# United States v. Bissell

> District Court, D. New Jersey · December 13, 1996 · 954 F. Supp. 841

URL: https://www.frixlaw.com/law-library/cases/1488329

## Case

- **Full name:** UNITED STATES, Plaintiff, v. Nicholas L. BISSELL, Jr., Barbara J. Bissell, Defendants
- **Court:** District Court, D. New Jersey
- **Decided:** December 13, 1996
- **Citations:** 954 F. Supp. 841; 1996 U.S. Dist. LEXIS 19982; 1996 WL 754808
- **Precedential status:** Published
- **Opinion:** Opinion by Lechner
- **Judges:** Lechner
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1488329

## How later opinions describe it (automated extraction)

- applying the sophisticated means enhancement after the evidence showed the practices of skimming money, fraudulent write-offs, overstating business expenses, misstating ownership interest and withholding payroll taxes
- rejecting downward departure for wife of the former county prosecutor, despite the intense media attention devoted to the case
- noting wide scope of mail fraud statute, as extended by amended section 1346

## Opinion text

TABLE OF CONTENTS
Facts..........................................................................850
The Second Superseding Indictment..................................... 850
A. Background ...........................................................850
B. Counts 1-11: Violation of the Public Trust.................................851
1. Failure to Disclose Business Relationship With Adversary................852
2. Extortion by Abuse of Office.........................................852
3. Conduct Which Compromised the Office of the Somerset County Prosecutor; Failure to Act Honestly in the Conduct of Nicholas Bissell’s Office ...........................................................852
4. Mailings in Furtherance of Unlawful Behavior..........................853
C. Counts 12-16: Defrauding An Investor in the Bedminster Station............853
D. Count 17: Fraud on the Investors in the Somerset Station...................854
E. Count 18: Fraud on the Distributor.......................................855
F. Count 19: Financial Aid Fraud...........................................855
G. Count 20: Obstruction of Justice..........................................856
H. Count 21: Perjury During a Civil Proceéding..............................856
I. Count 22: False Statements to Federal Agents.............................856
J. Count 23: Conspiracy to Defraud the IRS.................................857
K. Counts 24-27: Evasion of Personal Income Taxes ..........................857
L. Counts 28-30: Subscribing to False Returns...............................858
M. Counts 31-33: Aiding and Assisting in the Filing of a False Return...........858
Discussion................'......................................................858
A. Summary of Pending Motions'............................................858
B. Motion to Dismiss Counts 1-11 of the Second Superseding Indictment.........860
1. Background.......................... 860
2. Standards for Dismissal of an Indictment..............................860
3. Failure to Provide Honest Services....................................861
4. Retroactivity Argument............. 863
C. Motion to suppress Videotapes...........................................864
1. Background........................................................864
2. Testimony of Robert Krut............................................864
*849
3. Reasonable Expectation of Privacy....................................865
4. Validity of Thornburg Consent........................................867
D. Motion by Nicholas Bissell for Production of Unredacted Copy of LaRose 15 April 1995 Affidavit and Motion by the Government for a Protective Order... 867
E. Pretrial Disclosure of Brady and Giglio and Jeneks Act Material; Motion for Reciprocal Discovery..................................................868
1. Brady Material.....................................................868
2. Giglio Material.....................................................869
3. Jeneks Act Material.................................................870
4. Motion for Reciprocal Discovery......................................871
F. Severance Motions......................................................871
1. Motion to Sever the Trials of Nicholas and Barbara Bissell...............872
2. Motion by Barbara Bissell to Sever Counts 12-16 and 23-33 from the Remainder of the Second Superseding Indictment.....................874
3. Motion by Nicholas Bissell to Sever Counts 1-11 and 20-21 From the Remainder of the Second Superseding Indictment.....................874
G. Motions Relating to Seized Currency......................................875
1. Motion by Barbara Bissell for Return of Seized Currency................875
2. Motion by Nicholas Bissell for an In Limine Hearing to Determine Admissibility of Seized Currency....................................876
H. Motion to Dismiss the Second Superseding Indictment Due to Misuse of Grand Jury..........................................................877
I. Motion to Require Law Enforcement Officers to Preserve Rough Notes of Investigation and Relevant Matters.....................................878
J. Motion by Barbara Bissell to Bar Introduction of Co-Conspirator Statements Pursuant to Rule 801(d)(2)(E)....................................878
K. Motion to Require the Government to Indicate Any Evidence it Intends to Introduce at Trial Pursuant to Rule 404(b)...............................879
L. Motion by Barbara Bissell to Require the Government to Identify any Matters of Which it Will Seek to Have the Court Take Judicial Notice and to Produce Charts or Summaries it Intends to Use at Trial................880
M. Motion to Exclude or Redact Bruton Material..............................880
Pre-trial Conclusion.............................................................880
Sentencing.....................................................................880
A. Sentencing Guideline Calculation.........................................880
1. Background........................................................880
2. The Sentencing Hearing.............................................882
3. Sentencing Recommendations........................................882
a. Convictions and Grouping Rules...................................882
b. Group One — Mail Fraud Involving the Bedminster Station (Counts 12-16) .......................................................883
c. Group Two — Tax Fraud (Counts 23-30)............................883
d. Multiple Count Adjustment.......................................883
B. Objections.............................................................883
1. Government Objection...............................................883
2. Barbara Bissell’s Objections..........................................885
a. Tax Loss Calculations............................................885
b. Loss from the Bedminster Station Fraud...........................886
e. Minor Role in Tax Evasion and Bedminster Station fraud.............888
d. Sophisticated Means.............................................888
e. Acceptance of Responsibility......................................889
f. Remaining Objections............................................889
C. The Motion for Downward Departure.....................................889
1. The Standard for Departure from the Guidelines........................889
2. Grounds For Downward Departure ..................'.................891
a. Section 5K2.0...................................................892
1. Extraordinary Family Responsibilities.................................892
2. Reliance on Professionals............................................895
*850
3. Susceptibility to Abuse in Prison......................................896
b. Coercion, Duress and Diminished Capacity.............:...........897
e. Additional Grounds for Downward Departure ........................898
d. Downward Departure Conclusion..................................899
D. Substantial Assistance..................................................899
1. Section 5K1.1.................................... 899
2. The 5K1.1 Analysis.. ■........ 899
3. Barbara Bissell’s Cooperation........................................900
E. Barbara Bissell’s Sentence...............................................902
F. Restitution...................................,........................902
OPINION
LECHNER, District Judge.
• A Grand Jury (the “Grand Jury”) returned a thirty-three count indictment (the “Indictment”) on 28 September 1995 against defendants Nicholas L. Bissell, Jr. (“Nicholas Bissell”) and Barbara J. Bissell (“Barbara Bissell”), husband and wife (collectively, the “Defendants”). The Indictment charged perjury, 18 U.S.C. § 1623 , obstruction of justice, 18 U.S.C. § 1503 , mail fraud, 18 U.S.C. §§ 1341 , 1346, false statements, 18 U.S.C. § 1001 , conspiracy against the United States, 18 U.S.C. § 371 , aiding and abetting, 18 U.S.C. § 2 , obtaining a student loan by use of a false statement, 20 U.S.C. § 1097 (a), attempting to evade Federal income taxes, 26 U.S.C. § 7201 , wilfully subscribing to a false tax return, 26 U.S.C. § 7206 (1) and wilfully assisting in the preparation of a false tax return. 26 U.S.C. § 7206 (2).
The Grand Jury filed a superseding indictment (the “Superseding Indictment”) on 7 March 1996, and a second superseding indictment (the “Second Superseding Indictment”) on 14 March 1996. The differences among these three indictments are indicated below.
1
This opinion addresses the several pretrial motions by Defendants, a motion by the Government, as well as the sentencing of Barbara Bissell.
2
Facts
The Second Superseding Indictment
A.
Background
The following facts were alleged in the Second Superseding Indictment and were established at trial. Nicholas Bissell was an attorney licensed to practice law in the State of New Jersey during all relevant times. Second Superseding Indictment, ¶ 1(b), at 2. From 28 October 1982 to 28 September 1995, Nicholas Bissell served as the Prosecutor of Somerset County, New Jersey.
Id.
The Somerset County Prosecutor, who is appointed by the Governor, oversees the office of the Somerset County Prosecutor (the “Somerset County Prosecutor’s Office”) “the county law enforcement agency whose primary purpose [is] to protect and to serve the residents of Somerset County through the honest and fair enforcement of the criminal laws of the State of New Jersey.”
Id.,
¶ 1 (a), at 1-2. Upon assuming the office of Somerset County Prosecutor, Nicholas Bissell swore to “ ‘faithfully, justly, and impartially execute the duties of County Prosecutor.’ ”
Id.,
¶ 1 (b), at 2.
Nicholas Bissell held interests in two gasoline stations. In 1981, Nicholas Bissell purchased the franchise to operate a gasoline station located at Routes 202 and 206 in Somerset County, New Jersey (the “Bed-minster Station”). At that time, the Bed-minster Station operated under the Citgo
*851
and Mobil trademark names; it began operating under the Amoco brand in 1992. Second Superseding Indictment, ¶ 1(c)(1), at 2. Nicholas Bissell held an interest in another gasoline station, located at 1830 Easton Avenue, in Somerset County, New Jersey (the “Somerset Station”). Nicholas Bissell “and others” acquired the franchise to operate the Somerset Station in 1984 and sold the franchise in July 1988. “Proceeds from the sale of the franchise continued to be paid until approximately September, 1992.”
Id.,
¶ 1 (c)(2), at 2.
From 1983
3
to 1991, Nicholas Bissell “and a partner, who was an attorney, owned the Bedminster [SJtation.”
4
During that time, Nicholas Bissell maintained a one-half interest in this partnership (the “Bedminster Station Partnership”). Second Superseding Indictment, ¶ 1(d), at 2-3. According to the Bedminster Station Partnership’s tax returns, Barbara Bissell was also a partner.
Id.
Beginning in 1991, Budco, Inc. (“Bud-co”), d/b/a Bissell’s, Inc. (“Bissell’s, Inc.”), owned the franchise to operate the Bedminster Station.
Id.,
¶ 1 (e), at 3. At times, Barbara Bissell served as the president of the corporation.
Id.
Nicholas Bissell was a partner in RB & W (the “RB & W Partnership”), which owned a building located at 21 North Bridge Street, in Somerville, New Jersey.
Id.,
¶ 1 (f), at 3.
B..
Counts 1-11: Violation of the Public Trust
Counts One through Eleven of the Second Superseding Indictment charged Nicholas Bissell. These counts alleged violations of 18 U.S.C. §§ 1341 and 1346, which proscribe mail fraud, and 18 U.S.C. § 2 , which provides one who aids and abets is liable as a principal. These counts alleged Nicholas Bissell “knowingly and wilfully did devise and intend to devise a scheme to defraud the citizens of the County of Somerset, the County of Somerset itself, and the State of New Jersey, of their right to the honest and faithful services of their chief law enforcement officer,” from 18 November 1988 through 28 September 1995, the date the Indictment was filed, thereby violating 18 U.S.C. § 1341 . Second Superseding Indictment, ¶3, at 5. Section 1341 of Title 18 proscribes mailing, or causing the. mailing of, any matter in furtherance of “any scheme or artifice to defraud____” 18 U.S.C. § 1341 . A “scheme or artifice to defraud,”
id.,
includes a “scheme or artifice to deprive another of the intangible right of honest services.” 18 U.S.C. § 1346 .
Nicholas Bissell, as the Somerset County Prosecutor, had several duties arising under New Jersey law and under the New Jersey Rules of Professional Conduct. A county prosecutor in the State of New Jersey must “ ‘use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws.’ ”
Id.
at 12 (a); at 3 (citing N.J.S.A. § 2A:158-1 and quoting N.J.S.A. § 2A: 158-5). A county prosecutor must also “‘devote his [or her] entire time to the duties of his [or her] office’ ” and cannot otherwise engage in the practice of law or any other employment.
Id.,
¶ 2(b), at 3 (quoting N.J.S.A. § 2A:158-1.1). A county prosecutor must “refrain from willfully engaging in misfeasance and nonfeasance of his [or her] official duties,”
id.,
¶ 2(c), at 4 (citing N.J.S.A. § 2C:30-2) (official misconduct), must abide by the New Jersey Rules of Professional Conduct and must avoid conflicts of interest.
Id.,
¶ 2(d), at 4.
A local government officer in the State of New Jersey cannot have “ ‘an interest in a ... business, transaction, or professional activity, which is in substantial conflict with the proper discharge of his [or her] duties in the public interest.’” Second Superseding Indictment, ¶ 2(e)(1), at 4 (quoting N.J.S.A. § 40A:9-22.5(a)). A local government officer must “refrain from using or attempting to use ‘his [or her] official position to secure
*852
unwarranted privileges or advantages for himself [or herself] or others.’ ”
Id.,
¶ 2(e)(2), at 4 (quoting N.J.S.A. § 40A:9-22.5(e)). Such an officer cannot act in his or her official capacity “ ‘in any matter where he [or she], a member of his [or her] immediate family, or a business organization in which he [or she] has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair his [or her] objectivity or independence of judgment.”’
Id.,
¶ 2(e)(3), at 4 (quoting N.J.S.A. § 40A:9-22.5(d)). A local government officer must “ ‘fully, truthfully and accurately disclose all material facts relating to his [or her] compliance with the Code of Ethics for Local Government Officers.’ ”
Id.,
¶ 2(e)(6), at 5 (quoting N.J.S.A. § 40A:9-22.6). Such an officer may neither engage in conduct “ “which might reasonably be expected to prejudice his [or her] independence of judgment in the exercise of his [or her] official duties,’ ” nor use his or her public office to secure financial gain for him or herself, a member of his or her immediate family “ ‘or any business organization with which he [or she] is associated.’ ”
Id.,
¶¶ 2(e)(4), (5), at 5 (quoting N.J.S.A. § 40A:9-22.5(e), (g)).
The Second Superseding Indictment alleged Nicholas Bissell failed to disclose a “material conflict of interest” that resulted from a business relationship between himself and an attorney who represented adversaries of the Somerset County Prosecutor’s Office. Second Superseding Indictment, ¶ 4(a), at 5-6. It was charged that Nicholas Bissell also abused his position as Somerset County Prosecutor to commit extortion in connection with the Bedminster and Somerset Stations.
