The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are the parties' motions for reconsideration (Docket Nos. 98, 99*fn1 (Government motions), 100*fn2 (defendants' joint motion)) of the Orders (Docket Nos. 90, 91) regarding defendants' omnibus motions*fn3 (in particular, defendants' motions for Bills of Particulars and discovery sought by them). The original motions were argued on December 2, 2008 (text entry, Dec. 2, 2008), and deemed submitted on that day. The Court then rendered one Order on the various defense motions*fn4 for the Government to file individual Bills of Particulars (Docket No. 90) and considered in another Order the various forms of discovery sought by defendants (Docket No. 91). Familiarity with these Orders is presumed.
All defendants now jointly seek reconsideration of the scope of particularization and discovery allowed in the earlier Orders (Docket No. 100), while the Government's motion (Docket No. 99) generally objects to any particularization being offered. Following issuance of these Orders, defendants and the Government sought to extend the time for filing objections or to stay its effect while their respective motions for reconsideration were considered (Docket Nos. 92-94, 96-97). Judge Skretny granted the stay of objections pending this reconsideration (Docket No. 101). This Court then scheduled briefing (with responses due by February 19, 2009), and argument on March 4, 2009 (text minute entry, Feb. 4, 2009).
This is a racketeering conspiracy, Hobbs Act conspiracy, racketeering forfeiture, and aiding and abetting prosecution involving the 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), with defendants, named officers and members of Local No. 17 (id. ¶¶ 2-8). 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).
Pertinent to these motions for reconsideration, defendants first separately moved for individual Bills of Particulars or joined in the pending defense motions for that relief. There they sought identification of unindicted persons that allegedly acted with them in advancing the conspiracy. They also wanted to learn the identities of the unnamed "among others" noted in several points in the Indictment. In general, defendants sought to learn the particulars of their own alleged conduct.
Defendants also wanted to know what was the "property" that was subject of the attempted Hobbs Act extortion. The Indictment alleges four types of property--the right to make business decisions free from outside pressure; wages and benefits paid pursuant to labor agreements with Local No. 17; 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 needed specificity as to which type of property they are accused of trying to extort. Also defendants wanted particulars on what type of property alleged were benefits paid for "unwanted, unnecessary and superfluous labor" and what that phrase meant and what work the Government contended was included under that phrase. Peterson, for example, argues that some target companies named in the Indictment hired Local No. 17 members, raising the factual issue of which hires were "superfluous" and which were legitimate (Docket No. 86, Peterson Reply, at 3). Defendants also wanted to learn the interstate commerce connection to these alleged criminal activities for the Hobbs Act counts. Government's Omnibus Response Government initially responded that the Indictment was sufficiently detailed and defendants were each presented voluminous discovery and that Bills of Particulars were 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).
The Court granted in part the particularization sought, that defendants were held to be entitled to particularization as to the "property" subject to the alleged attempted extortion, to identify the "others" involved in either the conspiracy or its overt acts (Docket No. 90, Order at 7-9, 13). The Court, however, denied in part particularization as to defendants' specific conduct and participation, the Government's theory of involvement in interstate commerce, and defendant Freedenberg's request for information about the formation of the conspiracy (id. at 9-11).
A separate Order on discovery dealt generally with Rule 16 discovery by the Government (implicitly including production of third party documents) (Docket No. 91, Order at 3-5). The Court ordered production of Brady materials up to thirty days prior to trial, consistent with local practice (id. at 9-10).
Defendant Dewald had moved for notice of evidence subject to a potential suppression motion (see id. at 13), but (as noted by defendants, Docket No. 100, Motion at 16) that motion was not fully addressed by the Court. The Government responds that this mischaracterizes its action and the decision of the Court; that the Government generally gave notice that it intended to use the evidence and that the Court so noted this in its Order (Docket No. 102, Gov't Response at 25, citing Docket No. 91, Order at 13). Upon this notification, the Government asserts that the duty then shifted to defendant Dewald to object (Docket No. 102, Gov't Response at 25-26).
