Opinion
No. 00 Cr. 45 (RWS).
March 13, 2001.
HONORABLE MARY JO WHITE, United States Attorney for the Southern District of New York, Attorney for United States of America, ROBERT STRANG, Assistant US Attorney, New York, NY., Attorney for Plaintiff.
EDWARD J. M. LITTLE, Esquire, CHRISTOPHER M. WILSON, Esquire, MICHAEL RAMOS, Esquire, ZUCKERMAN, SPAEDER, GOLDSTEIN, TAYLOR KOLKR, New York, NY., Attorney for Defendant.
Defendant Patrick Savin ("Savin") has moved for an order directing the government to provide a bill of particulars, pursuant to Federal Rule of Criminal Procedure 7(f), and for an order directing the government to provide a list of witnesses it intends to call at trial. For the reasons set forth below, the motion is granted in part and denied in part.
Prior Proceedings
On January 14, 2000, the indictment in this case issued charging Savin with one count of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 371 (Count One), and one count of wire fraud, in violation of 18 U.S.C. § 1343 and 18 U.S.C. § 2 (Count Two).
Savin was arraigned on January 27, 2000. The instant motion was filed on August 4, 2000, and oral argument was heard on October 18, 2000, at which time the matter was marked fully submitted.
Facts
According to Count One of the indictment, Savin was the investment advisor — through two corporations wholly-owned by Savin, Janless Corp. and Savin Carlson Investment Corporation for Mezzonen, S.A. ("Mezzonen"), a private corporation, from at least 1991 through 1997.
From on or about January 23, 1991 through on or about August 11, 1992, Savin arranged to have approximately $25 million of Mezzonen's funds wired to four corporations controlled, directly or indirectly, by Leon Wright ("Wright"), in return for Mezzonen receiving preferred shares of these companies (the "Wright Corporations"). These preferred shares entitled Mezzonen to receive interest payments of between ten and fifteen percent of the principal annually.
According to paragraph six of the indictment, Savin conspired with Wright and an unspecified number of other, unnamed persons, to "arrange for this money [i.e., the money invested in the four Wright corporations] to be transferred through a series of intercompany transfers to other Wright Corporations and related interests, as well as arranging for transfers to Savin, Wright, and to others not named in this Indictment."
Savin and Wright took various steps to prevent Mezzonen from learning that its money had disappeared in part through self-dealing by Savin and Wright, and that the investments in the Wright corporations had become nearly worthless in value, including using certain payment methods and submitting monthly reports that covered up the truth.
According to an affidavit submitted by Savin's counsel, in response to discovery requests previously made by Savin, pursuant to Federal Rule of Criminal Procedure 16(a), the government produced 85 boxes of documents, which Savin's counsel estimates contain more than 100,000 pages of material. Based on a preliminary review conducted by Savin's counsel, the document production includes inter alia discovery gathered by the government and/or private parties to various related civil actions, including a multi-party civil RICO action surrounding Mezzonen's losses currently pending in California and a bankruptcy proceeding, as well as cases involving entities and their employees not identified in the indictment. Among the documents are memoranda from companies unrelated to Wright, memoranda relating to proposed deals that were not consummated, investments that were not made, and business plans that were not implemented, and confirmations of what appears to be every trade conducted by Savin over a six-year period. The documents reference people and entities not named in the indictment, and potential co-conspirators and witnesses from across the United States and other countries, including Switzerland, Luxembourg, England, and Japan. There is also correspondence to and from major political and sports figures.
Discussion I. Motion For A Bill of Particulars A. The Legal Standard
"Rule 7(f) . . . permits the defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant [sic] to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). In order to obtain a bill of particulars, the defendant must show that the charges of the indictment are so general that they do not advise him of the specific acts of which he is accused. See United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990); United States v. Henry, 861 F. Supp. 1190, 1197 (S.D.N.Y. 1994). The standard applied to the information sought is not whether it is helpful to the defense, but whether it is necessary. See United States v. Love, 859 F. Supp. 725, 738 (S.D.N.Y. 1994); Henry, 861 F. Supp. at 1197.
