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United States v. Levy

March 20, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
KEVIN PETE LEVY, DEFENDANT.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

Defendant Kevin Pete Levy has been indicted for assault with a dangerous weapon in order to gain entrance to, maintain and increase his position in an enterprise engaged in racketeering activity, for using and carrying a firearm in relation to a crime of violence, and for being an unlawful alien in possession of ammunition. The defendant moves to dismiss Counts One and Two of the Superseding Indictment, 04-559 (S-1) (JFB) (the "Indictment"), as facially defective. The parties also have made several evidentiary in limine motions: (1) the defendant moves to preclude the introduction of certain telephone recordings of conversations that the defendant had with other individuals while in jail; (2) the government moves to admit evidence relating to the defendant's arrest in Georgia in 2003; and (3) the government moves to admit evidence regarding the interactions between a cooperating witness and the defendant in Jamaica in the mid-1990s.

For the reasons that follow, the defendant's motion to dismiss Counts One and Two of the Indictment is denied. The government's motions in limine are granted in part and denied in part, and the defendant's motion in limine is granted in part and denied in part.

I. BACKGROUND

The defendant is charged in three counts in the Indictment. The charges arise from the alleged shooting of an individual in mid-August 2002 in connection with the activities of an alleged criminal enterprise involved in, among other things, automobile fraud. The defendant is charged in Count One with committing an assault with a dangerous weapon for the purpose of gaining entrance to, maintaining, and increasing his position in this criminal enterprise, in violation of Title 18, United States Code, Sections 1959(a)(3) and 2. Count Two charges the defendant with using, carrying, and discharging a firearm in connection with the assault charged in Count One, in violation of Title 18, United States Code, Sections 924(c)(1)(A)(iii) and 2. The defendant is charged in Count Three with being an unlawful alien in possession of ammunition at the time of the alleged assault, in violation of Title 18, United States Code, Section 922(g)(5)(A).

The Indictment alleges that the enterprise engaged in racketeering activity to generate money for its members and associates through the commission of crimes, including mail fraud, health care fraud, assault and threats of assault. (Indictment ¶¶ 1-4.) The Indictment also alleges that the leader of the enterprise was co-defendant Christopher Hemmings and that the defendant was a member of the enterprise.*fn1 (Indictment ¶¶ 2-3.) The Indictment further alleges that the members and associates used the following means and methods: (1) "[s]taging and fabricating automobile accidents (`staged accidents'), causing automobile accidents by intentionally crashing one automobile into an automobile driven by an unsuspecting third party (`caused accidents') and responding to the scenes of legitimate automobile accidents (`legitimate accidents')"; (2) "[s]eeking unnecessary treatment at medical clinics and directing individuals involved in the staged accidents, caused accidents and legitimate accidents to seek and receive unnecessary treatment at medical clinics"; and (3) "[c]ommitting, attempting to commit, and threatening to commit acts of violence." (Indictment ¶ 5.)

The government has further proffered the following evidence that it intends to prove with respect to the defendant's involvement in the enterprise and the alleged assault charged in the Indictment:

Beginning with his entrance into the crew in approximately late 2001, the defendant functioned primarily as an "enforcer." He accompanied "runners" to accident scenes where, as the runners spoke with victims, he guarded against competition by rival crew members. The defendant was performing that role when he shot his victim, Lester Matheson, on the night of August 14, 2002. Upon their arrival at an accident scene that evening, the defendant and Hemmings observed Matheson, an accident fraud competitor, already soliciting medical clinic referrals. This created tension, which was exacerbated by Hemmings' belief that Matheson had participated in robbing him approximately one year earlier. When Hemmings and the defendant encountered Matheson, the defendant volunteered to kill

Matheson and Hemmings approved. The defendant then shot Matheson several times at close range, including the chest, stopping only once his gun jammed. The defendant "laid low" for a period of weeks before resuming his activity with the crew.

(Gov't Letter to the Court, dated March 9, 2006, at 2.) The government also has proffered that it intends to show that, in addition to the defendant, the Hemmings crew consisted of several other individuals, including: Leroy Francis (a/k/a "Tunkey"), Anthony Richards (a/k/a "Gugga"), Tyrone Peters (a/k/a "Showerman"), and Damian Blackwood (a/k/a "Ratty"). (Id.)

