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U.S. v. BUTLER

November 4, 2004.

UNITED STATES OF AMERICA,
v.
DAMIAN BUTLER, KIMBERLY JONES, MONIQUE DOPWELL, and HILLARY WESTON, Defendants.



The opinion of the court was delivered by: GERARD E. LYNCH, District Judge

OPINION AND ORDER

The indictment in this case charges the four defendants in eighteen counts with offenses ranging from possession of firearms by a convicted felon, through perjury and obstruction of justice, to fraudulent use of a passport. The allegations in the indictment, which principally stem from a shootout on a Manhattan street in February 2001 and an alleged conspiracy to obstruct a grand jury investigation into that event, are set forth in the Court's prior opinion addressing the defendants' various motions to sever the charges, United States v. Butler, No. S1 04 Cr. 340, 2004 WL 2274751 (S.D.N.Y. Oct. 7, 2004), and will not be repeated at length here. This opinion will address miscellaneous motions made by the defendants.

I. Butler: Motion to Strike Surplusage

  Defendant Damian Butler moves to dismiss alleged surplusage from the indictment. Such motions are granted only where the allegations are irrelevant to the crime charged and are inflammatory and prejudicial. United States v. Mulder, 273 F.3d 91, 99 (2d Cir. 2001); United States v. Hernandez, 85 F.3d 1023, 1030 (2d Cir. 1996). That standard cannot be met here.

  In the first place, it should be noted that motions to strike purported surplusage are largely meaningless, at least in this Court. It is not the usual practice of this Court to provide the jury with a copy of the indictment in any event, and if it should be appropriate to give a copy of the indictment to the jury in connection with their deliberations, that copy can be redacted according to the charges, allegations, and evidence that remain relevant in light of the entire trial. There is little or no purpose in attempting to predict in advance of trial what evidence will prove admissible or how specific allegations relate to the overall charges.

  Butler's motion is addressed primarily to three topics. First, he moves to strike certain allegations relating to the defendants' relationship to one Christopher Wallace, and to the murder of Wallace in 1997. (Butler Br. 3-4.) The defendants' relationship to Wallace is clearly relevant background to the charges in this Indictment, since it explains the origins of their relationship with each other. The Government less persuasively argues that the fact of Wallace's murder is relevant because it "is necessary to explain why Wallace is no longer a major part of the defendants' lives." (Gov't Br. 7.) At this stage of the case, it is premature to decide whether the absence of Wallace from the defendants' lives is significant to the case, or if it is, whether the manner of his death, as opposed simply to the fact of it, is relevant. At any rate, nothing about the defendants' relationship with Wallace, or the fact or manner of his death, is inflammatory or prejudicial to the defendants. So far as appears in the Indictment, Wallace was a musician and businessman who "provided opportunities in the music business to his friends," including certain of the defendants. (Indictment ¶ 3.) Nor is the fact that Wallace was murdered (id. ¶ 4) prejudicial. Nothing in the Indictment suggests that defendants had anything to do with that crime, and the Government is apparently prepared to stipulate that they did not. That Wallace was a rap musician and fell victim to violence will not shock any jurors, and in light of the undisputed facts that the defendants are all involved in the rap music business and that the case will revolve around a violent incident outside a rap radio station, the allegations regarding Wallace do not alter in any way the nature of the case being presented.

  Second, Butler seeks to strike language in the indictment describing the injury suffered by the shooting victim, and his intent in allegedly possessing and firing a gun on the date in question. (Butler Br. 4-5.) The full story of the events surrounding the shootout is manifestly relevant to the charge that Butler, allegedly a convicted felon, possessed a firearm on that date: If the Government can prove that he shot and wounded someone, such evidence will establish his possession of the gun.*fn1 Finally, Butler seeks to strike references to his alleged aliases. (Butler Br. 6-7.) Aliases relevant to the case and not prejudicial in themselves may be set forth in the indictment and proved at trial. United States v. Dioguardi, 428 F.2d 1033, 1040 (2d Cir. 1970) (distinguishing non-prejudicial nickname from a "true" alias, which might provoke suspicion); United States v. Esposito, 423 F. Supp. 908, 911 (S.D.N.Y. 1976) (Weinfeld, J.). Here, one of the aliases listed in the indictment is the name allegedly used on the passport that is the subject of the passport fraud counts in the passport fraud charges; others are less "aliases" than variant spellings of Butler's name or nicknames by which he is commonly known and will be referred to in the course of the evidence; and others are names that he used in connection with past arrests for crimes that the Government suggests may be relevant evidence under Fed.R. Evid. 404(b).*fn2 Moreover, none of the aliases is inflammatory or prejudicial in any way. Cf. United States v. Persico, 621 F. Supp. 842, 860-61 (S.D.N.Y. 1985) (denying motions to strike aliases "Frankie the Beast" and "Carmine the Snake").

