In Count One, Mebust is charged with being in possession of all of the weapons found in the storage locker, which include the very weapons which are identified in Counts Two and Three. Moreover, since all of the weapons were found in locker 311, the government must prove that Mebust actually or constructively possessed the storage lockers to obtain a conviction on any of the three counts. Therefore, contrary to defendant's assertion, he is requesting two separate trials consisting of essentially the same evidence.
Furthermore, it is not clear that defendant will be prejudiced by trying these counts together. As the government correctly notes, several options are available to cure any prejudice. Specifically, (1) the fact of defendant's conviction could be introduced by a stipulation, (2) the court can give limiting instructions emphasizing that the jury must give separate consideration to each count of the indictment, and (3) more specifically, the jury could be instructed to only consider the prior conviction as it relates to Count One. These proposals are more than adequate to counter any prejudice, and are certainly preferable to squandering judicial resources by having two almost identical trials. See United States v. Balzano, 916 F.2d 1273, 1280-82 (7th Cir. 1990) (sanctioning the use of limiting instructions and noting that the trial court is in the best position to balance the costs of separate trials against possible prejudice to the defendant). Consequently, defendant's request to sever Count One from Counts Two and Three is denied.
Defendant also moves that Counts Four through Seven be severed from the first three counts due to improper joinder of different charges under Rule 8(a).
Mebust contends that these counts should be severed because they are not part of the same transaction or occurrence. The court disagrees.
Counts Four through Seven charge that on separate occasions from December 21, 1991, to January 23, 1993, Mebust made false statements to firearms dealers in violation of 18 U.S.C. § 922(a)(6),
in order to obtain firearms. Significantly, the government notes that all but one of the numerous firearms listed in these counts were recovered in locker 311 on June 18, 1993. The government claims that the acquisition and possession of the weapons are "inextricably intertwined concepts." (Government's Consolidated Response ("Response") at 9). The government also contends that joining all of these counts presents the whole scheme which involved acquiring and possessing firearms in violation of the law.
Based upon these representations, Counts Four through Seven concerning the false statements, are properly joined with Counts One through Three, the possession counts, because these events are "based on the same act or transaction" within the meaning of Rule 8(a). See United States v. Berardi, 675 F.2d 894, 899 (7th Cir. 1982) (explaining that "transaction" is a flexible concept which "may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship"). The court is also persuaded that were the counts severed, the separate trials would both require evidence of defendant's purchase and possession of the guns. (See Response at 10). Accordingly, defendant's motion and amended motion for relief from prejudicial joinder are both denied.
B. Dismissal of Counts Four and Six
Mebust contends that Counts Four and Six should be dismissed because "indictments charging two or more offenses in a single count are duplicitous." (Motion to Dismiss Counts Four and Six at 1). Specifically, defendant asserts that Count Four, a false statement count, should be pleaded in nine separate counts because it lists nine violations of 18 U.S.C. § 922(a)(6).
Likewise, defendant argues that Count Six, another false statement count, erroneously contains two separate and distinct violations of 18 U.S.C. § 922(a)(6) in a single count.
"A duplicitous count is one that charges more than one distinct and separate offense." Berardi, 675 F.2d at 897. However, a count is not duplicitous if it merely charges the commission of a single offense by different means. Id. Since this line is sometimes difficult to draw, the initial decision is left to the discretion of the prosecutor. Id. at 898.
Here, Count Four charges that from December 21, 1991, through July 2, 1992, Mebust falsely identified himself as Richard Dixon, and denied having a conviction for a felony on ATF Form 4473 in order to purchase guns from R Guns, in Carpentersville, Illinois. This count then lists the nine firearms which were bought. Similarly, Count Six charges that from January 1992 to May 1992, defendant made the same false statements on ATF Form 4473 in order to purchase guns from Dave's Guns, in Hampton, Illinois, and lists the two guns purchased. The government explains that "the acts are divided by gun dealer. The lies were identical in each case and for each gun." (Response at 22).
