Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. MCGUINNESS

May 21, 1991

UNITED STATES OF AMERICA
v.
PASCHAL MCGUINNESS, DEFENDANT.



The opinion of the court was delivered by: Robert L. Carter, District Judge.

  OPINION

Counts Two and Three of the indictment charge McGuinness with accepting, agreeing to accept and aiding and abetting the acceptance of payments from two particular employers, Cord Contracting and Elgem Sales and Service, in violation of 29 U.S.C. § 186(a)(1), (b)(1) and 18 U.S.C. § 2. Counts Four and Five charge him with accepting and agreeing to accept the same payments as those alleged in Counts Two and Three, but as violative of 29 U.S.C. § 186(a)(4), (b)(1) and 18 U.S.C. § 2. See United States v. Ricciardi, 357 F.2d 91 (2d Cir.) (indictment charging defendant with receiving payment both as representative of employees and as officer of labor union is proper, as these are separate offenses under the statute), cert. denied, 384 U.S. 942, 86 S.Ct. 1464, 16 L.Ed.2d 840 (1966).

By pretrial motion, McGuinness seeks an order dismissing Counts Two through Five; striking certain of the overt acts in Count One; and directing the government to file a bill of particulars, to obtain all state law enforcement files relating to the New York State investigation of him, to furnish state court orders permitting the release of state grand jury proceedings, and to provide material pursuant to Rule 16, F.R.Cr.P., and pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). By separate motion, McGuinness seeks to suppress the fruits of certain electronic eavesdropping evidence.

I.  PRETRIAL MOTION
A.  Counts Two through Five

McGuinness asserts that Counts Two through Five should all be dismissed on the grounds that (1) they are time-barred under the applicable five-year statute of limitations, 18 U.S.C. § 3282, (2) they allege multiple crimes within each count, in violation of Rule 8(a), F.R.Cr.P., and (3) they fail to give him fair notice of the charges against him, in violation of Rule 7(c)(1), F.R.Cr.P. Underlying all three arguments for dismissal is McGuinness's characterization of each of Counts Two through Five as involving multiple offenses, since multiple payments are alleged in each of these counts. Citing United States v. Cohen, 384 F.2d 699 (2d Cir. 1967), McGuinness asserts that each payment alleged to have been made in violation of the Act must be charged as a separate offense.

Counts Two and Four, alleging payments from Cord Contracting, identify the payments as having been made from the "[l]ate 1970's up to and including December 1985," and amounting altogether to $6,000. Counts Three and Five, alleging payments from Elgem Sales and Service, identify the payments as having been made from "in and about 1980 up to and including 1986," and amounting altogether to $16,000. All of these counts also allege, in incorporating by reference a paragraph from the conspiracy count, that McGuinness accepted payments from employers "to maintain the goodwill of the [union] officials who controlled which carpenters would be supplied to a particular employer and to discourage those officials from sending incompetent or unskilled workers." Indictment ¶ 9.

1. Statute of Limitations

The indictment was filed on November 29, 1990. McGuinness contends that counts Two through Five are barred by the applicable five-year statute of limitations because they incorporate payments made before November 29, 1985.

From a plain reading of the indictment, it is evident that each of Counts Two through Five charges McGuinness with a continuing offense, although the indictment could have been drafted more explicitly. "A continuing offense is one which by its nature or by its terms is a single, ongoing crime." United States v. Castellano, 610 F. Supp. 1359, 1408 (S.D.N.Y. 1985) (Sofaer, J.). The various payments aggregated in each of Counts Two through Five point to a continuous course of conduct, involving the same employer and the same underlying agreement to accept payments in exchange for favorable treatment in the assignment of workers. See, e.g., United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989) ("acts that could be charged as separate counts of an indictment may instead be charged in a single count if those acts could be characterized as part of a single continuing scheme"), cert. denied, ___ U.S. ___, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990).

The holding in Cohen, supra, 384 F.2d at 700, does not bar the government from proceeding against McGuinness on such aggregated charges. In that case, the Second Circuit held that the government is not limited to one count against the defendant when several payments in violation of the Act have been made pursuant to a single agreement. Nothing in Cohen dictates that a defendant must be charged with a separate offense for each particular alleged payment simply because he may be so charged. In fact, aggregation of separate payments otherwise prohibited by the Act has been held to be proper, where, as here, there was an alleged scheme or mechanism under which recurring bribes were made. United States v. Papia, 910 F.2d 1357, 1364-65 (7th Cir. 1990).

While each of Counts Two through Five encompasses payments that were allegedly made outside the statute of limitations period, each charges McGuinness with having continued to commit a substantive offense into the limitations period. Each of Counts Two through Five is therefore timely charged under 18 U.S.C. § 3282. See, e.g., United States v. Rastelli, 870 F.2d 822, 839 (2d Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 515, 107 L.Ed.2d 516 (1989).