  Accordingly, Butler's motion to strike alleged surplusage in the Indictment is denied. II. Jones: Motion to Dismiss

  Defendant Kimberly Jones moves to dismiss the conspiracy charges against her, arguing first, that the conspiracy count is precluded by a grant of immunity used to compel her testimony before the Grand Jury (Jones Br. 6-8); second, that the charges are based on insufficient evidence (id. 8); and third, that the perjury and false statement charges against her are multiplicitous (id. 8-13). Only the last of these arguments has merit.

  First, the immunity order compelling Jones's testimony specifically provided that her testimony could not be used against her "in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with this Order." (Gov't Br. Ex. A at 2 (emphasis added).) This language is authorized by, and drawn directly from, the statute authorizing such immunity grants, 18 U.S.C. § 6002. It is well established, and is in any event clear from the plain language of the statute, that the listing of perjury and false statement prosecutions as exceptions to the immunity provided "is not intended to be an exclusive enumeration." United States v. Tramunti, 500 F.2d 1334, 1345 (2d Cir. 1974). And if any other crime constitutes a "failure to comply with [the immunity] Order," a conspiracy to obstruct the investigation by committing perjury oneself and encouraging others to do so plainly qualifies. Courts confronted with the issue have unanimously so held. United States v. Duran, 41 F.3d 540, 545 (9th Cir. 1994); United States v. Gregory, 611 F. Supp. 1033, 1037 (S.D.N.Y. 1985) (Weinfeld, J.). "So long as the witness's violation of the bargain is in the nature of perjury, contempt, obstruction of justice or some similar crime that impedes the truthseeking function of the tribunal, the government has the power, under the constitutional accommodation between the privilege against self-incrimination and the power to compel testimony, to enforce the bargain and prosecute the violation." United States v. Pisani, 590 F.Supp. 1326, 1342 (S.D.N.Y. 1984).

  Second, it is hornbook law that a federal defendant may not challenge a facially-valid indictment (and Jones makes no argument that the indictment here suffers from any facial defect) on the ground that it is based on insufficient evidence. United States v. Williams, 504 U.S. 36, 54-55 (1992); United States v. Calandra, 414 U.S. 338, 345 (1974); Costello v. United States, 350 U.S. 359, 363 (1956).

  Third, Jones asserts two different claims of multiplicity, of differing degrees of merit. First, Jones argues that the three perjury counts create three charges out of a single crime. Second, she contends that the perjury counts duplicate three additional charges of making false statements. The former challenge is meritless, but the latter is well taken.

  "An indictment is multiplicitous when it charges a single offense as an offense multiple times, in separate counts, when, in law and fact, only one crime has been committed." United States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999). But that is not the case as to the three perjury counts here. The three perjury counts each pertain to perjury committed on distinct dates. It can hardly be said that a defendant who on three different occasions undertakes to lie to a grand jury has committed only one crime, which the Government artificially broke into separate charges, even if the testimony on each occasion relates to the same subject matter. United States v. Bin Laden, 91 F.Supp. 2d 600, 619-20 (S.D.N.Y. 2000) (perjury provided on different dates "not multiplicitous in the sense forbidden by the Double Jeopardy Clause" even where conceded that testimony charged in each count was "substantially the same"). See also United States v. Guariglia, 757 F. Supp. 259, 264 (S.D.N.Y. 1991) (false answers to "questions addressed to the same issue, but posed . . . a week apart [may] . . . involve separate decisions by [defendant] to perjure himself' and therefore perjury counts charging them as separate crimes not multiplicitous).*fn3

  Indeed, the Government and the Grand Jury could properly have broken up the perjury charged in the three counts into even more separate charges had they so desired. While several of the particular specifications in the three perjury counts concern closely similar questions and answers, the statements specified as false are each distinct. In order to prevent an evasive witness from giving misleading but potentially literally true answers, careful interrogators necessarily ask questions that vary slightly, to make sure that no stone is left unturned. Because testimony alleged to be perjurious must be proved to be literally false, United States v. Bronston, 409 U.S. 352, 360-61 (1973), it is entirely proper for the Government to frame indictments that cite separate specifications of perjury for answers that vary in subtle but meaningful ways. Jones's somewhat careless brief cites overlapping questions and answers without noting that only one of the allegedly identical answers is actually charged as a perjury specification, and without even attempting to analyze the significant variations in the answers that are actually alleged to constitute perjury. (Compare Jones Br. 9-11 with Gov't Br. 30-33.)*fn4 Jones's argument that the perjury and false statement claims are duplicative of each other is more substantial. Counts Three-A, Three-B and Four of the Indictment charge Jones with perjury before the Grand Jury in violation of 18 U.S.C. § 1623, on June 19, July 3, and August 21, 2003, respectively.*fn5 Counts Seven through Nine, in turn, charge her with making false statements in a matter within the jurisdiction of the judicial branch of the federal government, in violation of 18 U.S.C. § 1001, on ...


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