UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
June 29, 1994
UNITED STATES OF AMERICA,
EDWARD UPTON, THOMAS LEWIS, JOSEPH MOSER, EDWARD HAY, CHARLES CATARELLI, STEPHEN JONES, ROY HARDY, ROBERT KNOX, HOLLIS HUFFMAN, CHARLES BRAY, K. RAY STOOKSBURY, ROBERT ZUEGEL, and JACQUES JEAN, Defendants.
The opinion of the court was delivered by: I. LEO GLASSER
MEMORANDUM AND ORDER
GLASSER, United States District Judge:
The twenty-nine count Superseding Indictment in this case arises out of charges of falsification of airplane maintenance records for Eastern Air Lines, Inc. ("Eastern"), at John F. Kennedy International Airport ("JFK") in New York City, and Hartsfield Airport ("Hartsfield") in Atlanta.
Defendants are also charged with obstructing the administration of the law by, among other things, testifying falsely before the Federal Aviation Administration of the Department of Transportation ("FAA"), regarding their knowledge of and participation in a conspiracy to falsify Eastern's maintenance records.
For the purposes of this memorandum and order, the defendants will be referred to as follows. The defendants who worked at JFK, Thomas Lewis ("Lewis"), Joseph Moser ("Moser"), Charles Catarelli ("Catarelli"), Roy Hardy ("Hardy"), Robert Knox ("Knox"), Jacques Jean ("Jean") and Stephen Jones ("Jones"), will be referred to as the "JFK Defendants." The defendants who worked at Hartsfield in Atlanta, Edward Hay ("Hay"), Charles Bray ("Bray"), Hollis Huffman ("Huffman"), K. Ray Stooksbury ("Stooksbury"), and Robert Zuegel ("Zuegel"), will be referred to as the "Atlanta Defendants." Upton worked at Eastern's headquarters in Miami, Florida.
I. Motion to Dismiss or Sever
A. Impermissible Joinder
The Atlanta defendants, Knox, and Upton claim that they were improperly joined in the indictment and that their trials should be severed, pursuant to Rule 8(b) of the Federal Rules of Criminal Procedure,
which permits joinder of multiple defendants if they are alleged to have participated in a common scheme or plan. United States v. Bernstein, 533 F.2d 775, 789 (2d Cir.), cert. denied, 429 U.S. 998, 50 L. Ed. 2d 608, 97 S. Ct. 523 (1976). It is well settled that the good-faith inclusion of a conspiracy count establishes the requisite common scheme or plan and is sufficient to support joinder of defendants under Rule 8(b). United States v. Uccio, 917 F.2d 80, 87 (2d Cir. 1990); United States v. Aiken, 373 F.2d 294, 299-300 (2d Cir.). cert. denied, 389 U.S. 833, 19 L. Ed. 2d 93, 88 S. Ct. 32 (1967). Joinder of a conspiracy count with substantive counts arising from the conspiracy is proper because the conspiracy charge provides a common link and demonstrates the extension of a common plan. Bernstein, 533 F.2d at 789; United States v. Smith, 789 F.2d 196, 206 (3rd Cir.) ("As long as the government has charged conspiracy in good faith, an allegation of conspiracy is a sufficient reason for trying the conspiracy and all substantive offenses together"), cert. denied, 479 U.S. 1017 (1986).
An exception to this general rule is that where counts unrelated to the general conspiracy are alleged, the government has the burden of showing that they are a part of the conspiracy. See United States v. Carrozza, 728 F. Supp. 266, 270 (S.D.N.Y. 1990), aff'd, 956 F.2d 1160 (2d Cir. 1992) (table). In this case all the counts contained in the Superseding Indictment are clearly related to the conspiracy count. This is so, even with regard to the obstruction of justice count, which alleges that certain defendants testified falsely before the FAA. The indictment alleges that the false testimony was a critical component in the over-arching scheme to defraud the federal government and was a part of the original conspiracy.
Accordingly, joinder of all the counts complies with Rule 8(b). See United States v. Cunningham, 723 F.2d 217, 229. (2d Cir. 1983), cert. denied, 466 U.S. 951, 80 L. Ed. 2d 540, 104 S. Ct. 2154 (1984).
Defendants heavily rely on United States v. Rosenblatt, 554 F.2d 36 (2d Cir. 1977), in support of their Rule 8(b) motions. In Rosenblatt, an alleged co-conspirator, Brooks, made false entries in the accounts payable records at the Manhattan Postal Service headquarters and obtained checks totalling over $ 180,000, payable to persons having no claim to payment from the Postal Service. Brooks was indicted for conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and testified against the defendant, Rosenblatt. Rosenblatt, a college dean, agreed to "launder" the checks through the college's bank account and keep a certain percentage for his services. He was indicted along with Brooks for a violation of 18 U.S.C. § 317. The Second Circuit reversed the jury verdict of guilty because there was no agreement, either pleaded or proved, as to which fraud was to be executed. The court wrote:
Our difficulty with Rosenblatt's conviction arises from the lack of any agreement between him and Brooks concerning the type of fraud in which they were engaged. It is clear that Brooks was defrauding the United States by obtaining payment for government checks which he had caused to be printed without authorization. The government stipulated, however, that Rosenblatt did not know the truth about Brooks' activities. . . . In other words, both men agreed to defraud the United States, but neither agreed on the type of fraud. On this appeal, Rosenblatt argues that under 18 U.S.C. § 371 a conspiracy must be grounded upon agreement on some common scheme or plan. He maintains that proof of an agreement to defraud, without further qualification as to the nature of the fraud, is insufficient to support a conviction under § 371. We agree and reverse the conviction.
