The opinion of the court was delivered by: EDELSTEIN
MEMORANDUM OPINION AND ORDER
EDELSTEIN, District Judge:
Indictment SS 83 Cr. 750 (DNE) was filed on March 8, 1984 and comprises 39 counts. This indictment superceded two earlier indictments, 83 Cr. 750 filed on December 1, 1983 and S 83 Cr. 750 filed on February 9, 1984.
Count 1 charges defendant Pisani with conspiring to defraud by use of the mails the Temporary State Commission on Child Welfare ("TSCCW"), by hiring Joseph Mallon, who would do no work for the TSCCW, in exchange for the sale of Mallon's summer house to Pisani and Godfrey. 18 U.S.C. § 371. Counts 2 through 4 charge defendant Pisani with defrauding the TSCCW in connection with this scheme. 18 U.S.C. § 1341.
Counts 5 through 10 relate to the cover up of the conspiracy and fraud charged in counts 1 to 4. Count 5 charges Pisani with conspiracy to commit perjury and obstruct justice. 18 U.S.C. § 371. Counts 6 and 7 charge Godfrey with perjury and Pisani with having aided and abetted her perjury. 18 U.S.C. §§ 1623 and 2. Count 8 charges Godfrey and Pisani with obstruction of justice in connection with Godfrey's Federal Grand Jury appearances. 18 U.S.C. § 1503. Count 9 charges Pisani with subornation of perjury. 18 U.S.C. § 1622. Count 10 charges Pisani with obstructiion of justice. 18 U.S.C. § 1503.
Counts 11 through 26 charge Pisani with defrauding by use of the mails several of his campaign funds, his campaign contributors, the New York State Board of Elections, and those who reviewed allegedly fraudulent financial disclosure statements submitted by Pisani by diverting money from his campaign funds for his personal use and concealing that diversion through the filing of false financial disclosure statements. 18 U.S.C. § 1341.
Counts 27 through 31 charge Pisani with defrauding by use of the mails a law partnership of which he was at different times a member and "of counsel" and clients of that firm, by concealing from the firm fees paid to him and by diverting funds from the client escrow accounts. 18 U.S.C. § 1341.
Counts 32 through 35 charge Pisani with tax evasion for the years 1978 through 1981. 26 U.S.C. § 7201. Counts 36 through 39 charge Pisani with filing false income tax returns for those years. 26 U.S.C. § 7206(1).
Defendant Pisani's motions pending before this court are: (A) to dismiss all the mail fraud counts (counts 2 through 4, 11 through 26, and 27 through 31) on the grounds that they fail to state offenses against the United States and they fail to allege facts sufficient to constitute such offenses; (B) to dismiss the entire indictment on the grounds that (1) Fed. R. Crim. P 6(g), which permits the extension of a grand jury beyond its initial 18 month term, and under which the grand jury that indicted Pisani was extended, is unconstitutional, or (2) Rule 6(g) as applied to the grand jury that Pisani was an ex post facto application of a criminal law; (C) to compel the release of grand jury attendance records on the grounds that no "reasonable assurance" exists that a majority of those grand jurors who indicted Pisani heard the essential evidence before voting to indict him; (D) to dismiss the conspiracies charged in counts 1 and 5 on the ground that they fail to allege "a plan and concise statement of the facts constituting the offenses" and they include overt acts that occurred prior to the alleged conspiratorial period; and (E) to dismiss counts 1 through 11 of the indictment on the basis that the grounds raised by defendant Gosfrey inured to Defendant Pisani's detriment.
The motions by defendant Godfrey pending before this court are as follows: (1) to dismiss all charges against Godfrey on the ground that the evidence upon which these charges were based included her "immunized" state grand jury testimony; (2) to dismiss the obstruction of justice charge, count 8, on the ground that the "same grand jury" that heard Godfrey's "immunized" testimony could not return an indictment charging her with obstruction of justice; and (3) to sever her trial from that of her codefendant, Pisani, or, in the alternative, to sever the counts involving both her and Pisani from the trial of the remainder of the counts against Pisani.
A. Pisani's Motion to Dismiss the Mail Fraud Counts
Pisani's motion to dismiss the mail fraud counts on the ground that they do not plead an offense against the United States must be considered in light of the allegations in the indictment. If the indictment is sufficient on its face, that is, if it alleges each of the necessary elements of the offense charged, then it "is not subject to dismissal on the basis of factual questions, the resolution of which must await trial." United States v. Black, 291 F. Supp. 262, 264 (S.D.N.Y. 1968).
Counts 2 through 4 charge Pisani with mail fraud in connection with Pisani's placement of Joseph Mallon on the TSCCW payroll in exchange for the transfer of Mallon's summer house to Pisani and Godfrey. The indictment alleges that Pisani defrauded the State of New York and the TSCCW of money and the honest conduct of public business. Indictment, SS 83 Cr. 759 (DNE), at PP7, 8 & 12. The indictment further alleges that Pisani agreed to place Joseph Mallon on the payroll for services that were not performed by Mallon in exchange for the sale of Joseph and Roberta Mallon of their house in Washingtonville, New York to Pisani and Godfrey. Id. at PP9 & 12.The indictment further alleges that Pisani prepared false documents to conceal the diversion of funds. Id. at PP11(h), (m), (o), & (t) & 12. The indictment also alleges mailings in furtherance of the fraud. Id. at P13.
Pisani contends that the mailings were not in furtherance of the scheme. One object of the scheme, as alleged, however, was to have Mallon paid by the TSCCW. All the parties alleged to have participated in the deal would have known that the payments would be accomplished through the use of the mails, and, it is alleged, the payments were accomplished through the use of the mails. Under the Second Circuit decisions, these alleged mailings were sufficient to meet the statutory requirements. See United States v. Knuckles, 581 F.2d 305, 313 (2d Cir.), cert. denied, 432 U.S. 986, 99 S. Ct. 581, 58 L. Ed. 2d 659 (1978) (dividing the money in part of the conspiracy); United States v. Sindona, 636 F.2d 792, 802 (2d Cir. 1980), cert. denied, 451 U.S. 912, 68 L. Ed. 2d 302, 101 S. Ct. 1984 (1981).
Pisani also contends that under this charge the government is attempting to regulate the work performance of state workers through the criminal law. Pisani's Memorandum of Law, at p. 15-16. This contention is frivolous. The indictment does not allege that Mallon was overpaid for services rendered or that his services were unsatisfactory. The indictment alleges that he was paid under Pisani's direction "for services that were not performed by him" in exchange for the sale that was for Pisani's benefit. These allegations do not call for an evaluation of work performance. They call for a judgment about fraud, plain and simple.
Pisani's contentions that the indictment lacks the requisite specificity under Fed. R. Crim. P. 7 is without merit. "We have "consistently sustained indictments which tracked the language of the statute and, in addition, do little more than state time and place in approximate terms." United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973), cert. denied, 415 U.S. 985, 94 S. Ct. 1579, 39 L. Ed. 2d 882 (1974)." United States v. Bernstein, 533 F.2d 775, 786 (2d Cir.), cert. denied, 429 U.S. 998, 50 L. Ed. 2d 608, 97 S. Ct. 523 (1976). The indictment against Pisani not only specifies the approximate times and places of the transactions underlying the fraud, it gives the amount of the checks involved, the dates they were sent and to whom.
The indictment alleges all the elements of a mail fraud charge with specificity. Pisani's motion to dismiss counts 2 through 4 is therefore denied.
