The opinion of the court was delivered by: Robert L. Carter, District Judge
Defendant Ronald Carey was charged in Indictment 01 Cr. 72 ("the
Indictment") with five counts of making false statements in matters
within the jurisdiction of the government (18 U.S.C. § 1001), and two
counts of perjury before a grand jury (18 U.S.C. § 1623). He now
moves to: (1) dismiss Counts One, Five, Six and Seven for improper
venue; (2) transfer the case for trial to the United States District
Court for the District of Columbia; (3) dismiss Counts One, Three, Four,
Five, Six and Seven for failure to state an offense; (4) dismiss Counts
One, Two, Five, Six and Seven for failure to state an offense; (5) strike
certain language alleged to constitute surplusage from the Indictment;
(6) preclude the government from introducing certain evidence concerning
the ultimate disposition of two investigations into Carey's conduct; and
(7) require the government to provide Carey with a bill of particulars.
In 1988, the government filed an action under the civil remedies
provision of the Racketeer Influenced and Corrupt Organizations ("RICO")
Act against, inter alia, the International Brotherhood of Teamsters
("IBT"), its General Executive Board ("GEB") and members of the GEB.
(Ind. ¶ 11.) The government alleged, among other things, that the
leaders of the IBT were operating the union in an undemocratic way and
that the leadership had been corrupted by organized crime. Id On March
14, 1989, Judge Edeistein, United States District Judge of this court,
signed an order setting the government's claims against the IBT
defendants (the "Consent Decree").*fn1 Id.
The Consent Decree established an Independent Review Board ("IRB") to
investigate allegations of corruption and influence from organized
crime. (Ind. ¶ 12.) It required secret ballot elections by the IBT
membership. Id. To ensure the proper functioning of the democratic
process, the Consent Decree also provided that the court would appoint an
Election Officer to oversee the 1991 IBT election of officers, and, upon
request by the government, the 1996 IBT election. Id.
The government exercised its right to have the 1996 election supervised
and, pursuant to the government's request, Judge Edelstein signed an
order in 1995 that governed the supervision of the 1996 IBT election.
(Ind. ¶¶ 12, 13.) Among other things, this order provided that an
Election Officer and Election Appeals Master would be appointed by the
court, and that they would report periodically to the court on the
progress of the election. Id.
¶ 13.) The court retained exclusive jurisdiction to supervise the
activities of the Election Officer and the Election Appeals Master. Id.
Pursuant to this authority, the court approved the "Rules for the
1995-1996 IBT International Union Delegate and Officer Election" (the
"Rules"), which would govern the election. Id. The court appointed
Barbara Zack Quindel to act as Election Officer for the 1996 IBT
elections. (Ind. ¶ 14.)
Carey, who had been elected General President of the IBT in the 1991
election, ran for reelection in 1996 against James P. Hoffa. (Id. ¶
16.) After Quindel finished counting the ballots, she determined that
237, 028 IBT members voted for Carey and 221, 110 members voted for
Hoffa. (Ind. ¶ 17.)
Following the election and a review of campaign contribution and
expenditure reports, Quindel initiated an investigation into possible
Rules violations. (Ind. ¶ 29.) On July 17, 1997, representatives of
Quindel interviewed Carey under oath at a deposition. Id. On August 21,
1997, Quindel ordered a rerun of the 1996 IBT election after determining
that misuse of IBT funds benefited the Carey campaign. Id. Shortly
thereafter, Quindel discovered information that led her to recuse
herself. See United States v. IBT, 247 F.3d 370, 376 (2d Cir. 2001). On
September 29, 1997, Judge Edelstein designated former federal District
Judge Kenneth Conboy as Election Officer "for the sole purpose of
investigating and deciding the issue of disqualification of Ronald Carey
from the rerun election." Id. In this capacity, Conboy questioned Carey
under oath in a deposition on November 10, 1997, regarding his knowledge
of improper campaign contributions. (Ind. ¶ 29.)
In March, 1997, the United States Attorney for the Southern District of
New York initiated a grand jury investigation into, among other things,
whether IBT funds had been used to finance the Carey campaign. (Ind.
¶ 29.) Carey testified under oath before the grand jury on July 16,
1997, October 1, 1997, and November 21, 1997. (Ind. ¶ 29.) Carey
also testified, under oath, on October 28, 1997, before the IRB's Chief
Investigator regarding his participation in, and/or knowledge of, a
scheme to misappropriate IBT funds in an effort to aid his campaign. Id.
In connection with the IRB, s investigation, Carey again testified at an
IRB hearing on January 21 and 22, 1998. Id.
The government's position appears to be that Carey had knowledge of,
and/or participated in, an unlawful scheme to fund his IBT presidential
campaign whereby he would authorize contributions of IBT funds to various
political groups and other organizations in exchange for donations to his
IBT campaign from those groups or interested wealthy individuals.
(I.) Defendant's Motion to Dismiss Counts One, Five, Six and Seven
for Improper Venue
Carey moves to dismiss Counts One, Five, Six and Seven for improper
venue pursuant to Rule 12(b), F.R. Crim. P. These counts allege the
making of material false statements in violation of 18 U.S.C. § 1001
("§ 1001"). Carey asserts that venue is proper only in the District
of Columbia because the statements took place there. The government
contends that the statements were received in the Southern District of
New York ("this district") in connection with Judge Edelstein's
administration of the Consent Decree, and therefore venue is proper in
Where, as here, the government "has provided the court with a "full
proffer' of the facts it intends to introduce at trial to establish
venue, the Court may decide whether venue is proper before trial." United
States v. Mittal, 1999 WL 461293, at *4 (S.D.N.Y. July 7, 1999) (Koeltl,
J.). Since the defendant is charged in more than one count, venue must be
proper with respect to each count. See United States v. Beech-Nut Nutrit.
