United States District Court, Eastern District of New York
October 12, 2001
UNITED STATES OF AMERICA., PLAINTIFF,
WILLIAM PETERSON, A/K/A "CRAZY BILLY," DEFENDANT.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
In this criminal case, Defendant William Peterson, alleged to
be also known as "Crazy Billy," is charged with one count of
participating in a conspiracy to interfere with commerce by means
of threats and violence (extortion) in violation of the Hobbs
Act, 18 U.S.C. § 1951 and 3551 et seq.; one count of
interference with commerce by means of threats and violence under
18 U.S.C. § 1951, 2 and 3551 et seq.; one count of using fire
and explosives to interfere with commerce in violation of
18 U.S.C. § 1951, 2 and 3551 et seq.; two counts of arson under
18 U.S.C. § 844(i), 2 and 3551 et seq.; and two counts of
using and carrying destructive devices in furtherance of arson in
violation of 18 U.S.C. § 924(c)(1), 2 and 3551 et seq.
Presently before the Court are Peterson's pretrial motions to
strike from the superseding indictment (hereafter the
"indictment") the acts referred to in paragraphs 9 through 15 and
all references to him as "Crazy Billy".
According to the indictment, Peterson was the owner of Crazy
Billy's Deer Park Liquor store. Allegedly, Peterson was also the
president of Price Fighters, an organization comprised of, among
its other members, approximately 40 Long Island liquor store
owners. One of the goals of Price Fighters was to "maintain a
minimum price for the sale of certain liquors." Bottle Bargains,
Bottles & Cases, and Frank's Wine & Liquor Merchants were liquor
stores whose owners were not members of Price Fighters and who
sold certain liquor at prices below those established by the
liquor stores whose owners were members of Price Fighters.
Count One of the indictment charges that over a period from
approximately March 1990 until December 24, 1995, Peterson,
together with others, intentionally conspired to obstruct, delay,
and affect commerce and the movement of articles and commodities
in commerce by means of extortion. Specifically, the indictment
alleges that Peterson and his coconspirators agreed to obtain
from the owners of Bottle Bargains, Bottles & Cases, and Frank's
Wine & Liquor Merchants property, namely, the "right to compete
for business in the retail liquor industry, with the owners'
consent, which consent was to be induced by wrongful use of
actual threatened force, violence and fear."
The overt acts alleged in furtherance of the conspiracy are:
the instruction from Peterson to John Doe, whose identity is
known to the Grand Jury, given "in or about the fall of 1990 or
the spring of 1991", to direct the owner of Bottles & Cases to
raise prices at the store (paragraph 9); the firing of shots by
Peterson through a window of Bottles & Cases on or about May 7,
1991 (paragraph 10); the instruction from Peterson to a
coconspirator, given "in or about March 1992", to enter Frank's
Wine & Liquor Merchants to determine whether it could be damaged
or destroyed by fire (paragraph 11); the instruction from
Peterson to John Doe # 2, whose identity is known to the Grand
Jury, given "in or about the spring of 1994 and continuing until
on or about February 20, 1998", to direct the former owner of
Frank's Wine & Liquor Merchants to raise prices at the store
(paragraph 12); the instruction from Peterson to John Doe # 2,
given "in or about December 1994", to tell the former owner of
Frank's Wine & Liquor Merchants to stop giving away free bottles
of liquor with purchases of $50.00
or more (paragraph 13); the instruction from Peterson to John Doe
# 2, given on or about February 20, 1998 and continuing until in
or about April 2000, to direct the new owner of Frank's Wine &
Liquor Merchants to raise prices at the store (paragraph 14); and
the employment of fire and explosives in the form of Molotov
cocktails by a coconspirator, acting under Peterson's direction,
to damage Bottle Bargains and Bottles & Cases on or about
December 14, 1995 (paragraph 15).
Count Two of the indictment charges Peterson with interference
with commerce by means of threats and violence. Specifically, the
indictment asserts that Peterson threatened and committed
physical violence to the property of Bottle Bargains and Bottles
& Cases, in furtherance of a plan and purpose to commit
extortion. Count Three charges Peterson with utilizing fire and
explosives during the commission of Counts One and Two. Counts
Four and Five charge Peterson with arson relating to the use of
Molotov cocktails to damage the Bottle Bargains and Bottles &
Cases buildings. Finally, Counts Six and Seven charge Peterson
with using and carrying destructive devices in furtherance of the
arson charges alleged in Counts Four and Five.
