Full opinion text
MEMORANDUM AND ORDER GLASSER, District Judge: The twenty-nine count Superseding Indictment in this case arises out of charges of falsification of airplane maintenance records for Eastern Air Lines, Inc. (“Eastern”), at John F. Kennedy International Airport (“JFK”) in New York City, and Hartsfield Airport (“Hartsfield”) in Atlanta. Defendants are also charged with obstructing the administration of the law by, among other things, testifying falsely before the Federal Aviation Administration of the Department of Transportation (“FAA”), regarding their knowledge of and participation in a conspiracy to falsify Eastern’s maintenance records. For the purposes of this memorandum and order, the defendants will be referred to as follows. The defendants who worked at JFK, Thomas Lewis (“Lewis”), Joseph Mos-er (“Moser”), Charles Catarelli (“Catarelli”), Roy Hardy (“Hardy”), Robert Knox (“Knox”), Jacques Jean (“Jean”) and Stephen Jones (“Jones”), will be referred to as the “JFK Defendants.” The defendants who worked at Hartsfield in Atlanta, Edward Hay (“Hay”), Charles Bray (“Bray”), Hollis Huffman (“Huffman”), K. Ray Stooksbury (“Stooksbury”), and Robert Zuegel (“Zuegel”), will be referred to as the “Atlanta Defendants.” Upton worked at Eastern’s headquarters in Miami, Florida. DISCUSSION 1. Motion to Dismiss or Sever A. Impermissible Joinder The Atlanta defendants, Knox, and Upton claim that they were improperly joined in the indictment and that their trials should be severed, pursuant to Rule 8(b) of the Federal Rules of Criminal Procedure, which permits joinder of multiple defendants if they are alleged to have participated in a common scheme or plan. United States v. Bernstein, 533 F.2d 775, 789 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976). It is well settled that the good-faith inclusion of a conspiracy count establishes the requisite common scheme or plan and is sufficient to support joinder of defendants under Rule 8(b). United States v. Uccio, 917 F.2d 80, 87 (2d Cir.1990); United States v. Aiken, 373 F.2d 294, 299-300 (2d Cir.), cert. denied, 389 U.S. 833, 88 S.Ct. 32, 19 L.Ed.2d 93 (1967). Joinder of a conspiracy count with substantive counts arising from the conspiracy is proper because the conspiracy charge provides a common link and demonstrates the extension of a common plan. Bernstein, 533 F.2d at 789; United States v. Smith, 789 F.2d 196, 206 (3rd Cir.) (“As long as the government has charged conspiracy in good faith, an allegation of conspiracy is a sufficient reason for trying the conspiracy and all substantive offenses together”), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986). An exception to this general rule is that where counts unrelated to the general conspiracy are alleged, the government has the burden of showing that they are a part of the conspiracy. See United States v. Carrozza, 728 F.Supp. 266, 270 (S.D.N.Y.1990), aff'd, 956 F.2d 1160 (2d Cir.1992) (table). In this case all the counts contained in the Superseding Indictment are clearly related to the conspiracy count. This is so, even with regard to the obstruction of justice count, which alleges that certain defendants, testified falsely before the FAA. The indictment alleges that the false testimony was a critical component in the over-arching scheme to defraud the federal government and was a part of the original conspiracy. Accordingly, joinder of all the counts complies with Rule 8(b). See United States v. Cunningham, 723 F.2d 217, 229 (2d Cir.1983), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984). Defendants heavily rely on United States v. Rosenblatt, 554 F.2d 36 (2d Cir.1977), in support of their Rule 8(b) motions. In Rosenblatt, an alleged co-conspirator, Brooks, made false entries in the accounts payable records at the Manhattan Postal Service headquarters and obtained checks totalling over $180,000, payable to persons having no claim to payment from the Postal Service. Brooks was indicted for conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and testified against the defendant, Rosenblatt. Rosenblatt, a college dean, agreed to “launder” the checks through the college’s bank account and keep a certain percentage for his services. He was indicted along with Brooks for a violation of 18 U.S.C. § 371. The Second Circuit reversed the jury verdict of guilty because there was no agreement, either pleaded or proved, as to which fraud was to be executed. The court wrote: Our difficulty with Rosenblatt’s conviction arises from the lack of any agreement between him and Brooks concerning the type of fraud in which they were engaged. It is clear that Brooks was defrauding the United States by obtaining payment for government checks which he had caused to be printed without authorization. The government stipulated, however, that Rosenblatt did not know the truth about Brooks’ activities____ In other words, both men agreed to defraud the United States, but neither agreed on the type of fraud. On this appeal, Rosenblatt argues that under 18 U.S.C. § 871 a conspiracy must be grounded upon agreement on some common scheme or plan. He maintains that proof of an agreement to defraud, without further qualification as to the nature of the fraud, is insufficient to support a conviction under § 871. We agree and reverse the conviction. Id. at 38 (emphasis added). Defendants therefore contend that Rosenblatt stands for the proposition that unless the indictment establishes an agreement among the purported conspirators, the indictment does not satisfy Rule 8(b) and should be dismissed in its entirety. The focus of the court’s attention, however, was on the fact that the government did not, and given its stipulation could not, prove an agreement between Brooks and Rosenblatt as to the essential nature of the fraud allegedly perpetrated against the United States in violation of 18 U.S.C. § 371: “Proof of the essential nature of the plan is required because ‘the gist of the offense remains the agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant.’ ” Id. (quoting United States v. Borelli, 336 F.2d 376, 384 (2d Cir.1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965)). The court did not discuss Rule 8(b), joinder or severance and consequently Rosenblatt cannot govern the disposition of the present motion. More important, however, is the fact that the Superseding Indictment in this action does meet the requirements of the court’s explicit holding in Rosenblatt. The court concluded that, We hold that when the government proceeds under the conspiracy-to-defraud clause it must plead and prove an agreement with respect to the essential nature of the alleged fraud. Thus, just as the particular offense must be specified under the “offense” branch ... the fraudulent scheme must be alleged and proved under the conspiracy-to-defraud clause. Id. at 42 (citation omitted). In this action, the Superseding Indictment pleads an agreement among and between defendants with respect to the essential nature of the alleged fraud; namely, obstructing the functions of the FAA by misrepresenting the safety of Eastern’s aircraft. Paragraph 18 of the Superseding Indictment