The opinion of the court was delivered by: Robson, District Judge.
MEMORANDUM AND ORDER ON THE PRELIMINARY MOTIONS OF
DEFENDANTS WHIT JOHNSON, LESLIE S. KAPLAN, WILLIE ROGERS,
JOE LOUIS BECKOM, CURTIS ALLEN AND SID JOHNSON
This seventeen-count indictment was brought against eleven
defendants. Counts One through Sixteen charge all of the
defendants with devising a scheme to defraud numerous
insurance companies and self-insured corporations by staging
planned automobile and pedestrian accidents, and by thereafter
presenting fraudulent claims by use of the United States
mails, in violation of 18 U.S.C. § 1341. Count One sets forth
the scheme. The defendants, and other persons induced by them,
allegedly faked accidents and filed inflated claims in which
they claimed to be victims of both legitimate and fabricated
accidents. The defendants then caused the victims of these
accidents to visit the offices of the defendant Leslie S.
Kaplan, a licensed physician, who, as part of the scheme,
prepared medical bills and reports reflecting nonexistent or
inflated treatment and medication. The reports prepared by Dr.
Kaplan also allegedly reflected nonexistent or inflated
injuries. The defendants then allegedly submitted the false
medical bills and reports to an attorney, insurance companies,
and self-insured corporations named in the indictment. All of
the defendants except Leslie S. Kaplan allegedly prepared false
wage loss verifications arising out of the planned accidents.
These allegedly fraudulent claims were also submitted to an
attorney, insurance companies, and self-insured corporations.
Count One further charges that for the purpose of executing
the alleged scheme, certain named defendants knowingly placed,
or caused to be placed, in the United States mails, on a given
date, a letter to a named addressee. Counts Two through
Sixteen incorporate that portion of Count One setting forth
the alleged scheme. Each of these subsequent counts sets forth
a separate mailing, and each gives the date of the mailing,
the particular defendants who deposited or caused the deposit
of the letter in the United States mail, and the addressee.
Count Seventeen charges each and every defendant with
knowingly conspiring to commit the offenses set forth in
Counts One through Sixteen, and sets forth certain alleged
overt acts committed in furtherance of the conspiracy, in
violation of 18 U.S.C. § 371.
The defendants Whit Johnson, Leslie S. Kaplan, Willie
Rogers, Joe Louis Beckom, Curtis Allen and Sid Johnson have
submitted preliminary motions for this court's ruling.
MOTIONS TO DISMISS THE INDICTMENT
The defendants Kaplan, W. Johnson, Rogers, Beckom and S.
Johnson have moved this court to dismiss the indictment on the
ground that it lacks specificity. However, an indictment is
sufficient if it clearly sets forth the requisite elements and
essential facts of the offense charged. Rule 7(c), Federal
Rules of Criminal Procedure. The two essential elements of an
offense under 18 U.S.C. § 1341 are formation of a scheme with
intent to defraud, and the use of the United States mails in
furtherance of the scheme. Strauss v. United States,
347 F.2d 691 (7th Cir. 1965); United States v. White, 355 F.2d 909 (7th
Cir. 1966). The indictment outlines the scheme and specifically
describes the mailings. Therefore, this court finds that the
defendants are given sufficient information to enable them to
prepare their defenses and to plead any judgment in bar of
future proceedings. Friedman v. United States, 347 F.2d 697
(8th Cir. 1965); United States v. Shavin, 287 F.2d 647, 649, 90
A.L.R.2d 888 (7th Cir. 1961). The indictment clearly meets the
standards of Rule 7(c), and the motions are denied.
The defendant W. Johnson contends that the indictment should
be dismissed because of a delay between the commission of the
offenses charged and the return of the indictment. The
occurrences in question allegedly took place between November,
1964, and May, 1967. The indictment was returned on September
5, 1968. Prosecution must be initiated within five years of
the alleged commission of a noncapital offense. 18 U.S.C.A.
§ 3282 (1954). The instant prosecution was clearly initiated
within the period of limitations. The defendant has not shown
any prejudice caused by the complained of pre-indictment delay.
