The opinion of the court was delivered by: BAUMAN
Defendant Edmund Rosner has moved to dismiss the indictment pursuant to Rule 12 of the Federal Rules of Criminal Procedure and to suppress evidence of certain conversations between himself and a Government agent. For the reasons that follow, the motion to dismiss is granted as to Count 3 and as to all reference to 18 U.S.C. § 2071 in Count 1. The motion is denied in all other respects. The motion to suppress is also denied.
The indictment, which is something less than a masterpiece of draftsmanship, charges the defendants in eight counts. They are accused of obstruction of justice (Count 2); removal of Government documents (Count 3); and bribery of a public official (Counts 4 through 8). Count 1 charges them with conspiring to commit those substantive crimes and also with conspiring to receive stolen Government property. All of the charges are founded on a single course of alleged criminal conduct.
At the outset it should be observed that the legal test of sufficiency is not whether the indictment could have been more artfully and precisely drawn, but whether it states the elements of the offenses intended to be charged, and adequately apprises the defendant of what he must be prepared to meet. Russell v. United States, 369 U.S. 749, 763-764, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962); United States v. Debrow, 346 U.S. 374, 376, 74 S. Ct. 113, 98 L. Ed. 92 (1953). Cf. F.R.Cr.P. 7(c).
The Government alleges, in the indictment as supplemented by the bill of particulars, that the defendants met on several occasions with Detective Robert S. Leuci of the New York City Police Department who "under instructions of the United States Attorney's Office for the Southern District of New York assumed the role of a policeman willing to engage in corrupt activities in return for bribes." (Indictment p. 2) Leuci agreed, it is charged, to obtain for the defendants information concerning various criminal matters pending in the District Court and its Grand Jury. Among these were: (a) the case of United States v. DeStefano, Rosner et al., 70 Cr. 1030, in which defendants Rosner and DeStefano were awaiting trial; (b) a Grand Jury investigation into allegations that one Dominick J. Marcone had "fixed" a Queens narcotics case; and, (c) the case of United States v. Bynum, a narcotics conspiracy case then awaiting trial before Judge Pollack. The Government alleges that Rosner and DeStefano, with the help of Lamattina, made payments totalling $2,850 to Leuci for this information. It was intended that Leuci pass on these payments to an allegedly corrupt contact in the United States Attorney's Office in consideration of which he would turn over "3500 material", Grand Jury minutes and the draft of a contemplated indictment.
I. Obstruction of Justice
Count 2 charges the defendants with endeavoring to "influence, obstruct, and impede the due administration of justice" by paying $2,850 for those documents in violation of 18 U.S.C. § 1503.
Rosner argues that this count must be dismissed because it fails to charge any acts which violate that statute.
His claim rests on a particular method of reading § 1503. That statute, he argues, can be divided into two parts. The first part proscribes any effort to influence, threaten, or intimidate various specific groups of persons involved in the administration of justice: witnesses, jurors, officers, commissioners, or committing magistrates. The second is the omnibus provision contained in the last two lines: "or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice." Rosner argues that this language only proscribes acts similar to those mentioned in the specific language of the first part. In other words, the omnibus provision must be construed in accordance with the principle known as eiusdem generis. Rosner consequently suggests that the second part of the statute only prohibits acts of coercion or intimidation against individuals involved in the judicial process. Since the obtaining of Government documents is not an attempt to coerce or influence anyone, it is not within the contemplation of the statute. Therefore, the argument continues, the indictment fails to state an offense under § 1503.
The difficulty is that the authority for such a construction of § 1503 is not particularly persuasive. Rosner relies principally on United States v. Scoratow, 137 F. Supp. 620 (W.D.Pa.1956), which held that interference with an FBI investigation was not encompassed by the "obstruction of justice" clause of § 1503 because the FBI is an investigative rather than a judicial arm of the Government; and Haili v. United States, 260 F.2d 744 (9th Cir. 1958), which invalidated the conviction under that section of a person who induced a convicted felon to violate the terms of her probation. Both of these cases, Haili explicitly and Scoratow by implication, adopted the eiusdem generis construction. Rosner also cites United States v. Essex, 407 F.2d 214 (6th Cir. 1969), which follows Haili.
It is eminently clear, however, that this principle of statutory construction has never been applied to § 1503 in this Circuit and has indeed been explicitly rejected. In United States v. Solow, 138 F. Supp. 812 (S.D.N.Y.1956), an indictment charging defendants with the destruction of documents to prevent their production before a Grand Jury was held to state an offense under the omnibus provision. Judge Weinfeld said: "[This] latter provision . . . is all-embracing and designed to meet any corrupt conduct in an endeavor to obstruct or interfere with the due administration of justice."
United States v. Cohn, 452 F.2d 881 (2nd Cir. 1971), cert. denied 405 U.S. 975, 92 S. Ct. 1196, 31 L. Ed. 2d 249 (1972), extended the sweep of § 1503 to the giving of false and evasive testimony before a Grand Jury. The Court of Appeals for this Circuit in United States v. Alo, 439 F.2d 751 (2nd Cir. 1971), cert. denied 404 U.S. 850, 92 S. Ct. 86, 30 L. Ed. 2d 89 (1971), had already rejected the application of the eiusdem generis principle to 18 U.S.C. § 1505, a companion statute to § 1503, which prohibits the obstruction of proceedings before Congressional committees or administrative agencies. In Cohn, the Court went on to say that it could see no reason for adopting the principle with regard to § 1503. See also, United States v. Cohen, 202 F. Supp. 587 (D. Conn.1962); United States v. Bonanno, 177 F. Supp. 106 (S.D.N.Y.1959), reversed on other grounds 285 F.2d 408 (2nd Cir. 1960).
Regardless, therefore, of how this statute has been construed elsewhere, in this Circuit the omnibus clause of § 1503 has been construed broadly. It embraces the widest variety of conduct that impedes the judicial process. I therefore hold that Count 2 of the Indictment is not defective on its face, and defendant's motion to dismiss that Count is hereby denied.
Count 3 charges the defendants with removing, attempting to remove, and causing to be removed, records, documents and papers kept in the files of the United States Attorney's Office for the Southern District of New York. Such conduct is alleged to violate 18 U.S.C. § 2071.
It is not disputed, however, that they are not accused of actually removing documents in the Government's possession, but rather of obtaining photocopies. The Government's Memorandum (at page 5) describes their conduct as follows: "The defendants' alleged scheme had called in part for Leuci's contact to provide Xerox copies of 3500 material, Grand Jury testimony, and other information which was in the files of the United States Attorney's Office." If documents were removed from the files, they were removed temporarily and only for the purpose of reproduction. The Government does not contend that any were permanently removed.
Rosner moves to dismiss this Count on the ground that 18 U.S.C. § 2071 does not proscribe mere photocopying. For the ...