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UNITED STATES v. COHEN

February 10, 1978

UNITED STATES OF AMERICA
v.
ROBERT BAER COHEN, REYNOLD YANNESSA



The opinion of the court was delivered by: BECHTLE

 BECHTLE, District Judge.

 Defendants Robert Baer Cohen ("Cohen") and Reynold Yannessa ("Yannessa") are charged in a twenty-count indictment with fraud, extortion and racketeering in the selection of architects by the School Board of Bensalem Township for work completed in that school district. The first thirteen counts of the indictment charge Cohen, attorney for the School Board, and Yannessa, a School Board member, with violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and a series of other crimes *fn1" which constitute the pattern of racketeering activity necessary for the RICO charges. Counts fourteen and fifteen of the indictment charge Yannessa separately and allege that he made false declarations before the federal grand jury, in violation of 18 U.S.C. § 1623. Counts sixteen through eighteen of the indictment charge Yannessa separately and allege that he filed three United States income tax returns containing false statements, in violation of 26 U.S.C. § 7206(1). The last two counts of the indictment charge Cohen separately and allege that he filed two United States income tax returns containing false statements, in violation of 26 U.S.C. § 7206(1).

 Presently before the Court are: Cohen's motion for a severance of counts fourteen through twenty of the indictment, pursuant to Fed.R.Crim.P. 12(b)(2) and 8(b); Cohen's motion for relief from prejudicial joinder by severing counts fourteen and fifteen of the indictment, pursuant to Fed.R.Crim.P. 12(b)(5) and 14; Yannessa's motion to suppress his grand jury testimony, pursuant to Fed.R.Crim.P. 12(b)(3); and, Yannessa's motion to dismiss the first three counts of the indictment, pursuant to Fed.R.Crim.P. 12(b)(2). For the reasons stated below, each motion will be denied.

 Motions for Severance

 Fed.R.Crim.P. 8(b) provides that two or more defendants may be charged in the same indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions which constitute an offense or offenses. The rule also provides that defendants may be charged in one or more counts together or separately and that all of the defendants need not be charged in each count of the indictment. Severance is not required where the indictment charges that the offenses joined constitute a single series of acts or transactions. United States v. Somers, 496 F.2d 723, 730 (3d Cir.), cert. denied, 419 U.S. 832, 42 L. Ed. 2d 58, 95 S. Ct. 56 (1974).

 Separate income tax offenses against individual coconspirators may be joined under Fed.R.Crim.P. 8(b) where, as in this case, the underlying crimes are alleged to have generated the alleged income tax violations. United States v. Isaacs, 493 F.2d 1124, 1159 (7th Cir.), cert. denied, 417 U.S. 976, 41 L. Ed. 2d 1146, 94 S. Ct. 3183 (1974); United States v. Roselli, 432 F.2d 879, 899 (9th Cir. 1970), cert. denied, 401 U.S. 924, 91 S. Ct. 883, 27 L. Ed. 2d 828 (1971). The alleged tax offenses arise directly out of the pattern of systematic extortion activity because the alleged unreported income on the defendants' United States income tax returns constitutes the proceeds received from defendants' alleged acts of extortion. The tax counts, resulting from defendants' common scheme of racketeering activity, may be proved jointly with the same facts necessary to prove the extortion offenses. The perjury counts against Yannessa are also directly related to the pattern of systematic extortion activity, because Yannessa's appearance before the grand jury was in connection with its investigation into the allegations of illegal activities involving the Bensalem Township School Board and School District. Yannessa's testimony before the grand jury, which includes allegedly false statements fabricated by Cohen and Yannessa, is closely related to the obstruction of justice and racketeering conspiracy counts of the indictment, and may be proved jointly by the same facts at trial. The alleged income tax and perjury violations are all part of the same series of acts or transactions, and are properly subject to joinder under Fed.R.Crim.P. 8(b). Therefore, Cohen's motion for severance of counts fourteen through twenty of the indictment, pursuant to Fed.R.Crim.P. 12(b)(2) and 8(b), will be denied.

 In the alternative, Cohen argues that the Court should exercise its discretion under Fed.R.Crim.P. 14, *fn2" which provides relief from prejudicial joinder, by ordering an election or separate trial of the perjury counts against Yannessa. Cohen's claim of prejudice is based upon the premise that the trial jury will discredit in advance any defense presented because of the grand jury's rejection, as evidenced by the perjury counts, of Yannessa's claim of innocence. Further, Cohen argues that the remedial measure of severance of the perjury counts from the indictment would eliminate the risks of an improper trial or ineffective jury instructions. In response, the Government argues that it is unwarranted and speculative to assume that the trial jury would irrationally ignore the fundamental instructions given by the Court.

