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December 17, 1970

Harry RICCOBENE, John Scially, Joseph Zavod

Hannum, District Judge.

The opinion of the court was delivered by: HANNUM

HANNUM, District Judge.

 Presently before the court is a motion by all three defendants for new trial pursuant to Fed. R. Crim. P. 33. A jury convicted the defendants of conspiracy and interstate transportation of a stolen security in violation of 18 U.S.C. ยงยง 371, 2315, 2314 and 2. Very able and skillful defense counsel have carefully reviewed the record and have cited thirty (30) reasons in support of the motion. These included practically every ruling of the court which was adverse to the defendants. In the interests of judicial economy and in an effort to minimize and possibly avoid confusion, the court will attempt to collectively discuss those reasons having a related subject matter and will only review each individual contention where necessary.

 1. Denial of defendants' motion for a continuance and/or severance.

 On March 13, 1970, defense counsel filed, among other motions, a motion for a continuance and a motion for severance. The contentions in support of each of these motions were substantially similar. They basically involved counsel's alleged inability to properly prepare the case for trial because of the incarceration of Harry Riccobene, one of the defendants, because of a parallel schedule set in another federal criminal matter in which counsel was involved and because of the government's failure to cooperate in pretrial discovery.

 It is clear, and defense counsel agree, that the granting or denial of a motion for a continuance is a matter which is clearly within the discretion of the trial court. United States v. Weathers, 431 F.2d 1258 (3d Cir. October 6, 1970). The contention is, however, that under the facts of this particular case that discretion was abused.

 In determining whether to deny this motion, the court considered several factors. Defense counsel had entered his appearance in the case on January 29, 1970, and trial did not commence until April 6, 1970. Counsel for the government represented to the court that a great amount of pretrial discovery had been effected and that probable agreement on any remaining discovery could and would be rapidly achieved. The court also considered the fact that the state incarceration of defendant Riccobene was not one of brief duration, but rather would involve a continuance of possibly several years. Furthermore, at the trial of this case, counsel's able and diligent efforts on behalf of his clients clearly reflects the adequacy of his preparation and the absence of any prejudice from the refusal of his request for additional time.

 It is interesting to note that while one of the most frequent complaints in todays judicial process is the delays which a defendant must suffer prior to his case reaching trial, these defendants complain of the speed with which they were brought to trial. One of the reasons for the government's haste in this case was their belief which they represented to the court at oral argument on this motion that the life of their key witness, the so-called "informer", was in jeopardy and that any further delays in reaching trial might result in his permanent unavailability.

 In light of the foregoing considerations the court concluded that it would be inappropriate to grant a continuance and now concludes that this exercise of judicial discretion was not abused.

 Defendants' motion for a severance was based solely upon the state incarceration of the defendant, Harry Riccobene. Counsel contended that because of this fact, the defendants were unable to confer inter se and with counsel, and therefore counsel was unable to properly prepare the case for trial.

 Again it is clear that this matter is within the sound discretion of the trial court and again it is contended that the denial of the requested severance was an abuse of that discretion.

 In determining the disposition of this motion, the court again considered a number of relevant factors. Here the defendants were jointly indicted and charged with the commission of the same offenses. The government's evidence would be substantially similar against all three defendants and the same defense counsel who would conduct the cross examination of the government witnesses represented all three defendants. The court again noted that the state incarceration of defendant Riccobene could possibly extend for several years. But most importantly, the indictment charged all three defendants with conspiracy, and a severance as to one would visit undue hardship and expense upon the government.

 In weighing these factors against defense counsel's assertion that he could not properly prepare for trial without being able to consult with his clients simultaneously, the court concluded that the defendants clearly failed to sustain their burden of proving that they would be so severely prejudiced by a joint trial that it would in effect deny them a fair trial. United States v. Tomlin, 380 F.2d 373 (3d Cir. 1968); United States v. Barber, 296 F. Supp. 795 (D. Del. 1969), reversed on other grounds as to Calvin Jerome Loper, 429 F.2d 1394 (3d Cir. 1970); United States v. Crisona, 271 F. Supp. 150, 154 (S.D.N.Y. 1967).

 2. Denial of motion to dismiss the indictment.

 In support of this motion, defense counsel contended that the language used in the indictment was at variance with that contained in the statute.

 The law on this point is well settled, Pereira v. United States, 202 F.2d 830 (5th Cir. 1953), affirmed, 347 U.S. 1, 74 S. Ct. 358, 98 L. Ed. 435 (1954); United States v. Koptik, 300 F.2d 19, 22 (7th Cir. 1962), and therefore the court concluded at that time, as ...

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