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UNITED STATES v. BISSELL

December 13, 1996

UNITED STATES, Plaintiff,
v.
NICHOLAS L. BISSELL, Jr., BARBARA J. BISSELL, Defendants.



The opinion of the court was delivered by: LECHNER

 Facts

 The Second Superseding Indictment

 A. Backgroung

 B. Count 1-11: Violation of the Public Trust

 1.Failure to Disclose Business Relationship With Adversary

 2. Extortion by Abuse of Office

 3.Conduct Which Compromised the Office of the Somerset County Prosecutor; Failure to At Honestly in the conduct of Nicholas Bissell's Office

 4. Mailings in Furtherance of Unlawful Behavior

 C. Counts 12-16: Defrauding An Investor in the Bedminster Station

 D. Count 17: Fraud on the Investors in the Somerset Station

 E. Count 18: Fraud on the Distributor

 F. Count 19: Financial Aid Fraud

 G. Count 20: Obstruction of Justice

 H. Count 21: Perjury During a Civil Proceeding

 I. Count 22: False Statements to Federal Agents

 J. Count 23: Conspiracy to Defraud the IRS

 K. Counts 24-27: Evasion of Personal Income Taxes

 L. Counts 28-30: Subscribing to False Returns

 M. Counts 31-33: Aiding and Assisting in the Filing of a False Return

 Discussion

 A. Summary of Pending Motions

 B. Motion to Dismiss Counts 1-11 of the Second Superseding Indictment

 1. Background

 2. Standards for Dismissal of an Indictment

 3. Failure to Provide Honest Services

 4. Retroactivity Argument

 C. Motion to Suppress Videotapes

 1. Background

 2. Testimony of Robert Krut

 3. Reasonable Expectation of Privacy

 4. Validity of Thornburg Consent

 D. Motion by Nicholas Bissell for Production of Unredacted Copy of LaRose 15 April 1995 Affidavit and Motion by the Government for a Protective Order

 E. Pretrial Disclosure of Brady and Giglio and Jencks Act Material Motion for Reciprocal Discovery

 1. Brady Material

 2. Giglio Material

 3. Jencks Act Material

 4. Motion for Reciprocal Discovery

 F. Severance Motions

 1. Motion to Sever the Trials of Nicholas and Barbara Bissell

 2. Motion by Barbara Bissell to Sever Counts 12-16 and 23-33 from the Remainder of the Second Superseding Indictment

 3. Motion by Nicholas Bissell to Sever Counts 1-11 and 20-21 From the Remainder of the Second Superseding Indictment

 G. Motions Relaing to Seized Currency

 1. Motion by Barbara Bissell for Return fo Seized Currency

 2. Motion by Nicholas Bissell for an In Limine Hearing to Determine Admissibility of Seized Currency

 H. Motion to Dismiss the Second Superseding Indictment Due to Misuse of Grand Jury

 I. Motion to Require Law Enforcement Officers to Preserve Rough Notes of Investigation and Relevant Matters

 J. Motion by Barbara Bissell to Bar Introduction of Co-Conspirator Statements Pursuant to Rule 801(d)(2)(e)

 K. Motion to Require the Government to Indicate Any Evidence it Intents to Introduce at Trial Pursuant to Rule 404(b)

 L. Motion by Barbara Bissell to Require the Government to Identify any Matters of Which it Will Seek to have the Court Take Judicial Notice and to Produce Charts or Summaries it Intends to Use at Trial

 M. Motion to Exclude or Redact Bruton Material

 Pre-trial Conclusion

 Sentencing

 A. Sentencing Guideline Calculation

 1. Background

 2. The Sentencing Hearing

 3. Sentencing Recommendations

 a. Convictions and Grouping Rules

 b. Group One -- Mail Fraud Involvingn the Bedminster Station (Counts 12 - 16)

 c. Group Two -- Tax Fraud (Counts 23 - 30)

 d. Multiple Count Adjustment

 B. Objections

 1. Government Objection

 2. Barbara Bissell's Objections

 a. Tax Loss Calculations

 b. Loss from the Bedminster Station Fraud

 c. Minor Role in Tax Evasion and Bedminster Station fraud

 d. Sophisticated Means

 e. Acceptance of Responsibility

 f. Remaining Objections

 C. The Motion for Downward Departure

 1. The Standard for Departure from the Guidelines

 2. Grounds For Downward Departure

 a. Section 5K2.0

 1. Extraordinary Family Responsibilities

 2. Reliance on Professionals

 3. Susceptibility to Abuse in Prison

 b. Coercion, Duress and Diminished Capacity

 c. Additional Grounds for Downward Departure

 d. Downward Departure Conclusion

 D. Substantial Assistance

 1. Section 5K1.1

 2. The 5K1.1 Analysis

 3. Barbara Bissell's Cooperation

 E. Barbara Bissell's Sentence

 F. Restitution

 A Grand Jury (the "Grand Jury") returned a thirty-three count indictment (the "Indictment") on 28 September 1995 against defendants Nicholas L. Bissell, Jr. ("Nicholas Bissell") and Barbara J. Bissell ("Barbara Bissell"), husband and wife (collectively, the "Defendants"). The Indictment charged perjury, 18 U.S.C. § 1623, obstruction of justice, 18 U.S.C. § 1503, mail fraud, 18 U.S.C. §§ 1341, 1346, false statements, 18 U.S.C. § 1001, conspiracy against the United States, 18 U.S.C. § 371, aiding and abetting, 18 U.S.C. § 2, obtaining a student loan by use of a false statement, 20 U.S.C. § 1097(a), attempting to evade Federal income taxes, 26 U.S.C. § 7201, wilfully subscribing to a false tax return, 26 U.S.C. § 7206(1) and wilfully assisting in the preparation of a false tax return. 26 U.S.C. § 7206(2).

 The Grand Jury filed a superseding indictment (the "Superseding Indictment") on 7 March 1996, and a second superseding indictment (the "Second Superseding Indictment") on 14 March 1996. The differences among these three indictments are indicated below. *fn1" This opinion addresses the several pretrial motions by Defendants, a motion by the Government, as well as the sentencing of Barbara Bissell. *fn2"

 Facts

 The Second Superseding Indictment

  A. Background

  The following facts were alleged in the Second Superseding Indictment and were established at trial. Nicholas Bissell was an attorney licensed to practice law in the State of New Jersey during all relevant times. Second Superseding Indictment, P 1(b), at 2. From 28 October 1982 to 28 September 1995, Nicholas Bissell served as the Prosecutor of Somerset County, New Jersey. Id. The Somerset County Prosecutor, who is appointed by the Governor, oversees the office of the Somerset County Prosecutor (the "Somerset County Prosecutor's Office"), "the county law enforcement agency whose primary purpose [is] to protect and to serve the residents of Somerset County through the honest and' fair enforcement of the criminal laws of the State of New Jersey." Id., P 1(a), at 1-2. Upon assuming the office of Somerset County Prosecutor, Nicholas Bissell swore to "'faithfully, justly, and impartially execute the duties of County Prosecutor.'" Id., P 1(b), at 2.

