United States v. Winchester

• Decision Date: 24 December 1975
• Docket Number: Crim. A. No. 75-105.
• Citation: 407 F. Supp. 261
• Parties: UNITED STATES of America, Plaintiff, v. Henry McComb WINCHESTER, Jr., Defendant.
• Court: U.S. District Court — District of Delaware

407 F. Supp. 261

UNITED STATES of America, Plaintiff, v. Henry McComb WINCHESTER, Jr., Defendant.

Crim. A. No. 75-105.

United States District Court, D. Delaware.

December 24, 1975.

COPYRIGHT MATERIAL OMITTED

W. Laird Stabler, Jr., U. S. Atty., and Alan J. Hoffman, Asst. U. S. Atty., Dept. of Justice, Wilmington, Del., for plaintiff.

David N. Webster and Robert P. Watkins, of Williams, Connolly & Califano, Washington, D. C., for defendant.

OPINION

MURRAY M. SCHWARTZ, District Judge.

Henry McComb Winchester ("Winchester"), a former director of the Wilmington Federal Housing Administration ("FHA") office, was charged in a 131-Count indictment on July 9, 1975.¹ Winchester has filed the following motions² which, after briefly describing the indictment, are treated seriatim:

A. A motion to sever certain Counts of the indictment

B. A motion to dismiss Counts 40 through 58 for failure to state an offense

C. A motion to dismiss Counts 97 through 129 because of their failure to inform defendant of what he must meet

D. A motion for disclosure of grand jury records and

E. A motion for discovery.

Generally, the indictment arises out of two alleged schemes in which Winchester and other participants defrauded the Government. One scheme allegedly concerned bid-rigging activities on the part of Winchester and unindicted co-conspirator John F. Kelleher ("Kelleher"). The second scheme is supposed to have entailed Winchester's use of his influence as FHA director on behalf of unindicted co-conspirators Frank P. Pullella and David Pierce. Specifically, the indictment charges that Winchester set up a system of fraudulent and noncompetitive bidding on Department of Housing and Urban Development ("HUD") general contracting work so that companies controlled by Kelleher could submit the lowest bid and thus obtain work. According to the indictment, Kelleher was at the time of the alleged offenses an "area management broker" employed by the Department of Housing and Urban Development.³ In addition, Kelleher allegedly held a substantial financial interest in three construction companies which regularly submitted bids on HUD contracting work. The counts of the indictment dealing with Winchester's Kelleher-connected activities allege violations of several statutes: conspiracy: 18 U.S.C. § 371 (Count 1); conspiracy to defraud the government with respect to claims: 18 U.S.C. § 286 (Count 4); accepting bribes and gratuities: 18 U. S.C. § 201(c) (Counts 13-20); aiding and abetting false statements on matters within government agency jurisdiction: 18 U.S.C. § 2 and § 1001 (Counts 21-39); aiding and abetting submission of false claims to HUD: 18 U.S.C. § 2 and § 287 (Counts 40-58); aiding and abetting a conflict of interest: 18 U.S.C. § 2 and § 208 (Counts 59-96); and submitting false statements to HUD: 18 U.S. C. § 1010 (Counts 97-129).

The indictment contains additional allegations that the defendant accepted bribes or gratuities in exchange for the use of his influence to gain the selection of Frank P. Pullella and David L. Pierce as general contractor and packager⁴ on Banecker Heights and Whatcoat Community Development — "both multi-family housing projects insured under the National Housing Act." Indictment, Docket No. 1 at 10. Winchester is also accused of accepting payments in exchange for aid in "processing and packaging" the Whatcoat project, and in return for granting "favorable labor decisions" with respect to both projects. Id. The Grand Jury additionally charged that Winchester attempted to obstruct justice and a criminal investigation by trying to persuade Pullella "to give false testimony" before the Grand Jury and attempting to prevent Pullella from communicating his knowledge of criminal activities to the ongoing investigation. Id. at 15. The crimes alleged in Counts 5-12⁵ involving Pullella and Pierce are as follows: obstruction of justice: 18 U.S.C. § 1503 (Count 5); obstruction of criminal investigation: 18 U.S.C. § 1510 (Count 6) and accepting bribes and gratuities: 18 U.S.C. § 201(c) and (g) (Counts 7-12).

Finally, defendant Winchester is charged with the willful filing of false income tax returns for the calendar years 1970 and 1971, a violation of 26 U.S.C. § 7206(1) (Counts 130 and 131).

A. Motion for Severance

Defendant alleges misjoinder of the counts pursuant to Fed.R.Crim.P. 8(a) and prejudicial joinder within the meaning of Fed.R.Crim.P. 14.

