Full opinion text
MEMORANDUM AND ORDER HERBERT F. MURRAY, District Judge. Defendant Mandel has moved the Court for dismissal of the indictment or in the alternative, for suppression of evidence and other appropriate relief for alleged prosecu-torial misconduct. It is claimed that the proceedings in this case have been so “infected” by such misconduct .that “the Defendant has been deprived of his constitutional rights to an unbiased, unprejudiced, independent and informed Grand Jury, to due process of law, and to a fair trial.” Other defendants in the case have adopted the motion, although none has individually filed any supporting memoranda or affidavits. Defendant Mandel raises five points in support of his motion. They are as follows: 1. The prosecution abused the subpoena power by employing it for the purpose of conducting private interrogations. 2. The prosecutors violated their duty to present exculpatory evidence to the grand jury- 3. The intimidation of witnesses deprived the defendant of an unbiased grand jury. 4. The prosecutors abused the process of this Court in connection with the indiscriminate issuance of subpoenas duces tecum, amounting to an unlawful search and seizure and an impermissible circumvention of the requirements for subpoenas in connection with tax investigations. 5.The prosecutor’s intemperate remarks at the arraignment hearing amounted to professional misconduct. In its response to defendant’s motion, the government asserted that these claims are false or otherwise without merit. It contended there was no abuse of power; that the entire investigation was carefully and thoroughly documented. It offered to supply to the Court for its review every subpoena issued during the investigation, the verbatim transcribed testimony of every witness who appeared before the grand jury, every file, memorandum or other documentation of any step or action taken by any government representative in connection with the case, and if requested, sworn statements from any and every government representative who worked on the investigation, detailing his investigative activities. In view of the conclusory nature of the allegations in both defendant’s motion and the government’s response, the Court lacked sufficient factual information to make an informed decision on the claim of prosecutorial misconduct. In order to flesh out the charges made, defense counsel sought an evidentiary hearing. Government counsel, while leaving the matter to the Court’s discretion, observed in its response to the motion that the publicity which might be generated by an evidentia-ry hearing conducted shortly prior to the impaneling of a jury and commencement of trial, might operate to prejudice the rights to a fair trial of other defendants in the case who already were seeking severances and change of venue because of claimed prejudicial publicity. It was suggested instead that any evidentiary hearing be deferred until after the trial. The Court met with counsel on March 23rd to discuss how the matter should be handled. After hearing counsel, the Court directed that the defense amplify its factual contentions by the filing of supporting affidavits by March 29, 1976 and that the government file opposing affidavits by April 2, 1976. The Court indicated that upon the filing of the affidavits it would determine whether or not to make them a matter of public record immediately or whether they should be sealed to be opened at an appropriate time after trial. The Court has decided to adopt the latter course, although general references to the content of some of the affidavits will be made in the discussion which follows of the points raised by the motion. Did the prosecution abuse the subpoena power by employing it for the purpose of conducting private interrogations? The defendant contends that throughout the grand jury investigation, the office of the United States Attorney caused the issuance of grand jury subpoenas, under color of law, for the purpose of compelling persons to appear at the office of the United States Attorney, so as to subject such persons to private interviews by the staff of the United States Attorney, thereby abusing the process of this Court. The affidavits show that approximately five people were subpoenaed for private interviews. Defendant contends that such a use of the subpoena power to secure private interviews in government offices is strongly condemned as an abuse of process, stating: It is inherently coercive; it provides opportunities for subtle intimidation; and when used to screen witnesses favorable to the defendant, it is manifestly prejudicial. (Memorandum at 8) The government in its affidavit responds to defendant’s contentions as follows: No one subpoenaed was ever refused the opportunity to appear before the grand jury if that was his preference. No one subpoenaed, to the knowledge of the affi-ant, was ever knowingly led to believe that he did not have the absolute right to appear before the grand jury if he so chose. Many people of course preferred not to appear; such preferences were honored, wherever possible, consistent with the requirements of sound investigative procedure. (Affidavit at 3) It is the opinion of the Court that the defendant has failed to make out a sufficient showing of abuse of process.to warrant dismissal of the indictment. This investigation was a lengthy one, and it is clearly no abuse of process for five people to be subpoenaed for interviews but not brought before the grand jury. In addition, the Court thinks it is sound and customary procedure for the prosecutors to interview witnesses before taking them to the grand jury in order to eliminate unnecessary material before the grand jury and save the time of the grand jurors. Defendant relies in part on Durbin v. United States, 94 U.S.App.D.C. 415, 221 F.2d 520 (1954). The facts of this case deserve attention because it is apparent that the court did not hold that a prosecutor could never use the subpoena power to conduct interviews. In that case the prosecutor told the witness he could not leave the city until the prosecutor gave him permission. The witness left and was prosecuted for traveling in interstate commerce with intent to avoid giving testimony before the grand jury in a criminal proceeding. The court stated: It is quite apparent that the Assistant thought the grand jury subpoena empowered him to restrain appellant’s movements indefinitely, or at least until appellant made a statement which satisfied him; and this despite the fact that the grand jury recessed. (221 F.2d at 522) In such extreme circumstances, the court held that the defendant could not be prosecuted for avoiding grand jury testimony. The instant case is clearly not such an extreme one. The decisions in United States v. Gurney, 393 F.Supp. 683 (M.D.Fla.1974), and United States v. Keen, 509 F.2d 1273 (6th Cir. 1975), also relied on by the defendant, are not relevant to grand jury proceedings but hold that the government cannot issue subpoenas to compel witnesses to attend pretrial interviews. On the other hand, courts have commented on the screening function played by the prosecutor in presenting a case before a grand jury. See United States v. Johns-Manville Corporation, 213 F.Supp. 65 (E.D. Pa.1962). See