  From 1983 *fn3" to 1991, Nicholas Bissell "and a partner, who was an attorney, owned the Bedminster Station." *fn4" During that time, Nicholas Bissell maintained a one-half interest in this partnership (the "Bedminster Station Partnership"). Second Superseding Indictment, P 1(d), at 2-3. According to the Bedminster Station Partnership's tax returns, Barbara Bissell was also a partner. Id. Beginning in 1991, Budco, Inc. ("Budco"), d/b/a Bissell's, Inc. ("Bissell's, Inc."), owned the franchise to operate the Bedminster Station. Id., P 1(e), at 3. At times, Barbara Bissell served as the president of the corporation. Id., Nicholas Bissell was a partner in RB&W (the "RB&W Partnership"), which owned a building located at 21 North Bridge Street, in Somerville, New Jersey. Id., P 1(f), at 3.

  B. Counts 1-11: Violation of the Public Trust

  Counts One through Eleven of the Second Superseding Indictment charged Nicholas Bissell. These counts alleged violations of 18 U.S.C. §§ 1341 and 1346, which proscribe mail fraud, and 18 U.S.C. § 2, which provides one who aids and abets is liable as a principal. These counts alleged Nicholas Bissell "knowingly and wilfully did devise and intend to devise a scheme to defraud the citizens of the County of Somerset, the County of Somerset itself, and the State of New Jersey, of their right to the honest and faithful services of their chief law enforcement officer," from 18 November 1988 through 28 September 1995, the date the Indictment was filed, thereby violating 18 U.S.C. § 1341. Second Superseding Indictment, P 3, at 5. Section 1341 of Title 18 proscribes mailing, or causing the mailing of, any matter in furtherance of "any scheme or artifice to defraud. . . ." 18 U.S.C. § 1341. A "scheme or artifice to defraud," id., includes a "scheme or artifice to deprive another of the intangible right of honest services." 18 U.S.C. § 1346.

  Nicholas Bissell, as the Somerset County Prosecutor, had several duties arising under New Jersey law and under the New Jersey Rules of Professional Conduct. A county prosecutor in the State of New Jersey must "'use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws.'" Id. at P 2(a), at 3 (citing N.J.S.A. § 2A:158-1 and quoting N.J.S.A. § 2A:158-5). A county prosecutor must also "'devote his [or her] entire time to the duties of his [or her] office'" and cannot otherwise engage in the practice of law or any other employment. Id., P 2(b), at 3 (quoting N.J.S.A. § 2A:158-1.1). A county prosecutor must "refrain from willfully engaging in misfeasance and nonfeasance of his [or her] official duties," id., P 2(c), at 4 (citing N.J.S.A. § 2C:30-2) (official misconduct), must abide by the New Jersey Rules of Professional Conduct and must avoid conflicts of interest. Id., P 2(d), at 4.

  A local government officer in the State of New Jersey cannot have "'an interest in a ... business, transaction, or professional activity, which is in substantial conflict with the proper discharge of his [or her] duties in the public interest.'" Second Superseding Indictment, P 2(e) (1), at 4 (quoting N.J.S.A. § 40A:9-22.5(a)). A local government officer must "refrain from using or attempting to use 'his [or her] official position to secure unwarranted privileges or advantages for himself [or herself] or others.'" Id., P 2(e) (2), at 4 (quoting N.J.S.A. § 40A:9-22.5(c)). Such an officer cannot act in his or her official capacity "'in any matter where he [or she], a member of his [or her] immediate family, or a business organization in which he [or she] has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair his [or her] objectivity or independence of judgment.'" Id., P 2(e) (3), at 4 (quoting N.J.S.A. § 40A:9-22.5(d)). A local government officer must "'fully, truthfully and accurately disclose all material facts relating to his [or her] compliance with the Code of Ethics for Local Government Officers.'" Id., P 2(e) (6), at 5 (quoting N.J.S.A. § 40A:9-22.6). Such an officer may neither engage in conduct "'which might reasonably be expected to prejudice his [or her] independence of judgment in the exercise of his [or her] official duties,'" nor use his or her public office to secure financial gain for him or her self, a member of his or her immediate family "'or any business organization with which he [or she] is associated.'" Id., PP 2(e) (4), (5), at 5 (quoting N.J.S.A. § 40A:9-22.5(e), (g)).

  The Second Superseding Indictment alleged Nicholas Bissell failed to disclose a "material conflict of interest" that resulted from a business relationship between himself and an attorney who represented adversaries of the Somerset County Prosecutor's Office. Second Superseding Indictment, P 4(a), at 5-6. It was charged that Nicholas Bissell also abused his position as Somerset County Prosecutor to commit extortion in connection with the Bedminster and Somerset Stations. Id., P 4(b), at 6. The Government alleged Nicholas Bissell engaged in conduct "which might reasonably be expected to compromise his ability to faithfully, justly and impartially execute" his official duties, id., P 4(c), at 6, and failed "to act honestly" in connection with a Federal civil rights lawsuit (the "Federal Civil Action") that named him as a defendant. Id., P 4(d), at 6.

  1. Failure to Disclose Business Relationship With Adversary

  Nicholas Bissell created a conflict of interest by forming the RB&W Partnership, on 28 October 1982, with an attorney (his "Partner" or "Nicholas Bissell's Partner"). Nicholas Bissell's Partner represented clients in an adversarial capacity to the Somerset County Prosecutor's Office. Id. at P 5, at 6. In "September and October 1983," Nicholas Bissell formed the Bedminster Station Partnership with his Partner. Id., P 6, at 6. The Bedminster Station Partnership created another conflict of interest. Id., P 6, at 7. Nicholas Bissell "created and used a false document" that inaccurately indicated the Bedminster Station Partnership was formed before he became Somerset County Prosecutor; he engaged in additional sham transfers and continued to maintain control of, and interests in, the Bedminster Station and RB&W Partnerships. Id., PP 7-8, at 7

  2. Extortion by Abuse of Office

  An individual (the "Distributor Owner") owned the franchisor/gasoline distribution company (the "Distributor") which, in turn, owned the Somerset and Bedminster Stations. Second Superseding Indictment, P 10(a), at 7. From January 1988 through March 1988, the Distributor Owner received complaints from customers about the Somerset and Bedminster Stations. Thereafter, the Distributor Owner notified Nicholas Bissell the complaints could result in the termination of the stations' franchise agreements. Id., P 10(b), at 8. On 14 March 1988, Nicholas Bissell threatened to plant cocaine in the Distributor Owner's car and then have him arrested and prosecuted by the Somerset County Prosecutor's Office. "This threat was a factor, and continued to be a factor, in the Distributor Owner's business dealings with [Nicholas Bissell]." Id., P 10(c), at 8.

