United States v. Stone
| Decision Date | 03 February 1978 |
| Docket Number | No. 77-Cr-192.,77-Cr-192. |
| Citation | 444 F. Supp. 1254 |
| Parties | UNITED STATES of America, Plaintiff, v. Douglas Mark STONE, Pearl Marie Stone, Robert Douglas Stone, Michael Noel Stone, Joseph Garry Stone, Douglas James Stone, Clifford Clair Benjamin, Jr. and Marie Annette Benjamin (nee Stone), Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
William J. Mulligan, U. S. Atty. by Stephen E. Kravit, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff.
Frisch, Dudek & Slattery by Dennis M. Grzezinski, Milwaukee, Wis., for Robt. Stone.
James A. Ward, Waukesha, Wis., for all other defendants.
DECISION and ORDER
The defendant Robert Douglas Stone has filed a motion to dismiss counts 1 and 2 of the indictment as to him and a request for a trial to the court accompanied by a waiver of trial by jury. He also has made various discovery demands. The other seven defendants have filed motions to sever offenses and defendants. All of the defendants' motions will be denied or dismissed.
Robert Douglas Stone is charged in counts 1 and 2 of the 32 count indictment in this case. Count 1 generally charges a conspiracy by all of the defendants to commit mail fraud and to use and transport in interstate commerce fraudulently obtained credit cards. Count 2 charges the defendants with devising and intending to devise a scheme to defraud several companies which issued credit cards to the defendants.
In his motion, Robert Douglas Stone seeks an order dismissing counts 1 and 2 on the ground that they are barred by the applicable statute of limitations. Specifically, he seeks a pretrial determination, pursuant to Rule 12(b)(1), Federal Rules of Criminal Procedure, that he withdrew from the conspiracy and scheme to defraud prior to December 14, 1972. The parties agree that the applicable statute of limitations for counts 1 and 2 is 18 U.S.C. § 3282, which provides for a five year limitations period following commission of the offense. Since the indictment was returned on December 14, 1977, the defendant can only be prosecuted for an offense alleged to have been committed on or after December 14, 1972.
Robert Douglas Stone has filed an affidavit with his motion in which he states that since 1966 he has had limited contact with the other defendants who are members of his family; that in 1970, after the postal authorities became aware of this matter, he took all of the credit cards in his possession to his attorney with instructions to return the cards to the appropriate companies; that he informed at least one of the other defendants that he had turned in the cards; that he believes that the other defendants learned that he had turned in the cards; that since the cards were turned in, he has not had any contacts with the other defendants in connection with any mail fraud or credit card fraud activities; that any such activities by the other defendants were without his knowledge, consent or participation, and that any such activities by Robert Douglas Stone were undertaken without the knowledge, consent or participation of the other defendants.
Robert Douglas Stone argues that the uncontradicted statements in his affidavit demonstrate that he withdrew from the alleged scheme and conspiracy prior to December 14, 1972, thereby precluding his prosecution for those alleged offenses.
In my opinion, the affirmative defense of withdrawal from the alleged scheme and conspiracy is not one which is capable of determination without a trial of the general issue in this case, and thus it would be inappropriate to purport to resolve such defense at this time.
Paragraph 18 of count 1 of the indictment charges that on May 16, 1973, Robert Douglas Stone committed an overt act in support of the conspiracy by mailing a credit card application which misrepresented certain information. Paragraph 2.D. of count 2 of the indictment charges that as part of the alleged scheme to defraud, the defendants, including Robert Douglas Stone, furnished false and fictitious information on credit card applications to induce the issuance of credit cards.
The act which Robert Douglas Stone is alleged to have committed on May 16, 1973, is well within the limitations period. If the government succeeds in proving that the act was in furtherance of the conspiracy or was a part of the scheme to defraud, the affirmative defense of withdrawal will have been defeated since "the abandonment must be complete and in good faith." United States v. Nowak, 448 F.2d 134, 139 (7th Cir. 1971). It is thus apparent that the withdrawal defense is closely intertwined with the general issue for trial, i. e. whether the defendants, including Robert Douglas Stone, engaged in a conspiracy or scheme to defraud which continued after December 14, 1972. Accordingly, I am unable to make the requested pretrial determination and must deny the defendant Robert Douglas Stone's motion to dismiss. See United States v. Andreas, 374 F.Supp. 402 (D.Minn. 1974); United States v. Tolub, 187 F.Supp. 705 (S.D.N.Y.1960).
