Opinion
Criminal Action No. 04-295, Section: I/4.
June 3, 2005
ORDER AND REASONS
Before the Court is a motion, filed on behalf of defendant, Alan Green, to strike surplusage from the indictment pursuant to Rule 7(d) of the Federal Rules of Criminal Procedure. The United States opposes the motion. For the following reasons, the motion is DENIED.
Rec. Doc. No. 74.
Rec. Doc. No. 85.
BACKGROUND
This case involves the government's investigation into alleged corruption in the bail bonding business in the 24th Judicial District Court located in Jefferson Parish, Louisiana. On September 29, 2004, the grand jury returned an indictment charging defendant, Alan Green, with one count of conspiracy to operate a RICO enterprise in violation of 18 U.S.C. § 1962(d), one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371, and five counts of mail fraud in violation of 18 U.S.C. §§ 1341, 1346, and 2. With respect to the alleged RICO conspiracy, the government alleges that Alan Green used his position as an elected Louisiana district judge to enrich himself by extracting various bribes from individuals doing business in Green's court, including certain Bail Bonds Unlimited ("BBU") employees. The government alleges that in return for things of value, Green improperly made himself available to BBU employees and set, reduced, increased, and split bonds in criminal cases in order to benefit BBU's bail bonding business. With respect to the alleged conspiracy to commit mail fraud and the substantive mail fraud counts, the government alleges that Green and co-defendant, Norman Bowley, devised a scheme to defraud the citizens of Louisiana of Green's honest and faithful services as a Louisiana district judge by setting bonds in order to benefit BBU. In return for the setting of such bonds, it is alleged that Green received things of value and that he used the United States mail in furtherance of such scheme.The indictment contains numerous allegations describing the types and amounts of various bonds Green allegedly set, reduced, or split in furtherance of the scheme alleged in the indictment. The indictment does not state the names of the detainees for whom the bonds were set. However, in conjunction with a description of the amount of the bond and the structure of the particular bond allegedly set by Green, the indictment describes the charges for which a particular detainee was in custody. Defendant moves to strike all references to the charges against the detainees for whom Green set bonds because such allegations are claimed to be irrelevant to the charges against Green alleged in the indictment and because such allegations are an improper attempt on the part of the government to anger and influence the jury during the reading of the indictment at the beginning of the trial. Green also moves to strike that portion of paragraph 77 which contains a reference to Green allegedly setting a one million dollar commercial bond "for the brother of a well-known rap performer." Green argues that the reference to a rap performer is an irrelevant editorial geared toward a cultural or other predisposition potentially held by one or more jurors.
The paragraphs containing the challenged language appear in section "F" of count 1 of the indictment, which alleges numerous overt acts allegedly committed in the course of the RICO conspiracy. Those paragraphs, with emphasis supplied by the Court with respect to the challenged language, are as follows:
On or about April 6, 2001, at BBU's request, GREEN split a bond for a defendant charged with drug distribution and firearms offenses into a $100,000.00 commercial bond and $250,500.00 personal surety bond. Indict. at 6, ¶ 11;
On or about August 23, 2001, at BBU's request, GREEN split the bond for a defendant charged with drug offenses and automobile theft into a $100,000.00 commercial bond and $500,000.00 personal surety bond. Id., ¶ 16;
On or about September 4, 2001, a BBU employee spoke with GREEN's secretary about splitting a bond for a defendant charged with drug offenses. Id. at 7, ¶ 20;
On or about November 30, 2001, after the above-mentioned defendant was arrested again for separate drug offenses, GREEN split the bond for the second arrest into a $20,000.00 commercial bond and a $60,000.00 personal surety bond. Id., ¶ 22;
In a telephone conversation on or about September 14, 2001, a BBU employee told GREEN that a defendant who had been arrested on drug charges was able to post a $10,000.00 commercial bond. Id., ¶ 24;
After being released on the bond set by GREEN, the same defendant was arrested on September 29, 2001 for bond violations and again on December 8, 2001 for possession and distribution of crack cocaine. Id., ¶ 26;
In a telephone conversation on or about September 16, 2001, a BBU employee told GREEN that a defendant charged with aggravated battery and disturbing the peace "rates a 5 and can afford a $5,000.00 commercial bond." GREEN set the bond that BBU requested, and the defendant was released later that evening. Id. at 8, ¶ 28;
On or about September 28, 2001, at the request of BBU, GREEN set a $100,000.00 commercial bond and a $150,000.00 personal surety bond on a defendant charged with forcible rape and aggravated burglary. Id., ¶ 32;
On the same day, also at the request of BBU, GREEN set a $10,000.00 commercial bond and $40,000.00 personal surety bond for a defendant charged with burglary. Id., ¶ 33;
On or about October 15, 2001, GREEN set a $30,000.00 commercial bond and a $170,500.00 personal surety bond on a defendant at the Eastbank Detention Center charged with stalking and making obscene phone calls. Id., ¶ 36;