  3. Conduct Which Compromised the Office of the Somerset County Prosecutor: Failure to Act Honestly in the Conduct of Nicholas Bissell's Office

  4. Mailings in Furtherance of Unlawful Behavior

  Nicholas Bissell knowingly and wilfully mailed or directed eleven separate mailings, all in violation of 18 U.S.C. §§ 2, 1341 and 1346. Counts one, two, seven, nine and eleven charged the mailing of "Nicholas L. Bissell's Local Government Ethics Law, Financial Disclosure Statement, addressed to Department of Community Affairs, Trenton, New Jersey," on 3 October 1991, 28 April 1992, 4 May 1993, 28 April 1994 and 21 April 1995. Count three charged a mailing, on 26 October 1992, of Nicholas Bissell's "Answers to Plaintiff's First Set of Interrogatories" in the Federal Civil Action. Count six charged a mailing, on 15 January 1993, of Nicholas Bissell's "Second Request for Production of Documents" again in the Federal Civil Action. Count four charges a mailing, on 18 December 1992, of "Financial aid forms ... to 1301 Route 28, Somerville, New Jersey." Counts five, eight and ten charged the mailing of "Financial aid forms, ... to Catholic University, Washington, D.C.," on 24 December 1992, 3 June 1993 and 3 June 1994. Second Superseding Indictment, P 14, at 10-11. Each mailing formed the basis for one count in the Second Superseding Indictment for mail fraud, pursuant to 18 U.S.C. § 1341. *fn5" Counts one through eleven also charged criminal liability as a principal for aiding and abetting the commission of mail fraud. 18 U.S.C. § 2.

  C. Counts 12-16: Defrauding An Investor in the Bedminster Station

  Counts 12-16 of the Second Superseding Indictment charged Defendants mailed documents in connection with defrauding Thomas "Buddy" Thornburg ("Thornburg"), an investor in the Bedminster Station, thereby committing (and aiding and abetting) mail fraud. 18 U.S.C. §§ 2 and 1341. Barbara Bissell, the bookkeeper for the Bedminster Station, maintained checkbook and payroll records and signed partnership and corporate income tax returns. Second Superseding Indictment, P 2, at 12. Thornburg, the brother of an employee in the Office of the Somerset County Prosecutor, invested $ 100,000 in the Bedminster Station in June 1989. In return, Thornburg was to be an equal partner in the Bedminster Station Partnership and was employed as the manager of the Bedminster Station. Id., P 3, at 12.

  Counts 12-16 charged Defendants "knowingly and willfully devised a scheme and artifice to defraud [Thornburg] of money and property by means of false and fraudulent pretenses, representations and promises," from June 1989 to April 1995, "by diverting, embezzling and stealing money from the Bedminster Station." Second Superseding Indictment, PP 4-5, at 12. To further the scheme, Nicholas Bissell solicited $ 100,000 from Thornburg in June 1989, and on a later occasion, solicited an additional $ 23,000 from him. Id., PP 6-7, at 13. In addition, Nicholas Bissell falsely represented to Thornburg, on "a number of occasions" between January 1990 and January 1995 that the Bedminster Station was operating at a loss. Id., P 7, at 12.

  Barbara Bissell used funds from the Bedminster Station for personal expenses, including payments for 1988 Mercedes Benz, 1992 Acura Legend LS and 995 Jeep Grand Cherokee automobiles, *fn6" and a cellular telephone. She used a credit card held in the name of the Bedminster Station to pay other personal expenses. Thornburg was not told of any of these payments. Id., P 8, at 8.

  The Second Superseding Indictment also charged Defendants "routinely embezzled cash from the Bedminster Station" without informing Thornburg, including approximately $ 33,993 in 1994, $ 58,794 in 1993, $ 39,895 in 1992 and $ 13,800 in 1991, for a four-year total of $ 146,482. *fn7" Second Superseding Indictment, P 9, at 13.

  Count twelve charged Defendants mailed payments, beginning at $ 588 per month, for a 1988 Mercedes Benz automobile leased to Nicholas Bissell. Such payments, made by Bissell's, Inc., were mailed from approximately 2 January 1990 o 20 June 1991 and 25 August 1991 to 20 April 1992. *fn8" Second Superseding Indictment, 11, at 14. Count thirteen charged Defendants mailed monthly payments of approximately $ 600, for a 1992 Acura Legend and a 1995 Jeep Grand Cherokee. These payments, made by Bissell's, Inc., were mailed from approximately 31 July 1992 to 25 August 1994 and 25 October 1994 to 15 March 1995. *fn9" Id.

  Count fourteen charged Defendants mailed a Federal corporate income tax return for Budco to the Internal Revenue Service ("IRS") in Holtsville, New York, from a United States Post Office in Skillman, New Jersey, on 13 September 1993. Id., Count fifteen charged Defendants mailed monthly payments for a cellular telephone registered in the name of Nicholas Bissell. Such payments, made by Bissell's, Inc., were mailed from approximately 27 December 1991 to 25 November 1993. Id. Count sixteen charged that from approximately 2 February 1991 to 31 December 1991, Defendants mailed eight payments by Bissell's, Inc. to American Express. Id., P 11. Each of the mailings forms the basis for one count of mail fraud. 18 U.S.C. § 1341.

  D. Count 17: Fraud on the Investors in the Somerset Station

  Count 17 of the Second Superseding Indictment charged Nicholas Bissell mailed documents in connection with defrauding Richard Thornburg ("Richard Thornburg") and Robert Lang ("Lang"), thereby committing (and aiding and abetting) mail fraud. 18 U.S.C. §§ 2 and 1341. Richard Thornburg and Lang were both employees of the Somerset County Prosecutors Office and investors in the Somerset Station. Second Superseding Indictment, PP 2-3, at 15. Lang invested $ 20,000 in the Somerset Station in 1984; at that time, Nicholas Bissell "was managing the finances of the Somerset Station on behalf of himself and his father." Id., PP 2, 4, at 15. Count 17 also charged Nicholas Bissell "knowingly and willfully devised a scheme and artifice to defraud [Richard Thornburg and Lang] of money and property by means of false and fraudulent pretenses, representations and promises," from October 1984 to June 1993, *fn10" by "diverting, embezzling and stealing money from [Richard Thornburg and Lang]." Id., PP 5-6, at 15. To further the scheme to defraud Lang and Richard Thornburg, Nicholas Bissell solicited $ 20,000 from Lang and $ 25,000 from Richard Thornburg. Id., P 7, at 16. In addition, Nicholas Bissell falsely represented to Richard Thornburg and Lang, between October 1984 and July 1988, *fn11" that the Somerset Station was operating at a loss. Id., P 8, at 16. Based upon those representations, Thornburg and Lang invested additional funds in the Somerset Station. Id. Notwithstanding these representations to Lang and Richard Thornburg concerning the financial condition of the Somerset Station, Nicholas Bissell represented to prospective buyers, from October 1984 to July 1988, that the Somerset Station had a positive net income of $ 27,483 in 1984, $ 52,085 in 1985 and $ 60,397 in 1986. Id., P 9, at 16. To further the scheme to defraud Richard Thornburg and Lang, Nicholas Bissell also paid personal expenses with funds from the Somerset Station, including payments for a 1988 Mercedes Benz automobile, without their knowledge or consent. *fn12" Id., P 10, at 16.

  The Second Superseding Indictment also charged Nicholas Bissell "represented ... that the Somerset Station was operated such that if there were any profits or losses from its sale, those profits or losses would be divided equally among [Richard Thornburg and Lang] and [Nicholas Bissell] and his father." Id., P 11, at 16. The Somerset Station was sold at Nicholas Bissell's direction in July 1988; the buyers gave the sellers a note (the "Note"), the terms of which included monthly payments for five years. Id., P 12, at 16-17. Richard Thornburg and Lang received payments pursuant to the Note but the Note was accelerated between 15 and 22 September 1992, and a lump sum payment of $ 12,923 was paid to Nicholas Bissell's father; Richard Thornburg and Lang, who were unaware of the lump sum payment pursuant to the Note, did not receive any of the proceeds of this payment. Id., PP 12-13, at 17.

  To further the scheme to defraud Richard Thornburg and Lang, Nicholas Bissell knowingly and wilfully mailed or caused the mailing of a check for $ 12,923.87 to his father in Florida, thereby violating 18 U.S.C. §§ 2 and 1341. Id., P 14, at 17.

  E. Count 18: Fraud on the Distributor

  Count 18 of the Second Superseding Indictment charged Nicholas Bissell submitted false coupons and photocopies of business records to the Distributor that overstated the gross sales of the Bedminster Station. This was done in order to receive a rebate for which the Bedminster Station was not entitled, in violation of 18 U.S.C. § 1341. Second Superseding Indictment, PP 1-8, at 18-19. The scheme to defraud the Distributor took place from September 1992 *fn13" to December 1993, id., P 3, at 18; the relevant mailing allegedly took place on 1 November 1993. Id., P 8, at 19. As part of the scheme to defraud the Distributor, Nicholas Bissell submitted to the Distributor, in October 1992, *fn14" false coupons to overstate sales by the Bedminster Station in September 1992. Id., P 5, at 18. Nicholas Bissell submitted to the Distributor, in December 1992, false coupons overstating sales by the Bedminster Station, in November 1992. *fn15" Id., P 6, at 18-19. Nicholas Bissell submitted to the Distributor in November 1993, false coupons overstating sales by the Bedminster Station in October 1993. *fn16" Id., P 7, at 19. To further the scheme to defraud tile Distributor, Nicholas Bissell knowingly and wilfully mailed or caused the mailing of photocopies of business records of the Bedminster Station to the Distributor, on 1 November 1992. *fn17" Id., P 8, at 19.

  F. Count 19: Financial Aid Fraud

  G. Count 20: Obstruction of Justice

  Count 20 of the Second Superseding Indictment charged Nicholas Bissell destroyed a police report related to the Federal Civil Action in which he was a defendant. A Federal complaint was filed on 8 May 1992 in the District of New Jersey, alleging civil rights violations in connection with the May 1990 arrest of James J. Giuffre ("Giuffre") on narcotics charges. Second Superseding Indictment, P 2, at 22. Giuffre alleged Nicholas Bissell and others denied him his Sixth Amendment right to counsel and coerced him into forfeiting two parcels of land.

  It was charged that in July 1992, a Warren Township Police Officer produced a handwritten police report (the "Police Report") that contained references to Giuffre's arrest, including Giuffre's requests for counsel. Id., PP 3-4, at 22. The Police Report was forwarded to Nicholas Bissell, who ordered it rewritten to exclude the references to requests by Giuffre for counsel. The Warren Township Police Officer subsequently prepared a different, typewritten report on 27 July 1992. Id., PP 5-6, at 22-23. The Second Superseding Indictment also charged Nicholas Bissell failed to provide a copy of the Police Report or to disclose its existence during pretrial discovery, between 19 June 1992 and 15 January 1993, *fn18" in the Federal Civil Action. Nicholas Bissell was charged with violating 18.U.S.C. §§ 2 and 1503, which proscribe aiding and abetting and obstruction of justice for acts occurring between 8 May 1992 and 28 September 1995. Id., PP 7-8, at 23.

  H. Count 21: Perjury During the Federal Civil Action

  Count 21 of the Second Superseding Indictment, which charged Nicholas Bissell, also concerned the Federal Civil Action. Count 21 charged that, when Giuffre forfeited two parcels of land to the Somerset County Prosecutor's Office, those parcels had a combined assessed value of approximately $ 111,900. In the Federal Civil Action, Giuffre alleged these parcels of land were resold below fair market value to buyers with connections to the Office of the Somerset County Prosecutor. Second Superseding Indictment, P 2, at 24. Nicholas Bissell appeared at a deposition on 23 April 1993 as a witness under oath in the Federal Civil Action. At that time, Nicholas Bissell stated he had relied upon a valid appraisal that Giuffre's forfeited property "wasn't worth all that much money." Id., P 4, at 25. Nicholas Bissell did not, however, obtain a copy of such an appraisal until after Giuffre filed the Federal Civil Action. Id., PP 3-5, at 24-26. Accordingly, Bissell's 23 April 1993 testimony was charged to be, and was in fact, false, in violation of 18 U.S.C. § 1623. Id., PP 5, at 26.

  I. Count 22: False Statements to Federal Agents

  Count 22 of the Second Superseding Indictment charged Nicholas Bissell. Federal Agents (the "Federal Agents") searched the home of Defendants on 19 April 1995, in connection with an investigation leading to the Indictment. Nicholas Bissell was present during that search and "in excess of $ 9,000 in cash was discovered in ... the home." Second Superseding Indictment, PP 2-3, at 27. Thereafter, Nicholas Bissell demanded to meet with Federal authorities; meetings took place on 19, 21 and 26 April 1995. At the outset of each of these meetings, Nicholas Bissell was informed he was the target of a grand jury investigation. Nevertheless, he waived his right to counsel and signed an appropriate waiver. Id., PP 5-6, at 27.

  The Second Superseding Indictment charged Nicholas Bissell stated during each of these meetings that the Bedminster Station had not been profitable since he purchased it, denied taking cash from the Bedminster Station and stated the Bedminster Station owed him money. "These statements were designed to mislead and impair a Federal investigation...." Id., P 7, at 28. At the time he made these statements, Nicholas Bissell was aware that he had taken cash from the Bedminster Station. Accordingly, Nicholas Bissell was charged with violating 18 U.S.C. § 1001.

  J. Count 23: Conspiracy to Defraud the IRS

  Count 23 of the Second Superseding Indictment charged that, from 1 January 1991 to 28 September 1995, Defendants conspired to evade payment of Federal income taxes. To that end, they diverted cash from, and issued checks drawn on, the business account of the Bedminster Station, for personal expenses. Second Superseding Indictment, PP 2-4, at 29. Defendants failed to report approximately $ 146,482 *fn19" of income and failed to disclose accurate amounts of income or loss to the accountant who prepared income tax returns for the Bedminster Station, for the 1991-93 tax years. Id., P 5, at 29. As part of the conspiracy, Defendants failed to dislose personal income to the accountant who prepared their personal Federal income tax returns for the 1991-93 tax years. Id., P 6, at 30.

  As part of the conspiracy to defraud the IRS, Defendants "did not disclose their true ownership interests in the Bedminster Station to their accountant" and thereby wrongfully obtained the benefit of tax losses during the 1991-92 tax years. Second Superseding Indictment, P 7, at 30. Defendants were also charged with paying employees of the Bedminster Station in cash, "off the books," without accurate payroll records and without remitting the appropriate amount of income taxes for work these employees performed. Id., P 8, at 30. "It was further a part of the conspiracy that [Defendants], by engaging in the activities described [above], thereby prevented the proper ascertainment and computation by the [IRS] of the amount of tax due and owing" on personal *fn20" tax returns for the 1991-94 tax years, and on business tax returns for the 1991-93 tax years. Id., PP 9-10, at 30-31. Defendants were also charged with diverting cash from the Bedminster Station through February 1995 as part of the conspiracy to defraud the IRS and of taking steps to conceal the existence of this conspiracy. The Second Superseding Indictment charged seven overt acts, each the filing of a Federal income tax return with the IRS, as part of the conspiracy. Two additional overt acts charged concern the taking of cash from the Bedminster Station's cash register.

  K. Counts 24-27: Evasion of Personal Income Taxes

  Counts 24 through 27 of the Second Superseding Indictment charged Defendants evaded Federal personal income taxes for the tax years 1991-94, in violation of 26 U.S.C. § 7201. Second Superseding Indictment, PP 1-3, at 32-33. Defendants failed to report $ 13,800 in diverted income received in 1991, $ 39,895 received in 1992, $ 58,794 received in 1993 and $ 33,993 received in 1994, for a total of $ 146,482 in personal unreported income. *fn21" Id., P 2, at 33.

  Counts 28 through 30 of the Second Superseding Indictment charged Barbara Bissell subscribed to three Federal income tax returns under penalty of perjury "which she did not believe to be true and correct as to every material matter." Second Superseding Indictment, P 2, at 35. Barbara Bissell failed to report $ 202,539 in gross receipts from the Bedminster Station, "failed to disclose the true ownership interest of the respective principals, and failed to provide an accurate statement of profit or loss incurred in the tax year," in violation of 26 U.S.C. § 7206(1) Id., PP 3-4, at 35-36.

  Count 28 concerned a 1991 Form 1065 Bedminster Station Partnership return, which Barbara Bissell signed on 8 April 1992. *fn22" Count 29 concerned a 1992 Form 1120S Budco, Inc. corporate return, which Barbara Bissell signed on 13 September 1993. Count 30 concerns a 1993 Form 1120S Budco, Inc. corporate return, which Barbara Bissell signed on 14 September 1994. Second Superseding Indictment, P 4, at 36.

  M. Counts 31-33: Aiding and Assisting in the Filing of a False Return

  Counts 31 through 33 of the Second Superseding Indictment charged Nicholas Bissell "knowingly and willfully aided-and assisted in" preparation of the income tax returns that was the subject of counts 28-30. Second Superseding Indictment, P 2, at 37.

  Discussion

  A. A Summary of the Motions23

  Pretrial motions of Defendants were defined in the submissions as the "Omnibus Motions." Omnibus Motions filed by Nicholas Bissell sought (1) to dismiss counts 1-11 from the Second Superseding Indictment, pursuant to Rule 12(b) (2) of the Federal Rules of Criminal Procedure (the "Rules"), (2) to suppress video surveillance film taken in the Bedminster Station between 4 and 19 February 1995 (the "Videotapes"), pursuant to Rules 12(b) (3) and 41(f), (3) to bar the Government from introducing pretrial statements made by Barbara Bissell that implicated Nicholas Bissell, or, in the alternative, to redact certain material, pursuant to Rule 12(b) (3) and Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) ("Bruton "), (4) to require production of an unredacted copy of an affidavit of IRS Special Agent Joseph LaRose, which was filed in support of an application for a search warrant of Defendants' home, dated 15 April 1995 ("LaRose 15 April 1995 Affidavit"), pursuant to Rules 16 and 41, (5) to compel the Government to make pretrial disclosure of exculpatory material, pursuant to Rule 16, Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) ("Brady "); Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972) ("Giglio ") and material falling within the scope of the Jencks Act, 18 U.S.C. § 3500 (the "Jencks Act"), (6) to sever counts 1-11 and counts 20-21 from the balance of the Second Superseding Indictment, pursuant to Rules 8(b), 12(b) (5) and 14, (7) to Schedule an in limine hearing to determine whether currency seized from Defendants' home (the "Currency") is admissible against Nicholas Bissell, and (8) to permit Nicholas Bissell to join in pretrial motions of Barbara Bissell, where he had standing and where the relief sought applied to him. *fn24"

   Omnibus Motions filed by Barbara Bissell sought (1) to sever the trials of Defendants, or, in the alternative, to sever counts 12-16 and counts 23-33 from counts 1-11 and counts 17-22 of the Second Superseding Indictment because of asserted prejudicial joinder, (2) to compel the Government to make pretrial disclosure of material pursuant to Rule 16, Brady, Giglio and the Jencks Act, (3) to require all Federal, state, county and local law enforcement officers to retain and preserve all rough notes and writings concerning investigation related to the Second Superseding Indictment, (4) to schedule an in limine hearing to determine the admissibility of statements, pursuant to Rules 104(a) and 801(d)(2)(E) of the Federal Rules of Evidence ("Rule 104(a)"); ("Rule 801(d)(2)(E)"), (5) to compel the Government to disclose evidence it intended to introduce at trial that was within the scope of Rule 404(b) of the Federal Rules of Evidence ("Rule 404(b)"), (6) to require the Government to identify any matters of which it sought to have the court take judicial notice and to produce and charts or summaries the Government intended to use at trial, (7) to require the Government to return to Barbara Bissell the Currency (the "Motion for Return of Currency"), and (8) to permit Barbara Bissell to join in pretrial motions of Nicholas Bissell, where she had standing and where the relief sought applied to her. *fn25" Oral argument on the Omnibus Motions was held 4 March 1996; further argument was held 11 March 1996 concerning the admissibility of the Videotapes.