Id.,
¶ 4(b), at 6. The Government alleged Nicholas Bissell engaged in conduct “which might reasonably be expected to compromise his ability to faithfully, justly and impartially execute” his official duties,
id.,
14(e), at 6, and failed “to act honestly” in connection with a Federal civil rights lawsuit (the “Federal Civil Action”) that named him as a defendant.
Id.,
14(d), at 6.
1.
Failure to Disclose Business Relationship With Adversary
Nicholas Bissell created a conflict of interest by forming the RB & W Partnership, on 28 October 1982, with an attorney (his “Partner” or “Nicholas Bissell’s Partner”). Nicholas Bissell’s Partner represented clients in an adversarial capacity to the Somerset County Prosecutor’s Office.
Id.
at 15, at 6. In “September and October 1983,” Nicholas Bissell formed the Bedminster Station Partnership with his Partner.
Id.,
¶ 6, at 6. The Bedminster Station Partnership created another conflict of interest.
Id.,
16, at 7. Nicholas Bissell “created and used a false document” that inaccurately indicated the Bedminster Station Partnership was formed before he became Somerset County Prosecutor; he engaged in additional sham transfers and continued to maintain control of, and interests in, the Bedminster Station and RB & W Partnerships.
Id.,
¶¶ 7-8, at 7.
2.
Extortion by Abuse of Office
An individual (the “Distributor Owner”) owned the franchisor/gasoline distribution company (the “Distributor”) which, in turn, owned the Somerset and Bedminster Stations. Second Superseding Indictment, ¶ 10(a), at 7. From January 1988 through March 1988, the Distributor Owner received complaints from customers about the Somerset and Bedminster Stations. Thereafter, the Distributor Owner notified Nicholas Bis-sell the complaints could result in the termination of the stations’ franchise agreements.
Id.,
¶ 10(b), at 8. On 14 March 1988, Nicholas Bissell threatened to plant cocaine in the Distributor Owner’s car and then have him arrested and prosecuted by the Somerset County Prosecutor’s Office. “This threat was a factor, and continued to be a factor, in the Distributor Owner’s business dealings with [Nicholas Bissell].”
Id.,
¶ 10(c), at 8.
3.
Conduct Which Compromised the Office of the Somerset County Prosecutor, Failure to Act Honestly in the Conduct of Nicholas Bissell’s Office
Nicholas Bissell engaged in other unlawful conduct that compromised his ability to honestly execute his duties as Somerset County Prosecutor, “thereby depriving the public of their right to the honest ... services of their chief law enforcement officer.”
Id.
at ¶ 11, at
*853
8. Nicholas Bissell engaged in the “fraudulent operation” of the Bedminster Station, which is the subject of counts 12-16 and 18 of the Second Superseding Indictment, the “fraudulent operation” of the Somerset Station, also the subject of count 17 and the “criminal solicitation of a vendor of the Prosecutor’s Office to prepare fraudulent tax returns,” also the subject of count 19.
Id.
at ¶ 11, at 8-9. Nicholas Bissell obstructed justice and committed perjury in connection with the Federal Civil Action, which is also the subject of counts 20-21.
Id.,
¶ 12, at 9. “It was further a part of the scheme that [Nicholas Bissell] took steps to conceal his dishonest conduct and self-dealing thus denying the public their right to the honest, faithful and disinterested services of their prosecutor and chief law enforcement officer.”
Id.,
¶ 13, at 9.
4.
Mailings in Furtherance of Unlawful Behavior
Nicholas Bissell knowingly and wilfully mailed or directed eleven separate mailings, all in violation of 18 U.S.C. §§ 2 , 1341 and 1346. Counts one, two, seven, nine and eleven charged the mailing of “Nicholas L. Bissell’s Local Government Ethics Law, Financial Disclosure Statement, addressed to Department of Community Affairs, Trenton, New Jersey,” on 3 October 1991, 28 April 1992, 4 May 1993, 28 April 1994 and 21 April 1995. Count three charged a mailing, on 26 October 1992, of Nicholas Bissell’s “Answers to Plaintiffs First Set of Interrogatories” in the Federal Civil Action. Count six charged a mailing, on 15 January 1993, of Nicholas Bissell’s “Second Request for Production of Documents” again in the Federal Civil Action. Count four charges a mailing, on 18 December 1992, of “Financial aid forms ... to 1301 Route 28, Somerville, New Jersey.” Counts five, eight and ten charged the mailing of “Financial aid forms, ... to Catholic University, Washington, D.C.,” on 24 December 1992, 3 June 1993 and 3 June 1994. Second Superseding Indictment, ¶ 14, at 10-11. Each mailing formed the basis for one count in the Second Superseding Indictment for mail fraud, pursuant to 18 U.S.C. § 1341 .
5
Counts one through eleven also charged criminal liability as a principal for aiding and abetting the commission of mail fraud. 18 U.S.C. § 2 .
C.
Counts 12-16: Defrauding An Inves- ■ tor in the Bedminster Station
Counts 12-16 of the Second Superseding Indictment charged Defendants mailed documents in connection with defrauding Thomas “Buddy” Thornburg (“Thornburg”), an investor in the Bedminster Station, thereby committing (and aiding and abetting) mail fraud. 18 U.S.C. §§ 2 and 1341. Barbara Bissell, the bookkeeper for the Bedminster Station, maintained checkbook and payroll records and signed partnership and corporate income tax returns. Second Superseding Indictment, ¶ 2, at 12. Thornburg, the brother of an employee in the Office of the Somerset County Prosecutor, invested $100,000 in the Bedminster Station in June 1989. In return, Thornburg was to be an equal partner in the Bedminster Station Partnership and was employed as the manager of the Bedminster Station.
Id.,
¶ 3 , at 12.
Counts 12-16 charged Defendants “knowingly and willfully devised a scheme and artifice to defraud [Thornburg] of money and property by means of false and fraudulent pretenses, representations and promises,” from June 1989 to April 1995, “by diverting, embezzling and stealing money from the Bedminster ,[S]tation.” Second Superseding Indictment, ¶¶4-5, at 12. To further the scheme, Nicholas Bissell solicited $100,000 from Thornburg in June 1989, and on a later occasion, solicited an additional $23,000 from him.
Id.,
¶¶6-7 , at 13. In addition, Nicholas Bissell falsely represented to Thorn-burg, on “a number of occasions” between January 1990 and January 1995 that the Bedminster Station was operating at a loss.
Id.,
¶ 7 , at 12.
Barbara Bissell used funds from the Bed-minster Station for personal expenses, including payments for 1988 Mercedes Benz, 1992 Acura Legend LS and 1995 Jeep Grand
*854
Cherokee automobiles,
6
and a cellular telephone. She used a credit card held in the name of the Bedminster Station to pay other personal expenses. Thornburg was not told of any of these payments.
Id,.,
¶8, at 8.
The Second Superseding Indictment also charged Defendants “routinely embezzled cash from the Bedminster [S]tation” without informing Thornburg, including approximately $33,993 in 1994, $58,794 in 1993, $39,895 in 1992 and $13,800 in 1991, for a four-year total of $146,482.
7
Second Superseding Indictment, ¶ 9, at 13.
Count twelve charged Defendants mailed payments, beginning at $588 per month, for a 1988 Mercedes Benz- automobile leased to Nicholas Bissell. Such payments, made by Bissell’s, Inc., were mailed from approximately 2 January 1990 to 20 June 1991 and 25 August 1991 to 20 April 1992.
8
Second Superseding Indictment, ¶ 11, at 14. Count thirteen charged Defendants mailed monthly payments of approximately $600, for a 1992 Acura Legend and a 1995 Jeep Grand Cherokee. These payments, made by Bissell’s, Inc., were mailed from approximately 31 July 1992 to 25 August 1994 and 25 October 1994 to 15 March 1995.
9
Id.
Count fourteen charged Defendants mailed a Federal corporate income tax return for Budco to the Internal Revenue Service (“IRS”) in Holtsville, New York, from a United States Post Office in Skillman, New Jersey, on 13 September 1993.
Id.
Count fifteen charged Defendants mailed monthly payments for a cellular telephone registered in the name of Nicholas Bissell. Such payments, made by Bissell’s, Inc., were mailed from approximately 27 December 1991 to 25 November 1993.
Id.
Count sixteen charged that from approximately 2 February 1991 to 31 December 1991, Defendants mailed eight payments by Bissell’s, Inc. to American Express.
Id.,
¶ 11 . Each of the mailings forms the basis for one count of mail fraud. 18 U.S.C. § 1341 .
D.
Count 17: Fraud on the Investors in the Somerset Station
Count 17 of the Second Superseding Indictment charged Nicholas Bissell mailed documents in connection with defrauding Richard Thornburg (“Richard Thornburg”) and Robert Lang (“Lang”), thereby committing (and aiding and abetting) mail fraud. 18 U.S.C. §§ 2 and 1341. Richard Thornburg and Lang were both employees of the Somerset County Prosecutors Office and investors in the Somerset Station. Second Superseding Indictment, ¶¶ 2-3, at 15. Lang invested $20,000 in the Somerset Station in 1984; at that time, Nicholas Bissell “was managing the finances of the Somerset [SJtation on behalf of himself and his father.”
Id.,
¶¶ 2,4 , at 15. Count 17 also charged Nicholas Bis-sell “knowingly and willfully devised a scheme and artifice to defraud [Richard Thornburg and Lang] of money and property by means of false and fraudulent pretenses, representations and promises,” from October 1984 to June 1993,
10
by “diverting, embezzling and stealing money from [Richard Thornburg and Lang].”
Id.,
¶¶ 5-6 , at 15. To further the scheme to defraud Lang and Richard Thornburg, Nicholas Bissell solicited $20,000 from Lang and $25,000 from Richard Thornburg.
Id.,
¶7 , at 16. In addition, Nicholas Bissell falsely represented to Richard Thornburg and Lang, between October
*855
1984 and July 1988,
11
that the Somerset Station was operating at a loss.
Id.,
¶ 8 , at 16. Based upon those representations, Thorn-burg and Lang invested additional funds in the Somerset Station.
Id.
Notwithstanding these representations to Lang and Richard Thornburg concerning the financial condition of the Somerset Station, Nicholas Bissell represented to prospective buyers, from October 1984 to July 1988, that the Somerset Station had a positive net income of $27,483 in 1984, $52,085 in 1985 and $60,397 in 1986.
Id.,
¶ 9 , at 16. To further the scheme to defraud Richard Thornburg and Lang, Nicholas Bis-sell also paid personal expenses with funds from the Somerset Station, including payments for a 1988 Mercedes Benz automobile, without their knowledge or consent.
12
Id.,
¶ 10 , at 16.
The Second Superseding Indictment also charged Nicholas Bissell “represented ... that the Somerset [S]tation was operated such that if there were any profits or losses from its sale, those profits or losses would be divided equally among [Richard Thornburg and Lang] and [Nicholas Bissell] and his father.”
Id.,
¶ 11 , at 16. The Somerset Station was sold at Nicholas Bissell’s direction in July 1988; the buyers gave the sellers a note (the “Note”), the terms of which included monthly payments for five years.
Id.,
¶ 12 , at 16-17. Richard Thornburg and Lang received payments pursuant to the Note but the Note was accelerated between 15 and 22 September 1992, and a lump sum payment of $12,923 was paid to Nicholas Bissell’s father; Richard Thornburg and Lang, who were unaware of the lump sum payment pursuant to the Note, did not receive any of the proceeds of this payment.
Id.,
¶¶ 12-13 , at 17.
To further the scheme to defraud Richard Thornburg and Lang, Nicholas Bissell knowingly and wilfully mailed or caused the mailing of a check for $12,923.87 to his father in Florida, thereby violating 18 U.S.C. §§ 2 and 1341.
Id.,
¶ 14 , at 17.
E.
Count 18: Fraud on the Distributor
Count 18 of the Second Superseding Indictment charged Nicholas Bissell submitted false coupons and photocopies of business records to the Distributor that overstated the gross sales of the Bedminster Station. This was done in order to receive a rebate for which the Bedminster Station was not entitled, in violation of 18 U.S.C. § 1341 . Second Superseding Indictment, ¶¶ 1-8, at 18-19. The scheme to defraud the Distributor took place from September 1992
13
to December 1993,'
id.,
¶3 , at 18; the relevant mailing allegedly took place on 1 November 1993.
Id.,
¶8 , at 19. As part of the scheme to defraud the Distributor, Nicholas Bissell submitted to the Distributor, in October 1992,
14
false coupons to overstate sales by the Bed-minster Station in September 1992.
Id.,
¶ 5 , at 18. Nicholas Bissell submitted to ■ the Distributor, in December 1992, false coupons overstating sales by the Bedminster Station, in November 1992.
15
Id,
¶ 6, at 18-19. Nicholas Bissell submitted to the Distributor in November 1993, false coupons overstating sales by the Bedminster Station in October 1993.
16
Id.,
¶ 7 , at 19. To farther the scheme to defraud the Distributor, Nicholas Bissell knowingly and wilfully mailed or caused the mailing of photocopies of business records of the Bedminster Station to the Distributor, on 1 November 1992.
17
Id.,
¶ 8 , at 19.
F.
Count 19: Financial Aid Fraud
Count 19 of the Second' Superseding Indictment charged Nicholas Bissell submitted
*856
false information to obtain financial aid for his son’s education at Catholic University. The United States Department of Education approved Catholic University for participation in Federal student financial aid programs. Second Superseding Indictment, ¶ 3, at 20. On 24 December 1992, Nicholas Bis-sell “aid[edj and abet[ted] the submission of false and fraudulent financial information to Catholic University,” by soliciting a vendor for the Somerset County Prosecutor’s Office to prepare fraudulent tax returns and thereby obtain financial aid for his son pursuant to the Federal student financial assistance program.
Id.,
¶ 4 , at 20. The Second Superseding Indictment charged the acts, which occurred between 24 December 1992 and 5 April 1995, violated 18 U.S.C. § 2 and 20 U.S.C. § 1097 (a).
Id.,
¶5 , at 20-21.
G.
