"* * * extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States." It is through this provision that the ambit of state law is called into question.
In United States v. Nardello, 393 U.S. 286, 89 S. Ct. 534, 21 L. Ed. 2d 487 (1969) the Court reviewed the relevant Pennsylvania statute, Section 801 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4801, and found that its provisions as they related to extortionate transactions were clearly within the scope of 18 U.S.C. § 1952. While the Supreme Court did not determine the constitutionality of the Pennsylvania statute, Phillips must recognize that " 18 U.S.C. § 1952 charges a Federal crime, and Federal courts are required to consider every element of the crime and every issue raised under each element. The law involved is Federal law, and all issues raised thereunder become Federal issues. If necessary to the resolution of a § 1952 case, a Federal court may interpret state law, but it does so as one step in the process of properly interpreting a Federal criminal statute. * * *" United States v. D'Amato, 436 F.2d 52 (C.A. 3, November 25, 1970), page 54. If defendant Phillips seeks to challenge the constitutionality of a state statute, there are proper ways in which this matter can be raised.
The defendant further alleges that the charges contained in counts two and three of the indictment constitute double jeopardy. The law is that where the offenses involved are not the same, the defense of double jeopardy cannot be validly raised. United States v. Ewell, 383 U.S. 116, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966). "Offenses are not the same 'for purposes of the double jeopardy' clause of the 5th Amendment unless the evidence required to support conviction on one of the indictments would have been sufficient to warrant conviction on the other." United States v. American Oil Company, 296 F. Supp. 538, 540 (D.C.N.J. 1969) and cases cited therein. Accordingly, defendant Phillips' motion to dismiss the indictment will be denied.
The defendant Phillips has also presented a motion for severance alleging that the possible guilt of his co-defendant and his co-defendant's prior criminal record may create such prejudice as to prevent a fair trial. Granting such a motion is a matter for the sole discretion of the trial court. Opper v. United States, 348 U.S. 84, 75 S. Ct. 158, 99 L. Ed. 101 (1954); United States v. Lipowitz, 407 F.2d 597, C.A. 3, 1969, cert. den. Smith v. United States, 395 U.S. 946, 89 S. Ct. 2026, 23 L. Ed. 2d 466 (1969). The burden of proving the need for separate trials rests solely on the movant. Higgins v. United States, 130 U.S. App. D.C. 331, 401 F.2d 396, (1968). "Where proof of the charges against the defendants is dependent upon the same evidence * * *, severance should not be granted except for the 'most cogent reasons.' United States v. Kahn, [381 F.2d 824 (7 Cir. 1967)]." United States v. Johnson, 298 F. Supp. 58, 62 (N.D. Ill., 1969).
In the present case, defendant Phillips has failed to demonstrate any "cogent" reason why the severance should be allowed since there are proper safeguards which the trial court will be able to invoke to prevent any possible prejudice to the defendant Phillips. Accordingly, the motion for severance will also be denied.