  The Government filed a motion, pursuant to Rule 16, for reciprocal discovery and for a protective order. *fn26" Nicholas Bissell filed a motion to dismiss the Second Superseding Indictment on ground that the Government improperly used the Grand Jury to obtain additional evidence; Barbara Bissell joined in that motion (the "Grand Jury Motion"). *fn27" The Government filed another motion, seeking an order requiring Nicholas Bissell to post an additional bond of at least $ 50,000, to require him to report to Pretrial Services on a weekly basis and to require him to cease all contact with Government witnesses (the "Motion for Modification of the Conditions of Release"). *fn28" By order, dated 1 March 1996, the Motion for Modification of the Conditions of Release was denied; Nicholas Bissell was ordered to report to Pretrial Services on a regular basis, to avoid any contact with Government witnesses and to comply fully with the order of release filed 4 October 1995.

  B. Motion to Dismiss Counts 1-11 of the Second Superseding Indictment

  1. Background

  Nicholas Bissell sought an order dismissing counts 1-11 of the Second Superseding Indictment, which alleged violations of 18 U.S.C. §§ 1341 and 1346. Nicholas Bissell argued these counts "fail to allege a scheme that violates [18 U.S.C.] § 1341 or § 1346." First Nicholas Bissell Moving Brief at 8; see First Nicholas Bissell Reply Brief at 1-10; 11 March 1996 Letter Brief, passim. Section 1341 of Title 18, the Federal mail fraud statute, concerns "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses" and proscribes mailing or attempting to mail material "for the purpose of executing such scheme or artifice or attempting to do so." 18 U.S.C. § 1341. A "scheme or artifice to defraud," id., "includes a scheme or artifice to deprive another of the intangible right of honest services." 18 U.S.C. § 1346.

  The elements of the Federal crime of mail fraud are (1) a scheme or artifice to defraud, (2) participation by a defendant, with the specific intent to defraud, in the particular scheme charged, and (3) "'a mailing must further the scheme to defraud or be incident to an essential part of that scheme.'" United States v. Frey, 42 F.3d 795, 797-98 (3d Cir. 1994) (quoting United States v. Ruuska, 883 F.2d 262, 264 (3d Cir. 1989)); see United States v. Lane, 474 U.S. 438, 451, 88 L. Ed. 2d 814, 106 S. Ct. 725 (1986) ("To find a violation of the mail fraud statute ... the charged 'mailings' must be 'for the purpose of executing the scheme.'") (quoting Kann v, United States, 323 U.S. 88, 94, 89 L. Ed. 88, 65 S. Ct. 148 (1944)); United States v. Kones, 77 F.3d 66, 71 (3d Cir.) (A person commits mail fraud when she [or he] has 'devised' or intends to 'devise' a scheme to defraud, and she [or he] uses the mails for the purposes of executing or attempting to execute the scheme."), cert. denied, U.S. , 136 L. Ed. 2d 113, 117 S. Ct. 172 (1996); United States v. Hannigan, 27 F.3d 890, 892 (3d Cir. 1994); United States v. Copple, 24 F.3d 535, 544 (3d Cir.), cert. denied, 513 U.S. 989, 130 L. Ed. 2d 400, 115 S. Ct. 488 (1994)). Proof of loss by the alleged victims of mail fraud is unnecessary. Copple, 24 F.3d at 544 (citing United States v. Kelley, 929 F.2d 582, 585 (10th Cir.), cert. denied, 502 U.S. 926, 116 L. Ed. 2d 280, 112 S. Ct. 341 (1991)). Moreover, each mailing that is "'incident to an essential part of the scheme'" constitutes a violation of the mail fraud statute. Kehr Packages. Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1413 (3d Cir.) (quoting Pereira v. United States, 347 U.S. 1, 8, 98 L. Ed. 435, 74 S. Ct. 358 (1954)), cert. denied, 501 U.S. 1222, 115 L. Ed. 2d 1007, 111 S. Ct. 2839 (1991).

  2. Standards for Dismissal of an Indictment

  For purposes of the Rule 12(b) (2) motion to dismiss counts 1-11, all factual allegations set out in the Second Superseding Indictment were accepted as true. United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990) (citing Boyce Motor Lines v. United States, 342 U.S. 337, 343 n.16, 96 L. Ed. 367, 72 S. Ct. 329 (1952)); United States v. Fauver, 888 F. Supp. 668, 670 (M.D.Pa. 1995); United States v. Waldrop, 786 F. Supp. 1194, 1199 (M.D.Pa. 1991), aff'd, 983 F.2d 1054 (3d Cir. 1992), cert. denied, 508 U.S. 950, 124 L. Ed. 2d 658, 113 S. Ct. 2440 (1993). Accordingly, the issue was whether the Government had alleged a Federal crime. Fauver, 888 F. Supp. at 670.

  Counts 1-11 of the Second Superseding Indictment charged a scheme by Nicholas Bissell to deprive the citizens of Somerset County of the honest services of their chief law enforcement officer. Nicholas Bissell argued such a scheme, even if true, is not a Federal crime.

  Congress passed the "honest services" provision of the Federal mail fraud law, 18 U.S.C. § 1346, following the decision in McNally v. United States, 483 U.S. 350, 97 L. Ed. 2d 292, 107 S. Ct. 2875 (1987). Prior to McNally, several lower court decisions endorsed the so-called "intangible rights" doctrine, which held that the Federal mail fraud statute proscribed schemes to defraud a governmental body and its citizens of the intangible right to honest and impartial government. *fn29"

  In McNally, the Court considered an indictment and conviction, pursuant to 18 U.S.C. 1341, for a patronage scheme involving kickbacks on commissions for workman's compensation insurance policies purchased by the State of Kentucky. McNally, 483 U.S. at 352-53. McNally determined the intangible rights theory was beyond the scope of 18 U.S.C. § 1341, and limited the reach of the statute "to the protection of property rights." McNally, 483 U.S. at 360.

