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UNITED STATES v. DRANSFIELD

January 3, 1996

UNITED STATES OF AMERICA, against JOHN DRANSFIELD and ROBERT TUCKER, Defendants.


The opinion of the court was delivered by: JOHNSON

 JOHNSON, District Judge:

 Before the Court are Defendant Robert Tucker's motion to dismiss the indictment pursuant to Rule 7(c) of the Federal Rules of Criminal Procedure, and Defendants Robert Tucker and John Dransfield's motions to dismiss the indictment for lack of subject matter jurisdiction pursuant to Fed.R.Crim.P. 12(b). For the reasons set forth below, Defendants' motions are denied.

 BACKGROUND

 On April 20, 1993, government agents executed arrest warrants against fourteen individuals for their alleged participation in bribery and bid rigging schemes at the New York City School Construction Authority ("SCA"). Two of the arrested individuals were Defendants Robert Tucker and John Dransfield. The complaint underlying the arrest warrants charged Tucker and Dransfield with violations of 18 U.S.C. § 1956 (money laundering), § 666 (bribery of a public official), *fn1" and § 1341 (mail fraud). On May 20, 1993, the grand jury indicted defendants Tucker and Dransfield, together with another individual named Mike Batalias.

 On January 21, 1994, pursuant to a plea agreement with the government, Defendant Dransfield pled guilty to a Superseding Information which included one count of receiving bribes in violation of § 666(a)(2) and one count of structuring currency transactions in violation of 31 U.S.C. § 5324. On February 22, 1994, the grand jury returned two Superseding Indictments. One of the Superseding Indictments (S-3) (the "Superseding Indictment") charged Defendant Tucker and another individual, Evangelos Gatzonis, of engaging in a scheme to pay bribes to two SCA employees in violation of § 666(a)(2). *fn2"

 On March 31, 1994, Evangelos Gatzonis filed a motion to dismiss the Superseding Indictment for failure to comply with Fed.R.Crim.P. 7(c) and for lack of subject matter jurisdiction or, in the alternative, to dismiss the Superseding Indictment with prejudice for failure to comply with the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq. Defendant Tucker joined in Gatzonis's motion to dismiss the Superseding Indictment for failure to comply with Rule 7(c) and for lack of subject matter jurisdiction on April 7, 1994. *fn3" Although he had already pled guilty, Defendant Dransfield subsequently informed the Court that he might seek permission to withdraw his plea following the Court's decision on the present motions. *fn4" Dransfield then joined in Gatzonis and Tucker's jurisdiction motion on April 29, 1994.

 The Court heard argument on the jurisdiction and Speedy Trial motions on September 21, 1995. As to Evangelos Gatzonis, the Court dismissed the Superseding Indictment without prejudice based on the government's admitted failure to indict Gatzonis within the permissible period of time set forth in the Speedy Trial Act. In regard to the jurisdiction motion, the Court reserved judgment and invited Defendants Tucker and Dransfield to supplement their previously filed memoranda. As part of this additional briefing, the government provided a proffer of facts in support of subject matter jurisdiction. Specifically, the government provided copies of four Grant Agreements which memorialize agreements between the Federal Aviation Administration ("FAA"), a federal government agency, and the Port Authority of New York & New Jersey (the "Port Authority"). The Grant Agreements are dated June 12, 1991 (as to two grants), August 4, 1992, and August 24, 1992. The government contends that these grants provide the jurisdictional basis for charging the Defendants under § 666.

 DISCUSSION

 In support of his motion to dismiss the Superseding Indictment, Defendant Tucker sets forth two separate grounds for dismissal. Defendant Dransfield joins in only one of these motions.

 First, Defendant Tucker contends that the Superseding Indictment should be dismissed because it fails to comply with Rule 7(c) of the Federal Rules of Criminal Procedure. He claims that the Superseding Indictment is deficient because it fails to allege that the SCA directly receives the requisite federal funding required by 18 U.S.C. § 666(b).

 Second, Defendants Tucker and Dransfield argue that, even if the Superseding Indictment could be read to state a federal offense, it should be dismissed for lack of subject matter jurisdiction because the SCA does not in fact receive benefits under a Federal program. Specifically, the Defendants assert that the government's proffer does not provide a basis for the "$ 10,000 in federal funding element" required by 18 U.S.C. § 666.

 I. Sufficiency of the Superseding Indictment Under Rule 7(c)

 Title 18, U.S.C. § 666 provides in pertinent part:

 (a) Whoever, if the circumstances described in subsection (b) of this section exists--

 
(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof --
 
(A) . . .
 
(B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $ 5000 or more; or
 
(2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business transactions of such organization, government or agency involving anything of value of $ 5000 or more;

 shall be fined under this title, imprisoned not more than 10 years, or both.

 (b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $ 10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of federal assistance.

 18 U.S.C. § 666.

 An indictment is sufficient under Rule 7(c) when it informs the defendant of the charges he must meet "with sufficient precision" in order to prepare a defense and "with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events." United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.), cert. denied, 504 U.S. 926, 112 S. Ct. 1982, 118 L. Ed. 2d 580 (1992); see also United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984). The Second Circuit has stated that "'an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.'" Stavroulakis, 952 F.2d at 693 (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.), cert. denied, 423 U.S. 832, 46 L. Ed. 2d 50, 96 S. Ct. 54, 96 S. Ct. 55 (1975)). Furthermore, succinct criminal pleading is encouraged under Rule 7(c). Where the allegations are brief, an indictment must be read with "common sense" and to include facts which are implied by the allegations made. Id. at 693.

 In the present case, a reading of the Superseding Indictment in its entirety and with a modicum of common sense cannot leave Defendant Tucker with any doubt as to the time, place and offense with which he is being charged. The Superseding Indictment alleges that Tucker gave, offered and agreed to offer things of value to two SCA employees intending to influence and reward them in connection with SCA-related business. The Superseding Indictment defines the approximate time period involved -- August 1991 through April 20, 1993 -- and names the two SCA employees with whom Tucker allegedly had corrupt relationships. Finally, although it does not use the specific words "under a Federal program" that appear in § 666(b), the Superseding Indictment alleges that the SCA received federal funding in excess of $ 10,000 per year.

 The Court finds that these allegations are sufficient to satisfy the requirements of Rule 7(c), which requires merely "a plain, concise, and definite written statement of the essential facts constituting the offense charged." *fn5" Accordingly, Defendant ...


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