II. DISCUSSION

The Court first addresses defendant's motion to dismiss the indictment, and then addresses the in limine motions in turn.

A. Defendant's Motion to Dismiss Counts

One and Two of the Indictment Defendant Levy has moved pursuant to Rule 12(3)(B) and Rule 7 of the Federal Rules of Criminal Procedure to dismiss Counts One (Assault with a Dangerous Weapon) and Two (Using and Carrying a Firearm) of the Indictment.*fn2 Specifically, the defendant argues that Count One fails to allege two predicate acts of racketeering pursuant to 18 U.S.C. § 1961 and, therefore, seeks to have the Court dismiss that count, as well as Count Two (which defendant argues is wholly dependent on Count One). (See Def.'s Mem. at 3-7.) For the reasons set forth below, the motion is denied.

Rule (7)(c)(1) of the Federal Rules of Criminal Procedure states that "[t]he indictment . . . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." It is wellsettled that "an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 116 (1974); accord United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.), cert. denied, 504 U.S. 926 (1992).

Thus, the Second Circuit has "consistently upheld indictments that `do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.'" United States v. Pirro, 212 F.3d 86, 92 (2d Cir. 2000) (quoting United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999)); accord United States v. Covino, 837 F.2d 65, 69 (2d Cir. 1988).

This standard applies to challenges to RICO and Section 1959 indictments. See United States v. Bagaric, 706 F.2d 42, 61 (2d Cir. 1983) abrogated on other grounds by Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249 (1994); see also United States v. Booth, No. 99 Cr. 378 (LBS), 1999 WL 1192317, at *5 (S.D.N.Y. Dec. 14, 1999) ("It is sufficient . . . for a § 1959 indictment to track the statutory language and to identify the approximate time and place of the alleged offense."); United States v. Giampa, No. S 92 Cr. 437 (PKL), 1992 WL 322028, at *4 (S.D.N.Y. Oct. 29, 1992) (same).

Count One is more than sufficient to satisfy this Second Circuit standard. Count One charges that the defendant committed an assault with a dangerous weapon in order to gain entrance to, maintain and increase his position in an enterprise engaged in racketeering activity, in violation of Title 18, United States Code, Section 1959. The Indictment also alleges, among other things, that the enterprise engaged in health care fraud, mail fraud, assault, and threats of assault, and that the defendant and codefendant Hemmings were part of that enterprise. (Indictment ¶¶ 2-4.) In addition, the Indictment sets forth a description of the means and methods of the enterprise, including staging and fabricating automobile accidents and seeking unnecessary medical treatment in connection with staged, caused, and legitimate accidents. (Id. ¶ 5.) The Indictment further provides the date of the charged shooting and the government has produced the name of the alleged victim in discovery. Therefore, the Court finds that Count One is legally sufficient because it tracks the statutory language, as well as provides the defendant with sufficient detail to inform him of the charge against which he must defend and to enable him to plead double jeopardy in a future prosecution based on the same alleged assault. The Court concludes, for the same reasons, that Count Two - which charges the use, carry and discharge of a firearm during and in relation to the assault charged in Count One - is legally sufficient.

Defendant's central argument, that the Indictment is defective because Count One does not allege two predicate acts, is unavailing. The two predicate requirement arises from the definition of a "pattern of racketeering" which is a term that is contained in Section 1962, not Section 1959. Although the government must prove the existence of an "enterprise engaged in racketeering activity" under Section 1959, it need not prove that there was a "pattern" of racketeering activity as required in a RICO charge under Section 1962. See Booth, 1999 WL 1192317, at *5 (collecting cases which recognize that "Section 1959 does not specify a particular number of racketeering acts that must be committed for there to be a finding that an enterprise was engaged in racketeering activity"); see also United States v. Bracy, 67 F.3d 1421, 1430 (9th Cir. 1995) ("neither the plain language of ยง 1959 nor the elements . . . require[] the ...


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