A. As to the motion to strike the acts referred to in
paragraphs 9 through 15
Peterson first moves to strike the acts described in paragraphs
9 through 15 on identical grounds, alleging that "no conspiracy
can be established to have existed" during the referenced time
periods. In addition, Peterson alternatively argues that the acts
referred to in paragraphs 9 and 10 should be stricken from the
indictment as unfairly prejudicial in establishing whether he
caused others to employ the use of Molotov cocktails during the
incident on or about December 14, 1995, because the alleged acts
outlined in paragraphs 9 and 10 took place approximately four and
a half years earlier. Lastly, Peterson contends that the act
described in paragraph 10 should be stricken from the indictment
because evidentiary support for that act was obtained as a result
of "unconstitutional" police conduct.
Peterson's first argument, essentially that no evidence can be
produced to demonstrate the existence of his participation in a
conspiracy, is foreclosed by Costello v. United States,
350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956) where the
United States Supreme Court stated that: "An indictment returned
by a legally constituted and unbiased grand jury, like an
information drawn by the prosecutor, if valid on its face, is
enough to call for [a] trial of the charge on the merits. The
Fifth Amendment requires nothing more." Justice Black opined that
"If indictments were to be held open to challenge on the ground
that there was inadequate or incompetent evidence before the
grand jury, the resulting delay would be great indeed. The result
of such a rule would be that before trial on the merits a
defendant could always insist on a kind of preliminary trial to
determine the competency and adequacy of the evidence before the
grand jury." Id.
The broad language of Costello was echoed and reaffirmed in
U.S. v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 38 L.Ed.2d
561 (1974) and has been reflected in numerous decisions by the
Second Circuit. See, e.g., U.S. v. Alfonso, 143 F.3d 772, 776
(2d Cir. 1998); U.S. v. Stavroulakis, 952 F.2d 686, 693 (2d
Cir. 1992), cert. denied, 504 U.S. 926, 112 S.Ct. 1982, 118
L.Ed.2d 580, (1992); and U.S. v. Casamento, 887 F.2d 1141, 1182
(2d Cir. 1989). Accordingly, so long as the indictment is
valid, and Peterson does not so assert, the Fifth Amendment does
not require the Court to peer behind the indictment to evaluate
the adequacy of the evidence upon which it was based.
Federal Rule of Criminal Procedure 7(c)(1) provides that an
indictment "shall be a plain, concise and definite statement of
the essential facts constituting the offense charged." See also
U.S. v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999). "An indictment is
sufficient when it charges a crime with sufficient precision to
inform the defendant of the charges he must meet and with enough
detail that he may plead double jeopardy in a future prosecution
based on the same set of events." Stavroulakis, 952 F.2d at 693
(citing Russell v. U.S., 369 U.S. 749, 763-64, 82 S.Ct. 1038,
1046-47, 8 L.Ed.2d 240 (1962)). Moreover, "`an indictment need do
little more than to track the language of the statute charged and
state the time and place (in approximate terms) of the alleged
crime.'" Stavroulakis, 952 F.2d at 693 (quoting U.S. v.
Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975), cert. denied,
423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975)).
The Hobbs Act, or 18 U.S.C. § 1951, provides in relevant part
(a) Whoever in any way or degree obstructs, delays,
or affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or
threatens physical violence to any person or property
in furtherance of a plan or purpose to do anything in
violation of this section shall be fined not more
than $10,000 or imprisoned not more than twenty
years, or both.
(b) As used in this section
(2) The term "extortion" means the obtaining of
property from another, with his consent, induced by
wrongful use of actual or threatened force, violence,
or fear, or under color of official right.