Count 20: Obstruction of Justice
Count 20 of the Second Superseding Indictment charged Nicholas Bissell destroyed a police report related to the Federal Civil Action in which he was a defendant. A Federal complaint was filed on 8 May 1992 in the District of New Jersey, alleging civil rights violations in connection with the May 1990 arrest of James J. Giuffre (“Giuffre”) on narcotics charges. .Second Superseding Indictment, ¶ 2, at 22. Giuffre alleged Nicholas Bissell and others denied him his Sixth Amendment right to counsel and coerced him into forfeiting two parcels of land.
It was charged that in July 1992, a Warren Township Police Officer produced a handwritten police report (the “Police Report”) that contained references to Giuffre’s arrest, including Giuffre’s requests for counsel.
Id.,
¶¶ 3-4 , at 22. The Police Report was forwarded to Nicholas Bissell, who ordered it rewritten to exclude the references to requests by Giuffre for counsel. The Warren Township Police Officer subsequently prepared a different, typewritten report on 27 July 1992.
Id.,
¶¶ 5-6 , at 22-23. The Second Superseding Indictment also charged Nicholas Bissell faded to provide a copy of the Police Report or to disclose its existence during pretrial discovery, between 19 June 1992 and 15 January 1993,
18
in the Federal Civil Action. Nicholas Bissell was charged with violating 18 U.S.C. §§ 2 and 1503, which proscribe aiding and abetting and obstruction of justice for acts occurring between 8 May 1992 and 28 September 1995.
Id.,
¶¶ 7-8 , at 23.
H.
Count 21: Perjury During the Federal Civil Action
Count 21 of the Second Superseding Indictment, which charged Nicholas Bissell, also concerned the Federal Civil Action. Count 21 charged that, when Giuffre forfeited two parcels of land to the Somerset County Prosecutor’s Office, those parcels had a combined assessed value of approximately $111,900. In the Federal Civil Action, Giuffre alleged these parcels of land were resold below fair market value to buyers with connections to the Office of the Somerset County Prosecutor. Second Superseding Indictment, ¶2, at 24. Nicholas Bissell appeared at a deposition on 23 April 1993 as a witness under oath in the Federal Civil Action. At that time, Nicholas Bissell stated he had relied upon a valid appraisal that Giuffre’s forfeited property “wasn’t worth all that much money.”
Id.,
¶ 4 , at 25. Nicholas Bissell did not, however, obtain a copy of such an appraisal until after Giuffre filed the Federal Civil Action.
Id.,
¶¶ 3-5 , at 24-26. Accordingly, Bissell’s 23 April 1993 testimony was charged to be, and was in fact, false, in violation of 18 U.S.C. § 1623 .
Id.,
¶¶5 , at 26.
I.
Count 22: False Statements to Federal Agents
Count 22 of the Second Superseding Indictment charged Nicholas Bissell. Federal Agents (the “Federal Agents”) searched the home of Defendants on 19 April 1995, in connection with an investigation leading to the Indictment. Nicholas Bissell was present during that search and “[i]n excess of $9,000 in cash was discovered in ... the home.” Second Superseding Indictment,
*857
¶¶2-3, at 27. Thereafter, Nicholas Bissell demanded to meet with Federal authorities; meetings took place on 19, 21 and 26 April 1995. At the outset of each of these meetings, Nicholas Bissell was informed he was the target of a grand jury investigation. Nevertheless, he waived his right to counsel and signed an appropriate waiver.
Id.,
¶¶ 5-6 , at 27.
The Second Superseding Indictment charged Nicholas Bissell stated during each of these meetings that the Bedminster Station had not been profitable since he purchased it, denied taking cash from the Bed-minster Station and stated the Bedminster Station owed him money. “These statements were designed to mislead and impair a [F]ederal investigation____”
Id.,
¶7 , at 28. At the time he made these statements, Nicholas Bissell was aware that he had taken cash from the Bedminster Station. Accordingly, Nicholas Bissell was charged with violating 18 U.S.C. § 1001 .
J.
Count 23: Conspiracy to Defraud the IRS
Count 23 of the Second Superseding Indictment charged that, from 1 January 1991 to 28 September 1995, Defendants conspired to evade payment of Federal income taxes. To that end, they diverted cash from, and issued cheeks drawn on, the business account of the Bedminster Station, for personal expenses. Second Superseding Indictment, ¶¶ 2-4, at 29. Defendants failed to report approximately $146,482
19
of income and failed to disclose accurate amounts of income or loss to the accountant who prepared income tax returns for the Bedminster Station, for the 1991-93 tax years.
Id.,
¶ 5 , at 29. As • part of the conspiracy, Defendants failed to disclose personal income to the accountant who prepared their personal Federal income tax returns for the 1991-93 tax years.
Id.,
¶ 6 , at 30.
As part of the conspiracy to defraud the IRS, Defendants “did not disclose their true ownership interests in the Bedminster [Station to their accountant” and thereby wrongfully obtained the benefit of tax losses during the 1991-92 tax years. Second Superseding Indictment, ¶ 7, at 30. Defendants were also charged with paying employees of the Bed-minster Station in cash, “off the books,” without accurate payroll records and without remitting the appropriate amount of income taxes for work these employees performed.
Id.,
¶ 8 , at 30. “It was further a part of the conspiracy that [Defendants], by engaging in the activities described [above], thereby prevented the proper ascertainment and computation by the [IRS] of the amount of tax due and owing” on personal
20
tax returns for the 1991-94 tax years, and on business tax returns, for the 1991-93 tax years.
Id.,
¶¶ 9-10 , at 30-31. Defendants were also charged with diverting cash from the Bedminster Station through February 1995 as part of the conspiracy to defraud the IRS and of taking steps to conceal the existence of this conspiracy. The Second Superseding Indictment charged seven overt acts, each the filing of a Federal income tax return with the IRS, as part of the conspiracy. Two additional overt acts charged concern the taking of cash from the Bedminster Station’s cash register.
K.
Counts 2J/.-27: Evasion of Personal Income Taxes
Counts 24 through 27 of the Second Superseding Indictment charged Defendants evaded Federal personal income taxes for the tax years 1991-94, in violation of 26 U.S.C. § 7201 .. Second Superseding Indictment, ¶¶ 1-3, at 32-33. Defendants failed to report $13,800 in diverted income received in 1991, $39,895 received in 1992, $58,794 received in 1993 and $33,993 received in 1994, for a total of $146,482 in personal unreported income.
21
Id.,
¶ 2 , at 33.
*858
L.
Counts 28-30: Subscribing to False Returns
Counts 28 through 30 of the Second Superseding Indictment charged Barbara Bis-sell subscribed to three Federal income tax returns under penalty of perjury “which she did not believe to be true and correct as to every material matter.” Second Superseding Indictment, ¶ 2, at 35. Barbara Bissell faded to report $202,539 in gross receipts from the Bedminster Station, “failed to disclose the true ownership interest of the respective principals, and failed to provide an accurate statement of profit or loss incurred in the tax year,” in violation of 26 U.S.C. § 7206 (1).
Id.,
¶¶ 3-4 , at 35-36.
Count 28 concerned a 1991 Form 1065 Bedminster Station Partnership return, which Barbara Bissell signed on 8 April 1992.
22
Count 29 concerned a 1992 Form 1120S Budco, Inc. corporate return, which Barbara Bissell signed on 13 September 1993. Count 30 concerns a 1993 Form 1120S Budco, Inc. corporate return, which Barbara Bissell signed on 14 September 1994. Second Superseding Indictment, ¶ 4, at 36.
M.
Counts 31-33: Aiding and Assisting in the Filing of a False Return
Counts 31 through 33 of the Second Superseding Indictment charged Nicholas Bis-sell “knowingly and willfully aided and assisted in” preparation of the income tax returns that was the subject of counts 28-30. Second Superseding Indictment, ¶ 2, at 37.
Discussion
A
A Summary of the
Motions
23
Pretrial motions of Defendants were defined in the submissions as the “Omnibus Motions.” Omnibus Motions filed by Nicholas Bissell sought (1) to dismiss counts 1-11 from the Second Superseding Indictment, pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure (the “Rules”), (2) to suppress video surveillance film taken in the Bedminster Station between 4 and 19 February 1995 (the “Videotapes”), pursuant to Rules 12(b)(3) and 41(f), (3) to bar the Government from introducing pretrial statements made by Barbara Bissell that implicated Nicholas Bissell, or, in the alternative, to redact certain material, pursuant to Rule 12(b)(3) and
Bruton v. United States,
391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968)
(“Bruton”)',
(4) to require production of an unredacted copy of an affidavit of IRS Special Agent Joseph LaRose, which was filed in support of an application for a search warrant of Defendants’ home, dated 15 April 1995 (“LaRose 15 April 1995 Affidavit”), pursuant to Rules 16 and 41, (5) to compel the Government to make pretrial disclosure of exculpatory material, pursuant to Rule 16,
Brady v. Maryland,
373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963)
(“Brady
”);
Giglio v. United States,
405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972)
(“Giglio
”) and material falling within the scope of the Jencks Act, 18 U.S.C. § 3500 (the “Jencks Act”), (6) to sever counts 1-11 and counts 20-21 from the balance of the Second Superseding Indictment, pursuant to Rules 8(b), 12(b)(5) and 14, (7) to schedule an
in limine
hearing to determine whether currency seized from Defendants’ home (the “Currency”) is admissible against Nicholas Bissell, and (8) to permit Nicholas Bissell to join in pretrial motions of Barbara Bissell, where he had standing and where the relief sought applied to him.
24
*859
. Omnibus Motions filed by Barbara Bissell sought (1) to sever the trials of Defendants,- or, in the alternative, to sever counts 12-16 and counts 23-38 from counts 1-11 and counts 17-22 of the Second Superseding Indictment because of asserted prejudicial joinder, (2) to compel the Government to make pretrial disclosure of material pursuant to Bule 16,
Brady, Giglio
and the Jencks Act, (3) to require all Federal, state, county and local law enforcement officers to retain and preserve all rough notes and writings concerning investigation related to the Second Superseding. Indictment, (4) to schedule an
in limine
hearing to determine the admissibility of statements, pursuant to Buies 104(a) and 801(d)(2)(E) of the Federal Buies of Evidence (“Buie 104(a)”); (“Buie 801(d)(2)(E)”), (5) to compel the Government to disclose evidence it intended to introduce at trial that was within the scope of Buie 404(b) of the Federal Buies of Evidence (“Buie 404(b)”), (6) to require the Government to identify any matters of which it sought to have the court take judicial notice and to produce the charts or summaries the Government intended to use at trial, (7) to require the Government to return to Barbara Bissell the Currency (the “Motion for Beturn of Currency”), and • (8) to permit Barbara Bissell to join in pretrial motions of Nicholas Bissell, where she had standing and where the relief sought applied to her.
25
Oral argument on the Omnibus Motions was held 4 March’ 1996; further argument was held 11 March 1996 concerning the admissibility of the Videotapes.
The Government filed a motion, pursuant to Bule 16, for reciprocal discovery and for a protective order.
26
Nicholas Bissell filed a motion to dismiss the Second Superseding Indictment on ground that the Government improperly used the Grand Jury to obtain additional evidence; Barbara Bissell joined in that motion (the “Grand Jury Motion”).
27
The Government filed another motion, seeking an order requiring Nicholas Bissell to post an additional bond of at least $50,000, to require him to report to Pretrial Services on a weekly basis and to require him to cease all contact with Government witnesses (the “Motion for Modification of the Conditions of Belease”)
28
By order, dated 1 March 1996,
*860
the Motion for Modification of the Conditions of Release was denied; Nicholas Bissell was ordered to report to Pretrial Services on a regular basis, to avoid any contact with Government witnesses and to comply fully with the order of release filed 4 October 1995.
B.
Motion to Dismiss Counts 1-11 of the Second Superseding Indictment
1.
Background
Nicholas Bissell sought an order dismissing counts 1-11 of the Second Superseding Indictment, which alleged violations of 18 U.S.C. §§ 1341 and 1346. Nicholas Bissell argued these counts “fail to allege a scheme that violates [18 U.S.C.] § 1341 or § 1346.” First Nicholas Bissell Moving Brief at 8;
see
First Nicholas Bissell Reply Brief at 1-10; 11 March 1996 Letter Brief,
passim.
Section 1341 of Title 18, the Federal mail fraud statute, concerns “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses” and proscribes mailing or attempting to mail material “for the purpose of executing such scheme or artifice or attempting to do so.” 18 U.S.C. § 1341 . A “scheme or artifice to defraud,”
id.,
“includes a scheme or artifice to deprive another of the intangible right of honest services.” 18 U.S.C. § 1346 .
The elements of the Federal crime of mail fraud are (1) a scheme or artifice to defraud, (2) participation by a defendant, with the specific intent to defraud, in the particular scheme charged, and (3) “ ‘a mailing must further the scheme to defraud or be incident to an essential part of that scheme.”’
United States v. Frey,
42 F.3d 795, 797-98 (3d Cir.1994) (quoting
United States v. Ruuska,
883 F.2d 262, 264 (3d Cir.1989));
see United States v. Lane,
474 U.S. 438, 451 , 106 S.Ct. 725, 733 , 88 L.Ed.2d 814 (1986) (“To find a violation of the mail fraud statute ... the charged ‘mailings’ must be ‘for the purpose of executing the scheme.’ ”) (quoting
Kann v. United States,
323 U.S. 88, 94 , 65 S.Ct. 148, 151 , 89 L.Ed. 88 (1944));
United States v. Kones,
77 F.3d 66, 71 (3d Cir.) (“A person commits mail fraud when she [or he] has ‘devised’ or intends to ‘devise’ a scheme to defraud, and she [or he] uses the mails for the purposes of executing or attempting to execute the scheme.”),
cert. denied,
— U.S. ---, 117 S.Ct. 172 , 136 L.Ed.2d 113 (1996);
United States v. Hannigan,
27 F.3d 890, 892 (3d Cir.1994);
United States v. Copple,
24 F.3d 535, 544 (3d Cir.),
cert. denied,
513 U.S. 989 , 115 S.Ct. 488 , 130 L.Ed.2d 400 (1994)). Proof of loss by the alleged victims of mail fraud is unnecessary.
