The opinion of the court was delivered by: HUYETT
Defendants are charged with violations of the Federal narcotics laws, 21 U.S.C. § 174, 26 U.S.C. §§ 4704(a), 4705(a), 7237(a), 7237(b). They are allegedly involved in a conspiracy to receive, conceal, transport, and sell heroin. Defendants have filed various pretrial motions which are set out in a complete list attached as Exhibit #1. Since the motions present similar allegations, they will be considered together unless circumstances dictate that a motion be considered separately.
MOTIONS FOR DISCOVERY, DISMISSAL AND SEVERANCE
Four defendants have filed motions for discovery and inspection pursuant to Fed. R. Crim. P. 16. Since the United States voluntarily has supplied to all defendants transcripts of tapes of the intercepted wire communications, these motions are moot.
Eugene Lawson has filed a motion to dismiss the indictment pursuant to Fed. R. Crim. P. 12 on the ground that this indictment places him in jeopardy of prosecution and conviction twice for the same alleged offense. Lawson was arrested on December 23, 1970, charged with possession and transportation of heroin and cocaine on October 6, 1970, and indicted for that offense on February 3, 1971.
Lawson contends that he was also arrested on October 6, 1970, in New Jersey, charged with possession and transportation of narcotics, taken before a Federal Magistrate in New Jersey, bound over to the Grand Jury, and released on bail. No indictment, however, has issued as a result of the October 6, 1970, arrest. Consequently, Lawson has not been placed in double jeopardy since jeopardy does not attach in a non-jury case until the court has begun to hear evidence or, in a jury case, when the jury has been impaneled and sworn.
Newman v. United States, 133 U.S. App. D.C. 271, 410 F.2d 259 (D.C. Cir. 1969), cert. den., 396 U.S. 868, 90 S. Ct. 132, 24 L. Ed. 2d 121 (1969); United States v. American Oil Company, 296 F. Supp. 538 (D.N.J. 1969).
Three defendants have filed motions for a separate trial pursuant to Fed. R. Crim. P. 14. Severance, of course, is within the discretion of the trial court. United States v. Barber, 442 F.2d 517 (3 Cir. 1971); United States v. Cantor, 328 F. Supp. 561 (E.D. Pa., filed May 26, 1971). The burden is upon the moving defendant to come forward with facts demonstrating that he will be so severely prejudiced by a joint trial that it would amount to denying him a fair trial altogether. United States v. Riccobene, 320 F. Supp. 196, 200 (E.D. Pa. 1970). Furthermore, a general unsupported assertion of prejudice is not enough to justify severance. Williamson v. United States, 310 F.2d 192, 197 (9 Cir. 1962).
In the instant case, defendants' assertions that they will be severely prejudiced by a joint trial are merely speculative. They contend that a joint trial will result in the jury (1) hearing evidence which is only admissible as to some defendants, and (2) trying the cases of defendants whose defenses may be antagonistic or inconsistent with each other. Possible prejudice from this source can be prevented, however, by proper instructions to the jury and is not sufficient justification for severance.
The moving defendants also contend that their trials should be severed because very little of the voluminous evidence to be presented by the Government involves them and they will be put to great expense by a joint trial.
Such inconvenience must be weighed, however, against the policy favoring joint trials for the sake of judicial efficiency and economy. Joint trials avoid duplicating time-consuming and expensive trials, conserve public funds, diminish inconvenience to witnesses and public authorities, and result in those accused of crime being tried promptly. United States v. Barber, supra, 442 F.2d at 529. Thus, inconvenience is insufficient justification for severance.
All defendants have joined in motions to suppress the telephone communications intercepted by the United States. Testimony and argument were heard at hearings held on August 9, 1971, August 30, 1971 and September 20, 1971.
Upon the application of Robert C. Ozer, Special Attorney, Organized Crime Division of the Department of Justice, and the affidavit of William J. Collins, Special Agent, Bureau of Narcotics and Dangerous Drugs, an Order was entered on March 31, 1970 by John W. Lord, Jr., Chief Judge of this district, authorizing the interception of communications on telephone number 215-747-8140 for a period of twenty days. Based upon a similar application and affidavit, an Order was entered on March 31, 1970 by Mitchell H. Cohen, District Judge for ...