United States District Court, W.D. New York
DECISION AND ORDER
Elizabeth A. Wolford District Judge.
before the Court is the motion (Dkt. 385) of defendant Thomas
Scanlon ("Scanlon") to dismiss Counts 28, 29, and
30 of the Second Superseding Indictment returned on March 16,
2016 (Dkt. 33), alleging various crimes in connection with
the operation of the Kingsmen Motorcycle Club
("KMC"). Scanlon also seeks a bill of particulars
with respect to Counts 27 and 28.(Dkt. 385). Because the
Second Superseding Indictment adequately alleges the
obstruction of justice and perjury charges that are the
subject of Counts 28, 29 and 30, Scanlon's motion to
dismiss is denied. With respect to his requested
particularization of Counts 27 and 28, the Court reserves
decision and requests supplemental briefing in accordance
with the schedule set forth below.
and 11 remaining co-defendants are charged with various crimes
in the 46-count Second Superseding Indictment
("Indictment"), including a violation of the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§§ 1961 et seq. ("RICO"), drug
trafficking offenses, and firearms offenses. (Dkt. 33). As
relevant to this Decision and Order, the Indictment includes
two counts against Scanlon charging Obstruction of Justice in
violation of 18 U.S.C. § 1503 (Counts 27 and 28), and
two counts against Scanlon charging perjury in connection
with alleged false statements before the grand jury in
violation of 18 U.S.C. § 1623(c) (Counts 29 and 30).
Scanlon filed the instant motion on December 7, 2016 (Dkt.
385), the Government filed a response on January 10, 2017
(Dkt. 437), and Scanlon filed a reply on February 24, 2017,
(Dkt. 509). Oral argument was held before the undersigned on
May 9, 2017, at which time the Court reserved decision. (Dkt.
Motion to Dismiss
moves to dismiss Counts 28, 29, and 30 of the Indictment.
(Dkt. 385 at 14-21). For the reasons set forth below, the
Court denies Scanlon's motion.
Rule of Criminal Procedure 12(b) states that "[a] party
may raise by pretrial motion any defense, objection, or
request that the court can determine without a trial on the
merits." Fed. R. Crim. P. 12(b)(1). "The general
issue in a criminal trial is, of course, whether the
defendant is guilty of the offense charged." United
States v. Doe, 63 F.3d 121, 125 (2d Cir. 1995). A
pre-trial motion to dismiss an indictment under Rule 12 must
satisfy a "high standard." United States v.
Lazore, 90 F.Supp.2d 202, 203 (N.D.N.Y. 2000). "In
deciding a motion to dismiss an indictment for failure to
state a criminal offense, a court must assume the truth of
the allegations in the indictment and determine whether the
indictment is valid on its face." United States v.
Larson, No. 07-CR-304S, 2011 WL 6029985, at *1 (W.D.N.Y.
Dec. 5, 2011) (citing United States v. Bicoastal
Corp., 819 F.Supp. 156, 158 (N.D.N.Y. 1993)). This Court
may not "look beyond the face of the indictment and draw
inferences as to the proof that would be introduced by the
government at trial." Id. (quoting United
States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998))
Rule of Criminal Procedure 7(c) requires that an indictment
"must be a plain, concise, and definite written
statement of the essential facts constituting the offense
charged. . . ." Fed. R. Crim. P. 7(c)(1). An indictment
is "sufficient if it, first, contains the elements of
the offense charged and fairly informs the defendant of the
charge against which he must defend, and, second, enables him
to plead an acquittal or conviction in bar of future
prosecutions for the same offense." Alfonso,
143 F.3d at 776; see also United States v.
Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992) ("An
indictment is sufficient when it charges a crime with
sufficient precision to inform the defendant of the charges
he must meet and with enough detail that he may plead double
jeopardy in a future prosecution based on the same set of
events."). The 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." Alfonso, 143 F.3d at 776.
argues that Count 28 must be dismissed "[t]o the extent
that this Count relies on false statements allegedly made to
an FBI agent, as distinct from any statements made to the
grand jury. . . ." (Dkt. 385 at 19-21). According to
Scanlon, the "nexus" requirement-that is, the
requirement that the alleged unlawful act have a
"relationship in time, causation, or logic" to the
interfered-with judicial proceeding-must be alleged in the
indictment and is lacking here because, at least to some
extent, the count alleges that Scanlon impeded only an FBI
investigation. (Id.). The Government responds that
all of Scanlon's "statements, to either the FBI or
to the Grand Jury, were made while the defendant was on
actual notice of such judicial proceedings by virtue of the
fact that he was served a Grand Jury subpoena, and then
testified before the Grand Jury pursuant to such
subpoena." (Dkt. 437 at 12-13).