also United States v. Miller, 508 F.2d 588 (5th Cir. 1975), in which the seven dissenters reasoned: The U. S. Attorney is the guiding arm of the grand jury, concerned with the orderly presentation of information before that body. It is customary practice in the courts for documents and witnesses to be subpoenaed in advance to eliminate unnecessary material, allow for the orderly presentation of evidence, and save the time of grand jurors. (508 F.2d at 594) This Court agrees with the reasoning in Miller that the prosecutor may, and even should, take an active role in organizing the presentation of witnesses and documents before the grand jury to avoid needless repetition of evidence and to conserve the time of the grand jurors. Therefore, in the absence of compelling evidence of abuse of process, such as that in Durbin, supra, this Court will not dismiss an indictment because the prosecutors used the subpoena power to interview witnesses who were not subsequently brought before the Grand Jury. Such compelling evidence is lacking in the instant case where it has been shown only that five persons were interviewed privately and were not brought before the grand jury. Is there a duty of the prosecutors to present exculpatory evidence before the grand jury? Defendant contends that key witnesses, with substantial exculpatory information directly contradicting the allegations of the indictment, were purposefully not taken before the grand jury investigating this matter. The Court does not consider the several instances of witnesses not being called before the grand jury outlined in the affidavits sufficient to warrant dismissal of the indictment. In the first place, the Court notes that the affidavits show that the defendant was given the opportunity to present the government with a list of exculpatory witnesses to be called before the grand jury but decided not to do so. The fact that the government gave the defendant that opportunity is an important factor in determining whether the government failed to present exculpatory information before the grand jury. Second, the Court, after reviewing the decisions of other courts, does not agree with the defendant’s contention that the government must present all information that might be exculpatory to the grand jury. As stated in a recent article on the history and functioning of grand juries: Along these same lines is the question of whether the prosecutor should be obliged to present evidence to the grand jury that is favorable to the prospective defendant. At trial, the prosecutor must disclose such exculpatory evidence to the defense. But in most states he is not bound to make such disclosures to the grand jury. The rationale for this is again related to preventing adversary proceedings in the grand jury room. In addition, determining what is or is not or may be exculpatory is often difficult. Items of evidence that do not appear to be terribly meaningful to a prosecutor preparing to present a case to the grand jury may take on altogether different significance when viewed from the standpoint of the defense counsel at trial. It might place an unmanageable burden on the prosecutor at this stage to require him to discern and disclose possible matters of exculpation. At the same time certain items, such as confession by another to the crime the target is being charged with, are so obviously exculpatory that they cannot escape notice. (M. Frankel and G. Naftalis, ‘The Grand Jury,’ The New Leader, Nov. 10, 1975, at 22) The court in Loraine v. United States, 396 F.2d 335 (9th Cir. 1968), held that the trial court’s refusal to invalidate an indictment because the government did not produce before the grand jury all the evidence in its possession tending to undermine the credibility of witnesses appearing before that body was not error, stating: The suppression by the prosecution at the trial, of evidence favorable to the accused violates due process where the evidence is material either as to guilt or punishment irrespective of the good faith or bad faith of the prosecution. . . . Evidence available for use at the trial may be material within the meaning of this rule, even though it goes only to the credibility of a witness. . However, the duty of prosecuting authorities at the trial, and their duty when presenting a case before a grand jury, are not necessarily the same. Thus, an indictment, if returned by a legally constituted and unbiased grand jury and valid on its face may not be dismissed because it is based upon hearsay testimony . , incompetent evidence . . , or illegally seized evidence . Similarly, we hold that the trial court did not err in refusing to invalidate a federal indictment because the Government did not produce before the grand jury all evidence in its possession tending to undermine the credibility of the witnesses appearing before that body. Loraine was accorded the full protection of the Fifth and Fourteenth Amendments when, at the trial on the merits, he was permitted to expose all the facts bearing upon his guilt or innocence. (396 F.2d at 339) Defendant relies in part on United States v. Basurto, 497 F.2d 781 (9th Cir. 1974). This case, however, has a narrow holding which is not directly applicable to the instant case. There the court held that the due process clause was violated when a defendant had to stand trial on an indictment which the government knew was based partially on perjured testimony, when the perjured testimony was material, and when jeopardy had not attached. The court did not hold that injustice resulted from the withholding merely of exculpatory information. Defendant further relies on United States v. DeMarco, 401 F.Supp. 505 (C.D.Cal.1975). The court there held that the prosecutor’s failure to inform the grand jury of defendant’s colorable claim that the California charge was improperly brought by the government in an attempt to dissuade defendant from seeking transfer to California of a criminal proceeding in the District of Columbia, required dismissal of the indictment. The court stated that the grand jury was entitled to know that the charge could be attacked as an unjustifiable exercise of the charging power. In that case, the disclosure required of the prosecutor went directly to the power of the grand jury to act at all. Exculpatory evidence, on the other hand, does not negate the entire authority of the grand jury and need not be disclosed. Defendant relies heavily on Johnson v. Sup. Ct. of California, 38 Cal.App.3d 977, 113 Cal.Rptr. 740 (1974), aff'd, 15 Cal.3d 248, 124 Cal.Rptr. 32, 539 P.2d 792 (1975). In Johnson, prior to submission of the matter to the grand jury, petitioner’s testimony at a preliminary hearing led the magistrate to dismiss the complaint charging him with the same offense. The district attorney did not bring this testimony to the attention of the grand jury. The court dismissed the indictment. The decision, however, was based entirely on statutory and not constitutional grounds. The court specifically stated that it need not consider petitioner’s due process argument. Nor did the court hold that the prosecutor had a duty to present all exculpatory evidence before the grand jury. Rather, it relied oh the fact that the evidence the government