Copple,
24 F.3d at 544 (citing
United States v. Kelley,
929 F.2d 582, 585 (10th Cir.),
cert. denied,
502 U.S. 926 , 112 S.Ct. 341 , 116 L.Ed.2d 280 (1991)). Moreover, each mailing that is “ ‘incident to an essential part of the scheme’ ” constitutes a violation of the mail fraud statute.
Kehr Packages, Inc. v. Fidelcor, Inc.,
926 F.2d 1406 ; 1413 (3d Cir.) (quoting
Pereira v. United States,
347 U.S. 1, 8 , 74 S.Ct. 358, 363 , 98 L.Ed. 435 (1954)),
cert. denied,
501 U.S. 1222 , 111 S.Ct. 2839 , 115 L.Ed.2d 1007 (1991).
2.
Standards for Dismissal of an Indictment
For purposes of the Rule 12(b)(2) motion to dismiss counts 1-11, all factual allegations set out in the Second Superseding Indictment were accepted as true.
United States v. Besmajian,
910 F.2d 1153, 1154 (3d Cir.1990) (citing
Boyce Motor Lines v. United States,
342 U.S. 337 , 343 n. 16, 72 S.Ct. 329 , 332 n. 16, 96 L.Ed. 367 (1952));
United States v. Fauver, 888
F.Supp. 668, 670 (M.D.Pa.1995);
United States v. Waldrop,
786 F.Supp. 1194, 1199 (M.D.Pa.1991),
aff'd,
983 F.2d 1054 (3d Cir.1992),
cert. denied,
508 U.S. 950 , 113 S.Ct. 2440 , 124 L.Ed.2d 658 (1993). Accordingly, the issue was whether the Government had alleged a Federal crime.
Fauver,
888 F.Supp. at 670 .
*861
3.
Failure to Provide Honest Services
Counts 1 — 11 of the Second Superseding Indictment charged a scheme by Nicholas Bissell to deprive the citizens of Somerset County of the honest services of their chief law enforcement officer. Nicholas Bissell argued such a scheme, even if true, is not a Federal crime.
Congress passed the “honest services” provision of the Federal mail fraud law, 18 U.S.C. § 1346 , following the decision in
McNally v. United States, 483 U.S. 350 , 107
S.Ct. 2875, 97 L.Ed.2d 292 (1987). Prior to
McNally ,
several lower court decisions endorsed the so-called “intangible rights” doctrine, which held that the Federal mail fraud statute proscribed schemes to defraud a governmental body and its citizens of the intangible right to honest and impartial government.
29
In
McNally ,
the Court considered an indictment and conviction, pursuant to 18 U.S.C. § 1341 , for a patronage scheme involving kickbacks on commissions for workman’s compensation insurance policies purchased by the State of Kentucky.
McNally,
483 U.S. at 352-53 , 107 S.Ct. at 2877-78 .
McNally
determined the intangible rights theory was beyond the scope of 18 U.S.C. § 1341 , and limited the reach of the statute “to the protection of property rights.”
McNally,
483 U.S. at 360 , 107 S.Ct. at 2882 .
Following
McNally ,
Congress passed the Anti-Drug Abuse Act of 1988, which included a provision amending the mail fraud statute by adding 18 U.S.C. § 1346 .
30
Congress intended 18 U.S.C. § 1346 “to restore the mail fraud statute to its pr
e-McNally
position by allowing mail fraud convictions to be predicated on deprivations of honest services.”
United States v. Waymer,
55 F.3d 564 , 568 n. 3 (11th Cir.1995) (citing
United States v. Martinez,
905 F.2d 709, 715 (3d Cir.1990)),
cert. denied,
— U.S. ---, 116 S.Ct. 1350 , 134 L.Ed.2d 519 (1996). Section 1346 of Title 18 became effective 18 November 1988.
United States v. Henry,
29 F.3d 112, 114 (3d Cir.1994);
Kehr,
926 F.2d at 1417 .
Post-McNally
decisions' have construed 18 U.S.C. §§ 1341 and 1346 as together proscribing schemes or artifices to deprive another individual of honest services, consistent with the accepted pr
e-McNally
interpretation of 18 U.S.C. § 1341 .
See, e.g., Grandmaison,
77 F.3d 555 ;
United States v. Bryan,
58 F.3d 933 (4th Cir.1995);
Waymer,
55 F.3d 564 ;
United States v. Evans,
30 F.3d 1015 (8th Cir.1994),
cert. denied,
— U.S. ---, 115 S.Ct. 1383 , 131 L.Ed.2d 236 (1995);
Henry,
29 F.3d 112 .
As indicated, the Second Superseding Indictment charged a scheme by Nicholas Bissell to defraud the citizens of Somerset County, Somerset County itself and the State of New Jersey of the honest services of the Somerset County Prosecutor. The Second Superseding Indictment enumerated several statutory sources of a prosecutor’s duties. Second Superseding Indictment, ¶ 2, at 3-5 (citing . N.J.S.A. §§ 2A:158-1, 2A:158-1.1, 2A: 158-5, 2C:30-2, 40A:9-22.5(a), (c), (d), (e), (g), 40A:9-22.6; New Jersey Rules of Professional Conduct). The Second Superseding Indictment charged Nicholas Bissell breached these duties and, thereby, deprived the citizenry of the honest services of the Somerset County Prosecutor.
Nicholas Bissell was charged with maintaining two undisclosed business relationships with an adversary of the Office of the Somerset County Prosecutor. He was also charged with abusing his position to threaten the Distributor Owner and thereby gain a business advantage to which he was not oth
*862
erwise entitled. Finally, Nicholas Bissell was charged with engaging in other activity inconsistent with his duties as the Somerset County Prosecutor. These activities include fraudulent operation of the Bedminster and Somerset Stations, also the subject of counts 12-18, criminal solicitation to assist in financial aid fraud, also the subject of count 19, and obstruction of justice, also the subject of counts 20-21.
The Second Superseding Indictment charged eleven mailings that furthered these unlawful activities and thereby deprived the citizenry of the right to an honest prosecutor. Nicholas Bissell was charged with completing and mailing: (1) five separate inaccurate financial disclosure statements, (2) documents and answers to interrogatories that allegedly covered up civil rights violations in the Federal Civil Action, and (8) four separate sets of inaccurate financial aid forms.
One need not violate a state law or regulation to be hable for mail fraud.
Bryan,
58 F.3d at 940 (citing
Mandel,
591 F.2d at 1361). Conversely, were a scheme or artifice to defraud construed to encompass “whatever is not a ‘reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of society,’” Federal judges would be “creating what in effect would be common law crimes____”
United States v. Holzer,
816 F.2d 304, 309 (7th Cir.1987) (quoting
Gregory v. United States,
253 F.2d 104, 109 (5th Cir.1958)).
In this ease, it was unnecessary to evaluate the outermost limits of 18 U.S.C. §§ 1341 and 1346. Courts have determined that Federal mail fraud encompasses political corruption, both before
McNally
and after the enactment of 18 U.S.C. § 1346 .
See, e.g., Grandmaison,
77 F.3d at 566 (abuse of position as alderman to influence award of construction contract);
Bryan,
58 F.3d 933 (manipulation of advertising contracts for West Virginia Lottery);
Waymer,
55 F.3d 564 (member of Atlanta Board of Education convicted for receiving percentage of proceeds on contracts between firms and school system);
Evans,
30 F.3d 1015 (insurer convicted for giving state insurance regulator kickbacks for promoting its surety bonds);
Henry,
29 F.3d 112 (bid rigging scheme related to Delaware River Joint Toll Bridge Commission);
United States v. Stoneman,
870 F.2d 102 (3d Cir.) (scheme to obtain contracts from state and local entities by bribing public officials),
cert. denied,
493 U.S. 891 , 110 S.Ct. 236 , 107 L.Ed.2d 187 (1989);
Holzer,
816 F.2d 304 (judge repeatedly solicited and received loans from attorneys appearing before him);
Mandel,
591 F.2d at 1347 (governor of State of Maryland accepted bribes in return for lobbying efforts).
Nicholas Bissell argued the illegal activity charged in the first eleven counts did not relate to actions taken in his official capacity. First Nicholas Bissell Moving Brief at 11-15; First Nicholas Bissell Reply Brief at 5; 4 Mar. 1996 Tr. at 2-5. This is not correct. For example, as evidence of his failure to provide honest law enforcement services, the Second Superseding Indictment charged Nicholas Bissell threatened to frame the Distributor Owner, obstructed justice and perjured himself in connection with the Federal Civil Action. Second Superseding Indictment, ¶ 10, at 7-8; ¶ 12, at 9. In addition, to the extent the acts charged concern Nicholas Bissell outside of his official capacity, fraud was nonetheless alleged.
As indicated, the Second Superseding Indictment accused Nicholas Bissell of violating several New Jersey statutes regulating the duties of a prosecutor. The Government argued one who violates the criminal code he or she has sworn to enforce has deprived the public of the right to the services he or she has promised. 4 Mar. 1996 Tr. at 6. The Government further argued Nicholas Bissell engaged in activities that conflicted with his position and responsibility as prosecutor and personally benefited because of this activity.
Id.
at 10 . The Government argued Nicholas Bissell used the mails in furtherance of his effort to personally profit from these activities and in order to cover up his conduct.
Id.
These allegations fell within the boundary of conduct proscribed by 18 U.S.C. §§ 1341 and 1346. Violations of the Code of Criminal Justice are inconsistent with pledges to enforce it.
*863
Nicholas Bissell attempted to distinguish the fraud alleged in the Second Superseding Indictment from the facts in the political corruption cases cited above. He argued there is a difference between the instant matter and cases in which “a public official fails to disclose the existence of a direct interest in the matter that he is passing on____” First Nicholas Bissell Moving Brief at 10 (citing
Mandel,
591 F.2d at 1363-64);
see
First Nicholas Bissell Reply Brief at 6.
Aside from the fact Nicholas Bissell was charged with repeatedly defrauding business partners and engaging in financial aid fraud, these allegations of fraud are violations of the public trust, given the Somerset County Prosecutor’s responsibility to “use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws.” N.J.S.A. § 2A-.158-5.
Nicholas Bissell’s fraud, in connection with the Bedminster and Somerset Stations, also violated Nicholas Bissell’s duty to avoid conflicts of interest, to “ ‘devote his entire time to the duties of his office’ ” and not to engage in other employment. Nee Second Superseding Indictment, ¶ 2(d), at 4, ¶ 2(b), at 3 (citing N.J.S.A. § 2A:158-1.1). His failure to disclose his outside business interests, particularly those conducted with William Welaj (“Welaj”), violated his duty to “ ‘fully, truthfully and accurately disclose all material facts relating to his compliance with the Code of Ethics for Local Government Officers.’ ” N.J.S.A. § 40A:9-22.6. He also committed perjury in connection with the Federal Civil Action which concerned actions taken in his official capacity. Nicholas Bissell engaged in fraud, knowingly violated his duties as Prosecutor and entered into conflicts of interests. These activities compromised Nicholas Bis-sell’s ability to faithfully, justly and impartially execute his official duties. He used the mails to further this criminal activity.
Nicholas Bissell had argued allegations of conflicts of interest arising from his interests in the RB & W Partnership and the Bedminster Station Partnership should be dismissed because they did not allege acts by him in his capacity as a public official. It was because of his status as the Somerset County Prosecutor, however, that the alleged conflicts arose. Second Superseding Indictment, ¶ 1(f), at 3; ¶ 5, at 6; Opposition Brief at 8-9. As indicated, as Prosecutor, Nicholas Bissell had the duty to abide by the New Jersey Rules of Professional Conduct and to avoid conflicts of interest. He also had the duty to “ ‘fully, truthfully and accurately disclose all material facts relating to his compliance with the Code of Ethics for local Government Officers.’ ” N.J.S.A. § 40A:9-22.6. Nicholas Bissell’s interests in- the RB & W Partnership and the Bedminster Station Partnership violated his duties and responsibilities as Prosecutor and defrauded the citizens of Somerset County. Accordingly, these matters fell ■ within the scope of the “honest services” provisions of the mail fraud statutes.
4.
Retroactivity Argument
Nicholas Bissell argued the Government sought to apply 18 U.S.C. § 1346 retroactively because some of the acts alleged occurred prior to 18 November 1988, the effective date of the “honest services” provision. First Nicholas Bissell Moving Brief at 21. As Nicholas Bissell indicated, the Second Superseding Indictment charged that, in March. 1988, he “abused the power of the Office of the Prosecutor in order to extort a private personal benefit____” Second Superseding Indictment, ¶ 10, at 7.
The Circuit has held 18 U.S.C. § 1346 should not be given retroactive force.
Henry,
29 F.3d at 114 (citing
Kehr,
926 F.2d at 1417 n. 4). The
mailings
alleged in support of the first eleven counts, however, each occurred after 18 November 1988. Second Superseding Indictment, ¶ 14, at 10-11 (alleging mailings occurred between 3 October 1991 and 21 April 1995).
It is not improper to apply a criminal statute to a scheme that began prior to, but continued through, the effective date of the statute.
United States v. Garfinkel,
29 F.3d 1253, 1259-60 (8th Cir.1994) (citing
United States v. Reetz,
18 F.3d 595, 598 (8th Cir. 1994);
United States v. Hammen,
977 F.2d 379, 385 (7th Cir.1992);
United States v. Alkins,
925 F.2d 541, 549 (2d Cir.1991);
United States v. Torres,
901 F.2d 205 , 226
*864
(2d Cir.),
cert. denied,
498 U.S. 906 , 111 S.Ct. 273 , 112 L.Ed.2d 229 (1990)). Because the mail fraud statutes seek to punish use of the mail to commit fraud, the dates of the alleged mailings were the appropriate inquiry. As indicated, the alleged mailings occurred after the effective date of the “honest services” provision. For these reasons, Nicholas Bis-sell’s retroactivity argument was rejected.
C.
Motion to Suppress the Videotapes
1.
Background
Nicholas Bissell sought to suppress the Videotapes, which were made with a surveillance camera installed in the ceiling of the Bedminster Station with the consent of Thornburg. In February 1995, Federal investigators interviewed Thornburg, who discussed his investment in the Bedminster Station. 4 January 1996 Carbone Affidavit, ¶ 23. Thornburg indicated he had agreed to invest $100,000 in the Bedminster Station Partnership. Nicholas Bissell and Thornburg agreed that the former would maintain the Bedminster Station checking account and the latter would operate the Bedminster Station. Thornburg also indicated Nicholas Bissell later solicited additional funds from Thorn-burg,, representing that the Bedminster Station was operating at a loss.