After reviewing the superseding indictment, the court finds that the government made a reasonable decision to characterize the acts in Counts Four and Six as two separate offenses since the purchases were made from two separate gun dealers, and such characterization is not prejudicially duplicitous. In reaching this decision, the court notes that Mebust is adequately notified of the charges against him, he may not be tried again for these same false statements after a verdict is reached in this trial, and any evidentiary ruling applying to the purchase of one gun would apply to all. See Berardi, 675 F.2d at 899 (noting the dangers of a duplicitous count). Also, as the government points out, the court can ensure a unanimous verdict by instructing the jury that it "must be unanimous in . . . finding that the defendant did at least one of the acts charged . . . ." Id. (quoting jury instruction given by the trial court). Therefore, defendant's motion to dismiss Counts Four and Six is denied.
C. Dismissal Based upon Vindictive Prosecution
Mebust brings this pro se motion
to dismiss the last four counts of his indictment charging him with violations of 18 U.S.C. § 922(a)(6). Defendant claims that the December 14, 1993, superseding indictment containing the additional charges was sought in retaliation for his decision not to plead guilty on December 7, 1993. The court rejects this claim.
"A prosecution is vindictive and a Fifth Amendment due process violation if it is undertaken in retaliation for the exercise of a legally protected statutory or constitutional right." United States v. Dickerson, 975 F.2d 1245, 1251 (7th Cir. 1992). A presumption of vindictiveness does arise when the prosecutor brings a superseding indictment with increased charges after the defendant has been tried once and exercises his right to a trial de novo. Blackledge v. Perry, 417 U.S. 21, 28, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974).
However, as the government correctly notes, this presumption does not apply in the pretrial setting because the prosecutor has broad discretion in charging a defendant. United States v. Goodwin, 457 U.S. 368, 382, 73 L. Ed. 2d 74, 102 S. Ct. 2485 (1982). Therefore, to show prosecutorial vindictiveness, Mebust has the burden of proving that his prosecution was motivated by actual vindictiveness. See Dickerson, 975 F.2d at 1251. "To prove actual vindictiveness, there must be objective evidence of some kind of genuine prosecutorial animus." Id.
Such is not the case here. Despite defendant's assertion to the contrary, there is no evidence that the additional charges were brought because the prosecutor wanted to persuade him to plead guilty. Nor is there any evidence that the charges were brought because the prosecutor wanted to engage in self-vindication. See id. Mebust's reliance on the timing of the superseding indictment is insufficient. Defendant's unsupported allegation that the government possessed all necessary information six months before it brought the superseding indictment is also insufficient to permit an inference of actual vindictiveness. Consequently, defendant's pro se motion to dismiss for vindictive prosecution is denied.
D. Production of Agents' Notes
Mebust made an oral motion requesting the production of the agents' notes taken during the interview of the defendant and his previous attorney, Steven Decker. In his reply brief, defendant emphasizes that the government now seeks to use previously undisclosed statements that Mebust and Decker allegedly made to agents, and that this crucial information is subject to discovery. The government represents that defendant has already received the final, typed agents' reports concerning this interview. Moreover, the government contends that although these agents' notes have been retained, these handwritten notes are not discoverable under the Jencks Act, 18 U.S.C. § 3500.
Rule 16(a)(1) states in relevant part:
Upon request of a defendant the government shall disclose to the defendant and make available for inspection . . . that portion of any written record containing the substance of any relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent . . . .
Fed. R. Crim P. 16(a)(1)(A). However, oral statements made by a defendant which are later memorialized by a government agent, are not discoverable under Rule 16. See In re United States, 834 F.2d 283, 285-86 (2d Cir. 1987); United States v. Hoffman, 794 F.2d 1429, 1433 (9th Cir. 1986); United States v. Callahan, 534 F.2d 763, 765 (7th Cir. 1976). Such witness statements fall under § 3500 which provides that "no statement or report in the possession of the United States which was made by a government or potential government witness . . . shall be the subject of . . . discovery . . . until said witness has testified on direct examination in the trial of the case. " 18 U.S.C. § 3500(a). Clearly, under § 3500, Mebust is not entitled to the agents' notes until after they have testified on direct examination. Therefore, the court will not order the government to turn over the handwritten notes to defendant.
However, the government must submit the handwritten reports for in camera inspection so the court can determine whether any additional Giglio or Brady materials should be disclosed.
