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1988 U.S. Dist. LEXIS 1896, *

United States of America v. August Russo, Frank Russo, Thomas R. Russo, Michael Russo, and Joseph Marren

No. 87 CR 501


1988 U.S. Dist. LEXIS 1896

February 18, 1988, Decided; February 24, 1988, Filed

CORE TERMS: disclosure, indictment, Jencks Act, discovery, grand jury, co-conspirator, evidence admissible, prior to trial, proffer, notice, disclose, Federal Rule of Criminal Procedure, order requiring, defense counsel, well settled, discoverable, conspiracy, witness list, admissibility, unsupported, Federal Rule of Evidence, statute of limitations, motion to dismiss, offenses charged, pretrial hearing, court to order, cross-examination, particularized, preponderance, irregularity




Ann Claire Williams, Judge United States District Court

The defendants Michael, August, Frank, and Thomas Russo along with Joseph Marren were indicted on July 9, 1987 and charged with violations of
18 U.S.C. 2, 371, 1952, 1962(d) and 26 U.S.C. 7201. The defendant Thomas Russo was also charged with a violation of 18 U.S.C. 922(e). The defendants have filed fourteen separate motions seeking various types of relief. The bulk of these motions are of the boiler plate variety, replete with demands and almost devoid of supporting authority. This court strongly agrees with Judge Coffey who stated that
it is not the responsibility of the prosecution or the judge to do the work of defense counsel. All too often, as we are seeing in this case, the defense counsel makes a buckshot approach hoping a pellet will strike -- this type of lack of preparation is not in the best interests of his client(s) nor is it in the interest of justice.
Ruiz v. Cody, 710 F.2d 1214, 1218 (7th Cir. 1983). With this in mind, the court will consider each motion and grant or deny relief as appropriate.


Motion to Dismiss the Indictment

The Russos and Marren
 [*2]  filed separate yet virtually identical motions to dismiss the indictment. The defendants mount a variety of challenges to the indictment. A proper indictment should fulfill the following functions:
[F]irst, it should state all of the elements of the offense charged; second, it should in form the defendant of the nature of the charge so that he may prepare a defense; and third, it must enable the defendant to plead the judgment as a bar to any later prosecution for the same offense.
United States v. Gironda, 758 F.2d 1201, 1209 (7th Cir.), cert. denied, 106 S.Ct. 523 (1985). When considering a motion to dismiss, all allegations of the indictment are taken as true. Boyce Motor Lines v. United States, 342 U.S. 337, 343 n.16 (1951).

The defendants first challenge the constitutionality of
18 U.S.C. 1952) ("RICO") and of 26 U.S.C. 7201. The constitutionality of both statutes has been repeatedly upheld. See United States v. Turkette, 452 U.S. 576, 586-591 (1980); United States v. Vignola, 464 F. Supp. 1091 (E.D. Pa. 1979), aff'd, 605 F.2d 1199 (3d Cir.), cert. denied, 444 U.S. 1072 (1980); United States v. Chikata, 427 F.2d 385 (8th Cir. 1970);  [*3]  United States v. Keig, 334 F.2d 823 (7th Cir. 1964), rev'd on other grounds, 477 F.2d 310 (1973). The defendant cites no authority to the contrary. The defendants also argue that prostitution, a misdemeanor under Illinois law, is an improper predicate act under 1952 and that the statute of limitations on these alleged crimes has run. These objections are not well taken. See United States v. Isaacs, 493 F.2d 1124, 1148 (7th Cir.), cert. denied, 417 U.S. 976 (1974) (no distinction is drawn between serious and insubstantial state offenses); United States v. Karigiannis, 430 F.2d 148, 150 (7th Cir.), cert. denied, 400 U.S. 904 (1970); United States v. Cerone, 452 F.2d 274, 286 (7th Cir.), cert. denied, 405 U.S. 964 (1971) ("Illinois' statute of limitations is irrelevant to a prosecution under 18 U.S.C. 1952.") Finally, the defendants state that the indictment fails to allege the elements of any offense under law because it is vague, indefinite, and uncertain. n1 This twenty-eight count indictment, contrary to the defendants' assertion, states the elements of each offense with sufficient detail and clarity to survive a dismissal motion. The indictment  [*4]  adequately informs each defendant of the nature of the charges against him. Consequently, defendants' motion to dismiss the indictment is denied.

