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Moore v. Guesno

May 10, 2007


The opinion of the court was delivered by: David G. Larimer United States District Judge



The instant case is the fourth lawsuit plaintiffs David Moore ("David") and Janette Moore ("Janette") ("plaintiffs") have filed seeking legal relief and/or monetary damages based on David's 2001 arrest, plea and felony conviction for Coercion in the First Degree.*fn1 Plaintiffs continue to attack the legal basis and foundation for David's guilty plea and conviction, despite the fact that they have been upheld by the state courts.

Having been unsuccessful in their challenges so far, plaintiffs now turn to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, hoping to achieve better results. In this latest effort, plaintiffs assert that David's conviction and the resulting injury to his business were the direct result of a RICO conspiracy and the racketeering activities of the thirteen named defendants.*fn2

Before the Court are defendants' motions to dismiss the complaint.*fn3 (Dkts. ##5, 6, 16). For the numerous reasons discussed below, defendants' motions are granted.


For purposes of analyzing defendants' motions to dismiss, the Court assumes to be true the factual allegations in plaintiffs' complaint, as supplemented by plaintiffs' RICO case statement. See Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 378 (2d Cir.2001).

Plaintiffs claim defendants violated two related provisions of the RICO statute,18 U.S.C. §§ 1962(c) and (d). Section 1962(c) prohibits an enterprise from conducting its affairs through a "pattern" of "racketeering activity." Section 1962(d) prohibits persons from conspiring to engage in activities proscribed by, inter alia, § 1962(c). See GICC Capital Corp. v. Tech. Fin. Group, Inc., 67 F.3d 463, 465 (2d Cir.1995).

To state a claim under § 1962(c), plaintiffs must allege that each defendant, "through the commission of two or more acts constituting a pattern of racketeering activity, directly or indirectly participated in an enterprise, the activities of which affected interstate or foreign commerce." DeFalco v. Bernas, 244 F.3d 286, 306 (2d Cir.2001). To state claim for violating § 1962(d), plaintiffs must allege facts "implying any agreement involving each of the defendants to commit at least two predicate acts." Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d Cir.1990).

Plaintiffs allege that the municipal governments of the Village of Perry and Wyoming County constituted a RICO "enterprise," and that the thirteen individual defendants formed an "association in fact" that operated within the enterprise. Plaintiffs claim defendants conducted the affairs of the enterprise by engaging in a "pattern" of "racketeering activities" over a period of approximately eleven years. Plaintiff assert that the common purpose of the association in fact was to use defendants' official positions to threaten, harass, extort, coerce, and intimidate victims of, and witnesses to, the criminal activities of the associations' members.

Plaintiffs claim that defendants engaged in witness intimidation in violation of 18 U.S.C. §§ 1512-1513, as well as "coercion a/k/a extortion" in violation of N.Y. Penal Law § 135.65, and committed the following predicate acts:

* extortion chargeable under state law, by defendant Ruth Milks, who misappropriated between $125,000 and $250,000 through a "parking ticket extortion racket" and who allegedly engaged in other extortion schemes while employed as a Village Court Clerk and a Village Justice between 1992 and 2003 (Complaint at ¶¶ 28-36);

* intimidation of a witness named Mary Ripley in 1993, by defendant Donald Parker, acting as an agent of defendant Gerald Stout, to deter Ms. Ripley from attending the trial of an individual named David Kellaway (Complaint at ¶¶ 37-42);

* intimidation of a witness named Jamie Wise in 2001, by defendant James Case, in order to deter Ms. Wise from pursuing criminal charges against Mr. Case's son (Complaint at ¶¶ 43-48); and

* intimidation of a witness named Bruce Calkins in about April 2001, by defendants Vito Consiglio and Robert Guesno, in order to deter Mr. Calkins from mounting a political challenge to defendants Dennis Vergason and David Davis (Complaint at ¶¶ 49-60). Then, according to plaintiffs, David became the target of defendants' racketeering activities.

Plaintiffs allege that in April 2001, defendant Chief of Police Guesno and defendant Vito Consiglio ("Vito"), Janette's brother, conspired to knowingly bring false criminal charges against David. Plaintiffs assert that Guesno and Vito set up David in a "sting" operation in order to protect Vito and Janette's father, defendant Santo Consiglio ("Santo"), from facing charges for sexually abusing Janette. Plaintiffs allege that the Wyoming County defendants knew or should have known that the charges against David were false and supported and endorsed the prosecution anyway.

Plaintiffs admit that David pleaded guilty on the record in open court to Coercion in the First Degree. However, they allege that David did so only under duress. Plaintiffs contend that the Wyoming County District Attorney's office was threatening to take Janette's child from her, and that David ...

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