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UNITED STATES v. VITTI

March 27, 1996

UNITED STATES OF AMERICA,
v.
JAMES M. GABRIEL and GERARD E. VITTI, Defendants.



The opinion of the court was delivered by: RAKOFF

 JED S. RAKOFF, U.S.D.J.

 The pre-trial motions in this case raise important issues regarding the scope of 18 U.S.C. § 1512 and the application of Grunewald v. United States, 353 U.S. 391, 1 L. Ed. 2d 931, 77 S. Ct. 963 (1957).

 A third superseding indictment (the "Indictment") charges defendants Gabriel and Vitti, two former executives of the Chromalloy American Corporation, with multiple counts of conspiracy, fraud, false statements and obstruction of justice, in providing commercial airlines with defectively-repaired engine parts and concealing these defects from customers and regulators. Defendants moved to dismiss Counts 4-11 and 13-18 of the Indictment. The Government stipulated to the dismissal of Counts 10 and 11, but otherwise opposed. The motions have been well and extensively briefed, and several of them were the subject of oral argument before Judge Parker prior to the reassignment of the case to this Court earlier this month.

 After reviewing the parties' submissions and the transcript of the oral argument, this Court held a four-hour hearing on March 15, 1996, at the end of which the Court denied the motions to dismiss Counts 4-5, 7-9, and 13-18, but reserved as to Count Six. Following further written submissions, the Court, on March 19, 1996, telephonically granted the motion to dismiss Count Six. This opinion confirms these prior oral orders and elucidates their rationales.

 Count Five of the Indictment, which charges defendant Gabriel with violation of 18 U.S.C. §§ 1512 and 2, consists of two paragraphs. The first (P37) incorporates by reference the initial 23 paragraphs of the Indictment, which describe a scheme to provide Qantas Airways with a defectively-repaired engine part called an LPT case. The second (P38) reads in its entirety: "On or about January 27, 1993, in the Southern District of New York and elsewhere, JAMES M. GABRIEL, the defendant, corruptly persuaded another person, and attempted to do so, and engaged in misleading conduct toward another person with intent to influence, delay, and prevent the testimony of a person in an official proceeding, to wit, at a time when he was aware of the existence of a grand jury investigation concerning Chromalloy-Orangeburg's repair practices, GABRIEL corruptly sent a facsimile transmission concerning the repair of the Qantas LPT case to Donald Mealing, in order, among other things, to induce Mealing to provide false testimony to a grand jury."

 The facsimile transmission referred to in Count Six is a one-page document sent from defendant Gabriel in the Southern District of New York to Mr. Mealing in Australia on the subject of the "Ongoing Govt. Investigation." In pertinent part, it states that:

 
I am going to call you with our attorneys within the next several days. . . . The questions they will ask you are relative to your memory of our meeting in Syd at QF covering acceptance criteria and the very nature of this case that it was difficult to salvage. It is important that you think this through before they talk on the issue. Note I've cited the case had bad sulfidation, local thinning, required multiple processing . . . (reason for late delivery) and was previously repaired by another facility. All of these points supported the case was a 'dog' but we shipped it as partially serviceable. . . . *fn1"

 The Government has indicated that its proof in support of Count Five will largely consist of evidence that the excuses for the defective repair cited in the foregoing quotation were, as Gabriel knew, false or misleading, giving rise to the inference that Gabriel was endeavoring to get Mealing to adopt a false account.

 In his motion to dismiss Count Five, Gabriel contends that the foregoing allegations are insufficient to state a violation of 18 U.S.C. § 1512, *fn2" because (A) they fail to provide an adequate "nexus" between the facsimile transmission and any "official proceeding," and (B) they fail to allege adequately an endeavor to "corruptly persuade" or to "engage in misleading conduct toward another person." We consider each point in turn.

 (A) In support of his first argument, Gabriel relies primarily on the Supreme Court's recent decision in United States v. Aguilar, 21 F.2d 1475, 115 S. Ct. 2357, 132 L. Ed. 2d 520 (1995). In Aguilar, the Court considered the so-called "Omnibus Clause" of an older obstruction statute, 18 U.S.C. § 1503, which prohibits any "endeavor[] to influence, obstruct, or impede, the due administration of justice. . . ." Recognizing the need to place "metes and bounds on [this] very broad language," the Court construed "endeavor" to include both a subjective and objective component. Subjectively, "the action taken by the accused must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the Court's or grand jury's authority." Aguilar, 115 S. Ct. at 2362 (citing United States v. Brown, 688 F.2d 596, 598 (9th Cir. 1982)). Objectively "the endeavor must have the 'natural and probable effect' of interfering with the due administration of justice." Id. (citing United States v. Wood, 6 F.3d 692, 696 (10th Cir. 1993)). Since defendant Aguilar's alleged violation of the Omnibus Clause consisted of making false statements to an FBI investigator who had neither been subpoenaed nor otherwise directed to appear before the grand jury, and whose likely such appearance was purely speculative, it failed to meet either of these requirements. 115 S. Ct. at 2366.

