author: EDELSTEIN, District Judge:

text:
    FINKLE AND ROSS, a Partnership; Juston Enterprises, Inc. Employees’ Pension Plan; Joseph Neira; John Neira; Francisco Carvajal Navarez; Evan Levy and Carol Levy, Plaintiffs, v. A.G. BECKER PARIBAS, INC.; Mason Sexton and Michael Rose, Defendants. Louise MOCKRIDGE, Plaintiff, v. PRESCOTT, BALL & TURBAN, and Erhardt Schmidt, Defendants.
    Nos. 85 Civ. 1858 (DNE), 85 Civ. 2284 (DNE).
    United States District Court, S.D. New York.
    Dec. 2, 1985.

      Lippman & Lippman, New York City, for plaintiffs Finkle and Ross, a Partnership; Justin Enterprises, Inc. Employees’ Pension Plan; Joseph Neira; John Neira; Francisco Carvajal Navarez; Evan Levy and Carol Levy; Harvey J. Lippman, David M. Hashmall & John T. Cushing, of counsel.
    Bizar D’Alessandro & Shustak, New York City, for plaintiff Louise Mockridge; Gayle Sanders, of counsel.
    Brown, Wood, Ivey, Mitchell & Petty, New York City, for defendant A.G. Becker Paribas, Inc.; Henry F. Minnerop and Deborah H. Frati, of counsel.
    Gersten, Savage, Kaplowitz & Simensky, New York City, for defendant Mason Sexton; David O’Connor, of counsel.
    Gordon Hurwitz Butowsky Weitzen Shalov & Wein, New York City, for defendants Prescott, Ball & Turban and Erhardt Schmidt; Allan R. Freedman, of counsel.
   OPINION AND ORDER

EDELSTEIN, District Judge:

These civil actions allege violations of Section 10(b) of the Securities Exchange Act of 1934 (“1934 Act”), 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.-10b-5, promulgated thereunder. Plaintiffs in both actions also allege pendent state law claims for fraud and breach of fiduciary duty. Pursuant to Section 3 of the Federal Arbitration Act (“Arbitration Act”), 9 U.S.C. § 3, defendants in both actions have moved to compel arbitration of both the federal and state law claims. The court has consolidated these motions for the purpose of deciding common issues concerning the arbitrability of claims under the 1934 Act. The court finds that the federal and state law claims are arbitrable and that no other factors preclude arbitration in either instance. The motions are therefore granted.

FACTUAL BACKGROUND

A. Finkle and Ross v. A.G. Becker Paribas, Inc.

In March 1983, plaintiffs Finkle and Ross, a partnership; Juston Enterprises, Inc. Employees’ Pension Plan; Joseph Neira; John Neira; Francisco Carvajal Navarez; Evan Levy and Carol Levy (“Finkle and Ross”) engaged defendant Mason Sexton (“Sexton”) as their personal broker. Defendant Sexton was an employee of A.G. Becker Paribas, Inc. (“Becker”), a securities brokerage firm. By written agreement, plaintiffs authorized defendants to engage in discretionary trading in plaintiffs’ account. The agreement contained the following arbitration clause (“Becker Arbitration Clause”):

Any controversy between us arising out of, or relating to, any transaction for my account shall be settled by arbitration, in accordance with the rules, then obtaining, of either the National Association of Securities Dealers, Inc. or the Board of Arbitration of the New York Stock Exchange, as I may elect. If I do not make such election by registered mail addressed to you at your office within five (5) days after receipt of notification from you requesting such election, I authorize you to make such election on my behalf. Any arbitration hereunder shall be final, and judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction. By this agreement to arbitrate future controversies, I understand that I do not waive any rights I may have under the Federal securities laws for controversies arising under such laws.

Plaintiffs Finkle and Ross allege that defendants engaged in churning, the, “excessive and unsuitable trading for the purpose of generating commissions,”. Plaintiffs bring this action for violations of Section 10(b) of the 1934 Act, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5. Plaintiff’s further claim that defendants’ acts constitute common-law fraud and breach of fiduciary duty.

B. Mockridge v. Prescott, Ball & Turban

In 1967, plaintiff Louise Mockridge, at the encouragement of defendant Erhard Schmidt (“Schmidt”), opened an account at Clark Dodge & Company, where Schmidt was a registered representative. In 1968, Schmidt became a broker with Vanden Broeek Liber & Co. and thereafter asked Mockridge to transfer her securities account to this firm. Vanden Broeek Liber & Co. subsequently became Prescott, Ball & Turban (“Prescott”). Plaintiff’s contract with Schmidt and Prescott contained the following clause providing for arbitration of disputes arising out of the contract (“Prescott Arbitration Clause”):

Any controversy between you [Prescott] and the undersigned arising out of or relating to any transaction of this or any other contract or the breach thereof, shall be settled by arbitration____ Any arbitration hereunder shall be before at least three arbitrators and the award of the arbitrator or a majority of them shall be final, and judgment upon the award may be entered in any court, state or federal, having jurisdiction.

Defendant Prescott’s Memorandum of Law at 4.

Plaintiff Mockridge alleges that defendants engaged in a course of business which would operate as a fraud against any person. Plaintiff’s Memorandum in Opposition at 7-9. Thus, plaintiff brings this action for violation of Section 10(b) of the 1934 Act, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5, as well as for common-law fraud.

Defendants in both actions contend that these claims fall within the scope of the respective arbitration clause and therefore have moved to compel arbitration and stay their respective action.

DISCUSSION

A. The Arbitrability of Claims Under the 1934 Act

Pursuant to the Supreme Court’s decision in Dean Witter Reynolds, Inc. v. Byrd, — U.S. -, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), the state law claims raised in these actions are arbitrable. The question remains, however, whether the claims brought under the Securities Exchange Act of 1934 may be submitted to arbitration along with the state law claims. The first step in this analysis is to determine whether Congress has evinced an intention to override a parties’ agreement, that is, whether arbitration of a plaintiff’s claim under the 1934 Act is precluded by legislative exigencies. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, — U.S. -, 105 S.Ct. 3346, 3355, 87 L.Ed.2d 444 (1985).

In Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), the Supreme Court held that agreements to arbitrate claims arising under the Securities Act of 1933 (“1933 Act”) were void. The court’s determination was based on three interrelated provisions of the 1933 Act, sections 12(2), 22, and 14. Section 12(2) provides a “special right to recover for misrepresentation,” 346 U.S. at 434-35, 74 S.Ct. at 186-87, and section 22 provides for state and federal jurisdiction and nationwide service of process for suits brought according to that right. Section 14 voids any “stipulation ... binding any person acquiring any security to waive compliance with any provision” of the 1933 Act. While noting the strong policy in favor of arbitration embodied in the United States Arbitration Act, 9 U.S.C. § 1seq., (“the Arbitration Act”) the Court nevertheless held that because an agreement to arbitrate is a stipulation and because a provision of the 1933 Act grants a private right of action, agreements to arbitrate claims under the 1933 Act are invalid. Weighing heavily in the Court’s decision was its observation that the special right to recover for misrepresentation under section 12(2) is substantially different from the common-law action, id. at 431 n. 10, 74 S.Ct. at 184 n. 10, thus requiring the exercise of judicial direction to assure its effectiveness, id. at 436, 74 S.Ct. at 187.

Lower federal courts have extended Wilko, ruling that agreements to arbitrate claims under the 1934 Act are also void. E. g., DeLancie v. Birr, Wilson & Co., 648 F. 2d 1255 (9th Cir.1981); Greater Continental Corp. v. Schechter, 422 F.2d 1100 (2d Cir.1970). Recently, however, the basis for overriding the Arbitration Act by precluding the arbitration of claims under the 1934 Act has been subject to increasing criticism. See Dean Witter Reynolds, Inc. v. Byrd, 105 S.Ct. at 1244 (White, J., concurring); McMahon v. Shearson/American Express, Inc., 618 F.Supp. 384, 387-89 (S.D.N.Y.1985) (Opinion). This criticism parallels greater support for arbitration generally as a means of resolving disputes more simply and expeditiously than in court. See, e.g., Southland v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984); Moses H. Cone Memorial Hospital v. Mercury Constr. Co., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

In Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), the Supreme Court pointed out important differences in the 1934 and 1933 Acts and the effect those differences have on the applicability of Wilko to the 1934 Act. The Court noted that the 1934 Act contains no analogue to section 12(2) of the 1933 Act, which provided a special right of a private remedy to defrauded purchasers. Id. at 513, 94 S.Ct. at 2454. The Court contrasted the express right of action of the 1933 Act, which was determinative in the Wilko holding, with the implied right that the lower courts have shaped under the 1934 Act. Id. at 513-14, 94 S.Ct. at 2454-55. Finally, the Court compared the broad jurisdiction of the 1933 Act, provided for in section 77v, with the restriction of forums found in section 78aa of the 1934 Act. Id. at 514, 94 S.Ct. at 2454.

In Dean Witter Reynolds Inc. v. Byrd, — U.S. -, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), the Supreme Court reviewed the arguments raised in Scherk. 105 S.Ct. at 1240 n. 1. The Court declined to confront directly the issue of Wilko’s applicability to claims under the 1934 Act. However, by raising the issue, the Court demonstrated an intention, albeit cautiously, to foster a reexamination of the assumptions that underlie lower-court rulings on this matter.In his concurrence to Byrd, Justice White was more direct. Rejecting the mechanical transplantation of Wilko’s reasoning to the 1934 Act, the Justice reiterated the differences between the 1933 and 1934 Acts noted in Scherk. Justice White reasoned that because the right of action under section 10(b) and Rule 10b-5 was implied and not express, the proscription of section 78cc(a) against waiving any provisions of the Act was “literally inapplicable,” id. 105 S.Ct. at 1244, to section 10(b) claims. The concurrence also noted that “Wilko’s solicitude for the federal cause of action — the ‘special right’ established by Congress ... — is not necessarily appropriate where the cause of action is judicially implied and not so different from the common law action.” Id. In concluding, Justice White expressed doubt as to the validity of lower-court holdings that apply the Wilko reasoning to claims under the 1934 Act. Id.; see also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 105 S.Ct. at 3355.

