Opinion
03-CR-54E.
July 28, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
On February 25, 2003 Mingle was indicted for allegedly violating 18 U.S.C. § 2 894 by participating in the use of extortionate means to collect and to attempt to collect an extension of credit. On March 31, 2003 Mingle filed a motion seeking, inter alia, dismissal of the indictment. Mingle's motion was referred to Magistrate Judge H. Kenneth Schroeder Jr. on April 4, 2003 pursuant to 28 U.S.C. § 636(b)(1)(B). Judge Schroeder issued a Report and Recommendation ("RR") on February 5, 2004 recommending that this Court deny Mingle's motion to dismiss the indictment. On February 5, 2004 Judge Schroeder also issued a Decision and Order ("DO") denying, inter alia, Mingle's request for a Bill of Particulars. Upon receiving an extension of time for filing objections to the RR and DO, Mingle filed such on March 15, 2004. For the reasons set forth below, Mingle's objections will be overruled, Judge Schroeder's RR will be adopted in its entirety, Mingle's motion to dismiss the indictment will be denied and Judge Schroeder's DO will be affirmed.
The indictment charged Mingle as follows:
"From on or about sometime in 2001, the exact date being to the grand jury unknown, and continuing thereafter until on or about June 2, 2002, in the Western District of New York and elsewhere, defendant VINCENT ANTHONY MINGLE, a/k/a/ JIM or "JIMMY" MINGLE, unlawfully and knowingly participated in the use of extortionate means to collect and to attempt to collect an extension of credit from individuals whose identities are known to the grand jury.
"All in violation of Section 894 and Section 2 of Title 18 of the United States Code."
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate" and may adopt those parts of the RR to which no specific objection is raised, so long as such are not clearly erroneous. Conversely, this Court must make a de novo determination as to the portions of the RR to which specific objections have been timely made. Finding no clear error, this Court will adopt those portions of the RR to which no specific objection has been made. The Court will now address Mingle's specific objections to the RR.
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 149-150 (1985) (holding that failure to timely object to a magistrate's recommended decision waives any right to further judicial review because section 636(b)(1) does not require any review by the district court of an issue that is not objected to in a timely manner); United States v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997) (same); Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42, 46 (2d Cir. 2002) ("[F]ailure to object to a magistrate judge's decision or recommendation generally forfeits the right to present those objections for appellate review."); Rawls v. Barnhart, 2003 WL 23350120, at *1-2 (W.D.N.Y. 2003) (applying Rule 72(b) of the Federal Rules of Civil Procedure and Rule 72.3 of the Local Rules of Civil Procedure); Allen v. Senkowski, 2003 WL 169788, at *1 (S.D.N.Y 2003) ("The district judge must make a de novo determination of those parts of the report to which timely objection has been made by any party, but the uncontested portions of the magistrate judge's report may be adopted unless they show clear error.").
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); United States v. Raddatz, 447 U.S. 667, 673-676 (1980); Moxley v. Bennett, 291 F. Supp.2d 212, 215 (W.D.N.Y. 2003).
Mingle advanced two arguments in support of his motion to dismiss the indictment. First, Mingle argued that the indictment is "vague and without specificity" because it fails to identify the means by which the alleged threats were communicated or to whom, when and where such were communicated. Mingle argued that the indictment should be dismissed under United States v. Tomasetta, 429 F.2d 978, 980-981 (1st Cir. 1970). Mingle's second argument in favor of dismissal is that the government committed outrageous conduct — to wit, manufacturing the crime for which Mingle was indicted. Judge Schroeder's RR rejected both arguments.
Mingle objects to the RR's rejection of his first argument by contending that Judge Schroeder erroneously relied upon United States v. Gotti, 2004 WL 32858 (S.D.N.Y. 2004), and that such case is inapplicable. Gotti held that an indictment for extortionate extensions of credit — also referred to as "loansharking" — "need [only] be facially valid; there is no requirement that the indictment supply sufficient evidence to convict." Gotti, at *8 (citing United States v. Alfonso, 143 F.3d 772, 776-777 (2d Cir. 1998)). Accordingly, Gotti is applicable and Judge Schroeder was correct in finding that the indictment is sufficient under Alfonso and other Second Circuit authority. Moreover, this Court finds de novo that the RR was correct in finding that Tomasetta is not binding authority and that the indictment is sufficient under binding Second Circuit authority. Accordingly, Mingle's objection to the RR's rejection of Mingle's vagueness argument will be overruled.