had failed to present tended to “negate guilt.” This is the same standard found in the ABA Standards, The Prosecution Function, § 3.6(b): The prosecutor should disclose to the grand jury any evidence which he knows will tend to negate guilt. It would be difficult in the usual case for a court to know at the pretrial stage what evidence is sufficient to negate guilt. The court does not know what evidence the grand jury had before it in order to determine what further evidence it should have had. It would be an undue interference with the grand jury for a court to attempt to surmise what significance the grand jury would have attached to the testimony of various witnesses who were not called before it. Only in a case in which the evidence clearly would have negated guilt or undermined the authority of the grand jury to act at all should a court act. Otherwise, a court runs the risk of interfering too much with the grand jury process and does so largely on the basis of guessing what evidence a grand jury might have found persuasive. Finally, in its affidavit, the government has explained to the Court’s satisfaction its failure to call certain witnesses before the grand jury. The government also makes the following general statement: No witness with evidence assessed by prosecutors to be in fact exculpatory was, to our knowledge, not brought before the grand jury. On the contrary, a conscious effort was made to bring any such witness before the grand jury; so far as affiant is aware, that was done in every known instance. In the light of thé defendant’s failure to present clear and convincing evidence of prosecutorial misconduct as to the presentation of exculpatory evidence before the grand jury, the Court must accept the government’s statement that it did present such exculpatory evidence. Further, as the Court has stated, there is no legal duty upon the prosecutor to present the grand jury with every piece of possible exculpatory evidence in its possession. Such a duty is reserved for the trial stage of the proceedings. The Court holds, therefore, that defendant’s allegations as to the presentation of exculpatory information do not warrant the dismissal of the indictment. Did intimidation of witnesses deprive the defendant of an unbiased grand jury? Defendant’s claim of intimidation appears to be two-pronged. On the one hand, it is contended that in the course of appearances of witnesses before the grand jury, the prosecutors, out of the presence of the grand jury, in conferences with the witnesses or their attorneys, expressed dissatisfaction or disbelief in the testimony being given, and extended the opportunity to recant. On the other hand, it is claimed that some witnesses were put in fear by being advised that they might be the subject of investigation themselves for unrelated activity in which they had been engaged, and that on occasion witnesses were interrogated before the grand jury intensely over a period of days at great strain. The difficulty the courts have with remarks of prosecutors suggesting that a witness is lying is that such remarks may unduly prejudice the grand jury’s deliberations and lead the jurors to return an indictment on the basis of these remarks. If the remarks are not made before the grand jury this difficulty is eliminated. The cases cited by defendant all deal with remarks made by the prosecutor to witnesses before the grand jury. In United States v. Wells, 163 F. 313 (D.Idaho, 1908), the witnesses questioned were also potential defendants and were subsequently indicted upon the evidence taken. The court held the prosecutor was guilty of misconduct, not only for the manner in which he examined the defendants but also because he addressed the grand jury prior to its deliberation, improperly expressing his opinion that the defendants were guilty. In United States v. DiGrazia, 213 F.Supp. 232 (N.D.Ill.1963) the prosecution, in the face of invocation by defendant of her Fifth Amendment privilege against self-incrimination, asked her questions which, by their form and manner, reflected adversely upon her in the eyes of the grand jury. The incidents reported by defendant in the affidavits filed in the present case can be distinguished in two ways from the cases just discussed: 1. The remarks of the prosecutor were not directed to the defendants themselves but to witnesses who were not prospective defendants, and 2. The remarks were not made before the grand jury but in private interviews. In view of these distinctions, the prosecutor’s remarks could not have unfairly influenced the grand jury against the defendants in the present case since it is not alleged that' the grand jury ever knew about these remarks if they were in fact made. Further, it is not alleged or suggested that the tactics of the prosecutors caused the witnesses to change their minds and to testify against the defendant when they had planned to testify in his behalf. Defendant cannot show that he was prejudiced by the tactics attributed to the prosecution since his witnesses remained firm in the face of the alleged intimidation. Nor does the Court think that advising some witnesses that they might be the subject of an investigation themselves constitutes misconduct on the part of the prosecutors. On the contrary, it is the prosecutor’s duty to make witnesses aware of any potential investigations so those witnesses can conduct their actions accordingly- The government in its affidavit states: No witness was, to the knowledge of affi-ant, ever falsely advised that he was a subject or potential subject of investigation. Furthermore, such advice was given only where appropriate and only for legitimate purposes. The Court accepts the government statement and finds there was no prosecutorial misconduct involved in advising witnesses of possible investigations. Again, the defendant has failed to allege that any witnesses changed their minds because of such advice and thus has not shown he was prejudiced thereby. Did the prosecution abuse the Court’s process in connection with grand jury subpoenas duces tecum? Defendant contends that the prosecutors in this case abused the process of the Court by issuing, indiscriminately and unreasonably, subpoenas duces tecum to banks and other institutions in connection with which it is alleged the defendant had a reasonable expectation of privacy. Specifically it is claimed that the use of such subpoenas amounted to an unlawful search and seizure in the following respects: 1.indiscriminate and unreasonable use of vast numbers of subpoenas; 2. issued without regard to whether they were returnable on a day when the grand jury was in session; 3. issued in the broadest form without any attempt to limit their command to reasonable bounds; 4. required the assembly of huge volumes of materials fed informally to prosecutors; 5. no effort at specification; and 6. multiple subpoenas issued in series. The defense asserts that the decision in United States v. Miller, 500 F.2d 751 (5th Cir. 1974) compels the conclusion that the circumstances of the issuance of the subpoenas in the present case constituted an illegal search and seizure. The Fifth Circuit reconsidered the holding in Miller some months after the initial decision. In the face of a vigorous dissent, the court refused to grant a rehearing en banc by an eight to seven vote. United States v. Miller, 508 F.2d 588 (5th Cir. 1975). Certiorari was granted in June, 1975 and oral argument heard on January 12, 1976. United States v. Miller, 421 U.S. 1010, 95 S.Ct. 2414, 44 L.Ed.2d 678 (1975). The basic holding in Miller relied on by defendant here is stated by Circuit Judge Goldberg at page 756 of 500 F.2d: [W]e hold that obtaining copies of Miller’s bank checks by means of a faulty subpoena duces tecum constituted an unlawful invasion of Miller’s privacy, and that any evidence so obtained should have been suppressed. The Court is not prepared at this time to apply the teaching of Miller in the present case for the following reasons: 1. The holding in Miller is narrowly confined to specific items of evidence — a deposit slip and copies of several of defendant’s checks. The scope of the suppression sought by defendant in the present case is totally unclear and could be construed to extend to all of the documents obtained by subpoena in the course of the investigation. 