reads in part as follows: On or about and between January 1, 1987 and October 13,1989 ... [defendants] ... did unlawfully, wilfully and knowingly conspire, combine, confederate and agree to defraud the United States by impeding, impairing, obstructing, and defeating the lawful government functions of the [FAA] to promote safety of flight of civil aircraft in ah’ commerce and insure that aircraft are in a safe condition and are properly maintained. The Superseding Indictment then states in subsequent paragraphs that it was part of the conspiracy to use intimidation to encourage falsification of aircraft maintenance records; falsify log books, work cards and computer entries; disregard FAA maintenance program requirements; conceal the falsifications from the FAA; testify falsely before the FAA; and cause aircraft that were not properly maintained and repaired to fly and carry unsuspecting passengers. The government has therefore alleged a single, overarching conspiracy among and between the Atlanta and JFK defendants, and Upton, the essential nature of which was to impede and obstruct the FAA. Because the Superseding Indictment pleads “an agreement with respect to the essential nature of the alleged fraud,” it does not run afoul of the Federal Rules of Criminal Procedure. Defendants’ reliance on United States v. Levine, 546 F.2d 658, 665-66 (5th Cir.1977) (“since allegations of proximate conspiracies are legally insufficient to establish a single overall conspiracy, the conspiracy count could not ‘reasonably have been made.’ ”), is, therefore, misplaced as well. As the court noted in Uccio, 917 F.2d at 87, “[i]t is an ‘established rule’ that ‘a non-frivolous conspiracy charge is sufficient to support joinder of defendants under Fed.R.Crim.P. 8(b).” “[W]hether the evidence in a case establishes single or multiple conspiracies is a question of fact to be resolved by a properly instructed jury.” United States v. Friedman, 854 F.2d 535, 561 (2d Cir.1988), cert. denied, 490 U.S. 1004, 109 S.Ct. 1637, 104 L.Ed.2d 153 (1989). B. Severance of Atlanta Defendants Rule 14 of the Federal Rules of Criminal Procedure permits severance at the discretion of the court. The rule provides that “[i]f it appears that a defendant or the government is prejudiced by a joinder of defendants in an indictment ... or by such joinder for trial together, the court may ... grant a severance of defendants or provide whatever other relief justice requires.” Generally, there is a presumption that persons indicted together should be tried together. See United States v. Gallo, 668 F.Supp. 736, 748 (E.D.N.Y.1987). This presumption was designed to promote judicial economy by preventing multiple, time-consuming and expensive trials. United States v. Borelli 435 F.2d 500, 502 (2d Cir.1970), cert. denied, 401 U.S. 946, 91 S.Ct. 963, 28 L.Ed.2d 229 (1971). A defendant may overcome this presumption by demonstrating that a joint trial would result in substantial prejudice and that he or she will be denied a fair trial. United States v. Crozzoli 698 F.Supp. 430, 437 (E.D.N.Y.1988). In determining whether sufficient prejudice exists to justify severance, the following criteria should be considered: (1) the number of defendants; (2) the number of counts; (3) the complexity of the indictment; (4) the estimated length of trial; (5) disparities in the amount or type of proof offered against each defendant; (6) disparities in the degrees of involvement by each defendant in the overall scheme; (7) possible conflict between various defense theories or trial strategies; and (8) prejudice from evidence admitted against co-defendants which is inadmissible or excluded as to a particular defendant. United States v. Gallo, 668 F.Supp. at 749. None of these factors is by itself dispositive. Instead, the court must consider them together to determine whether the jury will be able to attribute the evidence accurately as to each defendant. Id. In this case, several factors suggest that such compartmentalization might be difficult and prejudice could result to the Atlanta defendants, justifying severance under Rule 14. Discussion of the relevant factors follows. 1. Complexity. “As the number of counts and defendants in an indictment increases, ‘it is obvious’ that the resultant complex trial record makes it more difficult for a jury to keep straight the specific evidence and charges against each defendant.” Id. In this case there are 13 defendants and 29 counts. None of the Atlanta defendants are charged with substantive violations alleged to have occurred at JFK. However, the substantive acts alleged in the Atlanta airport counts — installation of faulty equipment and falsification of related documents — are similar in kind to the acts alleged in the JFK counts. The jury in this case may find it difficult to distinguish the evidence relating to the Atlanta defendants from that relating to the others, especially after a long and complicated trial. 2. Disparate Evidence. The difficulties of a complex case such as this one are compounded for defendants who are named in a small portion of the indictment and against whom only a small portion of the evidence is relevant. United States v. Branker, 395 F.2d 881, 888 (2d Cir.1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 639, 21 L.Ed.2d 573 (1969). In the present case, absent severance, the Atlanta defendants would have to endure a trial involving many incidents of misconduct which do not involve them. See id. The accumulation of evidence during the course of trial places the uninvolved defendants at risk of “spillover” because the jurors may not be able to prevent themselves from attributing the evidence to the uninvolved defendants. The result would be unfair prejudice to the uninvolved Atlanta defendants. 3. Judicial Economy. Even if the risk of prejudice discussed above does not rise to the level where severance would be required, another factor — the efficient administration of justice — tips the balance in favor of severance. See Gallo, 668 F.Supp. at 753. In the present case, severing the trial would promote judicial efficiency and would not result in judicial waste, as is often argued in opposition to severance motions. See id. Severanee would minimize the hardship experienced by the Atlanta defendants who would have to relocate to New York during what, in all likelihood, will be a long and complex trial. Severance would reduce the tedious, draining process that jurors would otherwise endure for months at a time. Severance would also enhance defendants’ ability to obtain counsel of their choice; many lawyers are not available for representation for long trials because they are members of very small firms and cannot afford to sacrifice their other clients during a protracted trial. Id. Severance will also help prevent defendants from sitting through months of trial, which causes severe disruption to employment and home life, or, if detained, causes prolonged incarceration while defendants are presumed innocent. Trial judges also face a great problem of trial management in prolonged cases. Juggling various attorneys’ schedules with the other cases before the court becomes