E. Government's Use of Defendant's Statements
On February 8, 1994, the government notified the defense of previously undisclosed statements which were allegedly made by Mebust and Decker during the February 2, 1993 interview. The government represents that Agent Ruzevich's two-page report (which is date July 15, 1993) was inadvertently omitted from the previously disclosed draft case report prepared by Agent Diamond. In general, Mebust moves to bar these alleged statements because the government's failure to disclose them violated Rule 16, and Fed R. Evid. 410
and Fed. R. Crim P. 11 precluding the admission of statements made during plea negotiations.
As noted in the preceding section, Rule 16 is not applicable here because defendant's alleged statements were incorporated in written witness statements which are subject to disclosure only under the Jencks Act. Thus, Rule 16 has not been violated.
Moreover, Rule 11(e)(6) precludes the use of "any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn." Fed. R. Crim P. 11(e)(6)(D). As the government correctly notes, the language of Rule 11 presumes that a government attorney is present during the plea negotiations.
Mebust contends that the alleged statements should still be barred because Assistant United States Attorney ("AUSA") Brenda Atkinson's reliance on the fact that she was not present "is hypertechnical if not disingenuous in avoiding the plain fact that on [February 2, 1993] Agent Diamond was conducting . . . plea negotiations under her direct supervision, control and authority." (Reply to Govt's Response to Def.'s Motion to Bar Use of Def.'s Statement at 2). Specifically, Mebust claims that when Mebust and Decker first arrived at the ATF office, "Agent Diamond immediately informed them that since Mr. Mebust was represented by counsel that Diamond was contacting [AUSA] Brenda Atkinson, as no agreement nor disposition would be reached without her authority and approval. " (Id. at 1). Also, while Decker and Mebust were conferring on "Agent Diamond's request for cooperation and assistance, Diamond told them he was calling the U.S. Attorney's Office."
(Id.) In addition, on February 12, 1993, Decker and AUSA Atkinson allegedly told Mebust's newly retained lawyer, David Mejia, that a plea bargain had been discussed in reference to the meeting on February 2, 1993. (Id. at 2).
Recently, in United States v. Springs, 17 F.3d 192, 1994 U.S. App. LEXIS 2655, 1994 WL 45477 (7th Cir. 1994), the Seventh Circuit noted that the phrase "with an attorney for the government" was added to the text of Rule 11 to prevent the interpretation that "an otherwise voluntary admission to law enforcement officials is rendered inadmissible merely because it was made in the hope of obtaining leniency by a plea." Id. at *2 (quoting Fed. R. Crim P. 11(e)(6) Advisory Committee's Note (1979 amendment)). The court then concluded that the "record showed Springs asked the interrogating officers about the effects of cooperation and voluntarily confessed to them." Id.
In the instant case, it is not clear that Mebust "voluntarily" made incriminating statements. Defendant claims that he acted in reliance upon Agent Diamond's assurances that the U.S. Attorney's Office had given him authority to engage in plea negotiations. Mebust also insists that the government was aware of the February 2, 1993 meeting, and later referred to the conversation that took place as "plea discussions." The government rejects these contentions,
but the court cannot resolve this issue without the benefit of a hearing. See Advisory Committee's Note to Fed. R.Crim P. 11(e)(6), 1979 Amendment (the addition of the language "with an attorney for the government" "does not compel the conclusion that statements made to law enforcement agents, especially when the agents purport to have authority to bargain, are inevitably admissible."). Therefore, defendant is granted a hearing on this issue.
F. Dismissal of the Superseding Indictment
Mebust moves to have his superseding indictment dismissed under Rule 6(b)(2) on the grounds that it was "returned by a grand jury in which one or more of the array was legally unqualified to return a true bill of indictment." (Motion to Dismiss Superseding Indictment at 1). This allegation is premised upon the fact that Robert Girardi, a member of the grand jury that returned defendant's superseding indictment, was himself indicted on January 20, 1994.
Mebust asserts that based "on information received by the defendant it is believed that Robert Girardi is not the only juror in the empaneled Special October 1992-I Grand Jury under investigation" and requests a hearing where the government must show that the superseding indictment was returned by a "properly constituted" grand jury. (Id. at 2).
