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UNITED STATES v. LITMAN

September 17, 1982

THE UNITED STATES, Plaintiff,
v.
S. DAVID LITMAN and IRVING PORTNOY, Defendants



The opinion of the court was delivered by: COHILL

 The defendants, S. David Litman and Irving M. Portnoy, were indicted by a federal grand jury in a 19 count indictment. They were charged with mail fraud in violation of 18 U.S.C. § 1341 and with conspiracy in violation of 18 U.S.C. § 371. Presently before the court are the following pretrial motions filed by one or both defendants: 1) a joint motion to dismiss the indictment for a variety of allegations of prosecutorial misconduct; 2) Mr. Litman's motion for severance, pursuant to Fed. R. Crim. P. 14; 3) a joint motion to compel discovery, pursuant to Fed. R. Crim. P. 16(a) (1) (A), 16(a) (1) (C), 26.2, the Jencks Act, Local Rule 24 and the Brady rule; 4) Mr. Litman's motion for a bill of particulars, pursuant to Fed. R. Crim. P. 7(f); and 5) Mr. Litman's motion to reconsider Judge Weber's decision denying dismissal of the indictment.

 Our ruling on the joint motion for additional preemptory challenges and Mr. Litman's motion for individual in camera voir dire of prospective jurors will be deferred until time of trial.

 I.

 Motion to Dismiss the Indictment Based on Allegations of Prosecutorial Misconduct

 The defendants have moved to dismiss the indictment against them, alleging a variety of instances of prosecutorial misconduct as grounds for dismissal. Generally, the defendants allege that the Assistant United States Attorney David M. Curry and others, both officially and unofficially associated with the grand jury investigation of the defendants, were personally biased against the defendants. The defendants argue that Mr. Curry maliciously pursued the indictment of Mr. Litman after the then United States Attorney Robert Cindrich had determined that there was not sufficient evidence to indict. The defendants also allege that Mr. Curry deliberately failed to present exculpatory evidence to the investigating grand jury. In addition, they assert that he failed to inform the grand jury of alleged discrepancies between grand jury testimony given by certain key witnesses and earlier statements which had been made by these witnesses. The defendants also argue that Mr. Curry purposely brought irrelevant, inflammatory and misleading evidence before the grand jury so as to prevent an impartial grand jury from reaching an honest decision. The Government has responded, stating that, even if the defendants' various allegations were supported by a factual foundation, there would not have been sufficient misconduct to warrant a dismissal of the indictment. We must agree with the Government. We can find no support for any of the prosecutorial misconduct allegations. In fact, most of these allegations can be summarily dismissed.

 After conducting five days of hearings with testimony of eleven witnesses and reviewing the transcripts of those hearings and exhibits, we find that there has been no evidence which supports the argument that the Government presented misleading and/or inflammatory evidence to the grand jury. Nor, have the defendants convinced this court that the Government, more specifically Mr. Curry, maliciously pursued the indictment of Mr. Litman. The mere fact that United States Attorney Cindrich had not made a final decision as to whether an indictment should or should not be sought is not dispositive of whether or not finally seeking the indictment was justified.

 The allegations that the Government failed to present exculpatory evidence to the grand jury and failed to point out discrepancies in its case must be considered in greater detail. As a general proposition, the prosecution is not obligated to search for and present exculpatory evidence to a grand jury. United States v. Hata & Co., Ltd., 535 F.2d 508, 512 (9th Cir. 1976), cert. denied, 429 U.S. 828, 50 L. Ed. 2d 92, 97 S. Ct. 87 (1976); United States v. Deerfield Specialty Papers, Inc., 501 F. Supp. 796, 804 (E.D. Pa. 1980); United States v. Addonizio, 313 F. Supp. 486 (D.N.J. 1970). Nor is the prosecution obligated to present evidence to the grand jury which would negate culpability, which would bear on the credibility of the witnesses, or which would otherwise be favorable to the accused. United States v. Lasky, 600 F.2d 765, 768 (9th Cir. 1979), cert. denied, 444 U.S. 979, 62 L. Ed. 2d 405, 100 S. Ct. 480 (1979); United States v. Boffa, 89 F.R.D. 523, 530 (D. Del. 1981). If such evidence were obligatory, the grand jury proceeding would become a "minitrial" on the merits. Such a proceeding would be unnecessarily burdensome and wasteful. Even if an indictment should be filed, the defendants could only be found guilty after a guilty plea is accepted or after the completion of a criminal trial in which guilt was established beyond a reasonable doubt. United States v. Ciambrone, 601 F.2d 616, 622 (2d Cir. 1979); United States v. Deerfield Specialty Paper, Inc., 501 F. Supp. at 864.