2. Duplicity

Rule 8(a), F.R.Cr.P., provides for the joinder of offenses in the same indictment, "in a separate count for each offense." As the Court of Appeals has explained:

  Important policy considerations underlie the rule
  that two or more distinct crimes should not be
  alleged in a single count of an indictment. If an
  indictment is duplicitous, a general verdict of
  guilty will not reveal whether the jury found
  defendant guilty of only one crime and not the
  other, or guilty of both. Moreover, a guilty
  verdict on a duplicitous indictment does not
  indicate whether the jury found defendant guilty
  without having reached an unanimous verdict on
  the commission of a particular offense. Thus, the
  prohibition of duplicity is said to implicate a
  defendant's rights to notice of the charge
  against him, to a unanimous verdict, to
  appropriate sentencing and to protection against
  double jeopardy in subsequent prosecution.

United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980) (citations omitted).

However, a single count of an indictment is not necessarily duplicitous in violation of Rule 8(a) whenever it contains several allegations that could have been charged as separate offenses. United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981). The doctrine of duplicity should be invoked only when an indictment implicates the underlying policy considerations of Rule 8(a). Id. at 732-33; Murray, supra, 618 F.2d at 896.

Counts Two through Five, assessed in view of these policy considerations, present some danger of infringement on McGuinness's rights. Dismissal of the counts is unwarranted, however, because this possibility can be avoided. First, instructions to the jury can be tailored and the jury can be provided with a special verdict form in order to meet McGuinness's concerns about a unanimous jury verdict. Second, with respect to McGuinness's rights to adequate notice of the charges against him and to protection against double jeopardy, the government shall be required to furnish a bill of particulars listing the approximate date and amount of each alleged payment encompassed within Counts Two through Five. See, e.g., United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) (function of bill of particulars is to provide defendant with information necessary for him to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense); see also Castellano, supra, 610 F. Supp. at 1381. The bill of particulars should also disclose for each such payment the name of the person making the payment, if known to the government. The government shall file this bill of particulars within a reasonable time, not to exceed one week after receipt of this opinion.

Since this bill of particulars will provide McGuinness with the requisite notice of the charges against him, the court need not discuss McGuinness's argument for dismissal of Counts Two through Five on Rule 7(c) grounds.

B.  Overt Acts

McGuinness next argues that the court should strike certain of the overt acts included in the conspiracy count, for essentially the same reasons as those in support of dismissing Counts Two through Five. Specifically, he contends that an overt act is by definition a singular act, transaction or event, and that overt acts (f), (g), (n), (y) and (z) must therefore be stricken because they all allege multiple payments, not single payments.

As overt act (f), the indictment charges that "[f]rom December 1980 up to and including December 1982, in New York, New York, a representative of Pomar Construction made payments each Christmas of approximately $500 to $1000 in cash to John O'Connor for distribution to the officers and employees of Local 608, including the defendant, Paschal McGuinness." The indictment charges similar sets of payments, made by different contractors, as overt acts (g), (n), (y) and (z).

First, it is clear from the indictment that each of these overt acts refers to a continuing offense and is therefore properly pleaded for the same reasons that the multiple payments referred to in Counts Two through Five were properly aggregated. Second, there is no case law to support McGuinness's bold assertion that multiple payments cannot be alleged in a single overt act. Third, McGuinness's concerns about a unanimous jury verdict may be addressed by explicit instructions to the jury and by a special verdict form. Finally, to the extent that McGuinness objects to these overt acts on grounds of inadequacy of notice and lack of protection against double jeopardy, the government shall be required to disclose in its bill of particulars the approximate date and amount of each alleged payment encompassed within each of overt acts (f), (g), (n), (y) and (z), as well as the identity of the person making the payment, if known to the government. See Bortnovsky, supra, 820 F.2d at 574.

C.  Bill of Particulars

On January 22, 1991, McGuinness requested the government to furnish him with particulars as to: (1) the names of all co-conspirators; (2) the approximate time at which he allegedly entered the conspiracy; (3) the number of different acts alleged in overt acts (b), (d), (e), (n), (y) and (z), and brief descriptions of each; (4) the names of the Local 608 officials referred to in overt act (m); (5) in which overt acts he allegedly received cash personally; (6) the names of persons who allegedly gave him money other than John O'Connor, a former business representative of Local 608; and (7) whether he is charged in Counts Two through Five as a principal or as an aider and abettor. The government has agreed to provide McGuinness with a list of co-conspirators two weeks prior to trial and has informed him that it intends to proceed against him both as a principal and as an aider and abettor on Counts Two through Five. See Letter of Elizabeth Glazer to Stephen E. Kaufman and Dominic Amorosa, dated February 8, 1991, at 1. The government has taken the view that all of the remaining requested information is not within the proper scope of a bill of particulars. See id.

The approximate amount and date of each payment referred to in overt acts (b), (d) and (e), as well as the name of the person making the payment (if known to the government), should be provided in the government's bill of particulars, for the same reasons that it must provide such information for payments encompassed within Counts Two through Five and overt acts (f), (g), (n), (y) and (z). See supra I(A)(2).

McGuinness requests that the government be ordered to furnish the list of co-conspirators "now," rather than two weeks prior to trial. He cites to no legal authority to support his contention that he is "entitled" to the list before that time. He merely offers conclusory statements that he may have insufficient time to pursue any investigative leads and that he may prepare ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.