In support, Mebust attaches the indictment against Girardi and a brief by the defendant in United States v. Wing, No. 93 CR 523-3, a case pending before Judge Duff where the defendant challenged his indictment on the same grounds. The Wing motion includes an unsworn, handwritten statement by Richard Gelsomino ("Gelsomino"). Gelsomino, a grand jury target and lifelong friend of Girardi, met with him on several occasions and was allegedly told by Girardi that at least 3 other jurors could be bribed to sway the grand jury.
(See Attachment to Def.'s Reply to Govt's Response to Motion to Dismiss Superseding Indictment).
In general, "an indictment returned by a legally constituted nonbiased grand jury, . . . if valid on its face, is enough to call for a trial of the charge on the merits and satisfies the requirements of the Fifth Amendment." Lawn v. United States, 355 U.S. 339, 349, 2 L. Ed. 2d 321, 78 S. Ct. 311 (1958). However, Rule 6(b)(2) provides:
A motion to dismiss the indictment may be based on objections to the array or on the lack of legal qualification of an individual juror . . . . An indictment shall not be dismissed on the ground that one or more members of the grand jury were not legally qualified if it appears from the record . . . that 12 or more jurors, after deducting the number not legally qualified, concurred in finding the indictment.
Fed. R. Crim P. 6(b)(2). Although disclosure of secret grand jury proceedings may be made upon a showing that grounds may exist for a motion to dismiss, the party requesting disclosure must "show a 'particularized need' for the grand jury materials." United States v. Peters, 791 F.2d 1270, 1283 (7th Cir. 1986) (quoting United States v. Sells Eng'g, Inc., 463 U.S. 418, 443, 103 S. Ct. 3133, 77 L. Ed. 2d 743 (1983)); See also Fed. R. Crim. P. 6(e). In general, "disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and . . . the burden of demonstrating this balance rests upon the private party seeking disclosure." Sells Eng'g, 463 U.S. at 443. Such a showing has not been made here.
In addressing this precise issue in United States v. Coffey, 854 F. Supp. 520, slip op. at 5-6 (N.D. Ill. 1994), Judge Plunkett recently held that "the facts merely indicate that a single grand juror who had been a lifelong friend of a Defendant leaked information about the proceedings to that Defendant in violation of Rule 6(e)." After reviewing the government's in camera submissions, this court agrees. First, contrary to Gelsomino's unsworn note, Girardi claimed that he never discussed selling grand jury information with any of the other grand jurors. In addition, each of the remaining grand jurors denied being approached by Girardi in this regard, and stated that Girardi did not take an active role or attempt to sway votes. Lastly, it appears that the leaked information did not involve the instant case at all. For these reasons, this court concludes that defendant has failed to make a particularized showing warranting a hearing or further inquiry into the grand jury materials. Therefore, defendant's motion to dismiss superseding indictment is denied.
G. Bar of "Other Acts or Other Crimes" Evidence
The government seeks to introduce that Mebust (1) obtained two FOID cards (which expired in 1982 and 1988) by making false and fraudulent statements, (2) used the fraudulent FOID cards to purchase five weapons (one of which was recovered in locker 311), (3) attempted to sell an AK-47 rifle to an acquaintance in March or April 1993, but later converted it to a machine gun and returned it locker 311 where it was recovered during the June 18, 1993 search, (4) asked the CI to help him look for Richard Dixon to ensure that Dixon wouldn't testify about defendant's use of the Dixon FOID card. Mebust moves for an order to bar the government from introducing evidence regarding the fraudulent FOID cards and defendant's alleged purchase of five guns, and his alleged statements to the CI about trying to locate Dixon.
Defendant's motion is denied.
Federal Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Fed. R. Evid. 404(b). Further such other crimes evidence is admissible if its probative value is not "substantially outweighed by the danger of unfair prejudice." Fed. R. Evid. 403. Thus, as the court noted in United States v. Tylkowski, 9 F.3d 1255, 1261 (7th Cir. 1993):
Admission of "prior bad acts" is appropriate under Rule 404(b) and [Rule] 403 if "(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury's finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice."