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UNITED STATES v. PAYDEN

July 9, 1985

UNITED STATES OF AMERICA
v.
DONALD PAYDEN, EUGENE COLEMAN and ANTHONY GRANT, Defendants



The opinion of the court was delivered by: EDELSTEIN

OPINION AND ORDER

EDELSTEIN, District Judge:

Defendant Donald Payden ("Payden") has filed pretrial motions covering a wide range of issues. Defendants Anthony Grant ("Grant") and Eugene Coleman ("Coleman") have joined in Payden's motions. The background of this case has been set forth elsewhere, see United States v. Payden, No. SS 84 Cr. 566 (DNE) (S.D.N.Y. June 7, 1985), appeal argued, No. 85-1216 (2d Cir. June 28, 1985); in re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 605 F. Supp. 839 (S.D.N.Y. 1985), rev'd, No. 85-6066, slip op. at 4909 (2d Cir. June 27, 1985); United States v. Payden, 598 F. Supp. 1388 (S.D.N.Y. 1984), rev'd, 759 F.2d 202 (2d Cir. 1985). Familiarity with these opinions is assumed so that only the facts directly relevant to the pretrial motions will be set forth herein.

 BACKGROUND

 An indictment was filed on August 13, 1984 charging defendants Payden and Coleman with conspiring to violate the narcotics laws of the United States, in violation of 21 U.S.C. § 846, and charging Payden with distribution and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. A superseding indictment was filed on October 10, 1984, which added charge against defendant Grant for conspiracy and further charged Payden with organizing and supervising a continuing criminal enterprise, in violation of 21 U.S.C. § 848. A second superseding indictment was filed on February 25, 1985, which contained a more detailed list of items sought by the government from Payden, pursuant to the forfeiture provisions of 21 U.S.C. § 848.

 DISCUSSION

 I. DISMISSAL OF THE INDICTMENT

 The defendants present a number of potential grounds to dismiss the indictment. Most of these arguments are boilerplate and may be dismissed summarily.

 A. Multiple Conspiracies

 The defendants contend that the conspiracy count of the indictment must be dismissed because it alleges multiple conspiracies. Specifically, defendants contend that count one, which alleges a conspiracy between the three defendants and others beginning in 1979 and continuing until 1984, charges several conspiracies, separated by time, location and intermediaries.

 An indictment is sufficient if it: (1) contains the elements of the offense charged: (2) fairly informs the defendant of the nature of the criminal activity with which he is charged; and (3) enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. United States v. Carrier, 672 F.2d 300, 303 (2d Cir.), cert. denied, 457 U.S. 1139, 73 L. Ed. 2d 1359, 102 S. Ct. 2972 (1982). "It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as 'those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.'. . .'Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.'" Hamling v. United States, 418 U.S. 87, 117-18, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974) (quoting United States v. Carll, 105 U.S. 611, 612, 26 L. Ed. 1135 (1882) and United States v. Hess, 124 U.S. 483, 487, 31 L. Ed. 516, 8 S. Ct. 571 (1888)). *fn1"

 Count one charges a conspiracy spanning over five years, and lists nine overt acts committed in furtherance of the conspiracy. Rule 8(a) of the Federal Rules of Criminal Procedure prohibits the charging of more than one offense in one count. Rule 7(c), however, specifically authorizes charging in a single count that an offense was committed by more than one means. "The charging of multiple means constituting a single and continuing offense is thus permitted even though the components of the single offense may otherwise be treated as separate offenses . . . .The question that arises, therefore, is whether the statute under which the defendants have been charged 'by its very nature, contemplates that several separate transactions form a single, continuing scheme, and may therefore be charged in a single count.'" United States v. Abrams, 543 F. Supp. 1184, 1190 (S.D.N.Y. 1982) (quoting United States v. Daley, 454 F.2d 505, 509 (1st Cir. 1972)); see United States v. Berardi, 675 F.2d 894, 897-99 (7th Cir. 1982).

