author: GESELL, District Judge.

text:
    GREATER SOUTHEAST COMMUNITY HOSPITAL, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 84-2951.
    United States District Court, District of Columbia.
    Feb. 15, 1985.

      Guy Collier, Ann Hastings Swett, Washington, D.C., for plaintiff.
    Ellen Lee Park, Asst. U.S. Atty., Washington, D.C., Diane C. Moskal, HHS, Philadelphia, Pa., for defendant.
   MEMORANDUM

GESELL, District Judge.

This Medicare reimbursement dispute is before the Court on appeal from a denial by the Provider Reimbursement Review Board (the Board) of two categories of cost claimed by plaintiff. Defendant has moved for judgment on the pleadings and plaintiff has cross-moved for summary judgment. The issues have been fully briefed and argued by counsel.

The hospital is challenging the Board’s refusal (1) to allow certain interest expenses on funds borrowed for capital improvement as eligible for Medicare reimbursement in fiscal' years 1977 through 1980, and (2) to treat the hospital’s intermediate care unit as a special care unit entitled to higher reimbursement than routine care units in fiscal years 1977, 1978 and 1980.

I. Interest Expense

Part of the hospital’s claimed interest expense on capital loans was disallowed for the years in question on the basis that the hospital engaged in excessive borrowing because it did not use available funded depreciation in lieu of part of the loans obtained.

The hospital engaged in extensive construction and renovation between 1974 and 1982. It obtained two commercial loans in 1976 and 1978, with total long-term borrowing totaling approximately $6.1 million, and financed the rest of the capital improvements with approximately $3.5 million of internal funds.

Medicare generally requires hospitals to use funded depreciation for capital projects before obtaining external borrowing. A limited discretionary exception to this rule developed by the case law permits the Secretary to allow hospitals and other Medicare providers to defer using the depreciation account until the end of a multi-phased construction project, so that the hospital can obtain better terms on loans at the start, of the project.

The Board found that the hospital here had not engaged in a single planned program of multi-phased construction but instead had engaged in a variety of separate related projects. This finding is supported by substantial evidence and so cannot be overturned. The hospital is unable to point to any master plan, single certificate of need, board minutes or other comprehensive documentation showing that at the outset its board of directors contemplated a phased program of construction in which use of funded depreciation would be deliberately put off until the latter years. The available documentation shows that only by post-hoc rationalizations can one conclude that there was a phased program of construction and financing.

In addition, the hospital transferred part of its funded depreciation to its foundation to be used for nursing home construction. The Board reasonably found that this was inconsistent with the purpose of the regulations concerning funded depreciation.

Accordingly, the Court finds no reason to upset the Board’s finding on the interest expense disallowances. The Secretary’s motion for judgment on the pleadings on this issue is granted and the plaintiff’s motion for summary judgment is denied.

II. Intermediate Care Unit

The hospital’s argument that the Board should have treated its intermediate care unit as a special care unit is more troublesome. To qualify as a special care unit, the hospital must show that, among other things, the unit is one “in which the care required is extraordinary and on a concentrated and continuous basis____” 42 C.F.R. § 405.452(d)(10) (1978). The parties agree that the primary focus of inquiry in this instance is whether the unit is similar to or comparable to the hospital’s already recognized special care units (the coronary care and intensive care units). See Villa View Community Hospital, Inc. v. Heckler, 728 F.2d 539, 541-42 (D.C.Cir.1984); Psychiatric Institute of Washington, D.C., Inc. v. Schweiker, 669 F.2d 812, 814 (D.C.Cir.1981). This is a factual inquiry turning on the evidence in the record.

The hospital points out that the level of nursing care in its intermediate unit was statistically quite similar to that in its recognized intensive care and coronary care units. Nurse/patient ratios were almost identical, and nursing hours per patient day in the intermediate unit were 88 per cent of those rendered in the recognized special care units, while nursing hours in routine care areas of the hospital amounted to only 32 per cent of the hours in the special care units. Costs per patient day also were comparable between the intermediate unit and the special care units.

The Board discounts these similarities, noting primarily that nursing hours in the intermediate unit included hours of cardiac monitoring technicians. The hospital’s testimony was that these technicians perform the same monitoring tasks that nurses perform in the recognized special care units. The Board has offered no justification for why the definition of nursing care should not include direct patient care rendered by specially trained skilled technicians even though they are not registered nurses. In addition, monitor technician time has been included in calculations of the level of nursing care in other cases. E.g., Creighton Omaha Regional Health Care Corp. v. Mutual of Omaha Ins. Co., 1982 Medicare and Medicaid Guide (CCH) ¶ 32,134 at 10,-453. That is because the proper distinction in determining nursing hours is between hours devoted to direct patient care and hours devoted to other, non-nursing tasks (such as clerical work). The Court concludes that this factor cannot justify the Board’s decision.

The hospital also offered extensive testimony from the nursing director of the intermediate unit and from a physician. The physician had admitted numerous patients to both the intermediate unit and the special care units and was a member of the hospital’s critical care committee overseeing its special units. They offered uncontradicted testimony that the intermediate unit, while it may have originally been planned as a “stepdown” unit offering convalescent care, served primarily as an overflow unit for the recognized special care units. These witnesses testified that there was no significant difference between the intermediate unit and the recognized special care units in intensity of care, nurse training and skills, equipment availability or other important factors. The Board made no credibility findings against these witnesses but apparently disregarded their testimony.

There is no substantial evidence to support the finding that the intermediate care unit served in fact as a stepdown unit. The Board relied on the fact that approximately 40 per cent of the admissions to the intermediate unit were from the recognized special care units. This was said to support the contention that it served as a stepdown unit. This statistic alone proves little in the face of the other evidence showing that patients in the intermediate unit were subject to continuous monitoring and in other respects received the requisite “extraordinary, concentrated and continuous” care.

Finally, the Board concluded that the hospital had failed to show that it had written guidelines for the unit for the fiscal years in question, as required by the regulation. However, the uncontradicted testimony was that written guidelines were kept but were updated each year and the old guidelines were thrown out. Guidelines for a later year were presented and competent witnesses testified they were substantially identical to the guidelines for the years at issue. These guidelines clearly applied specifically to the intermediate unit, as required by the regulation. While they provide some support for the contention that the unit in some respects could have served as a stepdown, the written guidelines cannot substitute for testimony as to what actually occurred in the unit to determine how the unit functioned in fact as opposed to on paper.

The substantial evidence test applicable in cases such as this does not require that the weight of the evidence support the Secretary’s decision. However, “[a]t a minimum ... a decision is not supported by substantial evidence unless there is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Airport Shuttle Service, Inc. v. ICC, 676 F.2d 836, 840 (D.C.Cir.1982). Based on the record here and the foregoing analysis, the Court is of the firm view that the Board’s disallowance of the intermediate care unit does not meet this standard when viewed in light of the applicable regulations. When one focuses on how the unit actually functioned, it is apparent that it provided virtually the same intensity of services as those given on the recognized special care units. Accordingly, the plaintiff’s motion for summary judgment on this issue is granted and the defendant’s motion is denied.

      . The Board’s decision became final agency action by virtue of the decision of the deputy administrator of the Health Care Financing Administration not to reverse, affirm or modify the Board’s decision. The Court has jurisdiction under 42 U.S.C. § 1395oo (f) to determine whether based on the administrative record, the agency action was arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with law. See Psychiatric Institute of Washington, D.C., Inc. v. Schweiker, 669 F.2d 812 (D.C.Cir.1981).

      . Medicare regulations generally provide that interest expense is reimbursable if it is "necessary and proper.” 42 C.F.R. § 405.419(a). Medicare encourages providers to establish "funded depreciation” accounts to be used for capital expenditures. 42 C.F.R. § 405.415(e). To the extent that a provider has funded depreciation available for capital projects, external borrowing is generally considered not necessary. See Medicare Provider Reimbursement Manual § 226.

      . The Health Care Financing Administration’s interpretation of these terms can be found in Creighton Omaha Regional Health Care Corp. v. Mutual of Omaha Ins. Co., 1982 Medicare and Medicaid Guide (CCH) ¶ 32,134 at 10,452-53.


source: Caselaw Access Project

author: DEVINE, Chief Judge.

license: Public Domain

text:
    The FAMILY HOUSING AND LAW CLINIC OF FRANKLIN PIERCE LAW CENTER v. Margaret HECKLER, Secretary of Health and Human Services; Martha A. McSteen, Acting Commissioner, Social Security Administration; Edwin C. Satter III, Regional Administrative Law Judge.
    Civ. No. 84-680-D.
    United States District Court, D. New Hampshire.
    Feb. 19, 1985.

      Bruce E. Friedman, Concord, N.H., for plaintiff.
    Bruce E. Kenna, U.S. Atty., Concord, N.H., for defendant.
   MEMORANDUM OPINION

DEVINE, Chief Judge.

This litigation concerns the manner in which the Social Security Administration (“SSA”) applies certain of its own regulations. The regulations at issue govern the fees to be paid to representatives of those claimants who are successful in administrative proceedings before SSA.

Plaintiff, The Family Housing and Law Clinic (“Clinic”) is a branch of Franklin Pierce Law Center (“Law Center”), located in Concord, New Hampshire. The defendants are Margaret Heckler, Secretary of Health and Human Services (“Secretary”); Martha A. McSteen, Acting Commissioner of SSA (“Commissioner”); and Edwin C. Satter III, Regional Chief Administrative Law Judge of SSA (“Chief Judge”). Each of the defendants has been sued only in her or his official capacity.

At this stage of the litigation, the matter comes before the Court on defendants’ motion seeking dismissal for lack of jurisdiction. The relevant facts are as follows.

Clinic is staffed by experienced attorneys, but it also utilizes the services of second- and third-year law students at Law Center. Most of Clinic’s clients are indigent residents of New Hampshire, and as a supplement to their academic training Clinic’s students represent such clients before courts and administrative agencies, including SSA.

