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UNITED STATES v. RAPHAEL

March 5, 1992

UNITED STATES OF AMERICA, against ALAN RAPHAEL, Defendant.

SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet D. J.

 Defendant Alan Raphael ("Raphael") has moved to dismiss the second superseding indictment (the "Indictment") filed against him on grounds that it is barred by the Fifth Amendment's Double Jeopardy clause and that the Government has used the Grand Jury improperly. In the alternative, Raphael seeks an order limiting the Government's use of evidence obtained in recent Grand Jury proceedings and an order quashing subpoenas issued to defense witnesses. Raphael also has moved for an order directing the Government to provide him with discovery and a bill of particulars.

 Prior Proceedings and Facts

 A complete recitation of the pertinent facts and prior proceedings is set forth in the prior opinions in this matter, familiarity with which is presumed. See United States v. Alegria, S 90 Cr. 450 (S.D.N.Y. Nov. 6, 1991); United States v. Alegria, 761 F. Supp. 308 (S.D.N.Y. 1991). Only a brief summary is provided here.

 Raphael was originally named as a defendant along with a number of other persons in an indictment unsealed on November 14, 1990. He and the others were generally charged with altering vehicle identification numbers ("VINs"), possessing vehicles with altered VINs, transporting stolen vehicles, and conspiring to commit these offenses.

 The Grand Jury returned a superseding indictment on February 27, 1991. In it, Raphael was specifically charged in six counts with: (1) conspiracy (Count 1); (2) altering a VIN number (Count 4); (3) unlawfully possessing a vehicle with an altered VIN (Count 10); (4) mail fraud (Count 16); and (5) wire fraud (Counts 17 and 18). The mail fraud count and the second wire fraud count were also listed as overt acts to the conspiracy (Overt Acts 7, 12).

 The first trial ended in a mistrial on May 13, 1991, because the Government failed to disclose certain information to the defense. A second trial was commenced on May 15, 1991. After the close of evidence, the two VIN counts (Counts 4 and 10) were dismissed, see Trial Transcript 2736, and the remaining counts sent to the jury.

 The jury returned guilty verdicts on all four counts. Raphael then moved for an acQuittal or new trial. His motion was granted on November 6, 1991. The first count was dismissed for the Government's failure to prove Raphael's participation in the conspiracy charged in the first superseding indictment. A new trial was ordered for the remaining mail and wire fraud counts.

 On Christmas Eve, December 24, 1991, the Government served a Grand Jury subpoena returnable January 2, 1992, on one of Raphael's defense witnesses, Michael Petrone ("Petrone"). The subpoena stated that it was issued in connection to an investigation of violations of the false statement and wire fraud statutes, see 18 U.S.C. §§ 1001, 1343, although the Government informed Raphael's counsel that it was actually related to an investigation of a possible obstruction of justice.

 Petrone appeared before the Grand Jury on January 7. Soon after he began to testify, the Grand Jury left to file another superseding indictment, i.e. the current Indictment, against Raphael. The Government states that the Indictment actually had been voted on beforehand. Letter in Response 3 (Feb. 5, 1992). The Grand Jury returned, and Petrone's testimony continued.

 Three days later, two other defense witnesses were served with subpoenas. These subpoenas stated that they were in regard to suspected violations of the obstruction of justice and false statement statutes. See 18 U.S.C. §§ 1001, 1503. They are currently adjourned pending resolution of the present motion.

 This motion was filed on January 28, 1992. Oral argument was heard on February 6, 1992, and the motion ...


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