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September 23, 1999


The opinion of the court was delivered by: Elfvin, Senior District Judge.


The above individuals ("the defendants"), twenty-nine in all, are charged in and by a Superceding Indictment*fn1 filed April 28, 1998, with having conspired to possess particular controlled substances with the intention to distribute the same and with distributing such. Further, certain of the defendants are charged with — non-conspiratorially — distributing particular controlled substances and one of the defendants is charged with having unlawfully engaged in a continuing criminal enterprise.

Certain pretrial motions filed by or on behalf of fifteen of the defendants were referred to the Hon. Leshe G. Foschio, a United States Magistrate Judge of this Court, for his consideration and recommended dispositions. Judge Foschio's Decision and Order ("the R & R") was filed May 21, 1998. Thereafter and timely, certain of the defendants filed objections to the R & R, oppositions to such objections were served and filed. All of the same have been argued to the undersigned who has taken the same and the R & R into deliberative consideration.

The undersigned has given close attention to the premises advanced on behalf of each of such objecting defendants, has examined certain items which Judge Foschio had placed under seal and has considered all of the legal and factual arguments presented by such defendants.

Upon such due consideration, the May 31, 1998 Decision and Order of Judge Foschio is affirmed in all aspects.

Such objections are therefore and hereby ORDERED denied.




Defendants were indicted in a twenty-three count indictment on June 24, 1997 charging violations of 21 U.S.C. § 841 (a)(1), § 841(b)(1)(A), § 841(b)(1)(B), § 841(b)(1)(C), § 846, § 848, § 853(a), and 18 U.S.C. § 2. Specifically, Defendants are charged with conspiracy to possess with intent to distribute, and with the distribution, of 50 grams or more of crack cocaine, 5 kilograms or more of cocaine, and 50 kilograms or more of marijuana. Defendant Donald Benjamin is charged as the principal organizer of a continuing criminal enterprise. The individual defendants are also charged with offenses including the unlawful distribution of cocaine. Additionally, the Government is seeking the forfeiture of assets constituting the proceeds from controlled substance violations against Defendants Donald Benjamin, Wilson, Ingenito, Scicchitano.

Defendants have filed omnibus motions seeking, inter alia, to dismiss their respective charges on the grounds of facial insufficiency and double jeopardy, to suppress evidence as seized pursuant to search warrants issued without probable cause, suppression of the federal electronic communication intercept evidence and the statements obtained from the intercept, and for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The Government responded on January 9, 1998.

Oral argument was conducted on January 23, 1998. Copies of the in camera applications for the state search warrants at issue were delivered to the court on March 16 and March 25, 1998. On April 30, 1998, the court directed the Government to respond to Defendants Wilson, Friel and Kohl's requests for disclosure of the in camera testimony provided to obtain the state search warrants issued as to their respective premises. The response was filed May 7, 1998; replies were filed by Defendants Kohl and Wilson on May 13, 1998, as directed.


1. Dismissal of the Indictment

Defendants move to dismiss on grounds, including insufficiency, jeopardy, duplicity, and that the Indictment was based on improperly obtained evidence. The Government has opposed the motion on each of these grounds.

a. Sufficiency of the Indictment

Defendants claim that the Indictment fails to fairly apprise them of the conduct giving rise to the charged offenses, as required by Rule 7 (c)(1) of the Federal Rules of Criminal Procedure and, as such, the Indictment does not meet constitutional notice requirements under the Sixth Amendment as to the essential facts of the offenses charged.*fn3 Specifically, Defendants assert `that' The indictment counts are so vague and indefinite that they fail to inform Defendants of the nature or cause of the accusations giving rise to their alleged criminal liability. Additionally, Defendant Kohl argues for dismissal on insufficiency grounds based on the Government's failure to respond to discovery requests. Kohl Memorandum of Law at 2.

An indictment is facially valid and sufficient if it contains the elements of the offense charged, fairly informs a defendant of the charges against which he must defend, and enables a defendant to plead — an acquittal or a conviction in bar of further prosecution for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); 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); United States v. Ferrara, 701 F. Supp. 39 (E.D.N.Y. 1988). An indictment need only track the language of the statute and, if necessary to apprise the defendant of the nature of the accusation against him, state the time and place of the alleged offense in approximate terms. Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Covino, 837 F.2d 65, 69 (2d Cir. 1988); United States v. Bagaric, 706 F.2d 42, 61 (2d Cir.), cert. denied; 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); Ferrara, supra, at 44.