Initial consideration must be given to defendant's Rule 8(a)⁶ contentions since "Rule 14 dealing with relief from prejudicial joinder only comes into play after it has first been determined that joinder was permissible under Rule 8. . . ." United States v. Graci, 504 F.2d 411, 413 (3d Cir. 1974). Even in the absence of prejudice, Rule 8 defines the permissible limits of a joint trial of offenses. Id. at 413. "Rule 8 is an attempt to set the limits of tolerance, and any joinder which does not fall within it is per se impermissible." King v. United States, 355 F.2d 700 (1st Cir. 1966); accord, Graci, supra at 413; see 8 J. Moore, Federal Practice ¶ 14.021 at 14-3 (1975 ed.). Thus, the finding of a misjoinder would require the Court to sever the counts as a matter of course without regard to the merits of defendant's claims of prejudice under Rule 14.⁷

The defense contends that none of the three situations in which a Rule 8(a) joinder might be proper are present here and that "the counts involving Kelleher should be severed from the counts involving Pullella and Pierce . . . ." Defendant's Memorandum, Docket No. 8 at 2. This contention rests in part on an asserted distinction between the Kelleher-related bid-rigging activities, and the use of influence on behalf of Pullella and Pierce involved in most of the indictment's remaining counts. The defendant argues, the Government concedes, and the Court agrees that joinder of the totality of counts here cannot be justified by Rule 8(a)'s "based on the same act or transaction . . ." standard.

The question of whether the indictment's counts are "of the same or similar character . . ." or are based "on two or more acts or transactions connected together or constituting parts of a common scheme or plan" within the meaning of Rule 8(a) is a more difficult determination. There is no numerical limit on the joinder of offenses, although questions of prejudice under Rule 14 might be raised. 8 J. Moore, Federal Practice ¶ 8.052 at 8-18 (1975 ed.). The parties have presented the Court with two disparate mechanical theories concerning the way in which Rule 8(a) orders the relationships of the various offenses charged.

The defendant views the counts as falling into two natural and unrelated groups representing "two separate and distinct courses of conduct." Not unexpectedly, one group is said to touch upon the Kelleher bid-rigging activities, while the other centers upon the defendant's alleged involvement with and on behalf of Pullella and Pierce. The prosecution eschews this characterization of the charged offenses and urges the indictment's counts not "be split based upon witnesses as opposed to based upon offenses committed by the defendant." The Government's analysis results in a breakdown of the offenses into two categories: bribery charges under 18 U.S.C. § 201 and bid-rigging related charges under 18 U.S.C. §§ 286, 287, 1001 and 1010. The Government next argues that all of the bribery charges meet the "similarity" test, while the bid-rigging charges come within both the "similarity" and "connected transactions or common scheme" standards. In a final logical leap of faith, the Government asserts that the two offense groups, bribery and bid-rigging, fall under the same umbrella characterization because they concern "violation of integrity of public office . . . ."

While United States v. Barrett, 505 F.2d 1091 (7th Cir. 1975), cited by the Government, upheld the joinder of mail fraud, bribery, and tax evasion charges on a theory that separate kickback schemes involving purchasing and insuring of voting machines "were two transactions connected by Barrett's use of his public office for private gain," it does not control the instant case.⁸ Moreover, Judge Stevens' dissenting opinion in Barrett, labeling the breach of public trust connection too "tenuous," is far more convincing in its analysis. The Government attempts to find further support for its theory of "abuse of office" as an indicator of Rule 8 commonalty in United States v. Weber, 437 F.2d 327 (3d Cir. 1970), cert. denied, 402 U. S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971). In Weber, a union business manager was convicted on six counts of an eight count indictment charging obstruction of interstate commerce by extortion, acceptance of bribes and conspiracy. The appellate court approved the Fed.R.Crim.P. 13⁹ consolidation of the two indictments which had produced the eight count trial, finding a common thread running through the counts:

". . . Common to all the counts of the consolidated indictment was Weber's alleged scheme to accept monies from contractors working in New Jersey and employing members of Weber's union." 437 F.2d at 331.

Weber's "plan," according to the court, had been "to control pipeline construction in New Jersey for his own pecuniary benefit . . . ." Id. at 333.

However, the Third Circuit found no such common thread in United States v. Graci, 504 F.2d 411 (3d Cir. 1974), reversing the district court's pre-trial exparte Rule 13 consolidation of two indictments. One indictment had charged conspiracy and substantive violations of 18 U.S.C. § 641 and § 642, alleging that the defendant had stolen and sold government property — in this case, depressant or stimulant drugs. The conspiracy, encompassing the two substantive violations as overt acts was alleged to have terminated on December 31, 1968. The second indictment alleged a one count violation of different statutory drug control provisions occurring on November 13, 1969. Although the...