28 charges Scanlon with a violation of 18 U.S.C. § 1503
Between on or about July 15, 2015, and on or about September
16, 2015, in the Western District of New York, . . . THOMAS
SCANLON ... did corruptly influence, obstruct and impede, and
endeavor to influence, obstruct and impede the due
administration of justice in investigations being
conducted bv a Grand Jury and the Federal Bureau of
Investigation in the Western District of New York, by
testifying falsely and evasively regarding (i) his knowledge
of the Kingsmen Motorcycle Club; (ii) his relationship with
David Pirk; (iii) the amount of communication he had and
maintained with David Pirk; (iv) his telephone contact with
David Pirk on September 6, 2014; (v) his meeting with David
Pirk on September 6, 2014, in Delevan, New York; (vi) the
role of the Kingsmen Nomads; (vii) his knowledge of the
shutdown of the Springville Chapter Kingsmen clubhouse on
June 7, 2013; (viii) the assault of Victim B, a person known
to the Grand Jury and robbery at the Springville Chapter
Kingsmen clubhouse on June 7, 2013; (ix) the purpose and
substance of his meeting with the Outlaws in Olean, New York,
in the summer of 2014; and (x) his role in the Kingsmen
33 at 49 (emphasis added)). Section 1503 contains three
(1) that there is a pending judicial or grand jury proceeding
constituting the administration of justice, (2) that the
defendant knew or had notice of the proceeding, and (3) that
the defendant acted with the wrongful intent or improper
purpose to influence the judicial or grand jury proceeding,
whether or not the defendant is successful in doing so-that
is, that the defendant corruptly intended to impede the
administration of that judicial proceeding.
United States v. Quattrone, 441 F.3d 153, 170 (2d
Cir. 2006) (quotation omitted).
Supreme Court has "expressly emboss[ed] a nexus
limitation on the statute." Id. (citing
United States v. Aguilar, 515 U.S. 593, 599-600
(1995)). "The nexus limitation is best understood as an
articulation of the proof of wrongful intent that will
satisfy the mens rea requirement of
'corruptly' obstructing or endeavoring to
obstruct." Id. Thus, the Government must prove
"a connection between the defendant's intentional
acts and the likelihood of potentially affecting the
administration of justice" in order to sustain its
burden on the "corruptly" prong. Id.
this rule in Aguilar, the Supreme Court reversed the
conviction of a federal district judge for obstruction of
justice under § 1503, arising out of false statements
made by the judge to FBI agents during the course of a grand
jury investigation. The case went to a jury trial.
Aguilar, 515 U.S. at 595. The Supreme Court found no
proof that the agents acted as an arm of the grand jury, and
the agent had "not been subpoenaed or otherwise directed
to appear before the grand jury." Id. at 601.
[W]hat use will be made of false testimony given to an
investigating agent who has not been subpoenaed or otherwise
directed to appear before the grand jury is far more
speculative. We think it cannot be said to have the
'natural and probable effect' of interfering with the
due administration of justice.
Id. Thus, Aguilar holds that if a defendant
does not have knowledge that his actions will likely affect a
pending judicial or grand jury proceeding, he lacks the
requisite intent to obstruct. See id.
Aguilar, the Second Circuit in United States v.
Schwarz, 283 F.3d 76 (2d Cir. 2002), reversed a
conviction for conspiracy to violate § 1503 because the
Government had not shown that the defendant knew that the
false statements he made to federal investigators would be
conveyed to the grand jury. Id. at 109. The Second
He may have hoped that they would be provided to the grand
jury, and surely there was that possibility; but there was
insufficient evidence to "enable a rational trier of
fact to conclude that [Bruder] knew" that this would
happen or that he entertained any expectations on that score
that were based on such knowledge. At best, the government
proved that Bruder, knowing of the existence of a federal
grand jury investigation, lied to federal investigators
regarding issues pertinent to the grand jury's
Id. Like Aguilar, Schwarz was an appeal
following a jury trial. Id. at 79.
