The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge
Defendant Larry Bronson ("Defendant" or "Bronson") is seeking an Order (1) dismissing all four counts of the Superseding Indictment, or (2) in the alternative, directing the Government to provide Defendant with a bill of particulars regarding Counts One, Three and Four of the Superseding Indictment and directing the Government to provide any Giglio and Jencks materials upon which it intends to rely at least ninety days in advance of trial and notice of any Rule 404(b) materials at least thirty days in advance of trial. (Defendant's Notice of Pretrial Motions at 1.)
More specifically, Defendant argues that (1) Count One (racketeering conspiracy) should be dismissed because it is unconstitutionally vague and venue is improper, (2) Count Two (contempt of court for aiding and abetting an individual on supervised release violate the terms of that release) should be dismissed for failure to charge a cognizable offense, (3) Count Three (conspiracy to commit money laundering by conspiring with others to launder the proceeds of narcotics trafficking) should be dismissed for lack of proper venue, and (4) Count Four (contempt of court for aiding and abetting an individual on pretrial release violate the conditions of that release) should be dismissed because the Government lacks the authority to pursue this charge. The United States of America ("United States" or "Government"), in reply, argues that the court should not dismiss these charges and that Defendant is not entitled to a bill of particulars or early disclosure of discovery, Giglio or Jencks materials.
For the reasons set forth below, Defendant's pretrial motions are granted in part and denied in part. Specifically, his motions to dismiss Counts One and Three in the Superseding Indictment are DENIED, and his motions to dismiss Counts Two and Four in the Superseding Indictment are GRANTED. Defendant's alternative motion for a bill of particulars and for early disclosure of Giglio, Jencks, and 404(b) materials is DENIED.
Defendant was initially charged on September 28, 2005 in a two-count Indictment with conspiring to participate in the affairs of a racketeering enterprise and contempt of court. (Indictment ¶¶ 14, 16; Defendant Larry Bronson's Brief in Support of Pretrial Motions ("Def. Br.") at 1.) On April 20, 2006, the Grand Jury returned a Superseding Indictment adding one count of conspiracy to commit money laundering and a second count of contempt of court. (Id.)
The first count alleges that, during a six-year period, Bronson conspired with unnamed others to participate in the affairs of La Cosa Nostra ("LCN") through a pattern of racketeering activity, including acts of obstruction of justice, witness tampering, retaliation against a witness and bribery. (Superseding Indictment ¶¶ 13, 14.) The second count charges Bronson with contempt of court for having aided and abetted an "individual on supervised release" to violate the conditions of that release by meeting with a convicted felon. (Id. ¶ 15.) The third count charges him with conspiracy to commit money laundering for having conspired with unnamed others to launder the proceeds of narcotics trafficking. (Id. ¶ 16.) The fourth and final count of the Superseding Indictment charges Bronson with contempt of court for having aided and abetted an individual on supervised release in the Eastern District of New York to violate the conditions of pretrial release by misrepresenting the individual's whereabouts to officers of the United States Pretrial Services. (Id. ¶ 17.)
II. Defendant's Requested Relief
1. Count One (Racketeering Conspiracy)
A. Unconstitutional Vagueness
Defendant asks the court to dismiss Count One of the Superseding Indictment, which charges Bronson with conspiring to participate in the affairs of a racketeering enterprise, as unconstitutionally vague. Defendant argues that, "[o]ther than providing notice that Mr. Bronson is being prosecuted for his role as an attorney, that the allegations relate in some way to organized crime, and that the racketeering activity can be generically described as obstruction of justice, the indictment does not contain any specifics to place Mr. Bronson on notice of what it is he is actually being accused of having done, leaving him unable to defend himself." (Def. Br. at 1.) Defendant further contends that this count "does not allege any facts to support a finding of proper venue in the Eastern District of New York." (Id.)