n1 The defendants also advance two other unsupported arguments. First, they allege that the grand juries which heard testimony on their case were improperly constituted. Any orders related to the empaneling of a grand jury as well as any orders extending the period of a grand jury's service are public records in this District. See N.D. Ill. Criminal Rule 1.04. The defendants have failed to use these public records to show that any relevant grand jury was improperly constituted. The defendants also argue that there was an improper delay in the prosecution of these crimes. They have made no concrete, specific allegations of prejudice. Furthermore, they have failed to cite any authority that would allow this unsupported allegation of prejudice to serve as a basis for dismissing the indictment.


Motion for a Bill of Particulars

The defendants move for a bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure seeking the disclosure of a myriad of details concerning each count of the indictment. The trial
 [*5]  court may grant a bill of particulars in its sound discretion. United States v. Elliot, 771 F.2d 1046, 1051 (7th Cir. 1985). A bill of particulars need not be given if the indictment sets forth the elements of the offenses charged, gives the time and place of the defendants' conduct which allegedly violates the law, and gives a citation to the statutes violated. See United States v. Kendall, 665 F.2d 126, 134 (7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982); United States v. Roya, 574 F.2d 386, 391 (7th Cir. 1978), cert. denied, 439 U.S. 857 (1978). The indictment in this case satisfies the above conditions. It is well settled that the defendants are not entitled to the evidentiary detail sought. See Kendall, 665 F.2d at 135; United States v. Johnson, 504 F.2d 622, 628 (7th Cir. 1974). The defendants have cited no authority in support of their extensive requests. Consequently, the defendants' motion for a bill of particulars is denied.


Motion to Sever Count Twenty-Eight

The defendants move to have Count Twenty-Eight, which alleges that Thomas Russo violated
18 U.S.C. 922(e), severed from the indictment. The defendants first contend that  [*6]  Count Twenty-Eight was improperly joined under Federal Rule of Criminal Procedure 8(a). Under Rule 8(a), "[t]wo or more offenses may be charged in the same indictment . . . if the offenses charged . . . are based on the same act or transaction or on two or more acts or transctions connected together or constituting parts of a common scheme of plan." Fed. R. Crim. P. 8(a). There is a "strong public interest in having persons jointly indicted tried together" and Rule 8 is liberally construed. Kendall, 665 F.2d at 137; United States v. Cavale, 688 F.2d 1098, 1106 (7th Cir.), cert. denied, 459 U.S. 1018 (1982). A "transction" has been construed to be a series of acts with a logical relationship. Cavale, 688 F.2d at 1106; See also Isaacs, 493 F.2d at 1158. In Count Twenty-Eight, Thomas Russo is charged with attempting to transport firearms and ammunition from Illinois to Mexico via a common carrier without giving written notice to the carrier in violation of 18 U.S.C. 922(e). This Count has a logical relationship to Count Twenty-Four because the same evidence needed to prove overt act (11)(L) of Count Twenty-Four will be needed to prove Count Twenty-Eight. Therefore,  [*7]  the interests of judicial economy will be served by joinder.

Even if a count is properly joined under Rule 8, severance pursuant to Federal Rule of Criminal Procedure 14 can be granted if the defendants can demonstrate prejudice. United States v. Garner, No. 86-1707, slip op. at 14 (7th Cir. December 29, 1987). The defendants in this case have made conclusory allegations of prejudice by stating that the inclusion of the firearms charge would confuse the jury. This objection is nonsensical given the fact that the same evidence will be produced to prove Count Twenty-Four regardless of whether Count Twenty-Eight is severed. Thus, the defendants have failed to allege sufficient prejudice to warrant severace. See
United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir. 1985) (instances of specific prejudice are discussed). Accordingly, their motion for severance is denied.