  Following McNally, Congress passed the Anti-Drug Abuse Act of 1988, which included a provision amending the mail fraud statute by adding 18 U.S.C. § 1346. *fn30" Congress intended 18 U.S.C. § 1346 "to restore the mail fraud statute to its pre-McNally position by allowing mail fraud convictions to be predicated on deprivations of honest services." United States v. Waymer, 55 F.3d 564, 568 n.3 (11th Cir. 1995) (citing United States v. Martinez, 905 F.2d 709, 715 (3d Cir. 1990)), cert. denied, U.S. , 134 L. Ed. 2d 519, 116 S. Ct. 1350 (1996). Section 1346 of Title 18 became effective 18 November 1988. United States v, Henry, 29 F.3d 112, 114 (3d Cir. 1994); Kerr, 926 F.2d at 1417.

  Post-McNally decisions have construed 18 U.S.C. §§ 1341 and 1346 as together proscribing schemes or artifices to deprive another individual of honest services, consistent with the accepted pre-McNally interpretation of 18 U.S.C. § 1341. See, e.g., Grandmaison, 77 F.3d 555; United States v. Bryan, 58 F.3d 933 (4th Cir. 1995); Waymer, 55 F.3d 564; United States v. Evans, 30 F.3d 1015 (8th Cir. 1994), cert. denied, 131 L. Ed. 2d 236, 115 S. Ct. 1383 (1995); Henry, 29 F.3d 112.

  As indicated, the Second Superseding Indictment charged a scheme by Nicholas Bissell to defraud the citizens of Somerset County, Somerset County itself and the State of New Jersey of the honest services of the Somerset County Prosecutor. The Second Superseding Indictment enumerated several statutory sources of a prosecutor's duties. Second Superseding Indictment, P 2, at 3-5 (citing N.J.S.A. §§ 2A:158-1, 2A:158-1.1, 2A:158-5, 2C:30-2, 40A:9-22.5(a), (c), (d), (e), (g), 40A:9-22.6; New Jersey Rules of Professional Conduct). The Second Superseding Indictment charged Nicholas Bissell breached these duties and, thereby, deprived the citizenry of the honest services of the Somerset County Prosecutor.

  Nicholas Bissell was charged with maintaining two undisclosed business relationships with an adversary of the Office of the Somerset County Prosecutor. He was also charged with abusing his position to threaten the Distributor Owner and thereby gain business advantage to which he was not otherwise entitled. Finally, Nicholas Bissell was charged with engaging in other activity inconsistent with his duties as the Somerset County Prosecutor. These activities include fraudulent operation of the Bedminster and Somerset Stations, also the subject of counts 12-18, criminal solicitation to assist in financial aid fraud, also the subject of count 19, and obstruction of justice, also the subject of counts 20-21.

  The Second Superseding Indictment charged eleven mailings that furthered these unlawful activities and thereby deprived the citizenry of the right to an honest prosecutor. Nicholas Bissell was charged with completing and mailing: (1) five separate inaccurate financial disclosure statements, (2) documents and answers to interrogatories that allegedly covered up civil rights violations in the Federal Civil Action, and (3) four separate sets of inaccurate financial aid forms.

  One need not violate a state law or regulation to be liable for mail fraud. Bryan, 58 F.3d at 940 (citing Mandel, 591 F.2d at 1361). Conversely, were a scheme or artifice to defraud construed to encompass "whatever is not a 'reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of society,'" Federal judges would be "creating what in effect would be common law crimes...." United States v. Holzer, 816 F.2d 304 at 309 (quoting Gregory v. United States, 253 F.2d 104, 109 (5th Cir. 1958)).

  In this case, it was unnecessary to evaluate the outermost limits of 18 U.S.C. §§ 1341 and 1346. Courts have determined that Federal mail fraud encompasses political corruption, both before McNally and after the enactment of 18 U.S.C. § 1346. See, e.g., Grandmaison, 77 F.3d at 566 (abuse of position as alderman to influence award of construction contract); Bryan, 58 F.3d 933 (manipulation of advertising contracts for West Virginia Lottery); Waymer, 55 F.3d 564 (member of Atlanta Board of Education convicted for receiving percentage of proceeds on contracts between firms and school system); Evans, 30 F.3d 1015 (insurer convicted for giving state insurance regulator kickbacks for promoting its surety bonds); Henry, 29 F.3d 112 (bid rigging scheme related to Delaware River Joint Toll Bridge Commission); United States v. Stoneman, 870 F.2d 102 (3d Cir.) (scheme to obtain contracts from state and local entities by bribing public officials), cert. denied, 493 U.S. 891, 107 L. Ed. 2d 187, 110 S. Ct. 236 (1989); Holzer, 816 F.2d 304 (judge repeatedly solicited and received loans from attorneys appearing before him); Mandel, 591 F.2d at 1347 (governor of State of Maryland accepted bribes in return for lobbying efforts).

  Nicholas Bissell argued the illegal activity charged in the first eleven counts did not relate to actions taken in his official capacity. First Nicholas Bissell Moving Brief at 11-15; First Nicholas Bissell Reply Brief at 5; 4 Mar. 1996 Tr. at 2-5. This is not correct. For example, as evidence of his failure to provide honest law enforcement services, the Second Superseding Indictment charged Nicholas Bissell threatened to frame the Distributor Owner, obstructed justice and perjured himself in connection with the Federal Civil Action. Second Superseding Indictment, P 10, at 7-8; P 12, at 9. in addition, to the extent the acts charged concern Nicholas Bissell outside of his official capacity, fraud was nonetheless alleged.

  As indicated, the Second Superseding Indictment accused Nicholas Bissell of violating several New Jersey statutes regulating the duties of a prosecutor. The Government argued one who violates the criminal code he or she has sworn to enforce has deprived the public of the right to the services he or she has promised. 4 Mar. 1996 Tr. at 6. The Government further argued Nicholas Bissell engaged in activities that conflicted with his position and responsibility as prosecutor and personally benefited because of this activity. Id. at 10. The Government argued Nicholas Bissell used the mails in furtherance of his effort to personally profit from these activities and in order to cover up his conduct. Id. These allegations fell within the boundary of conduct proscribed by 18 U.S.C. §§ 1341 and 1346. Violations of the Code of Criminal Justice are inconsistent with pledges to enforce it.

  Aside from the fact Nicholas Bissell was charged with repeatedly defrauding business partners and engaging in financial aid fraud, these allegations of fraud are violations of the public trust, given the Somerset County Prosecutor's responsibility to "use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws." N.J.S.A. § 2A:158-5.