Id.
The Government stated that, following the meeting between Federal investigators and Thornburg, investigators compared receipts for cash Nicholas Bissell removed from the Bedminster Station on weekends with records. reflecting bank deposits he made. “Based upon this comparison, it appeared that a portion of the weekend receipts were not being deposited into the bank.” 4 January 1996 Carbone Affidavit, ¶ 24. The Government then obtained written consent from Thornburg to install a video camera (“Camera”) in the ceiling of the Bedminster Station.
Id. &
Ex. D.
The Government described the Bedminster Station as “a small square-shaped structure located on a main highway____” 4 January 1996 Carbone Affidavit, ¶ 25. The building is surrounded by glass on three sides, and contains vending machines and automotive products offered for sale.
Id. &
Ex. C. The Bedminster Station, which was open from 6:00 am to 11:00 pm, contained a desk behind the front window and bathrooms for use by employees and customers.
Id.
The Government represented the Camera, which was placed in the ceiling immediately above the door, was programmed to record between 12:00 and 11:00 pm on Saturdays and Sundays. 4 January 1996 Carbone Affidavit, ¶26. The Government operated the Camera for three consecutive weekends. First Nicholas Bissell Brief at 6. “The [Videotapes] revealed that on each of the three weekends, [Nicholas Bissell] visited the [Bed-minster S]tation and counted money. He appeared to place a portion in the bag, and put the remainder in his pockets.” 4 January 1996 Carbone Affidavit, ¶ 27.
2.
Testimony of Robert Krut
On 11 March 1996, a hearing was held concerning admissibility of the Videotapes. At that hearing, United States Postal Inspector Robert Krut (“Krut”) testified. On direct examination, Krut indicated he installed the Camera on 2 February 1995 and that the Camera operated for approximately three weeks. 11 Mar. 1996 Tr. at 6-7. Krut indicated the front of the Bedminster Station is approximately seventy-five feet from the highway; the one-room building measured approximately ten by fifteen feet; it contained a desk, with a credit card machine, abutted to the front window and vending machines behind the desk.
Id.
at 7-8 . Krut indicated the one-room building contained rest rooms in the back but there were no partitions other than the rest room.
Id.
at 8-9 . Krut was given a photograph of the Bedminster Station (“Government Ex. 1608”). He indicated the front desk and the credit card machine were visible through the front window, “from anywhere in the parking lot.”
Id.
at 9 .
Krut next viewed excerpts of the Videotapes that showed Nicholas Bissell either seated or standing behind the desk. The following ensued:
■Q: Inspector Krut, did you have occasion, prior to installing the [Camera], to walk around the premises?
A: Yes.
*865
Q: Did you look inside the windows?
A: Yes, I did.
Q: And can you see inside the building from inside the front, storefront area from anywhere in the parking lot or the side of the building?
A: Yes, I could.
Q: And would that include the area that [Nicholas Bissell] was videotaped in?
A: Yes, sir.
11 Mar. 1996 Tr. at 11. Cross examination followed:
Q: Is the view that one gets in this photograph [Government Ex. 1608] the view you had when you looked at the station from your vantage point on the property?
A: Essentially, yes.
Q: By the way, are there any people in the station? Can you tell from this photograph?
A: Not in this photograph, no.
Q: You can’t tell or you don’t know?
A: I can’t tell.
Q: But that’s the view you would have walking on the premises?
A: It’s the gas station, yes.
11 Mar. 1996 Tr. at 17-18.
3.
Reasonable Expectation of Privacy
The purpose of the Fourth Amendment is to protect people from unreasonable searches and seizures.
31
The “‘capacity to claim the protection of the Fourth Amendment
32
depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.’ ”
Minnesota v. Olson,
495 U.S. 91, 95 , 110 S.Ct. 1684, 1687 , 109 L.Ed.2d 85 (1990) (quoting
Rakas v. Illinois,
439 U.S. 128, 143 , 99 S.Ct. 421, 430 , 58 L.Ed.2d 387 (1978));
see Oliver v. United States,
466 U.S. 170, 177 , 104 S.Ct. 1735, 1740-41 , 80 L.Ed.2d 214 (1984) (“[T]he touchstone of [Fourth] Amendment analysis has been the question whether, a person has a ‘constitutionally protected reasonable expectation of privacy.’ ”) (quoting
Katz v. United States,
389 U.S. 347, 360 , 88 S.Ct. 507, 516 , 19 L.Ed.2d 576 (1967) (Harlan, J., concurring));
United States v. Reicherter,
647 F.2d 397, 399 (3d Cir.1981).
Determining whether an expectation of privacy is reasonable requires the application of a two-part test. The first part considers whether an individual has “ ‘exhibited an actual (subjective) expectation of privacy”’; the second part concerns whether an individual’s subjective expectation of privacy is “ ‘one that society is prepared to recognize as “reasonable.”’”
Smith v. Maryland,
442 U.S. 735, 740 , 99 S.Ct. 2577, 2580 , 61 L.Ed.2d 220 (1979) (quoting
Katz,
389 U.S. at 361 , 88 S.Ct. at 516 (Harlan, J., concurring)).
The safeguards of the Fourth Amendment apply to both residential and commercial premises.
New York v. Burger,
482 U.S. 691, 699 , 107 S.Ct. 2636, 2642 , 96 L.Ed.2d 601 (1987) (citing
See v. City of Seattle,
387 U.S. 541, 543, 546 , 87 S.Ct. 1737, 1739, 1741 , 18 L.Ed.2d 943 (1967)). Although the test of the legitimacy of an expectation of privacy is the same in both the residential and commercial sphere, the ease law does not provide a commercial property with the same degree of Fourth Amendment protection accorded to a residence.
United States v. Hall,
47 F.3d 1091, 1095 (11th Cir.) (citing
Donovan v. Dewey,
452 U.S. 594, 598-99 , 101 S.Ct. 2534, 2538 , 69 L.Ed.2d 262 (1981)),
cert. denied,
— U.S. ---, 116 S.Ct. 71 , 133 L.Ed.2d 31 (1995);
compare Oliver
466 U.S. at 178 , 104 S.Ct. at 1741 (“[T]he Court since the enactment of the Fourth Amendment has
*866
stressed ‘the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.’ ”) (quoting
Payton v. New York,
445 U.S. 573, 601 , 100 S.Ct. 1371, 1388 , 63 L.Ed.2d 639 (1980))
with Hail,
47 F.3d at 1095 (“The Supreme Court has consistently held that the [G]ovemment is required to obtain a search warrant only when it wished to search those areas of commercial property from which the public has been excluded.”) (citing
United States v. Dunn,
480 U.S. 294, 316 , 107 S.Ct. 1134, 1147 , 94 L.Ed.2d 326 (1987) (Brennan, J., dissenting) (citing
City of Seattle,
387 U.S.
at
545 , 87 S.Ct. at 1740 ));
see Taketo,
923 F.2d at 677 (concluding defendant had a reasonable expectation of privacy from video surveillance in office after considering, among other factors, that office was not open to the public).
The Government argued the Videotapes depict Nicholas Bissell counting cash at the desk facing the front window of the Bedminster Station, as shown on the Videotapes. If Nicholas Bissell had a subjective expectation of privacy at the front desk of the Bedminster Station, such an expectation was not objectively reasonable in light of the controlling case law. A review of the Videotapes indicated customers regularly entered the office, either to pay for gasoline, purchase automotive supplies or to use the vending machines behind the desk.
The Photographs reveal the building has large windows on three sides. The interior of the station is visible through the front windows from the public street. The desk faced the window. The desk was clearly visible through front and side windows in several photographs. In one photograph, the soda and cigarette machines located behind the desk can be clearly seen through the windows. In another photograph, a man can be clearly seen through one of the side windows standing at the desk. The windows to the office do not appear to have curtains or blinds; no efforts appear to have been undertaken to obstruct the view of the interior of the office from outside.
After a review of the case law and the photographs, it appeared that any expectation of privacy Nicholas Bissell may have had as he stood or sat behind that desk was not objectively reasonable.
Nicholas Bissell' argued the standards set out in 18 U.S.C. §§ 2510-20 for aural interception of communications apply to the Videotapes. First Nicholas Bissell Moving Brief at 35. Although video surveillance does not fall within the letter of these statutes, the Second, Fifth and Seventh Circuit Courts of Appeals have required applicants for warrants to videotape suspected criminal activities meet the higher standards required under these statutes for wiretap warrants.
Cuevas-Sanchez,
821 F.2d at 251-52;
United States v. Biasucci
786 F.2d 504, 510 (2d Cir.),
cert. denied,
479 U.S. 827 , 107 S.Ct. 104 , 107, 93 L.Ed.2d 54, 56 (1986);
Torres,
751 F.2d at 884-85. In this case, however, the issue is not what standards are required for an application for a warrant to conduct videotape surveillance, but whether the Fourth Amendment required a warrant.
As explained, Nicholas Bissell could have had no reasonable expectation of privacy while behind the desk in the Bedminster Station. The interior of the office can be clearly seen through the large windows on three sides of the building. Additionally, the Camera was installed in an office that was open to the public who would come in to pay their bills, ask directions or purchase soda, or other items. In fact, the cigarette machine was located directly behind the desk where Nicholas Bissell counted the money he took from the Bedminster Station. The Camera, moreover, was installed directly over the front door; this vantage point was not significantly different than that of a person standing outside the office and looking through the windows.
Nicholas Bissell’s activity in the Bedminster Station office was not consistent with his argued expectation of privacy. Nicholas Bis-sell argued his “expectation that he would not be observed ... while he picked up the cash receipts is unarguably an expectation which society is prepared to recognize as reasonable.” First Nicholas Bissell Moving Brief at 28. Nicholas Bissell, however, while counting money taken from the Bedminster Station cash receipts, stood directly at the
*867
desk in front of the window. Throughout the Videotape taken of his activities at the Bed-minster Station, numerous people entered the office. Nicholas Bissell could not, therefore, have had a reasonable expectation of privacy while in the office at the Bedminster Station. Accordingly, the standards for issuing a warrant to conduct video surveillance were not relevant to this motion,
4.
Validity of Thornburg Consent
As indicated, no “search” of the Bedminster Station occurred during the videotaping because Nicholas Bissell had no reasonable expectation of privacy while at the station. The entry of the Federal investigators onto the premises of the Bedminster Station to install the camera, moreover, did not itself constitute an improper warrantless search because Thornburg consented to the entry. A warrantless search does not violate the Fourth Amendment if a third party with common authority over the premises consents to such a search.
Illinois v. Rodriguez,
497 U.S. 177, 179 , 110 S.Ct. 2793, 2796 , 111 L.Ed.2d 148 (1990) (citing
United States v. Matlock,
415 U.S. 164 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974)). In such eases, the Government bears the burden of demonstrating consent is valid.
Florida v. Royer,
460 U.S. 491, 497 , 103 S.Ct. 1319, 1324 , 75 L.Ed.2d 229 (1983). To establish valid third-party consent, the Government must demonstrate consent was freely and voluntarily given,
Schneckloth v. Bustamante,
412 U.S. 218, 222 , 93 S.Ct. 2041, 2045 , 36 L.Ed.2d 854 (1973), by one “who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”
Matlock,
415 U.S. at 171 , 94 S.Ct. at 993 .
There is no question Thornburg had common authority over the Bedminster Station, or that he freely consented to installation of the Camera. As a partner, he had common authority over property of the Bedminster Station Partnership.
See United States v. Jamieson-McKames Pharm.,
651 F.2d 532 , 542-43 (8th Cir. 1981) (individuals who were “in business” together had
Matlock
common authority to consent to search of business premises),
cert. denied,
455 U.S. 1016 , 102 S.Ct. 1709 , 72 L.Ed.2d 133 (1982). Thorn-burg, moreover, was the manager of the Bed-minster Station and was entrusted with its day-to-day operation. Thornburg was also a signatory to the lease and possessed the keys to the Bedminster Station.
The Federal investigators reasonably relied upon Thornburg’s “authority over or other sufficient relationship to the premises” when they installed the video camera.
See Matlock,
415 U.S. at 171 , 94 S.Ct. at 993 . Thornburg informed the agents he was the manager and part owner of the Bedminster Station. As indicated, he had the key to the Bedminster Station and allowed them access to the office. Based upon these facts, the Federal investigators were justified in believing Thornburg had the requisite authority to allow them to enter the office and install the video camera. Accordingly, the warrantless entry did not violate the Fourth Amendment.
Rodriguez,
497 U.S. at 179 ; 110 S.Ct. at 2796. Because Nicholas Bissell had no reasonable expectation of privacy at the Bedminster Station and Thornburg gave valid consent to the Government to install the Camera, the motion to suppress the Videotapes was denied.
33
D.
Motion By Nicholas Bissell for Production of Unredacted Copy of La-Rose 15 April 1995 Affidavit and Motion by the Government for a Protective Order
Nicholas Bissell sought an order compelling the Government to furnish an unredacted copy of the LaRose 15 April 1995 Affidavit. First Nicholas Bissell Moving Brief at 39. In the alternative, Nicholas Bissell sought an
in camera
inspection of the redacted material to determine whether the contents would be helpful to preparing his de
*868
fense.
Id.
at 40. The Government sought a protective order to seal the redacted contents. First Government Notice of Motion; 4 January 1996 Carbone Affidavit, ¶3; Sealed Affidavit, ¶2. The parties indicated on the record on 15 April 1996 these motions were moot in light of events that occurred after the motions were filed; 15 Apr. 1996 Tr. at 4.
E.