Convinced by the reasoning in Justice White’s concurrence and by the recent decisions of the Supreme Court favoring arbitration, this court joins the growing ranks of district courts that have held that arbitration agreements are not void as to claims under the 1934 Act. See McMahon v. Shearson/American Express, Inc., 618 F.Supp. 384, 387-89 (S.D.N.Y.1985) (Opinion); Jarvis v. Dean Witter Reynolds, Inc., 614 F.Supp. 1146 (D.Vt.1985); Driscoll v. Smith Barney, Harris, Upham & Co., No. 625 F.Supp. 25 (S.D.Fla.1985); Raiford v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., No. C 83-685 A (N.D.Ga., May 16, 1985); Westwind Transportation, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 84-734-Civ-T-10 (M.D. Fla., Apr. 9, 1985). As Congress has not evinced an intent to preclude the arbitration of claims under the 1934 Act, the court holds that plaintiffs’ federal claims are arbitrable.

B. The Effect of the Non-Waiver Provision

Finkle and Ross further contend that, even if agreements to arbitrate claims arising under the 1934 Act are enforcible, the parties did not intend to arbitrate such disputes. Finkle and Ross claim that this intent is manifested by the inclusion of a provision that states that the parties do not waive any rights under federal securities law. This intent is claimed to override the mandatory terms of the arbitration clause. The court, therefore, must determine whether there is an effective agreement to arbitrate plaintiffs’ claims. See Mitsubishi Motors v. Soler Chrysler-Plymouth, 105 S.Ct. at 3354. In so doing, the court is to utilize:

[F]ederal substantive law of arbitration, applicable to any arbitration agreement within the coverage of the act____ The Arbitration Act establishes that as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay or a like defense to arbitration.

Moses H. Cone Memorial Hospital v. Mercury Constr. Co., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983). Thus, as with any contract, the parties intentions are controlling, but those intentions are generously construed as to issues of arbitration. Mitsubishi Motors Co. v. Soler Chrysler-Plymouth, 105 S.Ct. at 3354.

Through the non-waiver provision of the arbitration clause, the parties agreed that plaintiffs did not waive “any rights [they] may have [had] under the federal securities laws for controversies arising under such laws” Plaintiffs Finkle and Ross Memorandum of Law at 2. Finkle and Ross assert that enforcement of the agreement to arbitrate their 1934 Act claims would constitute a waiver of their right to assert such claims in federal court. Thus, the plaintiffs contend that the arbitration clause does not require the arbitration of federal claims.

Plaintiffs do not give up their substantive rights under the federal laws by being required to arbitrate their dispute. Mitsubishi Motors Co. v. Soler Chrysler-Plymouth, 105 S.Ct. at 3355. By agreeing to the Arbitration Clause, plaintiffs agreed to substitute one forum for another; they have “trade[d] the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.” Id. at 3355. Thus, the Arbitration Clause appears to encompass the instant federal claims.

Nevertheless, Finkle and Ross insist that the provision that precludes the waiving of plaintiffs’ rights of the arbitration clause “reveals the clear intention and expectation of the parties that plaintiffs reserved the option either to arbitrate or litigate claims against defendants which arise pursuant to the federal securities laws,” Plaintiffs Finkle and Ross’ Memorandum of Law at 8. However, this provision on its face does not expressly or impliedly reserve a right to litigate claims in federal court. Nor does Rule 15c2-2, 17 C.F.R. § 240.15e2-2, which requires the inclusion of such non-waiver provisions, support plaintiffs’ contention. The purpose of this rule is to ensure that public customers are not misled concerning the possible availability of recourse to the courts. Exchange Act Release No. 20397, reprinted in Fed.Sec.L.Rep. (CCH) H 83,-452, at 86,356 (Nov. 18, 1983). It must be assumed that if Congress intended the substantive protection afforded by a given statute to include protection against waiver of the right to a judicial forum, that intention will be deducible from the text or the legislative history. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 105 S.Ct. at 3355. The provision required by Rule 15c2-2 merely serves to guarantee that potential plaintiffs receive notice that an agreement to arbitrate does not override existing federal laws limiting the scope of possible litigation; it does not create, nor does it preserve rights to litigate in federal courts.

Neither the plain language, nor the legislative history of Rule 15c2-2 demonstrates that the non-waiver provisions function as an agreement by the parties, that the plaintiff reserved the option to litigate in federal courts. Rather, the provision puts potential plaintiffs on notice that they must investigate their specific rights; Rule 15c2-2 does not require that such a provision detail those rights. The non-waiver provision does not negate the effect of an arbitration clause, where such clause is valid. Thus, the non-waiver provision does not reserve the right to litigate claims arising under the 1934 Act in federal court.

C. Failure to Fulfill a Condition Precedent and Failure to Raise an Affirmative Defense as Bars to Arbitration

Plaintiffs Finkle and Ross raise two further issues that purportedly foreclose the arbitration of both the state and federal claims. Plaintiffs claim that (1) defendants have not fulfilled the conditions precedent to arbitration which were enumerated in the Arbitration Agreement, and (2) defendants have waived the defense of arbitration by not raising it as an affirmative defense in their answer.

Plaintiffs’ first argument is easily dismissed. It is well established that procedural issues such as the fulfilling of conditions precedent to arbitration are decided by the arbitrator. Ottley v. Sheepshead Nursing Home, 688 F.2d 888, 890 (2d Cir.1982); Corporate Printing Co. v. New York Typographical Union No. 6, 601 F.Supp. 323, (S.D.N.Y.1984), aff'd mem., 767 F.2d 907 (2d Cir.1985).

Plaintiffs Finkle and Ross’ second argument is also without merit. For a party to waive its right to arbitrate, it must actively participate in a lawsuit “in a manner inconsistent with the right to arbitrate such that there is prejudice to the other party.” Rush v. Oppenheimer & Co., 606 F.Supp. 300, 301 (S.D.N.Y.1985). In keeping with the policy that a waiver should not be easily inferred, mere delay will not justify a finding of waiver absent a showing of prejudice. Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir.1968). Prejudice has been found when (1) a party that seeks arbitration engages in extensive discovery that is not available in arbitration; (2) when the party seeking arbitration causes extensive expense and delay by litigating continuously in court before seeking arbitration; and (3) when a party has continued so far in the litigation that a chance to arbitrate after sensing an adverse decision would in effect give that party another chance in a second forum. Rush v. Oppenheimer & Co., 606 F.Supp. at 301.

In the instant case, plaintiffs filed their complaint on March 8, 1985. Defendants filed this motion on May 13. Discovery has not begun. Thus defendants have not actively engaged in the lawsuit and the only “prejudice” plaintiffs claim is the two-month delay. Such a delay is not of sufficiently serious nature to constitute prejudice as described in Oppenheimer and Carcich. Cf. Evans v. Syracuse City School Dist., 704 F.2d 44, 47 (2d Cir.1983) (prejudice resulted when defendant raised res judicata defense after two pre-trial conferences, six days before the pre-scheduled trial date, and two years and nine months after the time when the defense could have been properly raised). Having determined that defendants have not waived their right to arbitrate, the court finds it unnecessary for defendants to amend their complaint. It is well established that a defendant may raise the substance of affirmative defenses in pre-trial motions. 5 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure (Civil) 111278, at 344 (2d ed. 1985).

D. Arbitration Agreements as Contracts of Adhesion

Plaintiff Mockridge argues that the arbitration agreement operates as a contract of adhesion, and thus should not be enforced against the plaintiff. This argument, in this particular case, is insubstantial.

Contracts of adhesion arise when a standardized form of agreement, usually drafted by the party having superi- or bargaining power, is presented to a party, whose choice is either to accept or reject the contract without the opportunity to negotiate its terms. M/V American Queen v. San Diego Marine Construction Corp., 708 F.2d 1483, 1489 (9th Cir.1983). Here, the investor is faced with an industry wide practice of including Arbitration Clauses in standardized brokerage contracts. As the investor faces the possibility of being excluded from the securities market unless he accepts a contract with such an agreement to arbitrate, such clauses come within the adhesion doctrine. However, mere inequality in bargaining power does not render a contract unenforcible, Stanley A. Klopp, Inc. v. John Deere Co., 510 F.Supp. 807, 811 (E.D.Pa.1981), aff'd, 676 F.2d 688 (3d Cir.1982), nor are all standardized contracts unenforcible, see Waggoner v. Dallaire, 649 F.2d 1362, 1367 (9th Cir.1981); Siegelman v. Cunard White Star, 221 F.2d 189, 204-05 (2d Cir.1955) (Frank, J., dissenting); Bank of Indiana National Association v. Holyfield, 476 F.Supp. 104, 110 (S.D.Miss.1979); in re Lowell, 20 B.R. 464, 467 (Bankr.D.Mass.1982). As a consequence of current commercial realities, form forum clauses will control, absent a strong showing it should be set aside. See The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972). For such a contract or clause to be void, it must fall within judicially imposed limits of enforcement. It will not be enforced against the weaker party when it is: (1) not within the reasonable expectations of said party or (2) within the reasonable expectations of the party, but, when considered in its context, is unduly oppressive, unconscionable or against public policy. Katsoris, Arbitration of Public Securities Disputes, 53 Fordham L.Rev. 279, 307 (1985); see Waggoner v. Dallaire, 649 F.2d at 1367; Blalock Machinery v. Iowa Mfg. Co., 576 F.Supp. 774, 778-79 (N.D.Ga.1983).

Such pre-dispute arbitration agreements are not outside the reasonable expectations of the investor. Katsoris, supra, 53 Ford-ham L.Rev. at 307. Nor are they contrary to public policy, as indicated by the judicial and legislative presumption favoring the arbitration of such disputes. See Moses H. Cone Memorial Hospital v. Mercury Constr. Co., 460 U.S. at 24-25, 103 S.Ct. at 941-42; Williams v. E.F. Hutton & Co., 753 F.2d 117, 119 (D.C.Cir.1985).

