The opinion of the court was delivered by: GREENE
Vagueness and Particulars
have moved to dismiss counts one through fifty-three and seventy-six through ninety-eight of this 121 count indictment charging conspiracy and fraud on the ground that these counts are impermissibly vague. Defendant Jakey Madeoy also has moved to dismiss counts fifty-four through seventy-five on the same ground. In addition, relying on Rule 7(f) of the Federal Rules of Criminal Procedure, the defendants have moved the Court for an order to the government for a bill of particulars. For the reasons stated below, the motion to dismiss for vagueness will be denied; the motion for a bill of particulars will be granted in part and denied in part.
While the indictment in this case is certainly lengthy, it is not vague. In fact, the indictment specifically provides the defendants with all the information they require. For example, in paragraph 17, the indictment details the way in which the "buyer credit scheme" was devised by defendant Steven F. Madeoy and Richard Gaylen, and it likewise details the scheme's execution. In this same paragraph, the indictment connects these actions to twenty-three specified properties bought and sold by Madeoy, and it describes the roles played by particular defendants and co-conspirators. Elsewhere, the indictment states that Jakey Madeoy submitted to the Veterans Administration false, fraudulent, "and inflated" residential appraisal reports for the properties in question. This charge of inflation of the appraisal reports belies defendants' assertion that they are not informed of the manner in which various documents were false and fraudulent.
An indictment is sufficient if it contains the elements of the offense, fairly informs the defendant of the charge against which he must defend, and enables him to plead an acquittal or conviction in bar of future prosecutions. E.g., Hamling v. United States, 418 U.S. 87, 117-18, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974). In the context of this wide-ranging but otherwise rather uncomplicated scheme, the Court has no difficulty in finding that the indictment meets this test. Thus, the motion to dismiss for vagueness will be denied.
As both sides realize, a motion for a bill of particulars is addressed to the discretion of the Court. See United States v. Pollack, 175 U.S. App. D.C. 227, 534 F.2d 964, 970 (D.C. Cir. 1976). Such a motion ordinarily is not granted unless the requested particularization is necessary to a defendant's preparation for trial and the avoidance of unfair surprise at trial. See United States v. Kendall, 665 F.2d 126 (7th Cir. 1982). In the main part, and for reasons similar to those discussed above on the vagueness question, the Court again has no difficulty in deciding that a bill of particulars is unnecessary to defendants' ability to meet the government's charges. Consequently, the motion for a bill of particulars will be denied in most respects.
That motion will be granted, however, insofar as the indictment charges that defendants violated certain unspecified laws and regulations of the United States. For example, count one refers to more than 700 pages of the Code of Federal Regulations without specifying which regulations are at issue. There is no reason whatever why these laws and regulations should not be specified by way of a bill of particulars -- a specification which may well be vital to defendants' abilities to answer these charges. The Court will accordingly grant the motion for a bill of particulars to the extent that it requests information concerning the applicable laws and regulations.
Two of the defendants
have made a number of requests for pretrial discovery. Before dealing with the specific requests, it is to be noted that the prosecution appears to have been quite forthcoming with informal discovery. For example, it has made available to defendants a copy of the FBI Form 302 memorializing a special agent's oral conversation with defendant Friedman and his wife, Rhona M. Friedman; a copy of defendant Friedman's testimony before the grand jury on September 4, 1985, January 5, 1986, and August 13, 1986; and much other documentary and tangible evidence in its possession. This cooperative attitude provides some context for the present discovery requests although, of course, it would not justify the denial of defense requests that are otherwise justified.
A. Oral Statements to Third Parties
The majority view, and that adopted by the Court of Appeals for this Circuit in United States v. Pollack, 175 U.S. App. D.C. 227, 534 F.2d 964, 976 (D.C. Cir.), is that oral statements made by a defendant to third parties which the government intends to offer in its case in chief against a defendant are not discoverable under Fed. R. Crim. P. 16. In accordance with the decision in the Pollack case, the motion for discovery will be denied with respect to these statements.
B. Statements of Co-Conspirators
Defendants seek pretrial discovery of all statements of co-conspirators or, at a minimum, the statements of those co-conspirators whom the government does not intend to call as witnesses at trial.
It is clear that defendants are not entitled at this time to the discovery of statements of co-conspirators who will testify at the trial, see United States v. Percevault, 490 F.2d 126 (2d Cir. 1976); Sendejas v. United States, 428 F.2d 1040 (9th Cir. 1970), and the Court will accordingly deny the motion in that respect.
On the other hand, it is also relatively well established that statements of co-conspirators whom the government does not intend to call as witnesses at trial are discoverable in advance under Fed. R. Crim. P. 16. See United States v. Jackson, 757 F.2d 1486, 1491 (4th Cir.); United States v. Turkish, 458 F. Supp. 874, 882 (S.D.N.Y. 1978); United States v. McMillen, 489 F.2d 229, 231 (7th Cir. 1972); see also 2 C. Wright, Federal Practice and Procedure: Criminal 2d § 253, at 50 (1982). However, the discovery of these statements is limited to those that would be discoverable under Rule 16 if they had been made by the defendant himself: written or recorded statements and oral statements ...