Pretrial Disclosure of Brady and Giglio and Jeneks Act Material; Motion for Reciprocal Discovery
Nicholas and Barbara Bissell each sought disclosure of
Brady, Giglo
and Jeneks Act material. First Nicholas Bissell Moving Brief at 41-43; First Nicholas Bissell Reply Brief at 20; Barbara Bissell Moving Brief at 14-18; Barbara Bissell Reply Brief at 2. Specifically, Barbara Bissell sought any information bearing on the credibility of witnesses the Government intended to call at trial, including records of arrests, indictments. or criminal informations, convictions, criminal or civil investigations or any other criminal conduct by such individuals. Barbara Bissell Moving Brief at 16. In addition, Barbara Bissell sought information relating to agreements between potential witnesses and the Government, with copies of relevant documents and “any and all actions, promises, efforts or inducements — formal or informal — on the part of the [Government, its agents and representatives to aid assist or obtain benefits of any kind, at any time for person (sic) whom the [G]ovemment considers a potential witness at trial.”
Id.
Barbara Bissell sought bias and impeachment evidence.
Id.
at 17.
Finally, she alleged the Attorney General of the State of New Jersey has investigated some of the same material on which the Second Superseding Indictment was grounded. Barbara Bissell sought “discovery of this investigation and all statements of witnesses and reports developed from the investigation as
Brady/Giglio/Agurs
material.”
Id.
The Government sought reciprocal discovery. Opposition Brief at 97; First Government Notice of Motion; 4 January 1996 Carbone Affidavit, ¶ 3.
In addition to joining in the Barbara Bis-sell request for the material summarized above, Nicholas Bissell “[sought] an order compelling the Government to furnish any and all information in its possession with reference to potential Government witnesses, William Welaj, Nicholas L. Bissell, Sr., Jean Bissell, Warren Kimber, and Carl Braun____” First Nicholas Bissell Moving Brief at 41. Nicholas Bissell indicated he received a letter, dated 13 October 1995 (the “13 October 1995 Letter”), from the Government, which provides in pertinent part:
With respect to your request for
Brady
materials, you are advised that William Welaj, Nicholas L. Bissell, Sr., Jean Bis-sell, Warren Kimber, and Carl Braun,
may
provide exculpatory information helpful to the defense. At our conference, you seemed to suggest that there was some other potential
Brady
material which has been withheld. If you believe the Government is in possession of any such information, kindly give us some indication of what it is. At this time, the Government has fully complied with its
Brady
obligations. We understand, of course, that the obligation is continuing in nature.” (emphasis added).
Id.
at 41-42. Nicholas Bissell sought full disclosure of
Brady
material related to the five individuals listed in the 13 October 1995 Letter. Nicholas Bissell argued the Government had been evasive concerning such
Brady
material.
Id.
at 42-43.
1.
Brady Material
In
Brady ,
the Court held the Government’s failure to disclose evidence favorable to a defendant who specifically requested it violated the right of the accused to Due Process when the evidence was material to either guilt or punishment, “irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87 , 83 S.Ct. at 1197 . Under
Brady ,
materials must be disclosed if they “go to the heart of the defendant’s guilt or innocence [or] might affect the jury’s judgment of the credibility of a crucial prosecution witness.”
United States v. Hill,
976 F.2d 132, 134-35 (3d Cir.1992) (citing
Giglio,
405 U.S. at 154 , 92 S.Ct. at 766 ).
*869
In
United States v. Agurs,
427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976), the Court modified the
Brady
rule to require the Government to disclose exculpatory evidence even when the defendant had not requested the information.
Id.
at 107 , 96 S.Ct. at 2399 ;
see United States v. Giampa,
904 F.Supp. 235 , 280 n. 33 (D.N.J.1995). In
Giglio ,
the Supreme Court held the
Brady
rule includes information that could be used to impeach the credibility of Government witnesses when the reliability of the witness could help determine the guilt or innocence of the accused.
Giglio, 405
U.S. at 154, 92 S.Ct. at 766 ;
see United States v. Bagley,
473 U.S. 667, 676 , 105 S.Ct. 3375, 3380 , 87 L.Ed.2d 481 (1985);
United States v. Starusko,
729 F.2d 256, 260 (3d Cir.1984);
United States v. Higgs,
713 F.2d 39, 42 (3d Cir.1983),
cert. denied,
464 U.S. 1048 , 104 S.Ct. 725 , 79 L.Ed.2d 185 (1984).
Brady
material must ordinarily be disclosed “in time for its effective use at trial.”
Higgs,
713 F.2d at 44 . “A district court has general discretionary authority to order the pretrial disclosure of
Brady
material ‘to ensure the effective administration of the criminal justice system.’ ”
Giampa,
904 F.Supp. at 281 (quoting
Government of Virgin Islands v. Martinez,
847 F.2d 125, 127 (3d Cir.1988));
see Starusko,
729 F.2d at 261 ;
Higgs,
713 F.2d at 42 . The Circuit has indicated district courts should encourage early production of
Brady
material.
Starusko,
729 F.2d at 261 (citing
United States ex rel. Marzeno v. Gengler,
574 F.2d 730, 739 (3d Cir.1978);
United States v. Kaplan,
554 F.2d 577, 578 (3d Cir.1977);
Giampa,
904 F.Supp. at 281 .
The Government asserted it was aware of its obligation to disclose all
Brady
and had already done so. Opposition Brief at 64. The Government asserted it was aware of no
Brady
material concerning the individuals mentioned in the 13 October 1995 Letter, and maintained it identified these witnesses “because of their close relationship” with Defendants and “in an over abundance of caution.”
Id.
at 64-65.
Nicholas Bissell had not pressed the issue in the First Nicholas Bissell Reply Brief or at the pretrial status conference held 9 April 1996 (the “9 April 1996 Status Conference”). The Government also asserted it had produced information concerning an investigation by the Attorney General of the State of New Jersey into activities alleged in the Second Superseding Indictment,
id.
at 65, a matter Barbara Bissell had not pressed in subsequent submissions or at pretrial status conferences. Accordingly, the
Brady
motions were denied as moot.
2.
Giglio Material
Although
Brady
material includes information that may be used to impeach the credibility of a prosecution witness, the Government is not obligated to disclose
Giglio
material prior to trial.
Giampa,
904 F.Supp. at 281 . A defendant’s due process rights “will be fully protected if disclosure is made the day that the witness testifies.”
Higgs,
713 F.2d at 44 .
In
Higgs ,
the Circuit held the trial court abused its discretion by ordering disclosure of
Giglio
material one week before to trial. “The purpose of requiring disclosure of impeachment information is not to assist the defense in a general pretrial investigation, but to give the defense an opportunity to effectively cross-examine the Government’s witnesses at trial.”
Giampa,
904 F.Supp. at 281 .
Barbara Bissell argued
Kyles v. Whitley,
— U.S. ---, 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995) requires
Giglio
material to be disclosed concurrently "with
Brady
material, thereby erasing the distinction between
Giglio
and
Brady
disclosure requirements set out in
Higgs
and other case law. 16 Oct. 1995 Tr. at 14-15; Barbara Bissell Moving Brief at 14; Barbara Bissell Reply Brief at 2.
Kyles
does not stand for the proposition for which it was cited. In fact,
Kyles ,
a fact-driven decision, did not concern
Giglio
material. In that case, the majority determined that the prosecution had failed to honor its
Brady
obligations because a informant made several inconsistent statements during various meetings with investigators.
Barbara Bissell demanded material relating to credibility of Government witnesses. This is
Giglio
material, as indicated^ Al
*870
though the ease law requires disclosure of
Giglio
material on the day a witness testified, the Government had agreed to disclose this material “no later than one day before the witness in question testifies at trial.” Opposition Brief at 68. Accordingly, motions for early disclosure of
Giglio
material were denied.
3.
Jencks Act Material
Under the Jencks Act and Rule 26.2, a Federal criminal defendant may request pretrial statements of a Government witness which relate to the testimony of that witness following the completion of direct examination of that witness.
In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness (other than the defendant) shall be the subject of subpena (sic), discovery, or inspection until said witness has testified on direct examination in the trial of the case.
18 U.S.C. § 3500 (a);
see Palermo v. United States,
360 U.S. 343, 349 , 79 S.Ct. 1217, 1223 , 3 L.Ed.2d 1287 (1959) (noting the purpose of 18 U.S.C. § 3500 (a) is to restrict the use of such statement to impeachment).
The Jencks Act further provides: After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the [Government] to produce any statement ... of the witness in the possession of the [Government] which relates to the subject matter
34
as to which the witness has testified. " '
18 U.S.C. § 3500 (b). The term “statement” includes statements written or adopted by a witness and “stenographic, mechanical, electrical, or other recording[s] or a transcription thereof, which is a substantially verbatim recital of an oral statement” made by a witness. A statement by a witness to a grand jury is also included in this definition. 18 U.S.C. § 3500 (e).
The term “statement” should be appropriately construed.
Palermo,
360 U.S. at 350 , 79 S.Ct. at 1223 (holding defense cannot compel disclosure of memoranda containing a Government agent’s interpretation of a witness’ statements, because such statements are not “the witness’ own [but] rather ... the product of the investigator’s selections, interpretations and interpolations.”). When considering whether something qualifies as a “statement” under the Jencks Act, a court must consider whether “the statement could fairly be deemed to reflect fully and without distortion what had been said to the [G]overnment agent____ Summaries of an oral statement which evidence substantial selection of material, or were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent’s interpretations or impressions.”
Id.
at 352-53 , 79 S.Ct. at 1224-25 .
Once Defendants establish that the Jencks Act entitles them to a statement, they need not show any impeachment value or inconsistency with statements made by a witness at trial to require the Government to produce it.
Brumel-Alvarez,
991 F.2d at 1464 (“The prosecution is obligated to disclose to the defense statements falling within the Jencks Act regardless of anyone’s perception of the utility of the statements for impeachment.”) (citations and internal quotations omitted).
The Jencks Act requires the Government to divulge to Defendants statements by witnesses only after such witnesses testify at trial. 18 U.S.C. § 3500 (a). Upon such disclosure, Defendants are to receive a reason
*871
able time to prepare to use such statements at trial.
See id.
Although the disclosure of Jencks material prior to the conclusion of direct examination of the Government’s witness cannot be compelled, early disclosure to obviate trial interruptions is encouraged.
Hill,
976 F.2d at 140 (citing
United States v. Murphy,
569 F.2d 771 , 778 n. 3 (3d Cir.),
cert. denied,
435 U.S. 955 , 98 S.Ct. 1588 , 55 L.Ed.2d 807 (1978)). In this case, the Government agreed to disclose all Jencks material no later than the day before the applicable witness testifies at trial. Opposition Brief at 68-69. Accordingly, the motions demanding early disclosure of Jencks Act material were denied.
4.
Motion for Reciprocal Discovery
There was no dispute concerning this motion.
See
First Nicholas Bissell Reply Brief at 21 (“With respect to the Government’s motion for reciprocal discovery, [Nicholas Bissell] did not object to providing such discovery which is consistent with the Federal Rules of Criminal Procedure.”); Barbara Bissell Reply Brief at 6 (“Counsel will provide the [G]overnment with all reciprocal discovery as it becomes available.”). At the 9 April 1996 Status Conference, the Government did not indicate it had any outstanding disputes concerning discovery. This motion was denied as moot.
F.
Severance Motions
Barbara Bissell sought to sever her trial from that of Nicholas Bissell. Barbara Bis-sell Moving Brief at 6-12; Barbara Bissell Reply Brief at 4-5. In the alternative, she sought to sever counts 12-16 and 23-33 from the balance of the Second Superseding Indictment. Barbara Bissell Moving Brief at 12-13; Barbara Bissell Reply Brief at 4-5. In addition, Nicholas Bissell moved to sever counts 1-11 and 20-21 from the balance of the Second Superseding Indictment. First Nicholas Bissell Moving Brief at 45-46.
The interests of justice are served by a joint trial. Federal Rule of Criminal Procedure 8 (“Rule 8”) permits two or more offenses to be charged in the same indictment, “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) (joinder of offenses).
Rule 8 further provides two or more defendants
may be charged in the same indictment ... if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such transactions may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
Fed.R.Crim.P. 8(b) (Joinder of Defendants).
Federal Rule of Criminal Procedure 14 (“Rule 14”) authorizes a trial court to sever counts or defendants where, despite an indictment’s technical compliance with Rule 8, joinder would result in a “manifestly unfair trial.”
Giampa,
904 F.Supp. at 265 ;
United States v. Cannistraro,
800 F.Supp. 30, 87 (D.N.J.1992);
United States v. Vastola,
670 F.Supp. 1244, 1261 (D.N.J.1987) (citing
Reicherter,
647 F.2d at 400 ). Rule 14 provides in relevant part:
If it appears that a defendant or the [G]overnment 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.
Fed.R.Crim.P. 14. Severance pursuant to Rule 14 is within the discretion of the trial court.
Zafiro v. United States,
506 U.S. 534, 539 , 113 S.Ct. 938 , 938, 122 L.Ed.2d 317 (1993) (“Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the sound discretion of the district courts”);
United States v. McGlory,
968 F.2d 309, 340 (3d Cir.1992) (citing
United States v. Sandini,
888 F.2d 300, 305-06 (3d Cir.1989),
cert. denied,
494 U.S. 1089 , 110 S.Ct. 1831 , 108 L.Ed.2d 959 (1990)),
cert. denied,
507 U.S. 962 , 113 S.Ct. 1388 , 122 L.Ed.2d 763 (1993);
Giampa
904 F.Supp. at
*872
265;
United States v. Eisenberg,
773 F.Supp. 662, 697 (D.N.J.1991).
In
Zafiro,
the Court stated:
We believe that, when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.
Zafiro,
506 U.S. at 539 , 113 S.Ct. at 938 . There is a preference for joint trials where defendants, as here, are indicted together.
Id.
at 537 , 113 S.Ct. at 937 (citing
Richardson v. Marsh,
481 U.S. 200, 209 , 107 S.Ct. 1702, 1708 , 95 L.Ed.2d 176 (1987)). Judicial economy and avoidance of inconsistent verdicts are among the policy objectives of joint trials.
Id.
(citing
Richardson,
481 U.S. at 210 , 107 S.Ct. at 1708-09 ).
A defendant bears a “heavy burden” when moving for severance under Rule 14.
See United States v. Eufrasio,
935 F.2d 553, 568 (3d Cir.),
cert. denied,
502 U.S. 925 , 112 S.Ct. 340 , 116 L.Ed.2d 280 (1991);
Sandini,
888 F.2d at 305 ;
United States v. Friedman,
854 F.2d 535, 563 (2d Cir.1988),
cert. denied,
490 U.S. 1004 , 109 S.Ct. 1637 , 104. L.Ed.2d 153 (1989). Mere allegations of prejudice are insufficient to meet this burden.
