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United States District Court, Eastern District of New York

March 6, 2003


The opinion of the court was delivered by: I. Leo Glasser


The defendant was convicted, following a trial by jury, of violating 18 U.S.C. § 1962(c) (Racketeering); 18 U.S.C. § 1962(d) (Racketeering Conspiracy); 18 U.S.C. § 1959(a)(1) (Murder in Aid of Racketeering); 18 U.S.C. § 1503 (False Statement and Obstruction of Justice Conspiracy); 18 U.S.C. § 1001(a)(2) (False Statement) and 18 U.S.C. § 1503(a)(b)(3) (Influencing Testimony of Witness Before the Grand Jury). He has renewed his motion for a judgment of acquittal on: Racketeering Act Four, charging him with endeavoring to obstruct and impede the due administration of justice by influencing the testimony of John Doe 2 before the grand jury, in violation of 18 U.S.C. § 1503(a); Count Four, charging him, in part, with corruptly endeavoring to obstruct and impede the due administration of justice in violation of 18 U.S.C. § 1503; Count Seven, charging him with corruptly endeavoring to obstruct and impede the due administration of justice by influencing the testimony of John Doe 1 before the grand jury in violation of 18 U.S.C. § 1503(a), (b)(3); and Count Eight, charging him with the same offense as in Count Seven except that John Doe 2 is substituted for John Doe 1. His motions for the same relief at the end of the government's case, and at the end of the entire case, were denied.

The basis for the motions aimed at the violations of § 1503 is that witness tampering must be prosecuted under 18 U.S.C. § 1512, which was not charged. He relies for his claimed entitlement for relief upon United States v. Masterpol, 940 F.2d 760 (2d Cir. 1991) and United States v. Gabriel, 125 F.3d 89, 104 n. 12 (2d Cir. 1997).

The Counts of the indictment at which his motion are aimed, read as follows:

Count Seven

On or about and between October 19, 2001 and November 7, 2001, within the Eastern District of New York and elsewhere, the defendants Mario Fortunato and Carmine Polito, also known as "Carmine Pizza," together with others, knowingly, intentionally and corruptly endeavored to influence, obstruct and impede the due administration of justice, to wit: to influence the testimony of John Doe 1, whose identity is known to the grand jury, before the grand jury.
(Title 18, United States Code, Sections 1503(a), 1503(b)(3), 2 and 3551 et seq.)

Count Eight charges essentially the same offense, except for a variation in dates and John Doe 2 as the person endeavored to be influenced.

Racketeering Act Four mirrors Count Eight and the second object of Count Four charges the defendants with corruptly endeavoring to influence, obstruct and impede the due administration of justice in violation of 18 U.S.C. § 1503.

The selection of the jury and the trial commenced on January 13, 2003. On the 5th day of trial and after 10 witnesses had testified, a letter was received on behalf of defendant Fortunato advising that he will move to dismiss those Counts based upon Masterpol because he is charged with witness tampering under § 1503.


18 U.S.C. § 1503 provides in relevant part:

(a) Whoever corruptly . . . endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished
18 U.S.C. § 1512(b)(1) provides in relevant part:

(b) Whoever knowingly . . . corruptly persuades another person . . . with intent to —
(1) influence . . . the testimony of any person in an official proceeding
In United States v. Masterpol, supra, the defendant was convicted of obstructing justice in violation of 18 U.S.C. § 1503 in that he urged two witnesses to recant their trial testimony and of making a false statement in violation of 18 U.S.C. § 1001. His pretrial motions to dismiss the charges were denied. On appeal, he argued that following the amendment of § 1503 in 1982, that statute no longer covered witness tampering and that he should have been charged, if at all, under 18 U.S.C. § 1512. The Court of Appeals agreed and held that "Congress affirmatively intended to remove witnesses entirely from the scope of § 1503" when it amended the statute and reversed the defendant's obstruction of justice conviction under § 1503.

In United States v. Gabriel, supra, at 104 n. 12, the Court wrote that "Although the sections are closely related, we have concluded that if the government seeks to prosecute a person for witness tampering, the government cannot use section 1503 but must instead use section 1512." Gabriel was, in fact, charged with § 1512 and the issue presented in Masterpol was not before the Court.