Later that day, at BBU's request, GREEN set a $125,000.00 commercial bond and $396,500.00 personal surety bond for a defendant charged with firearms and drug offenses. Id. at 9, ¶ 39;
The same day, at BBU's request, GREEN set a $10,000.00 commercial bond and $10,000.00 personal surety bond for a defendant charged with aggravated battery by shooting. Id., ¶ 40;
The same day, at the request of BBU, GREEN set a $20,000.00 commercial bond and $60,500.00 personal surety bond for a defendant charged with drug and firearms offenses. Id. at 10, ¶ 50;
On November 12, 2001 at the request of BBU, GREEN set a $10,000.00 commercial bond and a $40,000.00 personal surety bond for a defendant charged with burglary and arson. Id. at 11, ¶ 53;
On December 5, 2001, at the request of BBU, GREEN set a $20,000.00 commercial bond and an $80,000.00 personal surety bond on a defendant charged with attempted murder. Id., ¶ 56;
On December 6, 2001, at the request of BBU, GREEN set a $30,000.00 commercial bond and a $110,500.00 personal surety bond for a defendant charged with drug and weapons offenses. Id., ¶ 58;
Also on December 6, 2001, at the request of BBU, GREEN set a $10,000.00 commercial bond and $31,500.00 personal surety bond for a defendant charged with possession of stolen property and hit and run. Id., ¶ 59;
The same day, at the request of BBU, GREEN set a $5,000.00 commercial bond and $5,000.00 personal surety bond on a defendant charged with possession of a stolen vehicle. Id., ¶ 62;
On December 15, 2001, at the request of BBU, GREEN set a $100,000.00 commercial bond and a $100,000.00 personal surety bond on a defendant charged with first degree murder. Id. at 12, ¶ 64;
The same day, at the request of BBU, GREEN set a $40,000.00 commercial bond and $65,000.00 personal surety bond on a defendant charged with drug offenses. Id. at 13, ¶ 75;
On January 18, 2002, BOWLEY and GREEN discussed making a bond for the brother of a well-known rap performer charged with second degree murder. GREEN asked BOWLEY, "Can y'all make a bond?" BOWLEY responded, "We can make a million dollar bond if you could set it." GREEN responded "Alright. . . . Okey doke." Id. at 13-14, ¶ 77;
Later that day, GREEN set the bond BBU requested but rescinded it when he learned that a probation hold had been placed on the defendant related to attempted murder charges in another parish. Id. at 14, ¶ 78;
The same day, at the request of BBU, GREEN set a $30,000.00 commercial bond and $20,000.00 personal surety bond on a defendant charged with aggravated battery. Id., ¶ 80;
The same day, at the request of BBU, GREEN set a $15,000.00 commercial bond and $5,500.00 personal surety bond on a defendant charged with battery and a $15,000.00 commercial bond on a defendant charged with a drug offense. Id., ¶ 83;
On February 13, 2002, at the request of BBU, GREEN set a $4,000.00 commercial bond and a $6,000.00 personal surety bond on a defendant charged with a drug offense and trespassing. Id., ¶ 87;
On February 13, 2002, at the request of BBU, GREEN set a $5,000.00 commercial bond and a $10,000.00 personal surety bond on a defendant charged with battery. Id. at 15, ¶ 88;
On February 25, 2002, at the request of BBU, GREEN set a $6,000.00 commercial bond and $25,000.00 personal surety bond on a defendant charged with drug offenses. Id., ¶ 91;
On or about the same date, at the request of BBU, GREEN set a $10,000.00 commercial bond and $60,500.00 personal surety bond on defendant charged with a drug offense. Id., ¶ 92;
On February 26, 2002, at the request of BBU, GREEN set a $10,000.00 commercial bond and $21,500.00 personal surety bond on a defendant charged with drug and firearms offenses[.] Id., ¶ 93;
On February 26, 2002, at the request of BBU, GREEN set a $10,000.00 commercial bond and $10,000.00 personal surety bond on another defendant charged with attempted robbery and battery. Id., ¶ 94;
On February 26, 2002, at the request of BBU, GREEN set a $15,000.00 commercial bond and $10,000.00 personal surety bond on a third defendant charged with drug offenses. Id., ¶ 95;
On February 26, 2002, at the request of BBU, GREEN set a $15,000.00 commercial bond and $10,000.00 personal surety bond on a fourth defendant charged with a drug offense. Id., ¶ 96;
On March 18, 2002, at the request of BBU, GREEN set a $5,000.00 commercial bond and a $5,000.00 personal surety bond on a defendant who had been arrested for a bond surrender relating to drug offenses. Id. at 16, ¶ 97;
On or about the same date, at the request of BBU, GREEN set a $30,000.00 commercial bond and $60,500.00 personal surety bond on a defendant charged with drug offenses. Id., ¶ 100;
On March 23, 2002, at the request of BBU, GREEN set a $7,500.00 commercial bond on a defendant charged with possession of stolen property. Id., ¶ 103;
The same day, at the request of BBU, GREEN set a $10,000.00 commercial bond on a separate defendant charged with a drug offense. Id., ¶ 104;
On or about May 6, 2002, at the request of BBU, GREEN set a $15,000.00 commercial bond and $30,500.00 personal surety bond on a defendant charged with drug offenses. Id. at 17, ¶ 108;
On or about the same date, at the request of BBU, GREEN set a $20,000.00 commercial bond and a $35,500.00 personal surety bond on a defendant charged with drug offenses. Id., ¶ 109;
On or about June 4, 2002, at the request of BBU, GREEN set a $250,000.00 commercial bond and a $451,500.00 personal surety bond on a defendant charged with attempted armed robbery, battery of a police officer, sexual battery, and other offenses. Id., ¶ 112.