 The narcotics conspiracy statute, 21 U.S.C. § 846, does "by its very nature contemplate that several separate transactions form a single, continuing scheme." See United States v. Perry, 550 F.2d 524, 531 (9th Cir.), cert. denied, 434 U.S. 918, 97 S. Ct. 2182, 53 L. Ed. 2d 228 (1977) and 434 U.S. 827, 98 S. Ct. 104, 54 L. Ed. 2d 85 (1977); United States v. Panebianco, 543 F.2d 447, 452-53 (2d Cir. 1976) ("Most narcotics networks involve loosely knit vertically-integrated combinations . . . [I]ndividual customers and suppliers are members of one overall conspiracy if they are aware of the size of the middleman's operations. . . .Parallel sales operations can be part of the same conspiracy if there is evidence of mutual dependence and support . . . Hibernation for a few months does not necessarily signal the end of a criminal partnership. . . .Nor is a conspiracy terminated simply by turnover in some of the personnel"), cert. denied, 429 U.S. 1103, 97 S. Ct. 1128, 51 L. Ed. 2d 553 (1977). Even assuming, as the defendants contend, that the alleged conspirators were at various points separated by time, location and intermediaries, this does not warrant dismissal of the indictment as multiplicitous. United States v. Moten, 564 F.2d 620, 624-25 (2d Cir.), cert. denied, 434 U.S. 942, 959, 98 S. Ct. 438, 54 L. Ed. 2d 304 (1977), 434 U.S. 974, 98 S. Ct. 531, 54 L. Ed. 2d 531 (1977). Accordingly, the indictment is not void for charging multiple conspiracies. *fn2"

 Payden contends that the evidence will show separate networks of drug dealing. At this juncture, however, the court is not in a position to judge the nature and the weight of the evidence to be introduced at trial. Any confusion the jury might suffer because of the nature of the conspiracy charged and proved may be ameliorated by instructing the jury on multiple conspiracies. See United States v. Konefal, 566 F. Supp. 698, 702 (N.D.N.Y. 1983) ("Defendants will be protected from jury confusion or multiplicity problems by the use of appropriate jury instructions."). The government has stated that it will not object to such a charge. Government's Memorandum in Opposition to Payden's Pretrial Motions at 19. If at the close of the evidence, the court is convinced that "the evidence shows separate networks operating independently of each other," United States v. Barlin, 686 F.2d 81, 89 (2d Cir. 1982), the court will instruct the jury on multiple conspiracies, see United States v. Wilkinson, 754 F.2d 1427, 1434 (2d Cir. 1985).

 B. The Forfeiture Count.

 Payden also contends that count two, the 848 count, must be dismissed because it does not satisfy the notice requirements of Rule 7(c). This objections is unfounded. Rule 7(c)(2) provides: "No judgment of forfeiture may be entered in a criminal proceeding unless the indictment or the information shall allege the extent of the interest or property subject to forfeiture." All that is required under this rule is a broad allegation regarding the items sought through forfeiture. See, e.g., United States v. Grammatikos, 633 F.2d 1013, 1024 (2d Cir. 1980); United States v. Thevis, 474 F. Supp. 134, 145 (N.D. Ga. 1979); United States v. Bergdoll, 412 F. Supp. 1308, 1318-19 n.17 (D. Del. 1976). Count two seeks forfeiture of all profits and proceeds of profits obtained by Payden from the alleged continuing criminal enterprise and four specific items, namely $2,000.00 in cash, a twenty-five per cent interest in a company represented by shares of stock held in another person's name, an automobile and jewelry seized from Payden's home. The forfeiture count also contains an appendix which describes, in detail, the jewelry the government charges is forfeitable. There can be no credible claim that the indictment does not sufficiently allege "the extent of the interest or property subject to forfeiture," as required by Rule 7(c)(2). *fn3" See United States v. Grammatikos, 633 F.2d 1013 (2d Cir. 1980); United States v. Thevis, 474 F. Supp. 134 (N.D. Ga. 1974).

 In his supplemental pre-trial motion, Payden also seeks to strike from the indictment that part of the 848 count which seeks forfeiture of an automobile and jewelry. Payden contends that because the 848 count alleges that the enterprise began in January of 1979, it was the government's burden in presenting evidence before the Grand Jury to establish probable cause that the automobile and jewelry were purchased by Payden after January of 1979. Payden states that he has gathered evidence contrary to the government's charge that the assets were acquired after the commencement of the alleged enterprise.

 This argument is rejected. It is well established that a facially valid indictment returned by a legally constituted and unbiased grand jury may not be challenged on the ground that it was based on inadequate evidence. Costello v. United States, 350 U.S. 359, 363-64, 100 L. Ed. 397, 76 S. Ct. 406 (1956); United States v. Harley, 221 U.S. App. D.C. 69, 682 F.2d 1018, 1021 (D.C. Cir. 1982); United States v. Blitz, 533 F.2d 1329 (2d Cir.), cert. denied, 429 U.S. 819, 50 L. Ed. 2d 79, 97 S. Ct. 65 (1976); United States v. Chawla, 482 F. Supp. 1136, 1140 (E.D.N.Y. 1980). *fn4" Whether the government has established that the assets sought in the superseding indictment are fruits of the continuing criminal enterprise is a question for the jury. See United States v. Murillo, 709 F.2d 1298 (9th Cir. 1983); Fed. R. Crim. P. 31(e).

 II. INSPECTION OF GRAND JURY MINUTES.

 Payden contends that the Grand Jury minutes should be disclosed based on a showing of "particularized need" or, in the alternative, that disclosure is required because grounds may exist to dismiss the indictment based on matters occurring before the Grand Jury, Fed. R. Crim. P. 6(e) (3)(C)(ii).

 A. "Particularized Need"

 A party seeking disclosure of grand jury minutes must show a particularized need that outweighs the government's strong interests in secrecy. *fn5" United States v. Moten, 582 F.2d 654, 662 (2d Cir. 1978). The pendency of a grand jury inquiry places an especially heavy burden on the party seeking disclosure of grand jury minutes. In re Grand Jury Proceedings, 760 F.2d 436, slip op. at 3402 (2d Cir. 1985). Thus, even when the defendant demonstrates a "particularized need" for disclosure, the grand jury minutes may not be disclosed if "the grand jury investigation remains sufficiently active that disclosure of materials would prejudice a legitimate interest of the government." United States v. Moton, supra, 582 F.2d at 663. There are numerous strong policy reasons for secrecy when a grand jury investigation remains active:

 
"(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering of witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt."

 Id. at 662 (quoting United States v. Amazon Indust. Chem. Corp., 55 F.2d 254, 261 (D.Md. 1931)).

 Payden's asserted "particularized need" for inspection of the Grand Jury minutes is his belief that the evidence presented to the Grand Jury was tainted and unreliable. Memorandum of Law in Support of Payden's PreTrial Motions, at 28-35. The Grand Jury, however, is still investigating the existence of additional co-conspirators and additional items for forfeiture. *fn6" Moreover, on March 22, 1985, the government submitted an affidavit, in camera, which alleges a history of violence and threats of violence by Payden that makes continued secrecy of the Grand Jury proceedings particularly important. The government's allegation that defendant threatened the life of Claudine J. Jones, one of the government's witnesses against Payden, was substantiated by the testimony of James Turner at the bail hearing held by this court beginning May 9, 1985. United States v. Payden, No. SS 84 Cr. 566 (DNE), slip op. at 7-14 (S.D.N.Y. June 7, 1985), appeal argued, No. 85-1216 (2d Cir. June 28, 1985). Under the circumstances of this case, the government's need for secrecy of the Grand Jury proceedings outweighs Payden's alleged "particularized need." Accordingly, the court will not allow disclosure to Payden of the Grand Jury minutes under the "particularized need" test.

 B. Grounds to dismiss the indictment: Prosecutorial Misconduct.

 Payden seeks dismissal of the indictment based on prosecutorial misconduct or, in the alternative, disclosure of Grand Jury minutes, because the prosecutor's alleged misconduct before the Grand Jury may constitute a sufficient basis for dismissal of the indictment. There are several allegations of misconduct.