Salaries of Clinic’s staff attorneys are paid by Law Center. However, Clinic is required to raise by its own effort approximately $45,000 annually to meet its overhead costs. One source chosen by Clinic to assist in this endeavor consists of the fees paid to representatives of claimants who are successful in proceedings before SSA. Accordingly, Clinic enters into written agreements with such clients under which the clients agree that if fees are awarded they are to be paid to Clinic. In a series of cases here complained of, however, SSA has allowed only a portion of fees sought by Clinic for successful representation before it to be paid. Specifically, plaintiff complains that it has been paid only $3,000 of fees from a total of $9,000 sought, and such payments have been limited to payments to attorneys under Title II of the Social Security Act (“Act”). SSA has refused to approve any payment to Clinic for the services of law students and has denied payment of fees to attorneys for successful representation of claimants under Title XVI of the Act.

The claimants represented by Clinic have sought Social Security benefits under the Disability Insurance provisions of Title II of the Act (“SSDI”), codified at 42 U.S.C. § 423, as well as Supplemental Security Income (“SSI”), under Title XVI of the Act, codified at 42 U.S.C. § 1381, et seq. The statutory authorization for payment of fees to representatives of claimants seeking SSDI benefits under Title II is to be found in 42 U.S.C. § 406, while payment to representatives advancing SSI claims pursuant to Title XVI is governed by the provisions of 42 U.S.C. § 1383. Each of such statutes specifically provides that if desired a claimant seeking recovery under either provision of the Act may be represented by non-attorneys. In this regard, the nearly identical statutory language provides, in relevant part:

The Secretary may prescribe rules and regulations governing the recognition of agents or other persons, other than attorneys as hereinafter provided, representing claimants before the Secretary, and may require of such agents or other persons, before being recognized as representatives of claimants that they shall show that they are of good charater [sic] and in good repute, possessed of the necessary qualifications to enable them to render such claimants valuable service, and otherwise competent to advise and assist such claimants in the presentation of their cases. An attorney in good standing who is admitted to practice before the highest court of the State, Territory, District, or insular possession of his residence or before the Supreme Court of the United States or the inferior Federal courts, shall be entitled to represent claimants before the Secretary. The Secretary may, after due notice and opportunity for hearing,. suspend or prohibit from further practice before him any such person, agent, or attorney who refuses to comply with the Secretary’s rules and regulations or who violates any provision of this section for which a penalty is prescribed. The Secretary may, by rule and regulation, prescribe the maximum fees which may be charged for services performed in connection with any claim before the Secretary under this subchapter, and any agreement in violation of such rules and regulations shall be void.

42 U.S.C. § 406(a).

Those who seek SSDI payments pursuant to Title II and are represented by attorneys, however, will have withheld from any past-due benefits to which they are found entitled certain sums for payment of fees sought by such attorney. Title XVI of the Act contains no provision for the withholding of past-due benefits for the payment of fees to either attorneys or nonlawyers.

The regulations promulgated by the Secretary pursuant to statutory authorizations hereinabove referred to are also generally identical in language. Those who want representation before SSA under Title II may choose either a lawyer or a nonlawyer, 20 C.F.R. § 404.1705, who may qualify on completion of certain paperwork, 20 C.F.R. § 404.1707, and when qualified is authorized to represent the claimant in proceedings before SSA, 20 C.F.R. § 404.1710, and will receive notices of action thereon, 20 C.F.R. § 404.1715. In SSI claims under Title XVI, the regulations contain identical provisions for appointment of a representative, 20 C.F.R. § 416.1505; recognition of such appointment, 20 C.F.R. § 416.1507; authority of such representative, 20 C.F.R. § 416.-1510; and receipt of notices by the representative, 20 C.F.R. § 416.1515. In addition, the identical regulations provide that representatives may charge and receive fees on condition that they file written requests with SSA which will decide the amount of the fee the representative may charge or receive. 20 C.F.R. § 404.1720 (for Title II); 20 C.F.R. § 416.1520 (for Title XVI). Fees may not be charged or received until approved by SSA, nor shall they be for amounts in excess of amounts so approved, id. The notice of fee determination is to go to both claimant and the representative detailing the basis of the award of fees, id., and if a timely request is made for review of such award, the determination of such will be reviewed by “an authorized official of [SSA] who did not take part in the fee determination being questioned”, 20 C.F.R. § 404.1720(d); 20 C.F.R. § 416.1520(d).

Of importance to the instant litigation are the regulatory criteria to be used in evaluating a request for approval of a fee when same has been properly filed by a claimant’s representative. In identical language, 20 C.F.R. § 404.1725(b) and 20 C.F.R. § 416.1525(b) provide:

(1) When we evaluate a representative’s request for approval of a fee, we consider the purpose of the social security program, which is to provide a measure of economic security for the beneficiaries of the program, together with—
(1) The extent and type of services the representative performed;
(ii) the complexity of the case;
(iii) The level of skill and competence required of the representative in giving the services;
(iv) The amount of time the representative spent on the case;
(v) The results the representative achieved;
(vi) The level of review to which the claim was taken and the level of the review at which the representative became your representative; and
(vii) the amount of fee the representative requests for his or her services, including any amount authorized or requested before, but not including the amount of any expenses he or she incurred.
(2) Although we consider the amount of benefits, if any, that are payable, we do not base the amount of fee we authorize on the amount of the benefit alone, but on a consideration of all the factors listed in this section. The benefits payable in any claim are determined by specific provisions of law and are unrelated to the efforts of the representative. We may authorize a fee even if no benefits are payable.

In the series of cases complained of in this litigation, when plaintiff’s claims for fees were denied initially by an AU, review was sought before the defendant Chief Judge pursuant to the review provision of 20 C.F.R. § 404.1720(d) or 20 C.F.R. § 416.1525(d), as above quoted. With regard to the work done by law students in representation of successful claimants, defendant Chief Judge stated his position as follows:

It is my opinion that the time spent by law students on social security cases is time spent in furtherance of their academic achievements and I feel compelled to disallow any reimbursement for that time.

Appendix C to Complaint.

In addition, the defendant Chief Judge has taken the position that Clinic is a “service organization” which

provides a service to claimants who cannot afford to retain private attorneys to represent them. Therefore, the decision to allow an organization such as yours to charge and receive a fee is viewed from another perspective.

Appendix D to Complaint.

In sum, therefore, there is statutory authority permitting both SSDI and SSI claimants to be represented by either lawyers or nonlawyers, and where successful in such proceedings, the representatives may request payment of a fee for services. Pursuant to statutory delegation, the Secretary has promulgated detailed criteria for the evaluation of such fee requests. As read and reread, however, these criteria contain no indication that “service organizations” or law students (as distinguished from a lay person representative) are to be denied fees because of their status. Contrary to defendants’ assertion that plaintiff herein received “full procedural rights regarding the request for fees for services before the [SSA]”, Defendants’ Memorandum at 4, it appears that ad hoc decisions were herein made with reference to plaintiff’s request for fees, which decisions are not made with respect to other private law firms, law students employed by such firms, and lay representatives of claimants.

The issue is not, therefore, as defendants would have it, the right of the defendants to deny all fees, the right of the defendants to reduce the amount of fees requested, or the right of defendant Chief Judge to review fee awards on request. Nor is the issue one of whether this Court possesses jurisdiction pursuant to the Act to review such actions made in the course of administrative proceedings by SSA.

The issue is whether the plaintiff here possesses a colorable constitutional claim such as to invoke the jurisdiction of this Court. It is an elemental rule of law that the

agency power to make rules that affect-substantial individual rights and obligations carries with it the responsibility not only to remain consistent with the governing legislation, FMC v. Seatrain Lines, Inc., 411 U.S. 726 [93 S.Ct. 1773, 36 L.Ed.2d 620] (1973); Dixon v. United States, 381 U.S. 68, 74 [85 S.Ct. 1301, 1305, 14 L.Ed.2d 223] (1965); Brennan v. Stark, 342 U.S. 451 [72 S.Ct. 433, 96 L.Ed. 497] (1952), but also to employ procedures that conform to the law. See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764 [89 S.Ct. 1426, 1428, 22 L.Ed.2d 709] (1969) (plurality opinion). No matter how rational or consistent with congressional intent a particular decision might be, the determination of eligibility cannot be made on an ad hoc basis by the dispenser of the funds.

Morton v. Ruiz, 415 U.S. 199, 232, 94 S.Ct. 1055, 1073, 39 L.Ed.2d 270 (1974).

Accepting, as it must, the facts alleged in the complaint as true, Chasan v. Village District of Eastman, 572 F.Supp. 578, 579 (D.N.H.1983), aff'd without opinion 745 F.2d 43 (1st Cir.1984) (and cases therein cited), the Court finds and rules that Clinic herein has at least “a statutory expectancy that the Secretary will award reasonable attorney’s fees”, Carver v. Heckler, supra, 568 F.Supp. at 306, and that the departure from the regulatory criteria mandated for use by SSA in the evaluation of fee claims triggers a colorable constitutional claim of deprivation of due process.

For the reasons hereinabove detailed, the defendants’ motion to dismiss must be and it is herewith denied.

SO ORDERED.

      . Such students are either enrolled in or have completed the Law Center course in "Administrative Advocacy”.

      . Such representation is, of course, supervised by Clinic staff attorneys. This not unusual practice is sanctioned by both the state courts of New Hampshire, Rule 36, N.H. S.Ct., and by this court, Rule 5(c), Rules of the United States District Court for the District of New Hampshire.

      . Clinic’s overhead costs include telephone, utilities, and secretarial staff.

      . When paid, whether for the services of attorneys or for those of law students, such fees are used to defray the overhead costs of Clinic, and none of the fees thus paid go to the actual representatives of the clients.

      . The Title XVI provision governing representation of claimants in SSI proceedings is to be found at 42 U.S.C. § 1383(2). As stated above in the body of this Opinion, the language therein is nearly identical with the quoted provisions from 42 U.S.C. § 406(a).

      . Found in additional provisions of 42 U.S.C. § 406(a), the sums withheld are to be the smaller of (A) 25 per centum of the total amount of past-due benefits; (B) the amount of attorney’s fees as fixed by the Secretary; or (C) the amount agreed upon between claimant and his attorney as to the fee for the attorney’s services.