The plaintiff makes no showing of unfairness, undue oppression or unconscionability arising as a result of the arbitration agreement. Such would be necessary to find the clause unenforcible. See Waggoner, 649 F.2d at 1367; Bank of Indiana, 476 F.Supp. at 111; A. Corbin, Contracts § 1376, at 20-22 (1962). The essence of such a showing is “that ‘... no decent, fairminded person would view the ensuing result without being possessed of a profound sense of injustice____Jump v. Manchester Data Sciences Corp., 424 F.Supp. 442, 444-45 (E.D.Mo.1976) (quoting 14 S. Williston, Williston on Contracts § 1632 (3d ed. W. Jaeger 1972)). Absent a specific showing of unfairness, undue oppression or unconscionability in the case at bar, this court will not refuse to give effect to an arbitration clause. In so doing, this court recognizes that, “[tjhere is certainly nothing inherently unfair about the arbitration clauses and they are therefore valid and enforcible.” Surman v. Merrill, Lynch, Pierce, Fenner, & Smith, 733 F.2d 59, 61 n. 1 (8th Cir.1984).

E. The Overreaching Effect of the Arbitration Clause

Finally, plaintiff Mockridge contends that defendant Prescott’s attempt to apply the Arbitration Clause is overreaching and therefore unenforcible. Plaintiff relies on Davis v. Chevy Chase Financial Ltd., which held that agreements to arbitrate are not binding on the parties as to matters they did not agree would be subject to that manner of dispute resolution. 667 F.2d 160, 165 (D.C.Cir.1981). Plaintiff argues that the application of an arbitration clause contained in an options agreement to other forms of securities transactions is beyond the anticipation of the parties, and thus the court should refuse to give it effect. However, the plain language of the agreement clearly contemplates its application to all disputes arising between the parties, and not merely those pertaining to the options agreement. As the Arbitration Clause is a contract, the court may not rewrite its plain language. Williams v. E.F. Hutton, 753 F.2d at 119; Davis, 667 F.2d at 167. Therefore, the court finds the arbitration clause enforcible as agreed to by plaintiff Mockridge.

CONCLUSION

The parties’ agreement to arbitrate includes plaintiffs’ state claims as well as their claims under the 1934 Act. Congress has not indicated an intent to override the parties’ agreement as to the claims under the 1934 Act. Therefore, all of plaintiffs’ claims are arbitrable. Defendants have not waived their right to raise this motion, and any procedural issues are for the arbitrator to decide. Absent a showing of unfairness, undue oppression or unconscionability, arbitration agreements are not unenforcible under the adhesion doctrine. Where the plain language of the arbitration clause contemplates its application to all contracts between the parties, the court will not rewrite the contract. Defendants’ motion to compel arbitration of the state and federal claims is therefore granted in both actions.

SO ORDERED.

      . Plaintiff Mockridge argues that she did not knowingly waive her right to a judicial forum and that Prescott failed to abide by an SEC release that according to Mockridge stresses “that customers should not be led to believe, either before or after the occurence of the dispute, that a predispute arbitration agreement constitutes a waiver of the right to a judicial forum, where such waiver would be void under the securities laws." Mockridge's Memorandum of Law at 18-19 (emphasis added). Based on this court’s decision regarding the arbitratbility of the federal claims, the waiver in this case “would [not] be void under the securities laws,” and would therefore not be contrary to the SEC release.

      . The non-waiver clause in Finkle and Ross provides that "By this agreement to arbitrate future controversies, I understand that I do not waive any rights I may have under the Federal securities laws for controversies arising under such laws.”


source: Caselaw Access Project

author: BRIEANT, District Judge.

license: Public Domain

text:
    MINDICH DEVELOPERS, INC., Plaintiff, v. Frederick J. HUNZIKER, Jr., Salvatore L. Caraccio, John L. Alfano, Patricia T. Levine, Patrick M. LoRusso, Myron Weinberg and the City of Rye, Defendants.
    No. 84 Civ. 5380 (CLB).
    United States District Court, S.D. New York.
    Dec. 2, 1985.
    Wayne Rubin, Rende Ryan & Downes, White Plains, N.Y., for plaintiff.
    Audrey Rogers, Siff & Newman, P.C., New York City, for defendants.
   MEMORANDUM AND ORDER

BRIEANT, District Judge.

In this civil rights action brought pursuant to 42 U.S.C. § 1983, plaintiff moves for partial summary judgment on the issue of liability only, against defendants, governing officials of the City of Rye, and the City itself. The motion is based on the theory that the plaintiffs are collaterally estopped as a matter of law by a judgment, described below, of the Supreme Court of the State of New York between the parties, from defeating liability in this case.

Because the Court concludes that defendants are collaterally estopped, both on the issue of whether they deprived plaintiff of its rights without due process of law, and on the further issue of whether they failed to act with such a degree of good faith as to be entitled to qualified immunity for such conduct, the Court grants the motion.

The Supreme Court of the United States, in an effort to stem the horrendous flow of civil rights litigation in the wake of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1960), established a new rule in its decision in Migra v. Warren City School District, Board of Education, et al., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). The rule of Migra essentially holds that by reason of the Constitution’s Full Faith and Credit Clause, as implemented by 28 U.S.C. § 1738, this Court must “give to a state court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra at 81, 104 S.Ct. at 896. In Migra the Supreme Court mentioned as inconsistent with its determination the prior decision of our Court of Appeals in Lombard v. Board of Education of the City of New York, 502 F.2d 631 (2d Cir.1974), cert. denied 420 U.S. 976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975). Recently, in Genova v. Town of Southampton, 776 F.2d 1560 (2d Cir.1985), a panel of our Court of Appeals, applied defensive issue preclusion to a prior Article 78 Proceeding between the parties in the New York court. The New York courts had held against the appellant on factual issues that were central to the constitutional claim he had brought in federal court. Our Court of Appeals accordingly affirmed the dismissal of the appellant’s § 1983 claim and held that: ......

“Under Migra, appellant may not relitigate these factual issues in a federal forum if New York law would bar him from doing so in a subsequent suit in state court. See also Allen v. McCurry, 449 U.S. 90 [101 S.Ct. 411, 66 L.Ed.2d 308] (1980).”

Applying the rule of Migra to a New York judgment, as we must in this case, this Court finds that New York uses a transactional test for resolving issues of res judicata and collateral estoppel, and regards all of those factual and legal issues arising out of the facts of the transaction sued on, which were raised or could have been raised, as merged in the final judgment of a court of record. All such issues are thereby precluded, regardless of the identity of the legal theory or theories relied on in the prior action, or the later action. O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 (1981).

We must now advert to the facts of this particular case, as were found in prior unreported state court litigation, affirmed by Memorandum Order in Mindich Developers, Inc. v. Hunziker, 105 A.D.2d 749, 481 N.Y.S.2d 402 (2d Dept.1984).

It is not seriously disputed for purposes of this motion that plaintiff owned a parcel of vacant property in the City of Rye. This parcel had frontage and a clear legal right of access onto a residential street known as Captain's Lane, and also on Rye Road, a more heavily traveled highway. Plaintiff purchased the property on August 6, 1982 intending to develop the parcel for single-family residence purposes. As such an owner of property, Mindich was entitled, upon compliance with all of the applicable state and local regulatory codes and procedures, to obtain a permit and approval for subdivision of the property and for construction of single-family residences thereon.

After an unsuccessful application for a variance to the Board of Appeals which was rejected on August 5, 1982, and which need not concern us, the plaintiff submitted fully conforming plans to the Building Department of the City of Rye on March 28, 1983. On April 4,1983 the Board of Architectual Review of the City of Rye, approved the plaintiff's plans. It was clear at all times thereafter that because the plans submitted were in compliance with the Rye City Code and had been approved by the Board of Architectural Review, the Building Inspector should have granted a building permit for a house. No approval on the part of defendants was required.

The record on appeal in the Supreme Court of the State of New York, Appellate Division, Second Department in Mindich Developers, Inc. v. Hunziker, et al., Westchester Co.Sup.Ct. Index No. 11988-83 was docketed in this action on September 27, 1985. All defendants herein were parties to that Article 78 Proceeding. The Hon. W. Denis Donovan, Justice of the Supreme Court, made the following findings of fact in that case, among others:

“Petitioner [Mindich Developers, Inc.] has met all requirements imposed by local laws including gaining approval of the latest building plans which are in total conformity with all zoning requirements and require no variances and which have been approved by the Architectural Review Board. Under such conditions the Building Inspector has little, if any, discretion but to do that which the law imposes on him, i.e., issue the permit. Under pressure from a highly vocal homeowners’ association in the area which had taken rather extreme steps to block the construction of this contemporary home ... the City Council [defendants Hunziker, et al.] has directed the building inspector not to issue a permit on spurious grounds of ‘traffic hazard’. Even assuming, without deciding, that the City Council has such power in the face of a lack of local ordinance prescribing the lead agency for a determination, the Council bad no factual basis for such a conclusion. It relied on a 1982 decision of its Planning Board when petitioner sought a permit for a different set of plans requiring variances. A reading of that decision denying the earlier application on several grounds only one of which was traffic safety considerations, fails entirely to indicate any facts or studies for that particular conclusion and seems then, as does the action of the Council now, to be a complete capitulation to the resistance of surrounding homeowners, a resistance based on fears of diminished property values (similarly entirely unfounded) and the aesthetic objections of a next door neighbor. Indeed, the demands of the neighbor and docile alternative proposed by the Council to face the proposed home and driveway on a different busier street at the mouth of an intersection at the end of a curve appears to this Court to present a greater hazard than the presently planned access onto the quieter straighter street now planned. The Court finds that respondent’s actions in this instance are arbitrary, capricious, overburdensome, confiscatory and not just denying petitioner of the right to reasonable use of his property, but a denial to him of the equal protection of the law.” [Matter in brackets added].