The government defends the indictment's charge pursuant to § 1503 by reading United States v. Schwarz, 283 F.3d 76, 109 (2d Cir. 2002) as implicitly disavowing Masterpol. In Schwarz, co-defendant Bruder, a New York City police officer was convicted following a jury trial of making false statements to federal investigators as part of a conspiracy to misdirect an investigation into an assault, in violation of 18 U.S.C. § 1503. In reversing his conviction, the Court held that:

The fatal defect in the government's case is that there was no showing that Bruder . . . knew that the allegedly false statements he made to the federal investigators . . . would be conveyed to the federal grand jury. . . . The government has therefore failed to offer sufficient evidence of Bruder's intent to obstruct the federal grand jury. . . .
From that excerpt, the government argues that had Bruder known that his false statements would be conveyed to the grand jury, he would have been guilty of violating section 1503. The defendant disputes that interpretation of Schwarz by reference to the appellate briefs in that case which make no reference to Masterpol or to whether witness tampering may be prosecuted under § 1503 and assert that the issue was also not argued before the Court of Appeals.

The government buttresses its interpretation of Schwarz by "noting that a precedential torrent supports Schwarz's common sense-based ruling and undermines Masterpol by citing authority from virtually every other Circuit Court in the United States holding that a witness tampering prosecution may be brought under either § 1503 or § 1512 (Gov. Mem. at 3-6). See United States v. Marrapese, 826 F.2d 145 (1stCir. 1987); United States v. Grubb, 11 F.3d 426 (4th Cir. 1993); United States v. Branch, 850 F.2d 1080 (5th Cir. 1988); United States v. Tackett, 113 F.3d 603, 606 (6th Cir. 1997); United States v. Maloney, 71 F.3d 645 (7th Cir. 1995); United States v. Risken, 899 F.2d 728 (8th Cir. 1990); United States v. Ladum, 141 F.3d 1328, 1338 (9th Cir. 1998); United States v. Tranakos, 911 F.2d 1422 (10th Cir. 1990); United States v. Moody, 977 F.2d 1420 (11th Cir. 1992).

Whether the Court of Appeals intended to disavow Masterpol sub-silencio or even had it in mind when reversing Bruder's conviction will be left for that Court to make clear when the opportunity next arises. For the reasons that follow, I am driven to conclude that the defendant's motion should be denied.


Rule 12(b) Fed.R.Cr.P. provides in relevant part that the following defenses, objections or requests must be raised prior to trial.

(1) Defenses and objections based on defects in the institution of the prosecution; or

(2) Defenses and objections based on defects in the indictment.

A resort to the dictionary should surely not be necessary to support the view that the reference to § 1503 rather than § 1512 was, as the defendant contends, a defect in the indictment. Resort to the Notes of the Advisory Committee will suffice. In its Note to Subdivision (b)(1) and (2) the Committee wrote:

These two paragraphs classify into two groups all objections and defenses to be interposed by motion prescribed by Rule 12(a). In one group are defenses and objections which must be raised by motion, failure to do so constituting a waiver. In the other group are defenses and objections which at the defendant's option may be raised by motion, failure to do so, however, not constituting a waiver.
In the first of these groups are included all defenses and objections that are based on defects in the institution of the prosecution or in the indictment and information, other than lack of jurisdiction or failure to charge an offense. All such defenses and objections must be included in a single motion. (Cf. Rule 12(g) of Federal Rules of Civil Procedure, 28 U.S.C. Appendix.) Among the defenses and objections in this group are the following: Illegal selection or organization of the grand jury, disqualification of individual grand jurors, presence of unauthorized persons in the grand jury room, other irregularities in grand jury proceedings, defects in indictment or information other than lack of jurisdiction or failure to state an offense, etc. The provision that these defenses and objections are waived if not raised by motion substantially continues existing law, as they are waived at present unless raised before trial by plea in abatement, demurrer, motion to quash, etc.
In the other group of objections and defenses, which the defendant at his option may raise by motion before trial, are included all defenses and objections which are capable of determination without a trial of the general issue. They include such matters as former jeopardy, former conviction, former acquittal, statute of limitations, immunity, lack of jurisdiction, failure of indictment or information to state an offense, etc. Such matters have been heretofore raised by demurrers, special pleas in bar and motions to quash.
That Note, together with the discussion that follows, compels the conclusion that the objection not having been made pretrial, the defect was waived.

