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U.S. v. OSINSKI

November 17, 2004.

UNITED STATES OF AMERICA, Plaintiff,
v.
WITOLD OSINSKI, WACLAW RYGIEL, WILLIAM KURCZODYNA, ZOFIA TURKIEWICZ, MARGARET FLORCZYK, SLA WOMIR SZCZEPANIAK, AGATA TOMAL MATYSIK, JERZY MATYSIK, ALEXANDER SIMONS, SERGUEI KOBETS, MIROSLAW GORECKI, KRZYZSTOF GORNIK, ARKADIUSZ TRUCHALSKI, LUDWIK TRUCHALSKI, MICHAL SKOPEK, and YEVGENIYA ZASLAVSKAYA, Defendants.



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendants' pre-trial motions. For the reasons stated below, we deny the motions in part and grant the motions in part. BACKGROUND

The Government has brought an indictment against the 18 co-defendants in this action alleging that they were involved in fraudulent schemes that entailed falsifying accident reports and obtaining insurance proceeds. Pretrial motions have been filed by Defendants Waclaw Rygiel ("Rygiel"), Michael Skopek ("Skopek"), Ludwik Truchalski ("L. Truchalski"), Slawomir Szczepaniak ("Szczepaniak"), Jerzy Matysik ("J. Matysik"), Wintold Osinski ("Osinski"), Zofia Turkiewicz ("Turkiewicz"), Miroslaw Gorechi ("Gorechi"), Serguei Kobets ("Kobets"), Arkadiusz Truchalski ("A. Truchalski"), Alexander Simons ("Simons"), Agata Tomal Matysik ("A. Matysik"), Margaret Florczyk ("Florczyk"), William Kurczodyna ("Kurczodyna"), and Yevgeniya Zaslavskaya ("Zaslavskaya").

  DISCUSSION

  We first note that we have reviewed the official court docket and it does not reflect that the Government has filed responses to some of Defendants' pre-trial motions. It is not clear whether it is the result of inadvertence on the Government's part or a clerical error by the Clerk's Office. In fairness we have given the Government leave to file a response to certain motions within a limited time period. We also note that several of the pre-trial motions that were filed by Defendants were not filed in a timely fashion and Defendants have not sought leave to file the motions beyond the deadlines provided by the court. However, again, in fairness we shall allow the filings and have addressed the motions below. Also, we grant Kurczodyna's motion to file additional pretrial motions and have addressed the motions below.

  I. Motions to Adopt

  Rygiel, L. Truchalski, Turkiewicz, Gorechi, A. Truchalski, Simons, Florczyk, Kurczodyna, and Zaslavskaya have filed motions to adopt the motions filed by their co-defendants. However, Defendants fail to specify which motions they are adopting. In a case such as this when there is a litany of pre-trial motions at issue it is improper for Defendants to adopt in general any motions that are relevant to their case. All the pre-trial motions are not necessarily equally applicable to all Defendants. Therefore, we deny Defendants' motions to adopt without prejudice. If a Defendant desires to adopt a motion filed by another Defendant, the motion must specify which motion is being adopted and we caution Defendants not to adopt all motions unless all the motions are applicable and relevant to their positions.

  II. Disclosure of Witnesses

  A. Truchalski, Simons, Kurczodyna, and Zalavskaya move to have the Government disclose its witnesses prior to trial. Defendants request an order directing the Government to provide a list of witnesses along with their addresses and telephone numbers. The Government indicates that it will provide a list of witnesses at a time "nearer to trial." However, the Government argues that the request is premature and that the Government is not obligated under Federal Rule of Criminal Procedure 16.1 to produce the list at this juncture. Thus, since Defendants merely seek a production of the list sometime prior to trial and the Government has represented to the court its willingness to produce the list sometime prior to trial, the motion requesting an order directing the Government to do so would serve no purpose and the motion is moot at this juncture.