On appeal, the Appellate Division of the Supreme Court, which also has fact finding powers, held as follows:

“In a proceeding pursuant to CPLR article 78 to review a determination of the City Council of the City of Rye dated May 18, 1983, denying petitioner a building permit, the appeal is from a judgment of the Supreme Court, Westchester County (Donovan, J.) entered September 6, 1983, which granted the petition, annulled the determination, and directed the issuance of the building permit.
Judgment affirmed, with costs.
There is no indication in the record that any restrictions were placed by the Planning Commission of the City of Rye on the development of the subject lot. As the plans submitted by petitioner were in compliance with the Rye City Code and were approved by the board of architectural review, a building permit should have been issued.
Accordingly, the city council does not have the authority to prohibit the issuance of the permit.”

That the defendants, in acting as the state court found they did, were operating under color of state law so as to trigger the jurisdictional basis for § 1983 may not be the subject of a serious dispute. In light of the findings by Justice Donovan, not disturbed on appeal, that the defendants acted “under pressure from a highly vocal homeowners’ association in the area” and that the City Council had directed the Building Inspector not to issue a permit on “spurious grounds” which had “no factual basis,” no reasonable juror could make a finding that these defendants acted in good faith, and therefore no triable issue exists on that point.

In opposition to this motion and in support of a motion which defendants have also made for summary judgment in their favor, defendants now describe their action as a “strictly local dispute,” pointing out that Mindich could have had a building permit without hassle if it had caved in to the neighbors’ and officials’ pressure and agreed to place the driveway for the new house on Rye Road, instead of Captain’s Lane, as it had a right to do. This is not a valid analysis of the serious Constitutional issue presented here. The ownership of property, without the right to use it in a lawful manner upon compliance with all established rules, is no ownership at all. It is elemental that the right to be free from the deprivation of property without due process of law includes the right to be free from unlawful, coercive deprivation of the lawful use of that property, imposed by officials for an improper purpose. This is not a case of the sort commonly found where officials obstruct the use of property on a colorable pretense that they are exercising lawful police powers, or zoning or planning functions. Here, as the state courts have held, plaintiff had a clear right to the building permit with a driveway on Captain’s Lane, which would permit it to use its property for the only useful purpose for which it exists, namely, constructing a single-family residence. The willful violation shown rises to the level of a Constitutional violation which may be redressed under § 1983.

Furthermore, as the state court’s decisions recognize, the law was clearly established, and there was a factual finding that the defendants acted with an improper motive, namely to accede and give in to “pressure” of parties in the community opposed to Mindich. Accordingly, the qualified immunity available under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) is clearly negated here. Simply put, the state court found that this plaintiff was subject to a coercive abuse of the power of the City Council under color of state law, to direct the denial of a permit in order to force plaintiff to relocate the driveway of its proposed house from Captain’s Lane to Rye Road, something which the defendants had no right to do, as they well knew. This is not a situation of a technical violation, in a situation where local officials have the right to be wrong as to the extent of their power, or negligent in the way in which they exercise it. Rather, it is established in the state court record that the defendants acted with an invidious purpose to submit to “pressure” from members of the public to deny Mindich’s rights. This is just the sort of official conduct which the Ku Klux Klan Act was enacted to redress.

As a post-deprivation remedy, a plaintiff situated as Mindich was, may set aside defendants’ unlawful action by means of an Article 78 Proceeding in the New York State courts. In those proceedings, as actually occurred in this case, such a plaintiff will be afforded equitable relief if it can show that the refusal to grant the building permit was “arbitrary and capricious,” or, as here, ultra vires. New York CPLR § 7803. A state court, reviewing pursuant to Article 78, however, may not award money damages for a Constitutional violation such as occurred in this case. See Schwab v. Bower, 41 N.Y.2d 907, 394 N.Y.S.2d 616, 363 N.E.2d 341 (1977).

The existence of similar post-deprivation remedies in some instances will excuse a lack of due process “pre-deprivation.” Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); see also Eastway Construction Corp. v. City of New York, 762 F.2d 243, 250 (2d Cir.1985). As our Court of Appeals has made clear, however, the availability of such remedies in those instances, “does not impinge upon the rule that exhaustion of state remedies is not a prerequisite to a § 1983 suit. Patsy v. Board of Regents, 457 U.S. 496 [102 S.Ct. 2557, 73 L.Ed.2d 172] (1982).” Signet Construction Corp. v. Borg, 775 F.2d 486 (2d Cir.1985).

The issue of damages is not presently before this Court for determination. This Court is satisfied, however, that plaintiff did suffer some damages. Even nominal damages of $1.00 may be recovered for a Constitutional violation in a § 1983 case, and will carry with them reasonable legal fees. McCann v. Coughlin, 698 F.2d 112, 128 (2d Cir.1983). At the very least, plaintiff was damaged in the amount of the reasonable and actual expenses of the Article 78 Proceeding, necessary to vindicate its Constitutional right to use its property. Defendants point out that plaintiff was not forced to sell its property, and when it did so, it obtained a profit. The Court regards, at least tentatively, this subsequent sale at a profit as representing most likely the increased value of a building lot as a result of the lapse of time and improved economic conditions. Into this profit, therefore, must be merged the interest and carrying costs for the time period during which plaintiffs development of its property was delayed, and those items therefore may not be recovered as damages in this case under these peculiar facts, except to the extent, if any, that they exceed the profit.

Accordingly, it would appear that plaintiff may recover in this action merely nominal damages and the reasonable expenses associated with vindicating its rights in the Article 78 Proceeding.

Counsel for the parties are directed to meet and confer to ascertain whether, without conceding liability, it would be possible to stipulate the actual and reasonable amount of plaintiff’s damages in accordance with the foregoing discussion, and also the reasonable legal fees associated with this action, in order that a final judgment may be entered without a trial. If there is inability to agree on the foregoing amounts to be inserted in a final judgment, this Court will conduct a trial limited to the damage issues.

Plaintiff’s motion for partial summary judgment is granted, and defendant’s motion for summary judgment is denied. The Court declines to make the finding contemplated by Rule 54(b), F.R.Civ.P. at this time.

Counsel are directed to appear at Courtroom 31, United States Courthouse, 101 East Post Road, White Plains, New York 10601 on December 30, 1985, or earlier by agreement, at 9:00 A.M. for the purposes of a status report conference to advise whether a final judgment may entered upon stipulated damages, and if not, to select a date for the prompt trial of the damage issue.

So Ordered.

      . In Lombard the Court of Appeals declined to apply principles of claim preclusion in a federal question case to Constitutional claims not actually pleaded or tried in the prior state court litigation. Lombard at 636.

      . In fairness to their position, defendants do not argue that they had, or reasonably believed they had, the right to require relocation of the driveway to the less swanky street. To make this assertion would be to admit official stupidity of a sort not present in this generally well run city where substantial persons serve as city council members without salary. Instead, the argument seems to be that "the City Council was willing to issue the permit if plaintiff agreed to relocate the driveway” (Deft’s br. p. 11), and that a reasonable person could believe a traffic hazard existed. Justice Donovan's findings dispose of this latter contention. See text, supra at p. 1515.

      . A post-deprivation remedy is usually of little practical value when permits are being withheld from a developer-builder for an improper coercive purpose. To get relief in the state courts here required approximately sixteen months of litigation, including an essentially frivolous appeal. Most such building is done on the basis of building loan commitments with time deadlines, and requires coordinating the work schedules of subcontractors in the various trades. Any delay is deadly.

      . Although briefs of both parties discuss a prior application for a variance which was denied, this Court perceives no relevance in the facts concerning the variance. And, any legal efforts expended in connection therewith have no bearing on damages.


author: HERMAN, District Judge.

text:
    Robert E. VARNER, Plaintiff, v. Kathryn T. BARD, Jane O. Stover, and Katherine K. Kopp, Defendants.
    Civ. No. 84-1672.
    United States District Court, M.D. Pennsylvania.
    Dec. 3, 1985.
    Robert Varner pro se.
    Gordon A. Roe, Sol., York Co., and John D. Miller, Sol, Domestic Relations, York, Pa., for defendants.
   MEMORANDUM

HERMAN, District Judge.

Plaintiff Varner, proceeding pro se in this § 1983 action, challenges the constitutionality of the procedures by which his wages were attached to satisfy an outstanding child support order. After this court twice directed plaintiff to file amended complaints, we then addressed and denied in part defendant’s motion to dismiss and subsequent motion for judgment on the pleadings. The case is now before us on defendants’ motion for summary judgment.

Although plaintiff’s complaint is not a model of clarity, we held in our April 24, 1985 opinion in this matter that Varner may have alleged a valid claim under 42 U.S.C. § 1983 concerning his procedural due process rights. The gravaman of his complaint appears to be that the attachment order was not properly issued by a court, and that he received neither notice of the order nor an opportunity to have a hearing prior to the entry of the order. The material facts of this case concerning which there is no dispute are drawn from the depositions submitted by the parties in support of their motion and are set forth below.

I. FACTS

The history of this case begins in January, 1975, when the York County Court of Common Pleas entered its first support order against Robert Varner. Varner failed to make regular payments to the Domestic Relations Office, as required by the order, accumulating arrears of $19,072.36 by June, 1981. On June 25, 1981, the ongoing support order was modified at a support hearing before a Domestic Relations Office hearing officer by consent of the parties. From that date on, Varner was directed to pay $25 per week in child support, and $5 per week on account of the arrearages. Varner signed the June 25, 1981 support order, along with his former wife. The order was then stamped with the signature of James E. Buckingham, the York County judge in charge of support matters. Neither Varner nor his former wife appealed this support order.

Varner made payments pursuant to the June 25, 1981 order until September 5, 1981. After that date, the Domestic Relations Office received no further payments from Varner on his outstanding support obligation.

In January, 1982, the Domestic Relations Office sent Varner a year-end statement of his account along with a flier indicating that wage attachments would be issued after an arrearage of thirty days had accumulated. The year-end statement was returned to the Domestic Relations Office because the post office box to which it was addressed had been closed. The Office resent the statement and flier to Varner’s last known residence. This time it was not returned. Mr. Varner acknowledges the receipt of year-end statements, but does not remember if he received one for 1981 in particular.

