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December 4, 1985


The opinion of the court was delivered by: WEINFELD


The defendants, Gus Kalevas and Thomas Davenport, are named in a seven-count indictment charging them with obstructing and impeding a grand jury investigation, subornation of perjury, intimidation of witnesses, the making of false statements before a grand jury, and conspiracy to commit the aforementioned acts. The indictment alleges that Kalevas and Davenport conspired to obstruct a grand jury investigation of Kalevas' activities in connection with an interstate prostitution business. Specifically, the indictment charges that Kalevas and Davenport, a lawyer specializing in criminal defense practice, procured and induced Albert Schlanger, Charles Leris and Russel Joseph, all of whom were associated with the affairs of the Roxy Burlesque Theatre, to testify falsely before the grand jury. *fn1" In addition, the indictment alleges that Davenport violated 18 U.S.C. § 1512 by using intimidation and by threats, and engaging in misleading conduct to cause potential grand jury witnesses to evade subpoenas by the grand jury. The indictment further charges, in a separate count in which only Kalevas is named, that he violated 18 U.S.C. § 1623 by giving false testimony to the grand jury by submitting a document that misstated the income of the Roxy Burlesque Theatre for the week of June 4, 1984.

 Defendant Davenport moves to dismiss the indictment and requests additional discovery, a bill of particulars, and severance from the trial of Kalevas. Kalevas moves to sever his trial from that of Davenport. *fn2"


 Davenport moves to dismiss the indictment, or alternatively for an in camera inspection of the grand jury proceedings, on the grounds that the grand jury may not have been informed of the criminal activities of the grand jury witnesses; that the grand jury may have been improperly instructed on the applicable laws; and that if Schlanger, Leris and Joseph did not testify before the grand jury, the limitations on the use of hearsay evidence in grand jury proceedings were exceeded. Davenport has not presented the slightest evidential support for these conjectural claims. Given the absence of any factual support for the allegations of misconduct, there is no reason to disregard the presumption of regularity of grand jury proceedings by either dismissing the indictment or inspecting the minutes in camera. *fn3" "Speculation and surmise as to what occurred before the grand jury is not a substitute for fact." *fn4" While counsel for Davenport stated during oral argument that his investigator "had been told" by counsel for Joseph that Joseph did not testify before the grand jury and that "there was a strong question" whether Schlanger had testified, Davenport has submitted no affidavit from Joseph or Schlanger to support the claim that they did not appear before the grand jury or any explanation for failure to submit one. *fn5" If an inspection of grand jury minutes were to be granted on the paucity of "information and belief allegations" here submitted, in effect it would mandate the granting of such applications in almost every case -- a result contrary to the long established policy in this circuit *fn6" and upheld by the Supreme Court. *fn7"

 The Supreme Court, in Costello v. United States, *fn8" made clear that an indictment, valid on its face, returned by a legally constituted and unbiased grand jury is all that is required by the Fifth Amendment. *fn9" While courts have carved narrow exceptions to the Supreme Court's holding in Costello, *fn10" dismissal of the indictment is not warranted, whether or not Joseph appeared before the grand jury. "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." *fn11" Similarly, the prosecution is under no obligation to present evidence of the backgrounds of witnesses appearing before the grand jury since impeachment evidence would not constitute substantial evidence negating other proof offered to establish probable cause that the defendant committed the crimes charged. *fn12" Davenport's motion to dismiss the indictment is denied.

 Davenport also moves to dismiss count six of the indictment on two grounds. First, he alleges that count six, which charges him with violations of 18 U.S.C. § 1512, is "improperly pleaded" because it does not provide enough information to allow preparation of defenses and to protect against double jeopardy. Count six states, in its entirety:

 The Grand Jury further charges:

 In or about May, June, and July 1984, in the Southern District of New York and elsewhere, defendant THOMAS DAVENPORT, and others known to the Grand Jury, unlawfully, willfully and knowingly did use intimidation and threaten other persons and attempt to do so, and engaged in misleading conduct towards other persons, with intent to cause and induce said persons to evade legal process summoning those persons to appear as witnesses in an official proceeding, to wit, a Grand Jury investigation in the United States District Court for the Southern District of New York.

 (Title 18, United States Code, Sections 1512 and 2.)

 The foregoing sufficiently, although not in great detail, informs the defendant of the crime charged; it both parallels the language of section 1512 and sets forth an approximate time and place for the acts allegedly committed. Our Court of Appeals has stated on several occasions that "an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." *fn13" Here, in addition to the constitutionally sufficient indictment allegation, *fn14" the government, by letter dated October 10, 1985, has provided the defendants with the names of the alleged victims of the intimidation and with more specific dates.

 Second, in arguing for dismissal of count six Davenport raises several constitutional challenges to 18 U.S.C. § 1512, which is part of the Victim and Witness Protection Act of 1982. *fn15" Davenport argues that count six is constitutionally defective because 18 U.S.C. § 1512(c) shifts the burden of proof from the government to the defendant. Section 1512(c) provides an affirmative defense to a defendant "that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify truthfully," as to which the defendant has the burden of proof by a fair preponderance of the evidence. Davenport asserts that section 1512(c) violates the Supreme Court's decision in Mullaney v. Wilbur16 striking down a Maine statute that did not require the prosecution to prove every element of the offense charged beyond a reasonable doubt.

 In Patterson v. New York, *fn17" decided two years after Mullaney, the Supreme Court upheld New York's murder statute, which provides an affirmative defense of "extreme emotional disturbance" which the defendant must prove by a preponderance of the evidence. The Court made clear that neither Mullaney nor the Constitution prohibits a legislature from requiring a defendant to prove an affirmative defense by a preponderance of the evidence. The Court reaffirmed that the Due Process Clause requires that the prosecution prove each and every element of the crime charged beyond a reasonable doubt, but held that it need not negate by such a standard the non-existence of affirmative mitigating defenses that may be raised. *fn18"

 The indictment, based upon the statute, sets forth the elements of the offense -- the knowing use of intimidation or physical force, threats, or misleading conduct, with intent to cause or induce any person to evade legal process *fn19" -- which the prosecution must prove beyond a reasonable doubt. The elements of the affirmative defense, the lawful nature of the conduct and the intent to encourage, induce, or cause truthful testimony, are independent facts, proof of which would be sufficient to avoid criminal liability. *fn20" Section 1512(c) does not impermissibly shift the burden of proof to a defendant. The government, to prevail, and despite evidence to sustain the ...

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