      . Appendix C to the Complaint is the letter of August 27, 1984, to Attorney Bruce Friedman, Director of Clinic.

      . Appendix D to the Complaint is another letter of August 27, 1984, from defendant Chief Judge to Attorney Friedman.

      . The position of the defendant Chief Judge with respect to the "service organization” aspect of plaintiff Clinic is all the more puzzling in light of the recent decision of the Supreme Court in Blum v. Stenson, _ U.S. _, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Additionally, the law is clear that law students are not to be denied requests for fees merely because of their status. Jordan v. United States Department of Justice, 691 F.2d 514, 522-23 (D.C.Cir.1982); Carver v. Heckler, 568 F.Supp. 301 (D.Vt.1983).

      . Indeed, in one of the cases relied on by the defendants, the court made clear that arbitrary action in the setting of fees fell within the jurisdiction of the court.
      That the Secretary, through the decision of the ALJ, has the sole authority to set the fee, however, does not mean that he is free to set fees arbitrarily. As we mentioned in Garcia v. Neagle, 660 F.2d 983 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982), ‘even where action is committed to absolute agency discretion by law, courts have assumed the power to review allegations that an agency exceeded its legal authority, acted unconstitutionally, or failed to follow its own regulations.’ Id. at 988. The appellant does not colorably claim that the fee award itself was improper on constitutional, statutory, or regulatory grounds. His challenge to the reasonableness of the fee, therefore, must fail.

        Thomason v. Schweiker, 692 F.2d 333, 336 (4th Cir.1982) (footnote omitted).


author: NICKERSON, District Judge.

text:
    In the Matter of the MAY 18, 1981 GRAND JURY.
    No. 84 C 4495.
    United States District Court, E.D. New York.
    Feb. 19, 1985.

      Elizabeth Holtzman, Dist. Atty. Kings County, Brooklyn, N.Y. (Laura Drager, Michael Halberstam, Asst. Dist. Attys., Brooklyn, N.Y., of counsel).
    Raymond J. Dearie, U.S. Atty., Brooklyn, N.Y. (Gregory J. Wallance, Asst. U.S. Atty., Brooklyn, N.Y., of counsel). '
    Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Arthur L. Liman, Colleen McMahon, New York City, of counsel), for Charles E. Schumer.
   MEMORANDUM AND ORDER

NICKERSON, District Judge.

' The United States Attorney and the Kings County District Attorney move pursuant to Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure for an order allowing disclosure of certain federal grand jury testimony to the District Attorney. Congressman Charles E. Schumer, the subject of the grand jury investigation, opposes the motion.

All papers on the motion have been sealed. To the extent that facts in the record are mentioned in this opinion and have been published in New York State Court opinions, Schumer v. Holtzman, 94 A.D.2d 516, 465 N.Y.S.2d 522 (2d Dep’t), aff'd as modified, 60 N.Y.2d 46, 454 N.E.2d 522, 467 N.Y.S.2d 182 (1983), the papers are deemed unsealed. The court does not use pseudonyms since the state court opinions name the parties and describe the pertinent facts. Cf. In the Matter of Frank Kitchen, 706 F.2d 1266, 1268 n. 1 (2d Cir.1983).

In 1981 and 1982 the United States Attorney’s Office conducted a grand jury investigation into Schumer’s conduct of his successful 1980 congressional campaign while he was a New York State Assemblyman. The inquiry focused on whether Schumer had engaged in criminally fraudulent conduct by permitting members of his Assembly staff to work on his congressional campaign while on the state payroll.

Following the investigation the United States Attorney recommended that Schumer be prosecuted. On January 17, 1983 the Justice Department closed the matter stating that it “is not appropriate for federal prosecution.”

The Kings County District Attorney then commenced an investigation of Schumer’s conduct. The United States Attorney turned over to her witness interview notes made prior to any testimony before the federal grand jury. Members of her office interviewed a number of the witnesses. The state inquiry is still active, but a state grand jury has not been empanelled.

On reviewing the . District Attorney’s notes, the United States Attorney .gave her his office’s opinion that the state investigation did not reveal a complete and accurate picture of the events of 1980. This motion followed to permit the state investigators to have access to the grand jury testimony. The United States Justice Department supports the motion.

The United States Attorney asserts that there are discrepancies between the grand jury testimony and the notes of the state interviews of the witnesses. The court assumes, without deciding, that material discrepancies do exist.

I

The grand jury is said to serve two functions, to uncover crimes deserving of prosecution and to protect the innocent by screening out charges not warranting prosecution. United States v. Sells Engineering, Inc., 463 U.S. 418, _, 103 S.Ct. 3133, 3137-38, 77 L.Ed.2d 743 (1983). The prohibition of Federal Rule of Criminal Procedure 6(e)(2) against disclosure of grand jury matters by, among others, a government attorney serves to promote these two ends. Id.; United States v. Procter & Gamble Co., 356 U.S. 677, 681-82, 78 S.Ct. 983, 985-86, 2 L.Ed.2d 1077 (1958).

“First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the .risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.”

Sells, supra, 463 U.S. at _, 103 S.Ct. at 3138 (1983) quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S.Ct. 1667, 1673, 60 L.Ed.2d 156 (1979) (footnotes and citation omitted).

But the secrecy of grand jury proceedings is not absolute. The Rule makes exceptions. Among them is the circumstance where a court directs disclosure “preliminarily to or in connection with a judicial proceeding.”' Rule 6(e)(3)(C)(i). To come within this exception the moving parties must show that the proposed uses of the grand jury material are related fairly directly to some identifiable litigation, pending or anticipated. United States v. Baggot, 463 U.S. 476, _, 103 S.Ct. 3164, 3167, 77 L.Ed.2d 785 (1983).

The movants must also demonstrate a particularized need for the material. The Rule does not mention this standard, but it has been established by the Supreme Court.

We have consistently construed the Rule ... to require a strong showing of particularized need for grand jury materials before any disclosure will be permitted____ We described the standard in

detail in Douglas Oil:

“Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed____
“It is clear from Procter & Gamble and Dennis that disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and that the burden of demonstrating this balance rests upon the private party seeking disclosure. It is equally clear that as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification. In sum, ... the court’s duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and the standards announced by this Court. And if disclosure is ordered, the court may include protective limitations on the use of the disclosed material....”

Sells, supra, 463 U.S. at _, 103 S.Ct. at 3148.

The same standard of particularized need applies when government officials — federal or state — seek disclosure under this exception. Illinois v. Abbott & Associates, Inc., 460 U.S. 557, 572-73, & nn. 14-16, 103 S.Ct. 1356, 1364, & nn. 14-16, 75 L.Ed.2d 281 (1983); In re: Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 36 (2d Cir.1981), cert. denied, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983).

II

The District Attorney contends that the state investigation is preliminary to a “judicial proceeding.” She argues that a state grand jury proceeding is a judicial proceeding and the state investigation is clearly preliminary to such a proceeding, and that in any event she herself may commence a criminal case by filing a complaint. Schumer urges that the grand jury does not engage in a judicial proceeding but merely in activities preliminary to one and that thus the state investigation is merely preliminary to a preliminary proceeding.

In the Baggot case, the Supreme Court left open the “knotty question” of what sorts of proceedings, other than routine civil actions or criminal proceedings, might qualify as judicial proceedings. 463 U.S. at _, 103 S.Ct. at 3166 n. 2. This court need not decide whether state grand jury proceedings are “judicial.” Assuming the state investigation is preliminary to a judicial proceeding, the court concludes that the movants have not shown that the need for the testimony outweighs the interest in grand jury secrecy.

III

The public interest in the secrecy of what occurs before a grand jury varies depending on the stage of the investigation. Once a grand jury has terminated its inquiry most of the ends served by secrecy have been met. See, e.g., United States v. Moten, 582 F.2d 654, 663 (2d Cir.1978). However, two remain. See In re Petition to Inspect and Copy Grand Jury Materials, 576 F.Supp. 1275, 1281-82 (S.D.Fla.1983), aff'd, 735 F.2d 1261 (11th Cir.), cert. denied, _ U.S. _, 105 S.Ct. 254, 83 L.Ed.2d 191 (1984).

First, disclosure may expose a target who has not been indicted to public ridicule or disrepute. See In re Grand Jury Investigation of Cuisinarts, supra, 665 F.2d at 33 and cases cited. Secrecy protects the innocent as well as facilitates pursuit of the guilty. United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 1238, 87 L.Ed. 1546 (1943). Although the fact that Schumer was the subject of federal investigation has been made public, his interest in preserving the secrecy of the grand jury testimony survives. See In re Petition to Inspect Grand Jury Materials, supra, 576 F.Supp. at 1282.

Second, the court must consider the effect of disclosure not only on a particular grand jury, but also on the functioning of future grand juries. Douglas Oil, supra, 441 U.S. at 222, 99 S.Ct. at 1674; see United States v. Sobotka, 623 F.2d 764, 767 (2d Cir.1980). To the extent that persons called before a grand jury are concerned that their testimony may one day be released, they may fear future retribution or social stigma, both described by the Supreme Court as “powerful deterrents” to the giving of grand jury testimony. Douglas Oil, supra, 441 U.S. at 219, 222, 99 S.Ct. at 1674.

In this case the force of these two interests is diminished in view of the persons to whom the material is sought to be released and the person to whom it relates.

It is not a private party who seeks disclosure. State and federal government officials charged with the performance of a public duty to investigate activity that may be criminal join in the motion. Disclosure might well enhance the effective performance of this duty, see Sells, supra, 463 U.S. at _, 103 S.Ct. at 3148-49; Sobotka, supra, 623 F.2d at 767; and would also further federal and state cooperation in upholding the law. See In re Grand Jury Proceedings, 483 F.Supp. 422, 424 (E.D.Pa.1979).

To give the District Attorney access to the materials does not pose as great a risk of further leakage or improper use as would disclosure to private parties. Relatively few people would be privy to the information, and rules of secrecy also apply to state grand jury proceedings. See, Sells, supra, 463 U.S. at _, 103 S.Ct. at 3139 n. 7, 3149.