An evaluation of the indictment with regard to the conspiracy
count reveals that it is facially valid. The indictment tracks
the precise language contained in the Hobbs Act and gave Peterson
notice of the specific conduct charged against him. Further, the
conspiracy count alleges the existence of more than one
coconspirator; the alleged victims of the conspiracy; and the
time frame in which the alleged violations took place. Although
the Government is not required to prove any overt act in order to
establish a Hobbs Act conspiracy, see U.S. v. Maldonado-Rivera,
922 F.2d 934, 983 (2d Cir. 1990), cert. denied, 501 U.S. 1211
111 S.Ct. 2811
, 115 L.Ed.2d 984 (1991), any concerns Peterson may
have regarding the sufficiency of the evidence against him should
be reserved for the trial, not this pre-trial motion.
Next, Peterson alternatively argues that the alleged conspiracy
to interfere with commerce by means of extortion started and
ended with the two acts of arson occurring on or about December
14, 1995. Therefore, according to Peterson, the acts described in
paragraphs 9 and 10 which took place in 1990 and 1991, should be
stricken from the indictment as remote and unfairly prejudicial
in determining whether he caused his purported coconspirators to
use Molotov cocktails during that incident of December 1995
because the alleged acts occurred approximately four and a half
years prior to that date.
"It is well settled that a criminal conspiracy [under the Hobbs
Act] is a continuing crime in that the conspiracy continues until
after the goal for which it was formed has been attained." U.S.
v. Meyers, 529 F.2d 1033, 1036 (7th Cir. 1976) (citing U.S. v.
James, 161 U.S.App.D.C. 88, 494 F.2d 1007, 1026 (1974), cert.
denied, 419 U.S.
1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974)). "`[I]n order to prove
a single conspiracy, the government must show that each alleged
member agreed to participate in what he knew to be a collective
venture directed toward a common goal.'" U.S. v. Aracri,
968 F.2d 1512, 1521 (2d Cir. 1992) (quoting Maldonado-Rivera, 922
F.2d at 963). It is of the essence of extortion that one compel
another to surrender property. U.S. v. Delano, 55 F.3d 720,
726-27 (2d Cir. 1995). The victim's fear may be of a loss that is
purely economic. See DeFalco v. Bernas, 244 F.3d 286, 313 (2d
Cir. 2001); U.S. v. Jackson, 180 F.3d 55, 69-70 (2d Cir. 1999).
Here, the apparent object of the conspiracy was to acquire
property from the owners of Bottle Bargains, Bottles & Cases, and
Frank's Wine & Liquor Merchants. In particular, the indictment
alleges that Peterson and his coconspirators sought to prevent
the liquor store owners from competing for business in the retail
liquor industry. The Second Circuit has held that "The concept of
property under the Hobbs Act, as devolved from its legislative
history and numerous decisions, is not limited to physical or
tangible property or things . . . but includes, in a broad sense,
any valuable right considered as a source or element of wealth."
U.S. v. Tropiano, 418 F.2d 1069, 1075-76 (2d Cir. 1969)
(citations omitted). Moreover "The right to pursue a lawful
business including the solicitation of customers necessary to the
conduct of such business has long been recognized as a property
right within the protection of the Fifth and Fourteenth
Amendments of the Constitution." Id. at 1076 (citing Louis K.
Liggett Co. v. Baldridge, 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed.
The Government claims that it will adduce evidence at the trial
showing that Peterson hired a crew to set fire and destroy the
liquor stores when his efforts of intimidation commencing in the
fall of 1990 failed. The Government further indicates that it
"possesses still additional evidence that at various other times
in or about and between 1990 and December 1995, Peterson and his
coconspirators discussed setting fire to yet other liquor stores,
and that evidence may be presented to the Grand Jury for the
purpose of seeking a superseding indictment" as was subsequently
handed down. If, as it explicitly alleges, the Government indeed
adduces this evidence at the trial, it could show a conspiracy to
impede the owners of Bottle Bargains and Bottle & Cases from
competing for business in the retail liquor industry spanning
from the fall of 1990 to December 14, 1995.
Finally, Peterson argues that the act described in paragraph
10, as to alleged shots fired through a window of Bottles &
Cases, should be stricken from the indictment because Peterson's
revolver was obtained through "unconstitutional" police conduct.