impossible. “The already overburdened docket of the court reaches a breaking point, and the administration of justice in all of the court’s cases is unconscionably delayed---- Where the judge decides to sever the trial, the court is left with much greater flexibility to administer both that and other cases ... and some normalcy remains as to the rest of the court’s docket.” Id. (emphasis in original). Severance will help obviate many of these difficulties. In addition, the Superseding Indictment includes a variety of substantive offenses involving different schemes, evidence and witnesses. The Atlanta defendants are not charged with participating in the acts of falsification at JFK and the JFK defendants are not charged with wrongdoing at Hartsfield. Although some of the evidence concerning conspiracy might be repeated at both trials, overall trial time would probably be reduced by dividing the case: The trial is much smoother and more concise. The evidence in each case does not scatter about the various contours of the conspiracy. There are [fewer] counsel cross-examining and raising objections rather than one or two dozen. Sidebars are much more infrequent. Continuances and adjournments are less common. Id. at 757. Also, the second trial is likely to be shortened or even precluded by the earlier trial, as the lawyers and judge familiarize themselves with the case. Id. Moreover, there is a “significant possibility” that severed defendants would plead guilty after observing the government’s case. Id. Severance may be particularly beneficial in conspiracy cases such as this one because it would protect the government “from one of the largest dangers of a joint trial, namely, proving to the jury that one conspiracy exists rather than multiple conspiracies linked at the top. The necessity of having the jury find a single conspiracy ‘can prove seriously detrimental’ to the government’s strategy.” Id. at 757-58 (emphasis in original) (quoting United States v. Sperling, 506 F.2d 1323, 1341 (2d Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975)). A separate trial of the Atlanta allegations would not involve much evidence relating to the JFK defendants and would not involve the same witnesses. In short, severance would help expedite a fair resolution of the charges against defendants. Accordingly, the Atlanta defendants should be severed. C. Severance of Upton and Knox Defendants argue that Upton and Knox should be severed because they were not charged with obstruction of justice, nor with any substantive act other than wire fraud. They argue that a joint trial would risk prejudicial “spillover” or “rubbing off’ of evidence. Defendants’ arguments are without merit and Upton and Knox should be tried with the JFK defendants. Unlike the allegations against the Atlanta defendants, those against Upton and Knox are integrally related and intertwined with the JFK defendants. It matters not that Upton and Knox were not charged with the same substantive acts as the others; Upton is alleged to be a ringleader of the conspiracy, and Knox to have engaged in “pencil whipping” while at JFK. It is proper that Knox and Upton stand trial with their alleged co-conspirators. At the close of trial the court will instruct the jury that the guilt or innocence of the defendants must be determined individually. With proper instructions, the jury will be able to compartmentalize the evidence. Also, once the Atlanta defendants are severed, there will be many fewer defendants in the case, making it that much easier for the jury to evaluate and compartmentalize the evidence. Finally, the judicial management benefits realized by severing the Atlanta defendants would not be furthered by severing Upton and Knox. Their trial, which the government estimates would last several weeks, would require duplicative effort by the lawyers, judge, and witnesses. Accordingly, severance of Upton and Knox is not justified under Rule 14. II. Motion to Dismiss Count Two Defendants have moved to dismiss Count Two of the Superseding Indictment on the grounds that (i) it is in violation of Rule 7(c) the Federal Rules of Criminal Procedure in that it does not include the particular wire transmissions which form the basis of the wire fraud violations (18 U.S.C. § 1343); and (ii) it is in violation of Rule 8(a) of the Federal Rules of Criminal Procedure in that its incorporation of multiple wire fraud offenses is impermissibly duplicitous. A. Rule 7(c) Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires that the indictment contain a “plain, concise and definite written statement of the essential facts constituting the offense charged.” Fed. R.Crim.P. 7(c)(1). The Rule performs three constitutional functions: (i) pursuant to the Sixth Amendment, it insures that the defendant is informed of the “nature and cause of the accusation,” United States v. Abrams, 539 F.Supp. 378, 384 (S.D.N.Y.1982); (ii) pursuant to the Fifth Amendment, it prevents any person from being “subject for the same offense to be twice put in jeopardy of life or limb,” id. (see Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974)); and (in) pursuant to the Fifth Amendment, it prevents a defendant from being held “to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a Grand Jury,” Abrams, 539 F.Supp. at 384 (see United States v. Silverman, 430 F.2d 106, 110 (2d Cir.1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971)). The constitutional requirement that no defendant be held for trial absent a presentment to a grand jury has led to the further rule that a bill of particulars cannot cure an indictment that omits an essential element of the offense. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). This constitutional requirement also mandates a prohibition against the amending of an indictment except by resubmission to the grand jury, Abrams, 539 F.Supp. at 384, and requires that “an indictment contain some amount of factual particularity to ensure that the prosecution will not fill in elements of its case with facts other than those considered by the grand jury,” id. In this action, Count Two alleges that between January 1, 1987 and March 4, 1989, all defendants, together with Eastern, Dragone, and unindicted co-conspirator Michael Hennessey, “did knowingly and wilfully aid and abet [Eastern] in its execution of a scheme and artifice to defraud airline passengers and to obtain money and property by means of false and fraudulent pretenses and representations.” Superseding Indictment, ¶ 29. Count Two further alleges that Eastern led its passengers to believe that “rigorous maintenance checks had been performed” on the aircrafts, when, in fact, defendants “knew and believed” that such representations were false. Superseding Indictment, ¶ 30. Defendants are also alleged to have falsified at JFK and Hartsfield, “aircraft maintenance log books and work cards” and to have made false computer transactions to make it fraudulently appear that regularly scheduled maintenance had been completed on the aircrafts when in fact such maintenance had not been completed. Superseding Indictment, ¶31. Paragraph 32 of the Superseding Indictment alleges that