Finally, the state is investigating a United States Congressman and a former member of the New York State Assembly. There is a singular interest in the integrity of elected officials and a corresponding interest in the prosecution of their misdeeds. Secrecy concerning their activities has rarely contributed to confidence in them. But an investigation in which the District Attorney has been accorded access to all material evidence, and has found nothing to warrant prosecution, may instill such confidence. Cf. In re Petition to Inspect and Copy Grand Jury Materials (Hastings), 735 F.2d 1261, 1273-74 (11th Cir.), cert. denied, _ U.S. _, 105 S.Ct. 254, 83 L.Ed.2d 191 (1984). Thus Schumer, while entitled to the same presumption of innocence as any other citizen, may be subject to a more exacting public scrutiny.

IV

Having analyzed the interests in secrecy, the court turns to the interests in disclosure asserted by the District Attorney. She suggests that to make the federal grand jury testimony available to her would facilitate the state investigation. First, disclosure would allow her both to refresh the recollection and to impeach the testimony of witnesses in the state grand jury or at trial. Both of these purposes are in principle often sufficient to constitute particularized need. See, e.g., Douglas Oil, supra, 441 U.S. at 222 n. 12, 99 S.Ct. at 1674 n. 12; Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Procter & Gamble, supra, 356 U.S. at 683, 78 S.Ct. at 986. This interest is potentially significant, but its assertion at the present time is premature. The federal witnesses have not been called to testify before a state grand jury. Indeed, one has not yet been empanelled, and the District Attorney says that she has not decided whether or not to call one. See, e.g., In re Grand Jury Matter (Catania), 682 F.2d 61, 66 (3d Cir.1982).

To justify disclosure now the court would have to assume that a grand jury will be called and- that the witnesses before it will have forgotten the facts or will give testimony at variance with their earlier testimony. In order to make an appropriate limitation of disclosure solely to those parts of the transcript needed, the court would have to predict what each witness would say. The fact that the witnesses’ unsworn statements to the District Attorney may be inconsistent with , their federal testimony is not sufficient to establish they will violate their oath to give truthful testimony to the state grand jury. If they do commit what the District Attorney has reason to believe is perjury, it is hardly likely she will be unable to persuade a state judge to release to this court in camera the state grand jury testimony so that this court may assess the need to release the federal testimony.

The District Attorney says that disclosure will otherwise aid her inquiry. She argues that without the federal testimony she “will not be in a position adequately to assess the propriety of commencing a state Grand Jury proceeding.” She goes so far as to say that after discussing the matter with the United States Attorney, interviewing the relevant witnesses, and assessing their credibility she believes that further investigation would be “stymied” without the federal testimony and that the witnesses cannot be induced to provide the “missing facts” by compelling them to testify in a state grand jury.

Such speculation hardly establishes a pressing need. Rule 6(e)(3)(C)(i) should not be used as a general discovery device. This court holds, and reads the opinion of the Court of Appeals for the Second Circuit in the Sobotka case, supra, 623 F.2d at 768, to imply, that to establish a “particularized need” the movants must show that the need cannot be met by compulsory process. See also In re Grand Jury (Catania), supra, 682 F.2d at 66; Grumman Aerospace Corp. v. Titanium Metals Corp., 554 F.Supp. 771, 777 (E.D.N.Y.1982); United States v. Metropolitan Edison Company, 594 F.Supp. 117, 119-20 & n. 3 (M.D.Pa.1984); In re Grand Jury Disclosure, 550 F.Supp. 1171, 1184 (E.D.Va.1982) and cases cited.

This court respectfully declines to follow the decision in the Eighth Circuit case of In the Matter of Disclosure of Testimony Before the Grand Jury (Troia), 580 F.2d 281, 286-87 (8th Cir.1978), which is inconsistent with this court’s holding. See also In the Matter of Petition for Disclosure of Evidence Before the October 1959 Grand Jury of this Court, 184 F.Supp. 38, 41 (E.D.Va.1960).

The District Attorney does not establish particularized need by showing that disclosure may save her additional time and expense. See, Sells, supra, 463 U.S. at _, 103 S.Ct. at 3142 and cases cited. Her argument that perhaps the statute of limitations will run if access is not allowed is of little consequence. Nothing has precluded her from heretofore placing the matter before a state grand jury. See In re Grand Jury (Catania), supra, 682 F.2d at 66.

V

The court concludes that the District Attorney has not at present shown a need for disclosure of the federal grand jury material outweighing the need for continued secrecy. While the interests underlying the maintenance of grand jury secrecy in this case are scarcely formidable, the District Attorney’s present need is not sufficient to prevail over them. The court expresses no view as to the merits of the federal or state investigations.

The motion is denied without prejudice to a renewal of the application if greater need is demonstrated as the state investigation proceeds.

So ordered.


author: EDWARD WEINFELD, District Judge.

text:
    Columbia CELENTANO, Plaintiff, v. Manuel FURER, individually and as Executor of the Estate of Abraham Furer, Defendant.
    No. 84 Civ. 7038.
    United States District Court, S.D. New York.
    Feb. 19, 1985.

      Butler, Fitzgerald & Potter, New York City, for plaintiff; James M. Davis, James H. Neale, New York City, of counsel.
    Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendant; Jay Topkis, Jay Cohen, New York City, of counsel.
   EDWARD WEINFELD, District Judge.

Plaintiff commenced this action against the defendant individually and as executor of the estate of his father, decedent Abraham Furer. Jurisdiction is based upon diversity of citizenship.

Plaintiff’s action centers about an alleged relationship with the decedent. In essence, plaintiff claims that in 1943 she entered into the employ of a dress mañufacturing business owned and operated by the decedent; that thereafter, over a period of forty years until his death, she performed extraordinary services much beyond the requirements of her immediate position; that such services added materially to the success of decedent’s business and the accumulation of his personal wealth; that, in addition, she performed many personal services, including nursing care when he was ill; that she was never compensated for any of the extraordinary services; and that from time to time through the years, decedent orally promised that he would by will, (1) leave her certain real property that he owned in Palisades Park, New Jersey, and (2) take care of her and make her a wealthy woman. Plaintiff further alleges that in consideration of such oral promises, she continued to render services and care, and to devote attention to decedent; that for two years prior to decedent’s death she resided with him to take care of him more effectively; and that on November 9, 1982, he renewed his previously made oral promises by a written instrument, promising to bequeath to plaintiff the Palisades Park property and one-half of his life savings. Decedent is alleged to have subsequently breached the agreement by failing to make the promised bequests to her and instead bequeathing his entire estate to his son and sole surviving beneficiary, the defendant herein.

Plaintiff seeks judgment against the defendant in both his fiduciary and individual capacities as follows: (1) damages for breach of the November 9, 1982 agreement, to be paid out of decedent’s estate in an amount equal to the fair market value at decedent’s death of the Palisades Park property and one-half of decedent’s life savings, plus interest; (2) alternatively, specific performance and the imposition of a constructive trust over that portion of the estate assets that is the subject of the written agreement; (3) an accounting of all property defendant holds individually, or as executor of the estate, as a fiduciary; and (4) as an alternative to the first three claims, damages for unjust enrichment derived by decedent, and through him by the defendant, at plaintiff’s expense.

The defendant, in addition to a general denial of plaintiff’s claims, pleads a number of affirmative defenses, including (1) that plaintiff’s claims are barred by the statute of frauds, (2) that plaintiff exercised undue influence over decedent; and (3) that the November 9, 1982 document was obtained by duress, coercion or other improper means.

Defendant moves to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, or in the alternative, if there is jurisdiction, he urges the Court to abstain from exercising it. In support of his motion, the defendant relies upon what is referred to as the probate exception to the Court’s diversity jurisdiction. The defendant argues that under the various claims asserted, plaintiff seeks to reach property now under administration of the Surrogate’s Court of New York County where decedent’s will was admitted to probate.

It has long been settled that even where diversity jurisdiction exists, a federal court has no jurisdiction to probate a will, administer an estate, or entertain any action that would interfere with probate proceedings pending in a state court or with its control over property in its custody. However, this limitation does not foreclose a federal court from exercising its jurisdiction to adjudicate rights to such property “where the final judgment does not undertake to interfere with the state court’s possession save to the extent that the state court is bound by the judgment to. recognize the right adjudicated by the federal court.”

Our Court of Appeals has stated in Lamberg v. Callahan:

The standard for determining whether federal jurisdiction may be exercised is whether under state law the dispute would be cognizable only by the probate court. If so, the parties will be relegated to that court; but where the suit merely seeks to enforce a claim inter partes, enforceable in a state court of general jurisdiction, federal diversity jurisdiction will be assumed.

Thus, under Lamberg, the issue turns on whether under state law the Surrogate’s Court of the State of New York has exclusive jurisdiction of plaintiff’s claim. Defendant does not dispute that under the Constitution of the State of New York, “the surrogate’s court jurisdiction over plaintiff’s claims is concurrent with the jurisdiction of the supreme court.” Rather, defendant relies upon an alleged policy of deference by the State Supreme Court to the Surrogate’s Court with respect to such claims. He argues that because of that policy, “[tjhere is no doubt that, if plaintiff filed her complaint in the New York state courts, her claim would be adjudicated by the surrogate, not by a court of general jurisdiction,” and, therefore, “the dispute would be cognizable only by the probate court,” within the meaning of our Court of Appeals’ decision in Lamberg.

It does not follow that because the State Supreme Court may, or even is likely to, exercise its discretion to defer to the Surrogate’s Court, that in Lamberg’s terms, “the dispute would be cognizable only by the. probate court” and not “enforceable in a state court of general jurisdiction.” Whatever the reason for such deference, it does not displace the Constitutional provision vesting in the State- Supreme Court jurisdiction over probate matters. The Supreme Court of the State of New York has the constitutional power to entertain such claims and it in fact has done so. Moreover, a policy engaged in by judges of deferring to another court possessed of concurrent jurisdiction cannot vitiate the Constitutional grant of jurisdiction to the State Supreme Court.