Robert Douglas Stone has filed a waiver of trial by jury and has requested that his guilt or innocence be determined by the court. The government opposes the request, relying on Rule 23(a), Federal Rules of Civil Procedure, and Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). In reply, Robert Douglas Stone does not dispute that, as a general rule, a criminal defendant has no constitutional entitlement to a trial to the court since the Sixth Amendment only guarantees a trial by an impartial jury. However, he argues that Singer left open the question "whether there might be some exceptional circumstances where a defendant's reasons for wanting to be tried by a judge alone are so compelling that the Government's insistence on trial by jury would result in the denial to a defendant of an impartial trial." 380 U.S. at 37, 85 S.Ct. at 791.
In United States v. Kramer, 355 F.2d 891 (7th Cir. 1966), cert. granted in part and denied in part, 384 U.S. 100, 86 S.Ct. 1366, 16 L.Ed.2d 396 (1966), the court stated that the defendant's reasons for requesting a court trial "might render impartial trial by jury unlikely or impossible, thereby furnishing a compelling reason for rejecting the government's insistence on its right to consent to the waiver . . .." Id. at 899. The court found no such circumstances in Kramer where a defendant charged with a Hobbs Act violation, 18 U.S.C. § 1951, sought a trial to the court because of the potential adverse effect which disclosure of a prior murder conviction might have had on the jury if he elected to take the stand.
Robert Douglas Stone advances several factors which he believes render it unlikely or impossible that he can receive an impartial jury trial. First, the 32 count indictment is complex and is primarily directed to overt acts and substantive offenses allegedly committed by the other defendants. Robert Douglas Stone is charged only in counts 1 and 2 of the indictment. It is argued that Robert Douglas Stone will be prejudiced because of the substantial number of charges against his alleged co-conspirators.
Second, five of the defendants have the same family name, and two of the five, Douglas Mark Stone and Douglas James Stone, have similar first names. Robert Douglas Stone contends that the similarity in names will result in jury confusion because it will be difficult for the jury to distinguish his name with respect to the evidence.
Third, Robert Douglas Stone asserts that the government's investigative file contains evidence which purports to show that he committed certain substantive mail fraud offenses after the alleged act of May 13, 1973, which were not charged in the indictment but may be introduced by the government to prove the conspiracy and mail fraud scheme counts against him. It is urged that the jury may be reluctant to acquit him since his defense is a technical one, i. e. that the alleged acts subsequent to December 14, 1972, were not related to the conspiracy or mail fraud scheme charged in the indictment.
I am not convinced that the exceptional circumstances adverted to in Singer are present in this case. The danger of jury confusion because of the similarity of the defendants' names can be lessened through argument by counsel and proper instructions by the court. It is presumed that a properly instructed jury will confine itself to the evidence relating to each defendant. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954); United States v. Papia, 399 F.Supp. 1381, 1386 (E.D.Wis.1975).
Similarly, I believe that counsel's argument and the court's instructions can alleviate the claimed prejudice which might result from the many charges against Robert Douglas Stone's co-conspirators. If anything, his comparatively sparse involvement should make the task of separating the evidence against him less difficult. I also believe that arguments of counsel and instructions from the court can reduce the possibility of jury error in its appraisal of Robert Douglas Stone's defense that certain alleged acts were not part of the conspiracy or scheme alleged in the indictment.
In summary, I am unable to find that Robert Douglas Stone cannot receive an impartial jury trial under the circumstances of this case. In view of the government's refusal to consent to the waiver of jury trial, I decline the request for a trial to the court.
A demand has been made pursuant to Rule 16, Federal Rules of Criminal Procedure, seeking disclosure of the records of any statement made by Robert Douglas Stone which may be in the possession of the government. A request for exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), has also been made.
The government has responded by stating...
To continue reading
Request your trial
-
U.S. v. Levine
...carry burden of proving that crime of making illegal contributions occurred within five years of indictment).11 See United States v. Stone, 444 F.Supp. 1254, 1256 (E.D.Wis.) aff'd, 588 F.2d 834 (7th Cir. 1978) (trial judge deemed it inappropriate to resolve at the pretrial stage a defense o......
-
United States v. Braunstein
...at trial. The ground seems to be one more properly addressed to the matter of severance, which was sought and denied. U. S. v. Stone, 444 F.Supp. 1254 (D-Wis., 1978). The moving defendant, Stone, moved before trial that it be without a jury, and the government did not consent. His grounds w......
-
US v. Gatto
...for statute of limitations claims not necessarily an order formally and completely rejected before trial) (citing United States v. Stone, 444 F.Supp. 1254, 1256 (E.D.Wis.), aff'd, 588 F.2d 834 (7th Cir.1978)). The Levine court held that an order denying a motion to dismiss on statute of lim......
-
U.S. v. Wilson
...or when an offense was consummated, the limitations question should be put off until the trial."); id. at Sec. 194; United States v. Stone, 444 F.Supp. 1254, 1256 (E.D.Wis.), aff'd, 588 F.2d 834 (7th Cir.1978) (affirmative defense of withdrawal from the charged conspiracy outside the limita......