On December 20, 1982, the Domestic Relations Office sent an order to Mr. Varner’s employer ordering the attachment of Varner’s wages in the amount of $30.20 per week; $25 on the support order, $5 on the arrears, and $.20 service charge. On the same day, the Office sent a copy of the attachment order to Mr. Varner himself. The order was signed by Judge Buckingham by means of a signature stamp affixed to the order by the Domestic Relations Office staff. This procedure of stamping Judge Buckingham’s signature to support and attachment orders was fully authorized by the Judge and pursuant to a long standing oral direction of the Judge.

On receipt of the notice of attachment, Varner took no action to challenge the court’s order, nor to obtain relief from the attachment, until the filing of this federal action in December, 1984.

IL DISCUSSION

A. The Attachment Order.

The first issue we must address in determining the constitutionality of the attachment of Varner’s wages is the validity of the attachment order itself. If the attachment order was not in fact issued by a court, as Varner alleges, then the attachment violates not only due process, but also the procedures outlined for attachments in the Pennsylvania Rules of Civil Procedure, Rule 1910.22(a).

All parties agree that Judge Buckingham’s signature was affixed to the order by the Domestic Relations Office using a rubber stamp. Judge Buckingham testified in his deposition that “I supplied the Domestic Relations Office with a stamp with my actual signature on it, which they use to sign orders for any wage attachments or any other ministerial order ... the office has the authority to use my stamp to commence wage attachment proceedings.” Buckingham Deposition at 8. These proceedings are initiated, according to Buckingham’s direction to the Domestic Relations Office, when support payments become over 30 days in arrears. Buckingham has directed that proceedings be initiated in all cases, with no exceptions or exemptions; the Office has absolutely no discretion over whose wages will be attached and whose will not be.

Although we have been pointed to no case or statutory authority that ratifies the arrangement worked out between Judge Buckingham and Domestic Relations, we believe that the procedures are legitimate and that the orders “signed” by Judge Buckingham are constitutionally and procedurally valid. It is within Judge Buckingham’s power as a judge to direct the Office to perform certain ministerial tasks, as long as those tasks are truly ministerial, and as long as there is explicit direction to the Office concerning their duties and the parameters of their authority. We hold that both of these conditions are present in this case. We therefore also hold that the attachment order is a valid court order.

B. Procedural Due Process.

In addition to attacking the validity of the attachment order itself, Varner alleges that he has not been afforded the process that is due him under the Fourteenth Amendment of the United States Constitution. Varner complains that his lack of prior notice and prior opportunity for a hearing render the attachment procedures, and hence the attachment itself, unconstitutional.

The United States Supreme Court has repeatedly held that due process is a flexible requirement, and that the contours of due process in a given situation depend on (1) “the private interest that will be affected by the official action”, (2) “the risk of an erroneous deprivation of such interest through the procedures used,” (3) “the probable value, if any, of additional or substitute procedural safeguards,” and (4) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 902-903, 47 L.Ed.2d 18 (1976).

The leading authority in this circuit on the due process requirements in an attachment or garnishment proceeding is Finberg v. Sullivan, 634 F.2d 50 (3d Cir.1980). In that case, plaintiff’s bank accounts containing only the proceeds from her social security retirement benefits check were attached to satisfy a default judgment. The money in these accounts was entirely exempt from attachment and garnishment by virtue of the Social Security Act, 42 U.S.C. § 407 (1976). The court in Finberg held that the Pennsylvania post-judgment garnishment procedures did not provide the due process of law required by the Fourteenth Amendment. The procedures afforded neither a prompt postseizure hearing at which plaintiff could assert exemptions, nor notice that exemptions may apply. Both of these elements were required by the circumstances of the case, the court ruled.

Although the Finberg court held that due process requires a prompt postseizure hearing (less than fifteen days after the seizure) and notice of possible exemptions in a post-judgment garnishment situation, we do not believe that these requirements automatically apply to attachment of wages to satisfy support orders. The Fin-berg court relied heavily on the provisional nature of the post-judgment garnishment and on the availability of a wide range of exemptions:

Sterling’s judgment represents only an adjudication of Mrs. Finberg's liability on a monetary debt, not a transfer to Sterling of title to any particular item of her property____ A debtor might still defeat that right with any of a number of defenses not adjudicated in the action on the merits, such as in the present case with a claim of exemption. Thus, the attachment remains a provisional measure, and the debtor retains a protectable interest in the use of her property during the pendency of the creditor’s action.

634 F.2d at 58. Because of the provisional nature of post-judgment garnishments and the potential applicability of exemptions, more procedural protections were warranted to protect the debtor’s interest in her property than were afforded by Pennsylvania garnishment procedures.

There are great differences between a support order and a judgment, however. As the Finberg court noted, a judgment is merely an adjudication of liability on a monetary debt A support order, while also creating a monetary debt, is the result of a more far reaching inquiry. A judgment, normally, is the result of a legal and factual determination that one party owes another a certain sum of money. The sum is arrived at by analyzing the facts surrounding a certain past transaction or occurrence, and typically involves no determination of the debtor’s assets or capacity to satisfy the debt. A support order, on the other hand, is a product of either an agreement of the parties, or a determination of the child’s needs and the parents’ ability to pay. Commonwealth, ex rel Mainzer v. Audi, 266 Pa.Super. 122, 403 A.2d 124 (1979). Because the court or Domestic Relations Office hearing officer considers the type and amount of the parent’s income and assets in determining the amount of support to be paid to the custodial parent, and because the income is assessed again before issuance of the attachment order, it is also highly unlikely that any exemptions or other defenses would apply to a subsequent attachment of wages.

Because of these differences between the typical post-judgment garnishment action and an action to attach wages to satisfy a support order, we decline to rule that the same type of notice and hearing are required to satisfy due process in both situations. Finberg is therefore not controlling in this case, and we must proceed with the four part balancing analysis of Mathews v. Eldridge, supra.

The first element of the four part analysis is the determination of what private interest is affected by the attachment of wages to satisfy a support order. It should be noted at the outset of this inquiry that the constitutionality of the support order itself is not in question, nor could it be. Varner consented to entry of that order in the amount of $30 per week. By consenting to the entry of the order, Varner acknowledged his legal duty to pay that sum of money, through the Domestic Relations Office, to his former wife for the support of his son. Given this legal duty, Varner’s only conceivable interest that is affected by the attachment is his interest in voluntarily paying the sum, rather than having it automatically withheld from his paycheck. While this interest at first blush seems insignificant, it must be acknowledged that automatic withholding may disrupt the way Varner organizes his finances, and it does wrest control of the withheld money from his hands. Even though Varner is under a duty to pay the withheld sums to his former wife, until he does so, absent the withholding, that money remains his own property.

Even though we do find a minimal property interest that is worth protecting, we do not find that Varner’s interest in subsistence is affected. Varner’s weekly income was considered before the support order was entered, and he was found to be able to pay $30 per week. Varner’s weekly income was again considered before issuance of the attachment order, and the amount directed to be withheld was again based on the amount Varner could afford to pay, given his then current wages. See, Pa.R.Civ.P. 1910.22(b).

The second element to be weighed in the balance is the risk of an erroneous deprivation of the affected interest. The only conceivable errors are that the wages might be attached when the defendant in the support matter was not in fact over 30 days in arrears, or that the employer might be ordered to withhold too large an amount. The second error is far more serious than the first, and is certainly a possibility. The risk of such an error is slim, however, given that the rules covering such attachments provide for computation of the amount to be withheld based on the “evidence of defendant’s wages, salary and commissions then in the record of the action,” and for a recalculation of the amount to be withheld based on an up-to-date report of the amount of defendant’s wages filed by the employer within 10 days after service of the attachment order. Pa.R. Civ.P. 1910.22(b) and (c).

The third element of the analysis is a determination of the probable value, if any, of additional or substitute procedural safeguards. The existing system already provides a certain amount of procedural checks and balances. First, before a wage attachment is ordered, the amount of wages to be withheld by the employer is computed on the basis of defendant’s weekly salary as evidenced in the Domestic Relations Office files. Second, after the order is issued, the employer files an up-to-date report of defendant’s wages and the court or Office again computes the amount of the attachment. Third, if a defendant wishes to dispute the attachment, or the amount thereof, he may file a preliminary objection pursuant to Pa.R.C.P. 3142, or he may move for a stay of proceedings pursuant to Rule 1910.24. Plaintiff seems to suggest that due process requires a hearing prior to issuance of the attachment order. While it is true that such a hearing would establish definitively whether defendant in the support action is in arrears and would also give a chance to evaluate, based on defendant’s own testimony, how much defendant could afford to pay, we believe that a full blown hearing would not significantly diminish any risk of error that exists. Domestic Relations and the court already have before them, prior to the issuance of the attachment order, evidence of defendant’s payment or non-payment of support and evidence of defendant’s wages. Further, in the case of an actual error, defendant, under the current system, can immediately apply for a stay and thereby protect his interests.

The final step in the four part balancing analysis is to evaluate “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.” Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903. The director of the York County Domestic. Relations Office testified at her deposition that the Domestic Relations Office initiates as many as 94 new involuntary wage attachments per month. Mandating that the Office or the court actually hold a hearing prior to or immediately after all 94 attachments would greatly increase the administrative burdens of the Office and quite likely would force the Office to reduce the number of attachments ordered. Such a reduction would greatly harm not only the governmental interest in making sure that defendants obey support orders, but would also harm the society’s interest in insuring that children of broken marriages are adequately cared for and do not become public charges. This interest in ensuring support for the children greatly overshadows the interest of defendants in automatically having a hearing before attachment of their wages, especially given the safeguards against error that are already in place. We therefore conclude that Varner’s due process right to an opportunity for a hearing has been adequately met by the provision for a post-attachment motion for a stay pursuant to Rule 1910.24.

The final issue that we must address is whether Varner was provided adequate notice of the wage attachment. We find that he was. Varner was handed a policies and procedures flier at his support hearing on June 25, 1981. This flier warned that defendant’s wages would be attached if there were an accumulation of arrearages of thirty days or more. The Domestic Relations Office also sent Varner a flier in January, 1982, warning him that his wages would be attached. Finally, in December, 1982, Varner was sent a copy of the attachment order. Given all of these notifications, we conclude that Varner had adequate notice of the impending attachment, and if he believed it to be erroneous, he could have objected to Domestic Relations. As it stands, Varner did not challenge the attachment until almost two years later in federal court.