Motion for Order to Disclose Grand Grand Jury Transcript and Information

The defendants move this court to make available transcripts and other information from the grand juries which investigated the defendants. Public policy supports grand jury secrecy. See
Douglas Oil Co. v. Petrol Stops Northwest,  [*8]  441 U.S. 211, 218 (1979); United States v. Lisinski, 728 F.2d 887, 889-94 (7th Cir.), cert. denied, 469 U.S. 832 (1985); Lucas v. Turner, 725 F.2d 1095, 1100 (7th Cir. 1984). There is a "presumption of regularity . . . [which] attaches to such proceedings and the defendants have a difficult burden to prove any 'irregularity'". Lisinski, 728 F.2d at 893, quoting United States v. Battista, 646 F.2d 238, 242 (6th Cir. 1981). A defendant must make a showing of "particularized need" to get disclosure of grand jury proceedings. Id. at 893. The defendants have made naked requests for disclosure without even an allegation of irregularity. These unsupported requests are insufficient to demonstrate "particularized need." Such broad-based, all encompassing requests would be inappropriate in any event. See Douglas Oil, 441 U.S. at 219, 220; Lucas, 725 F.2d at 1101. Thus, the defendants' motion to disclose grand jury transcripts and information is denied.


Motion In Limine to Determine Admissibility of Co-Conspirator's Statements

The defendants move for a motion in limine to determine the admissibility of co-conspirators' statements. The defendants request
 [*9]  the court to order a pretrial hearing to determine the admissibility of these statements. Alternatively, the defendants move the court to order the government to file a written proffer laying a factual foundation for the admission of these statements. The court must be satisfied that a co-conspirators statement falls within the scope of Federal Rule of Evidence 801(d) (2) (E) before admitting such a statement over an objection. See Bourjaily v. United States, 107 S.Ct. 2775, 2778 (1987). The statement must be made by "a coconspirator of a party during the course and in furtherance of the conspiracy." Fed. R. Evid. 801(d) (2) (E). The statement must be proved by a preponderance of the evidence and the trial count can "consider any evidence whatsoever, bound only the rules of privilege." Bourjaily, 107 S.Ct. at 2780-81.

The defendants have cited no authority which states that a pre-trial hearing on the admissibility of co-conspirator statements is required. It is clean that the Seventh Circuit does not mandate such hearings. See, e.g.
United States v. Azzarelli Construction Co., 612 F.2d 292, 297 (7th Cir. 1979), cert. denied, 447 U.S. 920 (1980). Thus, this court will  [*10]  not require a pretrial hearing. The court will order the government to submit a written Santiago proffer which specifies all evidence that will be used to prove the existence of the conspiracy and the defendants' membership in it by a preponderance of the evidence. The court further orders the production of the co-conspirator statements so that the court can determine if these statements were actually made in furtherance of the conspiracy. See generally United States v. Shoffner, 826 F.2d 619, 628 (7th Cir. 1987). The court notes that the government has no objection to the above order. The government's Santiago proffer should be submitted fourteen (14) days prior to trial.


Motion for Discovery and Disclosure

The defendants filed motions for discovery and disclosure. However, only the motion of the Russo defendants contained a statement that an agreement could not be reached concerning the discovery at issue as required by Northern District of Illinois Local Criminal Rule 2.04(c). It is this court's practice to strike any discovery motions that fail to contain these required statements. See
United States v. Davis, 673 F. Supp. 252, 255 (N.D. Ill. 1987) (Williams,  [*11]  J.). Thus, Marren's discovery motion is stricken The Russo defendants' motion contains a number of demands that are either inapplicable or already complied with by the government. n2 The defendants would be well advised to note that "[t]here is no general constitutional right to discovery in a criminal case, and Brady [v. Maryland 373 U.S. 83 (1963)] did not create one. . . ." Weatherford v. Bursey, 429 U.S. 545, 559 (1976). The discovery of information in criminal cases is governed by Federal Rule of Criminal Procedure 16 and the relevant statutes and case law. Thus, any requests for discovery must be supported by authority. The "Government is . . . under no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor." United States v. Disston, 612 F.2d 1035, 1037 (7th Cir. 1980), quoting United States v. Agurs, 427 U.S. 97, 106 (1976). The court will consider the defendants' requests with these principals in mind.