Id. at 38 (emphasis added).
Defendants therefore contend that Rosenblatt stands for the proposition that unless the indictment establishes an agreement among the purported conspirators, the indictment does not satisfy Rule 8(b) and should be dismissed in its entirety. The focus of the court's attention, however, was on the fact that the government did not, and given its stipulation could not, prove an agreement between Brooks and Rosenblatt as to the essential nature of the fraud allegedly perpetrated against the United States in violation of 18 U.S.C. § 371: "Proof of the essential nature of the plan is required because 'the gist of the offense remains the agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant.'" Id. (quoting United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964), cert. denied, 379 U.S. 960 (1965)). The court did not discuss Rule 8(b), joinder or severance and consequently Rosenblatt cannot govern the disposition of the present motion.
More important, however, is the fact that the Superseding Indictment in this action does meet the requirements of the court's explicit holding in Rosenblatt. The court concluded that,
We hold that when the government proceeds under the conspiracy-to-defraud clause it must plead and prove an agreement with respect to the essential nature of the alleged fraud. Thus, just as the particular offense must be specified under the "offense" branch . . . the fraudulent scheme must be alleged and proved under the conspiracy-to-defraud clause.
Id. at 42 (citation omitted). In this action, the Superseding Indictment pleads an agreement among and between defendants with respect to the essential nature of the alleged fraud; namely, obstructing the functions of the FAA by misrepresenting the safety of Eastern's aircraft. Paragraph 18 of the Superseding Indictment reads in part as follows:
On or about and between January 1, 1987 and October 13, 1989 . . . [defendants] . . . did unlawfully, wilfully and knowingly conspire, combine, confederate and agree to defraud the United States by impeding, impairing, obstructing, and defeating the lawful government functions of the [FAA] to promote safety of flight of civil aircraft in air commerce and insure that aircraft are in a safe condition and are properly maintained.
The Superseding Indictment then states in subsequent paragraphs that it was part of the conspiracy to use intimidation to encourage falsification of aircraft maintenance records; falsify log books, work cards and computer entries; disregard FAA maintenance program requirements; conceal the falsifications from the FAA; testify falsely before the FAA; and cause aircraft that were not properly maintained and repaired to fly and carry unsuspecting passengers.
The government has therefore alleged a single, over-arching conspiracy among and between the Atlanta and JFK defendants, and Upton, the essential nature of which was to impede and obstruct the FAA. Because the Superseding Indictment pleads "an agreement with respect to the essential nature of the alleged fraud," it does not run afoul of the Federal Rules of Criminal Procedure. Defendants' reliance on United States v. Levine, 546 F.2d 658, 665-66 (5th Cir. 1977) ("since allegations of proximate conspiracies are legally insufficient to establish a single overall conspiracy, the conspiracy count could not 'reasonably have been made.'"), is, therefore, misplaced as well. As the court noted in Uccio, 917 F.2d at 87, "it is an 'established rule' that 'a non-frivolous conspiracy charge is sufficient to support joinder of defendants under Fed. R. Crim. P. 8(b)." "Whether the evidence in a case establishes single or multiple conspiracies is a question of fact to be resolved by a properly instructed jury." United States v. Friedman, 854 F.2d 535, 561 (2d Cir. 1988), cert. denied, 490 U.S. 1004 (1989).
B. Severance of Atlanta Defendants
Rule 14 of the Federal Rules of Criminal Procedure permits severance at the discretion of the court. The rule provides that "if it appears that a defendant or the government is prejudiced by a joinder of defendants in an indictment . . . or by such joinder for trial together, the court may . . . grant a severance of defendants or provide whatever other relief justice requires."
Generally, there is a presumption that persons indicted together should be tried together. See United States v. Gallo, 668 F. Supp. 736, 748 (E.D.N.Y. 1987). This presumption was designed to promote judicial economy by preventing multiple, time-consuming and expensive trials. United States v. Borelli, 435 F.2d 500, 502 (2d Cir. 1970), cert. denied, 401 U.S. 946, 28 L. Ed. 2d 229, 91 S. Ct. 963 (1971). A defendant may overcome this presumption by demonstrating that a joint trial would result in substantial prejudice and that he or she will be denied a fair trial. United States v. Crozzoli, 698 F. Supp. 430, 437 (E.D.N.Y. 1988).