2. The holding in Miller appears based in part on a defect in the process issued — i. e., the claim that the subpoenas were not legitimate grand jury subpoenas. There is no sufficient showing that the subpoenas issued in the present case were similarly flawed. 3. If the government at trial seeks to introduce evidence demonstrably within the reach of the Miller holding, a suppression hearing could be held at that time. 4. The Supreme Court may render a decision in the Miller case before the admissibility issue is reached, and its decision may help bring the issue into clearer focus. Until the Supreme Court speaks or this Court otherwise determines that such action is necessary, the government need not categorize the subpoenas issued in the manner requested by paragraph A12(a)-{jj at pages 6 and 7 of the affidavit of Arnold M. Weiner or furnish the Court with the further information requested in Mr. Weiner’s letter to Mr. Skolnik of March 29, Í976. Did the prosecutor’s allegedly intemperate remarks at the arraignment hearing amount to professional misconduct? At the arraignment hearing in this case on December 4, 1975, Assistant United States Attorney Barnet D. Skolnik made statements to the effect that the evidence in the possession of the government and of the grand jury which indicted defendant Mandel indicated “overwhelmingly his guilt. If that were not so, he would not have been indicted. Period.” These remarks were made in the course of the government’s argument in support of a petition for a restrictive order to prohibit any out-of-court statements by persons involved in the case. The defense contends that such remarks were improper as an expression of personal opinion by the prosecutor of the justness of the government’s case and the guilt of the accused. When the remark was made, the Court interrupted and stated: The function of an indictment is as well-known to you as it is to any of defense counsel. An indictment is not evidence; it is simply the formal means by which the Government brings a case into court. I would ask you to recognize that function of the indictment. At that point Mr. Skolnik stated: Your Honor, that is absolutely so, and I was not speaking or — and did not in any way intend to be perceived as speaking to the indictment itself. I was speaking, as Mr. Mandel has in recent days been speaking, to the nature of the evidence in the possession of the Government and of the Grand Jury which returned that indictment. He has said, sir, publicly that the evidence in the possession of the Government shows that Mr. Mandel is innocent. I was speaking, sir, to that assertion. Mr. Mandel has, since his indictment, also stated that this office' deliberately withheld exculpatory information from the grand jury. Thus it is seen that the government contends that the remarks must be viewed in the context in which they were made, which the government alleges over , the previous several days had included public denunciations of the integrity of the prosecution and the prosecutors and the leaking to the press the day prior to the arraignment of a letter from defendant Mandel written to the Justice Department on November 19, 1975 accusing the government prosecutors of varied forms of misconduct. Without attempting to characterize the propriety of the remarks made, they are not such as in the Court’s view should vitiate the indictment or to call for any direct action by the Court at this time. The Court in its earlier opinion denying the restrictive order made clear its expectation that henceforth both sides would act with the restraint appropriate to the proper conduct of a criminal proceeding. It also appears to the Court that voir dire examination of the jury panel will show whether anything said by the prosecution has so affected the objectivity of the jurors that a fair trial cannot be had. Summary The Court holds that the defendant has not met his burden of showing prosecutorial misconduct so as to warrant dismissal of the indictment. In so holding, the Court noted that it was not an abuse of the subpoena power to employ it to conduct private interrogations of witnesses since it is the duty of the prosecutor to organize the material presented before the grand jury and eliminate any that is repetitious or unhelpful. The Court further stated that the prosecutor has no duty to present all exculpatory evidence to the grand jury as the grand jury proceedings are not adversary proceedings. The Court also found that the alleged intimidation of witnesses did not deprive the defendant of an unbiased grand jury. The grand jury was not aware of any such intimidation, assuming it existed, nor does defendant allege that the intimidation was so effective that it caused the witnesses to change their testimony. Fourth, the Court noted that it could not decide at this time whether the issuance of certain subpoenas duces tecum amounted to an unlawful search and seizure and that such a determination would have to await a suppression hearing at time of trial, if it is to be made. Finally, the Court stated that the prosecutor’s remarks at the arraignment hearing were not such as to vitiate the indictment or call for any action on the Court’s part at this time. In addition, in the course of one of the defense affidavits, the defendant requested that the government compile certain materials, including subpoenas, for the Court’s inspection. The Court holds that the defendant has failed to make a sufficient initial showing of misconduct so as to warrant further investigation. Therefore, the Court will not direct the government to turn over any materials at this time. Of course, the government should keep any such materials in its possession in case the Court should direct their production during the trial if need arises. For the reasons stated, it is this 5th day of April, 1976, by the United States District Court for the District of Maryland, hereby ORDERED; (1) that the defendant’s Motion for Dismissal of Indictment or in the Alternative, for Suppression of Evidence and other Appropriate Relief for Prosecutorial Misconduct be, and the same hereby is, Denied; (2) that the defendant’s requests that the government compile and produce certain materials be, and the same hereby are, Denied; and (3) that the Clerk of the Court keep under seal the affidavits filed in support of this motion by the defendant and by the government until such time as the Court directs that they be unsealed and made a part of the court file. MEMORANDUM AND ORDER DENYING SEVERANCE Defendants Ernest Cory and Irvin Ko-vens have moved for severance and separate trials in separately-filed motions. These motions will be considered together by the Court in this Memorandum and Order. I. Misjoinder under Rule 8 Defendant Cory contends that there has been a misjoinder of offenses under Rule 8(a) of the Federal Rules of Criminal Procedure and a misjoinder of defendants under Rule 8(b). If there has been a misjoinder under Rule 8, then the Court must order severance. It should first be noted that Rule 8(a) deals with joinder of offenses committed by a single defendant and has no application when two or more defendants are involved. 