Id. at 13, ¶ 77.
The government responds by arguing that pursuant to the Louisiana Code of Criminal Procedure, article 334, Louisiana district judges are to consider, inter alia, the seriousness of the offense charged in determining the appropriate bond amount. The government contends that because Green is charged with accepting bribes in return for setting certain bond types and amounts, as opposed to performing his judicial duties pursuant to Louisiana law, the types of crimes charged against the detainees are highly relevant to the offenses for which Green was indicted and, therefore, such references do not constitute surplusage. With respect to the indictment's reference to Green setting a one million dollar bond for the brother of a rap artist, the government contends that the allegation is material to the crimes charged in that it supports the government's theory that Green, in return for things of value, would set bonds in amounts commensurate with the detainee's apparent ability to pay at BBU's behest, thereby maximizing BBU's profits.
LAW AND ANALYSIS
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). Rule 7(d) of the Federal Rules of Criminal Procedure provides that "[u]pon the defendant's motion, the court may strike surplusage from the indictment or information." In order to strike surplusage in an indictment or information, the language challenged must be "irrelevant, inflammatory, and prejudicial." United States v. Graves, 5 F.3d 1546, 1550 (5th Cir. 1993) (citation omitted); United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971); see also United States v. Solomon, 273 F.3d 1108, App. No. 00-11210, 2001 WL 1131955, at **1 (5th Cir. September 21, 2001) (unpublished) (citations omitted). "The inclusion of clearly unnecessary language in an indictment that could serve only to inflame the jury, confuse the issues, and blur the elements necessary for conviction under the separate counts involved surely can be prejudicial." Bullock, 451 F.2d at 888. However, "[w]here information in an indictment is sufficiently relevant to the charged offense, the court should not strike it, no matter how prejudicial it may be." Solomon, 2001 WL 1131955, at **1 (citations omitted); United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990); United States v. Edwards, 72 F. Supp.2d 664, 667 (M.D.La. 1999) (citation omitted).
In cases where the government charges a conspiracy, the court should not strike overt acts that are relevant to the charges. Edwards, 72 F. Supp.2d at 667. "The mere fact that information in an indictment does not constitute an element of the charged offense does not require that it be stricken." Solomon, 2001 WL 1131955, at **1 (citing Edwards, 72 F. Supp.2d at 667). An indictment may properly include any allegation that is relevant to the case and that will constitute part of the government's proof at trial. United States v. Gambino, 818 F. Supp. 541, 550 (E.D.N.Y. 1993) (citations omitted). The standard for striking information is "exacting" and, therefore, a motion to strike is rarely granted. Edwards, 72 F. Supp.2d at 667 (citations omitted); see also Solomon, 2001 WL 1131955, at **1 (citations omitted); Bullock, 451 F.2d at 888.
The charges pertaining to the detainees for whom Green allegedly set, reduced, or split bonds are relevant to the offenses alleged in the indictment. The government has alleged that Green and his co-defendant, in violation 18 U.S.C. § 1962(d), conspired to conduct an enterprise through a pattern of racketeering involving multiple acts of public bribery in violation of La.Rev.Stat. 14:118 and mail fraud in violation of 18 U.S.C. §§ 1341 and 1346. Additionally, Green has been charged with one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371 and multiple counts of mail fraud in violation of 18 U.S.C. §§ 1341, 1346, and 2. All of the foregoing charges revolve around the alleged scheme whereby Green, in return for things of value given to him by BBU, set, reduced or split bonds to maximize BBU's profit and minimize BBU's liability.
Indict. at 3, ¶ (D)1.
Id. at 18-21.
