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UNITED STATES v. SCHWIMMER

November 30, 1986

UNITED STATES OF AMERICA
v.
MARTIN SCHWIMMER, Defendant



The opinion of the court was delivered by: MCLAUGHLIN

McLAUGHLIN, District Judge

Defendant is charged in a one-count indictment. It alleges a violation of 18 U.S.C. § 1503, *fn1" which provides, in relevant part, that "[w]hoever corruptly . . . influences, obstructs or impedes, or endeavors to influence, obstruct or impede, the due administration of justice [commits a crime]." Specifically, defendant is alleged to have corruptly endeavored to influence, obstruct and impede the due administration of justice by causing the creation of a false and fabricated document and its submission to a Special Grand Jury. Defendant has made motions seeking dismissal of the indictment, striking of surplusage, disclosure of certain information, and an audibility hearing.

 Facts

 The indictment alleges that on November 21, 1983, a Special Grand Jury was empanelled in this District to inquire into possible violations of the federal anti-racketeering statute and other laws.

 The targets of the investigation were members and associates of the Lucchese crime family. The grand jury was interested in, among other things, certain transactions involving municipal bonds issued by Sullivan County, New York. It sought information concerning the cash purchase by certain individuals of $250,000 worth of those bonds, the subsequent exchange of certain coupons from the bonds for $15,000 in cash, and the subsequent sale of the bonds for $250,000 in cash.

 Defendant Schwimmer is alleged to have been a participant in the bond transactions, and he is alleged to have endeavored to obstruct justice by causing the creation and submission to the grand jury of a false and fabricated document relating to the bonds.

 Discussion

 A. Motion to Dismiss the Indictment

 1. Failure to Identify the Allegedly False Document

 The first ground upon which defendant seeks dismissal is the failure to identify in the indictment the allegedly falsified document that defendant is accused of having caused to be submitted to the grand jury. Defendant argues that this case may be analogized to a perjury prosecution, and cites several cases, see, e.g., United States v. Tonelli, 577 F.2d 194, 200 (3d Cir. 1978), that stand for the proposition that a perjury indictment must set out specifically the allegedly perjurious statement.

 This is not, however, a perjury case. Defendant is charged with obstruction of justice, and the indictment specifies the way in which he is alleged to have obstructed justice: by causing the submission of a false document to the grand jury. See United States v. Friedland, 660 F.2d 919, 930 (3d Cir. 1981) (fact that § 1503 obstruction violation consists of attempt to induce rendering of false testimony does not transform it into a "false statements" case, and specificity requirements for such indictments therefore do not apply), cert. denied, 456 U.S. 989, 73 L. Ed. 2d 1283, 102 S. Ct. 2268 (1982).

 An indictment under section 1503 is sufficient if it "furnishes sufficient information as to the time, place and essential elements of the crime to enable the defendants to prepare for trial and avoid a claim of double jeopardy. United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973) [cert. denied, 415 U.S. 985, 39 L. Ed. 2d 882, 94 S. Ct. 1579 (1974)]." United States v. Weiss, 491 F.2d 460, 466 (2d Cir.), cert. denied, 419 U.S. 833, 42 L. Ed. 2d 59, 95 S. Ct. 58 (1974).

 Here the indictment reveals the approximate time and place of the alleged obstruction, describes the type of obstruction (causing the creation and submission of a false document), names the body before which the due administration of justice was allegedly impeded, specifies the the nature of its inquiry, and sets out in detail particular subject matter to which the alleged false document related.

 The Second Circuit has "consistently sustained indictments which track the language of the statute and, in addition, do little more than state time and place in approximate terms." Salazar, supra, 485 F.2d at 1277. As noted above, the instant indictment does more than that. "[I]t is not necessary that the indictment itself go into evidentiary matters." 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); see United States v. Shoup, 608 F.2d 950, 960 (3d Cir. 1979) (indictment sufficient where it charged obstruction of justice, cited to § 1503, and alleged that defendant impeded investigation conducted by United States Attorney); United States v. Alo, 439 F.2d 751, 756 (2d Cir.) (indictment charging obstruction of justice by giving "false and evasive ...


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