The form of an indictment is governed by Fed.R.Crim.P. 7(c)(1) which provides that "the indictment . . . shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged." 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). To satisfy this rule, "[t]he facts alleged must be adequate to permit a defendant to plead former jeopardy upon prosecution. The indictment must also be sufficiently specific to enable the defendant to prepare a defense." United States v. Carrier, 672 F.2d 300, 303 (2d Cir.), cert. denied; 457 U.S. 1139, 102 S.Ct. 2972, 73 L.Ed.2d 1359 (1982). As such, it is well settled that indictments which track the statutory language defining an offense are, as a general rule, sufficient under Rule 7(c) so long as application to a particular defendant is clear. United States v. Upton, 856 F. Supp. 727, 739 (E.D.N.Y. 1994). Additionally, while a bill of particulars cannot cure a constitutionally defective indictment, particularization is appropriate when the indictment is challenged as insufficient to permit the preparation of an adequate defense. Upton, supra, at 740-41. It is well established that an indictment which complies with Rule 7(c) also satisfies the requirements of the Sixth Amendment. Russell, supra, at 763-64, 82 S.Ct., 1038; Upton, supra, at 738; United States v. Abrams, 539 F. Supp. 378, 384 (S.D.N Y 1982).

Specifically, an indictment will satisfy the Sixth Amendment if it "contains the elements of the offense intended to be charged,`and sufficiently apprises the defendant of what he must be prepared to meet.'" Russell supra, at 763-64, 82 S.Ct. 1038 (quoting Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932) (citations omitted)) (emphasis added). While pleading "generic" terms only without the "species" will be insufficient, United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875), an indictment need only apprise the defendant of the nature of the accusation against him "with reasonable certainty," and will be sufficient if the language of the statute is charged along with "a statement of the facts and circumstances as will inform the accused of the specific offense . . . with which he is charged." Russell supra, at 765-66, 82 S.Ct. 1038 (citing cases) (emphasis added).

In this case, Defendants claim that Count One fails to state facts supporting the allegations of a conspiracy. Count One charges all nineteen Defendants with conspiracy to distribute and possession with the intent of distributing fifty or more grams of crack cocaine or five or more kilograms of cocaine or fifty or more kilograms of marijuana in violation of 21 U.S.C. § 841. Indictment, Count One. However, conspiracies charged under 21 U.S.C. § 846 are subject to the same pleading rule applicable to the substantive counts as discussed. Macklin, supra, at 1276.

Proof of an overt act is not a necessary element to a conspiracy charged under 21 U.S.C. § 846 as "the conspiracy to distribute narcotics is in and of itself a specific crime." United States v. Bermudez, 526 F.2d 89, 94 (2d Cir. 1975), cert. denied; 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976)(citing cases). Additionally, as an indictment is sufficient if it charges the offense using the words of the statute, an indictment under Section 846 "need only allege the existence of a narcotics conspiracy, a relevant time frame, and the statute alleged to be violated." Macklin, Supra, at 1276 (citing United States v. Bermudez, supra, at 94). Further, Rule 7 was satisfied in this case as the Indictment alleges the existence of a conspiracy to distribute and possess with the intent of distributing crack cocaine, cocaine or marijuana, the relevant three year time frame during which the alleged conspiracy took place, and the violations of Title 21, Sections 841(a)(1), (b)(1)(A), (B) and (C) (possession with intent to distribute and distribution of narcotics including cocaine and marijuana), 848 (leader of conspiracy), and 853(a) (forfeiture of assets) of the United States Code.