n2 The government has already provided the material requested in paragraphs A.1, A.2, F., J., I., M., and S. of the defendants' motion. The demands stated in paragraphs O. and R. of the defendants' motion are inapplicable to the evidence and issues in this case.

i.) Request for Production of Oral Statements

The defendants' make a request for various oral statements in paragraphs A.3 through A.9, B., and C. of their motion. Rule 16 does not authorize these requests. The statements would be discoverable pursuant to the Jencks Act,
18 U.S.C. 3500 ("Jencks Act") to the extent that they would be discoverable at all. Even if the statements are discoverable, the "Jencks Act provides that a government witness's statement or report shall not be available until after the witness has testified on direct examination." United States v. Molt, 772 F.2d 366, 370 (7th Cir. 1985), cert. denied, 106 S.Ct. 1458 (1986); United States v. Harris, 542 F.2d 1283, 1291 (7th Cir. 1976), cert. denied, 430 U.S. 934 (1977). Thus, the defendants' requests are denied.

ii.) List of All Persons Interviewed and of the Agents who Conducted the Interviews

The defendants cite no authority in support of these requests and they are denied. See
Moore v. Illinois, 408 U.S. 786, 795 (1971) ("We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.")  [*13] 

iii.) Disclosure of Overt Acts, Joint Ventures, and Co-Schemers

The government is not required to turn over information about overt acts not alleged in the indictment. See
United States v. Carroll, 510 F.2d 507, 509 (2d Cir. 1975), cert. denied, 426 U.S. 923 (1976); United States v. Armocida, 515 F.2d 49, 54 (3d Cir.), cert. denied, 423 U.S. 858 (1975). Nor is the defendant entitled to disclosure of the names of co-conspirators whose names to the grand jury are unknown. See Johnson, 504 F.2d 622, 627-28 (7th Cir. 1974). The defendants have failed to cite any authority to the contrary. Their requests are denied.

iv.) Disclosure of Statements of Unavailable Declarants, Statements Subject to Federal Rules of Evidence 803(24) and 804(b)(5), and of Factual Predicates

The defendants cite no authority in support of the above demands. Therefore, they are denied. The government, however, is directed to comply with the notice provisions of Rules 803(24) and 804(b) (5) in the event that such evidence is sought to be admitted.

v.) Disclosure of Agency Rules

The defendants seek the disclosure of any agency rules of the Federal Bureau of Investigation, the Internal
 [*14]  Revenue Service, and the United States Justice Department which relate to the conduct of agents engaged in investigations similar to the one involved in this case. The defendants have not alleged that any rules were violated nor have they stated a basis for discovery of this material. Such information is not subject to disclosure under Rule 16 (a) (2). See e.g., United States v. Azzarelli Construction Co., 459 F. Supp. 146, 152 (N.D. Ill. 1978), aff'd, 612 F.2d 292 (7th Cir. 1979), cert. denied, 447 920 (1980). The defendants' request is denied.

vi.) Disclosure of Identification Process and of Physical Surveillance Conducted

The defendants move for disclosure of all voice identification evidence that the government intends to rely upon at trial as well as the complete disclosure of all facts of any physical surveillance that was conducted on the defendants. The defendants cite no authority in support of either request. The disclosure of information concerning these subjects will be governed by the Jencks Act. Therefore, the defendants' requests for pretrial disclosure are denied.

vii.) Disclosure of the Identity of Informants

The defendants' move for an order requiring
 [*15]  the government to disclose the identity of its undercover informants. The government has a privilege "to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Roviaro v. United States, 353 U.S. 53, 59 (1957). This privilege can be overcome "[w]here the disclosure of an informer's identity, or the contents of his communication is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause. . . ." Id. at 60-61. The defendant must show some need for the information. Id.; See also United States v. Lewis, 671 F. 2d 1025, 1027 (7th Cir. 1981); United States v. Garcia, 625 F.2d 162, 165-55 (7th Cir. 1980), cert. denied, 449 U.S. 923 (1980). In this case, the defendants have not alleged any need for this information. The defendants' request is denied as "it requires more than speculation that the evidence an informer may provide will be material to overcome the government's privilege to withhold the identity of the informant." United States v. Grisham, 748 P.2d 460, 464 (8th Cir. 1984).

