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UNITED STATES v. FERRARA

January 9, 1998

UNITED STATES OF AMERICA, against ERIC J. FERRARA, Defendant.


The opinion of the court was delivered by: HURLEY

 HURLEY, District Judge

 By letter motion dated October 8, 1997, defendant seeks the following items of relief:

 1. Dismissal of the indictment for its purported failure to allege a federal crime;

 2. Dismissal of the indictment upon the ground that it is the product of defective grand jury proceedings or, alternatively, an order directing an in camera inspection of the grand jury minutes to determine the adequacy of the proceedings before that body;

 3. A determination that the statute which defendant is charged with violating, to wit, 18 U.S.C. § 666 ("Section 666"), violates constitutional principles of federalism; and

 4. A Bill of Particulars.

 BACKGROUND

 Defendant is charged in a three count indictment with giving, or having offered to give, bribes to three members of the Southampton Town Board (the "Town Board") with the intent to influence those members in relation to a project for the construction of a radio tower in Noyac, a community located within the Town of Southampton (the "Town").

 The relevant charging language from Counts One and Two of the indictment reads as follows:

 
The defendant ERIC J. FERRARA did knowingly, intentionally and corruptly give, offer and agree to give something of value to a member of the Town Board of the Town of Southampton, with the intent to influence a member of the Town Board in connection with business and a transaction and series of transactions of the Town of Southampton involving a matter with a value of over $ 5,000, to the Town, to wit: a request for change of zoning of land within the Town, which matter affected the financial interest of the Town of Southampton, all while the Town of Southampton was in receipt, over a one year period, of benefits in excess of $ 10,000 in Federal assistance.

 (Indictment PP 7, 9.)

 Count Three reads the same except it does not include the word "give" after the words "knowingly, intentionally and corruptly." (Id. P 11.)

 The present attack on the indictment is not defendant's first. An earlier indictment (97 CR 364) was dismissed by me for facial insufficiency pursuant to a Memorandum and Order dated July 21, 1997. The language in the two accusatory instruments is essentially the same except that the earlier one did not contain the following language with respect to the claim that the transaction had a value of over $ 5,000:

 
To wit: a request for change of zoning of land within the Town which matter affected the financial interests of the Town of Southampton.

 (Id. PP 7, 9, 11.)

 In United States v. Foley, 73 F.3d 484 (2d Cir. 1996), Judge Kearse, writing for the panel, explained that an indictment which simply tracks the statutory language of Section 666 does not properly allege a violation, given the implicit element of the crime, viz., that the $ 5,000 or more in value must affect either "the financial interests of the [Town or] federal funds directly." Foley, 73 F.3d at 493. Indictment 97 CR 364 suffered from the pleading defect underscored in Foley in that it did not contain that implicit element, thereby triggering the previously noted dismissal.

 The defect cited in the July 21, 1997 Memorandum and Order is not found in the new indictment, which -- unlike its predecessor -- links the $ 5,000 value requirement to the Town. That instrument is attacked, however, upon the ground that the financial impact upon the Town must be "adverse" for a violation of Section 666 to be properly charged. (Oct. 8, 1997 Jacqueline M. Skubik Letter ("Skubik Letter") at 2.)

 Proceeding seriatim, the Court will address the current attack upon the sufficiency of the indictment, as well as the alternate items of relief sought in defendant's letter motion. In addition, a decision will be rendered regarding defendant's earlier motion to suppress certain incriminating statements said to have been uttered by the defendant on the date of his arrest. That motion, which accompanied the earlier attack on the indictment, was originally rendered moot via the dismissal of indictment 97 CR 364. The issue was raised again by defendant's motion dated September 23, 1997.

 DISCUSSION

 I. Section 666 Does not Require Proof of an Adverse Financial Impact Upon the Town

 The portion of Section 666 that defendant is charged with violating provides in pertinent part:

 
a) Whoever, if the circumstance described in subsection (b) of this section exists --
 
. . . .
 
(2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of a . . . local . . . government, or any agency thereof, in connection with any business, transaction, or series of transactions of such . . . . government, or agency involving anything of value of $ 5,000 or more, shall be fined under this title, imprisoned not more than 10 years, or both.

 18 U.S.C. § 666.

 The "circumstance described in subsection (b)," referred to in the first clause of Section 666(a), is that the "government[] or agency receives, in any one year period, benefits in excess of $ 10,000 under a Federal program involving a grant, contract, subsidiary, loan, guarantee, insurance, or other form of Federal assistance." 18 U.S.C. § 666(b).

 For purposes of the present motion, it is not disputed that each of the individuals who were purportedly offered a bribe were, as Town Board members, agents of a local government, which government received more than $ 10,000 in federal monies within the appropriate time period. Nor is it disputed that the conduct alleged constituted an effort to influence those members in connection with the municipal business. The sole focus of the attack is the $ 5,000 requirement. In defendant's view, the government must plead and prove that the bribery attempt, if successful, would have caused a loss of $ 5,000 or more to the Town.

 Initially, it should be noted that the proposition advanced does not find support in the language of Section 666. But, of course, the additional element of the crime articulated in Foley is not apparent from a perusal of the statute. And it is that decision, as supplemented primarily by language from Santopietro v. United States, 948 F. Supp. 145 (D. Conn. 1996), which is the predicate for defendant's present argument. (Skubik Letter at 2-3.)

 To place the issue raised in context, a brief review of the reasons for the enactment of Section 666, and comments about its $ 5,000 value ...


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