Because we find, based on undisputed facts, that Varner was afforded proper notice and an opportunity to be heard in conformity with the fourteenth amendment of the constitution, we will grant defendants’ motion for summary judgment.


author: EDWARD WEINFELD, District Judge.

text:
    UNITED STATES of America, v. Gus KALEVAS and Thomas Davenport, Defendants.
    No. 85 Cr. 633 (EW).
    United States District Court, S.D. New York.
    Dec. 4, 1985.

      Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for U.S.; Martin L. Perschetz, Asst. U.S. Atty., of counsel.
    Clapp & Eisenberg, Newark, N.J., for defendant Gus Kalevas; Salvatore T. Alfano, of counsel.
    Roger Bennet Adler, New York City, for defendant Thomas Davenport.
   OPINION

EDWARD WEINFELD, District Judge.

The defendants, Gus Kalevas and Thomas Davenport, are named in a seven-count indictment charging them with obstructing and impeding a grand jury investigation, subornation of perjury, intimidation of witnesses, the making of false statements before a grand jury, and conspiracy to commit the aforementioned acts. The indictment alleges that Kalevas and Davenport conspired to obstruct a grand jury investigation of Kalevas’ activities in connection with an interstate prostitution business. Specifically, the indictment charges that Kalevas and Davenport, a lawyer specializing in criminal defense practice, procured and induced Albert Schlanger, Charles Leris and Russel Joseph, all of whom were associated with the affairs of the Roxy Burlesque Theatre, to testify falsely before the grand jury. In addition, the indictment alleges that Davenport violated 18 U.S.C. § 1512 by using intimidation and by threats, and engaging in misleading conduct to cause potential grand jury witnesses to evade subpoenas by the grand jury. The indictment further charges, in a separate count in which only Kalevas is named, that he violated 18 U.S.C. § 1623 by giving false testimony to the grand jury by submitting a document that misstated the income of the Roxy Burlesque Theatre for the week of June 4, 1984.

Defendant Davenport moves to dismiss the indictment and requests additional discovery, a bill of particulars, and severance from the trial of Kalevas. Kalevas moves to sever his trial from that of Davenport.

DISMISSAL OF THE INDICTMENT

Davenport moves to dismiss the indictment, or alternatively for an in camera inspection of the grand jury proceedings, on the grounds that the grand jury may not have been informed of the criminal activities of the grand jury witnesses; that the grand jury may have been improperly instructed on the applicable laws; and that if Schlanger, Leris and Joseph did not testify before the grand jury, the limitations on the use of hearsay evidence in grand jury proceedings were exceeded. Davenport has not presented the slightest evidential support for these conjectural claims. Given the absence of any factual support for the allegations of misconduct, there is no reason to disregard the presumption of regularity of grand jury proceedings by either dismissing the indictment or inspecting the minutes in camera. “Speculation and surmise as to what occurred before the grand jury is not a substitute for fact.” While counsel for Davenport stated during oral argument that his investigator “had been told” by counsel for Joseph that Joseph did not testify before the grand jury and that “there was a strong question” whether Schlanger had testified, Davenport has submitted no affidavit from Joseph or Schlanger to support the claim that they did not appear before the grand jury or any explanation for failure to submit one. If an inspection of grand jury minutes were to be granted on the paucity of “information and belief allegations” here submitted, in effect it would mandate the granting of such applications in almost every case — a result contrary to the long established policy in this circuit and upheld by the Supreme Court.

The Supreme Court, in Costello v. United States, made clear that an indictment, valid on its face, returned by a legally constituted and unbiased grand jury is all that is required by the Fifth Amendment. While courts have carved narrow exceptions to the Supreme Court’s holding in Costello, dismissal of the indictment is not warranted, whether or not Joseph appeared before the grand jury. “Presentation to a grand jury of hearsay or other evidence inadmissible at trial is not per se prohibited ... at least so long as the reliance upon it is not so extensive as to mislead the grand jury as to the strength of the evidence.” Similarly, the prosecution is under no obligation to present evidence of the backgrounds of witnesses appearing before the grand jury since impeachment evidence would not constitute substantial evidence negating other proof offered to establish probable cause that the defendant committed the crimes charged. Davenport’s motion to dismiss the indictment is denied.

Davenport also moves to dismiss count six of the indictment on two grounds. First, he alleges that count six, which charges him with violations of 18 U.S,C. § 1512, is “improperly pleaded” because it does not provide enough information to allow preparation of defenses and to protect against double jeopardy. Count six states, in its entirety:

The Grand Jury further charges:
In or about May, June, and July 1984, in the Southern District of New York and elsewhere, defendant THOMAS DAVENPORT, and others known to the Grand Jury, unlawfully, wilfully and knowingly did use intimidation and threaten other persons and attempt to do so, and engaged in misleading conduct towards other persons, with intent to cause and induce said persons to evade legal process summoning those persons to appear as witnesses in an official proceeding, to wit, a Grand Jury investigation in the United States District Court for the Southern District of New York. (Title 18, United States Code, Sections 1512 and 2.)

The foregoing sufficiently, although not in great detail, informs the defendant of the crime charged; it both parallels the language of section 1512 and sets forth an approximate time and place for the acts allegedly committed. Our Court of Appeals has stated on several occasions that “an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.” Here, in addition to the constitutionally sufficient indictment allegation, the government, by letter dated October 10, 1985, has provided the defendants with the names of the alleged victims of the intimidation and with more specific dates.

Second, in arguing for dismissal of count six Davenport raises several constitutional challenges to 18 U.S.C. § 1512, which is part of the Victim and Witness Protection Act of 1982. Davenport argues that count six is constitutionally defective because 18 U.S.C. § 1512(c) shifts the burden of proof from the government to the defendant. Section 1512(c) provides an affirmative defense to a defendant “that the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully,” as to which the defendant has the burden of proof by a fair preponderance of the evidence. Davenport asserts that section 1512(c) violates the Supreme Court’s decision in Mullaney v. Wilbur striking down a Maine statute that did not require the prosecution to prove every element of the offense charged beyond a reasonable doubt.

In Patterson v. New York, decided two years after Mullaney, the Supreme Court upheld New York’s murder statute, which provides an affirmative defense of “extreme emotional disturbance” which the defendant must prove by a preponderance of the evidence. The Court made clear that neither Mullaney nor the Constitution prohibits a legislature from requiring a defendant to prove an affirmative defense by a preponderance of the evidence. The Court reaffirmed that the Due Process Clause requires that the prosecution prove each and every element of the crime charged beyond a reasonable doubt, but held that it need not negate by such a standard the non-existence of affirmative mitigating defenses that may be raised.

The indictment, based upon the statute, sets forth the elements of the offense — the knowing use of intimidation or physical force, threats, or misleading conduct, with intent to cause or induce any person to evade legal process — which the prosecution must prove beyond a reasonable doubt. The elements of the affirmative defense, the lawful nature of the conduct and the intent to encourage, induce, or cause truthful testimony, are independent facts, proof of which would be sufficient to avoid criminal liability. Section 1512(c) does not impermissibly shift the burden of proof to a defendant. The government, to prevail, and despite evidence to sustain the prof-erred defense, must upon the entire case prove the essential ingredients of the crime charged before it may obtain a conviction; thus section 1512(c) meets the demands of the Due Process Clause.

Davenport also alleges that section 1512 is constitutionally deficient because there is no mens rea requirement. The argument was rejected by this Court in United States v. Wilson after examining cases challenging similar criminal statutes. There the Court held that a conviction under section 1512 requires a showing that a person intimidated, threatened, or misled another “ ‘with intent to’ (1) withhold testimony or other matter from an official proceeding, or (2) cause them to evade legal process or absent themselves from an official proceeding.” None of the arguments raised by Davenport persuade the Court that its pri- or holding was erroneous.

Davenport’s final constitutional challenge to section 1512 is that the statute is void for vagueness because it fails to give sufficient notice as to what constitutes “intimidation” or “misleading conduct” and because subsection (d) provides that official proceedings need not be pending at the time the offense occurs. In United States v. Wilson, this Court held that the statute is not unconstitutional, stating, “[wjhether the statements made and the acts engaged in amount to ‘true threats’ is a question of fact for the jury.”

Prior to its amendment in 1982, section 1503 made it unlawful, among other things, to “intimidate” witnesses. Not only were convictions upheld under section 1503 on the basis of intimidation, but the statute withstood numerous constitutional challenges. The use of “intimidation” in section 1512 does not render the statute unconstitutionally vague. Similarly, Davenport’s allegation that section 1512’s use of “misleading conduct” is insufficient to place a defendant on notice as to what conduct is prohibited, ignores the detailed definition of “misleading conduct” set forth in 18 U.S.C. § 1515(3). In fact, the statute defines misleading conduct as knowing or intentional conduct, and does so in a manner which adequately apprises a person of the prohibited conduct.

Finally, Davenport argues that section 1512(d), which provides that “an official proceeding need not be pending or about to be instituted at the time of the offense,” eliminates the requirement that the victim of the tampering be under subpoena, thereby rendering the statute unconstitutionally vague. Courts have long held that the subject of tampering need not be under subpoena for a defendant to be liable for obstructing justice. Section 1512(d) makes explicit this judicial determination and does not render the statute void for vagueness. On the contrary, it is more precise on this subject than the prior statute.

For these reasons, Davenport’s motion to dismiss count six of the indictment is denied.

SEVERANCE

Davenport and Kalevas both move to be tried separately on the ground that their defenses are antagonistic. In particular, Davenport wishes to call Kalevas as an exculpatory witness, while at the same time presenting evidence tending to inculpate Kalevas. Counsel for Kalevas states that it is his intention to prove that it was Davenport, and not Kalevas, who engaged in the activities in the indictment. In addition, both defendants allege that Kalevas will be prejudiced if Davenport introduces Kalevas’ indictment in United States v. Castellano, in an attempt to explain why he met with Kalevas and the others. Davenport also asserts he will be prejudiced if the government elicits evidence relating to Kalevas’ alleged criminal activities.