viii.) Disclosure of Reports Made By State
 [*16]  Authorities

The defendants seek disclosure of any reports that were prepared by state authorities in connection with this investigation that were later given to federal officials. The disclosure of this information is prohibited by Rule 16 (a) (2) unless it is required by Brady or the Jencks Act. The government will be required to disclose such reports only as required by the dictates of Brady or the Jencks Act. The defendants' request is otherwise denied. See e.g.,
United States v. Spagnuolo, 549 F.2d 705, 712-13 (9th Cir. 1977).


Motion to Require the Government to Provide Notice of its Intent to Use Certain Evidence at Trial

The defendants move for an order requiring the government to give notice of its intention to use evidence admissible under Federal Rules of Evidence 404(b) and 608(b) during any phase of the trial. It is well settled that "evidence which may be admissible under Fed. R. Evid. 404(b) need not be turned over to defendants prior to trial if that material is not exculpatory within the meaning of
Brady v. Maryland. United States v. Swiatek, 632 F. Supp. 985, 989 (N.D. Ill. 1986) (Norgle, J.) (emphasis in original); See also United States  [*17]  v. Carr, 764 F.2d 496, 500 (8th Cir. 1985), cert. denied, 475 U.S. 1010 (1986). Moreover, the defendants' request for notice of the government's intention to use evidence admissible under Rules 404(b) and 608(b) during cross-examination and its rebuttal case is denied "as Rule 12(d) (2) only requires notice of such material if used in the government's case in chief." United States v. Climatemp, Inc., 482 F. Supp. 376, 391 (N.D. Ill. 1979), aff'd sub nom, United States v. Reliable Sheet Metal Works, Inc., 705 F.2d 461 (7th Cir.), cert. denied sub nom, Fakter v. United States, 462 U.S. 1134 (1983); See also United States v. Baskes, 649 F.2d 471, 477 (7th Cir. 1980). However, the government will be required to give notice at least fourteen (14) days before trial of its intention to use any evidence admissible under Rule 404(b) and 608(b) during its case in chief. See Davis, 673 F.2d at 257-58. The government has agreed to apprise the court and opposing counsel by giving a proffer before eliciting any testimony in the presence of the jury which might concern evidence admissible under Rules 404(b) and 608(b).


Motion to Obtain Witness List

The defendants
 [*18]  move for the immediate disclosure of the governments' witness list. It is well settled that "a defendant in a noncapital case [is not] entitled to lists of prospective government witnesses." United States v. Bouye, 688 F.2d 471, 473-74 (7th Cir. 1982); See also United States v. Kimberlain, 805 F.2d 210, 233 (7th Cir. 1986), cert. denied, 107 S.Ct. 3270 (1987); Wright, Federal Practice and Procedure, 254 at 89-90. This court, however, does have the discretion to order the production of the government's witness list prior to trial. See United States v. Jackson, 508 F.2d 1001, 1006 (7th Cir. 1975). The defendants have not made the specific showing needed to grant their request for the disclosure of the list. Cf. Jackson, 508 F.2d at 1007; Climatemp, 482 F. Supp. at 390. Thus, the defendants' request is denied at this time. The court will, however, require the government to produce the witness list prior to trial. A specific date for the production of the list will be determined at the next status hearing.