In determining whether sufficient prejudice exists to justify severance, the following criteria should be considered: (1) the number of defendants; (2) the number of counts; (3) the complexity of the indictment; (4) the estimated length of trial; (5) disparities in the amount or type of proof offered against each defendant; (6) disparities in the degrees of involvement by each defendant in the overall scheme; (7) possible conflict between various defense theories or trial strategies; and (8) prejudice from evidence admitted against co-defendants which is inadmissible or excluded as to a particular defendant. United States v. Gallo, 668 F. Supp. at 749. None of these factors is by itself dispositive. Instead, the court must consider them together to determine whether the jury will be able to attribute the evidence accurately as to each defendant. Id. In this case, several factors suggest that such compartmentalization might be difficult and prejudice could result to the Atlanta defendants, justifying severance under Rule 14. Discussion of the relevant factors follows.
1. Complexity. "As the number of counts and defendants in an indictment increases, 'it is obvious' that the resultant complex trial record makes it more difficult for a jury to keep straight the specific evidence and charges against each defendant." Id. In this case there are 13 defendants and 29 counts. None of the Atlanta defendants are charged with substantive violations alleged to have occurred at JFK. However, the substantive acts alleged in the Atlanta airport counts -- installation of faulty equipment and falsification of related documents -- are similar in kind to the acts alleged in the JFK counts.
The jury in this case may find it difficult to distinguish the evidence relating to the Atlanta defendants from that relating to the others, especially after a long and complicated trial.
2. Disparate Evidence. The difficulties of a complex case such as this one are compounded for defendants who are named in a small portion of the indictment and against whom only a small portion of the evidence is relevant. United States v. Branker, 395 F.2d 881, 888 (2d Cir. 1968), cert. denied, 393 U.S. 1029 (1969). In the present case, absent severance, the Atlanta defendants would have to endure a trial involving many incidents of misconduct which do not involve them. See id. The accumulation of evidence during the course of trial places the uninvolved defendants at risk of "spillover" because the jurors may not be able to prevent themselves from attributing the evidence to the uninvolved defendants. The result would be unfair prejudice to the uninvolved Atlanta defendants.
3. Judicial Economy. Even if the risk of prejudice discussed above does not rise to the level where severance would be required, another factor -- the efficient administration of justice -- tips the balance in favor of severance. See Gallo, 668 F. Supp. at 753. In the present case, severing the trial would promote judicial efficiency and would not result in judicial waste, as is often argued in opposition to severance motions. See id. Severance would minimize the hardship experienced by the Atlanta defendants who would have to relocate to New York during what, in all likelihood, will be a long and complex trial. Severance would reduce the tedious, draining process that jurors would otherwise endure for months at a time. Severance would also enhance defendants' ability to obtain counsel of their choice; many lawyers are not available for representation for long trials because they are members of very small firms and cannot afford to sacrifice their other clients during a protracted trial. Id. Severance will also help prevent defendants from sitting through months of trial, which causes severe disruption to employment and home life, or, if detained, causes prolonged incarceration while defendants are presumed innocent.
Trial judges also face a great problem of trial management in prolonged cases. Juggling various attorneys' schedules with the other cases before the court becomes impossible. "The already overburdened docket of the court reaches a breaking point, and the administration of justice in all of the court's cases is unconscionably delayed. . . . Where the judge decides to sever the trial, the court is left with much greater flexibility to administer both that and other cases . . . and some normalcy remains as to the rest of the court's docket." Id. (emphasis in original). Severance will help obviate many of these difficulties.
In addition, the Superseding Indictment includes a variety of substantive offenses involving different schemes, evidence and witnesses. The Atlanta defendants are not charged with participating in the acts of falsification at JFK and the JFK defendants are not charged with wrongdoing at Hartsfield. Although some of the evidence concerning conspiracy might be repeated at both trials, overall trial time would probably be reduced by dividing the case:
The trial is much smoother and more concise. The evidence in each case does not scatter about the various contours of the conspiracy. There are [fewer] counsel cross-examining and raising objections rather than one or two dozen. Sidebars are much more infrequent. Continuances and adjournments are less common.
Id. at 757. Also, the second trial is likely to be shortened or even precluded by the earlier trial, as the lawyers and judge familiarize themselves with the case. Id. Moreover, there is a "significant possibility" that severed defendants would plead guilty after observing the government's case. Id. Severance may be particularly beneficial in conspiracy cases such as this one because it would protect the government "from one of the largest dangers of a joint trial, namely, proving to the jury that one conspiracy exists rather than multiple conspiracies linked at the top. The necessity of having the jury find a single conspiracy 'can prove seriously detrimental' to the government's strategy." Id. at 757-58 (emphasis in original) (quoting United States v. Sperling, 506 F.2d 1323, 1341 (2d Cir. 1974), cert. denied, 420 U.S. 962 (1975)).
A separate trial of the Atlanta allegations would not involve much evidence relating to the JFK defendants and would not involve the same witnesses. In short, severance would help expedite a fair resolution of the charges against defendants. Accordingly, the Atlanta defendants should be severed.
C. Severance of Upton and Knox
Defendants argue that Upton and Knox should be severed because they were not charged with obstruction of justice, nor with any substantive act other than wire fraud. They argue that a joint trial would risk prejudicial "spillover" or "rubbing off" of evidence.