Nor is it necessary for the indictment to show that the co-conspirators were fully aware of the details or goals of their venture, but only that they agreed on the essential nature of the plan. United States v. Amiel 95 F.3d 135, 144 (2d Cir. 1996)(discussing factors upon which a conspiracy may be found to exist); United States v. Bagaric, 706 F.2d 42, 63 (2d Cir.), cert. denied; 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983)("the co-conspirators need not have agreed on the details of the conspiracy, so long as they agree on the essential nature of the plan"); United States v. Rosenblatt, 554 F.2d 36, 40 (2d Cir. 1977)(reversing conspiracy conviction on the basis that the indictment which charged a conspiracy to defraud the United States, without more, was insufficient to define the central nature of the conspiratorial plan where the defendants did not agree on the object of the conspiracy). See also United States v. Standard Drywall Corporation, 617 F. Supp. 1283, 1290 (E.D.N.Y. 1985) (indictment sufficient where conspiracy to defraud the United States set forth agreed upon plan providing that defendants, among other things, paid employees "off the books" without withholding any deductions). The agreement need not be explicit but may be inferred from facts and circumstances. Amiel supra, at 144 (citing Iannelli v. United States, 420 U.S. 770, 777 n. 10, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975)). Further, no written statement or even express oral statement is required as a tacit understanding is sufficient to establish a conspiracy for the purposes of a conspiracy conviction. Amiel, supra, at 144 (citing 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 6.4 at 71 (1986)). As such, Defendants' motions to dismiss Count One as insufficient should be DENIED.

Count Two charges Defendant Donald Benjamin with violating 21 U.S.C. § 848, which provides that a sentence of life imprisonment may be assessed against a convicted defendant who is engaged in a "continuing criminal enterprise" and who is found to be "the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders." 21 U.S.C. § 848 (a) and (b)(1). A person is engaged in a continuing criminal enterprise if the charged violations of Subchapter One of Title 21 of the United States Code, which includes Sections 841, 846, and 853,

  are undertaken by such person in concert with five or
  more other persons with respect to whom such person
  occupies a position of organizer, a supervisory
  position, or any other position of management, and . . .
  from which such person obtains substantial income
  or resources.

21 U.S.C. § 848 (c)(2)(A) and (B).

Here, Count Two specifically charges that during the time period commencing June 1, 1994, and continuing through June 24, 1997, Defendant Donald Benjamin "did knowingly, willfully, intentionally and unlawfully engage in a Continuing Criminal Enterprise" by violating 21 U.S.C. § 841 (a)(1) and (846) in concert with five or more other persons, with respect to whom the defendant, Donald Benjamin, Jr., a/k/a Ducky, "occupied a position of organizer, supervisor, and manager and from which continuing series of violations, the defendant, Donald Benjamin a/k/a Ducky, obtained substantial income and resources." Indictment, Count Two. This language sufficiently tracks the language of 21 U.S.C. § 848 such that Defendant Benjamin was adequately apprised of the circumstances and nature of the crimes pending against him. As such, Count Two of the Indictment should not be dismissed on the basis that it is insufficient.

Counts Twenty, Twenty-One, Twenty-Two and Twenty-Three all seek forfeiture of "any and all property constituting or derived from any proceeds obtained, directly or indirectly, as a result of said controlled substance violations pursuant to Title 21, United States Code, Section 853(a)(1)." Indictment, Counts Twenty, Twenty-One, Twenty-Two and Twenty-Three. The criminal forfeiture of property is governed by 21 U.S.C. § 853 (a)(1) which provides that any person convicted of a violation of Subchapter One of Title 21 of the United States Code, which includes Sections 841, 846, and 848, shall forfeit to the United States

  any property constituting, or derived from, any
  proceeds the person obtained, directly or indirectly,
  as the result of such violation.

21 U.S.C. § 853 (a)(1). Here, the challenged criminal forfeiture counts track the language of 21 U.S.C. § 853 (a)(1) almost word-for-word. As all the Defendants who face criminal forfeiture of their property are also charged with participating in the conspiracy under Count One, such Defendants were adequately apprised that the nature and circumstances of the forfeiture charges are attributed to the conspiracy charge. Accordingly, Counts Twenty, Twenty-One, Twenty-Two and Twenty-Three are all sufficient and should not be dismissed.

Finally, Counts Three through Nineteen charge violations of 21 U.S.C. § 841 (a)(1) and (b)(1)(A), (B) or (C) which provide, in part, that it is illegal to manufacture, distribute, dispense, or possess with intent to manufacture, distribute or dispense a controlled substance (§ 841(a)(1)), including five kilograms or more of a mixture or substance containing a detectable amount of cocaine (§ 841(b)(1)(A)), or 500 grams or more of a mixture or substance containing cocaine (§ 841(b)(1)(B)). Counts Four, Six, Eight, Twelve, Thirteen, Fourteen, Fifteen, Seventeen, Eighteen and Nineteen also charge those Defendants named with violating 18 U.S.C. § 2 pursuant to which an aider or abettor of a crime may be charged on the same manner as the principal perpetrator.