Specifically, Defendant argues that Count One fails to set forth sufficient facts to satisfy the Fifth or Sixth Amendments. (Id. at 3.) Defendant cites a number of cases including United States v. Carrillo, 229 F.3d 177, 183 (2d Cir. 2000), for the proposition that "an indictment must 'be framed to apprise the defendant[,] with reasonable certainty, of the nature of the accusation against him' and 'accompanied with such a statement of the facts and circumstances as will inform the accused of the accusation against him.'" (Id.) Defendant points out that the Superseding Indictment contains only two paragraphs of allegations particular to this charge and that "those paragraphs are completely devoid of any factual specificity. (Id.) Defendant's other objection to this count is that Paragraph 11, entitled "Role of the Defendant," alleges that Bronson engaged in activities that are not properly explained and that are "so remarkably vague . . . that it is impossible for Mr. Bronson to ascertain what conduct on his part -- over the six-year period alleged in Count One -- is being charged." (Id.)
An Indictment must (1) contain the essential elements of the offense charged so as to inform the defendant of the nature and cause of the accusation, as required by the Sixth Amendment, see Carrillo, 229 F.3d at 183, (2) contain enough detail to enable a defendant to "plead double jeopardy in a future prosecution based on the same set of events," United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992), and (3) "contain some amount of factual particularity to ensure that the prosecution will not fill in elements of its case with facts other than those considered by the grand jury," in violation of the Fifth Amendment, United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999).
The Second Circuit has made the Government's pleading obligations quite clear in RICO conspiracy cases. See Wong Tai v. United States, 273 U.S. 77, 80 (1927); United States v. Cohen, 518 F.2d 727, 733 (2d Cir. 1975) ("The Government need not, when charging conspiracy, set out with precision each and every act committed by the conspirators in the furtherance of the conspiracy").) See also United States v. Gotti, 2004 WL 32858 (S.D.N.Y. Jan. 6, 2004) ("[T]he allegations for a RICO predicate act need not be more than generic references to the proscribed activity"); United States v. Martinez, 2007 WL 1302720, at *4 (E.D. Wis. May 3, 2007) ("[T]he defendant is charged with a RICO conspiracy, not a substantive RICO count. A RICO conspiracy does not require an overt act or specific act to affect the object of the conspiracy"). In United States v. Glecier, 923 F.2d 496, 501 (7th Cir. 1991), the court dealt with a charge of participation in a racketeering conspiracy and found that the above requirements were met by an indictment since "neither overt acts nor specific predicate acts that the defendant agreed personally to commit need be alleged or proved" and "these notice and double jeopardy factors do not require the recitation of specific case names, dates, times, and places of alleged bribes." Id. at 500.
In this case, the "means and methods" section of Count One alleges that Bronson and "members and associates of [LCN] participated in the conduct of the affairs of the enterprise by," inter alia, (1) obstructing justice and tampering with witnesses in United States v. Steven E. Kaplan, (2) "bribing and attempting to bribe witnesses in United States v. Kaplan so they would testify favorably, both to the grand jury and at trial," (3) "facilitating potential retaliation against an individual by revealing his suspected cooperation to members of the enterprise," and (4) using Bronson's connection to the enterprise to make implied threats of physical violence against various individuals, including extortion targets." (Id. at 4 (citing Superseding Indictment ¶ 10(a)-(d)).) Defendant argues that "[e]ach of these allegations lack any particularity with regard to such basic but critical facts as (1) who did the alleged acts of obstructing, tampering, bribing, or retaliation, (2) who the individuals were that were allegedly obstructed, tampered with, bribed, or retaliated against, (3) where the alleged conduct took place, (4) when the alleged conduct took place, and (5) . . . what criminal investigations were involved." (Id.)
