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UNITED STATES v. ALLOCCO

September 24, 1992

UNITED STATES OF AMERICA, against NICHOLAS ALLOCCO, Defendant.


The opinion of the court was delivered by: DENIS R. HURLEY

MEMORANDUM AND ORDER

 HURLEY, District Judge

 The defendant in the above-referenced prosecution is charged with five counts of mail fraud for filing fictitious and inflated claims in connection with his fire-damaged property. Currently before the Court are defendants pre-trial motions as well as the government's motion in limine to admit evidence pursuant to Fed. R. Evid. 404(b). For the reasons stated below, the Court denies defendant's motions, except to the extent that the government must furnish him with certain particulars; grants the government's motion in part, subject to the proviso noted below; and denies the government's motion in part.

 BACKGROUND

 At the beginning of 1989, defendant planned to open a wholesale video store in a leased building at 989 Wyckoff Avenue in Queens. He endorsed his Warwick fire insurance policy to cover this location. Just prior to the opening of the store, a fire occurred. The fire marshal reported that the fire was the result of "careless smoking", but an independent fire protection consultant concluded that the fire had been purposefully set.

 On March 6, 1989, through his broker, defendant telephonically made his claim for damages allegedly resulting from the aforementioned fire. He submitted sworn Proof of Loss statements for the coverage limits of the policy, $ 1.5 million, as well as invoices to support those statements. The invoices only supported a fraction of the claim, and handwriting analyses revealed that defendant had authored several of the invoices. Moreover, the businesses that had purportedly issued the fictitious invoices were not in business at the time the invoices were dated.

 On April 24, 1992, the Grand Jury returned a superseding indictment charging defendant with five counts of mail fraud.

 Defendant now moves for the following: a dismissal of all but the first count of the superseding indictment on the ground that the subsequent counts are multiplicitous of the first; a bill of particulars providing the names of the "others" referred to in the indictment and date, time and place information; an order conferring immunity on Barry E. Babich, a potential witness for the defense; the preclusion of any evidence of arson; and the preclusion of defendant's testimony before a grand jury in a separate investigation. For its part, the government moves in limine for the admission pursuant to Fed. R. Evid. 404(b) of defendant's fraudulent claims to the United Parcel Service ("UPS") and Federal Express.

 I. Defendant's Motions

 A. Multiplicitous Counts

 Defendant claims that Counts One through Five of the superseding indictment relate to a single scheme and have been charged in separate counts in violation of double jeopardy. Therefore, defendant asks that the Court dismiss Counts Two through Five, or, in the alternative, that the Court order the government to disclose in advance of trial which counts they intend to rely upon in prosecuting defendant.

 It is well recognized that allegations of separate mailings in furtherance of a scheme to defraud are not multiplicitous. See United States v. Biaggi, 675 F. Supp. 790, 800 (S.D.N.Y. 1987); United States v. Gordon, 493 F. Supp. 814 (N.D.N.Y. 1980) ("Each mailing, or its use in the execution of the alleged scheme to defraud, may be [separately] charged.") (citations omitted), aff'd, 655 F.2d 478 (2d Cir. 1981); United States v. Brodbeck, 430 F. Supp. 1056, 1060 (E.D. Wis. 1977) ("'There is no doubt that the law may make each putting of a letter into the post office a separate offense.'") (quoting United States v. Joyce, 499 F.2d 9, 18 (7th Cir. 1974) (citation omitted); see also 1A L. Sand, et al., Modern Federal Jury Instructions, Instruction 44-3, Comment at 44-11 (1990 ed.) ("Each separate use of the mails in furtherance of a scheme to defraud constitutes a separate offense.") (citing Fifth Circuit Pattern Instruction No. 2.54). The superseding indictment in this case cites to five separate instances of defendant's alleged use of the mails for fraudulent purposes, including two letters mailed approximately April 11, 1989 (Counts One and Two); one ...


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