Giampa,
904 F.Supp. at 265 . Defendants must- “pinpoint ‘clear and substantial prejudice’ resulting in an unfair trial.”
McGlory,
968 F.2d at 340 (quoting
Eufrasio,
935 F.2d at 568 );
Giampa,
904 F.Supp. at 265 ;
see also United States v. Wright-Barker,
784 F.2d 161, 175 (3d Cir.1986). Defendants are not entitled to severance “merely because they may have a better chance of acquittal in separate trials.”
Zafiro,
506 U.S. at 540 , 113 S.Ct. at 938 ;
McGlory,
968 F.2d at 340 ;
Giampa,
904 F.Supp. at 265 .
A risk of prejudice may often be cured with an appropriate jury instruction.
Zafiro,
506 U.S. at 540 , 113 S.Ct. at 939 . “[J]uries are presumed to follow their instructions.”
Id.
The issue, then, is “ ‘whether the [J]ury can be reasonably be expected to compartmentalize the evidence against each defendant.’ ”
Giampa
, 904 F.Supp. at 266 (quoting
Eufrasio,
935 F.2d at 568 ).
1.-
Motion to Sever the Trials of Nicholas and Barbara Bissell
Barbara Bissell argued a joint trial would subject her to undue prejudice because the acts alleged of Nicholas Bissell would be attributed to her. Barbara Bissell Moving Brief at 6-8,11-12; 4 Mar. 1996 Tr. at 30-31. In that regard, she observed there were no allegations that “she had anything to do with Nicholas L Bissell’s ... violation of the public trust, fraud on his employees/distributors, fraud on his gasoline distributor, extortion by threatening to plant drugs in an individual’s car with a threat of subsequent arrest and prosecution by the Somerset County Prosecutor’s Office.” Barbara Bissell Moving Brief at 12;
see
Barbara Bissell Reply Brief at 4 (“Barbara Bissell is unfairly caught up with the government’s excessive animus toward her codefendant that has motivated an inappropriate and inaccurate press release and photograph which received prominent and widespread publication in substantial newspapers.”).
As his wife, argued Barbara Bissell, the jurors in a joint trial will regard her as Nicholas Bissell’s partner in crime without regard to the evidence. 4 Mar. 1996 Tr. at 31; Barbara Bissell Moving Brief at 7. In addition, she argued her husband would provide exculpatory testimony only if severance was granted. In the event of a joint trial, she argued Nicholas Bissell would exercise his Fifth Amendment right not to testify.
35
Barbara Bissell Moving Brief at 8-10. Barbara Bissell argued, “[Nicholas Bissell’s] testimony would be exculpatory with respect to the role [she] played in regard to tax returns and payments made from the account of Bis-sell’s, Inc.”
Id.
at 9 . Further, she argued limiting instructions will prove unwieldy, confusing and ineffective.
Id.
at 11 ; 4 Mar. 1996 Tr. at 31 (“Ninety percent of [the jury charges] do not apply to Barbara Bissell.”).
*873
A severance argument based on the need for the testimony of a co-defendant warrants consideration of four factors: (1) the likelihood that the co-defendant will testify (2) the degree to which such testimony would be exculpatory (3) the degree to which such testimony could be impeached and (4) the effect of severance on judicial economy. •
United States v. Gonzalez,
918 F.2d 1129, 1137 (3d Cir.1990) (citing
United States v. Boscia,
573 F.2d 827, 832 (3d Cir.),
cert. denied,
436 U.S. 911 , 98 S.Ct. 2248 , 56 L.Ed.2d 411 (1978)),
cert. denied,
499 U.S. 982 , 111 S.Ct. 1637 , 113 L.Ed.2d 733 (1991). Although Barbara Bissell asserted her husband would provide exculpatory testimony if she were tried separately, “ ‘[blare assertions that co-defendants will testify are insufficient.’ ”
Gonzalez,
918 F.2d at 1137 (quoting
Boscia,
573 F.2d at 832 ). At the time this motion was decided, Nicholas Bissell had not indicated any position on the issue; as noted he did testify at trial.
It was doubtful, at the time of the motion, that the testimony of Nicholas Bissell would be exculpatory. As the trial demonstrated, Nicholas Bissell was neither an effective nor a credible witness.
Barbara Bissell was alleged to have played a substantial role in the acts alleged. Barbara Bissell, along with Nicholas Bissell, was charged with defrauding Thornburg in connection with the Bedminster Station Partnership. As indicated, the Second Superseding Indictment charged Barbara Bissell, in conjunction with Nicholas Bissell, “routinely embezzled cash from the Bedminster [S]tation” without informing Thornburg. Second Superseding Indictment, ¶ 9, at 13.
At times, Barbara Bissell was an officer of Budco which owned the franchise to operate the Bedminster Station. She was involved in, and was the bookkeeper for, the Bedminster Station and maintained the Bedminster Station checkbook records. Second Superseding Indictment, ¶ 2, at 12. She, moreover, signed false corporate and personal tax returns relating to income derived from the Bedminster Station.
Id.,
¶¶ 1-3, at 33-34; 1 — 4, at 35-36.
In furtherance of the fraud against Thorn-burg, described in counts 12-16 of the Second Superseding Indictment, Barbara Bissell paid personal expenses with the Bedminster Station Partnership’s funds.
Id.,
¶8, at 13; ¶ 4, at 29. These included “payments for a 1988 Mercedes Benz automobile, a 1992 Acura Legend LS, a 1995 Jeep Grand Cherokee, a cellular telephone and personal expenses charged on the station’s credit card.”
Id.,
¶ 8, at 13. She also maintained payroll records,
id.,
¶2, at 12, for employees of the Bedminster Station who were paid “off the books.”
Id.,
¶ 8, at 30.
Severance was not in the interest of judicial economy. As indicated, Defendants were charged in conjunction with fraudulently running the Bedminster Station and committing tax evasion. Accordingly, the separate trials would involve many of the same witnesses and much of the same documentary proofs. This duplication of effort was unjustified and simply not necessary.
Barbara Bissell failed to demonstrate the requisite prejudice for severance. Thirteen counts named Barbara Bissell. She was charged with tax evasion in jointly-filed income tax returns. She was charged with defrauding Thornburg in connection with the Bedminster Station, for which she kept the financial records. These charges alleged that Barbara and Nicholas Bissell together stole approximately $146,482 from Thorn-burg over a four year period. Defendants were,’ moreover, alleged to have together “concealed their activities” from Thornburg.
As indicated, the Second Superseding Indictment charged Barbara Bissell, in conjunction with Nicholas Bissell, mailed payments of bills relating to personal expenses including automobile payments, cellular phone charges and credit card charges. Second Superseding Indictment, ¶ 11, at 13-14. These payments were alleged to have been made with money from the Bedminster Station.
Id.,
¶ 8, at 13-14. Defendants were also charged with mailing Budco’s fraudulently prepared corporate tax return in 1993.
Id.
Count 22 charged Nicholas Bissell with making false statements to Federal Agents. Second Superseding Indictment, ¶¶ 1-9, at 27-28. Nicholas Bissell made these state
*874
ments after Defendants’ home was searched and more than $9,000 in cash, belonging to Barbara Bissell, was discovered.
Id.,
¶ 4, at 27. Barbara Bissell also insisted on the opportunity to speak to the several Federal Agents and made statements not dissimilar to those made by her husband. These statements were made with the purpose of covering up Defendants’ common scheme to defraud Thornburg.
Id.,
¶ 9. Furthermore, the fraudulent operation of the Bedminster Station was charged as part of the conduct which compromised Nicholas Bissell’s “ability to faithfully, justly and impartially” execute his duties as County Prosecutor.
Id.,
¶ 11, at 8.'
On the facts alleged, it was not reasonable to find that Barbara Bissell would be prejudiced by a “spillover” of evidence against Nicholas Bissell, or that a joint trial would have been “manifestly unfair” to her. As indicated, the Second Superseding Indictment charged Barbara Bissell was an active participant to the fraud and tax evasion charges arising from Defendants’ operation of the Bedminster Station. The fraudulent operation of the Bedminster Station, moreover, was charged as conduct which compromised Nicholas BisseU’s ability to carry out his duties as County Prosecutor. Accordingly, the charges against Barbara BisseU were connected with the charges against Nicholas BisseU. It was determined she would not be prejudiced by a “spiUover” of evidence against Nicholas BisseU, or that a joint trial would be “manifestly unfair” to her. Barbara BisseU’s motion to sever- her trial was denied.
2.
Motion by Barbara Bissell to Sever Counts 12-16 and 23-33'from the Remainder of the Second Superseding Indictment
Barbara BisseU alternatively argued counts 1-11 and 17-22 should be severed from counts 12-16 and 23-33. The former group, she observed, concerned acts of Nicholas BisseU alone, and in his official capacity as Somerset County Prosecutor; the latter group concerned acts of both Defendants. Barbara BisseU Moving Brief at 12-13. None of the evidence relevant to one set of aUegations, she argued was relevant to the other; she also argued separate trials would not be no less efficient than a joint trial.
Id.
at 13; 4 Mar. 1996 Tr. at 34.
Severance of these counts was inappropriate. The factual predicates of counts 1-11 and 17-22 had much in common with the facts aUeged in counts 12-16 and 23-33. Counts 1-11 aUeged Nicholas BisseU defrauded others of the honest services of the Somerset County Prosecutor, due in part to fraudulent operation of the Bedminster Station. Nicholas BisseU’s involvement with the Bedminster Station was central to the charges contained in counts 1-11. As indicated, his fraudulent operation of the Bed-minster Station was charged as conduct which compromised his duties as County Prosecutor. This conduct,' moreover, aUegedly violated his duty, to “devote his entire time to the duties” of County Prosecutor and not to engage in outside employment. Second Superseding Indictment, ¶ 2(b), at 3 (citing N.J.S.A. 2A:158-1.1).
Count 17, which charged Nicholas BisseU with fraud on the investors in the Somerset Station involved a similar course of conduct and dealing as counts 12-16. Count 18, which charged Nicholas BisseU with fraud on the Distributor was connected to the fraudulent operation of the Bedminster Station. As indicated, count 22 charged Nicholas BisseU with lying to Federal Agents in an attempt to cover up the fraudulent operation of the Bed-minster Station.
It appeared, therefore, that in addition to the related facts and charges, were separate trials held, evidence would be presented and witnesses would be eaUed twice. As weU, it was determined a joint trial would not (and did not) prejudice Barbara BisseU. Accordingly, the motion by Barbara BisseU to sever counts 12-16 and 23-33 of the Second Superseding Indictment was denied.
3.
Motion by Nicholas Bissell to Sever Counts 1-11 and 20-21 From the Remainder of the Second Superseding Indictment
Nicholas BisseU sought severance of counts 1-11 and 20-21 from counts 12-19 and 22-33. He argued aUegations concerning
*875
“official acts” contained in counts 1-11 and 20-21 should be tried separately from those concerning actions he allegedly took as a “private individual.” First Nicholas Bissell Moving Brief at 45-46. He argued: “Requiring [Nicholas Bissell] to be tried both as a public official and a private individual in one ease will bring about real and substantial prejudice____” Mat46.
The allegations regarding Nicholas Bis-sell’s “private acts,” contained in counts 12-19 and 22-38, however, were tied to the allegations of his “public acts,” that Nicholas Bissell sought to sever. For example, counts 12-16 charge Defendants defrauded Thorn-burg.
As
indicated, Nicholas Bissell was alleged to have solicited Thornburg’s initial $100,000 investment in the Bedminster Station. He was alleged to have falsely represented to Thornburg the Bedminster Station was losing money in order to fraudulently solicit an additional $23,000 from Thornburg. Finally, Defendants were alleged to have “routinely embezzled cash from the Bedminster Station.” Second Superseding Indictment, ¶ 9 at 13.
Nicholas Bissell’s duties as Somerset County Prosecutor, as provided by New Jersey Law and the New Jersey Rules of Professional Conduct, made the same conduct that is the basis for the charges against him as a “private individual” the basis for the charges against him as a “public official.” For example, Nicholas Bissell’s “fraudulent operation” of the Bedminster Station, which was the subject of counts 12-16 and 18 of the Second Superseding Indictment, the “fraudulent operation of the Somerset Station, the subject of count 17, and the “criminal solicitation of a vendor of the Prosecutor’s Office to prepare fraudulent tax returns,” which was the subject of count 19, were all charged as unlawful conduct that compromised Nicholas Bissell’s ability to execute his duties as Somerset County Prosecutor, “thereby depriving the public of their right to the honest ... services of their chief law enforcement officer.” Second Superseding Indictment, ¶ 11, at 8.
Given the similarity of the factual allegations in both sets of counts, the “spillover” argument was without merit. The motion by Nicholas Bissell for severance was denied.
G.
Motions Relating to Seized Currency
On 19 April 1995, the Government executed a search warrant on Defendants’ home. 4 January 1996 Carbone Affidavit, ¶28. At that time, the Government discovered $9,000 “in cash that was found in an evening purse” and $289 “also in cash that was found in a shoe box in the bedroom closet.” Barbara Bissell Moving Brief at 33. Barbara Bissell filed the Motion for Return of Seized Currency.
Id.
Nicholas Bissell sought an
in limine
hearing to determine the admissibility of the Currency. First Nicholas Bissell Moving Brief at 44.
1.
Motion by Barbara Bissell for Return of Seized Currency
Barbara Bissell argued she needed the Currency for her trial-related expenses. Barbara Bissell Moving Brief at 33. She further argued there was no evidentiary value to the Currency in its then current form because the Government subjected it to tests that left it blackened, no identifiable prints were lifted and the serial numbers on the seized bills were not at issue in the ease.
Id.
at 35 . Barbara Bissell agreed to permit photographs of the Currency to be offered into evidence and to stipulate to the amount seized, the specific location in her home from which it was seized and “any other reasonable means to preserve the evidentiary value of the [C]urrency.”
Id.
at 35-36 ; 4 Mar. 1996 Tr. at 36 (“I would agree to a stipulation that this money was found and where it was found and how it was found.”).