Article 334 of the Louisiana Code of Criminal Procedure provides that in determining an appropriate bail amount, a Louisiana district judge is to consider, inter alia, "[t]he seriousness of the offense charged, including but not limited to whether the offense is a crime of violence or involves a controlled dangerous substance." La. Code Crim P. art. 334. La.Rev.Stat. 14:118 defines public bribery as "the giving or offering to give, directly or indirectly, anything of apparent present or prospective value" to a public officer "with the intent to influence his conduct in relation to his position, employment, or duty." La.Rev.Stat. 14:118(A)(1) and (A)(1)(a). The acceptance of, or the offer to accept, anything of apparent present or prospective value by a public officer also constitutes public bribery. La.Rev.Stat. 14:118(A)(2). With respect to the conspiracy to commit mail fraud, the government is required to prove: (1) that Green agreed with a co-conspirator to commit mail fraud; (2) an overt act by one conspirator in furtherance of the conspiracy; and (3) the specific intent to further an unlawful objective of the conspiracy. See United States v. Bieganowski, 313 F.3d 264, 276 (5th Cir. 2002) (citation omitted); United States v. Sharpe, 193 F.3d 852, 863 (5th Cir. 1999). As to the substantive mail fraud counts, the government will be required to prove, inter alia, a scheme to defraud. United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001) (citation omitted). 18 U.S.C. § 1346 defines a scheme to defraud to include "a scheme or artifice to deprive another of the intangible right of honest services."
The gravamen of the indictment is that Green was engaged in a pattern of conduct whereby Green, in return for bribes, was setting and structuring bonds in order to benefit BBU instead of performing such activity in accordance with his public duty as required under Louisiana law. Therefore, the particular charges associated with the bonds Green allegedly set, reduced, or split is directly relevant to Green's motive for his judicial action because it will tend to shed light on whether Green's conduct was motivated by the things of value allegedly provided to him by BBU or whether his conduct was motivated by compliance with article 334 of the Louisiana Code of Criminal Procedure, which would include considering the seriousness of the offense(s) charged.
For the same reason, such information is relevant to showing the method of operation of the alleged RICO conspiracy and the method of operation of the alleged scheme to defraud the citizens of Louisiana of Green's honest services. Evidence regarding the nature of the crimes charged against the detainees is directly relevant to the government's theory that the RICO enterprise and the scheme to defraud were conducted without regard to the rules governing district court judges in Louisiana but, instead, were conducted through a pattern of fraud and bribery. In similar cases, courts have held that information relevant to a defendant's motive for taking certain action and information pertaining to the method of operation of an alleged RICO enterprise is not subject to being struck from an indictment. See Graves, 5 F.3d at 1550 ("Evidence suggesting a motive for a crime is relevant.") (citation omitted); Edwards, 72 F. Supp.2d at 667-68 (holding that information relevant to the methods allegedly used by a RICO enterprise to influence the riverboat licensing process would not be struck from an indictment). Because the challenged language is relevant to the charged crimes, this Court will not strike that language. The Court also finds that the challenged language is not so inflammatory or prejudicial as to warrant striking the language.
Additionally, following the procedure outlined in Edwards, any prejudice to the defendant or potential confusion by the jury will be minimized by clearly instructing the jury pursuant to the pattern Fifth Circuit jury instructions with respect to which charges have been filed against the defendant and with respect to how the jury is to consider the evidence presented as to each defendant. See Edwards, 72 F. Supp.2d at 667 n. 20.
With respect to the challenged language in paragraph 77, the Court finds that the reference to Green setting a one million dollar bond for the brother of a well-known rap artist is relevant to the government's theory of the case. The government intends to produce proof that BBU would earn approximately $100,000.00 on a one million dollar commercial bond. As noted above, the conspiracy and mail fraud counts revolve around Green structuring bonds at the behest of BBU in amounts that would maximize BBU's profits. The government's theory of the case is exemplified by an example which tends to show that Green set a high bond on a detainee who BBU thought may have the financial ability to post such a bond based upon a relative's presumably high income. Moreover, the Court finds that the indictment's single reference to a "rap performer" is not so inflammatory or prejudicial to warrant striking the language.
The Court notes that the challenged allegation makes no reference to any specific characteristic of the "rap performer" mentioned in the indictment. The Court is unpersuaded by defendant's oblique suggestion that the information is an improper effort "geared toward one or more juror predispositions — cultural or otherwise." See Rec. Doc. No. 74, at 7. The Court is unwilling to accept the defendant's assumption that any potential juror will automatically ascribe any particular cultural or other characteristic to such a performer based solely on his occupation.
Accordingly, for the above and foregoing reasons, defendant's motion to strike surplusage pursuant to Fed.R.Crim.P. 7(d) is DENIED.