United States v. Wolfson

• Citation: 294 F. Supp. 267
• Decision Date: 15 November 1968
• Docket Number: Crim. A. No. 1909.
• Parties: UNITED STATES of America, Plaintiff, v. Nathan WOLFSON, William F. Emmons, Albert Frost, James B. Thompson and Edward Fishbein, Defendants.
• Court: United States District Courts. 3th Circuit. United States District Court (Delaware)

294 F. Supp. 267

UNITED STATES of America, Plaintiff, v. Nathan WOLFSON, William F. Emmons, Albert Frost, James B. Thompson and Edward Fishbein, Defendants.

Crim. A. No. 1909.

United States District Court D. Delaware.

November 15, 1968.

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Alexander Greenfeld, U. S. Atty., and L. Vincent Ramunno, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

Donald C. Taylor, Wilmington, Del., for defendant, Nathan Wolfson.

William D. Bailey, Jr., Wilmington, Del., for defendant, William F. Emmons.

Noah L. Braunstein, New York City, for defendant, Albert Frost.

William T. Lynam, III, Wilmington, Del., for defendant, James B. Thompson.

Thomas C. Troy, Boston, Mass., for defendant, Edward Fishbein.

OPINION

LATCHUM, District Judge.

On June 7, 1968 the Grand Jury for this District returned a twenty-nine count indictment against Nathan Wolfson, William F. Emmons, Albert Frost, James B. Thompson and Edward Fishbein. The first count charged all five defendants with a conspiracy to violate the mail fraud statute, 18 U.S.C. § 1341. Counts two through twenty-nine charged the defendants with various substantive violations of the mail fraud statute.¹ Following the indictment, defendants filed a virtual flood of pre-trial motions —some twenty-five in number—which were subsequently consolidated for the purposes of briefing and argument. Since many of the motions are similar in nature, although in some instances based on different grounds, they will be considered under the general headings to follow.

I. Inspection Of Grand Jury Minutes

Defendants, Wolfson, Emmons, Frost and Fishbein, have moved for the production and inspection of the minutes of the grand jury proceedings which led to the indictment. Emmons desires that the Court make the inspection while the others wish to make their own examination. All of the motions are based generally upon the possibility that the Grand Jury may have considered either incompetent or illegal evidence or both.

Under Rule 6(e) of the F.R. Cr.P., disclosure of grand jury proceedings to someone other than a government attorney is authorized "only when so directed by the court preliminarily to or in connection with a judicial proceeding or * * * at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." But since the proceedings before the grand jury have been traditionally guarded in secrecy, the defendant must sustain the burden of showing a "particularized need" before the veil of secrecy will be lifted "discreetly and limitedly." Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958); United States v. Jaskiewicz, 272 F.Supp. 214 (E.D.Pa., 1967).

In the light of these principles, I think defendants have not made the required showing of "particularized need" in this case. Wolfson and Emmons² contend on information and belief that their depositions, taken in a related civil action in a State court, may possibly have been presented without their consent to the Grand Jury and that evidence obtained as a result of an illegal search and seizure may also have been considered. Hence, they argue that if the examination revealed this to be so then their Fifth Amendment privilege against self-incrimination and their Fourth Amendment right against unlawful searches and seizures were violated. Defendant Frost also specifically moved to inspect for the purpose of ascertaining whether the indictment was procured by the use of evidence illegally seized, whether the testimony before the grand jury concerning him was based on hearsay, surmise or conjecture and whether the testimony was of sufficient legal value to charge him with any offense.

The "particularized need" for the inspection of grand jury proceedings, either by the Court or the defendants, must be based on something more than mere speculation on the part of the defendants. The present motions are all bottomed on information and belief and the "mere assertion" that the possibility exists that illegal or incompetent evidence was considered by the Grand Jury. In my view this is not a sufficient showing to impel the Court to exercise its discretion to open the grand jury records so that the defendants may verify a "hunch" that the indictment is unsupported by any competent evidence. United States v. Papaioanu, 10 F.R.D. 517 (D.C.Del., 1950). Such requests, based on surmise and conjecture, are not sufficient to overcome the presumption that the Grand Jury acted on sufficient evidence. United States v. Weber, 197 F.2d 237 (C.A. 2, 1952).