for the purpose of executing the scheme, defendants, transmitted] and cause[d] to be transmitted by means of wire communications in interstate commerce signals and sounds, to wit: (a) computer transactions from computer terminals located at JFK over interstate telephone lines to a computer located at [Eastern’s] headquarters in Miami, Florida; (b) telephone calls between maintenance personnel at JFK, Atlanta, and Eastern’s headquarters in Miami, Florida; and (e) radio transmissions between flight crews on aircraft outside of New York and air traffic controllers at JFK and LaGuardia airports to obtain clearance to take-off and land Eastern aircraft. (Title 18, United States Code, Sections 1343, 3551 et seq. and 2). Because the Superseding Indictment does not contain a list of the particular computer transactions, telephone calls, and radio transmissions, defendants argue that it is violative of Rule 7(c)’s mandate that all indictments contain a “statement of the essential facts constituting the offense charged.” Defendants’ contention is without merit. It is well-settled that indictments which track the statutory language defining an offense are, as a general rule, sufficient for Rule 7(c) purposes so long as application to a particular defendant is clear. In Ham-ling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the Court wrote, Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense---- It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as “those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” ... “Undoubtedly the language of the statute may be used in the general description of an of-fence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.” Id. at 117-18, 94 S.Ct. at 2907-08 (emphasis added) (citations omitted). See also United States v. Gordon, 780 F.2d 1165, 1171 (5th Cir.1986) (“[A]n indictment which tracks the statutory language is sufficient to charge mail fraud ... or wire fraud____”) (citations omitted). The words of the statute at issue in Count Two, 18 U.S.C. § 1343, are as follows: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. 18 U.S.C. § 1343. As noted above, the Superseding Indictment alleges that defendants aided and abetted Eastern in its “execution of a scheme and artifice to defraud airline passengers and to obtain money and property by means of false and fraudulent pretenses and representations”; and that they “transmitted by means of wire communications in interstate commerce [certain] signals and sounds[.]” Furthermore, far from just tracking the language of the statute, Paragraphs 29-82 of the Superseding Indictment also provide “facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.” Hamling, 418 U.S. at 119, 94 S.Ct. at 2908. These facts and circumstances are: (i) the dates in which the activities took place (January 1, 1987 to March 4, 1989); (ii) the purpose and nature of the scheme (defrauding the flying public into believing that maintenance had been performed when in fact it had not); (iii) the means by which the objectives of the scheme were carried out (falsifying log books, work cards, and computer transactions); and (iv) the nature of the communications which were used to further the objectives of the scheme (computer transactions, telephone calls and radio transmissions). Research has not uncovered, and defendants have not brought to the court’s attention, any authority for the proposition that an indictment pursuant to 18 U.S.C. § 1343 must include the exact “writings, signs, signals, pictures, or sounds” which comprise the basis of the charge when other relevant information regarding the nature of the crime are included in the indictment. Although it is true that Section 1343 indictments sustained by the courts tend to include this information, see, e.g., Abrams, 539 F.Supp. at 383 (government alleges that on “fifteen specific occasions, interstate telephone calls were made in furtherance of this scheme.”), it is also the case that the two cases relied upon by defendants where the court did dismiss mail or wire fraud indictments, the indictments were woefully incomplete and failed to include any specifics regarding the nature of the scheme or the methods used in furtherance of the scheme. United States v. Josten, 704 F.Supp. 841, 844 (N.D.Ill.1989) (Section 1343 indictment dismissed where “the indictment does not state the allegedly false representations, nor does it name the victims of the allegedly improper conduct or the accounts to which it pertained, nor does it give any specific dates upon which the challenged activity took place.”); United States v. De Sapio, 299 F.Supp. 436, 445 (S.D.N.Y.1969) (Section 1341 indictment dismissed where “[t]he charge that these defendants devised a scheme ‘for obtaining money and property by means of false and fraudulent pretenses, representations and promises’ does not even state who was to be defrauded, let alone give any indication of the nature of the scheme.”). In other contexts, the specific transactions or documents which are at the heart of an indictment need not be specified so long as the indictment apprises the defendant of the elements of the charge against him. See, e.g., United States v. Tallant, 547 F.2d 1291, 1299 n. 18 (5th Cir.) (obstruction of justice indictment sustained where indictment alleges that defendant impeded the due administration of a proceeding before the Securities and Exchange Commission “in that defendant ... caused certain stockholder ledger 'records ... to be falsified and presented them to Securities and Exchange Commission investigators[.]”) (emphasis added), cert. denied, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174 (1977); United States v. Mobile Materials, Inc., 871 F.2d 902 (10th Cir.1989) (Sherman Act indictment sustained even though indictment did not list specific transactions or name all co-conspirators), cert. denied, 493 U.S. 1043, 110 S.Ct. 837, 107 L.Ed.2d 833 (1990). In any event, the government has supplied defendants with a bill of particulars which identifies those wire communications upon which it will rely at trial. As noted above, a bill of particulars cannot cure a constitutionally defective indictment, Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), but “[a] bill of particulars is appropriate when the indictment is insufficient to permit the preparation of an adequate defense.” United States v. DiCesare, 765 F.2d 890, 897 (9th Cir.1985). With the information supplied by the bill of particulars, defendants are now on notice as to which wire communications were used to further the scheme outlined in Count Two of the Superseding Indictment and cannot now argue that they are not in a position to prepare an adequate defense. B. Rule 8(a) Rule 8(a) of the Federal Rules of Criminal Procedure provides, in relevant part, that “[t]wo or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged ... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Fed.R.Crim.P. 8(a). Defendants argue that Count Two runs afoul of Rule 8(a) because each wire transmission is a separate Section 1343 offense and hence it impermissibly charges two or more offenses in the same count. Although it is well-accepted that each separate mailing or wire transmission constitutes a separate offense under 18 U.S.C. §§ 1341 or 1343, United States v. Eskow, 422 F.2d 1060, 1064 (2d Cir.) (“Since each mailing pursuant to an alleged scheme to defraud constitutes a separate offense ... the indictment is not vulnerable to a claim of multiplicity.”) (citations omitted), cert. denied, 398 U.S. 959, 90 S.Ct. 2174, 26 L.Ed.2d 544 (1970), the Second Circuit has held that an indictment charging mail fraud is not impermissibly duplicitous because it alleges numerous mailings in a single count. United States v. Margiotta, 646 F.2d 729 (2d Cir.1981). In Margiotta, the indictment accused the defendant of arranging a scheme whereby town and county insurance was placed with an insurance broker and the broker paid portions of his commissions to various persons designated by the defendant. Payments were made through the mails and count one of the indictment, alleging a violation of 18 U.S.C. § 1341, included numerous mailings. By pre-trial motion, the defendant sought dismissal of count one alleging that the count was duplicitous for including more than one mailing. The district court granted the motion and the Second Circuit reversed. The court in Margiotta held that the use of multiple mailings in a mail fraud indictment does not violate the rule against duplicity because a single count of an indictment should not be found impermissibly duplicitous whenever it contains several allegations that could have been stated as separate offenses ... but only when the failure to do so risks unfairness to the defendant. That risk is slight in a case like this where the essence of the alleged wrong is the single scheme to defraud and the various mailings, though they are technically the acts that violate the federal statute, are really the jurisdictional bases for federal prosecution. See United States v. Blassingame, 427 F.2d 329 (2d Cir.1970), cert. denied, 402 U.S. 945, 91 S.Ct. 1629, 29 L.Ed.2d 114 (1971) (involving similar statute condemning fraud by wire, 18 U.S.C. § 1343 (1976)). Id. at 733 (citation omitted). The court reasoned that any potential unfairness to the defendant which might spring from including several mailings in a single indictment can be easily avoided via proper jury instructions: “We anticipate no unfairness to the defendant if the jury, properly instructed, is permitted to convict on Count One upon finding all the elements of mail fraud established, including the mailing of at least one item in furtherance of the scheme to defraud.” Id. Margiotta controls this aspect of defendants’ motion. The indictment in Margiotta alleged a scheme to defraud the public and the goals of the scheme were realized through the use of interstate mails; in this case, Count Two alleges a scheme to defraud the flying public by means of, among other things, the use of interstate wire transmissions. Defendants attempt to distinguish Margiotta on the grounds that the interstate wire transactions are an “inherent part of the alleged wrong,” Defs.’ Mem. at 21 n. 15, whereas the use of interstate mails in Margi otta were to establish jurisdiction. Defendants are correct that the government has alleged that the specific wire transactions themselves were fraudulent (ie., they reported maintenance check-ups which never occurred),, and that such was not the case in Margiotta (the checks for the insurance premiums were mailed in execution of the scheme to defraud), but it is a distinction without a difference: Both the indictment in Margiotta and the Superseding Indictment in this action allege a scheme to defraud the public, and the scheme in both cases is executed through the use of interstate communications. The fact that one set of interstate communications is allegedly inherently fraudulent is irrelevant; in both cases the policy considerations underlying the prohibition against duplicity, as articulated by the court in Margiotta, do not compel a conclusion that Count Two is impermissibly duplicitous. Appropriate jury charges will assure a unanimous verdict; the indictment gives defendants adequate notice of the charges alleged; and defendants’ double jeopardy rights will be protected. Because there is no prejudice to defendants by including several interstate transmissions in the Section 1343 count, dismissal is unwarranted. This conclusion is bolstered by the fact that, in other contexts, where separate acts which constitute separate violations of a criminal statute are committed as part of a single scheme, the indictment is not dismissed for impermissible duplicity. See, e.g., United States v. Alsobrook, 620 F.2d 139, 142-43 (6th Cir.) (inclusion of more than one act of interstate travel in a single count alleging a violation of The Travel Act, 18 U.S.C. § 1952, is not impermissibly duplicitous because each act was part of a continuing course of conduct that represented only a single offense), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980). III. Motion to Dismiss Obstruction of Justice Counts Defendants have also moved to dismiss Counts 23 through 28 which allege as follows: On or about the dates listed below, within the Eastern District of New York, the listed defendants did knowingly, wilfully and corruptly obstruct and impede and endeavor to obstruct and impede the due and proper administration of the law under which a pending proceeding was being held before the Federal Aviation Administration of the Department of Transportation, an agency of the United States, to wit: each testified falsely regarding his knowledge of and participation in a conspiracy to falsify maintenance records[.] (Title 18, United States Code, Sections 1505, 3551 et seq. and 2). Superseding Indictment, ¶ 74. The Superseding Indictment then lists the date each listed defendant allegedly falsely testified before the FAA. Defendants seek to have these counts dismissed on the grounds that (i) they are in violation of Rule 7(c) in that they are not pleaded with the requisite particularity; and (ii) the lack of specificity improperly precludes defendants from invoking the “exculpatory no” doctrine as a defense. A. Rule 7(c) The criteria for analyzing the constitutional soundness of an indictment is discussed above in Section II.A of this memorandum and order and need not be repeated. As noted there, an indictment is valid if, as a general rule, it tracks the language of the statute and gives the defendant enough information so that he or she may properly prepare a defense, effectively plead double jeopardy, and insures that any conviction is the result of an indictment that was presented to the grand jury. United States v. Gordon, 780 F.2d 1165, 1169 (5th Cir.1986) (“An indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charge he must be prepared to meet, and enables the accused to plead acquittal or conviction in bar of future prosecutions for the same offense.”). Because Counts 23-28 meet all of these criteria, dismissal would be improper. The statute which defendants are alleged to have violated, reads in relevant part as follows: Whoever corruptly, or by threats of force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress— Shall