A bill of particulars is not required where the information sought has been made available in alternative forms. See United States v. Kelly, 91 F. Supp.2d 580, 583-84 (S.D.N.Y. 2000) (citations omitted). Nor will a bill of particulars be issued if it would "force the Government to particularize all of its evidence." Henry, 861 F. Supp. at 1197 (quoting United States v. Cephas, 937 F.2d 816, 823 (2d Cir. 1991)). A defendant will not be permitted to use such a request to compel the government to disclose the manner in which it will prove the charges or preview its evidence or legal theory. See United States v. Perez, 940 F. Supp. 540, 550 (S.D.N.Y. 1996) (citations omitted); United States v. Facciolo, 753 F. Supp. 449, 451 (S.D.N.Y. 1990), aff'd, 968 F.2d 242 (2d Cir. 1992). Finally, the decision to grant or deny a defendant's request for a bill of particulars is within the sound discretion of the trial court. See Perez, 940 F. Supp. at 550 (citations omitted).
B. The Motion For A Bill of Particulars Is Granted In Part
Savin seeks certain particulars regarding Count One and, in particular, paragraph six of the indictment. Savin maintains that the particulars sought are warranted based on the complexity of the case, the breadth and vagueness of the allegations, and the volume of the government's document production. The government maintains that the indictment provides Savin with detailed information regarding the allegations against him and spells out in extensive detail the means and methods used to achieve the conspiracy.
Savin's first six requests seek identification of: (1) each of the "others" to whom he allegedly arranged for Mezzonen funds "to be transferred through a series of intercompany transfers to other Wright corporations and related interests"; (2) each of the "intercompany transfers," including the originating Wright corporation, the dates and amounts of such transfers, the account numbers to and from which such transfers were made, and Savin's alleged role in such transfers, if any; (3) the "other Wright corporations" to which Mezzonen funds were allegedly transferred, including Savin's alleged role therein, if any; (4) each of the "related interests" to which Mezzonen funds were allegedly transferred, including Savin's alleged role therein, if any; (5) each instance in which Mezzonen funds were improperly transferred to Savin, the manner and entities or persons used to transfer such funds, and the dates and amounts of such transfers; and (6) each instance in which Wright improperly received Mezzonen funds, including the dates and amounts thereof, and Savin's alleged role therein, if any.
In Bortnovsky, the defendants were charged with submitting false claims for fire and burglary losses to state and federal officials. See 820 F.2d at 574. The government provided the defendants with a list of "suspect pieces of mail," along with approximate dates of mailing and addresses." Id. The government refused to specify the dates of the staged burglaries or enumerate which of numerous documents were alleged to have been falsified, and instead produced "some 4,000 documents" out of which the government's case would be made. Id. The district court denied a motion for a bill of particulars, and the Second Circuit reversed the convictions, holding that the district court had abused its discretion by not ordering the government to reveal the dates of the fake burglaries and the identity of the fraudulent documents. Id. at 574-75. Absent this information, the burden of proof had been improperly shifted to the defendants at trial because they were forced to explain events surrounding eight burglaries which had actually occurred. Id. at 574. The court also noted that "[t]he Government did not fulfill its obligation merely by providing mountains of documents to defense counsel who were left unguided as to which documents would be proven falsified or which of some fifteen burglaries would be demonstrated to be staged." Id. at 575.