United States v. Genao, 343 F.3d 578 (2d Cir. 2003),
the Second Circuit held that the indictment did not set forth
a sufficient nexus between the defendant's false
statements and a federal judicial proceeding where
"[t]he indictment itself makes no mention of any grand
jury or other judicial proceeding." Id. at 585.
The Second Circuit additionally reasoned that "even if
[it was] able to consider conduct not specifically alleged in
the indictment, the Government's argument would
fail" because, given that the defendant "agreed to
waive his speedy trial rights so that the Government could
postpone filing an indictment until after his innocence
proffers, " the defendant was "therefore aware at
the time he made the relevant false statements that the
Government had not yet convened a grand jury to investigate
his arrest for money laundering." Id. In that
case, the defendant was convicted following a guilty plea.
Id. at 579.
least one district court within this Circuit has held that
the nexus requirement is not an element of § 1503 that
must be alleged in the indictment, but rather must only be
proved at trial. United States v. Triumph Capital Grp.,
Inc., 260 F.Supp.2d 470, 475 (D. Conn. 2003). The court
reasoned that the defendant's argument to the contrary
"conflates pleading with proof:
Neither Aguilar nor Schwarz involved the
sufficiency of the indictment- the issue in both cases was
the sufficiency of the evidence. In both cases the
possibility or hope that the defendant's conduct would
influence the grand jury was not sufficient to prove that the
defendant knew or entertained any expectation that his
conduct would influence it. But neither case held that the
nexus requirement ... is an element of § 1503 that must
be alleged in the indictment. To the contrary, as the
government contends, the nexus requirement must only be
proved at trial.
Id. Therefore, because the indictment sufficiently
alleged the elements of § 1503, the indictment was
sufficient. Id. "Whether the government can
prove that [the defendant] knew his actions were likely to
affect the grand jury will depend on the evidence at
trial." Id. The Triumph Capital court
therefore denied the motion to dismiss the § 1503 count
as legally insufficient. Id.
district court within this Circuit is in agreement with the
Triumph Capital court, having concluded that
"nexus" need not be alleged in the indictment.
United States v. Tairod Nathan Webster Pugh, No.
15-CR-116(NGG), 2015 WL 9450598, at *16 (E.D.N.Y. Dec. 21,
2015). In that case, the court distinguished
Aguilar, which came on direct appeal of a jury
verdict and was decided on the basis of a full evidentiary
record, from a pretrial motion to dismiss, on which "the
court must assume the prosecution's allegations will be
proven at trial and draw all reasonable inferences from those
Court agrees with the Triumph Capital and
Pugh courts that "nexus" need not be
alleged in the indictment. Nexus is an issue of proof, rather
than an issue of the sufficiency of the indictment. It may
reasonably be inferred that Scanlon knew that his statements
would be conveyed to the grand jury based on the
Indictment's allegation that Scanlon "did corruptly
influence, obstruct and impede ... the due administration of
justice in investigations being conducted by a Grand
Jury and the Federal Bureau of Investigation ... by
testifying falsely and evasively" about various matters
involving the KMC. (Dkt. 33 at 49 (emphasis added)).
Genao does not compel a different outcome; in that
case, the indictment made no mention at all of a grand jury
proceeding. 343 F.3d at 585. By contrast, the grand jury
proceeding is specifically mentioned in the Indictment in
this case. (Dkt. 33 at 49). Accordingly, Count 28 is legally
sufficient, and Scanlon's motion to dismiss is denied.
Counts 29 and 30
also moves to dismiss Counts 29 and 30 of the Indictment.
Both of those counts charge Scanlon with making false
statements before the grand jury, in violation of 18 U.S.C.
§ 1623(c). (Dkt. 33 at 50-55).
The essential elements of making a false declaration before a
grand jury are: (1) the defendant, while under oath, made one
or more false declarations or answers as to matters about
which he testified before a grand jury; (2) the
defendant's testimony related to some material fact; and
(3) the defendant knew the testimony was false.
United States v. Catalano, No. 92 CR. 1189 (LLS),
1994 WL 637748, at *3 (S.D.N.Y. Nov. 10, 1994).
29 alleges that on July 15, 2015, Scanlon testified before
the grand jury concerning a "material matter"-the
issue of whether Scanlon had seen the KMC National President,
defendant David Pirk ("Pirk"), at any time during
the week after the murders of Maue and Szymanski on September
6, 2014-as follows:
Q: Okay. Was there on September 6th again, those shootings
were in the very early morning hours of September 6, 2014.