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United States v. Caban

United States District Court, S.D. New York

October 30, 2017

EDWIN CABAN, Defendant.



         Defendant Edwin Caban moves to dismiss the indictment, or alternatively, for a bill of particulars. Defendant's motions are denied.

         I. DISCUSSION

         A. Motion to Dismiss the Indictment

         Defendant's motion to dismiss the indictment is denied. The indictment is neither legally insufficient nor unconstitutionally vague.

         Under Federal Rule of Criminal Procedure 7(c)(1), an indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged . . . .” “[A]n 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.” United States v. Bout, 731 F.3d 233, 241-42 (2d Cir. 2013) (quoting United States v. Yannotti, 541 F.3d 112, 127 (2d Cir. 2008)). The Second Circuit has “consistently upheld indictments that do little more than track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.” Id. at 240 (emphasis in original) (quoting United States v. Pirro, 212 F.3d 86, 100 (2d Cir. 2000)). “An indictment need not be perfect, and common sense and reason are more important than technicalities.” United States v. Stringer, 730 F.3d 120, 124 (2d Cir. 2013) (internal quotation marks omitted).

         The indictment here tracks the language of the statutes charged -- 18 U.S.C. §§ 242 and 1001 -- and states the time and place of the alleged crime. With respect to Count One, the indictment states that, on or about June 22, 2016, Defendant, while acting under color of law, willfully punched a man multiple times in the chest and ribs, depriving him of his rights to be free of unreasonable force by one making a seizure under color of law, and to be free from the use of unreasonable force, resulting in bodily injury. The indictment further states that Defendant was, at the time, working as a security guard for a contractor of the Federal Protective Service (“FPS”), and that the incident occurred at a branch of the Social Security Administration in Manhattan, New York. These facts are sufficient to inform Defendant of the crime charged and enable him to prepare adequately his defense. See, e.g., United States v. Walsh, 194 F.3d 37, 44-45 (2d Cir. 1999) (finding sufficient an indictment charging a defendant under § 242 where it named the victim of the assault, specified the manner in which the assault occurred and the time period in which the assault was alleged to have occurred).

         Respecting Counts Two through Four, the indictment states that Defendant, in the Southern District of New York, made false material statements on three separate occasions --June 22, 2016, July 26, 2016, and December 6, 2016 -- in a “Security Incident Report, ” an affidavit and an interview with federal agents, respectively. The indictment further alleges that Defendant made such material false statements “knowingly and willfully, ” and states for each count the specific facts that allegedly were false, including why they were allegedly false. As with Count One, these allegations are legally sufficient.

         Defendant's assertion that the indictment fails to state an offense under § 242 because it does not allege specific facts to show that Defendant acted “willfully” is meritless. The indictment states that Defendant acted “willfully” and specifically alleges that Defendant punched a man in the chest and ribs as the man “stood still with his hands raised in a gesture of surrender.” This pleading is adequate under the law. See, e.g., United States v. Murgio, 209 F.Supp.3d 698, 716 (S.D.N.Y. Sept. 19, 2016) (observing that “reciting a mens rea element is generally sufficient to identify for the defendant the ‘core of criminality' the Government intends to prove at trial”) (internal quotation marks omitted); United States v. Kozeny, 493 F.Supp.2d 693, 712 (S.D.N.Y. June 21, 2007) (holding that “the term ‘willfully' need not be specifically included in the substantive counts in order to adequately charge the criminal violation” and that “Defendants cannot seriously contend that their defense will be prejudiced . . . merely because the Indictment did not use the magic word ‘willfully' in certain paragraphs”) (relying on United States v. Hernandez, 980 F.2d 868, 871 (2d Cir. 1992)).

         Even if these facts were inadequate to apprise Defendant of the crime charged -- and they are not -- Defendant has not shown that he has suffered or will suffer any prejudice. See Stringer, 730 F.3d at 124 (noting that where “the charges in an indictment have stated the elements of the offense and provided even minimal protection against double jeopardy, th[e Second Circuit] has ‘repeatedly refused, in the absence of any showing of prejudice, to dismiss . . . charges for lack of specificity'”) (quoting Walsh, 194 F.3d at 45); see also Bout, 731 F.3d at 241 (affirming denial of a motion to dismiss an indictment where the indictment met a minimum sufficiency threshold and defendant failed to show any arguable prejudice).

