United States District Court, Northern District of Illinois, E.D
November 21, 1969
UNITED STATES OF AMERICA, PLAINTIFF,
MICHAEL MAHANY AND CARMEN MIGLIORE, DEFENDANTS.
The opinion of the court was delivered by: Robson, District Judge.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS THE
INDICTMENT, FOR A BILL OF PARTICULARS, AND FOR DISCOVERY AND
Michael Mahany and Carmen Migliore are charged in a three-count
indictment with a scheme to defraud by use of the mails in
violation of 18 U.S.C. § 1341. It is alleged that Mahany was a
distributor of Humble Oil and Refining Co. (Humble), doing
business as Mike's Enco Station (Mike's), in Oak Lawn, Illinois,
and that he was authorized to sell products on credit by use of
credit cards issued by Humble, Cities Service Oil Co. (Citgo),
and Midwest Bank Cards (Midwest).
It is also alleged that Mahany and Migliore, together with two
unindicted individuals, Robert Silverman and Lawrence R. Beckman,
devised a scheme to defraud and to obtain money from Humble and
three individual credit card holders, Charles W. Moore, Myer
Rosenberg Prem, and Fred L. Williams. The scheme is alleged to
have involved the preparation by the defendants and the others of
false sales slips evidencing credit from Mike's for sales to
authorized credit card holders without their consent or knowledge
and the delivery of the slips to Humble and subsequently to Citgo
and Midwest by Humble. It is further alleged that the four
falsely represented that these were actual credit card
transactions and that they reasonably foresaw that the mails
would be used by Humble, Citgo and Midwest to send the fraudulent
slips to the authorized credit card holders. It is also alleged
that the delay that such mailing entailed was utilized by the
defendants to conceal their fraudulent activities and was an
actual part of the scheme.
Count One charges that on March 1, 1968, the defendants, for
the purpose of executing the above scheme to defraud, caused a
letter containing a fraudulent sales slip sent by Humble to
Charles W. Moore to pass through the United States mails. Counts
Two and Three state similar charges as to two other mailings by
Motion To Dismiss The Indictment
Defendants Mahany and Migliore have moved to dismiss the
indictment on the grounds that it does not advise them of the
offense with sufficient specificity, that it is vague and
uncertain, that there are not sufficient factual allegations,
that Counts One, Two and Three are multiplicious, that Count Two
is duplicious, and that the indictment as a whole fails to charge
a violation of 18 U.S.C. § 1341.
The indictment sets out in detail a scheme to defraud, and each
count substantially incorporates the wording of 18 U.S.C. § 1341.
The dates of the mailings, the individuals defrauded, unindicted
coconspirators, the statute violated, and the essential facts
constituting the offense are clearly stated. The defendants are
sufficiently apprised of the offense charged against them, there
is no uncertainty, and all the requirements of Rule 7(c) of the
Federal Rules of Criminal Procedure are met.
Further, Counts One, Two, and Three state separate and distinct
mailing offenses involving the same scheme to defraud. Since each
mailing is a separate offense under Section 1341, the counts
cannot be dismissed as multiplicious. Likewise, Count Two cannot
be dismissed as duplicious — it states a single offense, one
mailing pursuant to a scheme to defraud.
Finally, this court is of the opinion that an offense under
Section 1341 properly has been alleged. Defendants argue that the
mailing alleged in each count of the indictment could not have
been "for the purpose of executing" the scheme to defraud as
required by Section
1341 because the fraud alleged had already reached fruition and
the victims' money obtained prior to the mailings. They rely on
Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d
1277 (1960), and Kann v. United States, 323 U.S. 88, 65 S.Ct.
148, 89 L.Ed. 88 (1944), both of which reversed mail fraud
convictions on the basis urged here. This court is of the
opinion, however, that the present case is governed by the
subsequent opinion of the Supreme Court in United States v.
Sampson, 371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). In that
case, the court made it clear that the Kann and Parr cases cannot
be taken for the proposition that once a defendant has obtained
what he set out to obtain by fraud no subsequent mailing would
properly constitute a violation of Section 1341. Rather, the
court reversed a dismissal of an indictment charging a mail fraud
scheme because "the defendants' scheme contemplated from the
start the commission of fraudulent activities which were to be
and actually were carried out both before and after the money was
obtained from the victims." Sampson, supra, 371 U.S. at 80, 83
S.Ct. at 176. The scheme there was a continuing one and involved
the use of "lulling letters" sent to victims after the fraud had
The Sampson rationale subsequently has been applied to specific
credit card mail fraud prosecutions. See Adams v. United States,
312 F.2d 137 (5th Cir. 1963); Kloian v. United States,
349 F.2d 291 (5th Cir. 1965), cert. den., 384 U.S. 913, 86 S.Ct. 1349, 16
L.Ed.2d 365 (1966); United States v. Kelem, 416 F.2d 346, Ninth
Circuit Court of Appeals, September 22, 1969. In each case, the
court of appeals upheld the conviction finding that a scheme to
defraud based on the workings of a credit card system
contemplated subsequent use of the mails and that therefore the
requirements of Section 1341 were met.
