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UNITED STATES OF AMERICA v. KELLY

February 8, 2000

UNITED STATES OF AMERICA,
V.
PATRICK KELLY, DEFENDANT.



The opinion of the court was delivered by: Robert W. Sweet, U.S.D.J.

OPINION

For the reasons set forth below, Kelly's motion will be denied.

Background and Prior Proceedings

Kelly, a manager at Le Bar Bat, a Manhattan nightclub, is alleged to have publicly distributed fliers targeting four female ex-employees of Le Bar Bat, who had filed sexual discrimination and harassment claims against Kelly and others with the United States Equal Employment Opportunity Commission ("EEOC"). The fliers, which contain the women's pictures and addresses, falsely describe them as suspected prostitutes, child molesters, or drug dealers. Each flier was purportedly authored by a local "crime watch" group and states that "We want [the target] out of our neighborhood." The distribution took place on or about April 4, 1998, less than two weeks after Le Bar Bat was notified by the EEOC of the last of the women's claims. The fliers were placed near the women's homes and were mailed to their apartment buildings and to at least one woman's out-of-state parents.

On April 22, 1999, a Grand Jury sitting in the Southern District returned a one-count indictment against Kelly, charging him with a violation of 18 U.S.C. § 1512(b)(1). The instant motion was filed on November 2, 1999. Answer and reply papers were received through December 8, 1999, at which point oral argument on the motion was heard.

Discussion

I. Dismissal of the Indictment

Kelly has moved to dismiss the Indictment on two grounds: (i) the Indictment does not allege facts sufficient to satisfy the statutory elements of 18 U.S.C. § 1512(b); (ii) § 1512(b) is unconstitutional as applied to Kelly as violative of the First Amendment protection of speech.

The Indictment reads:

On or about April 4, 1998, in the Southern District of New York and elsewhere, Patrick Kelly, the defendant, unlawfully, willfully and knowingly, did use intimidation, threaten, corruptly persuade another person and attempt to do so, and did engage in misleading conduct toward another person, with intent to influence, delay and prevent the testimony of a person in an official proceeding, to wit, Kelly publicly distributed flyers labeling four persons who had named Kelly in pending discrimination claims filed with the United States Equal Employment Opportunity Commission as, among other things, suspected prostitutes, child molesters and/or drug dealers. (Title 18, United States Code, § 1512(b)(1).)

18 U.S.C. § 1512 is the federal criminal statute prohibiting witness tampering. As the indictment indicates, Kelly is charged with violation of subsection (b), which reads, in pertinent part:

Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to . . . influence, delay, or prevent the testimony of any person in an official proceeding . . . ...

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