Similarly, in United States v. Nachamie, 91 F. Supp.2d 565 (S.D.N.Y. 2000), a bill of particulars was ordered where the defendants were charged with conspiracy to commit Medicare fraud, and the government "produced over 200,000 pieces of paper in hundreds of boxes and files, relating to 2,000 Medicare claims."Id. at 571. The court noted that the government had "not yet informed the defendants which of these claims were false and in what way they were false," id. at 571, and, relying onBortnovsky, ordered a bill of particulars specifying the names of unindicted co-conspirators the identity and details of each and every allegedly false claim submitted and/or filed as part of the conspiracy, and the identity and details of the allegedly false documents used in the conspiracy," id. at 572-75; see also United States v. Davidoff, 845 F.2d 1151, 1155 (2d Cir. 1988) (government's production of 6,000 pages of discovery did not obviate need for bill of particulars in complex prosecution).
Savin's first six requests, except insofar as they seek disclosure of his "alleged role" in the various transactions, are justified based on the teachings of Bortnovsky and Nachamie. The indictment alleges that Savin pilfered his client's money through an unspecified series of "intercompany transfers" without identifying the amounts, dates, means, corporate entities, or co-conspirators involved. Savin has been provided with 100,000 pages of discovery. Absent further information, in order to adequately understand the nature of the charges against him, Savin will be forced to comb through this veritable mountain of documents and to attempt to guess which of the numerous transactions documented therein, and conducted over a six-year period, are alleged by the government to have been improper.
As in Bortnovsky and Nachamie, Savin is entitled to more information in order for him to prepare for and not be subject to surprise at trial. See Bortnovsky, 820 F.2d at 574 (defendant entitled to know dates of staged burglaries and identify of fraudulent documents); Nachamie, 91 F. Supp.2d at 574 (defendants entitled to know, with respect to Medicare claims government intended to prove were fraudulent, who allegedly prepared each form, who submitted each form, when and where each form prepared and submitted, each item or entry on each form alleged to be false, manner in which item or entry allegedly false, statement government contended would have been accurate, and manner in which each amount calculated).
Contrary to the government's contention, the indictment does not provide detailed notice of the conspiracy allegations and the means and methods of the conspiracy. Paragraph six does not provide such notice, and the remaining paragraphs contained in the "means and methods" section of Count One concern how the wrongdoing alleged in paragraph six was covered up. These paragraphs do not provide notice concerning the particulars of that wrongdoing itself.
The government notes the likelihood that Savin would have complained if the government had provided less complete discovery, and that the government considered it more prudent to produce potentially relevant documents than to face claims underBrady v. Maryland, 373 U.S. 83 (1963). However, the fact that the government has obligations under Brady does not mean that it may meet its obligation to provide adequate notice of the charges merely by providing mountains of documents." Bortnovsky, 820 F.2d at 575. The government also points out that Savin, unlike many criminal defendants, has resources which have enabled him to retain counsel from a preeminent private firm, and has had the benefit of experienced civil and bankruptcy counsel who have been engaged in evaluating the discovery arising out of the related civil litigation. Although Savin undoubtedly has resources that other defendants lack, given the broad scope of the allegations in the indictment and the volume of discovery, he is nonetheless entitled to a bill of particulars.
However, Savin's request for information regarding his "alleged role" in the various transactions is denied, as this request seeks evidentiary detail going beyond identification of the allegedly improper transactions and is not needed to provide adequate notice of the charges. See Nachamie, 91 F. Supp.2d at 575 (defendant not entitled to particulars regarding his participation in submission of false Medicare claims, including manner in which he caused such claims to be submitted); Perez, 940 F. Supp. at 552 (government not required to specify particular acts in which defendants alleged to have "participated in, had knowledge of, or are being held responsible for") (citations omitted). Therefore, Savin's first six requests are granted except in this respect.
Savin has also made certain other requests, only some of which are justified.
Savin seeks, for each intercompany transfer identified in response to the aforementioned requests, an explanation of "whether it is the government's contention that Savin had knowledge of such transfer, whether Savin had joined the alleged conspiracy alleged in Count I at the time of the transfer, and whether Savin intended that such transfer be made as part of the alleged conspiracy." As with the request regarding Savin's "alleged role," this request seeks evidentiary detail amounting to disclosure of the manner in which the government will attempt to prove the charges, which is not appropriate. See Torres, 901 F.2d at 234 ("acquisition of evidentiary detail is not a function of the bill of particulars"); United States v. Fruchter, 104 F. Supp.2d 289, 311-12 (S.D.N.Y. 2000) (citations omitted); Perez, 940 F. Supp. at 552.
