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United States v. Pirk

United States District Court, W.D. New York

July 24, 2017

UNITED STATES OF AMERICA,
v.
DAVID PIRK, ANDRE JENKINS, a/k/a Little Bear, TIMOTHY ENIX a/k/a Blaze, FILIP CARUSO a/k/a Filly, EDGAR DEKAY, II a/k/a Ed a/k/a Special Ed, JASON WILLIAMS a/k/a Toop, THOMAS KOSZUTA a/k/a Kazoo, GREGORY WILLSON a/k/a Flip, EMMETT GREEN, ROBERT OSBORNE, JR., STANLEY OLEJNICZAK, JACK WOOD a/k/a Jake a/k/a Snake, RYAN MYRTLE, GLEN STACHARCZYCK a/k/a Turbo, SEAN MCINDOO a/k/a Professor, Defendants, THOMAS SCANLON a/k/a Tom, Defendant-Movant.

          DECISION AND ORDER

          Elizabeth A. Wolford District Judge.

         Presently 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.[1](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.

         BACKGROUND

         Scanlon and 11 remaining co-defendants[2] 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).

         After 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. 593).

         DISCUSSION

         I. Motion to Dismiss

         Scanlon 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.

         A. Legal Standard

         Federal 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)) (alterations omitted).

         Federal 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.

         B. Count 28

         Scanlon 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).

         Count 28 charges Scanlon with a violation of 18 U.S.C. § 1503 as follows:

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 Motorcycle Club.

         (Dkt. 33 at 49 (emphasis added)). Section 1503 contains three elements:

(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).

         The 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.

         Applying 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.

         Following 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 Circuit reasoned:

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 investigation.

Id. Like Aguilar, Schwarz was an appeal following a jury trial. Id. at 79.

         In 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.

         At 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.

         Another 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 allegations." Id.

         This 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.

         C. Counts 29 and 30

         Scanlon 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).

         1. Count 29

         Count 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. ...

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