Precisely in point in United States v. Oldfield, 859 F.2d 392 (6th Cir. 1988) in which following his conviction, the defendant argued on appeal that he was improperly indicted for mail fraud when he should have been indicted for odometer tampering. He did not contend that the indictment failed to charge an offense, but contends that the government proceeded under the wrong statute. The Court held that his contention was not excepted by Rule 12(b)(2) and comes too late. In reaching its determination, the Court quoted from 2 W. LaFave and J. Israel, Criminal Procedure § 19.2 at 442 (1984):

[The] provision [Rule 12(b)(2)] sharply restricts the defense tactic of "sandbagging" that was available in many jurisdictions under common law pleading. Recognizing that there was a defect in the pleading, counsel would often forego raising that defect before trial, when a successful objection would merely result in an amendment of the pleading. If the trial ended in conviction, he could then raise the defect on a motion in arrest of judgment and obtain a new trial. Federal Rule 12 eliminated this tactic as to all objections except the failure to show jurisdiction or to charge an offense.
859 F.2d at 397. See also United States v. Cook, 999 F.2d 541 (6th Cir. 1993); Concepcion v. United States, 181 F. Supp.2d 206 (E.D.N.Y. 2002).

The essence of the commentary by LaFave and Israel was more recently echoed by the Court of Appeals for this Circuit in United States v. Crowley, 236 F.3d 104 (2d Cir. 2000) and United States v. Wydermyer, 51 F.3d 319 (2d Cir. 1995). In Wydermyer the defendant raised for the first time on appeal that the indictment was defective in omitting what he claimed to be essential elements of the crimes of money laundering and making false statements for which he was convicted. In rejecting his arguments, Judge Walker wrote:

At common law, even the slightest technical defect might fell an indictment. Sir Matthew Hale lamented the strictness with which indictments were viewed as "a blemish and inconvenience of the law" whereby "heinous and crying offenses escape by these unseemly niceties to the reproach of the law, to the shame of the government, and to the encouragement of villainy, and to the dishonour of God." 2 Sir Matthew Hale, The History of the Pleas of the Crown 193 (London, E. Rider 1800) (1716). In 1883, Sir James Stephen opined that the exacting scrutiny of indictments for technical error made the administration of justice "a solemn farce," a condition only partly alleviated by various statutory reforms in his time. 1 Sir James F. Stephen, A History of the Criminal Law of England 284, 284-92 (Lenox Hill (Burt Franklin) 1973) (1883).
51 F.3d at 324.

In Crowley, the Court considered the question of whether a pretrial objection to an indictment as being vague or insufficiently specific without apprising the Court of the particular portions of the indictment that lack specificity is timely made pursuant to Rule 12(b)(2) Fed.R.Cr.P. In deciding that it was not, the Court wrote:

Federal Rule of Criminal Procedure 12(b)(2) explicitly provides that a claim that an indictment is insufficiently specific "must be raised prior to trial." This mandate is no mere pleading technicality. Rather, it serves a number of important purposes, including deterrence of gamesmanship — Rule 12(b)(2) prevents a defendant from deciding whether to object to an indictment's purported lack of specificity based solely on whether he is convicted or acquitted — and insuring that indictments are not routinely challenged (and dismissed) after the jury has been seated and sworn, a result that would waste jurors' time and force courts frequently to confront complex Double Jeopardy questions. As the Supreme Court has observed, "If [the] time limits [of Rule 12(b)(2)] are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult." Davis v. United States, 411 U.S. 233, 241 (1973).
236 F.3d at 108.

Those observations on the purpose Rule 12(b) was designed to serve are exquisitely applicable here, where, as has been indicated, the defendant's motion was made after the jury was seated and sworn, well past the midpoint of the trial and after numerous witnesses have testified. The exceptions of "failure to show jurisdiction or to charge an offense" are not applicable as subsequent discussion will make clear.