An indictment that tracks the statutory language defining the offense generally satisfies the requirements that an indictment contain the elements of the offense, notice to the defendant of the charges he must be prepared to meet, and information sufficient to protect the defendant against double jeopardy. United States v. Aliperti, 867 F. Supp. 142, 144 (E.D.N.Y. 1994). Here, the counts allege not only the statutory elements, but also identify that date and location where such prohibited conduct occurred. For example, Count Three states in its entirety

  On or about the 20th day of December, 1995, at Olean,
  New York, in the Western District of New York and
  elsewhere, the defendant, Neal Benjamin, did
  knowingly, intentionally and unlawfully possess with
  intent to distribute and distribute a quantity of a
  mixture or substance containing cocaine base, a
  Schedule II controlled substance; all in violation of
  Title 21, United States Code, Section 841(a)(1).

Indictment, Count Three. The other counts alleging individual violations of § 841(a)(1) are similar. As such allegations track the language of the statute which the specific Defendant is charged with violating, the court finds the Indictment reasonably apprises Defendants of the circumstances and nature of the charges against them, and also informs Defendants of the time and place of the alleged offenses in approximate terms. Russell, supra, at 765, 82 S.Ct. 1038; Covino, supra, at 69; Bagaric, supra, at 61; Ferrara, supra, at 44. Accordingly, Defendants' motions to dismiss Counts Three through Nineteen of the Indictment as insufficient should be DENIED.

Accordingly, the court finds no basis upon which to grant the Defendants' motions to dismiss the Indictment for legal insufficiency and the motions should, as to that ground, be DENIED.

b. Double Jeopardy

Defendant Kohl also argues that the charges against her constitutes double jeopardy as Kohl was already charged with possession of marijuana in violation of state law following her arrest by the Olean Police following the search and seizure on May 23, 1996. Kohl Memorandum of Law (Doc. # 96), filed November 24, 1997, at 4. Although Kohl fails to provide the precise disposition of that matter, she maintains that it was adjourned in contemplation of dismissal, a disposition available under state law. Id. Accordingly, Kohl argues that the current federal charges, premised on the same May 23, 1996 search and seizure which resulted in the state possession of marijuana charge, constitute a violation of the double jeopardy clause of the Fifth Amendment. Id.

The Double Jeopardy Clause of the Fifth Amendment provides in relevant part that "[no] person shall be subject for the same offense to be twice put in jeopardy of life or limb." United States Const. Amend. V, cl. 2. The thrust of Kohl's argument is that the Government's subsequent federal prosecution of her based on substantially the same underlying conduct for which Kohl has already received an adjournment in contemplation of dismissal under state law violates the Double Jeopardy Clause. Defendant Kohl's Memorandum of Law in Support of Pretrial Motions (Doc. # 96), filed November 14, 1997, at 4.

The doctrine of dual sovereignty, however, recognizes that the state and federal governments are distinct political entities, each of which draws its sovereign power from separate sources of fundamental law. United States v. Davis, 906 F.2d 829, 832 (2d Cir. 1990). As such, each sovereign has independent power "to determine what shall be an offense against its authority and to punish such offenses." Davis, supra, at 832. Accordingly, subsequent prosecution in federal court on substantially similar charges based on the same conduct for which defendant was prosecuted in state court is not barred by the double jeopardy clause of the Fifth Amendment because the defendant has offended against the law of both sovereigns. Heath v. Alabama, 474 U.S. 82, 89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985).

