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UNITED STATES v. ARCHER

December 18, 1972

UNITED STATES of America
v.
Norman ARCHER et al., Defendants


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

In this two count indictment defendants have been charged with conspiring to use a facility in interstate commerce, that is, the telephone, with intent to carry on the unlawful activity of bribery in violation of the Travel Act, 18 U.S.C. § 1952 (1970), and aiding and abetting and conspiracy statutes, 18 U.S.C. §§ 2 and 371 (1970).

Briefly, the indictment charges as follows: On February 29, 1972, a Special Agent of the Bureau of Narcotics and Dangerous Drugs, United States Department of Justice, acting in an undercover capacity under the name of "Salvatore Barone," was arrested at the Omaha Diner in Queens, New York, by a New York City Police Department patrolman for unlawful possession of two loaded pistols. Barone was arraigned later that same day and was released on bail. Thereafter, he obtained several adjournments of his case for the stated purpose of obtaining an attorney. On April 19, 1972, defendant Wasserberger, an associate of a bondsman with offices in New York, introduced Barone to defendant Klein, an attorney with offices in Queens, for the purpose of retaining Klein as Barone's attorney and for the purpose of arranging for the dismissal of the charges against Barone by corrupt means. Klein, it is alleged, guaranteed Barone that his case would be fixed at the grand jury stage of the proceedings by defendant Archer, the Assistant District Attorney in charge of the Indictment Bureau in the office of the District Attorney for Queens County, in return for $15,000 in cash. On that same day, Barone is alleged to have given Klein and Wasserberger $500 in cash as a down payment. Thereafter, Archer is alleged to have agreed to the scheme and he, Klein and Wasserberger provided Barone with a false exculpatory explanation of his possession of the two loaded pistols to testify to before the Queens County grand jury. On May 8, 1972, Barone allegedly paid Klein the remaining balance of $14,500 of the $15,000 in cash, a portion of which was allegedly paid to Archer on May 10, 1972. On May 9, 1972, it is alleged that Archer knowingly permitted Barone to testify falsely before the grand jury.

 The case presently is before this Court on defendants' motion (1) to dismiss the indictment (a) for lack of jurisdiction under § 1952 and (b) for prosecutorial misconduct with regard to pre-indictment publicity and/or for a hearing to determine the source of the pre-indictment publicity and, pursuant to Fed.R.Crim.P. 6(e), for inspection of the grand jury minutes; (2) pursuant to Fed.R.Crim.P. 7(d), to strike page one of the indictment as surplusage; (3) pursuant to Fed.R.Crim.P. 41(e), to suppress (a) certain statements made by the defendants, or for a hearing to determine their voluntariness, (b) wiretap evidence, (c) evidence seized at defendant Archer's home pursuant to warrant; (4) pursuant to Fed.R.Crim.P. 7(f), for a bill of particulars; (5) pursuant to Fed.R.Crim.P. 16, for discovery and inspection, including materials produced under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); and (6) for a severance under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).

 (1) Motion to Dismiss Indictment

 (a) Lack of Jurisdiction under § 1952

 Defendants contend, as the basis for their motion, that jurisdiction of the instant case does not lie under § 1952 because the indictment fails to allege (1) that the defendants were involved in a business enterprise of which bribery was an integral part; (2) that the unlawful activity alleged herein was connected with organized crime; and (3) that the use of interstate facilities was central and vital to the crime rather than merely incidental to it. With regard to this last contention, defendants argue that any interstate element of the crime alleged was contrived solely by the Government. For the reasons cited infra, the motion is denied.

 Section 1952 provides:

 
"(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to --
 
(1) distribute the proceeds of any unlawful activity; or
 
(2) commit any crime of violence to further any unlawful activity; or
 
(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
 
and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
 
"(b) As used in this section 'unlawful activity' means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, [or controlled substances (as defined in section 102(6) of the Controlled Substances Act),] or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States."

 With regard to their first contention, defendants argue that in order for jurisdiction to lie under § 1952, the Government must allege and prove that the defendants were engaged in a continuous course of illegal conduct, a "business enterprise", of which bribery was an integral part. Here, they argue, the indictment alleges only one, isolated act of bribery. Section 1952(b), however, defines the "unlawful activity" prohibited by § 1952(a) as falling into two categories: "(1) any business enterprise involving gambling . . . [and other offenses], or (2) . . . bribery. . . ." (Emphasis added.) The "business enterprise" requirement is conspicuously absent from the second category of unlawful activity defined in § 1952(b)(2). See United States v. Mahler, 442 F.2d 1172, 1174-75 (9th Cir.), cert. denied, 404 U.S. 993, 92 S. Ct. 541, 30 L. Ed. 2d 545 (1971); Marshall v. United States, 355 F.2d 999 (9th Cir.), cert. denied, 385 U.S. 815, 87 S. Ct. 34, 17 L. Ed. 2d 54 (1966). Therefore, notwithstanding any legislative history cited by defendants to the contrary, the clear and unequivocal language of the statute and supporting case law do not support their position.

 With regard to their second contention, defendants urge that § 1952 was intended exclusively to curtail the unlawful activities of organized crime; here, they claim, no connection between the defendants and organized crime has been alleged. This argument is without merit. Even assuming that § 1952 was aimed at organized criminal activity, if Congress had intended the statute to apply only to organized crime, it would of necessity have included a definition of "organized crime" in the statute; otherwise, courts would be faced with the insurmountable task of determining exactly to whom the statute applies. This Court looks in vain for such a definition. Even in Rewis v. United States, 401 U.S. 808, 811, 91 S. Ct. 1056, 1059, 28 L. Ed. 2d 493 (1971), a case heavily relied on by the defendants, the Supreme Court stated "that § 1952 was aimed primarily at organized crime." (Emphasis added.) Case law reveals many instances in which individuals have been convicted under the Travel Act for bribery and extortion offenses who had absolutely no relationship to organized crime. See, e.g., United States v. Pordum, 451 F.2d 1015 (2d Cir. 1971), cert. denied, 405 U.S. 998, 92 S. Ct. 1249, 31 L. Ed. 2d 467 (1972); United States v. Mahler, supra, 442 F.2d 1172. Indeed, even in prosecutions under § 1952(b)(1), in which a "business enterprise" must be shown, there is no necessity to prove that a defendant was associated with an organized crime syndicate; a continuous course of conduct by a petty hoodlum acting alone is sufficient. Spinelli v. United States, 382 F.2d 871, 889-890 (8th Cir. 1967) (en banc), rev'd on other grounds, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).

 With regard to their third contention, defendants submit that the crime alleged herein was essentially local in character, and rely on Rewis v. United States, supra, 401 U.S. 808, 91 S. Ct. 1056; United States v. Altobella, 442 F.2d 310 (7th Cir. 1971); and United States v. McCormick, 442 F.2d 316 (7th Cir. 1971), to support their contention that any use of interstate facilities in the instant case was so minimal and incidental to the crime charged as to deprive this court of jurisdiction under § 1952. Moreover, defendants argue that the only interstate element of the crime was provided by the Government through Barone who, it appears from the Government's brief, was posing as a "hit man" from the so-called "Mafia" from Las Vegas, Nevada.

 The indictment sets forth three uses of an interstate facility by the defendants:

 
"OVERT ACTS
 
. . .
 
4. On or about April 25, 1972, the defendant FRANK R. KLEIN spoke on the telephone with Barone in a transatlantic call between ...

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