1 C. Wright, Federal Practice and Procedure § 144, at 318 (1969). Thus, the Court need consider only defendant’s argument under Rule. 8(b). Rule 8(b) provides: (b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. The standard in Rule 8(b) for join-der is quite broad. Defendants joined in an indictment need only be alleged to have participated “in the same act or transaction” or “in the same series of acts or transactions.” By the specific terms of the rule, it is not necessary for each defendant to be named in every count. In Cataneo v. United States, 167 F.2d 820 (4th Cir. 1948), the court reviewed the standards under Rule 8 and held that it should be interpreted broadly. In that case, the indictment charged a Selective Service registrant and his codefendant with making and causing to be made false statements in an affidavit to the Selective Service Occupational Deferment Form and charged the registrant and a different codefendant with making and causing to be made false statements in a letter to the Draft Board on behalf of the registrant. The court held there was proper joinder, stating: For our purposes, the key-word here [in Rule 8] seems to be ‘transaction.’ This is not a technical term, nor is it a word of art. . . . Oft-quoted is the remark (under Equity Rule 30) of Mr. Justice Sutherland, in Moore v. New York Cotton Exchange, 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750, 45 A.L.R. 1370: “ ‘Transaction’ is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.” Clark on Code Pleading, page 309, thinks the word should be given a broad meaning ‘to carry out what all procedural rules are designed to accomplish, namely, convenience and efficiency in trials.’ . Under the rules before us, an interpretation of the word ‘transaction’ frequently involves the balancing of conflicting interests: (1) speed, efficiency and convenience in the functioning of the federal judicial machinery; against (2) the right of the accused to a fair trial, without any substantial prejudice to that right occasioned by the joinder of offenses and/or defendants. (167 F.2d at 822-823) In United States v. Gentile, 495 F.2d 626 (5th Cir. 1974), the court held there had been improper joinder in a narcotics indictment. The court discussed Rule 8(b) in the course of its holding: The purpose of the rule is, in the interest of convenience and expediency, to encourage joint trials while at the same time limiting as much as possible the admission at trial of prejudicial evidence against a defendant. Moore, Federal Practice, ¶ 8.06[2], at 8-36 (1965). Whether or not separate offenses are part of a ‘series of acts or transactions’ under 8(b) depends in turn on the relatedness of the facts underlying each offense. . . . [citations omitted] While criminal acts of several defendants may be similar in nature, these acts cannot be properly joined in a multiple defendant trial if different facts and circumstances must be established to support the alleged violations. But when the facts underlying each offense are so closely connected that proof of such facts is necessary to establish each offense, joinder of defendants and offenses is proper. For example, if one person is charged with theft of goods in interstate commerce and a second person is charged with receiving goods that were stolen in interstate commerce, the two offenders may be joined for trial because the facts that must be established to support a violation of each offense are basically the same. They form a series of acts or transactions. . . . [citations omitted] In this situation joinder of both offenses for trial fulfills the purpose underlying the rule because it avoids duplication of time and effort of both the prosecution and the courts and minimizes the prejudice to the defendants. The government has to prove and the court must listen to the evidence supporting the offenses only once, and the defendants are not prejudiced because essentially the same proof must be established with regard to each defendant whether or not they are jointly or severally tried. . . . (495 F.2d at 630) The Court summarized the instant indictment in its Memorandum and Order of March 23, 1976. In essence, the indictment charges that the defendants devised a scheme to defraud the citizens and the state of Maryland by bribing the Governor to assist legislation which would be financially beneficial to the owners of Marlboro (and later Bowie), whose identities were deliberately concealed from the public, the legislature, and the Racing Commission by all of the defendants. The indictment also charges that it was further a part of the scheme that defendant Mandel use his powers as Governor to channel state business to business entities in which defendants Hess, William A. Rodgers and Harry W. Rodgers had financial interests, without revealing to the public or the governmental bodies involved his own business involvement with those defendants, including those interests in Security Investment and Ray’s Point which he had received from those defendants as bribes, and the existence of which was actively concealed by defendants Man-del, Hess, William A. Rodgers and Harry W. Rodgers. It is true that defendants Cory and Kovens are named in only the first part of the scheme, that involving Marlboro, and not the second part involving Security Investment and Ray’s Point. However, it is not necessary that each defendant be named in every part of the scheme as long as he plays a role in some part of that scheme. The twenty mail fraud counts and four racketeering counts contained in the instant indictment constitute offenses, in the Court’s opinion, that arise out of “the same series of acts or transactions.” The important point to be proven at trial is that each of the defendants participated in a scheme to defraud. In that circumstance, whether or not each was personally involved in every aspect of the scheme is irrelevant. The Court holds, therefore, that there has been no misjoinder of defendants under Rule 8(b). In holding that joinder is proper, the Court has considered several factors. First, the language of Rule 8(b) is, very broad, and it has also been interpreted broadly by the Fourth Circuit in Cataneo, supra. Second, the indictment does allege one scheme, and it is not necessary