2. Campaign Fund Mail Fraud
Counts 11 through 26 charge Pisani with mail fraud in connection with various of Senator Pisani's campaign funds. These counts charge that Pisani and others conducted "a scheme . . . to defraud and to obtain money . . . from others . . . to wit . . . to divert . . . at least $36,000 unlawfully from the Joseph R. Pisani Campaign Funds, to convert said funds to the personal use, . . . and to conceal said diversion. . . ." Indictment SS 83 Cr. 750 (DNE), at P40. The indictment further alleges that those defrauded included: "those who contributed to the Joseph R. Pisani Campaign Funds, the New York State Board of Elections, and members of the public reviewing the Campaign Financial Disclosure Statements, including would-be contributors to the Joseph R. Pisani Campaign Funds. . . ." Id. at P47. The indictment further alleges that Pisani "entered or caused to be entered on the Campaign Financial Disclosure Statements . . . false and fraudulent" entries in order to deceive those defrauded, and subsequently caused these statements "to be placed in post offices . . . to be delivered . . . to the New York State Board of Elections. . . ." Id. at PP49-50. None of Pisani's attacks on these counts has any merit.
First, Pisani contends that no New York law restricts his use of campaign funds and that therefore he did not divert any money unlawfully. Even assuming arguendo these contentions are correct, the indictment still alleges mail fraud.
The elements of fraud are well established: "(1) defendant must have made an affirmative misrepresentation or nondisclosure; (2) that deception must be material; and (3) it must be done in contemplation of harm to the defrauded party or gain to the defendant." United States v. Gallant, 570 F. Supp. 303. 306-07 (S.D.N.Y. 1983). Allegations of all the elements are clearly made against Pisani; whether they are true is a question for the jury. The alleged misrepresentations were in the financial disclosure statements. Indictment SS 83 Cr. 750 (DNE), at P49. It is alleged that would-be contribtors were defrauded into contributing by these material deceptions.
Id. at P47. Finally, it is alleged that the object of these mistatements was the concealment and fulfillment of Pisani's fraudulent scheme to convert money for his benefit. Id. at P40.
Second, Pisani contends, "[n]otice to this defendant and all other candidates for political office in New york of what conduct may be charged as criminal is impossible under the Government's theory of the mail fraud statute." Pisani's Memorandum of Law, dated January 27, 1984, at p. 6. Notice, however, is clear. If a candidate makes a full and accurate disclosure on the financial disclosure statements, he avoids all risk of running afoul of the mail fraud statute. Nor is the government, by this prosecution, "seeking to impose a duty of complete candor or absolute disclosure on political candidates," under which they will have to disclose all "issues, actions, and affiliations which might deter potential campaign contributors. . . ." Id. at 5. Under the government's theory candidates must make accurate financial disclosures. Surely, the accurate reporting of finances is not too much to demand.
Third, Pisani contends that the mailing of the financial disclosure statement was not in furtherance of the fraud, and therefore does not satisfy that element of a mail fraud charge. In United States v. Elkin, No. 83-1243, slip op. (2d Cir. March 15, 1984), the defendant had defrauded the Defense Department by submitting false progress payment requests and, after being paid, mailing a false letter of verification. The court held that because the letter was false and was necessary to lull the Defense Department into believing that the payment was proper, "the fact that the Verification Letter was mailed after the defendants received the progress payment in no way suggests that it was not sent in furtherance of the scheme to defraud." Id. at 2376. Pisani's alleged scheme entailed these facts. The financial disclosure statements, though mailed after the alleged diversion, were allegedly intended to lull the Board of Elections and would-be contributors into believing Pisani's expenditures were proper and were not for personal expenses. Hence, the mailings were in furtherance of the scheme to defraud.
Finally, Pisani contends that the mail fraud statute should not "give the federal government the authority to regulate political campaigns governed by state election law for state and local offices." Pisani's Memorandum of Law, dated January 27, 1984, at p. 9. This is an argument more properly before the Congress than before this court,
which has no power to restrict the application of a criminal law to activities squarely within its scope.
As to specificity under Fed. R. Crim. P. 7(c), the indictment need only track the statutory language and state approximate times and places. Bernstein, supra, 533 F.2d at 786. The indictment states the time period during which the diversions from the campaign funds were carried out. It further states how much money was diverted and lists the funds from which the money was diverted.It states which disclosure statements were false and when they were mailed. It need do ...