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U.S. v. PETERSON

October 12, 2001

UNITED STATES OF AMERICA., PLAINTIFF,
V.
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".

BACKGROUND

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.

DISCUSSION

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 facially 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 ...


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