be fined not more than $5,000 or imprisoned not more than five years, or both. 18 U.S.C. § 1505. The Superseding Indictment in this case accurately tracks the language of the statute: Defendants are alleged to have “endeavor[ed] to obstruct and impede the due and proper administration of the law under which a pending proceeding was being held before the [FAA].” The Superseding Indictment lists the name of the agency involved; the dates of the hearings; and the manner in which defendants allegedly impeded its function (i.e., testifying falsely regarding knowledge of the conspiracy to falsify maintenance record). The extent to which Counts 23-28 are adequately pleaded is illustrated by the court’s determination in United States v. Alo, 439 F.2d 751 (2d Cir.), cert. denied, 404 U.S. 850, 92 S.Ct. 86, 30 L.Ed.2d 89 (1971). In Alo, the defendant was convicted of violating 18 U.S.C. § 1505 by obstructing the Securities and Exchange Commission’s administration of the federal securities laws by virtue of his testimony before the Commission in which he claimed to remember very little about certain meetings that had taken place eighteen months before. The indictment recited that the defendant did “unlawfully, wilfully, knowingly and corruptly obstruct and impede and endeavor to obstruct and impede the due administration of laws of the United States ... under which a proceeding ... before a department and agency of the United States ... was then pending and being had____” Id. at 756. The indictment amplified the allegations by stating that the defendant “[gave] false and evasive answers to questions put to him as a witness in such proceeding” and gave specifics as to date, statute, and name of the administrative agency and proceeding. The defendant moved to dismiss claiming that the indictment lacked the requisite specificity. The Court of Appeals disagreed and dealt with the defendant’s argument in a single paragraph: Alo’s objection to the supposedly vague indictment is that it failed to apprise him of the “nature and cause of the accusation.” Considering the fact that Alo’s forgetfulness was the constant theme of his testimony before the SEC, we have little doubt that, although somewhat greater specificity would have been advisable, he understood precisely what the phrase “false and evasive answers” referred to. Id. (footnote omitted). The court was not troubled by the fact that the indictment did not recite which answers were “false and evasive” and therefore defendants’ argument in this case that the Superseding Indictment is defective because it does not include the subject matter of each allegedly false statement is equally unavailing. Defendants argue, however, that the counts should be dismissed because they do not meet the standards for charging perjury in that the charging paragraph does not describe with particularity the falsehood which forms the basis of the offense. See, e.g., United States v. Tonnelli, 577 F.2d 194, 200 (3d Cir.1978) (perjury indictment dismissed because it did not set forth the precise falsehoods alleged and the factual bases of their falsity). This argument was squarely rejected by Judge McLaughlin in United States v. Schwimmer, 649 F.Supp. 544 (E.D.N.Y.1986), where a defendant was charged with a violation of 18 U.S.C. § 1503. In Schwimmer, it was alleged that the defendant obstructed the administration of justice by causing the creation of a false and fabricated document and its submission to a grand jury. The defendant sought dismissal of the indictment on the ground that the indictment failed to identify the allegedly falsified document which the defendant was accused of having caused to be submitted to the grand jury. As the court reported, “[d]efendant argues that his case may be analogized to a perjury prosecution, and cites several cases ... that stand for the proposition that a perjury indictment must set out specifically the allegedly perjurious statement.” Id. at 547 (citation omitted). The court rejected this argument, noting that “[t]his is not, however, a perjury ease.” Id. The court upheld the validity of the indictment because, An indictment under section 1503 is sufficient if it “furnishes sufficient information as to the time, place and essential elements of the crime to enable the defendants to prepare for trial and avoid a claim of double jeopardy. United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir.1973) [cert. denied, 415 U.S. 985, 94 S.Ct. 1579, 39 L.Ed.2d 882 (1974)].” United States v. Weiss, 491 F.2d 460, 466 (2d Cir.), cert. denied, 419 U.S. 833, 95 S.Ct. 58, 42 L.Ed.2d 59 (1974). Id. As with the indictment in Schwimmer, the Superseding Indictment in this action sets forth the time, place and essential elements of the crime and is therefore valid. Because these counts allege a violation of 18 U.S.C. § 1505, and not the perjury statute, 18 U.S.C. § 1623, defendants’ arguments are inapplicable. B. Exculpatory No Doctrine Defendants also seek dismissal of the obstruction of justice counts on the theory that their alleged lack of specificity precludes them from invoking the “exculpatory no” doctrine as a defense. This doctrine “immunizes direct denials of criminal wrongdoing made in response to questions, irrespective of their falsity, from prosecution under [18 U.S.C.] Section 1001.” United States v. Cervone, 907 F.2d 332, 342 (2d Cir. 1990), cert. denied, 498 U.S. 1028, 111 S.Ct. 680, 112 L.Ed.2d 672 (1991). The Second Circuit has never formally adopted this doctrine in the context of either Section 1001 or Sections 1503 or 1505. “We have never adopted the doctrine ... but have indicated that were we to adopt it, it would be construed narrowly[.]” Id. (citing United States v. Capo, 791 F.2d 1054, 1069 (2d Cir.1986), rev’d in part on other grounds on rehearing en banc, 817 F.2d 947 (2d Cir.1987)). Even in those situations where the Second Circuit has addressed the defense in Section 1001 cases, it has made clear that “affirmative, voluntary statements], which are readily distinguishable from simple exculpatory denials in response to investigator’s questions, would not be within the exception.” Capo, 791 F.2d at 1069 (internal quotations omitted). In United States v. Biaggi, 909 F.2d 662, 687 (2d Cir.1990), cert. denied, 499 U.S. 904, 111 S.Ct. 1102, 113 L.Ed.2d 213 (1991), the defendant was found guilty of violating 18 U.S.C. § 1503 when he denied having received a bribe in response to questions by federal agency officials. The court declined to extend the exculpatory no doctrine to Section 1503 cases and noted that, even if it were to be adopted for such proceedings, it did not apply because the defendant’s responses went beyond bare denials. In this case, defendants argue that because each defendant gave simple denials when asked by FAA officials whether they participated in the falsification of records, the doctrine should be made available to them. Defendants argue that because the indictment does not specify upon which denials the government relies in its Section 1503 charge, they are denied the opportunity to assert the defense. Defendants’ position is unpersuasive for several reasons. First, as