An analysis of requests for severance must begin from the position that, absent a showing of substantial prejudice, defendants who are indicted jointly should be tried jointly. Here, this concept is strengthened by the fact that the indictment charges a conspiracy, in which the defendants seeking to be severed are alleged to have acted in concert. Even if each defendant intends to save himself at the expense of the other, that does not give rise, without more, to a showing adequate to overcome the presumption in favor of a joint trial. Severance for reasons of mutual antagonism may be granted only where “the jury, in order to believe the core of testimony offered on behalf of that defendant, must necessarily disbelieve the testimony offered on behalf of his codefendant.”

Judged by this standard, the defendants fail to sustain their claims of mutually antagonistic defenses that would foreclose a fair trial. Each makes vague allegations that he may prove the other is guilty. Davenport’s defense strategy, according to his counsel, will be that Kalevas “may well have conspired” with Schlanger, Joseph and Leris to obstruct justice. Upon its face this is sheer conjecture. Counsel for Kalevas asserts he intends to prove through the testimony of Russel Joseph that it was Davenport who conspired with the others.

The defendants have failed to demonstrate the requisite level of antagonism between their defenses. Neither defendant has shown how he will be prejudiced by his attempt to place the blame upon his co-defendant and thereby exonerate himself. Moreover, even if they succeed in presenting evidence to support their allegations, the jury need not disbelieve the core of Kalevas’ testimony in order to believe Davenport or vice versa; their defenses are not mutually exclusive. The jury, for example, could accept the government’s proof, finding that each defendant was a participant in the crimes charged against them, or it could believe that neither defendant committed the alleged acts. Stating it slightly differently, the jury could believe both defendants to the extent that it believes Kalevas that Davenport conspired to obstruct justice and suborn perjury and believes Davenport that Kalevas participated in the same activities, but believe neither defendant’s contention that he did not commit the alleged acts. Further, the jury could believe Davenport that he attended the meeting with Kalevas, Schlanger, Joseph and Leris for the purpose of becoming Kalevas’ counsel in United States v. Castellano, while believing that Davenport also conspired to obstruct justice and intimidated witnesses who were likely to appear before the grand jury.

As to Davenport’s claim that severance is justified because he has “a compelling need” to call Kalevas as an exculpatory witness, it suffices to point to the affidavit of Kalevas’ counsel wherein he states his intent “to urge the jury to believe that it was Davenport not Kalevas who engaged in the conspiracy charged in the indictment.” Davenport has failed to make any showing that Kalevas would offer exculpatory testimony on his behalf at a severed trial or that Kalevas would waive his Fifth Amendment privilege.

Both defendants fear prejudice if the jury learns of Kalevas’ other alleged criminal activities, particularly his indictment in United States v. Castellano. Counsel for Davenport has stated he plans to prove that the purpose for Davenport’s meeting with Kalevas was to persuade Kalevas to retain him as counsel in the Castellano matter, not to conspire to suborn perjury or obstruct justice. Davenport and Kalevas both contend that testimony concerning the Castellano indictment will prejudice Kalevas’ ability to obtain a fair trial.

The relevance of the other criminal charges pending against Kalevas to Davenport’s defense here is not immediately apparent. While Davenport may offer as a defense that he attended meetings solely for the purpose of speaking to Kalevas about representing him in a matter wherein Kalevas was named as a defendant, the specific details concerning’ the proposed retention do not add anything to his proposed defense. It would be sufficient to support his defense that the purpose of the meeting was to discuss his retention to represent Kalevas in a pending prosecution. If the jury should find that Davenport committed the acts alleged, his original purpose in associating himself with Kalevas would not shield him from liability.

Moreover, the specific details of the crimes charged may not be admissible under Fed.R.Evid. 403. Even if the other charges of criminal conduct alleged under the prior Kalevas indictment were shown to be somehow relevant to the charges in this case, the probative value of the precise nature of those unrelated charges in assisting Davenport’s defense would be subject to exclusion upon a claim of its prejudicial effect on Kalevas. Defendants’ claims, based on evidence which may be both irrelevant and inadmissible under Rule 403, are too speculative to support a motion for severance.

Kalevas' argument that severance should be granted because the government may impeach Davenport with statements Davenport made to the FBI regarding Kalevas is also too speculative to support a pre-trial motion for severance. Before the government can use Davenport’s statements to impeach his credibility, Davenport must testify at trial. In that event, the government would not necessarily be in a position to use the relatively few statements Davenport made regarding Kalevas as impeachment material. Any alleged admissions or statements of an inculpatory nature by Davenport could be confined to him. Finally, the evidence must meet the requirements of Rule 403, as well as the requirements for admitting hearsay evidence. As noted above, mere surmise and conjecture are insufficient grounds for severing the trial of two defendants charged with engaging in a conspiracy.

Davenport contends, as a further basis for severance, that he will be prejudiced if the government elicits evidence of Kalevas’ alleged criminal activities. This claim is no better founded than Davenport’s claim that Kalevas may be prejudiced if Davenport discusses Kalevas’ other criminal conduct. Davenport has failed to demonstrate either that Kalevas will testify, thereby subjecting himself to potentially harmful impeachment evidence, or, more importantly, that the jury will be unable to keep the evidence relevant to each defendant separate. “The Court has no doubt that a properly instructed jury will be able to compartmentalize the evidence against each defendant and render a fair verdict as to each.”

The final ground for severance is Davenport’s argument that count seven of the indictment is misjoined under Rule 8 or should be severed because it charges only Kalevas with making false statements before a grand jury. While only Kalevas is alleged to have violated 18 U.S.G. § 1623, all of the conduct alleged in the indictment pertains to an alleged scheme by Kalevas and Davenport to obstruct a single grand jury investigation. The indictment charges Davenport with conspiring with Kalevas to commit obstruction of justice, subornation of perjury and the making of false declarations before a grand jury. Both Davenport and Kalevas are charged in count two with obstruction of justice by creating a false document for presentation to the grand jury. Further, Davenport is named in six of the indictment’s seven counts. It is axiomatic that a defendant need not be charged in each count of the indictment where he participated in a series of acts constituting the offenses. Count seven is not improperly joined. Nor is Davenport entitled to severance “simply because certain evidence may be admissible only against [Kalevas].” Davenport has failed to demonstrate substantial prejudice as a result of the joinder of count seven.

Defendants’ motions for severance are denied. As our Court of Appeals has repeatedly said, the belief of each defendant that he would stand a better chance of acquittal if tried separately from his co-defendant is not a sufficient ground for severance.

DISCOVERY

By letter dated August 1, 1985, counsel for Davenport requested exculpatory material pursuant to Brady v. Maryland, including but not limited to the prior criminal history of Charles Leris, Albert Schlanger, Russel Joseph, Carol Joseph, Ann Markinson and any other witness the government reasonably expects to testify, as well as immunity orders and non-prosecution or limited prosecution agreements between the government and the aforementioned persons. Defendant Davenport now moves for discovery of Brady material having the “tendency to exculpate a defendant.” On this basis, Davenport seeks information from the government detailing the alleged illegal activities, or income derived from illegal activities, of Leris, Schlanger, Russel and Carol Joseph and Ann Markinson.

The purpose of the rule of Brady is to assure that a defendant gains access to material exculpatory evidence known to the government, not to provide a defendant with a general right of pre-trial discovery of all the evidence in the prosecution’s files. Our Court of Appeals has held, however, that Brady also imposes a duty on the prosecution to produce evidence which tends to impeach critical prosecution witnesses, upon whose testimony the government will rely on the central factual issues in controversy, by demonstrating their motive to testify favorably to the government. In that regard, the Court directs the government to produce to the defendants any evidence in its possession relating to the prior criminal history of Charles Leris, Albert Schlanger, Russel Joseph, Carol Joseph or Ann Markinson.

Davenport also seeks discovery of the grand jury subpoenas of the persons he allegedly intimidated in violation of 18 U.S.C. § 1512. Not only has Davenport failed to demonstrate that grand jury subpoenas constitute exculpatory evidence, but section 1512 makes clear that the victims of the alleged intimidation need not have been served with subpoenas for criminal liability to attach. Davenport is not entitled to his requested discovery. Moreover, to the extent Davenport seeks the subpoenas in an effort to discover who the government contends was intimidated or threatened by Davenport, this information has been supplied in the government’s October 10, 1985 letter to defense counsel.

BILL OF PARTICULARS

Defendant Davenport moves for the production of a bill of particulars setting forth the dates, times and places at which Davenport is alleged to have suborned perjury and the specific statements or conduct the government contends constitute threats or intimidation of prospective witnesses. Counts three, four and five of the indictment, relating to the alleged subornation of penury, state the names of those who committed perjury, when they testified before the grand jury and the nature of their testimony. The government, in the letter to defense counsel dated October 10, 1985, supplied the defendants with the names of the persons allegedly intimidated by Davenport and approximate dates for those acts. The indictment, as supplemented by the government, provides defendants with sufficient information to enable them to prepare their defenses and otherwise satisfies the demands of Wong Tai v. United States. The granting of the requested particulars would do little more than restrict the government’s proof at trial, which is not the purpose of a bill of particulars. Davenport’s motion for a bill of particulars is denied.

SO ORDERED.

      . 18 U.S.C. § 1622. Schlanger, Leris and Joseph pled guilty to charges of perjury and are not named as defendants in this action.

      . Kalevas’ motion to suppress evidence seized from his home and statements made to the government is moot. See Martin L. Perschetz Aff., para. 4; Transcript of September 24, 1985 Hearing, at 2.

      . See United States v. Wilson, 565 F.Supp. 1416, 1436 (S.D.N.Y.1983); see also United States v. Massino, 605 F.Supp. 1565, 1580 (S.D.N.Y.1985); United States v. Gordon, 493 F.Supp. 814, 816-17 (N.D.N.Y.1980), aff’d, 655 F.2d 478 (2d Cir.1981).

