With these principles in mind, it is evident that the defendants' motion is without merit under the circumstances presented here. First, although the indictment charges both willful and negligent conduct (the subject of another defense motion addressed above), the dates of the alleged offenses are specified. Furthermore, according to the government's response to this motion the defense has already been supplied with voluminous records which would specify, presumably, minute detail. The defendants have not controverted this statement.
In closing, the government is not required to "weave the information at its command into the warp of a fully integrated trial theory for the benefit of the defendants." United States v. Addonizio, supra, at 64.
For the foregoing reasons, the motion for a bill of particulars must be denied.
6. Motion to Sever Defendant Bell
Defendant Thomas E. Bell, Jr. (Bell) has moved to sever count one, arguing that he will be prejudiced because he is not named in count one, and that evidence as to that count will be improperly considered by the jury in determining his guilt under the remaining counts. Count one charges the corporation and Fortugno only with discharging pollutants on May 17, 1978. All three defendants are charged in counts 2 to 28 with discharging pollutants on enumerated dates between March 9, 1979 and April 19, 1979. As Bell correctly points out, this question is governed by Fed.R.Crim.P. 8(b), which was found not to have been violated in a situation very similar to this one due to the "series of acts or transactions" language of the Rule. United States v. Rickey, 457 F.2d 1027 (3d Cir.), cert. denied sub nom. Ciotti v. United States, 409 U.S. 863, 93 S. Ct. 153, 34 L. Ed. 2d 110 (1973). I note that the individual discharge alleged in count one is a part of the series of discharges alleged in the remainder of the counts. Furthermore, severance is unwarranted if the jury will be able to "compartmentalize" the evidence as to count one, and not consider it against Bell in determining his guilt as to the other counts. United States v. Dansker, 537 F.2d 40, 62 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). I believe limiting instructions will properly facilitate such compartmentalization. Furthermore, judicial economy will not be served by severance, and this is a proper consideration in evaluating the motion. United States v. Albowitz, 380 F. Supp. 553, 555 (E.D.Pa.1974) (Bechtle, J.). Finally, the government has represented that much of the evidence as to the other counts will predate the discharge date alleged in count one. Evidence which is admissible in two separate trials is another factor which militates against severance. United States v. Krohn, 573 F.2d 1382, 1389-90 (9th Cir.), cert. denied sub nom. Hahn v. United States, 436 U.S. 949, 98 S. Ct. 2857, 56 L. Ed. 2d 792 (1978).
For these reasons defendant Thomas E. Bell, Jr.'s motion to sever must be denied.
7. Motion to Dismiss for Violation of Fed.R.Crim.P. 6(d) Defendants Oxford Royal Mushroom Products, Inc. and Fortugno
Defendants Oxford Royal Mushroom Products, Inc. and Alfred E. Fortugno have moved for dismissal of the indictment on the ground that Assistant U.S. Attorney Chasan was an unauthorized person in the grand jury room in violation of Fed.R.Crim.P. 6(d) in that he acted as both a witness and the prosecutor. The same issue was raised in defendant's motion to disqualify Mr. Chasan as trial counsel. I conducted a thorough in camera inspection of the grand jury transcripts in order to determine whether defendants' contention had any basis in fact, and concluded that Mr. Chasan had done nothing improper or prejudicial. I hereby incorporate the findings of fact and conclusions of law made in open court on January 3, 1980 in regard to that motion into my ruling on the motion now before me. Also, I note that the Third Circuit has recently held dismissal unwarranted in a case which is factually very similar to this one. See United States v. Birdman, 602 F.2d 547, 559-61 (3d Cir. 1979), cert. denied, 444 U.S. 1032, 100 S. Ct. 703, 62 L. Ed. 2d 668 (1980). In Birdman, as here, the presentations of the United States Attorney to the grand jury did not amount to independent substantive evidence, nor were they in any way improper. Id.
For these reasons defendants Oxford Royal Mushroom Products, Inc. and Alfred E. Fortugno's motions to dismiss the indictment due to a violation of Fed.R.Crim.P. 6(d) must be denied.
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