Absent such a showing, a lapse of time within the statute of
limitations does not violate the defendant's rights, and the
motion is therefore denied. United States v. Deloney,
389 F.2d 324 (7th Cir. 1968); United States v. Curry, 278 F. Supp. 508
The defendant S. Johnson claims that the indictment should
be dismissed because the Government is guilty of purposeful
delay in initiating this prosecution. To substantiate this
claim, the defendant Johnson asserts that one William Kaper
was indicted on January 1, 1966 (66 CR 44), for allegedly
violating the same mail fraud statute. After pleading nolo
contendere, on May 13, 1966, Kaper received a suspended
sentence, was placed on probation for two years, and fined
$2,000. On March 8, 1967, Kaper's probation was terminated. The
defendant S. Johnson states that he believes that prior to May,
1966, Kaper was working for the Government as an informer, and
that the Government delayed the instant indictment in order to
utilize Kaper's services and rehabilitate
him so that he would appear more credible as a Government
witness. These conclusory allegations fail to establish bad
faith or purposeful delay on the part of the Government. The
offenses charged occurred over a three and a half year period,
continuing until May, 1967. Investigation of the numerous
incidents of mail fraud allegedly perpetrated by the eleven
defendants necessarily involved a great deal of time. This
court does not find that a year and several months can be
construed as an unreasonable or purposeful delay in light of
the investigation incident to the preparation of this case.
Nor does this court find that an allegation that the
Government utilized the services of an informant as a part of
this investigation establishes wrongful delay or bad faith.
Courts are reluctant to read wrongful motivation into the
exercise of prosecutorial discretion in the face of only
conclusory allegations. E.g., United States v. Hanrahan,
255 F. Supp. 957, 961 (D.D.C. 1966), aff'd Tynan v. United States,
126 U.S. App.D.C. 206, 376 F.2d 761 (1967), cert. den.
389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111 (1967); United States v.
Dichiarinte, 385 F.2d 333 (7th Cir. 1967).
The defendant Kaplan alleges that the indictment should be
dismissed because the sixteen separate counts "fragmentize"
the indictment. In order to determine whether just one offense
or multiple offenses are charged, the court must ascertain
whether each count requires proof of an additional fact which
the others do not so require. Harris v. United States,
237 F.2d 274, 276 (8th Cir. 1956); Creed v. United States,
283 F.2d 646 (10th Cir. 1960). Each count of this indictment
requires proof not common to the others, and the motion is
MOTIONS FOR BILLS OF PARTICULARS
The defendants S. Johnson, W. Johnson, Kaplan and Allen have
moved this court for extensive bills of particulars relating
to the defendants' implementation of the alleged scheme,
evidentiary details concerning the Government's case, and
prospective Government witnesses. These requests do not
clarify the charges contained in the indictment, but rather
seek disclosure of the Government's evidence prior to trial.
See United States v. Crisona, 271 F. Supp. 150, 155-157
(S.D.N.Y. 1967). It is within the discretion of the court to
deny requests for evidentiary details. United States v. Wells,
387 F.2d 807 (7th Cir. 1968); United States v. Micele,
327 F.2d 222 (7th Cir. 1964). Therefore, these portions of the
motions are denied.
The defendants seek transcriptions or reports prepared by
Government witnesses concerning conversations made during the
life of the scheme. Such statements are not subject to
production until the witnesses have testified at trial.
18 U.S.C. § 3500. These requests are therefore denied.
The defendants Kaplan and W. Johnson have requested the
criminal records, if any, of the codefendants and of the
Government's prospective witnesses. These requests are beyond
the scope of a bill of particulars, and are therefore denied.
Rule 7(c), Federal Rules of Criminal Procedure.
The defendants have moved this court for severances and for
relief from prejudicial joinder. The court finds that the
defendants were properly joined under Rule 8(b), Federal Rules
of Criminal Procedure, which allows joinder where the
defendants are alleged to have participated in the same act or
transaction constituting an offense. Severance of defendants
under Rule 14, Federal Rules of Criminal Procedure, is within
the discretion of the trial court. United States v. Kahn,
381 F.2d 824, 838 (7th Cir. 1967); Opper v. United States,
348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954). Where proof of
the charges against the defendants is dependent upon the same
evidence, as is the case here, severance should not be granted
except for the "most cogent reasons." United States v. Kahn,
States v. Smith, ...