         Defendant's argument that Counts Two through Four are deficient because they fail to allege materiality fails as well. “Under § 1001, a statement is material if it has a natural tendency to influence, or be capable of influencing, the decision of the decisionmaking body to which it was addressed, or if it is capable of distracting government investigators' attention away from a critical matter.” United States v. Coplan, 703 F.3d 46, 79 (2d Cir. 2012) (internal quotation marks omitted). Defendant argues that his allegedly false statements “were not capable of influencing the investigation [into his alleged crimes] in any material way” because the underlying incident was “recorded on videotape . . . in front of a room full of witnesses.” Defendant cites no authority for the proposition that making a false statement to government investigators is immaterial where the government possesses evidence that undermines or contradicts that false statement. The cases Defendant cites are inapposite, as they address the sufficiency of the evidence after trial -- not the sufficiency of an indictment that alleges materiality. Courts in the Second Circuit in similar circumstances have denied motions to dismiss an indictment because the materiality or immateriality of a defendant's statements for purposes of § 1001 is a mixed question of law and fact that should be resolved by a jury. See, e.g., United States v. Khalil, No. 13 Cr. 386, 2014 WL 1599943, at *2 (E.D.N.Y. Apr. 21, 2014) (relying on United States v. Gaudin, 515 U.S. 506, 512 (1995) and collecting cases).

         Defendant also argues that Counts Two through Four are multiplicitous because they “all involve statements that Mr. Caban made following and regarding the incident in question.” “An indictment is multiplicitous when a single offense is alleged in more than one count.” United States v. Jones, 482 F.3d 60, 72 (2d Cir. 2006); accord United States v. Stitsky, 536 F. App'x 98, 103 (2d Cir. Oct. 17, 2013) (summary order). “A claim of multiplicity cannot succeed, however, unless the charged offenses are the same in fact and in law.” Jones, 482 F.3d at 72; accord Stitsky, 536 F. App'x at 103. Defendant's argument fails. Counts Two through Four allege three separate instances of making false material statements, each made on a separate occasion through a different medium. To obtain a conviction as to each Count, the Government will need to prove distinct facts, including that the false statement was made, on the date and in the manner alleged. See, e.g., United States v. Medina, No. 13 Cr. 272, 2014 WL 3057917, at *5 (S.D.N.Y. July 7, 2014) (holding that two charges in an indictment were not multiplicitous where they were based on multiple uses of a firearm in connection with the same drug trafficking conspiracy); United States v. Fruchter, 104 F.Supp.2d 289, 300 (S.D.N.Y. July 11, 2000) (denying defendants' motion to dismiss eleven counts of making false material statements under § 1001 because to obtain a conviction on each count, “the Government would have to prove that a separate and distinct false statement was made . . . on each of the dates alleged in the Indictment, ” and noting that “multiple violations of [the] same statute may be charged in multiple, separate, counts”).[1]

         Defendant's assertion that Count Two fails to allege a false statement made with respect to a matter “within the jurisdiction of a department or agency of the United States” is unpersuasive. The relevant statute, 18 U.S.C. § 1001, in substance, prohibits false statements made “within the jurisdiction” of the federal government. “[T]here is no requirement that a false statement be made to the federal agency; it must only have been made in any matter within the jurisdiction of any department or agency of the United States.” United States v. Davis, 8 F.3d 923, 929 (2d Cir. 1993) (emphasis in original). “A department or agency has jurisdiction . . . when it has the power to exercise authority in a particular situation.” United States v. Rodgers, 466 U.S. 475, 479-80 (1984) (defining “jurisdiction” for purposes of § 1001 and stating that “jurisdiction” in § 1001 should be broadly construed); accord United States v. Maniago, 987 F.Supp. 234, 235 (S.D.N.Y. July 16, 1997). “The term ‘jurisdiction' should not be given a narrow or technical meaning . . . .” Rodgers, 466 U.S. at 480.

         Count Two charges Defendant with preparing and submitting a false Security Incident Report “in a matter within the jurisdiction of the executive branch of the [U.S.] Government . . ., to wit” the FPS. The indictment further alleges that the incident in question occurred while Defendant was working as a security guard for a contractor of the FPS at a branch of the Social Security Administration. The FPS has jurisdiction to provide security for government buildings. Defendant provided the alleged false incident report regarding actions that he took while acting on the FPS's behalf. The Government notes that the FPS also investigates ...

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