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U.S. v. EICHMAN

February 1, 1991

UNITED STATES OF AMERICA
v.
SHAWN DEL EICHMAN AND JOSEPH P. URGO, JR., DEFENDANTS.



The opinion of the court was delivered by: Sand, District Judge.

OPINION

The issue raised by defendants' motions is what constitutes "enter[ing] . . . in a building with intent to commit a crime therein" under the burglary provisions of the New York Penal Law. The government opposes defendants' motions but asks this Court to issue a ruling on how the jury will be charged on the burglary count. For the reasons given below, this Court denies the motion to dismiss and the motion to inspect. However, we grant the government's request and set forth our determination as to how the jury will be charged with respect to the elements of the burglary count.

I. BACKGROUND

The government and the defendants are in substantial agreement as to the facts of this case. On September 11, 1990, defendants Shawn Eichman and Joseph Urgo went to the Armed Forces Recruiting Station at Times Square and climbed onto the roof of the one story structure using a ladder. Once on the roof the defendants poured motor oil over the surface of the roof and onto the exterior signs of the building. The defendants then lowered the American flag flying over the building, doused it with lighter fluid and set it on fire. Defendants claim that their activities were acts of political protest symbolizing their objection to American policy in the Persian Gulf.

Shortly after they ignited the flag, defendants were arrested on the roof by New York City police officers. The next day they were arraigned on a complaint charging attempted arson of the recruiting station. The government subsequently decided not to pursue the arson charge. Instead, the indictment returned by the grand jury charged defendants with three other crimes: (1) injuring and committing depredations against property of the United States, in violation of 18 U.S.C. § 1361, 1362 (1988); (2) reckless endangerment, in violation of 18 U.S.C. § 7, 13 (1988) and N.Y.Penal Law § 120.20 (McKinney 1988); and (3) burglary in the third degree, in violation of 18 U.S.C. § 7, 13 and N.Y.Penal Law § 140.20.

On November 16, 1990, defendants made a request for a Bill of Particulars. The government responded the same day with a letter which states, in part, that "the Government does not contend that the defendants entered within the four walls and beneath the roof of the Recruiting Station. Rather, the Government contends that the defendants unlawfully entered upon the roof of the Recruiting Station." See Government's Memorandum of Law, p. 4.

On December 17, 1990, defendants moved to dismiss the burglary count of the indictment on the ground that absent an allegation that defendants entered within the four walls of the recruiting station, the government would be unable to prove the "entry" element of the burglary count at trial. Defendants moved in the alternative to inspect the minutes of the grand jury proceedings. The government argues that the defendants' motions should be denied because the indictment pleads all the necessary elements of burglary under New York law. However, the government nonetheless asks this Court to reach the merits of defendants' argument regarding the entry element. See Government's Memorandum of Law, p. 6. The government suggests that it would be appropriate for this Court to address the issue in the form of a ruling on how the jury will be charged at trial with regard to the entry element of the burglary charge.

II. DISCUSSION

A. Defendants' Motion to Dismiss

In this case, count three of the indictment pleads all of the elements of the offense of burglary. Under New York law, a person is guilty of burglary in the third degree when he "knowingly enters or remains unlawfully in a building with intent to commit a crime therein." N.Y.Penal Law § 140.20. The third count tracks the statutory language, charging that the defendants "knowingly entered and remained in . . . [the recruiting station] with intent to commit one or more crimes therein." Assuming the factual allegations contained in count three to be true, the count properly pleads the charge of burglary in the third degree. Consequently, the motion to dismiss must be denied.

Defendants argue that while the third count may plead all the elements of burglary, it should be dismissed nonetheless because the government's statements in the Bill of Particulars demonstrate that the government will not be able to prove the element of "entry" at trial. This argument is without merit. Statements made by the government in a Bill of Particulars are not deemed to modify the indictment. See United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1189 (3d Cir. 1984), cert. denied, 470 U.S. 1029, 105 S.Ct. 1397, 84 L.Ed.2d 785 (1985). So long as the indictment properly pleads an offense, it is not subject to challenge on the ground of lack of evidence. See Costello v. United States, 350 U.S. 359, 363-64, 76 S.Ct. 406, 408-09, 100 L.Ed. 397 (1956). Consequently, even if the defendants are correct that the statements in the Bill of Particulars show that the government will have insufficient evidence to prove the crime of burglary, the indictment is not subject to challenge on that ground.

Defendants also argue for dismissal on the ground that the government indicted them on the burglary charge, which is the only felony count in the indictment, in order to punish them for expressing their political views. In response, the government maintains that it could have sought indictment on the charge of attempted arson, which carries a higher penalty than burglary, but did not do so because it thought that the burglary charge better fit the defendants' conduct. The decision whether to prosecute an individual, and for what crime, are matters resting in the sound ...


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