
    UNITED STATES of America, Plaintiff, v. Clement G. CAFARELLI, Leo J. Puccinelli, and George T. Tayler, Defendants. Re Motions of George T. Tayler and Clement G. Cafarelli.
    No. Cr-28-59.
    United States District Court D. Utah, Central Division.
    June 25, 1959.
    A. Pratt Kesler, U. S. Atty., and William Jack Adams, Asst. U. S. Atty., for District of Utah, Salt Lake City, Utah, for plaintiff.
    Eks Ayn Anderson and Leo A. Jar-dine, Salt Lake City, Utah, for defendant Clement G. Cafarelli.
    Leonard W. Elton (of Rich, Elton & Mangum), Salt Lake City, Utah, for defendant Leo J. Puccinelli.
    Lionel M. Farr, Salt Lake City, Utah, for defendant George T. Tayler.
    John Lee, Salt Lake City, Utah, for Securities & Exchange Commission.
   CHRISTENSON, District Judge.

The Court today has filed its memorandum decision, D.C., 183 F.Supp. 734, denying the motion of the defendant Leo J. Puccinelli to dismiss the indictment as to him on the grounds stated in said motion. The Court also denied Mr. Puccinelli’s motion for a severance.

What was said in the memorandum sufficiently indicates the bases of the Court’s conclusion that a similar motion filed with leave of Court on behalf of defendant Clement G. Cafarelli should be denied. Mr. Cafarelli’s motion to dismiss the indictment, accordingly, is hereby denied.

The foregoing rulings are dispositive in principle of the additional motion of defendant George T. Tayler to dismiss the indictment and to reconsider the defendant Tayler’s motion for severance, except for two additional points urged by Mr. Tayler.

A statement by the Court at the time of the hearing of other motions in this case to the effect that certain allegations of the indictment would be “deemed amended” by changing the word “defendants” to “defendant” and by eliminating the names of certain defendants from the allegations contained in said counts is seized upon by defendant Tayler to indicate that the indictment was amended beyond the claim made in the motion of the defendant Puccinelli already resolved. A reference to page 4 of the transcript of the proceeding in question shows that the order of amendment in the form claimed by defendant Tayler was vacated and orders of dismissal entered as a substitute therefor. I have already indicated my view that these orders of dismissal would not amount to any amendment of the indictment.

Mr. Tayler further alleges that certain counts are bad because exceptions to the operation of the penal provisions provided in 15 U.S.C.A. § 77d are not negatived therein. The cases of McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301, and Edwards v. United States, 312 U.S. 473, 61 S.Ct. 669, 85 L.Ed. 957, on this point are controlling against Tayler’s contention.

Tayler’s further motion to dismiss and his motion to reconsider the prior order denying severance are hereby denied.  