 Relief from prejudicial joinder pursuant to Fed.R.Crim.P. 14 is within the discretion of the trial court. United States v. Somers, supra, 496 F.2d at 730. In Somers, the Third Circuit stated that the primary consideration in the court's determination of the existence of prejudice to a defendant is whether the jury can reasonably be expected to compartmentalize the evidence as it relates to the separate defendants in view of its volume and limited admissibility. Id., at 730. Speculation that the trial jury will not follow the instructions of the Court with respect to compartmentalizing the evidence of the perjury counts of the indictment will not justify a severance under Fed.R.Crim.P. 14. See United States v. Frumento, 426 F. Supp. 797, 809-810 (E.D.Pa. 1976), aff'd 563 F.2d 1083, 1092 n.19 (3d Cir. 1977); see also United States v. Homer, 545 F.2d 864, 868 n.11 (3d Cir. 1976), cert. denied, 431 U.S. 954, 97 S. Ct. 2673, 53 L. Ed. 2d 270 (1977). In an earlier Frumento memorandum, we stated the general rule that defendants jointly indicted should be tried together, in the absence of a clear showing that a defendant will be so severely prejudiced by a joint trial that it will in effect deny him the right to a fair trial. United States v. Frumento, 409 F. Supp. 143, 144 (E.D.Pa. 1976), aff'd 563 F.2d 1083, 1092 n.19 (3d Cir. 1977). There has been no clear showing that Cohen will be so severely prejudiced by a joint trial with Yannessa that it will deny Cohen a fair trial. Therefore, Cohen's motion for relief from prejudicial joinder by ordering an election or a separate trial of counts fourteen and fifteen, pursuant to Fed.R.Crim.P. 12(b)(5) and 14, will be denied.

 Motion to Suppress Grand Jury Statements

 Prior to Yannessa's appearance before the federal grand jury on September 15, 1977, the Assistant United States Attorney warned Yannessa that Yannessa was a subject of the investigation, that he had the right to remain silent, that anything he said could and would be used against him in other proceedings, that he had a right to be represented by counsel, and that if he could not afford counsel an attorney would be appointed to represent him. These Miranda warnings *fn3" were given to Yannessa both in an office and in the presence of the grand jury prior to Yannessa's testimony. Yannessa had consulted with Cohen, attorney for the School Board of Bensalem Township, prior to Yannessa's appearance before the grand jury, but Yannessa did not retain counsel for assistance during his testimony. However, Yannessa stated during his grand jury testimony that he would need an attorney for advice with respect to a particular line of questioning. The interrogation continued without assistance of counsel, and the Assistant United States Attorney told Yannessa that he would have to answer his questions at that time unless Yannessa invoked one of his constitutional rights. *fn4" Yannessa did not refuse to answer the prosecutor's questions, but now moves to suppress his grand jury statements, pursuant to Fed.R.Crim.P. 12(b)(3), and for the discharge of the perjury counts.

 Yannessa argues that his inability to consult with counsel, contrary to his request, during the grand jury examination resulted in the denial of his right to due process, his right against self-incrimination, and his right to counsel, as protected by the Fifth and Sixth Amendments to the United States Constitution. In addition to the constitutional grounds, Yannessa urges the Court to exercise its supervisory powers over the grand jury by suppressing Yannessa's testimony because he was not effectively informed by counsel that his Fifth Amendment right against self-incrimination is not waived once some questions have been answered. In response, the Government argues that the warnings given to Yannessa were not deficient because there is no constitutional requirement to warn a grand jury witness. The Government contends that, because Yannessa never asserted his right against self-incrimination, and because Yannessa never indicated any desire to cease answering all questions before consulting with an attorney, there was no deprivation of Yannessa's Fifth and Sixth Amendment rights. Finally, the Government argues that Yannessa's motion should be denied because Yannessa's reluctance to answer the questions occurred at a time in the examination after that testimony which is the subject matter of the perjury counts of the indictment.

 With respect to Yannessa's constitutional argument, the United States Supreme Court held in United States v. Mandujano, 425 U.S. 564, 48 L. Ed. 2d 212, 96 S. Ct. 1768 (1976), that the warnings required during custodial interrogation under Miranda v. Arizona, supra, need not be given to a grand jury witness called to testify about criminal activities in which he may have been involved. Failure to give the Miranda warnings to a putative defendant who appears before a grand jury is no basis for suppressing the declarant's testimony in a subsequent prosecution of the witness for perjury based on such statements. United States v. Mandujano, supra, 425 U.S. at 579-580. The warnings ...


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