Defendants' arguments are without merit and Upton and Knox should be tried with the JFK defendants. Unlike the allegations against the Atlanta defendants, those against Upton and Knox are integrally related and intertwined with the JFK defendants. It matters not that Upton and Knox were not charged with the same substantive acts as the others; Upton is alleged to be a ringleader of the conspiracy,
and Knox to have engaged in "pencil whipping" while at JFK. It is proper that Knox and Upton stand trial with their alleged co-conspirators. At the close of trial the court will instruct the jury that the guilt or innocence of the defendants must be determined individually. With proper instructions, the jury will be able to compartmentalize the evidence. Also, once the Atlanta defendants are severed, there will be many fewer defendants in the case, making it that much easier for the jury to evaluate and compartmentalize the evidence.
Finally, the judicial management benefits realized by severing the Atlanta defendants would not be furthered by severing Upton and Knox. Their trial, which the government estimates would last several weeks, would require duplicative effort by the lawyers, judge, and witnesses. Accordingly, severance of Upton and Knox is not justified under Rule 14.
II. Motion to Dismiss Count Two
Defendants have moved to dismiss Count Two of the Superseding Indictment on the grounds that (i) it is in violation of Rule 7(c) the Federal Rules of Criminal Procedure in that it does not include the particular wire transmissions which form the basis of the wire fraud violations (18 U.S.C. § 1343); and (ii) it is in violation of Rule 8(a) of the Federal Rules of Criminal Procedure in that its incorporation of multiple wire fraud offenses is impermissibly duplicitous.
A. Rule 7(c)
Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires that the indictment contain a "plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). The Rule performs three constitutional functions: (i) pursuant to the Sixth Amendment, it insures that the defendant is informed of the "nature and cause of the accusation," United States v. Abrams, 539 F. Supp. 378, 384 (S.D.N.Y. 1982); (ii) pursuant to the Fifth Amendment, it prevents any person from being "subject for the same offense to be twice put in jeopardy of life or limb," id. (see Hamling v. United States, 418 U.S. 87, 117, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974)); and (iii) pursuant to the Fifth Amendment, it prevents a defendant from being held "to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a Grand Jury," Abrams, 539 F. Supp. at 384 (see United States v. Silverman, 430 F.2d 106, 110 (2d Cir. 1970), cert. denied, 402 U.S. 953, 29 L. Ed. 2d 123, 91 S. Ct. 1619 (1971)). The constitutional requirement that no defendant be held for trial absent a presentment to a grand jury has led to the further rule that a bill of particulars cannot cure an indictment that omits an essential element of the offense. Russell v. United States, 369 U.S. 749, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962). This constitutional requirement also mandates a prohibition against the amending of an indictment except by resubmission to the grand jury, Abrams, 539 F. Supp. at 384, and requires that "an indictment contain some amount of factual particularity to ensure that the prosecution will not fill in elements of its case with facts other than those considered by the grand jury," id.
In this action, Count Two alleges that between January 1, 1987 and March 4, 1989,
all defendants, together with Eastern, Dragone, and unindicted co-conspirator Michael Hennessey,
"did knowingly and wilfully aid and abet [Eastern] in its execution of a scheme and artifice to defraud airline passengers and to obtain money and property by means of false and fraudulent pretenses and representations." Superseding Indictment, P 29. Count Two further alleges that Eastern led its passengers to believe that "rigorous maintenance checks had been performed" on the aircrafts, when, in fact, defendants "knew and believed" that such representations were false. Superseding Indictment, P 30. Defendants are also alleged to have falsified at JFK and Hartsfield, "aircraft maintenance log books and work cards" and to have made false computer transactions to make it fraudulently appear that regularly scheduled maintenance had been completed on the aircrafts when in fact such maintenance had not been completed. Superseding Indictment, P 31.
Paragraph 32 of the Superseding Indictment alleges that for the purpose of executing the scheme, defendants,
transmitted and caused to be transmitted by means of wire communications in interstate commerce signals and sounds, to wit: (a) computer transactions from computer terminals located at JFK over interstate telephone lines to a computer located at [Eastern's] headquarters in Miami, Florida; (b) telephone calls between maintenance personnel at JFK, Atlanta, and Eastern's headquarters in Miami, Florida; and (c) radio transmissions between flight crews on aircraft outside of New York and air traffic controllers at JFK and LaGuardia airports to obtain clearance to take-off and land Eastern aircraft.
(Title 18, United States Code, Sections 1343, 3551 et seq. and 2).
Because the Superseding Indictment does not contain a list of the particular computer transactions, telephone calls, and radio transmissions, defendants argue that it is violative of Rule 7(c)'s mandate that all indictments contain a "statement of the essential facts constituting the offense charge." Defendants' contention is without merit.
It is well-settled that indictments which track the statutory language defining an offense are, as a general rule, sufficient for Rule 7(c) purposes so long as application to a particular defendant is clear. In Hamling v. United States, 418 U.S. 87, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974), the Court wrote,
Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. . . . It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as "those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished." . . . "Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged."