To adopt defendant’s argument that the State Supreme Court’s policy of deference is sufficient to satisfy Lamberg would require this Court to speculate as to a discretionary decision to be made by an individual State Supreme Court Justice, and would effectively render this Court’s determination of its subject matter jurisdiction a function of State policies of judicial economy. As our Court of Appeals has stated of the “probate exception,” “the mere internal arrangement of the state courts” even if it results in “effectively exclusive jurisdiction of the ‘probate’ court is irrelevant to the existence of power to hear the cause.”

This Court has power to entertain plaintiff’s claims where their adjudication “does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court.” The adjudication of a claim for recovery under a contract to make a will does not require this Court to probate a will, to interfere with the probate of an otherwise valid will, or even to take control of property in the custody of the Surrogate’s Court and subject to its in rem jurisdiction.

It may be that this Court does not have the power to grant plaintiff all of the relief sought in her complaint. However, clearly with respect to the plaintiff’s claims (1) for damages for breach of the November 9, 1982 agreement, (2) alternatively for specific performance of the agreement, and (3) for unjust enrichment, they are claims against defendant individually and do not implicate or trench upon the Surrogate’s power over the estate or 'the disposition of any property under its control by reason thereof. It may be argued that the claim for an accounting of all property held by defendant as an executor of the estate parallels that which the Surrogate may be called upon to determine. However, this claim for relief may be interpreted as applying “only [] to property that has been distributed to [defendant] as a legatee and is therefore no longer subject to the jurisdiction of the probate court.” The Court has power to grant such relief and the state court would be bound to recognize the rights so adjudicated.

To the extent that, under her third claim, plaintiff also seeks an accounting of the estate’s assets which defendant holds as executor, that does not deprive this Court of jurisdiction to entertain the basic underlying contract claims. As our Court of Appeals has recently found, it is unnecessary to determine “at this stage of the litigation the full extent of the relief the district court is empowered to grant.” It is sufficient that subject matter jurisdiction exists as to the underlying claim and some of the. relief requested. The Court, in its discretion, may fashion appropriate relief, and in doing so, may avoid the need to decide whether it has jurisdiction to grant certain types of relief.

Accordingly, defendant’s motion to dismiss plaintiff’s complaint for lack of subject matter jurisdiction is denied.

Defendant argues, in the alternative, that the Court should exercise its discretion to abstain from taking jurisdiction since the claim is on the “verge” of the probate exception. There is no claim here that the case falls within the three traditional categories repeatedly emphasized by the Supreme Court as a prerequisite to abstention: (1) avoiding a federal constitutional issue by seeking a state determination of state law; (2) declining to restrain state criminal proceedings, collection of taxes, and other similar acts; or (3) deferring to state resolution of difficult state law questions that.involve important public policy considerations or where federal review would be disruptive of state regulation or administration. It is evident that the first two categories are inapplicable here; so, too, the third, for plaintiff’s contract claims and defendant’s defenses comprise “a garden variety” diversity case, involving neither the construction of a new or nonexisting - statute, nor presenting “[c]omplex and unsettled issues of state law, whose resolution might well affect broad policies of the state.”

Outside of these three categories, the courts have “the virtually unflagging obligation ... to exercise the jurisdiction given them.” However, the Supreme Court has identified, in addition to the three established categories of abstention, one further instance where dismissal may be appropriate: a district court may decline to exercise its jurisdiction in favor of concurrent state proceedings in “exceptional circumstances.” The Supreme Court in Colorado River Water Conservation District v. United States, and in Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, enumerated five factors to be considered in determining whether such “exceptional circumstances” exist: (1) assumption by either court of jurisdiction over a res or property; (2) convenience to the parties of one forum over the other; (3) avoidance of piecemeal litigation; (4) the order in which jurisdiction was obtained by the concurrent forums; and (5) whether federal or state law provides the rule of decision on the merits. Based on his analysis of the factors, defendant ar-. gues that the balance favors abstention.

The Court is not confronted here with the' type of exceptional circumstances contemplated by the Supreme Court when it developed this exception to the general rule that “the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.” Dismissal under Colorado River requires “the clearest of justifications”; that is, an unequivocal showing that dismissal would conserve substantial judicial resources and result in the comprehensive disposition of litigation. However, here, there is little potential for duplicative litigation. Plaintiffs claims are not now, nor have they ever been, before the Surrogate. Plaintiff was not a party to the special proceeding to admit the will to probate, and not being a “distributee” or other statutorily enumerated party, was not even entitled to notice of the proceeding. For plaintiff to institute a claim at this point would require her to petition for a new and separate proceeding. Moreover, defendant does not contend that there are other contested claims presently under consideration by the Surrogate. If plaintiff does obtain a judgment in this Court, she may be required to return to the Surrogate to enforce it, but such a proceeding would not require a reconsideration of the merits of her claim. Finally, even assuming that complete adjudication of all claims against the estate might be had before the Surrogate were the Court to dismiss, the incremental increase in the comprehensiveness of litigation achieved by remitting plaintiff to the Surrogate can in no way compare to that achieved in Colorado River where some 1000 water users’ conflicting claims for water rights were at issue. In such circumstances, the Court cannot find the clearest of justifications for dismissal.

Accordingly, defendant’s motion to dismiss is denied in its entirety.

So ordered.

      . Markham v. Allen, 326 U.S. 490, 494, 66 S.Ct. 296, 298, 90 L.Ed. 256 (1946); accord Lamberg v. Callahan, 455 F.2d 1213, 1216 (2d Cir.1972); see Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80 (1909); see also Princess Lida of Thurn and Taxis v. Thompson, 305 U.S. 456, 59 S.Ct. 275, 83 L.Ed. 285 (1939).

      . Markham v. Allen, 326 U.S. 490, 494, 66 S.Ct. 296, 298, 90 L.Ed. 256 (1946).

      . Lamberg v. Callahan, 455 F.2d 1213, 1216 (2d Cir.1972) (emphasis added).

      . Defendant’s Brief at 6.

      . See, e.g., Peekskill Community Hospital v. Sayres, 88 A.D.2d 657, 450 N.Y.S.2d 527 (2d Dep’t 1982); Dunham v. Dunham, 40 A.D.2d 912, 337 N.Y.S.2d 728 (3d Dep’t 1972); Reilly v. Wygant, 11 A.D.2d 647, 201 N.Y.S.2d 225 (1st Dep’t 1960).

      . Defendant’s Brief at 6; see Lamberg v. Callahan, 455 F.2d 1213, 1216 (2d Cir.1972) (emphasis added).

      . Id. (emphasis added).

      . N.Y. Const. art. VI, §§ 7, 12; see also N.Y.Surr.Ct.Proc.Act § 1810 (McKinney 1967) ("Nothing in this article shall prevent a claimant from commencing an action on his claim at law or in equity”).

      . See, e.g., Dombrowski v. Somers, 41 N.Y.2d 858, 362 N.E.2d 257, 393 N.Y.S.2d 706 (1977) (addressing merits of claim to recover on alleged promise by decedent that plaintiff would be compensated for her services and taken care of for the rest of her life); Dombrowski v. Somers, 51 A.D.2d 636, 378 N.Y.S.2d 825 (3d Dep’t 1976) (same), rev’d, 41 N.Y.2d 858, 362 N.E.2d 257, 393 N.Y.S.2d 706 (1977); Rubenstein v. Mueller, 19 N.Y.2d 228, 225 N.E.2d 540, 278 N.Y.S.2d 845 (1967) (action to specifically enforce will originally considered by Supreme Court, Queens County); Oursler v. Armstrong, 10 N.Y.2d 385, 179 N.E.2d 489, 223 N.Y.S.2d 477 (1961) (action to impress a trust on portion of second wife's estate, judgment originally rendered by Supreme Court, New York County); Palm v. Chase Manhattan Bank, 27 Misc.2d 424, 208 N.Y.S.2d 794 (Sup.Ct.N.Y.Co.1960) (action to enforce alleged agreement to bequeath); cf. Reilly v. Wygant, 11 A.D.2d 647, 201 N.Y.S.2d 225 (1st Dep’t 1960) (dismissing claim on contract to bequeath property without prejudice to relief in the Surrogate's Court "in a proceeding in which plaintiff was cited as a party”).

      . See Collins v. Manufacturers Hanover Trust Co., 124 Misc.2d 907, 478 N.Y.S.2d 236, 238 (Sup.Ct.N.Y.Co.1984) (statute providing for removal from Supreme Court to Surrogate’s Court based on fact that Surrogate’s Court calendar less subject to delays).

      . Beach v. Rome Trust Co., 269 F.2d 367, 373 (2d Cir.1959); see Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 45-46, 30 S.Ct. 10, 13, 54 L.Ed. 80 (1909); see also Grand Bahama Petroleum Co. v. Asiatic Petroleum Corp., 550 F.2d 1320, 1324-25 (2d Cir.1977) (States have no power to enlarge or contract jurisdiction).

      . Markham v. Allen, 326 U.S. 490, 494, 66 S.Ct. 296, 298, 90 L.Ed. 256 (1946).

      . See Lamberg, 455 F.2d 1213, 1216; see also Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 46, 30 S.Ct. 10, 13, 54 L.Ed. 80 (1909); Tutunjian v. Vetzigian, 299 N.Y. 315, 320-21, 87 N.E.2d 275 (1949).

      . See Citibank, N.A. v. Data Lease Financial Corp., 645 F.2d 333, 338-39 (5th Cir.1981) (decree of specific performance of contract to convey real property does not interfere with another court's in rem jurisdiction).

      . Giardina v. Fontana, 733 F.2d 1047, 1051 (2d Cir.1984).

      . See Markham v. Allen, 326 U.S. 490, 494, 66 S.Ct. 296, 298, 90 L.Ed. 256 (1946).

      . Giardina v. Fontana, 733 F.2d 1047, 1051 (2d Cir.1984).

      . Id.