  Turkiewicz, Simons, and Rygiel have filed motions seeking the disclosure of expert witnesses and information concerning the witnesses. The Government acknowledges that it is obligated to disclose its expert witnesses and indicates that it will do so when directed by the court. Simons requests that the court order the Government to make expert disclosures 60 days prior to trial. Since the Government has voiced no objection to such a date we shall grant Simons' request and order the Government to make expert disclosures and provide the necessary information 60 days before trial. Therefore, we grant the motions for disclosure of expert witnesses and accompanying information.

  III. Severance

  Gorechi, A. Truchalski, Simons, Kurczodyna, and Zaslavskaya have moved for severance pursuant to Federal Rules of Criminal Procedure 8(b) and 14. The Government has charged 18 co-defendants in this action. Rule 8(b) explains the requirements for a proper joinder of defendants and Rule 14(a) provides that "[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed.R. Crim. P. 14(a). The Seventh Circuit has stated that there "is a strong presumption that co-conspirators will be tried jointly . . . [and][i]n order to obtain a severance from the trials of her co-defendants under Fed.R. Crim. P. 14, a defendant must prove that there is a `serious risk that a joint trial would compromise a specific trial right.'" U.S. v. Moore, 363 F.3d 631, 642 (7th Cir. 2004) (quoting United States v. Wilson, 237 F.3d 827, 835 (7th Cir. 2001)).

  Defendants argue that Osinski is the only common thread between Defendants and that the only common theme among the Defendants is that all Defendants allegedly engaged in some sort of fraudulent scheme with Osinski involving false accident reports and insurance recoveries. Defendants argue that there is no evidence that they were all part of a common scheme or plan and Defendants argue that the facts involving the alleged scheme that each Defendant was involved in will vary. Defendants argue that they will be prejudiced if they remain joined because they will be unfairly connected to evidence of other schemes allegedly perpetrated by other Defendants and Defendants argue that they will be prejudiced by the amount and strength of evidence presented against other Defendants. Defendants also argue that, because of the multiple lines of evidence regarding the various schemes, the trier of fact may get confused regarding which Defendant was involved in which alleged scheme. Defendants also argue that the trier of fact may be presented with inconsistent defenses or evidence.

  The Government argues that all Defendants are part of a common scheme. According to the Government, Osinski, the owner of an auto-body shop, solicited the other Defendants besides Kurczodyna to file false insurance claims regarding fake accidents and to falsely assert that their vehicles suffered auto-body damage. The Government contends that in regards to all of the alleged false accidents involving Defendants: 1) Defendants were driving "high-end luxury vehicles," 2) the accidents were allegedly head on collisions, 3) no personal injury was alleged to have occurred, 4) no police reports were filed, and 5) the accidents occurred in close proximity to Osinski's auto-body shop. The Government contends that Kurczodnya was an insurance adjustor that agreed to "look the other way." The Government also contends that various Defendants were involved together in some of the allegedly false accidents and thus there is no simple severance point in regards to the various claims against Defendants. The Government claims that it is not as simple as dividing the Defendants according to the scheme that each perpetrated with Osinski. The Government argues that judicial economy will be best served with one joint trial and that any prejudice to Defendants caused by joinder can be alleviated with an appropriate jury instruction. We agree with the Government's arguments and we deny the motions for severance. IV. Bill of Particulars

  Rygiel and L. Truchalski have filed motions for a bill of particulars. Pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure a court may direct the government to file a bill of particulars. Specifically, Rule 7(f) provides:
The court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 10 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires.
Fed.R. Crim. P. 7(f). In deciding whether a bill of particulars is necessary, a court must determine "whether the government's indictment sufficiently apprises the defendant of the charges to enable him to prepare for trial." See U.S. v. Canino, 949 F.2d 928, 949 (7th Cir. 1991) (citing United States v. Kendall, 665 F.2d 126, 134 (7th Cir. 1981)). In addition, the Seventh Circuit has found that a court does not abuse its discretion in denying a motion for bill of particulars where the "indictment indicated the statute ...

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