US v. Gilpin, 87 CR 909.
| Decision Date | 11 February 1988 |
| Docket Number | No. 87 CR 909.,87 CR 909. |
| Parties | UNITED STATES of America, Plaintiff, v. Woodrow GILPIN, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Michael J. Shepard, Zaldwaynaka L. Scott, U.S. Attorney's Office, U.S. Dept. of Justice, Chicago, Ill., for plaintiff.
Elliot M. Samuels, Chicago, Ill., for defendant.
The defendant has filed five pretrial motions in this criminal action. For the reasons set forth below, each of these motions is denied.
During an informal interview with an agent of the Federal Bureau of Investigation (FBI) on June 11, 1987, the defendant allegedly made certain false statements regarding the theft of his van in early November, 1985 and his subsequent insurance claim. At the time this interview transpired, the FBI suspected the defendant of participating in an insurance "give-up" scheme.1 The defendant was indicted for his alleged participation in this scheme subsequent to this interview. That conduct is the subject of conspiracy and mail fraud charges contained in counts one through five of the indictment in this action.
Based on the statements he made during his interview with the FBI agent, the defendant was also charged in count six of the indictment with violating 18 U.S.C. § 1001. Section 1001 provides:
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
The defendant now urges this Court to dismiss count six of the indictment. He argues that Section 1001 does not apply to statements made by a defendant which merely amount to exculpatory denials of guilt. This restrictive interpretation of Section 1001 has become known as the "exculpatory no" doctrine. See United States v. King, 613 F.2d 670, 674 (7th Cir. 1980); United States v. Isaacs, 493 F.2d 1124, 1158 (7th Cir.1974), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974).
As the Government points out, in this circuit, the "exculpatory no" doctrine has been read very narrowly. King, 613 F.2d at 674. Its application is limited to "simple negative answers ... without affirmative discursive falsehood." Id.; see also Isaacs, 493 F.2d at 1158. The doctrine cannot be applied to "positive, affirmative statements calculated to pervert the authorized functions of government." Id.
In this case, neither the defendant nor the Government has recounted the substance of the alleged statements in any detail. The defendant summarily asserts that during the interview in question, he "persisted in asserting that his van was stolen."2 The Government merely counters with the assertion that "the allegations of the indictment ... do not on their face state that the lies told by the defendant came only in the form of negative answers." Thus, whether the defendant made these assertions by positive, affirmative statements, rather than by a series of "exculpatory no" answers to the FBI agent's questions, remains unclear. Nonetheless, in this Court's opinion, these sketchy allegations do not provide an adequate factual basis for dismissal of count six of the indictment based on the application of the "exculpatory no" doctrine.3
Moreover, even if the defendant had supported his motion with more factually detailed allegations, this Court still would be inclined to deny the motion, as it prematurely seeks to resolve an issue which turns on the specific facts of this case. As one court recently noted in denying a motion to dismiss an indictment charging a violation of Section 1001 based on the "exculpatory no" doctrine:
In effect, the defendant, rather than challenging the sufficiency of the indictment, is seeking a review of the sufficiency of the government's evidence prior to trial. At the motion to dismiss the indictment stage, however, we cannot decide as a matter of law something which turns on specific facts of this case. The testimony at trial may be precisely the same as the FBI reports. Then again, it may not. In any event, an indictment sufficient on its face cannot be successfuly challenged on the basis that the government may not meet its burden of proof.
United States v. Antonucci, 663 F.Supp. 243, 245 (N.D.Ill.1987) (emphasis in original).
We agree with this reasoning. In this case, count six of the indictment contains the five essential elements of an offense charged under Section 1001. See United States v. Petullo, 709 F.2d 1178, 1180 (7th Cir.1983). Consequently, on its face, count six of the indictment is legally sufficient. See Antonucci, 663 F.Supp. at 245. The defendant's motion to dismiss is therefore denied.
In the alternative, the defendant moves to sever count six from the remaining counts of the indictment. In support of this motion, the defendant argues that the Section 1001 false statements charge in count six of the indictment bears little, if any, relationship to the conspiracy and mail fraud charges in the remaining counts of the indictment. The defendant also contends that requiring him to simultaneously defend the conspiracy and mail fraud charges and the Section 1001 false statements charge will impair his presumption of innocence and permit the jury to infer guilt based upon the opinions of the FBI agent who interviewed him, rather than the facts. This Court disagrees.
In deciding whether to grant or deny a severance, we must read Rule 8 of the Federal Rules of Criminal Procedure in conjunction with Rule 14 of the Federal Rules of Criminal Procedure and weigh the competing considerations of these rules. See Isaacs, 493 F.2d at 1160. Rule 8 promotes judicial economy and efficiency by liberally permitting joinder of two or more offenses in the same indictment if they are based on the same act or transaction, or on two or more acts or transactions connected together. Fed.R.Crim.P. 8(a). Rule 14, on the other hand, protects a defendant from prejudicial joinder. Fed.R.Crim.P. 14.
In this case, a balancing of the competing considerations of these rules favors joinder of the offenses. First, the offenses charged in counts one through five (conspiracy and mail fraud) arise out of the same overall transaction or insurance "give-up" scheme as the charge in count six (false statements under Section 1001). There is a logical relationship between both sets of charges. Second, counts one through five and count six will require common elements of proof, making a strong case for joinder. See Isaacs, 493 F.2d at 1159. Finally, we do not see how the FBI agent's testimony relating to the false statement will impair the defendant's presumption of innocence any more than the agent's testimony relating to the conspiracy and mail fraud charges. After hearing the evidence and receiving instructions on the applicable law, the jury can choose to believe or not believe that the defendant made false statements to the FBI within the ambit of Section 1001. Thus, the danger of unfair prejudice, if it exists at all, is minimal. For these reasons, this Court denies the defendant's motion to sever count six from the remaining counts of the indictment.
The defendant seeks an order requiring the Government to produce evidence concerning any inducements, promises, and compensation to prospective government witnesses, pursuant to the principles enunciated in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This motion is denied as moot based upon the Government's representation that it is unaware of the existence of any such information or materials, but will comply with its obligations to produce such information or materials if any become known.
The defendant also seeks an order requiring the Government to make inquiry and disclose all evidence which may lead to the impeachment of any government witnesses, in accordance with the dictates of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). This motion is also denied as moot based upon the Government's representation that it has already produced information within the scope of this request and recognizes its continuing obligation to do so should any additional information of this kind become known.
The defendant seeks an order requiring the Government to give notice of its intention to use in its case-in-chief evidence of other crimes, wrongs, or acts pursuant to Rules 404(b) and 608(b) of the Federal Rules of Evidence. The Government has represented that it will comply with this request "as far in advance of trial as practicable." To the extent that the Government has done so, this motion is denied as moot. If, however, the Government has not given adequate notice of its intention to introduce such evidence, it will be foreclosed from using such evidence in its case-in-chief at trial.
The defendant has requested an order compelling the Government to establish, by way of a written proffer prior to trial, the admissibility of co-conspirator statements under Rule...
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US v. Keller
...be excluded under that doctrine would require consideration of details and facts not contained in the indictment. United States v. Gilpin, 678 F.Supp. 1361, 1363 (N.D.Ill.1988). The allegations of the indictment are generally insufficient to determine if defendants gave simple negative answ......