The opinion of the court was delivered by: Sand, District Judge.
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.
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
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.
A. Defendants' Motion to Dismiss
For purposes of evaluating a motion to dismiss an
indictment, all well-pleaded allegations are taken as true.
United States v. South Florida Asphalt Co., 329 F.2d 860, 865
(5th Cir.), cert. denied, 379 U.S. 880, 85 S.Ct. 149, 13
L.Ed.2d 87 (1964).
A motion to dismiss is not a device for the summary trial of
the evidence; it is addressed only to the facial validity of
the indictment. See United States v. Winer, 323 F. Supp. 604,
605 (E.D.Pa. 1971). So long as the indictment sets forth the
elements of the offense in sufficient detail to provide the
defendant with notice of the charges against him and does not
present double jeopardy problems, it is impervious to attack on
a motion to dismiss. See United States v. Mobile Materials,
Inc., 871 F.2d 902, 906 (10th Cir. 1989).
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 ...