Government's Motion for Reconsideration
The Government argues in its motion that defendants have not established a rationale for particularization (Docket No. 99, Gov't Atty. Aff. ¶ 2). The "unwanted, unnecessary and superfluous labor" alleged in the Indictment arose from Supreme Court precedent, see United States v. Enmons, 410 U.S. 396, 400 (1973); United States v. Green, 350 U.S. 415, 417 (1956) (charging there that defendants extorted property from an employer for "imposed, unwanted, superfluous and fictitious services of laborers commonly known as swampers"), hence the Government concludes that the phrase does not need further particularization (id. ¶¶ 10-13) and, as used in the Indictment, was sufficiently definite (Docket No. 105, Gov't Reply at 7). The Government claims that defendants are not entitled to any more detail because it would reveal the Government's theories and that disclosure within the Bill of Particulars would restrict the Government's case to the particulars furnished, see United States v. Johnson, 21 F. Supp. 2d 329, 339 (S.D.N.Y. 1998) (Docket No. 99, Gov't Atty. Aff. ¶ 14). The Indictment merely charged attempted extortion or conspiracy to commit extortion, not actual substantive extortion. No property is alleged to have been obtained; thence, the Government concludes that it should not particularize what property (here "no-show" jobs or which contractors were compelled to furnish what benefits to Local No. 17 members) was extorted where no such property was actually obtained. (Id. ¶¶ 16-17.)
Defendants' Joint Motion for Reconsideration
Defendants jointly contend that certain aspects of the Order authorizing particularization needed further definition. For example, it was not clear whether the Court intended only to have the Government particularize one aspect of the property alleged to have been extorted (that is, the "unwanted, unnecessary and superfluous labor" allegation) or all four categories of "property" allegedly extorted (for example, wages and benefits paid by contractors pursuant to labor agreements with Local No. 17, jobs of non-union laborers, or the right of contractors to make business decisions free of outside pressure) (Docket No. 100, Defs. Memo. at 2-3). Defendants also seek identifying facts about unnamed "others" alleged in the Indictment (such as descriptions, the person's role) (id. at 3). The Government responds to this point that it produced in discovery videotapes and Jencks Act materials that provide identification of the persons referred to in the Indictment intended to be the unnamed "others" (Docket No. 99, Gov't Atty. Aff. ¶ 2).
As for specific acts allegedly committed by any defendant, defendants contend that if the Government persists in its position that its response is contained in its discovery, then that discovery should be deemed to be the Government's Bill of Particulars and bind the Government to the extent of that discovery (Docket No. 100, Defs. Memo. at 4-8). Defendants seek notice of these acts to avoid surprise if the Government introduces evidence of actions not noted in the Indictment or produced in discovery (see id. at 8 n. 4; Docket No. 86, Peterson Reply at 3-4, discussing United States v. Davidoff, 852 F.2d 1151 (2d Cir. 1988)).
As for the element of affecting interstate commerce, defendants argue that the Government needs to state which theory of affecting interstate commerce was alleged by the Grand Jury so that the Government does not vary from that theory by arguing another theory at trial (Docket No. 100, Defs. Memo. at 8-10, citing Stirone v. United States, 361 U.S. 212, 216-17 (1960); United States v. Parker, No. 00CR53A (W.D.N.Y. 2002)). As the Second Circuit and one commentator noted, "while a bill of particulars 'is not intended, as such, as a means of learning the government's evidence and theories,' if necessary to give the defendant enough information about the charge to prepare his defense, 'it will be required even if the effect is disclosure of evidence or of theories,'" United States v. Barnes, 158 F.3d 662, 665 (2d Cir. 1998) (quoting Charles A. Wright, 1 Federal Practice and Procedure § 129 (1982)) (see id. at 10-11).
Defendants want their particular discovery requests addressed, although the Order generally mentioned Rule 16 discovery (id. at 12). Defendants point to one of their earlier moving papers (id., citing to Docket No. 89, Bove Reply Memo.; see Docket No. 89, Bove Reply Memo. at 10-16), seeking third party documents (Docket No, 89, Bove Reply Memo. at 10-11; Docket No. 100, Defs. Memo. at 12), notes of investigators (see Docket No. 89, Bove Reply Memo. at 11), timely discovery of favorable Brady materials (see id. at 12-16; Docket No. 100, Defs. Memo. at 12-16), and notice of Government's reliance upon hearsay evidence under Federal Rule of Evidence 807 (see Docket No. 89, Bove Reply Memo. at 16). They seek reconsideration of the timing for the Government's production of Jencks Act materials, seeking it produced thirty days before trial (as per this District's practice) (Docket No. 100, Defs. Memo. at 16).
The Government opposes, first, because Bills of Particulars cannot be used to help formulate defense motions to dismiss for insufficiency (Docket No. 102, Gov't Response at 4-5). It distinguishes Stirone because that case did not involve a Bill of Particulars and such a Bill (had there been one in that case) would not have changed the result (id. at 18). As for the discovery at issue in this reconsideration motion, the Government concludes that Rule 16 does not provide for the blanket disclosure initially sought by defendants (particularly by Bove) (id. at 19-20). The Government cannot produce third party documents (such as from other law enforcement agencies) absent existence of a joint investigation with those agencies or indication that these materials are in ...