Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. FASCIANA

September 17, 2002

UNITED STATES OF AMERICA,
V.
JOHN FASCIANA AND JOSEPH AMATO, DEFENDANTS.



The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge

  OPINION AND ORDER

In this mail, wire fraud and conspiracy case, the Government has indicated its intention to proffer at trial evidence concerning Defendant John Fasciana's alleged mishandling of a $4,136 check (the "$4,136 check") made payable to Thomson McKinnon Securities Inc. ("Thomson McKinnon"). Defendant Fasciana seeks to preclude the introduction of such evidence, contending that its admission would constitute a constructive amendment of Counts Seven and Twelve of the Third Superseding Indictment (the "Indictment").

Defendant Fasciana has also objected to the Government's stated intention to offer at trial evidence concerning (a) an alleged attempted conversion of a check in the amount of $4,921*fn1 payable to Thomson McKinnon, (b) an alleged alteration and mishandling of a check issued to Fasciana's former law firm by an entity referred to as The Guild Group, and (c) an alleged effort by Fasciana to defraud insurers in connection with certain acts charged in the Indictment. Fasciana argues that the proffered evidence should not be admitted under Rule 404(b) of the Federal Rules of Evidence.

The Court has considered thoroughly all of the parties' written submissions and arguments in connection with these applications. For the following reasons, Defendant Fasciana's application to preclude the introduction of evidence concerning the $4,136 check is denied and his Rule 404(b) application is granted in part and denied in part.

The general nature and background of the charges in this case are outlined in an earlier opinion, United States v. Reddy, Fasciana and Amato, 190 F. Supp.2d 558 (S.D.N.Y. 2002) ("Fasciana I"), familiarity with which is assumed.

The $4,136 Check

By letter dated August 13, 2002, the Government notified the Court and Defendant Fasciana that it intended to introduce trial testimony concerning the $4,136 check in support of its contention that Fasciana and his co-conspirators sought and obtained payments from EDS on the basis of fraudulent representations that certain "Pre-Acquisition Receivables" had been collected.*fn2 Asserting that this letter constituted the first revelation that the mail and wire fraud charges set forth in Counts Seven and Twelve of the Indictment were premised on anything other than a contention that Fasciana and his co-conspirators had disguised post-acquisition receivables as Pre-Acquisition Receivables, Fasciana moves to preclude the Government's evidentiary proffer, contending that to permit introduction of the evidence at trial would effect a constructive amendment of Counts Seven and Twelve of the Indictment.

Counts Seven and Twelve charge Fasciana with mail and wire fraud, respectively, based on the transmission to EDS of demands for payment of a $93,527.92 sum. Fasciana acknowledges that the demand was based, in part, on a representation that the proceeds of the $4,136 check constituted Pre-Acquisition Receivables. The $4,136 check is not, however, specifically mentioned in the Indictment. The Government proffers that Fasciana obtained the $4,136 check, deposited it his trust account, then signed a check for $4,136 made payable to EDS. The Government further proffers that Fasciana caused a cover letter transmitting the check to represent that the $4,136 check was attributable to the collection of Pre-Acquisition Receivables. See Government's Letter dated Sept. 9, 2002. Fasciana argues that a fraud conviction based on an alleged misrepresentation of the nature of those proceeds would be outside the scope of the charged fraud which, according to Fasciana, is limited in relevant part to false representations that receipts for post-acquisition work were attributable to Pre-Acquisition Receivables.

The Fifth Amendment to the Constitution of the United States guarantees the right to indictment by a grand jury on felony charges. Thus, "after an indictment has been returned its charges may not be broadened except by the grand jury itself." Stirone v. United States, 361 U.S. 212, 215-16 (1960). A court "cannot permit a defendant to be tried on charges that are not made in the indictment against him." Id., 361 U.S. at 217.

A constructive amendment of an indictment `occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them.' United States v. Zingaro, 858 F.2d 94, 98 (2d Cir. 1988) (quoting Gaither v. United States, 413 F.2d 1061, 1071 (D.C.Cir. 1969)). As such, a constructive amendment is a per se violation of the Fifth Amendment. United States v. Delano, 55 F.3d 720, 729 (2d Cir. 1995). `To prevail on a constructive amendment claim, a defendant must demonstrate that either the proof at trial or the trial court's jury instructions so altered an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury's indictment.' United States v. Frank, 156 F.3d 332, 337 (2d Cir. 1998) (per curiam) (citing Zingaro, 858 F.2d at 98). In determining whether an "essential element" of the offense has been modified, moreover, we have `consistently permitted significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial.' Delano, 55 F.3d at 729 (quoting United States v. Patino, 962 F.2d 263, 266 (2d Cir. 1992) (internal quotations omitted)). Moreover, in the context of a conspiracy charge, `[t]he Government need not . . . set out with precision each and every act committed . . . in furtherance of the conspiracy,' particularly where the acts proven at trial were part of the `core of the overall scheme and in furtherance of that scheme.' United States v. Cohen, 518 F.2d 727, 733 (2d Cir. 1975). `It is clear the Government may offer proof of acts not included within the indictment, as long as they are within the scope of the conspiracy.' United States v. Bagaric, 706 F.2d 42, 64 (2d Cir. 1983), abrogated on other grounds by Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249 (1994).