Savin also seeks the date the conspiracy alleged in Count I commenced, the date he is alleged to have joined such conspiracy, and the names of the unnamed co-conspirators. "[C]ourts have consistently rejected demands for particulars as to the formation of a conspiracy or the entry into the conspiracy of a particular defendant or confederate." United States v. Mittal, No. 98 Cr. 1302, 1999 WL 461293, at *9 (S.D.N.Y. July 7, 1999) (citing cases); see Nachamie, 91 F. Supp.2d at 547 (accord) (citation omitted). Therefore, the first two items sought in this request are denied.
In determining whether a defendant is entitled to the names of his unnamed co-conspirators, the following factors have been considered useful: the number of co-conspirators, the duration and breadth of the alleged conspiracy, whether the government has otherwise provided adequate notice of the particulars, the volume of pretrial disclosure, the potential danger to co-conspirators and the nature of the alleged criminal conduct, and the potential harm to the government's investigation. Nachamie, 91 F. Supp.2d at 572; see also United States v. Trie, 21 F. Supp.2d 7, 22 (D.D.C. 1998) (granting request for names of unindicted co-conspirators where there were approximately 18 such persons, some of whom defendant may never have met, and conspiracy lasted more than three years). Certainly, disclosure of this information is not warranted as a matter of routine. See, e.g., Torres, 901 F.2d at 234 (affirming district court's refusal to order bill of particulars identifying unnamed co-conspirators). However, consideration of the aforementioned factors leads to the conclusion that disclosure is warranted here.
The number of unindicted co-conspirators is Potentially quite large, as no fewer than six corporations, each with its own personnel, was potentially involved in the alleged "intercompany transfers." The conspiracy may have spanned up to six years. The notice of the particulars of the charges provided by the indictment is not sufficient, as discussed above. The pretrial disclosure has been extraordinarily voluminous. There is no evidence of danger to co-conspirators and, indeed, related civil actions concerning the same underlying events are being prosecuted without incident in this regard. Finally, the government does not contend that its investigation may be harmed and, given the extensive investigation which has already been accomplished due to the civil litigation, any such harm would be negligible. Therefore, Savin is entitled to a list of known unindicted co-conspirators.
Savin also seeks an explanation of "whether it is the government's contention that Savin had knowledge that the Wright corporations were unworthy investments at the time Savin originally made such investments on behalf of Mezzonen," as well as the identity of "the Wright Corporations which had become nearly worthless in value, the date each such corporation became worthless in value, and the date and manner in which Savin became aware each such corporation had become nearly worthless in value." These requests seek evidentiary detail beyond what is required to provide adequate notice of the charges against Savin and would, in effect, give him "a preview of the government's case before trial." Fruchter, 104 F. Supp.2d at 312 (citation omitted); see Perez, 940 F. Supp. at 552. Therefore, these requests are denied.
Finally, Savin seeks identification of the documents the government intends to use at trial. This request goes beyond the government's obligations. Although Savin relies on Nachamie, as explained persuasively by that court, neither Rule 16(a) nor the case law regarding bills of particulars, including Bortnovsky, support the notion that the government must identify the documents it intends to offer at trial. See Nachamie, 91 F. Supp.2d at 568-69 (denying request that government identify documents intended to offer in case-in-chief). Nachamie did order identification of and details regarding each of the allegedly false claims, and identification of the documents allegedly "sent, delivered, deposited, taken or received part of the conspiracy" to the extent those documents were to be offered at trial. Id. at 574-75. However, the purpose for ordering that disclosure was to provide notice to the defendants of the alleged fraudulent claims. See id. at 575. The equivalent purpose is served here through the disclosure ordered with respect to Savin's first six requests, delineated above. Therefore, this request is denied.