for each defendant to be a participant in every aspect of a scheme so long as he participates in some part of it. Third, the same set of facts and circumstances must be established to support the alleged violations of Cory and Kovens as must be proved against the other defendants. The fact that additional facts must be established against the other defendants to support the alleged violations involving Ray’s Point and Security Investment is not sufficient reason to hold that there has been misjoinder. Fourth, joinder furthers speed, efficiency and convenience in the functioning of the federal judicial machinery. Having held that joinder is proper under Rule 8, the Court will consider defendants’ arguments of prejudicial joinder under Rule 14. II. Bruton Problems Rule 14 of the Federal Rules of Criminal Procedure provides: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial. Both defendants contend that severance is warranted under Rule 14 under the rule of law established in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In that case, which expressly overruled Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), the Supreme Court held that it was constitutionally impermissible to admit into evidence at a joint trial an extra-judicial statement of a co-defendant which implicated the accused. Such a procedure was held to violate the accused’s Sixth Amendment right of confrontation. Defendant Cory relies on Bruton in contending: In the present case there is a strong possibility that extra-judicial statements of defendant Cory’s co-defendants made before the grand jury, to the prosecutors, or elsewhere out of defendant Cory’s presence, would be admitted into evidence at a joint trial. Defendant Kovens contends that the government “may well” seek to introduce at trial Bruton materials. He asks that the Court order the government to deliver to the Court for inspection in camera any statements or confessions made by any defendants which the government intends to introduce in evidence at the trial. The defendant also asks that the Court direct the government to produce these documents for inspection by the defendant. The main difficulty with defendants’ contentions based on Bruton is that there is no present reason to believe that any defendant in this case will not testify. Under such circumstances, it is clear that the Bruton rule is not applicable. In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Supreme Court held that a California statute providing that evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the witness is given the opportunity to explain or deny the prior statement does not violate the confrontation clause of the Sixth Amendment. The Court stated: Viewed historically, then, there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination. (399 U.S. at 158, 90 S.Ct. at 1935, 26 L.Ed.2d at 497) The Court in California v. Green, supra, specifically discussed the Bruton opinion, stating: Again, in Bruton v. United States . , the Court found a violation of confrontation rights in the admission of a codefendant’s confession, implicating Bruton, where the co-defendant did not take the stand. The Court again emphasized that the error arose because the declarant ‘does not testify and cannot be tested by cross-examination,’ suggesting that no confrontation problem would have existed if Bruton had been able to cross-examine his co-defendant. . . . (Id. at 163, 90 S.Ct. at 1938, 26 L.Ed.2d at 500) In Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), the Supreme Court held that where the codefendant of the petitioner took the stand at their joint trial in his own defense, denied making an alleged out-of-court statement implicating petitioner, and proceeded to testify favorably to petitioner concerning the underlying facts, petitioner was denied no rights protected by the Sixth and Fourteenth Amendments, despite the contention that effective confrontation was possible only if the code-fendant affirmed the statement. The Court stated: It was clear in Bruton that the ‘confrontation’ guaranteed by the Sixth and Fourteenth Amendments is confrontation at trial — that is, that the absence of the defendant at the time the codefendant allegedly made the out-of-court statement is immaterial, so long as the declar-ant can be cross-examined on the witness stand at trial. . . . The Constitution as construed in Bruton, in other words, is violated only where the out-of-court hearsay statement is that of a de-clarant who is unavailable at the trial for ‘full and effective’ cross-examination. (402 U.S. at 626-627, 91 S.Ct. at 1726, 29 L.Ed.2d at 226) Because Bruton applies only where a codefendant is not planning to take the stand and because there is no indication that any of the defendants will not take the stand, the Court holds that defendants Cory and Kovens are not entitled to severance on the basis of the Bruton doctrine. Nor under these circumstances, will the Court order the government to turn over any statements of codefendants either to the Court or to defendants. III. Guilt by Association Defendant Kovens contends that joinder creates an undue and unnecessary risk of his being deemed “guilty by association.” This contention is based on the fact that Kovens is not involved in that part of the scheme related to Security Investment and Ray’s Point. He argues that evidence introduced involving Security Investment and Ray’s Point will be associated with his guilt or innocence in the jury’s mind because the jury would not be able to keep the evidence and the defendants separate. Although Cory does not use the phrase “guilty by association,” he contends that in view of the anticipated length of the trial, the number of counts in the indictment, the number of defendants in the case, and the great amount of evidence that will be introduced at the trial, it is “inconceivable” that the jury will be able to remember all of the evidence as it applies to each specific defendant. He further contends that the introduction of evidence with respect to controverted matters of the other defendants in which he had no interest would be seriously confusing to the jury and severely prejudicial to his defense. Both defendants, at oral argument, supplemented the arguments made in their written motions by referring to the government’s Bill of Particulars which was filed on March 19, 1976. Paragraph “f” of the Bill of Particulars outlines the “various contracts, leases and other benefits” alluded to in paragraph thirty-one of the indictment. Defendants contend that it is apparent from paragraph “f” that the government will attempt to place into evidence a host of contracts, leases and awards involving seven business entities and to rely upon such evidence to prove the central allegations of the indictment. Defendants go on to argue that it is not alleged that they are associated in any way with the seven business entities, that they derived any benefit from the award of any contracts or leases to said entities, or that they participated in causing the award of said contracts or leases. Therefore, they conclude, their motions for severance should be granted. The Court agrees with the government that the defendants, in focusing on these seven entities, are focusing on