Motion for Preservation of Agents Notes

The defendants move the court for an order requiring the government to preserve the notes and reports of
 [*19]  the governments agents and to make this material available to the defense a reasonable time before trial. Under the Jencks Act, notes from government agents must be produced only if they are "a substantially verbatim transcript of [a government witness'] remarks, or were his own written statements adopted or approved by him." United States v. Starnes, 644 F.2d 673, 680-81 (7th Cir.), cert. denied, 454 U.S. 826 (1981); See also United States v. Harris, 542 F.2d 1283, 1292-93 (7th Cir. 1976), cert. denied, 430 U.S. 934 (1977); 18 U.S.C. 3500(e) (1). The government has instructed the agents to preserve their handwritten notes and rough draft reports. The government is ordered to produce to the court in camera any notes regarding the statements of its witnesses as well as any final agent reports. The court will evaluate this material to determine whether these notes should be produced to the defendants pursuant to the Jencks Act.


Motion for Disclosure of Exculpatory Evidence and Impeaching Information

The defendants present broad sweeping motions for discovery of exculpatory evidence and impeaching information. The motions of both the Russo defendants and
 [*20]  the defendant Marren fail to include a statement that a Rule 2.04(e) conference has been held. As stated earlier, it is this court's practice to strike motions which do not contain these required statements. See Davis, 673 F. Supp. at 255. Accordingly, the defendants' motions are stricken. The court, however, will grant the following relief. The government acknowledges its obligation to disclose exculpatory evidence, evidence affecting the credibility of its witnesses, and Jencks Act material. See Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972); United States v. Andrus, 775 F.2d 825, 843 (7th Cir. 1985). The government represents that it has either provided, or promised to provide, to the defendants all favorable evidence that is material to their guilt or punishment. The government recognizes its continuing obligation to provide any newly discovered material of this nature to the defendants prior to trial in any event. Furthermore, the government will provide all Giglio and Jencks Act material in accordance with a schedule set by the court. Due process is satisfied "[a]s long as ultimate disclosure is made before  [*21]  it is too late for the defendants to make use of any benefits of the evidence. . . ." United States v. Zipperstein, 601 F.2d 281, 291 (7th Cir. 1979), cert. denied, 444 U.S. 1031 (1980). Disclosure of Giglio and Jencks Act material is not required at this time. See e.g., United States v. Sweeney, 688 F.2d 1131, 1141 (7th Cir. 1982); United States v. Callahan, 534 F.2d 763, 765-66 (7th Cir. 1976), cert. denied, 429 U.S. 830 (1976); Davis, 673 F. Supp. at 255. Finally, the government has agreed to a number of the defendants requests. n3

n3 As part of its Jencks Act material the govenrment has agreed to:

a) provide any criminal records in its possession concerning felony convictions of its witnesses;

b) provide any information as to specific acts of misconduct of its witnesses which may be inquired into on cross-examination pursuant to Federal Rule of Evidence 608(b);

(c) provide information as to grants of immunity, plea agreements, and other benefits offered or tendered to its trial witnesses;

d) disclose any inconsistent or exculpatory statements of its trial witnesses.


Motion for Discovery of Summaries, Charts, and Financial Analysis

The defendants'
 [*22]  motion is denied. The government is ordered to disclose any further summary exhibits, charts or analysis that it will use in its case in chief prior to the data's incorporation into trial testimony. The court will discuss this matter at the next status hearing.


Motion to Suppress Evidence Illegally Seized and for Return of Property

The defendant Thomas Russo moves this court to suppress all evidence seized from him on May 13, 1986 at O'Hare Airport. He also moved for the return of all property seized from him on this date. Russo contends that he and his luggage were searched without his consent or a search warrant. The government vigorously contests this assertion. The court will hold a hearing in advance of trial to resolve the disputed issues of fact.


Motion to Adopt

The defendant Marren's motion to adopt the motions filed by co-defendants to the extent that they affect any of his constitutional or federal statutory rights is denied.


Motion for Leave to Supplement Existing Motions and to File Additional Motions

The defendants' motion is denied as to all of the defendants except Michael Russo. All defendants except for Michael Russo must show good cause and
 [*23]  seek leave to file additional or supplemental motions.


The court will not attempt to repeat its rulings contained in the body of this opinion. Instead, it concludes by requesting that the parties read the opinion carefully and bring any apparent misunderstandings to the court's attention as soon as possible.

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