In his letter memorandum in support of his motion (Def. Mem. at 3-4), the defendant's "short answer" to this point "is that under the plain language of Rule 12(b)(2) a claim that the conduct alleged is not punishable under the statute charged `shall be noticed by the court at any time during the pendency of the proceeding.'" The "plain language" to which reference is made eludes the Court's reading of the Rule.*fn1 In support of what he perceives to be the "plain language" of Rule 12(b)(2), the defendant relies upon United States v. Foley, 73 F.3d 484 (2d Cir. 1996); United States v. Harrod, 168 F.3d 887 (6th Cir. 1999) and United States v. Hubbard, 16 F.3d 694 (6th Cir. 1994).

In Foley, the defendant was convicted following a jury trial of accepting a bribe in violation of 18 U.S.C. § 666(a)(1)(B) and of filing and conspiring to file false tax returns in violation of 18 U.S.C. § 7206(2) and 371. The Court reversed the bribery conviction and vacated the tax fraud convictions because of its uncertainty that those convictions were not based on the bribery conviction that was flawed. The opinion of the Court provides no comfort to the defendant. A close reading of it would, instead, confirm what has already been written here. The government's contention that the defendant's challenge to the bribery conviction should not be entertained because not raised in the district court was rejected. That the lower court proceeded without jurisdiction must be noticed by an appellate court even if the issue was raised neither in the district court or on appeal. The Court then continued:

In assessing whether the indictment charges an offense under the statutory provision alleged, we note that "[i]t is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as `those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.'" Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974) (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1881)). When, however, one element of the offense is implicit in the statute, rather than explicit, and the indictment tracks the language of the statute and fails to allege the implicit element explicitly, the indictment fails to allege an offense.
Tracing the legislative history of 18 U.S.C. § 666(a)(1)(B), the Court wrote ". . . we have held that there was no violation of that section when the preservation of federal funds was not implicated by the defendant's conduct" and concluded that the essential element of the crime defined by that statute, namely, that the bribery must be shown in some way to touch upon federal funds, was an element the government failed to prove. 73 F.3d at 492-93. United States v. Harrod, supra upon which the defendant also relies construed Foley to decide that an "objection that indictment failed to set forth elements of bribery may be treated as a jurisdictional defect and addressed on appeal whether or not raised in trial court." 168 F.3d at 890.

In Harrod, the defendants made one-sided black and white photocopies of five dollar bills and were convicted of violating 18 U.S.C. § 474 which makes it a crime to possess obligations made "in whole or in part after the similitude" of United States obligations with the intent to use them. On appeal, the defendant contends that the one-sided photocopies are not "similitudes" and, therefore, not a violation of the statute. The Court rejected the government's contention that the defendant waived his right to object by not moving before trial pursuant to Rule 12(b) holding that a motion to dismiss an indictment for failure to state an offense need not be brought before trial. 168 F.3d at 890.

In Hubbard, supra, the defendant was convicted following a trial by jury of bankruptcy fraud, making false statements and mail fraud in violation of 18 U.S.C. § 152, 1001 and 1341 respectively. On appeal, he argued insufficiency of evidence and ineffective assistance of counsel. Rejecting the government's contention that the defendant waived his "judicial function" exception defense to the § 1001 charge, the Court held that the defendant's argument "is not merely a formalistic objection to a defect in the indictment; instead, his argument goes to the heart of whether, as a matter of law, he can be convicted of the crime with which he was charged." 16 F.3d 694, 698. It should be noted that Hubbard was reversed in 514 U.S. 695 (1995) which held that § 1001 does not apply to false statements made in judicial proceedings.

Neither Foley, Hubbard nor Harrod are apposite as the foregoing précis of each reveals. No question has been raised, nor can one be, regarding the jurisdiction of the Court to hear this case, or regarding the failure of the indictment to plainly and concisely charge the essential facts constituting a violation of a United States statute. The failure to object, pretrial, as required by Rule 12(b) to the defective reference to the statute alleged to be violated, resulted in a waiver of that defect.

Rule 7(c), Federal R. Cr. P.

