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U.S. v. MINGLE

United States District Court, W.D. New York


July 28, 2004.

THE U.S.
v.
VINCENT ANTHONY MINGLE, a/k/a Jim or "Jimmy" Mingle.

The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge

MEMORANDUM and ORDER*fn1

On February 25, 2003 Mingle was indicted for allegedly violating 18 U.S.C. § 2 & 894 by participating in the use of extortionate means to collect and to attempt to collect an extension of credit.*fn2 On March 31, 2003 Mingle filed a motion seeking, inter alia, dismissal of the indictment. Mingle's motion was referred to Magistrate Judge H. Kenneth Schroeder Jr. on April 4, 2003 pursuant to 28 U.S.C. § 636(b)(1)(B). Judge Schroeder issued a Report and Recommendation ("R&R") on February 5, 2004 recommending that this Court deny Mingle's motion to dismiss the indictment. On February 5, 2004 Judge Schroeder also issued a Decision and Order ("D&O") denying, inter alia, Mingle's request for a Bill of Particulars. Upon receiving an extension of time for filing objections to the R&R and D&O, Mingle filed such on March 15, 2004. For the reasons set forth below, Mingle's objections will be overruled, Judge Schroeder's R&R will be adopted in its entirety, Mingle's motion to dismiss the indictment will be denied and Judge Schroeder's D&O will be affirmed.

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate" and may adopt those parts of the R&R to which no specific objection is raised, so long as such are not clearly erroneous.*fn3 Conversely, this Court must make a de novo determination as to the portions of the R&R to which specific objections have been timely made.*fn4 Finding no clear error, this Court will adopt those portions of the R&R to which no specific objection has been made. The Court will now address Mingle's specific objections to the R&R. Mingle advanced two arguments in support of his motion to dismiss the indictment. First, Mingle argued that the indictment is "vague and without specificity" because it fails to identify the means by which the alleged threats were communicated or to whom, when and where such were communicated. Mingle argued that the indictment should be dismissed under United States v. Tomasetta, 429 F.2d 978, 980-981 (1st Cir. 1970). Mingle's second argument in favor of dismissal is that the government committed outrageous conduct — to wit, manufacturing the crime for which Mingle was indicted. Judge Schroeder's R&R rejected both arguments.

  Mingle objects to the R&R's rejection of his first argument by contending that Judge Schroeder erroneously relied upon United States v. Gotti, 2004 WL 32858 (S.D.N.Y. 2004), and that such case is inapplicable. Gotti held that an indictment for extortionate extensions of credit — also referred to as "loansharking" — "need [only] be facially valid; there is no requirement that the indictment supply sufficient evidence to convict." Gotti, at *8 (citing United States v. Alfonso, 143 F.3d 772, 776-777 (2d Cir. 1998)). Accordingly, Gotti is applicable and Judge Schroeder was correct in finding that the indictment is sufficient under Alfonso and other Second Circuit authority. Moreover, this Court finds de novo*fn5 that the R&R was correct in finding that Tomasetta is not binding authority*fn6 and that the indictment is sufficient under binding Second Circuit authority.*fn7 Accordingly, Mingle's objection to the R&R's rejection of Mingle's vagueness argument will be overruled.

  Mingle objects to the R&R's rejection of his second argument by contending that the government's denial of his allegations of outrageous government conduct established a factual issue that should be resolved by a hearing. Mingle cites United States v. Cuervelo, 949 F.2d 559, 567 (2d Cir. 1991), in support of his argument. Cuervelo noted that "[m]ost often, conducting a hearing is the preferred course of action in cases where disputed factual issues exist." Ibid. Judge Schroeder, however, assumed arguendo the facts alleged by Mingle and found that such allegations failed to establish outrageous government conduct. No hearing was required because Mingle's alleged facts were accepted as true for purposes of Mingle's motion.*fn8 Consequently, Mingle's request for a hearing was properly denied by Judge Schroeder.

  Mingle further objects to the R&R's rejection of his second argument by contending that Judge Schroeder erroneously relied upon United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997), because a hearing is required to resolve disputed factual issues. Because this Court finds that no hearing was required, Mingle's objection to the R&R's reliance on Schmidt appears to fail as well. Nonetheless, this Court will review de novo the R&R's reliance on Schmidt. The R&R cited Schmidt, which noted that

"[t]he concept of fairness embodied in the Fifth Amendment due process guarantee is violated by government action that is fundamentally unfair or shocking to our traditional sense of justice, or conduct that is so outrageous that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction against the accused." Schmidt, at 91 (citations and internal quotations omitted).
This Court does not find Mingle's alleged facts to be "so outrageous that common notions of fairness and decency" are offended by Mingle's prosecution. Ibid.*fn9 Indeed, Mingle alleges no coercion, violation of his person or government involvement in his alleged criminal conduct that goes beyond standard covert operations by law enforcement officials. Ibid.*fn10 Moreover, Mingle presents an even weaker case for dismissal than did Schmidt, who was incarcerated and under observation for mental illness. Ibid. In any event, under Asencio, Mingle's allegations of government involvement fail to cross the "line of outrageous Government conduct."*fn11 Accordingly, Mingle's objection to the R&R's rejection of Mingle's "outrageous government conduct" argument will be overruled. Finally, Mingle appeals from Judge Schroeder's D&O with respect to the denial of Mingle's request for Bill of Particulars. The D&O will be reviewed for clear error.*fn12 Mingle cites United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987)*fn13 for the proposition that "a Bill of Particular [sic] is intended to allow a defendant to identify with sufficient particularities the nature of the charge pending against him, thereby enabling the defendant to prepare for trial, to prevent surprise and to interpose a plea of double jeopardy should be prosecuted a second time for the same offense." Bortnovsky, however, also stated that, "if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required." Ibid. Judge Schroeder was correct in denying Mingle's request for a bill of particulars because the criminal complaint filed in this action identifies "the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." Ibid. Consequently, Judge Schroeder's denial of Mingle's request for a bill of particulars was not clearly erroneous and the D&O will be affirmed.

  Accordingly, it is hereby ORDERED that Mingle's objections are overruled, Judge Schroeder's R&R is adopted in its entirety, Mingle's motion to dismiss the indictment is denied, that Judge Schroeder's D&O is affirmed and parties shall appear before this Court on August 13, 2004 at 1:00 p.m. (or as soon thereafter as they may be heard) to set a date for trial.


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