      . Wilson, 565 F.Supp. at 1436-37.

      . Transcript of September 24, 1985 Hearing, at 19-24.

      . See United States v. Costello, 119 F.Supp. 159, 160 (S.D.N.Y.1954); see also United States v. Marchisio, 344 F.2d 653, 670 (2d Cir.1965); United States v. Weber, 197 F.2d 237, 237-38 (2d Cir.), cert. denied, 344 U.S. 834, 73 S.Ct. 42, 97 L.Ed. 649 (1952); United States v. Wilson, 565 F.Supp. 1416, 1436 (S.D.N.Y.1983); United States v. Garsson, 291 F. 646 (S.D.N.Y.1923) (L. Hand, L).

      . See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 398-401, 79 S.Ct. 1237, 1240-42, 3 L.Ed.2d 1323 (1959); United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). Cf. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

      . 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

      . Id. at 363, 76 S.Ct. at 408.

      . See United States v. Hogan, 712 F.2d 757, 759 (2d Cir.1983).

      . United States v. Bein, 728 F.2d 107, 113 (2d Cir.), cert. denied, — U.S. -, 105 S.Ct. 135, 83 L.Ed.2d 75 (1984); see also United States v. Bari, 750 F.2d 1169, 1176-77 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985); United States v. Estepa, 471 F.2d 1132, 1136 (2d Cir.1972).

      . Cf. United States v. Ciambrone, 601 F.2d 616, 623 (2d Cir.1979); United States v. Medows, 540 F.Supp. 490, 497 (S.D.N.Y.1982).

      . United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 55, 46 L.Ed.2d 50 (1975). See also United States v. Bagaric, 706 F.2d 42, 61 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Mayo, 705 F.2d 62, 77-78 (2d Cir.1983); United States v. Leris, No. 84 Cr. 744, W.L. 85-400191, (S.D.N.Y. Jan. 4, 1985).

      . Cf. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927).

      . Pub.L. No. 97-291, § 4(a), 96 Stat. 1249-50 (1982).

      . 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

      . 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).

      . Id. at 210, 97 S.Ct. at 2327. See also United States v. Alvarez-Porras, 643 F.2d 54, 67 (2d Cir.), cert. denied, 454 U.S. 839, 102 S.Ct. 146, 70 L.Ed.2d 121 (1981).

      . 18 U.S.C. § 1512(a).

      . Patterson, 432 U.S. at 206-07, 97 S.Ct. at 2324-25.

      . 565 F.Supp. 1416 (S.D.N.Y.1983).

      . Id. at 1430-31.

      . Id. at 1431.

      . See, e.g., United States v. Cioffi, 493 F.2d 1111 (2d Cir.), cert. denied, 419 U.S. 917, 95 S.Ct. 195, 42 L.Ed.2d 155 (1974); Overton v. United States, 403 F.2d 444 (5th Cir.1968); see also United States v. Campanale, 518 F.2d 352 (9th Cir.1975); United States v. Jackson, 513 F.2d 456 (D.C.Cir.1975); United States v. Hoff a, 349 F.2d 20 (6th Cir.1965), aff’d, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

      . See Wilson, 565 F.Supp. at 1430 & n. 52.

      . 18 U.S.C. § 1515(3) provides:
      (3) the term "misleading conduct” means—
      (A) knowingly making a false statement;
      (B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement;
      (C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity;
      (D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or
      (E) knowingly using a trick, scheme, or device with intent to mislead.

      . See United States v. Solow, 138 F.Supp. 812, 814 (S.D.N.Y.1956); see abo United States v. Vesich, 724 F.2d 451, 455 (5th Cir.1984); United States v. Schaffner, 715 F.2d 1099, 1103 n. 3 (6th Cir.1983); United States v. Jackson, 513 F.2d 456, 459-60 (D.C.Cir.1975).

      . Cf. United States v. Scaife, 749 F.2d 338, 348 (6th Cir.1984) (affirming conviction under § 1512 despite fact that government did not prove defendant knew grand jury proceedings had been instituted); United States v. Wesley, 748 F.2d 962 (5th Cir.1984) (affirming conviction where defendant threatened potential witnesses), cert. denied, — U.S. -, 105 S.Ct. 2664, 86 L.Ed.2d 281 (1985).

      . See S.Rep.No. 97-532, 97th Cong., 2d Sess. 15, reprinted in 1982 U.S.Code Cong. & Ad.News 2515, 2521.

      . 84 Crim. 63 (KTD).

      . See United States v. Ventura, 724 F.2d 305, 312 (2d Cir.1983); United States v. Lyles, 593 F.2d 182, 190-91 (2d Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979); United States v. Borelli, 435 F.2d 500, 502 (2d Cir. 1970), cert. denied, 401 U.S. 946, 91 S.Ct. 963, 28 L.Ed.2d 229 (1971); United States v. Kahaner, 203 F.Supp. 78, 80-81 (S.D.N.Y.1962), aff’d, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 (1963).

      . See United States v. Lord, 565 F.2d 831, 839 (2d Cir.1977); United States v. Kahaner, 203 F.Supp. 78, 80-81 (S.D.N.Y.1962), aff’d, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 (1963). Cf. United States v. Carson, 702 F.2d 351, 366-67 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2457, 77 L.Ed.2d 1335 (1983).

      . See United States v. Papadakis, 572 F.Supp. 1518, 1521 (S.D.N.Y.1983); United States v. Potamitis, 564 F.Supp. 1484, 1487 (S.D.N.Y.1983), aff’d, 739 F.2d 784 (2d Cir.), cert. denied, — U.S. -, 105 S.Ct. 297, 83 L.Ed.2d 232 (1984).

      . United States v. Carpentier, 689 F.2d 21, 27-28 (2d Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 957 (1983). See also United States v. Potamitis, 739 F.2d 784, 790 (2d Cir.), cert. denied, — U.S. -, 105 S.Ct. 297, 83 L.Ed.2d 232 (1984).

      . Roger Bennet Adler Aff., at 11.

      . This situation is distinguishable from a case in which severance is compelled because one participant in a single illegal transaction claims to have an alibi while his co-defendant signs a confession, admits the transaction and attempts to exculpate himself on other grounds. See United States v. Papadakis, 572 F.Supp. 1518, 1521 n. 5 (S.D.N.Y.1983) (discussing United States v. Johnson, 478 F.2d 1129 (5th Cir.1973)).

      . Salvatore T. Alfano Aff., at 2.

      . See United States v. Marquez, 319 F.Supp. 1016, 1017-18 & n. 3 (S.D.N.Y.1970); see also United States v. Sliker, 751 F.2d 477, 496 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1772, 84 L.Ed.2d 832 (1985); United States v. Bari, 750 F.2d 1169, 1177 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985); United States v. Lyles, 593 F.2d 182, 192 (2d Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979); United States v. Taylor, 562 F.2d 1345, 1362 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977); United States v. Finkelstein, 526 F.2d 517, 523-24 (2d Cir.1975), cert. denied, 425 U.S. 960, 96 S.Ct. 1742, 48 L.Ed.2d 205 (1976).

      . See United States v. Torniero, 735 F.2d 725, 730 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 788, 83 L.Ed.2d 782 (1985); United States v. Levy, 731 F.2d 997, 1002 (2d Cir.1984); United States v. Toner, 728 F.2d 115, 121 (2d Cir.1984); United States v. Smith, 727 F.2d 214, 221 (2d Cir.1984); see also United States v. Kahaner, 203 F.Supp. 78, 83 (S.D.N.Y.1962), aff'd, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 (1963).

      . See United States v. Pilnick, 267 F.Supp. 791, 800-01 (S.D.N.Y.1967); United States v. Kahaner, 203 F.Supp. 78, 82 (S.D.N.Y.1962), aff’d, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 (1963).

      . United States v. Potamitis, 564 F.Supp. 1484, 1487 (S.D.N.Y.1983), aff’d, 739 F.2d 784 (2d Cir.), cert. denied, — U.S. -, 105 S.Ct. 297, 83 L.Ed.2d 232 (1984). See also United States v. Aloi, 511 F.2d 585, 598-99 (2d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975).

      . See Fed.R.Crim.P. 8(b); United. States v. Bagaric, 706 F.2d 42, 69 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Barton, 647 F.2d 224, 239-240 (2d Cir.), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981); United States v. Weisman, 624 F.2d 1118, 1129 (2d Cir.), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 91 (1980).

      . United States v. Panza, 750 F.2d 1141, 1149 (2d Cir.1984). See also United States v. Lyles, 593 F.2d 182, 190 (2d Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979).

      . See United States v. Carson, 702 F.2d 351, 366 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983); 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); United States v. Sotomayor, 592 F.2d 1219, 1228 (2d Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979); United States v. Stirling, 571 F.2d 708, 733 (2d Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978); United States v. Lord, 565 F.2d 831, 839 (2d Cir.1977).

      . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Roger Bennet Adler Aff., Exh. B.

      . See United States v. Shakur, 543 F.Supp. 1059, 1061 (S.D.N.Y.1982); see also United States v. LeRoy, 687 F.2d 610, 619 (2d Cir.1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983); United States v. Ruggiero, 472 F.2d 599, 604 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2772, 37 L.Ed.2d 398 (1973).

      . See United States v. Chitty, 760 F.2d 425, 428-29 (2d Cir.1985); see also Perkins v. LeFevre, 691 F.2d 616, 619-20 (2d Cir.1982); United States v. Seijo, 514 F.2d 1357, 1363-65 (2d Cir.1975).

      . 273 U.S. 77, 80-81, 47 S.Ct. 300, 301-02, 71 L.Ed. 545 (1927). See also United States v. Wilson, 565 F.Supp. 1416, 1438-39 (S.D.N.Y.1983).

      . See United States v. Wilson, 565 F.Supp. 1416, 1439 (S.D.N.Y.1983); United States v. Kahaner, 203 F.Supp. 78, 84 (S.D.N.Y.1962), aff'd, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 (1963); see also United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir.1974); United States v. Massino, 605 F.Supp. 1565, 1582 (S.D.N.Y.1985).