      . See, e.g., Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 516 (2d Cir. 1973); cf. Giardina v. Fontana, 733 F.2d 1047, 1051 (2d Cir.1984) (acknowledging the appeal of abstention in probate matters where the state has an interest and competence not shared by federal judges, but recognizing that Supreme Court decisions since Phillips, Nizer, supra have restrictively interpreted the conditions under which abstention is appropriate).

      . See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814-16, 96 S.Ct. 1236, 1244-45, 47 L.Ed.2d 483 (1976); Giardina v. Fontana, 733 F.2d 1047, 1052 n. 1 (2d Cir.1984).

      . Quinn v. Aetna Life & Casualty Co., 616 F.2d 38, 41 (2d Cir.1980) (per curiam).

      . Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976).

      . Id. at 817-18, 96 S.Ct. at 1246; Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); accord Giardina v. Fontana, 733 F.2d 1047, 1052 (2d Cir.1984).

      . 424 U.S. 800, 96 S.Ct. 1234, 47 L.Ed.2d 483 (1976).

      . 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

      . Id., 460 U.S. at 15, 23, 103 S.Ct. at 936, 941; Colorado River, 424 U.S. at 818-19, 96 S.Ct. at 1246-47.

      . Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246 (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910)).

      . Id., 424 U.S. at 817, 819, 96 S.Ct. at 1246, 1247.

      . N.Y.Surr.Ct.Proc.Act § 1403 (McKinney 1967 & Supp.1984-85); see 41 N.Y.Jur.2d § 1852 (1984) (“one who is not entitled to share in the estate as a distributee is neither a necessary nor a proper party” to a proceeding to probate a will).

      . See N.Y.Surr.Ct.Proc.Act §§ 203, 302-06 (McKinney 1967 & Supp.1984-85); 40 N.Y.Jur.2d §§ 1303-05 (1984); 42 N.Y.Jur.2d § 2244 (1984); see also N.Y.Surr.Ct.Proc.Act § 1810 (McKinney 1967); 42 N.Y.Jur.2d § 2133 (1984) (“A creditor of a decedent's estate may, without presenting his claim to the fiduciary or taking any action whatsoever in the Surrogate’s Court, bring an action in another court upon his claim").


author: WILLIAM C. CONNER, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Cesar RAMIREZ, Orlando Gonzalez, et al., Defendants.
    No. 84 Crim. 257 (WCC).
    United States District Court, S.D. New York.
    Feb. 19, 1985.

      Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for the United States of America; Charles G. LaBella, Daniel N. Perlmutter, Asst. U.S. Attys., New York City, of counsel.

      Neil Y. Getnick, New York City, for defendant Orlando Gonzalez.
   OPINION AND ORDER

WILLIAM C. CONNER, District Judge.

Orlando Gonzalez (“Gonzalez”) is one of ten defendants charged in a superseding indictment filed October 4, 1984 with conspiracy to violate federal narcotics laws. 21 U.S.C. § 846. Specifically, he and his codefendants are charged with having conspired to distribute and possess with intent to distribute cocaine. Indictment at Count I. A variety of pretrial motions were filed, but six of the ten defendants have now entered guilty pleas and the Court is presented here only with the issues raised by Gonzalez. Each is addressed below.

I. Dismissal of the Indictment

Gonzalez asks that the Court exercise its discretion to examine the grand jury minutes and dismiss the indictment if it finds an absence of adequate evidence before the grand jury. Gonzalez offers several reasons why he suspects the grand jury lacked sufficient evidence to indict. He points to the fact that he is not named in any of the overt acts, and that his alleged role is not particularized in any way. He notes that his review of affidavits submitted by Special Agent John Dowd (“Agent Dowd”) in support of electronic surveillance applications revealed only one reference to him among all the intercepted conversations mentioned by Dowd, and that Gonzalez “merely answered a telephone call and engaged in a [one-minute] telephone conversation which in no way implicates him in a conspiracy.” Getnick Aff. of June 27, 1984 at ¶¶ 9, 10. He contends, finally, that because the Government expanded the scope of its electronic surveillance on several occasions as it discovered the names of individuals whose conversations it expected to intercept, but never added Gonzalez’s name, the Government had no expectation of intercepting any more of his conversations as part of an ongoing conspiracy. Id. at II12. According to defendant, all of these factors suggest that inadequate evidence was presented to the grand jury.

Although this Court has discretion to examine grand jury minutes in order to determine whether adequate evidence was placed, before a grand jury, see United States v. Tane, 329 F.2d 848 (2d Cir.1964), such an examination is not lightly undertaken and will not be performed here. There is no question but that the paragraph excerpted from Agent Dowd’s affidavits provides less than compelling support for a probable cause determination with respect to Gonzalez. Nonetheless, as a general rule, an indictment which is valid on its face and which was returned by a legally constituted grand jury is not subject to challenge on the ground that it is based on inadequate or incompetent evidence. See United States v. Greater Syracuse Board of Realtors, Inc., 449 F.Supp. 887, 898 (S.D.N.Y.1978) and cases cited therein. As the Supreme Court recognized in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956):

If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury____ An indictment returned by a legally constituted and unbiased grand jury ... is enough to call for trial of the charge on the merits.

Id. at 363, 76 S.Ct. at 408-409 (footnote omitted).

Inspection of grand jury minutes is generally reserved for situations in which a defendant claims a gross and prejudicial irregularity, or presents some other compelling and particularized need. United States v. Aloi, 449 F.Supp. 698, 738 (S.D.N.Y.1977). Because no such need has been shown here, Gonzalez’s motion is denied.

II. Severance

Gonzalez next seeks an order pursuant to Rule 14, F.R.Crim.P. granting him a severance from the remaining defendants and a separate trial. He argues that the crux of the Government’s case against him consists essentially of the intercepted phone conversation mentioned above, and says that his involvement is “so minimal ... that to try him jointly with individuals allegedly involved in an extensive seven-year conspiracy to distribute large amounts of cocaine in New York City would be irredeemably prejudicial.” Getnick Aff. of Dec. 13, 1984 at ¶¶ 18, 20.

It is obvious from even a cursory review of Count I that Gonzalez is not a key figure in the conspiracy charged. Nonetheless, as the Court of Appeals for the Second Circuit recently recognized, “[i]t is almost inevitable that in an unlawful scheme or conspiracy involving several defendants some will be shown to have been more culpable than others,” and a defendant is not entitled to a severance simply because some evidence relates only to codefendants. United States v. Panza et al., 750 F.2d 1141, at 1149 (2d Cir.1984). A defendant seeking a severance “must shoulder the difficult burden of showing that the prejudice to him from joinder is sufficiently severe to outweigh the judicial economy that would be realized by avoiding lengthy multiple trials.” Id.; see also United States v. Losada, 674 F.2d 167, 171 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982). Because motions made under Rule 14 require courts to weigh the facts, circumstances and claims of prejudice of each case, the determination of whether severance is proper is addressed to the judge’s discretion, and .will not be reversed absent a showing of substantial prejudice. United States v. Cunningham, 723 F.2d 217, 229-30 (2d Cir.1983), cert. denied, _ U.S. _, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984).

I cannot conclude that Gonzalez will be prejudiced if he is tried with the defendants remaining in the case, and I therefore deny the severance motion. Six defendants including “kingpin” Cesar Ramirez have entered pleas of guilty, and as a result, this trial will be neither long nor complicated. Only two counts of the original twenty-three remain for trial. Two of the four defendants are police officers whose, involvement apparently centers around their receipt of payments for protection services, and although Gonzalez’s involvement has not been particularized, it seems unlikely that the jury will confuse the facts as they relate to the respective defendants. The other remaining defendant, Raul Cuevas, also appears to have had a relatively insignificant role which should not prove difficult for a jury to discern. Thus, there is no strong likelihood of prejudicial spillover or juror confusion due to the number of counts, the number of defendants, or the length of proceedings. Moreover, there is no reason to conclude that any potential for spillover effects cannot be eliminated by proper jury instructions.

It is apparent, in addition, that considerations of judicial economy would be ill-served by separate trials. Cesar Ramirez will be the key prosecution witness and presumably he will establish the existence of the conspiracy in which all defendants allegedly joined. Thus, separate trials would, result in considerable repetition of direct testimony. It is also fair to assume, in light of the scope of Ramirez’s own illegal activities, that a significant amount of trial time will be spent on impeachment. This testimony, too, would, have to be repeated if Gonzalez were tried separately. None of the prejudice arguments presented by Gonzalez is sufficient to justify the burden that would be placed on the Court if the motion were granted. The motion for severance is denied.

III. Suppression of Taped Conversations

Gonzalez next requests an order compelling suppression of recorded conversations to which he was a party. He seeks this relief “for the reasons set forth in the suppression motion of defendant Cesar Ramirez.” Getnick Aff. of Dec. 13, 1984 at ¶ 22. Ramirez, whose own motions have now been mooted by his guilty plea, challenged the Government’s use of evidence seized by means of electronic surveillance on grounds that: (1) the original application and requests for extensions were unsupported by probable cause; (2) the authorizations were not “executed as soon as practicable”; (3) the Government failed adequately to demonstrate that other investigative procedures had been tried without success,; (4) the Government’s agents failed to minimize the interception of communications not properly subject to interception; and (5) the Government failed to have its tapes sealed immediately.

A. Probable Cause

The conversations Gonzalez seeks to suppress were recorded by means of a wiretap placed on the telephone at Ramirez’s jewelry store and a “bug” installed inside the same premises. Gonzalez challenges the probable cause determinations of Judge Gerald L. Góettel, who issued the electronic surveillance authorizations in this case, on the ground that certain information relied upon by Judge Goettel was false. Specifically, Gonzalez looks to Agent Dowd’s affidavit in support of the initial application, wherein Dowd reported that Edith Collado, who was Ramirez’s former wife, and another individual named Jose Ortega, had each reported that Ramirez was involved in heavy volume cocaine dealing. The basis of the assertion that this information was false is an affidavit submitted by Ramirez’s prior counsel, in which counsel averred that Ramirez told him of a conversation with Collado in which she denied ever having made such a statement, and another conversation in which Ortega advised Ramirez “through an intermediary” that Ortega had made a similar denial.

