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United States v. Larson

December 29, 2008

UNITED STATES OF AMERICA,
v.
CARL A. LARSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Hugh B. Scott United States Magistrate Judge

Hon. Hugh B. Scott

Order

Before the Court are defendants' omnibus motions*fn1 . These motions either seek various forms of discovery and other relief or join in co-defendants' motions seeking such relief. These motions were argued on December 2, 2008 (text entry, Dec. 2, 2008), and deemed submitted on that day. The Court considers in this Order the various motions*fn2 for the Government to file individual Bills of Particulars. In a separate Order, the Court will consider the various forms of discovery sought by defendants.

BACKGROUND

This is a racketeering conspiracy, Hobbs Act conspiracy, racketeering forfeiture, and aiding and abetting prosecution involving International Union of Operating Engineers, Local 17, AFL-CIO ("Local No. 17") (Docket No. 4, Superseding Indict.). In the Superseding Indictment (hereinafter the "Indictment"), the Government alleges that Local No. 17 functioned as a criminal enterprise from about January 1997 to December 2007 (id. ¶ 1). Defendants are officers and members of Local No. 17 (id. ¶¶ 2-8). The Indictment alleges that defendants (as a group) were willing to engage in acts and threats of violence against persons, to sabotage and destroy property on construction sites within this District (id. ¶ 9). The alleged objective of the so-called "Local 17 Criminal Enterprise" was extortion by obtaining contracts from construction firms, taking non-union jobs (with their salaries and benefits), depriving contractors of their right to make business decisions free of outside pressure, and "property of construction contractors consisting of wages and employee benefit contributions paid or to be paid by said contractors for unwanted, unnecessary, and superfluous labor" (id. ¶ 10). The Indictment lists various means "among the means and methods by which the defendants and their associates agreed to conduct" the affairs of the criminal enterprise (id. ¶ 11).

The Indictment alleges that defendants conspired to conduct the affairs of the Local 17 Criminal Enterprise through a pattern of racketeering activity (id. ¶ 12), in violation of RICO, 18 U.S.C. § 1962(d). Defendants, "together and with others," conspired to commit at least two acts of racketeering alleging attempts of extortion from different construction contractors in Western New York (id. ¶ 13, Racketeering Acts 1-11), with attempted acts in violation of the Hobbs Act, 18 U.S.C. § 1951(a), or provisions of New York State Penal Law. Different defendants allegedly conspired to commit various racketeering acts against different contractors. For example, Racketeering Act One alleges that defendant Larson attempted to extort jobs and associated wages and benefits from STS Construction of Western New York at several construction project locations, "to include, among others" Roswell Park Cancer Institute, the Rath Building, the Buffalo Psychiatric Center, and two other named sites (id., Racketeering Act 1). The other racketeering counts allege attempted extortion from other contractors*fn3 or conspiracy by Lennon and Edbauer to attempt extortion in violation of the Hobbs Act and New York Penal Law (id., Racketeering Act 11). Count Two alleges a Hobbs Act conspiracy. One of the overt acts alleges an unnamed business agent of Local No. 17 approached an unnamed representative of STS Construction and then harassed that representative when STS refused to sign a collective bargaining agreement with Local No. 17 for construction at Roswell Park (id. at 32-33, Overt Act 1). Count Three alleges attempted Hobbs Act extortion of STS (id. at 53); Count Four of Zoladz Construction Company (id. at 54); Count Five of Waste Management and Marcy Excavation Company (id. at 56); Count Six of Ontario Specialty Contracting (id. at 57); Count Seven of Ecology & Environment and Earth Tech (id. at 58); and Count Eight of Wadsworth Golf Construction Company for properties in Orchard Park and Cheektowaga, New York (id. at 59). The Indictment also alleges a RICO forfeiture claim (id. at 60-61).

Defense Motions

Defendants separately moved for individual Bills of Particulars or joined in the pending co-defendants' motions*fn4 for that relief. They seek identification of unindicted persons that allegedly acted with them in advancing the conspiracy. They also want to know the "among others" noted in several points in the Indictment, defendants ask whether the affected sites listed in the Indictment are exclusive and, if not, what are the others sites that were affected. In general, defendants seek to know the particulars of their own alleged conduct. Most defendants also seek to learn the acts of racketeering they allegedly committed for the RICO counts.

Defendants want to know the "property" that is subject to the Hobbs Act extortion. The Indictment alleges three types of property--the right to make business decisions free from outside pressure; wages and benefits paid for unwanted, unnecessary and superfluous labor; and employees' jobs and associated wages and benefits--and, as noted by Kirsch (Docket No. 73, Def. Atty. Affirm. ¶¶ 18, 23-24), defendants need specificity as to which type of property they are accused of trying to extort. Also defendants want particulars on what type of property alleged were benefits paid for "unwanted, unnecessary and superfluous labor" and what that phrase means and what work the Government contends is included under that phrase. Peterson, for example, seeks particularization as to when, where, and who performed this so-called "superfluous labor" (Docket No. 70, Peterson Demand at 1, 2), arguing later that the Indictment does not describe this labor (Docket No. 86, Peterson Reply at 2). He argues that some target companies named in the Indictment hired Local No. 17 members, raising the factual issue of which hires were "superfluous" (id. at 3).

Defendants also want to learn the interstate commerce connection to these alleged criminal activities for the Hobbs Act counts. Two defendants, Bove (Docket No. 75, Sched. 1, Bill of Particulars ¶¶ 23, 24) and Franz (Docket No. 84, Def. Atty. Aff. ¶¶ 27, 28), seek the precise property claimed to be subject to forfeiture from them and the manner in which it is alleged to have been the proceeds, or derived from the proceeds, of the charged RICO activity. Government's Omnibus Response Government responds that the Indictment was sufficiently detailed and defendants were each presented voluminous discovery and that Bills of Particulars are not warranted, that the Government is not required to outline its theories or marshal its evidence in Bills of Particulars (Docket No. 85, Gov't Response at 2-20, 2-3, 5-8, Exs. B-D (discovery letters from Government to defense counsel); see Docket No. 63, Gov't Response to Freedenberg Motion for Bill of Particulars). In response to Freedenberg's demand for a Bill, the Government contends that he "utterly failed to adequately specify the basis for his needs for these particulars" (Docket No. 63, Gov't Response to Freedenberg at 1). The Government contends that the other defendants fail to provide sufficient justification for particularization (Docket No. 85, Gov't Response at 5).

DISCUSSION

I. Bills of Particulars

Each defendant seeks an individual Bill of Particulars or joins in motions of co-defendants for such Bills. For example, Freedenberg seeks identification of the others known to the Grand Jury listed with the indicted conspirators in ¶ 1 of the Superseding Indictment (Docket No. 61, Freedenberg Demand for Bill of Particulars ¶ 1). He also asked for particulars as to how he was involved in alleged wrong doing regarding Wadsworth Golf Construction (id. ¶¶ 11-13).

Defendants have sought particularization as to which activities affected interstate commerce (e.g., Docket No. 65, Dewald Atty. Aff. ΒΆ 41, Nos. 2, 6) or want to know precisely what "unwanted, unnecessary and superfluous labor" ...


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