outsiders" in subsections (a) and (b) (at 1173).
Turning, then, to the Indictment and the Bill of Particulars, the question is whether anything in either document suggests (let alone alleges) that defendant exerted any "control" over the Surrogates Court or played any part in its direction, operation, or management. The answer has to be that neither document makes such a suggestion.
All the Indictment and Bill of Particulars claim defendant to have done with respect to the Surrogates Court is to have betrayed the trust that the Surrogate had imposed upon him by misappropriating funds over which he had fiduciary control; there is no suggestion that he ever "directed" anyone else to do anything.
In this connection we may observe that we need not concern ourselves with the possibility that Count 1 might be saved under the Court's caveat that "an enterprise also might be 'operated' or 'managed' by others 'associated with' the enterprise who exert control over it as, for example, by bribery." 113 S. Ct. at 1173. Neither the Indictment nor the Bill of Particulars suggests that defendant ever bribed or attempted to bribe the Surrogate. The allegation that he obtained appointments by "cultivating a personal relationship" with the Surrogate (Bill of Particulars at 4) cannot conceivably be construed as suggesting the exercise of control over the court's activities. Count 1 of the indictment must therefore be dismissed.
Before concluding we wish to memorialize the candor and professionalism Assistant United States Attorney Paul Engelmayer displayed in the argument of this motion. Toward the end of the argument it began to occur to us that although Count 1 might be defective, proof of all of defendant's alleged iniquities would be placed before the jury in connection with the other 22 counts; that the conduct of the trial would not be substantially affected by the existence of the RICO count; and that danger of duplicitous appeals should be avoided by allowing the count to stand. When we put this suggestion to the defense it responded with a general assertion that the atmosphere engendered by a RICO racketeering accusation was inherently prejudicial. This left us with the impression that we could remedy the defect by our conduct of the trial. When we turned to the Government for comment, the prosecutor did not fudge the issue with some vague remark such as that he could not quarrel with the defendant's position, but laid out in detail the categories of prejudicial evidence that would be available only if the count were sustained. In these days when one hears so much talk of the Bar's loss of professionalism, it is gratifying to be presented with cogent contrary evidence.
In conclusion, Count 1 of the Indictment must be -- and therefore is -- dismissed.
New York, New York
May 11, 1993
WHITMAN KNAPP; SENIOR U.S.D.J.
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