Id. at 117-18 (emphasis added) (citations omitted). See also United States v. Gordon, 780 F.2d 1165, 1171 (5th Cir. 1986) ("An indictment which tracks the statutory language is sufficient to charge mail fraud . . . or wire fraud . . . .") (citations omitted).
The words of the statute at issue in Count Two, 18 U.S.C. § 1343, are as follows:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $ 1,000 or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $ 1,000,000 or imprisoned not more than 30 years, or both.
18 U.S.C. § 1343. As noted above, the Superseding Indictment alleges that defendants aided and abetted Eastern in its "execution of a scheme and artifice to defraud airline passengers and to obtain money and property by means of false and fraudulent pretenses and representations"; and that they "transmitted by means of wire communications in interstate commerce [certain] signals and sounds[.]" Furthermore, far from just tracking the language of the statute, Paragraphs 29-32 of the Superseding Indictment also provide "facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged." Hamling, 418 U.S. at 119. These facts and circumstances are: (i) the dates in which the activities took place (January 1, 1987 to March 4, 1989); (ii) the purpose and nature of the scheme (defrauding the flying public into believing that maintenance had been performed when in fact it had not);
(iii) the means by which the objectives of the scheme were carried out (falsifying log books, work cards, and computer transactions); and (iv) the nature of the communications which were used to further the objectives of the scheme (computer transactions, telephone calls and radio transmissions).
Research has not uncovered, and defendants have not brought to the court's attention, any authority for the proposition that an indictment pursuant to 18 U.S.C. § 1343 must include the exact "writings, signs, signals, pictures, or sounds" which comprise the basis of the charge when other relevant information regarding the nature of the crime are included in the indictment. Although it is true that Section 1343 indictments sustained by the courts tend to include this information, see, e.g., Abrams, 539 F. Supp. at 383 (government alleges that on "fifteen specific occasions, interstate telephone calls were made in furtherance of this scheme."), it is also the case that the two cases relied upon by defendants where the court did dismiss mail or wire fraud indictments,
the indictments were woefully incomplete and failed to include any specifics regarding the nature of the scheme or the methods used in furtherance of the scheme. United States v. Josten, 704 F. Supp. 841, 844 (N.D. Ill. 1989) (Section 1343 indictment dismissed where "the indictment does not state the allegedly false representations, nor does it name the victims of the allegedly improper conduct or the accounts to which it pertained, nor does it give any specific dates upon which the challenged activity took place."); United States v. De Sapio, 299 F. Supp. 436, 445 (S.D.N.Y. 1969) (Section 1341 indictment dismissed where "the charge that these defendants devised a scheme 'for obtaining money and property by means of false and fraudulent pretenses, representations and promises' does not even state who was to be defrauded, let alone give any indication of the nature of the scheme."). In other contexts, the specific transactions or documents which are at the heart of an indictment need not be specified so long as the indictment apprises the defendant of the elements of the charge against him. See, e.g., United States v. Tallant, 547 F.2d 1291, 1299 n.18 (5th Cir.) (obstruction of justice indictment sustained where indictment alleges that defendant impeded the due administration of a proceeding before the Securities and Exchange Commission "in that defendant . . . caused certain stockholder ledger records . . . to be falsified and presented them to Securities and Exchange Commission investigators[.]") (emphasis added), cert. denied, 434 U.S. 889, 54 L. Ed. 2d 174, 98 S. Ct. 262 (1977); United States v. Mobile Materials, Inc., 871 F.2d 902 (10th Cir. 1989) (Sherman Act indictment sustained even though indictment did not list specific transactions or name all co-conspirators), cert. denied, 493 U.S. 1043 (1990).
In any event, the government has supplied defendants with a bill of particulars which identifies those wire communications upon which it will rely at trial. As noted above, a bill of particulars cannot cure a constitutionally defective indictment, Russell v. United States, 369 U.S. 749, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962), but "[a] bill of particulars is appropriate when the indictment is insufficient to permit the preparation of an adequate defense." United States v. DiCesare, 765 F.2d 890, 897 (9th Cir. 1985). With the information supplied by the bill of particulars, defendants are now on notice as to which wire communications were used to further the scheme outlined in Count Two of the Superseding Indictment and cannot now argue that they are not in a position to prepare an adequate defense.
B. Rule 8(a)
Rule 8(a) of the Federal Rules of Criminal Procedure provides, in relevant part, that "two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed. R. Crim. P. 8(a). Defendants argue that Count Two runs afoul of Rule 8(a) because each wire transmission is a separate Section 1343 offense and hence it impermissibly charges two or more offenses in the same count.
