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United States v. Wolf

United States District Court, Second Circuit

May 30, 2013

UNITED STATES OF AMERICA
v.
LEONARD WOLF, Defendant.

OPINION & ORDER

JOHN F. KEENAN, District Judge.

Defendant Leonard Wolf has filed two motions in this criminal matter. First, he moves to dismiss the indictment against him, or in the alternative, for a bill of particulars. Second, he moves to suppress recordings of his telephone conversations, or alternatively for an evidentiary hearing. The Government opposes both motions and does not consent to a hearing. For the reasons that follow, Defendant's motions are denied.

I. Background

Wolf is charged with wire fraud in violation of 18 U.S.C. ยง 1343. The sealed complaint was filed on October 10, 2012, and the indictment was filed on December 19, 2012. The Government contends that Wolf defrauded one victim into wiring him $10 million with the promise that the money would be invested and, after 18 months, given back with a spectacular return on investment. The Government further asserts that Wolf did not invest the money as promised, but spent much of it on personal items for himself. (Compl. at 2-4.)

The Government's case includes a series of recorded telephone calls between Wolf and the victim of the fraud. Some of these recordings were made by an FBI agent, who obtained the witness's consent to record the conversation. Other recordings were made by the victim without the agent's direct involvement. (Gov. Opp. at 2.)

II. Discussion

A. Defendant's Motion to Dismiss

Wolf first argues that the indictment must be dismissed for failure to comply with Federal Rule of Criminal Procedure 7(c)(1), because it does not contain facts about the alleged fraud and because it fails to allege a prima facie case of wire fraud. Wolf also points out that the Department of Justice's "United States Attorneys' Manual" states that an indictment for wire fraud should contain a "reasonably detailed description" of the scheme. (Mot. at 10.) Wolf argues that in the alternative, the Court should order the Government to file a bill of particulars that provides details about the fraud and the telephone recordings. The Government responds that the indictment is sufficient and that there is enough detail in the complaint and discovery to obviate the need for dismissal or a bill of particulars.

"To satisfy the pleading requirements of [Rule] 7(c)(1), an indictment need 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. LaSpina , 299 F.3d 165, 177 (2d Cir. 2002) (citation and internal quotation marks omitted); see also United States v. Alfonso , 143 F.3d 772, 776 (2d Cir. 1998). A court should therefore not dismiss an indictment for lack of specificity absent a showing of prejudice to the defendant. United States v. Walsh , 194 F.3d 37, 45 (2d Cir. 1999) (quoting United States v. McClean , 528 F.2d 1250, 1257 (2d Cir. 1976)).

Nevertheless, if the charges in the indictment are "so general that they do not advise the defendant of the specific acts of which he is accused, " the court may order the Government to supply a bill of particulars. United States v. Torres , 901 F.2d 205, 234 (2d Cir. 1990); see Fed. R. Crim. P. 7(f). A defendant's motion for a bill of particulars should be granted only if necessary to allow the defendant to "to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Panza , 750 F.2d 1141, 1148 (2d Cir. 1984). The motion should not be granted to "force the Government to particularize all of its evidence, " United States v. Cephas , 937 F.2d 816, 823 (2d Cir. 1991), nor if the information sought has already been provided, see United States v. Fea, No. 10 Cr. 708, 2011 WL 2119708, at *1 (S.D.N.Y. May 24, 2011) (citing United States v. Barnes , 158 F.3d 662, 665-66 (2d Cir. 1998)). "The important question is whether the information sought is necessary, not whether it is helpful." United States v. Facciolo , 753 F.Supp. 449, 451 (S.D.N.Y. 1990) (citations omitted).

The caselaw demonstrates that Defendant's motion lacks merit. It is true that the indictment does not contain much in the way of factual detail; rather, it mostly tracks the language of the relevant statutes. See United States v. Salazar , 485 F.2d 1272, 1277 (2d Cir. 1973) (noting that the Second Circuit has "consistently sustained indictments which track the language of a statute and, in addition, do little more than state time and place in approximate terms"). However, the alleged fraud is spelled out in far greater detail in the criminal complaint, to which the defense has access. See Walsh , 194 F.3d at 47 ("[A] bill of particulars is not necessary where the government has made sufficient disclosures concerning its evidence and witnesses by other means."); United States v. Miller, No. 12 Cr. 368, 2012 WL 4791992, at *1 & n.1 (S.D.N.Y. Oct. 9, 2012) (denying motion to dismiss where the indictment satisfies the pleading requirements and the criminal complaint contains additional factual allegations).

Wolf's initial motion papers do not even mention the complaint. In his reply memorandum, he asserts that a complaint cannot save an indictment that is facially deficient. (Reply at 5.) Setting aside the fact that the caselaw cited by Wolf does not support his assertion, the indictment in this case is simply not facially deficient.

Wolf also asserts in his reply that even if the Court considers the complaint, the Government has nevertheless failed to allege facts evincing a scheme to defraud. (Reply at 6.) The reply then sets forth a series of factual questions that, Wolf argues, are necessarily answered before a scheme to defraud can be alleged in this case. These questions, according to Wolf, are:

What was the nature of the $50 million investment allegedly described to the "victim" in the "summer of 2008?" What false claims did the defendant make to the "victim" in the "summer of 2008" to compel the "victim" to pay the $10 million? What material misrepresentations did defendant make to the "victim" in the "summer of 2008" to compel the "victim" to pay the $10 million? When was the "victim" supposed to have received what was allegedly promised in ...

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