Because Mingle did not specifically object to the RR's rejection of Tomasetta — he merely reiterated the argument rejected by Judge Schroeder —, this Court need only review such objection for clear error. Nonetheless, this Court has elected to review Mingle's objection de novo.
Moreover, Tomasetta does not necessarily require the result urged by Mingle. See United States v. Sedlak, 720 F.2d 715, 719 (1st Cir. 1983) (stating that Tomasetta "noted that it is not always fatal to omit information [from an indictment under 18 U.S.C. § 894] concerning location, type of threat, or even the name of the victim"); United States v. Hallock, 941 F.2d 36, 40 (1st Cir. 1991) (" Tomasetta, did not, however, establish an inflexible floor of information required for a valid indictment. On the contrary, we stated therein that `arbitrary rules as to the necessity * * * of a given averment have no place in the analysis, as the question is whether the indictment as a whole conveys sufficient information to properly identify' the allegedly unlawful conduct.").
Mingle cites United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999) (internal quotation marks and citation omitted) for the proposition that "[t]he Indictment Clause of the Fifth Amendment requires that an indictment contain some amount of factual particularity to ensure that the prosecution will not fill in elements of its case with facts other than those considered by the grand jury." Walsh, however, notes in the very next sentence that the Second Circuit Court of Appeals has "consistently upheld indictments that 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." Walsh, at 44 (internal quotation marks and citation omitted). Indeed, the RR quoted this language from Walsh. In any event, this Court agrees with Judge Schroeder's analysis of Second Circuit authority and his conclusion that the indictment is sufficient thereunder. Moreover, as noted in Walsh, "where the indictment has been found even minimally sufficient, a court may look to the record as a whole in determining whether the defendant is protected from double jeopardy in a subsequent prosecution and whether the defendant has had an adequate opportunity to prepare his defense." Walsh, at 45. In reviewing Mingle's motion papers, it is apparent that he is aware of the alleged victims, to wit — Mike Mariglia and FBI special agent, Mark Onorato.
Mingle objects to the RR's rejection of his second argument by contending that the government's denial of his allegations of outrageous government conduct established a factual issue that should be resolved by a hearing. Mingle cites United States v. Cuervelo, 949 F.2d 559, 567 (2d Cir. 1991), in support of his argument. Cuervelo noted that "[m]ost often, conducting a hearing is the preferred course of action in cases where disputed factual issues exist." Ibid. Judge Schroeder, however, assumed arguendo the facts alleged by Mingle and found that such allegations failed to establish outrageous government conduct. No hearing was required because Mingle's alleged facts were accepted as true for purposes of Mingle's motion. Consequently, Mingle's request for a hearing was properly denied by Judge Schroeder.
Cf. United States v. LaPorta, 46 F.3d 152, 160 (2d Cir. 1994) ("Nothing in Cuervelo requires a district court to conduct a hearing every time a defendant alleges outrageous government misconduct.").
Mingle further objects to the RR's rejection of his second argument by contending that Judge Schroeder erroneously relied upon United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997), because a hearing is required to resolve disputed factual issues. Because this Court finds that no hearing was required, Mingle's objection to the RR's reliance on Schmidt appears to fail as well. Nonetheless, this Court will review de novo the RR's reliance on Schmidt. The RR cited Schmidt, which noted that
"[t]he concept of fairness embodied in the Fifth Amendment due process guarantee is violated by government action that is fundamentally unfair or shocking to our traditional sense of justice, or conduct that is so outrageous that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction against the accused." Schmidt, at 91 (citations and internal quotations omitted).
This Court does not find Mingle's alleged facts to be "so outrageous that common notions of fairness and decency" are offended by Mingle's prosecution. Ibid. Indeed, Mingle alleges no coercion, violation of his person or government involvement in his alleged criminal conduct that goes beyond standard covert operations by law enforcement officials. Ibid. Moreover, Mingle presents an even weaker case for dismissal than did Schmidt, who was incarcerated and under observation for mental illness. Ibid. In any event, under Asencio, Mingle's allegations of government involvement fail to cross the "line of outrageous Government conduct." Accordingly, Mingle's objection to the RR's rejection of Mingle's "outrageous government conduct" argument will be overruled.
See also United States v. Asencio, 873 F.2d 639, 641 (2d Cir. 1989) (holding that it was not outrageous for government agents to offer narcotics for sale and noting that the government may do more than facilitate criminal activity started by defendant without crossing the "line of outrageous Government conduct").