Corp., 871 F.2d 1181, 1188 (2d Cir. 1989). pursuant to the Sixth
Amendment, venue is proper in the "district wherein the crime shall have
been committed."*fn2 However, venue for a continuing offense, that is,
an offense begun in one district and completed in another, or committed
in more than one district, may be prosecuted in any district in which
such offense was "begun, continued, or completed." 18 U.S.C. § 3237(a).
Courts have held that a false statement under § 1001 may constitute
a continuing offense where there exists a "geographic discontinuity
between the defendant's physical making of the statement, whether oral or
written, and the actual receipt of that statement by the relevant federal
authority." United States v. Bin Laden, 2001 WL 579815, at *2 (S.D.N.Y.
May 29, 2001) (Sand, J.). Accordingly, charges under § 1001 may be
prosecuted in the district in which the false statement was prepared,
mailed or uttered, and in any district into which the statement was
"propelled" by the defendant and received or acted upon by the
government. Cf. United States v. Candella, 487 F.2d 1223, 1228 (2d Cir.
Here, the allegedly false statements were made in the District of
Columbia to an election officer (Count One), the Chief Investigator to
the IRB (Count Five), and the IRB itself (Counts Six and Seven). These
officials were appointed pursuant to the Consent Decree to supervise and
investigate IBT activity and were charged by the Consent Decree and
subsequent court rulings*fn3 to file reports and submit decisions to the
court for its approval.*fn4 IBT officers, members and employees
obligated to "cooperate fully" with the Election Officer and IRB, and
were warned that failure to cooperate placed them in reach of
disciplinary action and criminal sanctions. See, e.q., Consent Decree at
20; United States v. IBT, 45 F. Supp.2d 309, 312 (S.D.N.Y. 1999)
(Edelstein, J.) ("IBT members . . . who provide false statements to the
Election Officer face possible criminal sanctions [under]
18 U.S.C. § 1001."). At all times, Judge Edelstein retained exclusive
jurisdiction to implement the Consent Decree. Carey therefore knew, or
reasonably should have known, that his false statements would be
"propelled" to and acted upon in this district.*fn5 See United States v.
Kim, 246 F.3d 186, 193 (2d Cir. 2001) (finding venue proper in district
where it was foreseeable that fraudulent invoices would be acted upon).
The Second Circuit has noted that even if venue appears proper under a
continuing offense theory, a court should also "ask whether the criminal
acts in question bear 'substantial contacts' with any given venue."
United States v. Saavedra, 223 F.3d 85, 93 (2d Cir. 2000) (citing United
States v. Reed, 773 F.2d 477, 481 (2d Cir. 1985)). The "substantial
contacts" test set forth in Reed articulates four factors that courts
should consider in determining venue: (1) the site of defendant's acts;
(2) the elements and nature of the crime; (3) the locus of the effect of
the criminal conduct; and (4) the suitability of the district for
accurate factfinding. See Reed, 773 F.2d at 481.*fn7
In this case, although factor one points to venue in the District of
Columbia, the remaining factors indicate that venue is proper in this
district as well. One of the essential elements of § 1001 is that a
false statement be made, not in private, but in a "matter within the
jurisdiction of . . . the Government of the United States." In order for
the government to prove the jurisdictional element in this case, it must
prove that the false statements arose under the Consent Decree issued by
Judge Edelstein in this district.
As to the effects of the crime, the court notes that under the limited
facts of this case, the false statements, like the perjury in Reed,
appear "fully analogous to contumacious conduct." Reed, 773 F.3d at 484.
Carey's allegedly false statements were made to officials appointed
pursuant to the Consent Decree, for the sole purpose of ridding the IBT of
corruption. As such, his statements had the effect of obstructing the
court's continued efforts to ensure the integrity of its rulings. "As in
the case of criminal contempt, a court unable to punish false testimony
affecting its proceedings would be at the mercy of the
and prosecutorial priorities of a foreign district." Id. 773 F.3d at
Lastly, this district is suitable for factfinding, since it produced
the underlying Consent Decree, it has been the site of continued law
enforcement efforts to rid the IBT of corruption, and many of the
witnesses are located here. Cf. Saavedra, 223 F.3d at 93 (finding
district suitable for factfinding where it "has been the site of
concerted law enforcement efforts to disable the Latin Kings'
racketeering activities," even though action in question occurred
Under the facts as described in the government's proffer, venue in this
district is proper. Accordingly, the motion to dismiss Counts One, Five,
Six, and Seven is denied.
(2) Defendant's Motion for Transfer
Carey next contends that the court should transfer this case to the
District of Columbia pursuant to Rule 21(b), F.R. Crim. P. Generally, "a
criminal prosecution should be retained in the original district," unless
the interests of justice require a transfer. United States v. Guastella,
90 F. Supp.2d 335, 338 (S.D.N.Y. 2000) (Kram, J.). The defendant bears
the burden of establishing the need for transfer. See Id.
In ruling on a Rule 21(b) motion, a court should consider a variety of
factors, including: (a) location of the defendant; (b) location of
possible witnesses; (c) location of events at issue; (d) location of
relevant documents and records; (e) potential disruption of defendant's
business; (f) expense to the parties; (g) location of defense counsel;
(h) relative accessibility of the place of trial; (i) docket conditions
of each potential district; and (j) any other special circumstance that
might bear on the desirability of transfer Platt factors"). See Platt v.
Minnesota Mining & Mfg. Co., 376 U.S. 240, 243-44 (1964). No one of these
considerations is dispositive, and"[i]t remains for the court to try to
strike a balance and determine which ...