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UNITED STATES v. ALIPERTI

November 4, 1994

UNITED STATES OF AMERICA,
v.
BUOVODANTONA ALIPERTI, ANTHONY LOSQUADRO, and DONALD ZIMMER, Defendants.



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

 HURLEY, District Judge

 In the above-referenced prosecution, each Defendant is charged with conspiracy to obstruct, delay, and affect commerce by extortion, as well as the substantive crime of extortion, pursuant to the Hobbs Act, 18 U.S.C. § 1951. Defendant Aliperti is also charged with perjury. 18 U.S.C. § 1623(a). Currently before the Court are the following motions for pre-trial relief: (1) motions to dismiss Counts One through Five of the Indictment as "facially insufficient" in that they fail to allege a quid pro quo, or, in the alternative, for a bill of particulars; and (2) motion by Defendant Zimmer to dismiss Count Five on the ground that it is duplicitous and charges him with crimes that allegedly occurred "outside the statute of limitations" period. *fn1" For the reasons set forth below, the motions are granted in part and denied in part.

 Discussion

 I. Motions to Dismiss

 A. Sufficiency of Counts One through Five: Failure to Allege a Quid Pro Quo

 Rule 7 provides, in pertinent part, that "the indictment . . . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged . . . . It need not contain . . . any other matter not necessary to such statement." Fed. R. Crim. P. 7(c)(1). Courts have consistently explained that an indictment meets the requirements of Rule 7 when it contains "(a) the elements of an offense, (b) notice to the defendant of the charges he must be prepared to meet, and (c) information sufficient to protect the defendant against double jeopardy." United States v. Albunio, 1992 U.S. Dist. LEXIS 15166, No. CR-9l-0403, 1992 WL 281037, at *2 (E.D.N.Y. Sept. 9, 1992) (citing United States v. Bailey, 444 U.S. 394, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980)); see also United States v. Hernandez, 980 F.2d 868, 871 (2d Cir. 1992) (citing United States v. Carrier, 672 F.2d 300, 303 (2d Cir.), cert. denied, 457 U.S. 1139, 73 L. Ed. 2d 1359, 102 S. Ct. 2972 (1982)).

 Generally, an indictment that tracks the statutory language defining the offense satisfies these three requirements, and, as such, is sufficiently specific to withstand a motion to dismiss. See United States v. Citron, 783 F.2d 307, 314 (2d Cir. 1986) (citations omitted); United States v. Upton, 856 F. Supp. 727, 739 (E.D.N.Y. 1994) (citing Hamling v. United States, 418 U.S. 87, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974)). Such an indictment need only be supplemented when the statute itself contains "generic terms." See Hamling, 418 U.S. at 118; see also Russell v. United States, 369 U.S. 749, 765, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962).

 Defendants do not dispute that the Indictment in this case tracks the statutory language of 18 U.S.C. § 1951. *fn2" Defendants contend, however, that the statutory language, as incorporated in the Indictment, "fails to allege every essential element of the offenses charged." (Losquadro Mem. at 8.) More specifically, Defendants argue that, according to the Supreme Court's decision in Evans v. United States, 119 L. Ed. 2d 57, 112 S. Ct. 1881 (1992), a quid pro quo is an additional element of the crime of extortion that is not explicitly set forth in the statute. This Court disagrees.

 In Evans, the Supreme Court was confronted with the issue of what the Government must prove at trial in order to obtain a conviction under 18 U.S.C. § 1951. *fn3" In its opinion, the Court provided a detailed explanation of the history and meaning of the terms "extortion under color of official right." The Court began by noting that, as a matter of statutory interpretation, "it is a familiar 'maxim that a statutory term is generally presumed to have its common-law meaning.'" 112 S. Ct. at 1885 (quoting Taylor v. United States, 495 U.S. 575, 592, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990)). Further, the Court explained that

 
where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.

 Id. (quoting Morissette v. United States, 342 U.S. 246, 263, 96 L. Ed. 288, 72 S. Ct. 240 (1952)).

 Applying this rule of statutory construction to Section 1951, the Court began by setting forth the common-law definition of extortion: "an offense committed by a public official who took 'by colour of his office' money that was not due to him for the performance of his official duties." Id. The ...


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