See also United States v. Dyman, 739 F.2d 762, 769 (2d Cir. 1984) (holding that "extensive government involvement in criminal activity, without more, does not constitute the type of coercive action, or outrageous violation of physical integrity, or other egregious or outrageous government conduct rising to the level of a due process violation") (citations omitted); United States v. Labate, 2001 WL 533714, at *9 (S.D.N.Y. 2001) (rejecting defendant's claim of outrageous government conduct because defendant alleged no coercion, physical invasion of defendant's body or fraud upon the criminal justice system and that "defendants show, at most, extensive Government involvement in the criminal activity, but that alone has never been held to show the degree of misconduct necessary to establish a due process violation").
Asencio, supra note 9, at 641. This Court need not address United States v. Twigg, 588 F.2d 373, 378 (3d Cir. 1978) or United States, v. Lard, 734 F.2d 1290, 1292 (8th Cir. 1984), which were cited by Mingle, because such decisions are not binding in the Second Circuit. Moreover, Mingle's citation of United States v. Archer, 486 F.2d 670, 676-677 (2d Cir. 1973) — without discussion — is also unavailing. First, Archer only addressed outrageousness in dicta. Archer, at 676-677. Second, Archer is distinguishable because it involved fabrications that misled innocent members of the criminal justice system, including police, courts and grand jurors. Third, "[c]ourts that have construed Archer have taken pains to limit its applicability." United States v. Wallace, 85 F.3d 1063, 1065 (2d Cir. 1996). Fourth, to the extent that Mingle cites Archer in support of his argument that the government "manufactured jurisdiction," such is unavailing because he took voluntary steps towards the commission of the crime charged. See, e.g., United States v. Vondette, 2003 WL 23023770, at *2-3 (2d Cir. 2003) (holding that the government did not "manufacture jurisdiction" under Archer, even though undercover government agents/purported conspirators redirected drug shipment bound for Canada to the United States, because defendant subsequently "took the voluntary step of agreeing to transport the drugs").
Finally, Mingle appeals from Judge Schroeder's DO with respect to the denial of Mingle's request for Bill of Particulars. The DO will be reviewed for clear error. Mingle cites United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) for the proposition that "a Bill of Particular [sic] is intended to allow a defendant to identify with sufficient particularities the nature of the charge pending against him, thereby enabling the defendant to prepare for trial, to prevent surprise and to interpose a plea of double jeopardy should be prosecuted a second time for the same offense." Bortnovsky, however, also stated that, "if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required." Ibid. Judge Schroeder was correct in denying Mingle's request for a bill of particulars because the criminal complaint filed in this action identifies "the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." Ibid. Consequently, Judge Schroeder's denial of Mingle's request for a bill of particulars was not clearly erroneous and the DO will be affirmed.
Bortnovsky is distinguishable because the prosecution failed to identify "which of appellants' insurance claims for burglary losses were fraudulent and which of the many invoices submitted to substantiate these claims were falsified." Bortnovsky, at 573-574. The other cases cited by Mingle are likewise distinguishable. See United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988) ("With the wide latitude accorded the prosecution to frame a charge that a defendant has `conspired' to promote the affairs of an `enterprise' through a `pattern of racketeering activity' comes an obligation to particularize the nature of the charge to a degree that might not be necessary in the prosecution of crimes of more limited scope."); United States v. Wozniak, 126 F.3d 105, 110-111 (2d Cir. 1997) (vacating conviction where defendant was indicted for distributing cocaine and methamphetamine but was tried for distributing marijuana, but noting that the conviction might have stood if defendant had been indicted for distributing controlled substances); United States v. Barnes, 158 F.3d 662, 665-666 (2d Cir. 1998) (finding that a defendant "was entitled to be apprised of the conduct that he was alleged to have undertaken in furtherance of this multi-faceted, if not multiple, conspiracy" but that the district court did not abuse its discretion in denying a bill of particulars where the information sought was provided in an alternate form).
Accordingly, it is hereby ORDERED that Mingle's objections are overruled, Judge Schroeder's RR is adopted in its entirety, Mingle's motion to dismiss the indictment is denied, that Judge Schroeder's DO is affirmed and parties shall appear before this Court on August 13, 2004 at 1:00 p.m. (or as soon thereafter as they may be heard) to set a date for trial.