 The prosecutor has considerable discretion in determining what evidence to present to the grand jury. United States v. Ciambrone, 601 F.2d at 623; United States v. Boffa, 89 F.R.D. at 530. Thus, the prosecution has no obligation to call to the attention of the grand jury every conceivable discrepancy in its case, especially where the prosecutor believes in good faith that the inconsistency is not material. United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir. 1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1526, 55 L. Ed. 2d 541 (1978); United States v. Shober, 489 F. Supp. 393, 407 (E.D. Pa. 1979).

 Despite the wide ranging discretion given to the prosecutor, where a prosecutor is aware of any substantial evidence negating guilt, he should, in the interest of justice, make this evidence known to the grand jury, at least where the evidence might reasonably be expected to lead a grand jury not to indict. United States v. Ciambrone, 601 F.2d at 623; United States v. Boffa, 89 F.R.D. at 530. The prosecutor's right to exercise some discretion in the presentation of evidence to a grand jury does not entitle him to deliberately mislead the grand jury or to engage in fundamentally unfair tactics. United States v. Ciambrone, 601 F.2d at 623. Several courts have suggested that "in a flagrant case of misconduct, and perhaps only where knowing perjury, relating to a material matter, has been presented to a grand jury . . ." may a court dismiss an indictment. United States v. Lasky, 600 F.2d 765, 768 (9th Cir. 1979), citing Costello v. United States, 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406 (1956).

 The defendants must prove that, at the time the Government presented its case to the grand jury, the prosecutor was aware of the existence of exculpatory evidence which could reasonably lead the grand jury not to indict and that he deliberately failed to include it or, at a minimum, to notify the grand jury of its existence. In the case sub judice the defendants have failed to meet this burden.

 At the defendants' request, we have reviewed most of the grand jury transcripts involved with defendants' indictment, and, as stated, have conducted extensive pretrial hearings on the merits of the defendants' allegations of prosecutorial misconduct. Indeed, Mr. Curry appears to have been scrupulously fair and unbiased in his presentation to the grand jury. The defendants have failed to establish that the prosecutor was aware of any exculpatory evidence or discrepancy that would have reasonably led the grand jury not to have indicted the defendants or that he deliberately failed to present such evidence to the grand jury. We, therefore, deny the defendants' motion to dismiss the indictment.

 II.

 Motion to Sever

 Mr. Litman has moved for severance from his co-defendant Mr. Portnoy pursuant to Rule 14 of the Federal Rules of Criminal Procedure. Mr. Litman argues that severance should be granted because, first, the conspiracy charged in count 1 of the indictment has not been asserted in good faith and secondly, a joint trial of the defendants would be highly prejudicial to him, as it would deprive him of the allegedly exculpatory testimony of his codefendant, Mr. Portnoy. The Government has responded, denying the bad faith allegation surrounding the conspiracy charged in count 1 and emphasizing the nature of the crime of conspiracy, thereby attacking the value of Mr. Portnoy's testimony if it were available via severance.

 We deny the defendant's motion for severance based upon his allegations of bad faith. Just as the defendants failed to establish bad faith with respect to their motion to dismiss, Mr. Litman has also failed to establish a factual foundation for his bad faith allegation in support of this motion.

 As for whether or not severance should be granted based upon the possibility of prejudice if Mr. Portnoy cannot testify for Mr. Litman, we note at the onset that any disposition of a severance motion, pursuant to Fed. R. Crim. P. 14, is committed to the sound discretion of the trial court. United States v. Somers, 496 F.2d 723 (3d Cir. 1974), cert. denied, 419 U.S. 832, 42 L. Ed. 2d 58, 95 S. Ct. 56 (1974); United States v. Boffa, 513 F. Supp. 444, 487 (D. Del. 1980). Rule 14 of the Federal Rules of Criminal Procedure provides, in pertinent part, that if the trial court ...


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