The racketeering conspiracy allegations here, as in Glecier, meet constitutional pleading requirements because the Superseding Indictment identifies a proper enterprise, names Bronson as someone who was "employed by and associated with" that enterprise, and "expressly alleges" that Bronson knowingly and intentionally conspired to violate 18 U.S.C. § 1962(c). (Govt. Response at 9.) Furthermore, the Superseding Indictment specifies the time period during which the conspiracy operated, lists the specific types of predicate crimes that were allegedly committed (witness tampering, obstruction of justice, retaliation against a witness or informant, obstruction of a criminal investigation, bribery, and extortion), and discusses in detail the means and methods of the conspiracy. (Id. at 10.) Thus, the information contained therein adequately informs Bronson of the nature of the charge so he can prepare a defense. Finally, the Government argues that it has "already produced substantial discovery" which "serve[s] to apprise Bronson of the nature of the charges, allow him to prepare a defense, and alert him to any double jeopardy issues." (Govt. Response at 13.)
Given the above, I find Defendant's request conflates two issues, namely, the legal sufficiency of the Superseding Indictment and the remedy of knowledge of the details of the offense. Though the Superseding Indictment is a bare-boned one, I cannot find that it runs afoul of the pleading requirements for a RICO conspiracy charge. In oral argument on August 3, 2007, the Government maintained that it has and will continue to provide Defendant with appropriate discovery and I will rely on these assurances, which have been given to me by officers of the court, at this stage in the litigation.
Defendant also argues that Count One should be dismissed on the basis that venue is improper in the Eastern District of New York because the Superseding Indictment fails to lay out specific acts that took place in this district. (Def. Br. at 12.)
In cases that charge a continuing offense, such as a RICO conspiracy, "the criminal acts in question" must "bear 'substantial contacts' with" the venue in which the charges are brought. United States v. Saavedra, 223 F.3d 85, 93 (2d Cir. 2000). The factors for the court to consider are "(1) the site of the crime, (2) its elements and nature, (3) the place where the effect of the criminal conduct occurs, and (4) the suitability of the venue chosen for accurate factfinding." Id. at 92.
Defendant argues that there are only a few facts alleged in the Superseding Indictment that identify a venue at all, and that venue is not in this district: (1) obstructing justice and tampering with witnesses in United States v. Steven E. Kaplan, et al. in the Northern District of Georgia, and (2) bribing and attempting to bribe witnesses in that same case. (Def. Br. at 13-14.) Defendant argues that Count One does not otherwise allege any facts to support a finding of venue in the Eastern District of New York. (See Def. Br. at 14 (citing United States v. Peterson, 357 F. Supp. 2d 748, 751-52 (S.D.N.Y. 2005) (The Government has the burden of "showing that the indictment alleges facts sufficient to support venue").)
The Superseding Indictment alleges facts sufficient to support venue because it alleges that the criminal activity occurred "within the Eastern District of New York and elsewhere." (Superseding Indictment ¶¶ 13, 16). The law of this Circuit is clear that the Government's burden is satisfied with regard to pleading venue by alleging that criminal conduct occurred within the venue, even if phrased broadly and without a specific address or other information. See United States v. Bellomo, 263 F. Supp. 2d 561, 579 (E.D.N.Y. 2003) (Glasser, J.) ("[T]he indictment, alleging on its face that the offenses occurred 'within the Eastern District of New York and elsewhere,' suffices to sustain it against this pretrial attack on venue"); United States v. Szur, 97-CR-108, 1998 WL 132942, at *9 (S.D.N.Y. Mar. 20, 1998) ("[O]n its face, the Indictment alleges that the offense occurred 'in the Southern District of New York and elsewhere,' which is sufficient to resist a motion to dismiss").) Here, the Government has alleged that Bronson's conduct occurred in the Eastern District of New York and has specifically informed the court that it will prove venue at trial. As a matter of pleading, that is sufficient. Should the Government fail to prove venue at trial, the court will, of course, entertain a motion to dismiss at the conclusion of the Government's case.
2. Count Two (Contempt of Court)
Defendant further asks the court to dismiss Count Two of the Superseding Indictment, which charges Bronson with contempt of court for having aided and abetted an "individual on supervised release" to violate the conditions of that supervised release by meeting with a convicted felon. (Def. Br. at 1.) Defendant argues that, "[a]s a matter of law, . . . contempt of court simply cannot be charged for a violation of supervised release. As a ...