United States v. LaSpina, 299 F.3d 165, 181-182 (2d Cir. 2002).

Fasciana cites paragraphs 30, 34(h)-(l) and 35(r)-(y) of the Indictment in support of his argument that proof relating to the $4,136 check would go beyond the crimes charged in Counts Seven and Twelve of the Indictment. Counts Seven and Twelve charge defendants Reddy and Fasciana with mail and wire fraud, respectively, in connection with the mailing and faxing of a 1998 demand for the payment of $93,527.92.

A note as to the structure of the Indictment is in order at the outset. Paragraphs 1 through 35 comprise Count One of the Indictment, charging the three named Defendants with a conspiracy to commit mail and wire fraud. Paragraphs 36 and 37, incorporating by reference paragraphs 1 though 29 and 33, introduce Counts Two through Ten, which charge specific Defendants with committing specific acts of mail fraud "for the purpose of executing the fraud scheme set forth in Count One." Paragraphs 38 and 39, incorporating by reference paragraphs 1 through 29 and 33, introduce Counts Eleven through Thirteen, which charge specific Defendants with committing specific acts of wire fraud "for the purpose of executing the fraud scheme set forth in Count One."

The Indictment paragraphs specifically incorporated into Counts Seven and Twelve do not include any of the allegations detailing the 1998 Pre-Acquisition Receivables elements of the charged conspiracy. They do include the Indictment's general description of "The Scheme to Defraud EDS" as one spanning the period from in or about the fall of 1995 through in or about June 1999 and consisting of a scheme "to defraud EDS by inducing EDS to make various contingent payments to [certain persons] . . . when, in fact, such payments were not due and owing." Indictment, ¶ 12. The $93,527.92 demand was for one of the contingent payments referred to in paragraph 12. Nothing in paragraph 12 or in any of the other paragraphs specifically incorporated into Counts Seven and Twelve purports to characterize or provide details of the alleged Pre-Acquisition Receivables element of the charged scheme, much less to limit the nature of that scheme to the mischaracterization of post-acquisition receivables. Paragraph 12 makes clear the core nature of the fraud charged — defrauding EDS by inducing EDS to make payments that were not due and owing. Introduction of evidence that a misrepresentation as to the nature or source of the proceeds of the $4,136 check underlay the allegedly fraudulent $93,527.92 demand is neither inconsistent with nor broader than the allegations laid out in Counts Seven and Twelve and, thus, does not facially appear to be a constructive amendment of the charges and allegations set forth in those Counts of the Indictment.

As noted above, however, Fasciana focuses on paragraphs 30, 34(h)-(l) and 35(r)-(y) of the Indictment in arguing constructive amendment. None of these paragraphs, which comprise Count One's general description of the "1998 Payments for the Collection of Pre-Acquisition Receivables" (¶ 30), the portion of Count One's "Means and Methods" allegations relating to those payments (¶¶ 34(h)-(l)), and the portion of Count One's "Overt Acts" allegations relating to those payments (¶¶ 35 (r)-(y)) is incorporated by reference in Count Seven or Count Twelve. Although the analytical basis for Fasciana's invocation of these particular provisions of the Indictment is far from clear (perhaps Fasciana considers reliance on these allegations as narrowing the scope of Counts Seven and Twelve appropriate because those Counts allege that the criminal activity charged was undertaken "for the purpose of executing the fraud scheme set forth in Count One above"*fn3, such that a holistic view of the scope of Count One is a necessary element of interpretation of the substantive charges), the Court has considered carefully whether the allegations in the cited paragraphs effectively narrow the scope of the criminal activity charged such that introduction of the evidenced relating to the $4,136 check would constructively amend the Indictment. The Court concludes, for the following reasons, that it would not.

Paragraph 30 of the Indictment alleges, inter alia that:

By late 1997, more than $350,000 in Pre-Acquisition Receivables remained uncollected, and a corresponding amount remained in escrow awaiting payment to the FCI Shareholders upon collection of the Pre-Acquisition Receivables. From in or about December 1997 up to and including in or about December 1998, MICHAEL REDDY and JOHN FASCIANA, the defendants, and co-conspirators known and unknown to the Grand Jury, deceived EDS into believing that they had collected these Pre-Acquisition Receivables, when in fact, they had not. REDDY and FASCIANA accomplished this by laundering through Fasciana's bank accounts more than $350,000 in funds EDS received from sources other than the collection of Pre-Acquisition Receivables, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.