Ramirez contended, and' thus Gonzalez now contends, that probable cause “evaporates” once the Collado and Ortega statements are excluded. Zapp Memo. In Support of Ramirez Motion to Suppress at 7. He argues that the remaining averments provide “only the scantiest indication, far short of probable cause” to believe that electronic surveillance would reveal evidence of narcotics violations. Id.

The Government responds that the unsworn allegations of defendant Ramirez cannot support a motion to suppress, and that there was “overwhelming evidence” to establish probable cause to believe Ramirez was using his business telephone and his store to conduct a large narcotics business. It asserts, moreover, that no claim for relief could be sustained under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) because, even assuming the statements of Agent Dowd were false, there is no evidence to suggest they were made “with knowledge or with reckless disregard for the truth,” and no showing that the statements were material. Gov’t Memo, in Opp. to Defendants’ Motions at 5-7.

It is important to note, in resolving the questions raised here, that probable cause to issue a wiretap order exists when the facts made known to the issuing magistrate are sufficient to warrant a prudent man in believing that evidence of a crime will be obtained through the use of electronic surveillance. United States v. Fury, 554 F.2d 522, 530 (2d Cir.), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978). Moreover, the magistrate is to review the affidavit submitted in support of the application as a whole, and is to test that affidavit in a common-sense fashion. Massachusetts v. Upton, _ U.S. _, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984) (per curiam). As the Government correctly adds, this Court must give substantial deference to a prior judicial determination that probable cause existed, Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964); United States v. Londono, 553 F.2d 805, 810 (2d Cir.1977), and should resolve any doubts as to the existence of probable cause in favor of upholding the authorization. United States v. Jackstadt, 617 F.2d 12, 14 (2d Cir.), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980).

I have reviewed the affidavit submitted by Agent Dowd in light of the aforementioned considerations, and I have concluded that, even assuming the statements in question were false, the remaining allegations were more than sufficient to establish probable cause. The great majority of Agent Dowd’s affidavit is devoted to information provided by a confidential informant named Medina, who had achieved some success in infiltrating Ramirez’s operations during a seven-month period prior to the wiretap application. Additional incriminating information came from Ramirez’s second wife, Cleopatra Ramirez. The statements attributed to Collado and Ortega play a very insignificant part in Agent Dowd’s affidavit, and it strains credulity to suggest that Judge Goettel might not have authorized electronic surveillance absent those statements. They are not material, and in addition, there is no evidence of willful or intentional wrongdoing on the part of Agent Dowd. A Franks hearing is therefore unnecessary.

With respect to the assertion that there was an insufficient showing to justify the three extensions granted by Judge Goettel, I cannot agree that the surveillance activities had shown “poor results,” or that the applications contained “few conversations of significant evidentiary value ... and many more conversations which are hopelessly ambiguous.” Zapp Memo, at 8. The affidavits clearly indicate that Ramirez and those who dealt with him frequently used code phrases; many of the conversations are enigmatic indeed. On the other hand, there are also conversations in which the parties unambiguously discussed cocaine transactions, see, e.g., Dowd Aff. of Mar. 16, 1984 at ¶ 14; Dowd Aff. of April 13, 1984 at ¶ 8, and other conversations which, although “coded,” create strong inferences of such conduct. (“At 5:37 P.M., RAMIREZ had a conversation with an individual whose voice matched that of [Pajes] concerning the price of rocks (“piedras”) and the price of a kilo.” Id. at ¶ 7.) Statements such as these are surely sufficient to warrant a prudent man in believing that continued interception would reveal further evidence of narcotics violations.

B. Availability of Normal Investigative Procedures

Gonzalez argues that when the Government made application for electronic surveillance, it failed to comply with 18 U.S.C. § 2518(l)(c), which provides that the application must include

a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.

Defendant concedes that this provision does not require that normal investigative techniques be exhausted before the Government may resort to electronic eavesdropping; it requires only that the Government inform the Court “of the nature and progress of the investigation and of the difficulties inherent in the use of normal law enforcement methods.” United States v. Vazquez, 605 F.2d 1269, 1282 (2d Cir.1979), quoting United States v. Hinton, 543 F.2d 1002, 1011 (2d Cir.1976).

In his affidavit supporting the initial application, Agent Dowd devoted approximately three pages to the subject of alternative available procedures. He indicated that although a confidential informant had been utilized, the informant’s usefulness was limited because Ramirez had taken' steps to insulate the acts of associates from the scrutiny of others, and had not divulged to the informant his source of supply or distribution network. Agent Dowd indicated that Ramirez was closely connected with others in the neighborhood around his store, and that the area was therefore inhospitable to physical surveillance efforts. Agent Dowd also mentioned concern that since Ramirez was being advised by New York City policemen and was utilizing the services of lookouts, normal surveillance techniques would be detected. He discussed inherent limitations on the usefulness of physical surveillance and pen registers for purposes of gathering evidence for trial, and also explained why an investigative grand jury was unlikely to produce results. I am satisfied, on the basis of these averments, that Judge Goettel was advised of the nature and progress of the investigation, and that he properly concluded that the difficulties inherent in the use of normal law enforcement methods justified resort to electronic surveillance.

C. Delay in Executing the Authorization Order

Defendant Gonzalez also incorporates Ramirez’s argument that intercepted conversations should be suppressed because the Government failed to follow Judge Goettel’s order that the surveillance authorization be executed “as soon as practicable.” According to defendants, the Government “delayed” installing the surveillance equipment until the 30-day period initially authorized for interception had almost expired.

The February 17, 1984 affidavit of Agent Dowd indicates at paragraph six that there was a delay in the commencement of interceptions due to a variety of factors that made undetected access to the store difficult:

[T]he reasons for the delay included the following: the designated premises contain a number of video surveillance cameras and alarms; the designated premises is on a commercial street which has a substantial amount of pedestrian and vehicular traffic on a 24-hour basis; and the designated premises has a number of locks and gates.

It may be true, as Gonzalez argues, that access to the store prevented introduction of the bug but not the wiretap. Nevertheless, I am confident that if Judge Goettel had thought the Government willfully violated or “blithely ignored” his order, as defendant suggests, he would have vacated his authorization, declined to approve an extension, or fashioned some other appropriate sanction.

Moreover, I am unpersuaded by the suggestion that the information underlying the initial authorization became stale in the period between Judge Goettel’s order and the eventual equipment placement. Judge Goettel had before him evidence establishing the existence of a long-standing and apparently well-established venture. If he had entertained doubts as to the continued viability of that information, he could have denied the extension application or sought a supplementary affidavit. In light of Judge Goettel’s apparent satisfaction with the information he was presented, this Court will not intervene. See United States v. Martino, 664 F.2d 860, 869 (2d Cir.1981) (“[W]e agree with the implicit finding of Judge Leval, who did not vacate the wiretap authorization upon receiving the report of the delay, that the information supporting the authorization had not become stale in the intervening five days.”)

D. Failure to Minimize Interception

Defendant has provided absolutely no support for his argument that the Government failed to comply with the statutory requirement that interceptions be conducted in such a way as to minimize the interception of communications not otherwise subject to interception. I have reviewed the seven-day reports submitted to Judge Goettel and I am satisfied that there was an awareness of and adherence to the minimization requirement. Counsel for both Ramirez and Gonzalez had access to the tapes and logs, and neither even attempted to show that “a substantial number of nonpertinent conversations had been intercepted unreasonably.” United States v. Cirillo, 499 F.2d 872, 881 (2d Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974).

E. Failure to Seal Tapes Immediately

The final argument proffered by Gonzalez for suppressing evidence gathered through electronic surveillance received only the most cursory treatment in each party’s submissions. Notwithstanding the litigants’ apparent lack of interest in pursuing the merits of this claim with vigor, the question of whether the tapes at issue were “immediately” sealed in conformity with 18 U.S.C. § 2518(8)(a) presents the Court with significant problems.

Section 2518(8)(a) of Title 18 provides in part:

Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.

The Court of Appeals for the Second Circuit has recognized that the immediate sealing of these recordings is an integral part of the statutory scheme, and has held that the admissibility of tape recordings at trial is conditional upon the presence of a judicial seal or a “satisfactory explanation” for its absence. Even where a judicial seal is present, a satisfactory explanation must be provided if the seal was not obtained “immediately.” United States v. Vazquez, 605 F.2d 1269, 1274 (2d Cir.1979), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1980).

In Vazquez, the Second Circuit stated that “a sealing achieved one or two weeks after expiration of a wiretap cannot be considered ‘immediate’ ” in that sealing is often possible within one or two days. Thus, the court held that any delay beyond one or two days “certainly calls for explanation.” Id. at 1278. In the instant case, the Government concluded its interception in the early morning hours of Friday, April 20,1984. The tapes were then taken to the DEA evidence vault for storage, but were not sealed by Judge Goettel until Friday, April 27, 1984. The Court is therefore required to determine whether the Government has proffered a “satisfactory explanation” for the delay. For the reasons stated briefly below, the Court is unable to make such a ruling on the record before it, and will therefore set the matter for an evidentiary hearing prior to trial.

In support of its delay, the Government has submitted an affidavit of the Assistant United States Attorney who supervised the investigation in this case. He avers that after the tapes were placed in the vault on April 20, 1984, he took part in arraignments all day. Over the weekend and during the next week, he was

engaged in writing additional arrest and search warrants, coordinating efforts to locate a number of fugitives, attending bail review hearings and discussing possible dispositions with a number of defense counsel.

Perlmutter Aff. at ¶ 7. In essence, the prosecutor failed to have the tapes sealed because he was busy.

The Second Circuit has considered various factors in determining whether the Government’s explanation is “satisfactory” under § 2518. These include: the length of the delay; evidence of tampering; time required to duplicate, label, check and prepare the tapes for sealing; and prejudice caused to the defendants by delay. The court has stated, however:

Needless to say, section 2518 was not intended to bar use of wiretaps only when the defendant can show prejudice or present evidence of tampering or other governmental bad faith. The statute imposes an affirmative responsibility on the Government.