Here the indictment alleges that the defendants reasonably
foresaw the use of the mails by Humble and that the alleged delay
in the mailings was a part of the scheme to defraud in that it
enabled the defendants to conceal the scheme and to continue it.
These allegations are sufficient to constitute an offense under
Section 1341 as interpreted in Sampson. See especially Adams v.
United States, supra, 312 F.2d at 140. Further inquiry into the
merits of the allegations would be, of course, premature since
the "indictment must be tested by its sufficiency to charge an
offense" only. United States v. Sampson, supra, 371 U.S. at 79,
83 S.Ct. at 175. The motion to dismiss the indictment is
Motion for A Bill Of Particulars
Defendants Mahany and Migliore have moved this court for a bill
of particulars. They have made numerous requests which are in
1. The exact time and place and the names of the
persons present when the scheme to defraud was
devised. (Requests 1 and 2)
2. The exact time and place and the names of those
present when sales slips were prepared and when
they were delivered to and received by Humble,
Citgo and Midwest. (Requests 3-8)
3. The exact time and place when alleged false
representations were made to Citgo and Midwest and
when the alleged debt of Mahany to Humble came
into existence. (Requests 9 and 10)
4. How the use of the mails enabled Mahany to
continue the scheme and escape detection.
(Requests 11 and 12)
5. Who mailed and who received the slips referred to
in each of the three counts, the exact time and
place of each mailing, and the means used to
knowingly cause the United States Post Office to
deliver them. (Requests 13-16, Count II 1-4, Count
The functions of a bill of particulars under Rule 7(f) of the
Rules of Criminal Procedure are to provide a defendant with
additional facts necessary to prepare a proper defense and to
avoid prejudicial surprise at trial and also to protect a
defendant from possible double jeopardy. See, e.g., United States
v. Smith, 16 F.R.D. 372, 374-375 (W.D.Mo. 1954); United States v.
Birrell, 263 F. Supp. 113, 115 (S.D.N.Y. 1967), and cases cited
therein. The indictment sets out the scheme to defraud in great
detail and specifically charges three instances of mail fraud
giving exact dates and persons defrauded. Defendants' requests
for further facts all involve either evidentiary details, the
names of witnesses, or the Government's theory of the case. These
matters are not discoverable as of right by a bill of particulars
but are within this court's sound discretion. United States v.
Wells, 387 F.2d 807
(7th Cir. 1968); United States v. Micele,
327 F.2d 222
(7th Cir. 1964). From the circumstances, it is clear
that no further evidentiary details are necessary here either to
prepare a proper defense, to avoid prejudicial surprise, or to
defend against further prosecution for the same offense. Thus the
motion for a bill of particulars is denied.
Motion For Discovery And Inspection
Defendants have made numerous requests for discovery and
inspection. The Government denies that it has most of the
requested documentary evidence to be used at trial or any
exculpatory evidence, but has agreed to turn such evidence over
to the defendants as soon as it comes into its possession. The
Government has also agreed to turn over handwriting exemplars of
defendants which it intends to use at trial. Five contested
Requests 1, 2, and 3 of defendant Mahany seek all written or
recorded statements of codefendant Carmen Migliore, all oral
statements made by Migliore and reduced to writing, and a
transcript of his grand jury testimony. Statements of a
codefendant are not discoverable under Rule 16 of the Federal
Rules of Criminal Procedure, United States v. Westmoreland, 41
F.R.D. 419, 427 (S.D.Ind. 1967), or on any other basis, Morgan v.
United States, 380 F.2d 686, 698-699 (9th Cir. 1967). Further,
the defendant has shown no particularized need for the grand jury
testimony of Migliore as required by Dennis v. United States,
384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). Therefore,
requests 1, 2 and 3 are denied.
In request 14, the defendants seek copies of all books, papers,
documents and tangible objects which the Government will use as
exhibits or evidence at trial. The requisite showing of
materiality and reasonability pursuant to Rule 16(b) has not been
made. The defendant is "merely attempting to discover all of the
Government's evidence in advance of trial." United States v.
Johnson, 298 F. Supp. 58, 65 (N.D.Ill. 1969); United States v.
Smith, 209 F. Supp. 907, 913 (E.D.Ill. 1962). Thus, request 14 is
In request 15, the defendants ask for F.B.I. sheets showing
prior criminal records of Migliore, Silverman, Beckman and all
Government witnesses. This request is not permitted under Rule 16
or on any other basis. See, e.g., Hemphill v. United States,
392 F.2d 45, 48 (8th Cir. 1968); United States v. Cobb, 271 F. Supp. 159,
162 (S.D.N.Y. 1967). Request 15 is therefore denied.
It is therefore ordered that the motion to dismiss the
indictment, the motion for a bill of particulars, and the motion
for discovery and inspection be, and they are hereby denied.
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