Finding that the defendants have not made a sufficient showing to move the Court, in the exercise of its discretion, to order disclosure of the proceedings before the Grand Jury, the defendants' motions will be denied.

II. Motions To Dismiss

Defendants, Wolfson, Emmons and Fishbein, have moved to dismiss the conspiracy charge on the ground of duplicity. They contend that the first count improperly joins two separate and distinct substantive offenses, viz., a violation of 18 U.S.C. § 371 and 18 U.S.C. § 1341, contrary to Rule 8(a), F.R.Cr.P. which requires that "there be a separate count for each offense."

In my opinion, however, the defendants' contention is wholly without merit. A fair reading of Count one indicates that the gist of the offense charged is a conspiracy under 18 U.S.C. § 371. It states that the defendants "did unlawfully, wilfully and knowingly conspire, confederate and agree together * * * to commit an offense against the United States, that is to say, to use the mails * * * in furtherance of a scheme * * * to defraud * * * in violation of Title 18 United States Code, Section 1341 * * *." The count is not duplicitous when it contains allegations of the objects of the conspiracy, i. e. mail fraud violations, because it is well settled that a conspiracy, no matter how diverse its objects, is but one offense. Frohwerk v. United States, 249 U.S. 204, 210, 39 S.Ct. 249, 63 L.Ed. 561 (1919); Reno v. United States, 317 F.2d 499, 502 (C.A.5, 1963) cert. den. 375 U.S. 828, 84 S.Ct. 72, 11 L.Ed.2d 60; United States v. Boisvert, 187 F.Supp. 781, 784 (D.C.R.I., 1960). While it is true that 18 U.S.C. § 371 was not expressly referred to in Count one, the indictment was laid in the language of the conspiracy statute which is all that is required. United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953). Moreover, the omission of the citation of the conspiracy statute does not provide grounds for its dismissal when the omission has not misled the defendants to their prejudice, Rule 7(c), F.R.Cr.P. No contention or showing has been made of any prejudice, but, on the contrary, defendants' motions clearly show that they recognize that they were charged with a conspiracy under 18 U.S.C. § 371.

Defendant Fishbein also points out that at the end of the first paragraph of Count one the words "in violation of Title 18 United States Code, Section 1341" appear. From this he argues that the conspiracy statute prohibits conspiracies "to violate" and that the indictment using the alternate phrase "in violation of" is fatally defective. I cannot agree. The sufficiency of an indictment is determined by practical rather than technical considerations. Williamson v. United States, 310 F.2d 192, 195-196 (C.A. 9, 1962). The test is not whether it could not have been more artfully and precisely drawn, Scott v. United States, 231 F.Supp. 360, 363 (D.C. N.J., 1964), aff'd 342 F.2d 813 (C.A. 3, 1965), but rather its adequacy is measured by whether it contains the elements of the offense intended to be charged, whether it sufficiently apprises the defendant of what he must be prepared to meet, and in the event that subsequent proceedings are brought against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. United States v. Krepper, 159 F.2d 958, 968 (C.A. 3, 1946), cert. den. 330 U.S. 824, 67 S.Ct. 865, 91 L.Ed. 1275. Count one meets this test.

Defendants, Wolfson and Emmons, also moved to dismiss the entire indictment for the reason that their depositions, taken in civil actions pending in a State court, or information obtained therefrom, were possibly supplied to the Grand Jury without their consent in violation of their privilege against self-incrimination which is protected by the Fifth Amendment of the United States Constitution.

There is no record before this Court of the nature of the depositions taken, whether the disclosures made therein were in fact incriminating, or whether the depositions or information taken therefrom were laid before the Grand Jury. The whole matter is based completely upon conjecture and no authority has been cited to support the proposition advanced. But assuming the depositions were so used, it does not follow that defendants' privilege against self-incrimination was violated.

Defendants' Fifth Amendment privilege could have and should have been invoked at the time their civil depositions were taken if the defendants were reasonably apprehensive that their disclosures could be used in a criminal prosecution or could lead to evidence that might be so used. In re Gault, 387 U.S. 1, 47-48, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), quoting Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 94, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964) (White, J., concurring); Malloy v. Hogan, 378 U.S. 1, 3, 11-12, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1963), quoting Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). When the defendants proceeded to give their depositions without then claiming the privilege they thereby waived the...