United States v. McGrath, 622 F.2d 36, 43 (2d Cir.1980). The court’s opinion in McGrath followed shortly after Vazquez, supra, wherein a strong warning was issued to the Government and to the district courts. After holding that seven-to-thirteen-day delays were justified where the Government had presented uncontroverted testimony establishing, inter alai, shortages of personnel and equipment, a need for on-going evaluation of the intercepted conversations, and a need for duplicating, labelling and checking the tapes before sealing, the court said:

[I]n law as in life, today’s satisfactory explanation may very well be tomorrow’s lame excuse. As the federal and state case law in this area grows, the failure to foresee and, where possible, prevent sealing delays becomes less justifiable, as law enforcement officials must be expected to learn from their own experiences and those of others. As other courts have done, “We decline to allow the police to rely on their own failure to use proper equipment or to institute more efficient procedures as an excuse for delay.” [citation omitted]. The wiretapping statute imposes a duty on the judiciary as well as on the prosecutor. It is our role to exclude from evidence tapes not sealed in conformance with the law, and we are aware that by faithfully performing this statutory duty we encourage law enforcement officers to perform their duties in an equally rigorous manner.

Id. at 1280. The court concluded by reiterating that it would not hesitate to exclude evidence when appropriate.

The justifications offered by the Government in Vazquez seem far more compelling than those presented here, and yet the court in Vazquez characterized the question as “close.” Id. at 1279. Although I can sympathize with the heavy obligations placed on an Assistant United States Attorney when a big case “breaks,” and while I am reluctant to exclude highly probative evidence, I am not prepared to rule at this time that a “satisfactory explanation” has been offered for the seven-day delay in sealing these tapes. While the delay is not especially long and there is no evidence of tampering or bad faith, I find it significant that none of the delay appears to be attributable to a need to process the tapes themselves; indeed, if I read the prosecutor’s affidavit correctly, the tapes remained in a vault during the entire intervening period. In light of the Second Circuit’s clear directive, it is incumbent upon this Court to ascertain that the delay was not caused by the Government’s plain and simple failure to regard sealing the tapes as a priority.

The Court will hold a hearing prior to trial at which the Government must provide a further, or at least a more detailed explanation, for the delay. If the Court is not convinced that the explanation is “satisfactory” within the meaning of Vazquez and other relevant precedents, all tapes that were not timely sealed will be excluded.

IV. Bill of Particulars

On June 27, 1984, counsel for Gonzalez served a discovery request upon the Government and annexed a bill of particulars. The Government has declined voluntarily to provide the information Gonzalez seeks, and Gonzalez now moves for an order compelling responses under Rule 7(f), F.R.Crim.P. In essence, defendant asks the Government to state: the date he first joined the conspiracy; the dates, times and locations of his alleged involvement; the names of co-conspirators with whom he allegedly dealt directly; and the names of participants identified after the indictment was filed. Further, Gonzalez seeks any documentation that would verify his presence at any meetings or activities.

' The Government has submitted its usual response to such motions, arguing that a bill of particulars is not an investigative tool for the defense, and is not a device to compel the Government to disclose its evidence or legal theories. Gov’t Memo. in Opp. to Defendants’ Motions at 32. The Government stresses that the ultimate test of the appropriateness of a bill of particulars is “whether the information is necessary, not whether it is helpful to the defendant.” United States v. Leighton, 265 F.Supp. 27, 35 (S.D.N.Y.), aff'd, 386 F.2d 822 (2d Cir.), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968). With respect to the instant case, the prosecution concludes that “the indictment on its face clearly sets forth the specifics of the conspiracy ..., thereby obviating the need for further particulars.” Gov’t Memo. at 31.

The purpose of a bill of particulars is to apprise the defendant of the essential facts of a crime so that he can adequately prepare a defense, avoid prejudicial surprise at trial, and plead double jeopardy in subsequent actions. United States v. Greater Syracuse Board of Realtors, 438 F.Supp. 376, 379 (S.D.N.Y.1977). Because the Government should not be forced into prematurely disclosing evidentiary matters in a form that may unduly confine its proof at trial, a bill of particulars should be required only “where the charges of an indictment are so general that they do not advise the defendant of the specific acts of which he is accused.” United States v. Leonelli, 428 F.Supp. 880, 882 (S.D.N.Y.1977). The Second Circuit has held that the trial judge has discretion to determine whether a bill should be provided, what its scope and specificity should be, and how much time will be allowed the defendant to consider the information in preparing his defense.

I have reviewed Count I of the indictment and cannot agree with the Government that it sets forth “specifics.” None of the overt act allegations mentions Gonzalez; he is mentioned only as one of ten co-conspirators charged with violations of 21 U.S.C. § 846. Moreover, the taped conversation alleged to have involved Gonzalez provides no illumination. This is not enough information for Gonzalez to prepare an adequate defense. The Government argues that “Gonzalez is aware of the nature of the charges against him,” Gov’t Memo, in Opp. to Gonzalez Motions at 8, but offers no support for this statement. As recognized by the court in Greater Syracuse Board of Realtors, supra, “it is no answer that the defendant should know the facts demanded, for the defendant is presumed innocent; in any event, the Bill of Particulars is aimed at the facts as alleged by the Government, rather than as they actually exist.” Id. at 379.

It is now the eve of trial, and there should be little prejudice to the Government in having to divulge some of the facts crucial to Gonzalez’s defense. Therefore, the Government is instructed to provide forthwith:

(1) A statement of the approximate date, time and location where it is claimed that Gonzalez conspired to violate federal narcotics laws;

(2) A statement of the names of other co-conspirators with whom Gonzalez allegedly conspired with or dealt with directly;

(3) A statement as to whether Gonzalez was present at any meetings, gatherings or conferences described in the overt act allegations; and

(4) Documentation which tends to verify any meeting or conference in which Gonzalez allegedly participated.

The Government need not provide defendant with a listing of the overt acts performed by him in furtherance of the conspiracy.

V. Miscellaneous Requests for Relief

Gonzalez seeks an order directing the Government to provide him with the names and addresses of all prosecution witnesses. The Government is not required to produce such a list absent a particularized showing of need. United States v. Cannone, 528 F.2d 296, 301-02 (2d Cir.1975). No showing has been made and the motion is therefore denied.

Gonzalez’s request for a pretrial hearing to determine the admissibility of co-conspirator declarations is also denied. As Judge Weinfeld of this Court recently ruled, such a hearing need not be held prior to trial:

In our Circuit, ... the matter is admissible upon the trial court’s determination, made at the close of the government’s case, of the sufficiency of the evidence, independent of the hearsay testimony, that the alleged co-conspirator participated in the conspiracy.

United States v. Wilson, 565 F.Supp. 1416, 1437 (S.D.N.Y.1983).

The request for pretrial disclosure of all alleged prior or subsequent similar act evidence that the Government intends to offer is denied. Gonzalez may seek a ruling on the admissibility of such evidence during the course of the trial.

Gonzalez seeks an order pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny directing the Government to produce all information favorable to the defendant and material either to guilt or innocence or punishment. The Government has responded that it fully recognizes its obligations under Brady and will make appropriate disclosure of Brady materials. Trial of this matter is now only two weeks off; the prosecution is therefore directed to turn over all previously undisclosed Brady material immediately. Should the Government have any question as to whether specific evidence constitutes Brady material, it may submit such evidence for in camera inspection.

With respect to Gonzalez’s request that the Government specify whether the “Orlando” referred to in six designated intercepted conversations is alleged to be Orlando Gonzalez, the Court accepts the Government’s statement that it recognizes its obligation to notify Gonzalez of 'any conversations to which he is alleged to have been a party. See Order of October 4,1984. To date, the Government has identified for defense counsel only one such conversation. If the remaining wiretap issue is resolved in favor of the Government and the Government seeks to introduce additional conversations at trial, the Court will at that time entertain objection from Gonzalez on the ground that the Government failed timely to advise him of its position that he was in fact a party to such conversations.

The Court reserves judgment pending further submissions on the question whether the period from November 19, 1984 through January 2, 1984 should be excluded from the speedy trial computation.

SO ORDERED.

      . Defendant Raul Cuevas has moved to suppress certain evidence seized during a search of the apartment where he was residing. The Court has advised Cuevas that the matter will be resolved at an evidentiary hearing held immediately before the commencement of trial.

      . Agent Dowd’s affidavit summarizes the conversation as follows:
      On March 23, 1984, at 5:55 P.M., RAMIREZ placed a telephone call to telephone no. (212) 929-6151 ... and spoke in Spanish with JOHN DOE, a/k/a "Orlando.” RAMIREZ asked where “Javier” was and was told he wasn't in. RAMIREZ then stated “28” and asked "Orlando” “how much." "Orlando" replied: "Listen, I don’t have that programmed. When he returns let him call you. What’s more we have to talk to you so that tomorrow you go to the unintelligible.”
      Dowd Aff. of April 19, 1984 at ¶ 49.

      . Gonzalez has not argued that joinder is impermissible under Rule 8, F.R.Crim.P.

      . Moreover, Gonzalez is not a subject of any of the remaining counts of the indictment. He is named in only one of the twenty-three counts, while another defendant, Cesar Ramirez, is the subject of twenty-one separate counts which charge that, in addition to participating in the cocaine conspiracy, he possessed with intent to distribute cocaine, managed a continuing criminal enterprise, committed various violations involving an awe-inspiring array of firearms, made false passport statements and corruptly influenced a grand jury witness. Severance from Ramirez is no longer an issue, however, because Ramirez has entered a plea of guilty.

      . In Franks, the Supreme Court held that where a defendant makes a substantial preliminary showing that the affidavit in support of a search warrant contained false statements that were made knowingly, intentionally, or with reckless disregard for the truth, and that those false statements were necessary to a finding of probable cause, the defendant is entitled to a hearing. 438 U.S. at 155-56, 98 S.Ct. at 2676-77. If, at the hearing, the defendant establishes by a preponderance of the evidence that the statements were false and that the remainder of the affidavit is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded. Id.