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.
MOTIONS FOR SEVERANCE
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, 209 F. Supp. 907, 914 (E.D.Ill. 1962); United
States v. Burgio, 279 F. Supp. 843, 845 (S.D.N.Y. 1968).
Substantial prejudice has not been shown by any of the
defendants, and the motions are therefore denied.
The defendant Kaplan asserts, as a ground for severance,
that the codefendants may be called as witnesses against him.
The Government may not call any defendant as its own witness.
U.S.Const. Amend. V. The defendant Kaplan further asserts that
his defense and those of the codefendants are antagonistic.
This allegation is insufficient to compel severance where the
charges against all the defendants result from the same series
of acts or transactions, may be proven by the same evidence,
and there has been no factual showing of prejudice. United
States v. Lebron, 222 F.2d 531 (2nd Cir. 1955), cert. den.
350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774 (1955); United States v.
Van Allen, 28 F.R.D. 329 (S.D.N.Y. 1961).
The defendants Kaplan, Rogers, Beckom, W. Johnson and Allen
claim that severance is required because their codefendants
have made statements to the Government. This is an
insufficient ground for compelling severance. United States v.
Glasser, 116 F.2d 690, 701 (7th Cir. 1941); United States v.
Kramer, 355 F.2d 891, 899 (7th Cir. 1966), rev'd in part on
other grounds, 384 U.S. 100, 86 S.Ct. 1366, 16 L.Ed.2d 396
(1966). The defendants have not shown this court that, should
any such statements be offered into evidence, proper limiting
instructions or, if necessary, a careful editing by the court
would not eliminate any prejudicial effects upon the other
defendants. See Delli Paoli v. United States, 352 U.S. 232, 77
S.Ct. 294, 1 L.Ed.2d 278 (1957).
The defendants Rogers, Beckom and W. Johnson seek severance
because a joint trial will allegedly frustrate their desire to
call certain codefendants as witnesses. This unsubstantiated
allegation is inadequate to compel severance. Gorin v. United
States, 313 F.2d 641 (1st Cir. 1963); Smith v. United States,
385 F.2d 34 (5th Cir. 1967); Kolod v. United States,
371 F.2d 983 (10th Cir. 1967). None of the defendants have shown, nor
even asserted that (1) the testimony of any other defendant
would exculpate him, or that (2) any other defendant would be
more likely to testify on his behalf if he were tried
separately. E.g., United States v. Echeles, 352 F.2d 892, 898
(7th Cir. 1965).
The defendant W. Johnson indicates that he may be forced to
assert his privilege against self-incrimination should he be
called as a witness by a codefendant. This, also, is a purely
speculative assertion, insufficient to compel severance.
The defendant Kaplan claims prejudicial joinder because he
is not named in all the counts of the indictment. However, the
same evidence must be produced in any trial of the defendants
on both the substantive counts and the conspiracy count. The
defendant Kaplan was allegedly an integral part of the
underlying scheme to defraud. Separate trials would be a
burden upon the court, the juries, the witnesses and the
Government. The defendant has not shown this court that such
a considerable burden would be overbalanced by resulting
prejudice to him. United States v. Kahn, 381 F.2d 824 (7th
The defendant W. Johnson claims he will be prejudiced by
trial with persons who have criminal records. This assumes
that the codefendants will take the stand or will introduce
evidence of their good character. Even assuming this,
introduction of the criminal records of a codefendant is not
per se a ground for severance. United States v. Turner,
274 F. Supp. 412 (E.D.Tenn. 1967); United States v. Hanlin, 29
F.R.D. 481 (W.D.Mo. 1962).
The defendants Rogers and Beckom claim that they will be
prejudiced by the volume of testimony to be presented at
trial, and, further, that it will be impossible for the jury
to segregate and set apart particular evidence as
to them. However, the court finds that the subject matter of
the indictment is not of such a complex or technical nature as
to make the jury's task of separately assessing the evidence
relating to each defendant impossible or unduly complex.
United States v. Kramer, supra, 355 F.2d at 899. The defendants
have failed to carry their burden of showing this court that
they will not be able to obtain a fair trial if severance is
not obtained. United States v. Haim, 218 F. Supp. 922 (S.D.N Y
1963); Hall v. United States, 83 U.S.App.D.C. 166,
168 F.2d 161, 4 A.L.R.2d 1193 (1948), cert. den. 334 U.S. 853, 68 S.Ct.
1509, 92 L.Ed. 1775 (1948).
Finally, the defendants Rogers and Beckom allege that they
will be prejudiced because of the publicity and notoriety that
the trial will receive. They do not offer any substantiation
for this allegation, nor do they make any showing of possible
prejudice. Without such a showing, a mere allegation of
prejudicial publicity is insufficient to compel a severance.
United States v. Kahn, 381 F.2d 824 (7th Cir. 1967); United
States v. Tanner, 279 F. Supp. 457 (N.D.Ill. 1967).
MOTIONS FOR DISCOVERY AND INSPECTION
The defendants Kaplan, Rogers, Beckom, W. Johnson, and S.
Johnson have moved this court for discovery and inspection
pursuant to Rule 16, Federal Rules of Criminal Procedure. The
Government has agreed to produce a number of the matters
requested. Government's Answer to Preliminary Motions, pp.
9-10; Government's Supplemental Answer, p. 2. Only those
requests remaining for this court's ruling will be discussed.
The defendant Kaplan moves to inspect and copy all books,
records, X-ray reports, and documents which he alleges were
seized from his office by the Government (Paragraph 3). The
Government has not responded to this request specifically. A
determination of what, if anything, was taken from his office
clearly appears to be material to the preparation of the
defendant Kaplan's defense, particularly in view of his motion
to suppress pending before this court. If any such items are
in the Government's possession, it is entirely reasonable that
the Government be required to produce them for purposes of
discovery and inspection. Rule 16(b), Federal Rules of
Criminal Procedure. Therefore, this portion of the defendant
Kaplan's motion is granted.
The defendant Allen moves to inspect and copy wage
verifications, medical bills and reports pertinent to his
alleged participation in any accident which is the subject
matter of this indictment (Paragraph 10). This particularized
request also appears to meet the requisite Rule 16(b)
standards of materiality and reasonableness, and this portion
of the defendant Allen's motion is therefore granted.
The defendant S. Johnson moves to inspect and copy inter
alia, the letters (and envelopes in which they were contained)
referred to in Count I, paragraph 14, and Counts II through XVI
of the indictment (Paragraph 3a); all medical bills and reports
referred to in paragraph 10 and 11 of Count I of the indictment
(Paragraph 3b); all wage loss verifications referred to in
paragraphs 12 and 13 of Count I of the indictment (Paragraph
3c). With the exception of the letters referred to in Counts
III, IV, VII, IX, X, XI, XII, XIV, XV and XVI in which the
defendant S. Johnson is not named, these particularized
requests also appear to meet the requisite Rule 16(b) standards
of materiality and reasonableness. The remaining portions of
these requests are therefore granted.
In order to show the materiality of his request for
"documents purporting to show defendant's criminal records,"
the defendant S. Johnson's attorney has represented to this
"[n]otwithstanding the fact that defendant may
reasonably be presumed to be acquainted with his
own prior criminal record, if any, he is
in law and is unable to determine whether prior
charges against him were or were not felonies,
and he is unable to remember case numbers or
otherwise provide counsel with information
necessary to an intelligent determination as to
whether or not he should testify at the trial. *
Upon counsel's representations, this court finds that
materiality has been shown. The Government is therefore
ordered to produce for discovery and inspection the defendant
S. Johnson's F.B.I. "rap sheets."