defendants concede, the Second Circuit has yet to formally adopt the exculpatory no doctrine in either Section 1001 cases or Section 1505 cases, and has made it clear that even if it were to adopt it, it would be construed narrowly. See, e.g., United States v. Roshko, No. 90 Cr. 265, 1991 WL 18146 at *6 (S.D.N.Y. Feb. 7, 1991) (exculpatory no doctrine is inapplicable in Section 1001 action where defendant gave false statements to Immigration and Naturalization Service agent because the interview was not part of a government initiated investigation in which defendant was compelled to answer). Second, even if this court were to recognize the defense in a Section 1505 action, the doctrine would not apply in this case because even a simple exculpatory no in response to the query of a federal agent does not fall within the exception if that answer affirmatively misleads the agent. In Cervone, the defendant was convicted of a viola,tion of 18 U.S.C. § 1001 on the basis of his denial in a interview at his office with New York City police detectives of ever having spoken to a co-defendant about certain coalitions or minority hiring practices in the construction industry. The court rejected his exculpatory no defense, explaining: As to Cummings, his remarks were not truly exculpatory. Certainly no incriminating consequences were to be feared from a truthful answer to the inquiry as to whether he had even discussed minority hiring problems with Cervone. Even if the conversation with the officers ended after that particular false statement, Cummings would have affirmatively misled them, perhaps causing them to direct their investigation elsewhere. Cummings’ denial of any talks regarding the minority hiring situation thus falls within the currently recognized ambit of the statute. Cervone, 907 F.2d at 343. Therefore, if defendants’ denials of participation in a scheme to falsify maintenance records affirmatively misled the FAA, the doctrine would not apply. Finally, because defendants answered questions at a deposition under oath, pursuant to a subpoena, and with the aid of counsel, they were not “taken by surprise or otherwise cornered into a defensive, ill-considered misstatement,” id., and hence the exculpatory no doctrine does not apply. IV. Discovery Motions Defendants have moved this court for orders compelling the government to comply with their discovery requests; to produce Brady materials; and to provide a Bill of Particulars. Rule 16 of the Federal Rules of Criminal Procedure provides the protocol for discovery in criminal cases. Subdivision (a)(1)(C) of that Rule is specifically relevant and provides: Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs ... or copies or portions thereof which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense or are intended for use by the government as evidence in chief at the trial[.] Defendants categorize their discovery request as follows: (1) those designed to enable them to understand the nature and scope of the accusations against them; (2) those seeking documents material to the preparation of their defense; and (3) those seeking exculpatory or impeachment materials. Defs.’ Mem. at 7. A. Understanding the Charges Even a casual perusal of the Superseding Indictment compels the conclusion that the assertion of an inability to understand the nature and scope of the charges is disingenuous. The alleged violations of 18 U.S.C. §§ 371 and 1001 charged in 21 counts of the Superseding Indictment precisely identify the defendants, the documents allegedly falsified, the maintenance item to which it pertains and the aircrafts affected. For example, in the section of the Superseding Indictment entitled “Overt Acts,” in Paragraph 27(b), the following items, among others, are provided: Eastern Falsified Items of Date Employees Aircraft Documents Maintenance 5/7/87 ROBERT 303 Log Book Repair of ZUEGEL malfunctioning engine pressure ratio gauge. Count Two, charging the defendants with a violation of 18 U.S.C. § 1343 (fraud by wire) alleges that the named defendants transmitted computer transactions from computer terminals at JFK over interstate telephone lines to a computer in Miami; interstate telephone calls between maintenance personnel and Eastern’s headquarters in Miami, Florida and radio transmissions between flight crews and air-traffic controllers. As noted above, in its opposition to the motions to dismiss, the government provided defendants with a list of “the specific wires the government intends to rely upon at trial as having been made for the purpose of executing the scheme to defraud charged in Count Two of the Superseding Indictment.” Gov’t’s Mem., Appendix. Defendants, therefore, can no longer complain that they have been deprived of the particulars needed to understand the charges against them. Counts 23-28 allege that the defendants named violated 18 U.S.C. § 1505 (obstructing proceedings before the FAA) by testifying falsely on a stated day. As noted above, the Superseding Indictment provides defendants with the date of the testimony and the name of the agency to which defendants allegedly testified falsely. Also as noted above, the government has apprised defendants, in its opposition to the motions to dismiss, that it plans at trial on relying upon the very answers cited by defendants in their moving papers, among others. Defendants, therefore, are now on notice as to the alleged false statements at issue in these counts. Insofar as the document requests are concerned, the government flatly and unequivocally states that it has produced virtually everything in its files with the exception of grand jury transcripts and impeachment material which will be addressed hereafter. As is not infrequently the ease, in what can fairly be described as extensive memoranda of law and more extensive appendices to those memoranda, complaints by defendants abound to the effect that legitimate requests are ignored and responses by the government abound to the effect that the requests have either been fully complied with or are not legitimately made. To the extent that the government represents that it “has produced every document in its possession which relates in any way to this case” Gov’t’s Mem. at 7, the court must assume the veracity of that representation. The alternative to such an assumption would require the court to examine numerous file drawers of documents to verify that representation which is as obviously undesirable as it is impractical. As a matter of law, mere speculation by a defendant that the government has not fulfilled its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is not enough to establish that the government has, in fact, failed to honor its discovery obligations. This is especially so when, as in this ease, the government has maintained an “open file” policy. United States v. Driver, 798 F.2d 248, 250 (7th Cir.1986) (“Driver’s speculation that the government might not have disclosed all of the information in its possession about the co-conspirators falls far short of establishing that the prosecution suppressed exculpatory evidence____ Indeed, in this case the government maintained an open file policy, under which it afforded Driver access to all of its files pertaining to his case.”). The government is under no obligation to turn over that which it does not have. United States v. Zavala, 839 F.2d 523, 528 (9th Cir.) (per curiam) (no Brady violation in failure to disclose probation reports with statements of various government witnesses because reports in control of probation department, not prosecution), cert. denied, 488 U.S. 831, 109 S.Ct. 86, 102 L.Ed.2d 62 (1988). 