Although it is well-accepted that each separate mailing or wire transmission constitutes a separate offense under 18 U.S.C. §§ 1341 or 1343, United States v. Eskow, 422 F.2d 1060, 1064 (2d Cir.) ("Since each mailing pursuant to an alleged scheme to defraud constitutes a separate offense . . . the indictment is not vulnerable to a claim of multiplicity.") (citations omitted), cert. denied, 398 U.S. 959, 26 L. Ed. 2d 544, 90 S. Ct. 2174 (1970), the Second Circuit has held that an indictment charging mail fraud is not impermissibly duplicitous because it alleges numerous mailings in a single count. United States v. Margiotta, 646 F.2d 729 (2d Cir. 1981). In Margiotta, the indictment accused the defendant of arranging a scheme whereby town and county insurance was placed with an insurance broker and the broker paid portions of his commissions to various persons designated by the defendant. Payments were made through the mails and count one of the indictment, alleging a violation of 18 U.S.C. § 1341, included numerous mailings. By pre-trial motion, the defendant sought dismissal of count one alleging that the count was duplicitous for including more than one mailing. The district court granted the motion and the Second Circuit reversed.
The court in Margiotta held that the use of multiple mailings in a mail fraud indictment does not violate the rule against duplicity because
a single count of an indictment should not be found impermissibly duplicitous whenever it contains several allegations that could have been stated as separate offenses . . . but only when the failure to do so risks unfairness to the defendant. That risk is slight in a case like this where the essence of the alleged wrong is the single scheme to defraud and the various mailings, though they are technically the acts that violate the federal statute, are really the jurisdictional bases for federal prosecution. See United States v. Blassingame, 427 F.2d 329 (2d Cir. 1970), cert. denied, 402 U.S. 945, 91 S. Ct. 1629, 29 L. Ed. 2d 114 (1971) (involving similar statute condemning fraud by wire, 18 U.S.C. § 1343 (1976)).
Id. at 733 (citation omitted). The court reasoned that any potential unfairness to the defendant which might spring from including several mailings in a single indictment can be easily avoided via proper jury instructions: "We anticipate no unfairness to the defendant if the jury, properly instructed, is permitted to convict on Count One upon finding all the elements of mail fraud established, including the mailing of at least one item in furtherance of the scheme to defraud." Id.
Margiotta controls this aspect of defendants' motion. The indictment in Margiotta alleged a scheme to defraud the public and the goals of the scheme were realized through the use of interstate mails; in this case, Count Two alleges a scheme to defraud the flying public by means of, among other things, the use of interstate wire transmissions. Defendants attempt to distinguish Margiotta on the grounds that the interstate wire transactions are an "inherent part of the alleged wrong," Defs.' Mem. at 21 n.15, whereas the use of interstate mails in Margiotta were to establish jurisdiction. Defendants are correct that the government has alleged that the specific wire transactions themselves were fraudulent (i.e., they reported maintenance check-ups which never occurred), and that such was not the case in Margiotta (the checks for the insurance premiums were mailed in execution of the scheme to defraud), but it is a distinction without a difference: Both the indictment in Margiotta and the Superseding Indictment in this action allege a scheme to defraud the public, and the scheme in both cases is executed through the use of interstate communications. The fact that one set of interstate communications is allegedly inherently fraudulent is irrelevant; in both cases the policy considerations underlying the prohibition against duplicity, as articulated by the court in Margiotta,12 do not compel a conclusion that Count Two is impermissibly duplicitous. Appropriate jury charges will assure a unanimous verdict; the indictment gives defendants adequate notice of the charges alleged; and defendants' double jeopardy rights will be protected. Because there is no prejudice to defendants by including several interstate transmissions in the Section 1343 count, dismissal is unwarranted. This conclusion is bolstered by the fact that, in other contexts, where separate acts which constitute separate violations of a criminal statute are committed as part of a single scheme, the indictment is not dismissed for impermissible duplicity. See, e.g., United States v. Alsobrook, 620 F.2d 139, 142-43 (6th Cir.) (inclusion of more than one act of interstate travel in a single count alleging a violation of The Travel Act, 18 U.S.C. § 1952, is not impermissibly duplicitous because each act was part of a continuing course of conduct that represented only a single offense), cert. denied, 449 U.S. 843, 66 L. Ed. 2d 51, 101 S. Ct. 124 (1980).
III. Motion to Dismiss Obstruction of Justice Counts
Defendants have also moved to dismiss Counts 23 through 28 which allege as follows:
On or about the dates listed below, within the Eastern District of New York, the listed defendants did knowingly, wilfully and corruptly obstruct and impede and endeavor to obstruct and impede the due and proper administration of the law under which a pending proceeding was being held before the Federal Aviation Administration of the Department of Transportation, an agency of the United States, to wit: each testified falsely regarding his knowledge of and participation in a conspiracy to falsify maintenance records [.]
(Title 18, United States Code, Sections 1505, 3551 et seq. and 2).
Superseding Indictment, P 74. The Superseding Indictment then lists the date each listed defendant allegedly falsely testified before the FAA. Defendants seek to have these counts dismissed on the grounds that (i) they are in violation of Rule 7(c) in that they are not pleaded with the requisite particularity; and (ii) the lack of specificity improperly precludes defendants from invoking the "exculpatory no" doctrine as a defense.
