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UNITED STATES v. LASKY

June 10, 1997

UNITED STATES OF AMERICA, against CLARKE LASKY, Defendant.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 The defendant, Clarke Lasky (the "defendant"), was charged by a grand jury on February 6, 1997 in a twelve count Indictment (the "indictment"), with violating 18 U.S.C. § 664 (Counts One and Two), by allegedly embezzling employee health benefit monies, and 18 U.S.C. § 1341, by utilizing the mails in furtherance of the alleged fraud (Counts Three through Twelve). The defendant moves to dismiss the first two counts of the indictment pursuant to Fed. R. Crim. P. 12(b) and for a bill of particulars with regard to the remaining counts pursuant to Fed. R. Civ. P. 7(f), or in the event the application to dismiss is denied, with regard to the entire indictment.

 I. BACKGROUND

 The indictment alleges that the defendant was the president and owner of Employee Health Plan Administrators, Inc. (the "EHPA") which maintained an office in Westbury, New York. The indictment further asserts that the EHPA was a corporation operating as a health benefit consultant and administrator, and was a Collective Bargaining Representative on behalf of various employers that had entered into Associate Membership Collective Bargaining Agreements with Local 119, Brotherhood of Industrial Workers ("BIW"). Under this arrangement, the defendant acting as a representative or agent of the employers, was responsible for collecting the health benefit monies from the employer and remitting those monies to BIW (the "BIW Fund"). The BIW Health and Welfare Plan was an employee welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 ("ERISA") and 29 U.S.C. §§ 1002, 1003.

 Count One of the indictment charges that on or about and between February 1, 1994 and April 15, 1994, the defendant knowingly, intentionally and willfully embezzled and converted to his own use approximately $ 500,000.00 in benefits the defendant collected from various employers and failed to remit to BIW. Count Two of the indictment contains the identical charge with the exception that the time period is February 1, 1995 through April 15, 1995, and the amount of money allegedly embezzled was approximately $ 250,000.00. Counts Three through Twelve of the indictment charge the defendant with mail fraud premised upon the same series of facts as Count Two.

 II. DISCUSSION

 A. Motion to dismiss

 1. Standard of review

 Although at one time indictments had to be strictly pleaded, the rule for pleading indictments has been relaxed for quite some time. See United States v. Zolli, 51 F.R.D. 522, 524 (E.D.N.Y. 1970) (outlining legal history of indictment pleading). Presently, the pleading requirements of Fed. R. Civ. P. 7(c)(1) ("Rule 7(c)(1)"), which implements the defendant's Sixth Amendment right to know the charges against him, need only be met. Rule 7(c)(1) provides in relevant part that, "the indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." As long as the indictment meets the constitutional requirements mandated by the Fifth and Sixth Amendments, it is sufficient. Those constitutional requirements provide that the indictment (1) inform the defendant of the nature and cause of the accusation, as required by the Sixth Amendment, (2) provide the defendant a basis for ascertaining the scope of the charge in order to prevent against double jeopardy, as required by the Fifth Amendment, and (3) preserve the protection provided by the Fifth Amendment that no person be held accountable for a crime unless upon presentment or indictment by a grand jury. See United States v. Santeramo, 45 F.3d 622, 624 (2d Cir. 1995); United States v. Macklin, 927 F.2d 1272, 1276 (2d Cir.), cert. denied, 502 U.S. 847, 112 S. Ct. 146, 116 L. Ed. 2d 112 (1991); United States v. Silverman, 430 F.2d 106 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S. Ct. 1619, 29 L. Ed. 2d 123 (1971).

 It is within this legal framework that the Court examines the defendant's motion to dismiss Counts One and Two of the indictment.

 2. Counts One and Two

 Counts One and Two of the indictment charge the defendant with embezzlement of health benefit contributions collected from various employers, which funds were to be forwarded to or deposited with BIW, in violation of 18 U.S.C. § 664 ("Section 664"). Section 664, entitled "Theft or embezzlement from employee benefit plan" provides in relevant part as follows:

 The elements of a Section 664 embezzlement claim include:

 
(1) the unauthorized;
 
(2) taking or appropriation;
 
(3) of union benefit plan funds;
 
(4) with specific criminal intent.

 United States v. Andreen, 628 F.2d 1236, 1240-41 ...


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