 1. Excessive Use of Hearsay.

 Payden contends that the government's excessive use of hearsay before the Grand Jury warrants dismissal of the indictment. The Second Circuit has developed the doctrine of prosecutorial misconduct to quash indictments based on the unreasonable use of hearsay before the grand jury. See United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972). See generally Note, The Prosecutor's Unnecessary Use of Hearsay Evidence Before the Grand Jury, 61 Wash. U.L.Q. 191, 201-06 (1983) (discussion of prosecutorial misconduct doctrine). Extensive use of hearsay is "disfavored," United States v. Hogan, 712 F.2d 757, 761 (2d Cir. 1983), but permissible "when direct evidence is unavailable or when it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge." United States v. Umans, 368 F.2d 725, 730 (2d Cir. 1966). See also United States v. Bari, 750 F.2d 1169, 1176 (2d Cir. 1984) ("Although hearsay can mislead a grand jury as to the strength of the government's case, there is no per se prohibition on its use"); United States v. Bein, 728 F.2d 107, 113 (2d Cir.) ("Presentation to a grand jury of hearsay or other evidence inadmissible at trial is not per se prohibited, . . . at least so long as the reliance upon it is not so extensive as to mislead the grand jury as to the strength of the evidence."), cert. denied, 469 U.S. 837, 105 S. Ct. 135, 83 L. Ed. 2d 75 (1984). The indictment may be dismissed based on the excessive use of hearsay if the government's use of hearsay misleads the grand jury to believe that the testimony before them was firsthand when it was in fact hearsay. United States v. Ramirez, 482 F.2d 807, 812 (2d Cir.), cert. denied, 414 U.S. 1070, 94 S. Ct. 581, 38 L. Ed. 2d 475 (1973); see United States v. Ginsberg, 758 F.2d 823, 830 (2d Cir. 1985); United States v. Bari, supra, 750 F.2d at 1176-77. Another formulation of the test is that if an indictment would not have been handed down had first-hand information been presented to the grand jury, then the indictment must be dismissed. United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir. 1972).

 In this case, Payden does not contend that the government misled the jury into believing that the hearsay testimony they heard was first-hand or that the government failed to inform the Grand Jury that it had a right to demand live witnesses. Rather, Payden contends that the government's excessive use of hearsay deprived him of the ability to impeach prosecution trial witnesses through the use of their Grand Jury testimony, pursuant to the Jencks Act, 18 U.S.C. § 3500. The government, however, is not required under the Jencks Act to call its best available witnesses before the grand jury so that their testimony could be recorded for the defendant's benefit. United States v. Head, 586 F.2d 508, 511 (5th Cir. 1978). Moveover, the government contends that the use of hearsay before the Grand Jury was "imperative," in light of the Grand Jury's "covert investigation followed by arrest and indictment within ten days of arrest." Government's Memorandum in Opposition to Donald Payden's Pretrial Motions at 24. Under the circumstances of this case, Payden has failed to show that the government's use of hearsay before the Grand Jury warrants dismissal of the indictment, or even inspection of the Grand Jury minutes. Thus, the Grand Jury minutes cannot be disclosed on this basis.

 2. Other Misconduct.

 Payden also contends that the Grand Jury minutes would demonstrate other forms of prosecutorial misconduct in front of the Grand Jury. *fn7" The court has already determined that the information should not be disclosed because of the pendency of the Grand Jury investigation. However, even if the Grand Jury investigation were not continuing, defendant's claims of prosecutorial misconduct before the Grand Jury are not of sufficient severity to require either dismissal or disclosure. *fn8"

 Payden alleges three instances of prosecutorial misconduct. First, Payden contends that the government played an intercepted conversation between Payden and a third person involving the sexual proclivity of one of Payden's girlfriends while this girlfriend was testifying in front of the Grand Jury. Second, Payden contends that the United States Attorney served a Grand Jury subpoena returnable on a date that the Grand Jury was not meeting and called the witnesses into the United States Attorney's office for questioning. ...


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