The denial of the motion is also required by Rule 7(c)(1), Fed.R.Cr.P. which provides in relevant part as follows:

The indictment . . . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged . . . It need not contain . . . any other matter not necessary to such statement . . . The indictment . . . shall state for each Count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged . . . to have violated.
Here, too, the Advisory Committee Notes are instructive. In its Note to Subdivision (c), the Committee wrote in paragraph 3:

The law at present regards citations to statutes or regulations as not a part of the indictment. A conviction may be sustained on the basis of a statute or regulation other than that cited. Williams v. United States, 168 U.S. 382, 389, 18 S.Ct. 92, 42 L.Ed. 509; United States v. Hutcheson, 312 U.S. 219, 229, 61 S.Ct. 463, 85 L.Ed. 788. The provision of the rule, in view of the many statutes and regulations is for the benefit of the defendant and is not intended to cause a dismissal of the indictment, but simply to provide a means by which he can be property informed without danger to the prosecution.

Williams v. United States, 168 U.S. 382 (1897) foretold this case more than 105 years ago. There, too, it was claimed that an indictment was returned under the wrong statute — "that the district attorney of the United States proceeded under other statutes that did not cover" [this one]. The first Justice Harlan responded to that claim as follows:

It is wholly immaterial what statute was in the mind of the district attorney when he drew the indictment, if the charges made are embraced by some statute in force. The endorsement on the margin of the indictment constitutes no part of the indictment, and does not add to or weaken the legal force of its averments. We must look to the indictment itself, and, if it properly charges an offense under the laws of the United States, that is sufficient to sustain it, although the representative of the United States may have supposed that the offense charged was covered by a different statute.
168 U.S. at 389.

About 45 years later, Justice Frankfurter writing for the Court in United States v. Hutcheson, 312 U.S. 219, 229 (1941) observed that:

In order to determine whether an indictment charges an offense against the United States, designation by the pleader of the statute under which he purported to lay the charge is immaterial. He may have conceived the charge under one statute which would not sustain the indictment, but it may nevertheless come within the terms of another statute.
To the teaching of Hutcheson and Williams must be added subparagraph (3) to Rule 7(c) which provides:

(3) Harmless Error. Error in the citation or its omission shall not be ground for dismissal of the indictment . . . or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant's prejudice.
The teaching of Hutcheson and Williams and Rule 7(c)(3) have been continuously applied by the Court of Appeals for this Circuit. See United States v. Eucker, 532 F.2d 249, 257 (2d Cir. 1976), cert. denied, 429 U.S. 1044 (1976); United States v. Chestnut, 533 F.2d 40, 45 (2d Cir. 1976), cert. denied, 429 U.S. 829 (1976); United States v. Calabro, 467 F.2d 973, 981 (2d Cir. 1972), cert. denied, 410 U.S. 926 (1973); United States v. Galgano, 281 F.2d 908, 910 (2d Cir. 1960), cert. denied, 366 U.S. 960 (1961); United States v. Kolodny, 149 F.2d 210, 211 (2d Cir. 1945).

As has already been indicated, the defendant first raised the spectre of Masterpol 5 days into the trial and after 10 witnesses had testified. A claim that he has been misled to his prejudice would be noisome.

The ghost of Masterpol, the foregoing notwithstanding, hovers over this motion and pleads, perhaps, to be exorcized. It is in response to such an imagined plea that a nisi prius judge may be prompted to recall the dissent of Judge Learned Hand in Spector Motor Source v. Walsh, 139 F.2d 809, 823 (2d Cir. 1944), vacated, 323 U.S. 101 (1944). It was there that he wrote "[It is undesirable] for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant; on the contrary, I conceive that the measure of its duty is to divine, as best it can, what would be the event of an appeal in the case before us."

In the discharge of that perceived duty, I make bold to divine that in the event of an appeal Masterpol would not require a reversal. To begin with Masterpol made an unsuccessful pretrial motion to have the charges dismissed so the issue of a Rule 12(b) waiver would not be relevant. One is struck, however, by the absence, in that opinion, of any reference to Rule 7(c) or to Hutcheson, Williams and to the long line of Second Circuit cases, cited above, which, had they been acknowledged, would surely have dictated a result consistent with them. To do otherwise would be a "reproach of the law, to the shame of government" and make of "the administration of justice a solemn farce."

In a letter dated February 12, 2003, Polito joined in the motion made by Fortunato.

This Memorandum and Order then, for all the reasons given, is to be understood to be a denial of the motions made by both defendants, Mario Fortunato and Carmine Polito.


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