1. Identifying Documents to Be Relied Upon at Trial The essence of the dispute is not that the government has not produced the documents, but that it has not isolated the documents that are relevant and may be offered at trial which would spare the defendants the task of examining all the documents. In this regard, defendants rely on, among other authorities, United States v. Turkish, 458 F.Supp. 874 (S.D.N.Y.1978). In Turkish, the defendant “[sought] a direction to the government to indicate which of the approximately 25,000 documents relating to this case in the government’s possession it intends to use at trial, rather than ‘bury[ing] the defendant in paper’ by merely generally making all of the documents available to defendants.” Id. at 882. The court granted the defendant’s motion because, the court reasoned, Rule 16 requires that the government allow the defendant to inspect and copy all documents “which will be relied on or referred to in any way by any witness called by the government during its case in chief.” Id. (quoting United States v. Countryside Farms, Inc., 428 F.Supp. 1150, 1154 (D. Utah 1977)). Defendants also draw the court’s attention to United States v. Poindexter, 727 F.Supp. 1470 (D.D.C.1989), where the government produced over 300,000 pages of documents and was, at the time of the discovery motion, prepared to produce approximately 100,000 additional pages. Like the defendant in Turkish, and in this action, the defendant in Poindexter argued that it was improper for the government to do no more than “identify several thousand pages, any of which it ‘may’ rely on at trial.” Id. at 1484. The court agreed that “[t]his broad brush approach ... is not sufficient to meet [the government’s] obligations.” Id. With very little discussion, the court concluded that, based on “fairness to the defendant, the protection of his rights, and not least Rule 16(a)(1)(C),” id., the government must, identify with greater specificity those among these thousands of documents in the financial, calendar, and diary areas that it intends to use at trial. This notification will not prevent the government from later [sic] introducing other documents from these materials on a limited scale, but it will give the defendant some notice as to which among the thousands of documents are likely to be part of the government’s case-in-chief. Id. (citing Turkish). The court in Poindexter also ordered the government to identify all documents upon which a witness will rely or to which he will refer. Id. In United States v. Bortnovsky, 820 F.2d 572 (2d Cir.1987), the government also contended that it had fulfilled its obligations to inform the defendants of the charges against them by allegedly being specific in the indictment and providing over 4,000 documents. The twelve count indictment included a violation of the mail fraud statute and conspiracy to defraud the United States by virtue of a scheme whereby the defendants submitted false claims for burglary to the Federal Insurance Administration and the New York Property Insurance Underwriting Association. The indictment provided a list of the suspect pieces of mail along with their approximate dates of mailing and addressees but did not enumerate which of numerous documents were falsified or the dates of the allegedly staged burglaries. The Court of Appeals reversed the convictions because it concluded that the defendants “were hindered in preparing their defense by the district court’s failure to compel the Government to reveal crucial information: the date of the fake burglaries and the identity of the three fraudulent documents.” Id. at 574. The court reasoned that the burden of proof had been impermissibly shifted to defendants because they were forced to explain events surrounding eight actual burglaries and to confront numerous documents unrelated to the charges pending. Id. at 574-75. The court wrote, The Government did not fulfill its obligation merely by providing mountains of documents to defense counsel who were left unguided as to which documents would be proven falsified or which of some fifteen burglaries would be demonstrated to be staged. Id. at 574. In this case, it is uncontroverted that the government has produced thousands of pieces of paper and of those thousands of documents the Superseding Indictment puts the defendants on notice of only a handful of items which the government contends is fraudulent. If it were the case that these were the only documents the government intended to rely upon at trial, defendants’ position would not merit much discussion; it is not the job of the government to neatly organize and separate the documents for the defendants. However, it is not clear that the government will restrict its proof to the documents cited in Paragraph 27(b) of the Superseding Indictment. In its memorandum in opposition, the government states that “the defendants have known for over seven months the specific instances of records falsification the government will seek to prove at trial.” Gov’t’s Mem. at 10 (emphasis in original). However, the government also says that it will, prior to trial, designate its trial exhibits. It could be, therefore, that the government plans on introducing allegedly falsified maintenance records other than those specified in the Superseding Indictment. If that is the case, the reasoning of Turkish, Poindexter, and Bortnovsky, and the language and policy concerns of Rule 16, require that the government provide defendants with adequate notice of the allegedly falsified documents upon which it plans to rely at trial in order to allow them to adequately prepare their defense. This analysis applies with equal force to defendants’ request that the government provide a list of all documents to be referred to or relied upon by government witnesses. The government, however, argues that it need not inform defendants of the documents upon which it plans to rely at trial because (i) former defendant Eastern is the source of approximately 90 percent of the discovery documents; (ii) defendants are familiar with the significance of the document; (iii) the Superseding Indictment lists 33 specific acts of records falsification; and (iv) the government will provide trial exhibits prior to trial. None of these arguments are availing because they do not adequately explain why defendants should be kept in the dark until trial as to which specific documents the government will contend were falsified in furtherance of the scheme outlined in the Superseding Indictment. Finally, the government attempts to distinguish Poindexter and Bortnovsky on the grounds that those cases involved government documents with which the defendan