aspects of the case that are not central to the indictment. It appears that the evidence the government will seek to introduce involving these entities will be only a small percentage of the total evidence. Thus, the danger that the jury will be overwhelmed by a great body of such evidence is minimal and not sufficient to warrant a severance at this stage of the proceedings. The Court begins by noting that one defendant is not entitled to a severance merely because evidence against his code-fendants may be more extensive than the evidence against him. It is the Court’s obligation, through proper instructions and any other devices, to make certain that the jury separates in its own mind the evidence and the defendants. In Kroll v. United States, 433 F.2d 1282 (5th Cir. 1970), cert. denied, 402 U.S. 944, 91 S.Ct. 1616, 29 L.Ed.2d 112 (1971), a mail fraud case, the court stated: When possible without prejudice to the rights of defendants joint trial aids in the efficient administration of justice. Particularly is this so when, as here, severance would require the expense of several long trials involving substantially the same evidence. The various arguments that some of the defendants played larger roles than others in the alleged conspiracy, or that some of the defendants had allegedly ‘antagonizing personalities’ which a jury might not like, or that the impeachment of one of the defendants might ‘rub off’ on the other defendants, taken singly or together, do not present grounds for separate trials. The trial court fairly and fully admonished the jury during his complete and detailed instructions to consider the guilt or innocence of each defendant only upon the evidence introduced against him and to determine its verdict separately as to each defendant under each count of the indictment. (433 F.2d at 1287) In this circuit, the court in United States v. Shuford, 454 F.2d 772 (4th Cir. 1971), expressed its preference for joint trials unless a substantial degree of prejudice would result. In that case, the court held that where severance was the only way of affording the defendant any possibility of persuading his codefendant to testify, it was error to deny the motion for severance. The court stated: Primarily for reasons of economy of time in judicial administration, the general rule has evolved that persons jointly indicted should be tried together. . This rule has particular strength where, as here, one crime may be proved against two or more defendants on a single set of facts or from the same evidence. Notwithstanding the need for efficiency in judicial administration, a joint trial is inappropriate if it sacrifices a defendant’s right to a fundamentally fair trial. . For these reasons, although Rule 14 of the Federal Rules of Criminal Procedure places the grant or denial of a severance in the sound discretion of the trial judge . , if a ‘substantial degree of prejudice’ springs from a joint trial, a severance is mandated. . . . Not surprisingly, the facts peculiar to each case will determine whether sufficient prejudice exists to make the denial of a severance reversible error. (454 F.2d at 775-776; citations omitted) A defendant cannot claim that a “substantial degree of prejudice” will result from his trial with his codefendants simply because more evidence will be introduced against his codefendants. The court in United States v. Frumento, 405 F.Supp. 23 (E.D.Pa.1975), a racketeering case, specifically considered a similar claim of “guilt by association” due to disparate amounts of evidence and reasoned: Finally, while the possibility of ‘guilt by association’ exists in a joint trial, this does not afford a ground for severance. . As the Supreme Court has explained: “This type of prejudicial effect is acknowledged to inhere in criminal practice, but it is justified on the grounds that (1) the jury is expected to follow instructions in limiting this evidence to its proper function, and (2) the convenience of trying different crimes against the same person, and connected crimes against different defendants, in the same trial is a valid governmental interest. Spencer v. Texas, 385 U.S. 554, 562, 87 S.Ct. 648, 653, 17 L.Ed.2d 606 (1967).” (405 F.Supp. at 31) This Court, in denying a motion for severance in a recent narcotics case, United States v. Moore, HM 75-0363, considered the argument that prejudice stemmed from the fact that among the thirteen defendants there were varying levels of involvement in the alleged conspiracy and different amounts of proof. The “subordinates” were afraid that they would be unjustly tainted by the evidence against the “leaders.” This Court reasoned: In the instant case, defendants have not made a showing of substantial prejudice which would warrant a severance. They have merely complained of the burdens which a conspiracy charge necessarily places upon the defense. There has been no showing that the quantum of evidence that will be introduced will be so grossly disparate for the leaders and the subordinates that the evidence will ‘spill over’ into the subordinates. (Memorandum and Order, October 9, 1975, at 3) The Court also noted that the cautioning instructions would not be so complex and frequent that the jury would confuse the defendants and the evidence. In United States v. Johnson, 298 F.Supp. 58 (N.D.Ill.1969), a prosecution for mail fraud involving fraudulent insurance claims, one defendant moved for severance on the ground that he was not named in all counts. The court was not convinced: However, the same evidence must be produced in any trial of the defendants on both the substantive counts and the conspiracy count. The defendant Kaplan was allegedly an integral part of the underlying scheme to defraud. Separate trials would be a burden upon the court, the juries, the witnesses and the Government. The defendant has not shown this court that such a considerable burden would be overbalanced by resulting prejudice to him. (298 F.Supp. at 63) Two other defendants also claimed that the jury would not be able to keep the evidence separate. The court stated: However, the court finds that the subject matter of the indictment is not of such a complex or technical nature as to make the jury’s task of separately assessing the evidence relating to each defendant impossible or unduly complex. The defendants have failed to carry their burden of showing this court that they will not be able to obtain a fair trial if severance is not obtained. (Id. at 64) The importance of cautionary instructions to the jury was further discussed in Tillman v. United States, 406 F.2d 930 (5th Cir.), vacated on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969). Defendants in that case were convicted of interfering with the administration of the Universal Military Training and Service Act and willfully injuring property of the United States during picketing at an armed forces entry and examining station as a protest against the war in Vietnam. The court reasoned: The existence of prejudice, in large measure, depends upon the facts and circumstances of each case . . ., and it is axiomatic that the granting of a severance is within the discretion of the trial judge. . . . The burden of demonstrating prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed on review. . . . The defendant must show something more than the fact that ‘a separate trial might offer him a better chance of acquittal.’ . Appellants allege that they were prejudiced and their trial rendered unfair because the jury was unable to collate the evidence and connect the names and faces of each defendant with the independent evidence being offered against him. In essence, it is alleged that the convictions rested upon an unlawful cumulation of evidence, and that had there been separate trials, the appellants would not have been convicted. . . . The test for prejudice in this context is “. . . whether under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court’s admonitory instructions and accordingly to collate and appraise the evidence against each defendant solely upon that defendant’s own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted.” (406 F.2d at 934-935; citations omitted) Considering the role that jury instructions play in deciding whether severance should be granted, the Court finds that in this case the indictment is not so complicated that a jury could not keep separate the six defendants and the evidence pertaining to each one. The Court also notes that a defendant seeking severance has the burden of convincing the Court that severance is warranted. As the court stated in United States v. Perez, 489 F.2d 51 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974), a prosecution for conspiracy and mail fraud arising out of staged collisions by which defendants created false claims against insurance carriers: To obtain a severance under Rule 14, the movants have the burden of convincing the Court that without such drastic relief they will be unable to obtain a fair trial. ... A mere showing of some prejudice has usually been insufficient,' for qualitatively it must be the most compelling prejudice against which the trial court will be unable to afford protection. . . . (489 F.2d at 65) The court considered the interests in trial economy in approving the placing of a heavy burden on a defendant moving for severance: Whenever a crime involves more than one actor, there arises a need to balance the interests of the government in trial economy and in presenting at one time the whole of an illegal operation on the one hand against the need for protecting the rights of the individual defendant on the other. . . . The rules are liberal in permitting joinder at trial, both of offenses and of defendants. Although this permits wide latitude on the prosecution in determining the form in which the case is to be prosecuted the trial court has both the duty and the authority to order a severance at any time during the trial if it believes that impermissible prejudice would otherwise result. Thus, the serious problem of reconciling the sometimes competing interests of trial economy and danger of prejudice to defendants necessarily resides in the discretion of the trial judge. Motions for severance under Rule 14 have rarely been granted and the trial court’s decision has not been disturbed absent a clear showing of abuse. . . . The general rule has been, and remains, that persons jointly indicted should be tried together. (Id. at 64r-65) “Economy of time in judicial administration” was also mentioned in United States v. Shuford, supra, as a relevant consideration in determining whether a defendant has met his burden, as well as in United States v. Johnson, supra. In this regard, the Court notes that the instant trial is expected to last anywhere from six weeks to three months and that repetition of this trial would indeed pose a burden on the Court, particularly since Cory and Kovens want to be tried separately from each other. The Court, then holds that defendants Cory and Kovens have not met their burden of demonstrating that a substantial degree of prejudice would result from a joint trial as a result of the disparity in the evidence among the defendants or of possible “guilt by association.” In so holding, the Court notes that the burden on a defendant seeking severance is a heavy one. It further notes that the law generally favors joint trial for reasons of judicial economy and the presentation of the whole of an alleged illegal operation at one time. Finally, this Court recognizes that cautionary jury instructions can go far to .eliminate any potential jury confusion. IV. Prejudicial Publicity Defendant Kovens contends that extensive pretrial publicity concerning his code-fendants will operate to prejudice him severely and to deny his right to a fair trial if he is tried jointly with his codefendants. Related to this contention is his argument that improper conduct on the part of a member of the staff of the United States Attorney at the arraignment proceedings has operated to make joinder with defendant Mandel highly prejudicial. The Court agrees with the government that the short answer to defendant’s concern is that a carefully conducted voir dire examination is designed to deal with such problems. The Court in its Memorandum and Order on the Motion for Change of Venue emphasized the importance of resorting to voir dire before ruling on such a motion. The reasoning set forth in that opinion is applicable here. A defendant seeking severance has the. burden of showing actual prejudice and no such showing can be made in this case until voir dire. If it appears at that time that severance if warranted, the Court will then consider such action upon motion by defendant. The court in United States v. Balistrieri, 346 F.Supp. 336 (E.D.Wis.1972), reached the same conclusion as this Court: In my opinion, Mr. DiGiorgio’s motion for severance is premature. The possibility of tainture of jurors by media publicity surrounding a co-defendant can be adequately explored at trial during the voir dire of prospective jurors. During the trial, measures can be taken to insure that the jurors remain free from taint. (346 F.Supp. at 339-340) The Court finds it unnecessary to consider whether or not the conduct of Mr. Skolnik at the arraignment was proper. It is sufficient for purposes of this motion that the Court hold that voir dire can guard against any prejudice that might have resulted from the arraignment proceedings, regardless of the propriety of the government’s conduct. In sum, the Court holds that defendant Kovens has not made a sufficient showing of substantial prejudice resulting from publicity to entitle him to severance at this time. V. Inconsistent Defenses Defendant Cory contends “that the defenses of the defendants here are in conflict and antagonistic and a joint trial will severely limit his ability to present his own defense on the merits.” To obtain a severance on the basis of inconsistent defenses, a defendant must show not only that his and the other defendants’ defenses are inconsistent but that they are so antagonistic as to approach being mutually exclusive. United States v. Wilson, 500 F.2d 715, 723 (5th Cir. 1974), cert. denied sub nom. Levin v. United States, 420 U.S. 977, 95 S.Ct. 1403, 43 L.Ed.2d 658 (1975), and United States v. Leonard, 161 U.S.App.D.C. 36, 494 F.2d 955, 966 (1974). Defendant at oral argument in the Court’s view did not support his assertion of inconsistent defenses with any sufficiently specific facts ab