However, in his motion, Peterson contradictorily indicates that
he surrendered his weapon to the Suffolk County Police Department
at the request of a detective. Assuming that he contends that the
revolver should be suppressed as the product of an illegal search
and seizure under the Fourth Amendment, Peterson fails to
articulate how the police conduct was illegal; he relies upon a
bald assertion. Accordingly, without more, the Court declines to
strike the act outlined in paragraph 10 on this ground.
B. As to the motion to strike all references to the alias
Peterson next moves to strike all references to the alias
"Crazy Billy" from the indictment, arguing that any mention of
this name is prejudicial and unfair because the name "Crazy
Billy" is merely a trade name. Peterson contends that he has
operated his establishment for several
years under a borrowed variation of the name "Crazy Eddie" as a
marketing device in an effort to emphasize his low prices.
Peterson argues that the name "Crazy Billy" was not referred to
in testimony before the Federal Grand Jury, but rather it was
used in questions put to witnesses by the Assistant United States
Attorney. In support of his contentions, Peterson points out that
the complainant, Steven Herman, referred to him as a "gentleman
named Bill Peterson" during his Grand Jury testimony.
Fed.R.Crim.P. 7(d) provides that "The court on motion of the
defendant may strike surplusage from the indictment or
information." In U.S. v. Hernandez, 85 F.3d 1023, 1030 (2d Cir.
1996) (quoting U.S. v. Scarpa, 913 F.2d 993, 1013 (2d Cir.
1990)) the Second Circuit cautioned that "`motions to strike
surplusage from an indictment will be granted only where the
challenged allegations are not relevant to the crime alleged and
are inflammatory and prejudicial.'" However, if evidence is
admissible and relevant to the charge "the items in the
indictment will not be stricken no matter how prejudicial." U.S.
v. Payden, 613 F. Supp. 800, 823-24 (S.D.N.Y. 1985). "Use of
aliases in the indictment is permissible `If the Government
intends to introduce evidence of an alias and the use of that
alias is necessary to identify the defendant in connection with
the acts charged in the indictment.'" U.S. v. Rodriguez,
734 F. Supp. 116, 128 (S.D.N.Y. 1990), aff'd, 968 F.2d 130 (2d Cir.
1992), cert. denied, 506 U.S. 847, 113 S.Ct. 140, 121 L.Ed.2d
92 (1992) (quoting U.S. v. Clark, 541 F.2d 1016, 1018 (4th Cir.
In opposition, the Government responds that it will not elicit
testimony to demonstrate that Peterson was literally crazy.
Instead, the Government argues that witnesses, specifically
Peterson's coconspirators, will testify that in furtherance of
the conspiracy "other coconspirators told them that certain
unlawful acts were to be done for `Crazy Billy,' a person whose
last name they did not know but understood to be the owner of
Crazy Billy's Deer Park Liquor." The Government also claims that
eliminating from the indictment the adjective "Crazy" would
permit the jury to speculate that a "Billy" distinct from Crazy
Billy's Deer Park Liquor was involved.
Given the Government's assertion that Peterson's alias will
comprise part of its proof at trial, inclusion of Peterson's
alias in the indictment is relevant. Furthermore, as observed in
U.S. v. Esposito, 423 F. Supp. 908, 911 (S.D.N.Y. 1976),
"inclusion of the alias in the indictment is proper and, indeed,
may well serve to obviate jury confusion." See also, U.S. v.
Ianniello, 621 F. Supp. 1455, 1479 (S.D.N.Y. 1985), aff'd.
808 F.2d 184 (2d Cir. 1986). As always, the jury in this case will be
charged that the indictment is not evidence and functions merely
to set forth the accusations against Peterson. If the Government
fails to offer proof of the alias listed in the indictment as
tending to identify Peterson and connect him to acts that are
charged, then, following the procedure adopted by the Second
Circuit in U.S. v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990), a
motion to strike may be renewed, the alias stricken, and an
appropriate cautionary instruction given to the jury.
For the foregoing reasons, Peterson's motion to strike the acts
referred to in paragraphs 9 through 15 of the indictment on
inadequate evidence grounds is DENIED, and the motion to strike
references to the alias "Crazy Billy" as prejudicial surplusage
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