  Nicholas Bissell's fraud, in connection with the Bedminster and Somerset Stations, also violated Nicholas Bissell's duty to avoid conflicts of interest, to "'devote his entire time to the duties of his office'" and not to engage in other employment. See Second Superseding Indictment, P 2(d), at 4, P 2(b), at 3 (citing N.J.S.A. § 2A:158-1.1). His failure to disclose his outside business interests, particularly those conducted with William Welaj ("Welaj"), violated his duty to "'fully, truthfully and accurately disclose all material facts relating to his compliance with the Code of Ethics for Local Government Officers.'" N.J.S.A. § 40A:9-22.6. He also committed perjury in connection with the Federal Civil Action which concerned actions taken in his official capacity. Nicholas Bissell engaged in fraud, knowingly violated his duties as Prosecutor and entered into conflicts of interests. These activities compromised Nicholas Bissell's ability to faithfully, justly and impartially execute his official duties. He used the mails to further this criminal activity.

  Nicholas Bissell had argued allegations of conflicts of interest arising from his interests in the RB&W Partnership and the Bedminster Station Partnership should be dismissed because they did not allege acts by him in his capacity as a public official. It was because of his status as the Somerset County Prosecutor, however, that the alleged conflicts arose. Second Superseding Indictment, P l(f), at 3; P 5, at 6; Opposition Brief at 8-9. As indicated, as Prosecutor, Nicholas Bissell had the duty to abide by the New Jersey Rules of Professional Conduct and to avoid conflicts of interest. He also had the duty to "'fully, truthfully and accurately disclose all material facts relating to his compliance with the Code of Ethics for local Government Officers." N.J.S.A. 40A:9-22.6. Nicholas Bissell's interests in the RB&W Partnership and the Bedminster Station Partnership violated his duties and responsibilities as Prosecutor and defrauded the citizens of Somerset County. Accordingly, these matters fell within the scope of the "honest services" provisions of the mail fraud statutes.

  4. Retroactivity Argument

  Nicholas Bissell argued the Government sought to apply 18 U.S.C. § 1346 retroactively because some of the acts alleged occurred prior to 18 November 1988, the effective date of the "honest services" provision. First Nicholas Bissell Moving Brief at 21. As Nicholas Bissell indicated, the Second Superseding Indictment charged that, in March 1988, he "abused the power of the Office of the Prosecutor in order to extort a private personal benefit...." Second Superseding Indictment, P 10, at 7.

  The Circuit has held 18 L.S.C. § 146 should not be given retroactive force. Henry, 29 F.3d at 114 (citing Kehr, 926 F.2d at 1417 n.4). The mailings alleged in support of the first eleven counts, however, each occurred after 18 November 1988. Second Superseding Indictment, P 14, at 10-11 (alleging mailings occurred between 3 October 1991 and 21 April 1995).

  It is not improper to apply a criminal statute to a scheme that began prior to, but continued through, the effective date of the statute. United States v. Garfinkel, 29 F.3d 1253, 1259-60 (8th Cir. 1994) (citing United States v. Reetz, 18 F.3d 595; 598 (8th Cir. 1988); United States v. Hammen, 977 F.2d 379, 385 (7th Cir. 1992); United States v. Alkins, 925 F.2d 541, 549 (2d Cir. 1991); United States v. Torres, 901 F.2d 205, 226 (2d Cir.), cert. denied, 498 U.S. 906, 112 L. Ed. 2d 229, 111 S. Ct. 273 (1990)). Because the mail fraud statutes seek to punish use of the mail to commit fraud, the dates of the alleged mailings were the appropriate inquiry. As indicated, the alleged mailings occurred after the effective date of the "honest services" provision. For these reasons, Nicholas Bissell's retroactivity argument was rejected.

  C. Motion to Suppress the Videotapes

  1. Background

  Nicholas Bissell sought to suppress the Videotapes, which were made with a surveillance camera installed in the ceiling of the Bedminster Station with the consent of Thornburg. In February 1995, Federal investigators interviewed Thornburg, who discussed his investment in the Bedminster Station. 4 January 1996 Carbone Affidavit, P 23. Thornburg indicated he had agreed to invest $ 100,000 in the Bedminster Station Partnership. Nicholas Bissell and Thornburg agreed that the former would maintain the Bedminster Station checking account and the latter would operate the Bedminster Station. Thornburg also indicated Nicholas Bissell later solicited additional funds from Thornburg, representing that the Bedminster Station was operating at a loss. Id.

  The Government stated that, following the meeting between Federal investigators and Thornburg, investigators compared receipts for cash Nicholas Bissell removed from the Bedminster Station on weekends with records reflecting bank deposits he made. "Based upon this comparison, it appeared that a portion of the weekend receipts were not being deposited into the bank." 4 January 1996 Carbone Affidavit, P 24. The Government then obtained written consent from Thornburg to install a video camera ("Camera") in the ceiling of the Bedminster Station. Id. & Ex. D.

  The Government described the Bedminster Station as "a small square-shaped structure located on a main highway...." 4 January 1996 Carbone Affidavit, P 25. The building is surrounded by glass on three sides, and contains vending machines and automotive products offered for sale. Id. & Ex. C. The Bedminster Station, which was open from 6:00 am to 11:00 pm, contained a desk behind the front window and bathrooms for use by employees and customers. Id.

  The Government represented the Camera, which was placed in the ceiling immediately above the door, was programmed to record between 12:00 and 11:00 pm on Saturdays and Sundays. 4 January 1996 Carbone Affidavit, P 26. The Government operated the Camera for three consecutive weekends. First Nicholas Bissell Brief at 6. "The [Videotapes] revealed that on each of the three weekends, [Nicholas Bissell] visited the [Bedminster] Station and counted money. He appeared to place a portion in the bag, and put the remainder in his pockets." 4 January 1996 Carbone Affidavit, P 27.

  2. Testimony of Robert Krut

  On 11 March 1996, a hearing was held concerning admissibility of the Videotapes. At that hearing, United States Postal Inspector Robert Krut ("Krut") testified. On direct examination, Krut indicated he installed the Camera on 2 February 1995 and that the Camera operated for approximately three weeks. 11 Mar. 1996 Tr. at 6-7. Krut indicated the front of the Bedminster Station is approximately seventy-five feet from the highway; the one-room building measured approximately ten by fifteen feet; it contained a desk, with a credit card machine, abutted to the front window and vending machines behind the desk. Id. at 7-8. Krut indicated the one-room building contained rest rooms in the back but there were no partitions other than the rest room. Id. at 8-9. Krut was given a photograph of the Bedminster Station ("Government Ex. 1608"). He indicated the front desk and the credit card machine were visible through the front window, "from anywhere in the parking lot." Id. at 9.

  Krut next viewed excerpts of the Videotapes that showed Nicholas Bissell either seated or standing behind the desk. The following ensued:

  
Q: Inspector Krut, did you have occasion, prior to installing the [Camera], to walk around the premises?
  
A: Yes.

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