 Arguing that § 1512 is closely linked to § 1503, Gabriel contends that a similar "nexus" requirement should be read by implication into § 1512, and contends further that, if this is done, Count Six must fall, since there is nothing in the count to suggest that Mealing, an Australian resident at the time, could or would be called before the grand jury. Even if we were persuaded, however, to transport Aguilar's "nexus" requirement from its anchor in § 1503 to a new mooring in § 1512, we would be disinclined to dismiss Count Five: for there is nothing in Aguilar (a post-conviction case) that requires that the requisite "nexus" be pleaded on the face of the indictment, in derogation of the hoary doctrine that an indictment that does little more than track the language of the statute is sufficient. See Hamling v. United States, 418 U.S. 87, 117-18, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974); United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973), cert. denied, 415 U.S. 985, 39 L. Ed. 2d 882, 94 S. Ct. 1579 (1974); United States v. Palmiotti, 254 F.2d 491, 495 (2d Cir. 1958).

 Moreover, even if we were to take notice of Gabriel's allegation that Mealing was a resident of Australia at the time of the facsimile transmission in question and therefore not immediately amenable to grand jury subpoena power, we would likewise need to take cognizance of the Government's counter-allegation that Mealing was a key eyewitness to the underlying events, rendering it "natural and probable," and entirely foreseeable, that the grand jury would ultimately seek his testimony (as in fact it did). In such circumstances, a determination of whether an adequate "nexus" has been proven might best be left to the trier of fact or, at the least, reserved until a full evidentiary record has been developed (as in Aguilar itself).

 But we need not enter this thorny thicket, for we are unpersuaded that the "nexus" requirement of § 1503, as elaborated in Aguilar, can be imported to § 1512. By contrast with § 1503, with its nineteenth-century roots and spare and indefinite language, § 1512, enacted in 1982, is a detailed statute in which Congress expressly sought to resolve or supplant many of the uncertainties and judicially-implied limitations that had arisen under § 1503 and its predecessors.

 For example, whereas § 1503 had been limited by construction to judicial proceedings, e.g., United States v. Fayer, 573 F.2d 741, 745 (2d Cir.), cert. denied, 439 U.S. 831, 58 L. Ed. 2d 125, 99 S. Ct. 108 (1978), § 1512 expressly extends to obstruction designed to "hinder, delay or prevent the communication to a law enforcement officer . . . of the United States of information relating to the commission or possible commission of a Federal offense. . . ." See § 1512(b)(3). Related issues that have plagued enforcement under § 1503 are likewise resolved in § 1512 by such provisions as that: "an official proceeding need not be pending or about to be instituted at the time of the offense," (§ 1512(e)(1)); that "no state of mind need be proved with respect to the circumstance . . . that the official proceeding before a judge, court, magistrate, grand jury, or government agency is before a judge or court of the United States, a United States magistrate, a bankruptcy judge, a Federal grand jury, or a Federal Government agency," (§ 1512(f)(1)); and that "there is extraterritorial Federal jurisdiction over an offense under this section," (§ 1512(g)).

 In each of these, as in other, provisions of § 1512, Congress has expressly settled issues arising under older and vaguer obstruction statutes like § 1503. In each instance, it has done so in a manner favoring the broadest reach of the statute. Accordingly, no warrant exists for judicially implying in § 1512 a narrowing "nexus" requirement that finds no expression in the plain language of the statute itself. To impose order on chaos, as the Court did in Aguilar, is a necessary judicial function; but breadth is not the same as uncertainty, and where Congress speaks with reasonable precision, as in § 1512, to restrict the stated scope of the statute is not within the power of a court.

 (B) Alternatively, Gabriel argues that Count Five must be dismissed "because it is bereft of any facts indicating either that Mr. Gabriel 'corruptly persuaded' or engaged in 'misleading conduct toward' Donald Mealing" (Defendant Gabriel's Memorandum in Support of Motion to Dismiss Count Five, at p. 11) -- those being the alternative violations alleged in Count Five. The short answer is that the Government is not required to plead such evidence in an indictment. See Hamling, 418 U.S. at 117-18; Salazar, 485 F.2d at 1277; Palmiotti, 254 F.2d at 495; see also Fed. R. Crim. P. 7(c)(1). Indeed, neither of the cases on which Gabriel primarily relies for this argument -- United States v. Poindexter, 292 U.S. App. D.C. 389, 951 F.2d 369 (D.C. Cir. 1991), cert. denied, 506 U.S. 1021, 121 L. Ed. 2d 583, 113 S. Ct. 656 (1992); United States v. King, 762 F.2d 232 (2d Cir. 1985), ...


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