The government is directed to provide a bill of particulars, as set forth above, within 30 days of the date of this opinion.
II. The Motion For A Witness List A. The Legal Standard
A district court has discretion to compel pretrial disclosure of the government's witnesses, but should grant such a request only if the defendant makes "a specific showing that disclosure [is] both material to the preparation of his defense and reasonable in light of the circumstances surrounding his case."United States v. Cannone, 528 F.2d 296, 300-01 (2d Cir. 1975) Thus, the burden is on the defendant to make "some particularized showing of need," United States v. Wilson, 565 F. Supp. 1416, 1438 (S.D.N.Y. 1983) (internal quotation marks and citation omitted), which need "should be balanced against the possible dangers accompanying disclosure (i.e. subornation of perjury, witness intimidation, and injury to witnesses)," United States v. Cafaro, 480 F. Supp. 511, 520 (S.D.N.Y. 1979) (quoting Cannone, 528 F.2d at 302.
In considering whether to order disclosure of the government's list of witnesses, courts in this district have frequently looked to the factors set out in United States v. Turkish:
(1) Did the offense alleged in the indictment involve a crime of violence?
(2) Have the defendants been arrested or convicted for crimes involving violence?
(3) Will the evidence in the case largely consist of testimony relating to documents (which by their nature are not easily altered)?
(4) Is there a realistic possibility that supplying the witnesses' names prior to trial will increase the likelihood that the prosecution's witnesses will not appear at trial, or will be unwilling to testify at trial?
(5) Does the indictment allege offenses occurring over an extended period of time, making preparation of the defendants' defense complex and difficult?
(6) Do the defendants have limited funds with which to investigate and prepare their defense?458 F. Supp. 874, 881 (S.D.N.Y. 1978). Some of these factors relate to the defendant's showing of need for a witness list, while others pertain to the possible dangers involved in disclosure.
B. The Motion For A Witness List Is Granted
Savin seeks disclosure of the witnesses the government intends to call at trial, citing the factors outlined in Turkish including, most particularly, the duration of the alleged wrongdoing. Savin also urges that, because many potential witnesses are located in foreign countries, he should be given early notice of these witnesses so that, in the case of foreign witnesses who will not be available for trial, he has sufficient time to attempt to depose them pursuant to letters rogatory.
The offenses alleged in the indictment do not involve a crime of violence, and Savin represents without contradiction that he has never been arrested for or convicted of a crime of violence. This supports the reasonableness of disclosure. See Turkish, 548 F. Supp. at 881.
As for the evidence in the case, the government contends that much of the evidence at trial will consist of testimony relating to statements at meetings and on telephone calls, rather than documents. Nonetheless, given the nature of the offenses charged and the volume of documents produced in discovery, it is apparent that documentary evidence — which by its nature cannot be easily altered — will also be quite important. See Nachamie, 91 F. Supp.2d at 578 (ordering witness disclosure in Medicare fraud case in part because of Volume and importance of documentary evidence); see also United States v. Shoher, 555 F. Supp. 346, 354 (S.D.N.Y. 1983) (nature of mail and wire fraud case suggested testimony would "relate, in large part, to documentary evidence"); Turkish, 458 F. Supp. at 881 (identification by government of 25,000 documents relating to case showed that "bulk of evidence [would] likely involve documents). Adequate preparation for trial, including for witness cross-examination, will require investigation and review of the voluminous documentary evidence. See United States v. Rosenthal, No. 91 Cr. 412, 1991 WL 267767, at *4 (S.D.N.Y. Dec. 3. 1991) (ordering disclosure in part because adequate preparation for witness cross-examination in complex white-collar prosecution required review of voluminous documentary evidence). This weighs in favor of disclosure.