A. Rule 7(c)
The criteria for analyzing the constitutional soundness of an indictment is discussed above in Section II.A of this memorandum and order and need not be repeated. As noted there, an indictment is valid if, as a general rule, it tracks the language of the statute and gives the defendant enough information so that he or she may properly prepare a defense, effectively plead double jeopardy, and insures that any conviction is the result of an indictment that was presented to the grand jury. United States v. Gordon, 780 F.2d 1165, 1169 (5th Cir. 1986) ("An indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charge he must be prepared to meet, and enables the accused to plead acquittal or conviction in bar of future prosecutions for the same offense."). Because Counts 23-28 meet all of these criteria, dismissal would be improper.
The statute which defendants are alleged to have violated, reads in relevant part as follows:
Whoever corruptly, or by threats of force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress --
Shall be fined not more the $ 5,000 or imprisoned not more than five years, or both.
18 U.S.C. § 1505. The Superseding Indictment in this case accurately tracks the language of the statute: Defendants are alleged to have "endeavored to obstruct and impede the due and proper administration of the law under which a pending proceeding was being held before the [FAA]." The Superseding Indictment lists the name of the agency involved; the dates of the hearings; and the manner in which defendants allegedly impeded its function (i.e., testifying falsely regarding knowledge of the conspiracy to falsify maintenance record).
The extent to which Counts 23-28 are adequately pleaded is illustrated by the court's determination in United States v. Alo, 439 F.2d 751 (2d Cir.), cert. denied, 404 U.S. 850, 30 L. Ed. 2d 89, 92 S. Ct. 86 (1971). In Alo, the defendant was convicted of violating 18 U.S.C. § 1505 by obstructing the Securities and Exchange Commission's administration of the federal securities laws by virtue of his testimony before the Commission in which he claimed to remember very little about certain meetings that had taken place eighteen months before. The indictment recited that the defendant did "unlawfully, wilfully, knowingly and corruptly obstruct and impede and endeavor to obstruct and impede the due administration of laws of the United States . . . under which a proceeding . . . before a department and agency of the United States . . . was then pending and being had . . . ." Id. at 756. The indictment amplified the allegations by stating that the defendant "[gave] false and evasive answers to questions put to him as a witness in such proceeding" and gave specifics as to date, statute, and name of the administrative agency and proceeding. The defendant moved to dismiss claiming that the indictment lacked the requisite specificity. The Court of Appeals disagreed and dealt with the defendant's argument in a single paragraph:
Alo's objection to the supposedly vague indictment is that it failed to apprise him of the "nature and cause of the accusation." Considering the fact that Alo's forgetfulness was the constant theme of his testimony before the SEC, we have little doubt that, although somewhat greater specificity would have been advisable, he understood precisely what the phrase "false and evasive answers" referred to.
Id. (footnote omitted). The court was not troubled by the fact that the indictment did not recite which answers were "false and evasive" and therefore defendants' argument in this case that the Superseding Indictment is defective because it does not include the subject matter of each allegedly false statement is equally unavailing.
Defendants argue, however, that the counts should be dismissed because they do not meet the standards for charging perjury in that the charging paragraph does not describe with particularity the falsehood which forms the basis of the offense. See, e.g., United States v. Tonelli, 577 F.2d 194, 200 (3d Cir. 1978) (perjury indictment dismissed because it did not set forth the precise falsehoods alleged and the factual bases of their falsity). This argument was squarely rejected by Judge McLaughlin in United States v. Schwimmer, 649 F. Supp. 544 (E.D.N.Y. 1986), where a defendant was charged with a violation of 18 U.S.C. § 1503.
In Schwimmer, it was alleged that the defendant obstructed the administration of justice by causing the creation of a false and fabricated document and its submission to a grand jury. The defendant sought dismissal of the indictment on the ground that the indictment failed to identify the allegedly falsified document which the defendant was accused of having caused to be submitted to the grand jury. As the court reported, "defendant argues that his case may be analogized to a perjury prosecution, and cites several cases . . . that stand for the proposition that a perjury indictment must set out specifically the allegedly perjurious statement." Id. at 547 (citation omitted). The court rejected this argument, noting that "this is not, however, a perjury case." Id. The court upheld the validity of the indictment because,
An indictment under section 1503 is sufficient if it "furnishes sufficient information as to the time, place and essential elements of the crime to enable the defendants to prepare for trial and avoid a claim of double jeopardy. United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973) [cert. denied, 415 U.S. 985, 94 S. Ct. 1579, 39 L. Ed. 2d 882 (1974)]." United States v. Weiss, 491 F.2d 460, 466 (2d Cir.), cert. denied, 419 U.S. 833, 95 S. Ct. 58, 42 L. Ed. 2d 59 (1974).
Id. As with the indictment in Schwimmer, the Superseding Indictment in this action sets forth the time, place and essential elements of the crime and is therefore valid. Because these counts allege a violation of 18 U.S.C. § 1505, and not the perjury statute, 18 U.S.C. § 1623, defendants' arguments are inapplicable.
