: exploring the unintended consequences and future of corporate cooperation.
    • United States
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    ...entity that were once available to the government within the government's "control" for Rule 16 purposes); United States v. Kilroy, 523 F. Supp. 206, 215 (E.D. Wis. 1981) (finding cooperation between private entity and government placed private entity's documents within the government's "co......

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