With respect to whether producing a witness list risks non-appearance by witnesses, Savin represents without contradiction that there has been no evidence of witness intimidation in the related civil RICO or bankruptcy proceedings. For its part, the government does not believe that Savin has any history of physical intimidation, but expresses concern regarding the potential for more subtle persuasion or influence. This concern falls short of a realistic possibility that supplying the witnesses' names . . . will increase the likelihood that . . . [they] will not appear at trial, or will be unwilling to testify." Turkish, 458 F. Supp. at 881. Moreover, to the extent any communications with witnesses are attempted, only defense counsel may make such attempt. See id. at 881 n. 1 (noting in favor of disclosure that, "[a]s an extra precaution, [the] defendant . . . represents that only defense counsel, not defendant himself, will communicate with the witnesses").
In Fruchter, cited by the government, the court held that the absence of a likelihood that witness intimidation would occur did not justify disclosure. 104 F. Supp.2d at 312. However, the reason for this ruling was that the defendants had not demonstrated a need for the information. See id. Thus, Fruchter is distinguishable on this ground.
The acts alleged in the indictment, and Savin's involvement, began in January 1991 and extended for a period of six years, making investigation and preparation of Savin's defense complex and difficult and weighing in favor of disclosure. See United States v. Shoher, 555 F. Supp. 346, 354 (S.D.N.Y. 1983) (mail and wire fraud taking place over seventeen-month period); Turkish, 458 F. Supp. at 881 (tax fraud taking place over fifteen-month period).
Savin is not subject to the same sort of resource limitations faced by most defendants with respect to the investigation and preparation of his defense. However, the fact that he has retained counsel does not mean he has unlimited resources to devote to preparing his defense. See Nachamie, 91 F. Supp.2d at 579-80 (fact that majority of defendants had retained counsel did not mean "they possess[ed] unlimited funds to cope with voluminous pretrial discovery"). Considered in conjunction with the other relevant factors, this factor does not warrant denial of Savin's request.
In the cases relied upon by the government, see, e.g., United States v. Pastor, 419 F. Supp. 1318, 1320; United States v. Nieves, No. 98 Cr. 540, 1998 WL 898342, at *3 (S.D.N.Y. Dec. 22, 1998), disclosure of the government's witnesses was denied because the defendant had done no more than make "an abstract, conclusory claim that such disclosure was necessary." Cannone, 528 F.2d at 300-01. Savin, however, has met his burden to show a particularized need. The pool of potential witnesses is large, preparation for cross-examination of each witness will require investigation and review of many documents, and alleged wrongdoing spanned a six-year period. See Rosenthal, 1991 WL 267767, at *4 (finding specific need for witness list based on large number of potential witnesses, documents, and fact that underlying events spanned several years). This showing of need outweighs the possible dangers of disclosure, which are minimal.
The government points out that in the affidavit submitted by Savin's counsel, the rationale asserted for Savin's witness list request is directed to the issue of foreign witnesses only. However, elsewhere in Savin' s submissions he addresses his need for a witness list, and the reasonableness of his request, more generally. Based on the relevant factors Savin is entitled to a domestic witness list.
With respect to foreign witnesses, the government represents that at the present time the only foreign witnesses it anticipates calling are Bjorn Carlson and Bo Lehander, and reserves the right to supplement these names closer to trial if it determines that additional foreign witnesses are needed. The government's representation is satisfactory at this juncture. However, Savin's concerns about the need for advance notice of foreign witnesses are legitimate.
Therefore, the government is directed: (1) to notify Savin of any other foreign witnesses at such time as it determines that it will call such witnesses, and no later than 30 days prior to trial; and (2) to provide a list of domestic witnesses at least 30 days prior to trial, and to update this list as required. Conclusion
Trial is currently scheduled for September 10, 2001.
Therefore, for the reasons set forth above, the motion is granted in part and denied in part.
It is so ordered.