B. Exculpatory No Doctrine
Defendants also seek dismissal of the obstruction of justice counts on the theory that their alleged lack of specificity precludes them from invoking the "exculpatory no" doctrine as a defense. This doctrine "immunizes direct denials of criminal wrongdoing made in response to questions, irrespective of their falsity, from prosecution under [18 U.S.C.] Section 1001." United States v. Cervone, 907 F.2d 332, 342 (2d Cir. 1990), cert. denied, 498 U.S. 1028 (1991). The Second Circuit has never formally adopted this doctrine in the context of either Section 1001 or Sections 1503 or 1505. "We have never adopted the doctrine . . . but have indicated that were we to adopt it, it would be construed narrowly[.]" Id. (citing United States v. Capo, 791 F.2d 1054, 1069 (2d Cir. 1986), rev'd in part on other grounds on rehearing en banc, 817 F.2d 947 (2d Cir. 1987)). Even in those situations where the Second Circuit has addressed the defense in Section 1001 cases, it has made clear that "affirmative, voluntary statement[s], which are readily distinguishable from simple exculpatory denials in response to investigator's questions, would not be within the exception." Capo, 791 F.2d at 1069 (internal quotations omitted).
In United States v. Biaggi, 909 F.2d 662, 687 (2d Cir. 1990), cert. denied, 499 U.S. 904 (1991), the defendant was found guilty of violating 18 U.S.C. § 1503 when he denied having received a bribe in response to questions by federal agency officials. The court declined to extend the exculpatory no doctrine to Section 1503 cases and noted that, even if it were to be adopted for such proceedings, it did not apply because the defendant's responses went beyond bare denials. In this case, defendants argue that because each defendant gave simple denials when asked by FAA officials whether they participated in the falsification of records, the doctrine should be made available to them. Defendants argue that because the indictment does not specify upon which denials the government relies in its Section 1503 charge, they are denied the opportunity to assert the defense.
Defendants' position is unpersuasive for several reasons. First, as defendants concede, the Second Circuit has yet to formally adopt the exculpatory no doctrine in either Section 1001 cases or Section 1505 cases, and has made it clear that even if it were to adopt it, it would be construed narrowly. See, e.g., United States v. Roshko, No. 90 Cr. 265, 1991 WL 18146 at *6 (S.D.N.Y. Feb. 7, 1991) (exculpatory no doctrine is inapplicable in Section 1001 action where defendant gave false statements to Immigration and Naturalization Service agent because the interview was not part of a government initiated investigation in which defendant was compelled to answer) Second, even if this court were to recognize the defense in a Section 1505 action, the doctrine would not apply in this case because even a simple exculpatory no in response to the query of a federal agent does not fall within the exception if that answer affirmatively misleads the agent. In Cervone, the defendant was convicted of a violation of 18 U.S.C. § 1001 on the basis of his denial in a interview at his office with New York City police detectives of ever having spoken to a co-defendant about certain coalitions or minority hiring practices in the construction industry. The court rejected his exculpatory no defense, explaining:
As to Cummings, his remarks were not truly exculpatory. Certainly no incriminating consequences were to be feared from a truthful answer to the inquiry as to whether he had even discussed minority hiring problems with Cervone. Even if the conversation with the officers ended after that particular false statement, Cummings would have affirmatively misled them, perhaps causing them to direct their investigation elsewhere. Cummings' denial of any talks regarding the minority hiring situation thus falls within the currently recognized ambit of the statute.
Cervone, 907 F.2d at 343. Therefore, if defendants' denials of participation in a scheme to falsify maintenance records affirmatively misled the FAA, the doctrine would not apply. Finally, because defendants answered questions at a deposition under oath, pursuant to a subpoena, and with the aid of counsel, they were not "taken by surprise or otherwise cornered into a defensive, ill-considered misstatement" id., and hence the exculpatory no doctrine does not apply.
IV. Discovery Motions
Defendants have moved this court for orders compelling the government to comply with their discovery requests; to produce Brady materials; and to provide a Bill of Particulars.
Rule 16 of the Federal Rules of Criminal Procedure provides the protocol for discovery in criminal cases. Subdivision (a)(1)(C) of that Rule is specifically relevant and provides:
Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs . . . or copies or portions thereof which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial[.]
Defendants categorize their discovery request as follows: (1) those designed to enable them to understand the nature and scope of the accusations against them; (2) those seeking documents material to the preparation of their defense; and (3) those seeking exculpatory or impeachment materials. Defs.' Mem. at 7.
A. Understanding the Charges
Even a casual perusal of the Superseding Indictment compels the conclusion that the assertion of an inability to understand the nature and scope of the charges is disingenuous. The alleged violations of 18 U.S.C. §§ 371 and 1001 charged in 21 counts of the Superseding Indictment precisely identify the defendants, the documents allegedly falsified, the maintenance item to which it pertains and the aircrafts affected. For example, in the section of the Superseding Indictment entitled "Overt Acts," in Paragraph 27(b), the following items, among others, are provided:
Eastern Falsified Items of
Date Employees Aircraft Documents Maintenance
5/7/87 ROBERT 303 Log Book Repair of
© 1992-2004 VersusLaw Inc.