The Government argued the Currency had evidentiary value and should be presented to the jurors, along with photographs of the Currency in the condition in which it appeared when seized and before it was subjected to tests by the Government. 4 Mar. 1996 , Tr. at 37-41. The Government also argued it should retain the Currency in the interests of the IRS of other potential victims, in the event the jury returned a guilty verdict on the Second Superseding Indictment. Opposition Brief at 74475; 4 Mar. 1996 Tr. at 40.
*876
At oral argument on the Omnibus Motions, the Government argued it had two interests with regard to the money. First, the Government argued the money had evidentiary value. 4 Mar. 1996 Tr. at 37. The Government argued a photograph of the money as it was found was a poor substitute for the money itself:
The Court: Why can’t you show them a photograph of what you seized?
Mr. Carbone: Judge, there is nothing — I guess, you’d really have to see it, and I apologize to the Court for not having it here, but it’s folded in hundred dollar increments, and there are little Post-Its on where [Barbara Bissell] was keeping a running balance.
4 Mar. 1996 Tr. at 38.
An oral argument, the Government was questioned regarding the probative value of the Currency:
The Court: ... If [Defendants are] stipulating to every aspect you’re trying to prove, why should we go through that exercise? How are you prejudiced if I say turn that money back and you have a valid stipulation?
Mr. Carbone: Judge, first of all, turning the money back wouldn’t do any good at this point because it’s black.
The Court: Then give them monies fungi-ble, the currency.
Mr. Carbone: I think the jury is entitled to see what was seized. We’re not required to—
The Court: The blackened money?
Mr. Carbone: They’re entitled to see it.
The Court: It wasn’t seized in that condition, was it?
Mr. Carbone: Judge, they’re entitled to see the money in the pocketbook where it was seized.
The Court: Excuse me. Was it seized in that condition?
Mr. Carbone: No, it was not.
The Court: Who put it in that condition? Mr. Carbone: The Government did.
The Court: Then how can they see it in the condition in which it was seized? ■
Mr. Carbone: They’ll see it with either an instruction or an explanation by a witness that this is what happens when you try to lift fingerprints off money.
4 Mar. 1996 Tr. at 37-38.
Second, the Government argued it had probable cause to believe the Currency was part of the funds Defendants allegedly skimmed from the Bedminster Station. The Government argued the IRS or a victim would be entitled to the Currency upon a guilty verdict.
Id.
at 42 .
The Motion by Barbara ■ Bissell for Return of Seized Currency subsequently became moot. At trial, the Government moved to admit the Currency into evidence. Despite the effect the Government’s fingerprint testing had on the appearance of the Currency, counsel for Barbara Bissell made no objection to the Currency being entered into evidence. Trial Tr. at 327. At trial, a Government witness informed the jury the fingerprint testing had “darkened” the appearance of the Currency.
Id.
at 330 . The Government witness also confirmed that “[o]ther than its dirty appearance” there was no difference in the condition and appearance of the Currency from when it was discovered.
Id.
2.
Motion by Nicholas Bissell for an In Limine Hearing to Determine Admissibility of Seized Currency
Nicholas Bissell argued judicial economy weighed in favor of a pretrial determination whether the Currency was admissible in evidence. First Nicholas Bissell Moving Brief at 44. Nicholas Bissell did not advance any argument why the Currency wás inadmissible against him or why such a pretrial determination was appropriate.
United States v. Bethancourt,
65 F.3d 1074, 1079 (3d Cir.1995) (holding it was relevant to admit in evidence cash found in home of defendant charged with crimes involving pecuniary gain),
cert. denied,
— U.S. ---, 116 S.Ct. 1032 , 134 L.Ed.2d 109 (1996);
United States v. Pungitore,
910 F.2d 1084, 1146 (3d Cir.1990) (evidence admissible against one conspirator properly admitted against co-conspirator),
cert. denied,
500 U.S. 915 , 111 S.Ct. 2009 , 114 L.Ed.2d 98 (1991). This motion was denied.
*877
H.
Motion to Dismiss the Second Superseding Indictment Due to Misuse of Grand Jury
Nicholas Bissell sought to dismiss the Second Superseding Indictment on ground that the Government misused the Grand Jury by issuing a subpoena, dated 9 November 1995, (the “Subpoena”) to Henry E. Rzemieniewski (“RzemieniewsH”). Exhibit B (Subpoena) to Belsole Cert. Rzemieniewski is an attorney with offices in Somerville, New Jersey who had handled real estate matters for Defendants.
Id.,
¶ 2.
The Subpoena demanded production of “[a]ny and all records relating to loan, equity reserve accounts and/or real estate closings done for Nicholas L. Bissell or Barbara J. Bissell.”
Id.,
Exhibit B. Counsel indicated the subpoenaed documents “are primarily closing documents with respect to the financing of [Defendants’ home and an investment property in Bridgewater Township.”
Id.,
¶ 5. The original return date of the Subpoena, 23 November 1995 (Thanksgiving) was changed to 23 December 1995.
Id.,
¶ 4.
Nicholas Bissell argued the relevant documents concerned transactions Defendants carried out “primarily from 1987 through 1992.” Second Nicholas Bissell Moving Brief at 3. Nicholas Bissell argued Special Agent Gary E. Berrigan (“Berrigan”) of the Federal Bureau of Investigation (“FBI”) served the subpoena.
Id.
at 4.
As Nicholas Bissell argued, Second Nicholas Bissell Moving Brief at 5, a prosecutor cannot use a grand jury to gather additional evidence in a forthcoming trial against a defendant following his or her indictment.
Resolution Trust Corp. v. Thornton,
41 F.3d 1539, 1547 (D.C.Cir.1994);
United States v. Phibbs,
999 F.2d 1053, 1077 (6th Cir.1993),
cert. denied,
504 U.S. 1119 , 114 S.Ct. 1070 , 1071, 127 L.Ed.2d 389 (1994);
United States v. Dise,
763 F.2d 586, 593 (3d Cir.),
cert. denied,
474 U.S. 982 , 106 S.Ct. 388 , 88 L.Ed.2d 341 (1985);
In re Grand Jury Proceedings,
632 F.2d 1033, 1041 (3d Cir.1980)
[“Johanson
”]. Nonetheless, a grand jury is free to continue a good-faith investigation into other charges against an indicted individual.
Dise,
763 F.2d at 593 (citing
Johanson,
632 F.2d at 1041 ).
“In the absence of a contrary factual showing, the grand jury proceedings are entitled to a presumption of lawfulness and regularity.”
Johanson,
632 F.2d at 1041 . A defendant who alleges such inappropriate use of a grand jury bears the burden of demonstrating “that the sole or dominant purpose of seeking the evidence post indictment is to prepare for the pending trial.”
Id.
Nicholas Bissell argued the Government improperly used the Grand Jury to gather additional evidence for trial. In support of this assertion, Nicholas Bissell argued the Government had previously obtained all of his financial records, Second Nicholas Bissell Moving Brief at 2; Belsole Cert., Exhibit D, that the Subpoena was “directed at precisely the kind of documents that the [Government would expect to contain the information necessary to satisfy its proofs at trial,”
id.
at 7, and that the subpoenaed documents concern financial transactions between 1987 and 1992, the same time frame for acts for.which he has already been indicted.
Id.
As additional support for this argument, Nicholas Bissell contended Berrigan served the Subpoena and had been involved with the underlying investigation since the outset.
Id.
at 8. Further, he argued that “the timing and other attendant circumstances” surrounding issuance of the Subpoena warrant suspicion.
Id.
“[A] good faith inquiry into other charges within the scope of the grand jury’s lawful authority is not prohibited even if it uncovers further evidence against an indicted person.”
Johanson,
632 F.2d at 1041 . In the instant case, the Grand Jury’s investigation was not complete at the time the Subpoena was issued. In fact, the Indictment was twice amended since Nicholas Bissell filed this motion which indicated the Grand Jury continued its investigation following the filing of the Indictment.
The relief sought, dismissal of the Indictment, was not warranted. Defendants failed to support their argument for such relief by citation to authority. The cases relied upon by Defendants were distinguishable and, in any case, did not support .this extreme remedy.
*878
For example, Nicholas Bissell relied upon
In
re
Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels),
767 F.2d 26, 30 (2d Cir.1985). In
Siméis,
the Grand Jury had returned a superseding indictment on 10 October 1984.
Id.
at 27 . A week later, on the Government’s motion, the district court issued a subpoena to defense counsel “commanding that he produce for use at trial” documents relating to his legal fees.
Id.
at 28 . The subpoena provoked opposition.
Id.
at 28 .
The return of the subpoena was subsequently adjourned; on 3 January 1985, however, defense counsel received a grand jury subpoena seeking the same information.
Id.
Importantly, the grand jury’s investigation in
Siméis
was apparently completed. The Second Circuit observed not a single witness was called before the grand jury between 10 October 1984 and 29 January 1985 and, therefore, the argument the evidence sought by the subpoena was part of an active investigation was weak.
Id.
at 30 . Accordingly, the Second Circuit quashed the grand jury’s subpoena.
Id.
Nicholas Bissell demonstrated no basis for the dismissal of the Indictment. Although the Government had offered to submit a
Schofield
affidavit, 12 January 1996 Letter Brief at 4, a review of the facts indicated that was not necessary. The Grand Jury Motion was denied.
I.
Motion to Require Law Enforcement Officers to Preserve Rough Notes of Investigation and Relevant Matters
Barbara Bissell sought discovery of the rough notes taken by Government agents “of briefings, conversation, or interviews” in the course of the investigation leading to the instant matter. Barbara Bissell Moving Brief at 19. In addition to notes drafted by Federal investigators, Barbara Bissell sought any such notes taken by other law enforcement officers, including local, county, state and‘“ethics entities.’”
Id.;
Barbara Bissell Reply Brief at 5 (citing
United States v. Ramos,
27 F.3d 65 (3d Cir.1994)).
“[T]he [G]overnment must retain and, upon motion, make available to the district court both the rough notes and the drafts of reports of its agents to facilitate the district court’s determination whether they should be produced.”
United States v. Ammar,
714 F.2d 238, 259 (3d Cir.),
cert. denied,
464 U.S. 936 , 104 S.Ct. 344 , 78 L.Ed.2d 311 (1983). Similarly, in
Ramos ,
the Circuit indicated the Government must keep rough notes by interviewing officers and rough drafts of reports of agents “ ‘so that the trial court can determine whether the notes should be made available to [Defendants] under ...
Brady
... or the Jencks Act.’ ” 27 F.3d at 68 (quoting
United States v. Vella,
562 F.2d 275, 276 (3d Cir.1977),
cert. denied
434 U.S. 1074 , 98 S.Ct. 1262 , 55 L.Ed.2d 779 (1978));
see Vella,
562 F.2d at 275-76 (“To avoid future misunderstandings, we specifically adopt the precepts announced in
United States v. Harrison,
524 F.2d 421 (D.C.Cir.1975), as the law in this circuit, to-wit, the rough interview notes of ... agents should be kept and produced so that the trial court can determine whether the notes should be made available to the appellant under the rule of
[Brady
], or the Jencks Act.”).
The Government asserted it “ha[d] already directed the [Fjederal agents to preserve their rough notes” and “[n]o other agents, local or state, were involved in the investigation of the chargesOpposition Brief at 92. Because the Government represented it had and would comply with its obligations under
Ramos
and
Amman,
the motion to preserve rough notes and reports was denied as moot.
See Giampa,
904 F.Supp. at 290 (citing
Eisenberg,
773 F.Supp. at 692 ). Defendants were entitled to such notes to the extent the substance constituted Jencks or
Brady
material.
See Ramos,
27 F.3d at 68 .
J.
Motion to Bar Introduction of Co-Conspirator Statements Pursuant to Rule 801(d)(2)(E)
Barbara Bissell sought an order to bar the introduction of co-conspirators’ statements pursuant to Rule 801(d)(2)(E), or, in the alternative, a pretrial hearing to determine the admissibility of any such statements. Barbara Bissell Moving Brief at 20; Barbara Bissell Reply Brief at 5.
*879
Rule 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(e). Excluded from the definition of hearsay, however, is “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E).
To apply the Rule 801(d)(2)(E) exemption to the hearsay rule, a court must determine, by a preponderance of the evidence, that a conspiracy existed between the declarant and the party against whom the statement is offered and the statement sought to be admitted was made during the course of and in furtherance of the conspiracy.
McGlory,
968 F.2d at 333 (citing
Bourjaily v. United States,
483 U.S. 171, 175-76 , 107 S.Ct. 2775, 2778-79 , 97 L.Ed.2d 144 (1987);
United States v. Gambino,
926 F.2d 1355, 1360 (3d Cir.),
cert. denied,
502 U.S. 956 , 112 S.Ct. 415 , 116 L.Ed.2d 436 (1991)).
In cases where it is difficult or impossible for the Government to prove the existence of the conspiracy before seeking to admit the co-conspirator’s statement, the co-conspirator’s statement may be admitted conditionally, “subject to the Government’s obligation to prove the conspiracy’s existence and each conspirator’s participation therein before the close of the Government’s case.”
Giampa,
904 F.Supp. at 286 (citing
Gambino,
926 F.2d at 1360-61 ;
United States v. De Peri,
778 F.2d 963, 981 (3d Cir.1985);
Aromar,
714 F.2d at 245-47 ;
In re Fine Paper Antitrust Litig.,
685 F.2d 810, 820-21 (3d Cir.1982),
cert, denied,
459 U.S. 1156 , 103 S.Ct. 801 , 74 L.Ed.2d 1003 (1983);
United States v. Continental Group, Inc.,
603 F.2d 444, 456 (3d Cir.1979),
cert. denied,
444 U.S. 1032 , 100 S.Ct. 703 , 62 L.Ed.2d 668 (1980)).
‘“[T]he control of the order of proof at trial is a matter committed to the discretion of the trial judge.’ ”
Giampa,
904 F.Supp. at 286 (quoting
Gambino,
926 F.2d at 1360 ). Count 23 of the Second Superseding Indictment alleged that, from 1 January 1991 to 28 September 1995, Defendants conspired to evade payment of Federal income taxes. Second Superseding Indictment, ¶¶ 1-13, at 29-32. . No other counts in the Second Super

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1488329. Public record. Not legal advice.