United States District Court, E.D. New York
Decided July 1, 2013.
[Copyrighted Material Omitted]
For Wendell Walters, also known as The Tall Guy, also known as The Big Man, Defendant: Howard R Leader, Howard R. Leader, New York, NY.
For Stevenson Dunn, Defendant: Robert Anthony Evans, Jr., Law Office of RA Evans Jr., New York, NY.
For Lee Hymowitz, Defendant: Maurice H. Sercarz, LEAD ATTORNEY, Diane Ferrone, Sercarz & Riopelle, New York, NY; Gerald J. DiChiara, Law Offices of Gerald J. DiChiara, New York, NY.
For Michael Freeman, Defendant: Gerald J. DiChiara, Law Offices of Gerald J. DiChiara, New York, NY.
For Sergio Benitez, Defendant: Bruce Loren Wenger, Wenger & Arlin Esqs LLP, New York, NY.
For Robert Morales, Defendant: Michael Beys, LEAD ATTORNEY, Jason Hunt Berland, Beys, Stein & Mobargha LLP, New York, NY.
For Angel Villalona, Defendant: Michael K. Schneider, LEAD ATTORNEY, Federal Defenders of New York, Inc., Brooklyn, NY.
For USA, Plaintiff: Anthony M. Capozzolo, Cristina Marie Posa, LEAD ATTORNEY, United States Attorneys Office, Eastern District of New York.
OPINION & ORDER
NINA GERSHON, United States District Judge.
Defendants, Lee Hymowitz and Michael Freeman (" Hymowitz" and " Freeman," or, collectively, " Defendants" ), are charged by Superseding Indictment (the " Indictment" ) with conspiracy to commit wire fraud (Count Two), wire fraud (Count Three), conspiracy to commit money laundering (Count Seven), and money laundering (Count Eight). By this motion, Hymowitz and Freeman seek to dismiss the Indictment, or, in the alternative, to compel the government to produce a bill of particulars.
Defendants also move to sever their trial from that of co-defendant, Stevenson Dunn (" Dunn" ), or to redact Dunn's post-arrest statement, in order to preserve their confrontation rights, in accordance with Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and its progeny.
For the reasons set forth below, the Defendants' motion is denied in part and granted in part.
According to the Indictment, between 2005 and 2011, the New York City Department of Housing Preservation and Development (" HPD" ) administered various programs intended to develop affordable housing. (Ind. ¶ ¶ 2, 13.) In connection with these programs, HPD selected real estate developers, or " sponsors," who would then, with HPD, select general contractors to manage the construction and other work the projects required. ( Id . ¶ 3.) One such developer selected by HPD was co-defendant Dunn, whose corporate entities included SML Development LLC, SML Bed Stuy Development, LLC, and Hancock Street SML LLC (collectively, the " SML Entities" ). ( Id . ¶ 7.) Hymowitz and Freeman were partners, with Dunn, in the SML Entities, and, separately, in the law firm of Hymowitz & Freeman. ( Id .)
The Indictment contains allegations that Dunn, Hymowitz and Freeman solicited and received kickback payments from certain general contractors (" John Doe #1" and " John Doe #2" ) in exchange for awarding them work in connection with various HPD projects. Dunn, Hymowitz and Freeman allegedly included the amounts of the kickback payments in requisitions submitted to HPD, " thereby passing on the costs of their own corrupt activity to HPD." (Ind. ¶ 13.) Hymowitz and Freeman also allegedly provided to John Doe #1 a " sham retainer agreement" for legal services and, to John Doe #1 and John Doe #2, " false and inflated invoices" for certain services and supplies. ( Id .) It is further alleged that Dunn threatened John Doe #2 and his family with violence when John Doe #2 failed to make some of the kickback payments, and that Dunn made a cash bribe payment to John Doe #3. ( Id .)
While the Indictment contains charges of Racketeering Act violations, money laundering, wire fraud, extortion, bribery and various conspiracies against Dunn, the only charges asserted as to Hymowitz and Freeman are conspiracy to commit wire fraud, wire fraud, money laundering, and conspiracy to commit money laundering. ( See id . ¶ ¶ 27-33.)
The government has indicated that it expects to introduce at the trial of Dunn, Hymowitz and Freeman, Dunn's post-arrest statement, in which he implicates himself in the kickback scheme underlying the wire fraud and money laundering charges. Although the government has proposed certain redactions to the statement, Defendants argue that they are insufficient to protect their constitutional rights under Bruton, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.
A. Standard of
Review on a Motion to ...