Even if there were no dual sovereignty exception to the Double Jeopardy Clause, as the relevant state and instant federal charges are substantively different, no double jeopardy arises. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1992)("where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not"). Kohl's state offense involved a charge based solely on a single act of possession of marijuana*fn4; the instant federal offenses challenged by Kohl are, under Count One, for conspiracy to possess with intent to distribute and distribution of controlled substances over a period of three years (21 U.S.C. § 841(a)(1), (b)(1)(A) and (B) and 846), as well as, under Count Twelve, a single charge of possession with intent to distribute cocaine (21 U.S.C. § 841 (a)(1) and (b)(1)(B) and 18 U.S.C. § 2). Prosecution on such offenses involving as they do different elements such as possession with intent to distribute, distribution and conspiracy as to crack cocaine, cocaine and marijuana compared to a charge of simple possession of marijuana without intent to distribute, does not constitute double jeopardy. Blockburger, supra; United States v. Felix 503 U.S. 378, 389-90, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992) ("The `essence' of a conspiracy offense `is in the agreement or confederation to commit a crime'") (quoting United States v. Bayer, 331 U.S. 532, 542, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947)); United States v. Liller, 999 F.2d 61, 63 (2d Cir. 1993) (where pending charge covers a broad range of conduct, allegations of the indictment must be examined in addition to the terms of the relevant statutes to determine if the offenses charged are separate). It is well settled that a conspiracy charge with its core element of an agreement to commit a substantive offense is dissimilar for double jeopardy purposes from the object offense. Felix, supra; United States v. Sessa, 125 F.3d 68, 71-72 (2d Cir. 1997), cert denied; 522 U.S. 1065, 118 S.Ct. 731, 139 L.Ed.2d 669 (1998); United States v. Gambino, 968 F.2d 227, 231 (2d Cir. 1992); United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981); United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980). Further, a substantive count charging possession with intent to distribute controlled substances manifestly contains additional elements which a charge of simple possession does not. Blockburger, supra, at 304, 52 S.Ct. 180. Accordingly, dismissal of the Indictment on the ground of double jeopardy should be DENIED.

c. Duplicity

Defendant Scicchitano moves to dismiss the Indictment on the ground that it is duplicitous as Count One charges him with three separate crimes creating the possibility of conviction despite the potential absence of jury unanimity.*fn5 Affidavit of Herbert L. Greenman, Esq., attached to Defendant Scicchitano's Notice of Motion (Doc. # 120), filed December 15, 1997 ("Greenman Affidavit"), ¶¶ 46-48. The Government maintains that Count One is not duplicitous merely on the basis that it charges a conspiracy with more than one criminal objective. Government's Response, ¶ 45.

An indictment is duplicitous if it joins two or more distinct crimes in a single count. United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980). However, a duplicitous indictment, which alleges several offenses in the same count, must be distinguished from "the allegation in a single count of the commission of a crime by several means." Murray, supra; United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992). It is well established that the allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for the crime charged is the single offense of conspiracy, however diverse its objects. See Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 87 L.Ed. 23 (1942); United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981); United States v. Murray, supra. Moreover, "[a] single count is not duplicitous merely because it contains several allegations that could have been stated as separate offenses." United States v. Sugar, 606 F. Supp. 1134, 1146 (S.D.N.Y. 1985). "Acts that could be charged as separate counts in an indictment may instead be charged in a single count if those acts could be characterized as part of a continuing scheme." United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989), cert. denied; 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990)(citing Margiotta, supra, at 733); Aracri, supra.

Here, the Government has alleged a continuing, ongoing scheme to traffic in controlled substances. According to the Grand Jury, Defendants, including Scicchitano carried out the scheme by individual sales of crack cocaine, cocaine and marijuana which was obtained from Defendant Benjamin. To prove the conspiracy, the Government will be required to show that "each alleged member agreed to participate in what he knew to be a collective venture directed toward a common goal." United States v. Martino, 664 F.2d 860, 876 (2d Cir. 1981), cert. denied; 458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373 (1982). A single conspiracy is not transformed into multiple conspiracies "merely by virtue of the fact that it may involve two or more phases or spheres of operation, so long as there is sufficient proof of mutual dependence and assistance." United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir. 1990), cert. denied; 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991). All the individual counts with which the Defendants are charged are evidence upon which the jury may determine that the conspiracy was ongoing and its objective was to traffic in each of those types of narcotics as alleged, in violation of federal law.

Accordingly, the court finds that Count One charges a single narcotics trafficking conspiracy accomplished through actions of the individual Defendants' actions in possessing and distributing crack cocaine, cocaine and marijuana and is, therefore, not duplicitous. ...

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