Opinion
02-CR-66 (LEK)
February 21, 2003
MEMORANDUM-DECISION AND ORDER
I. BACKGROUND
On February 22, 2002, a federal grand jury returned a five-count indictment against Defendant Patricia Ford ("Defendant" or "Ford") charging her with committing various criminal offenses while she was the Secretary-Treasurer of the New York State Public Employees Federation, AFL-CIO ("PEF"). The first count alleges that she "knowingly and corruptly agreed to accept and accepted something of value from Peter Bynum intending to be influenced in connection with the award of business or transactions with and of [PEF], of a value of $5,000.00 or more" in violation of 18 U.S.C. § 666(a)(1)(B) and 18 U.S.C. § 2. The second count alleges that she "embezzled at least $5,000.00 in funds under the care and custody of [PEF]" in violation of 18 U.S.C. § 666(a)(1)(A) and 18 U.S.C. § 2. The third count alleges that she "embezzled and unlawfully converted to her own use and the use of others the money and funds of [PEF] in the approximate amount of $10,000.00" in violation of 29 U.S.C. § 501(c) and 18 U.S.C. § 2. Count four alleges that she "willfully caused a false entry to be made in a record required to be kept by [ 29 U.S.C. § 436]," in violation of 29 U.S.C. § 439(c) and 18 U.S.C. § 2. Count five alleges that she "knowingly and wilfully made a false, fictitious and fraudulent statement and representation of a material fact," in violation of 18 U.S.C. § 1001(a)(2).
Presently before the Court is Ford's omnibus motion requesting that this Court (i) dismiss the indictment; (ii) suppress evidence or hold a hearing to address the suppression of evidence; (iii) order the Government to produce a bill of particulars; (iv) order the Government to produce additional discovery materials. The Government opposes the motion. Because of deficiencies in the initial filings, the Court ordered re-briefing of some of the issues raised in Defendant's motion.
II DISCUSSION
A. Dismissal of the Indictment
Ford asserts three grounds for her request that the indictment be dismissed. She claims that the prosecutor engaged in misconduct before the grand jury; that there was significant pre-indictment dely; and that the indictment is insufficient.
1. Grand Jury Proceedings
In some circumstances, a prosecutor's misconduct before the grand jury may necessitate dismissal of the indictment. Courts may invoke their supervisory powers to dismiss an indictment where the prosecutor violates one of the "few, clear rules which were carefully drafted and approved by [the Supreme Court] and by Congress to ensure the integrity of the grand jury's red pages functions," United States v. Williams, 504 U.S. 36, 46 (1992) (quoting United States v. Mechanik, 475 U.S. 66, 74 (1986) (O'Connor, J., concurring)), and such misconduct prejudices the defendant, see Bank of Nova Scotia v. United States, 487 U.S. 250, 252 (1988). Prejudice is presumed where "the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair." Id. at 257 (citations omitted). Where the misconduct does not give rise to a presumption of prejudice, courts must undertake a harmless-error inquiry under which "dismissal of the indictment is appropriate only `if it is established that the violation substantially influenced the grand jury's decision to indict,' or if there is `grave doubt' that the decision to indict was free from the substantial influence of such violations." Id. at 256 (quoting Mechanik, 475 U.S. at 78 (O'Connor, J., concurring)).
Defendant offers a litany of conclusory assertions in support of her claim that the prosecutor's conduct before the grand jury was so improper that dismissal of the indictment is warranted. However, her Memorandum of Law refers to few specific instances of misconduct. Defendant argues that "it [was] pointed out that Ms. Ford hired an attorney, [and] it was clearly insinuated that `they' assisted her in crafting a perjurious statement." Defendant's Memorandum of Law at 5. It seems that Defendant is referring to Department of Labor Agent Kenneth Monaco's statement before the grand jury that Ford had retained a criminal attorney. However, as the Government points out, the prosecutor immediately told the jury not to consider this fact:
Defendant's Memorandum of Law fails to indicate where among the several hund of grand jury transcripts submitted to the Court this exchange may be found.
The agent did reference the fact that Ms. Ford retained counsel. You shouldn't allow that to adversely — you shouldn't allow any adverse inferences from that, in other words, you can't hold that against her, she is entitled to hire a lawyer, so don't hold that against her.
Testimony of Kenneth Monaco, Exhibit A to Defendant's Omnibus Motion at 19 (Docket No. 11).
All citations to grand jury transcripts herein are to transcripts submitted as Exhibit A to Defendant's Omnibus Motion. All page references are to Exhibit A's Bates numbers.
In response to the Government's argument that the prosecutor appropriately instructed the grand jury not to draw any adverse inferences from Ford's retention of counsel, Defendant states: "But compare that to the prosecutor's questioning and Monaco's 2/22/02 testimony at 49-50 (A. 73-74), addressed in my 12/9/02 Affirmation at ¶ 50; and also see Pat Ford's testimony at A. 529, where the prosecutor points out that Ms. Ford hired two attorneys." Defendant's Reply Affirmation ¶ 13 (Docket No. 17). The Court has reviewed the passages of the grand jury transcripts cited by Defendant and finds that the prosecutor did not imply in either of these instances that Ford is guilty because she hired an attorney.
Defendant also suggests that the jury was misled or misinformed by Agent Monaco's testimony that Defendant's prior statements to him were contradictory to her grand jury testimony. However, she fails to explain why this is misleading.
Defendant argues that "[o]ne glaring misuse of the grand jury is the fact that grand jury subpoenas were issued returnable at a time after the indictment was returned." Defendant's Memorandum of Law at 5. Defendant suggests that the prosecutor impermissibly issued these subpoenas for the sole purpose of preparing for trial in the event that the grand jury indicted Defendant. In response to the Court's request that the Government address this argument, the Government submitted a letter dated February 4, 2003 (Docket No. 25). The Government explains that the subpoena at issue requested Verizon to provide subscriber information for two telephone numbers in order to confirm the identity of the subscriber. The Government also notes that the subpoena was returnable on March 7, 2002, months before the expiration of the grand jury.
It is "improper for the Government to use the grand jury for the sole or dominant purpose of preparing for trial under a pending indictment." United States v. Leung, 40 F.3d 577, 581 (2d Cir. 1994) (citations omitted). The defendant "has the burden of showing that the Government's use of the grand jury was improperly motivated." Id. (citations omitted). Defendant has failed to meet this burden. The Government has offered a credible and permissible reason for the issuance of the subpoena and Defendant has replied with nothing more than speculation.
"The prosecution does offer after-the-fact excuses, to which the defense can have no direct contrary evidence, other than the totality of all that has occurred herein, which, again, has been presented and, respectfully, should be considered." Defendant's Response to Government's Supplemental Brief at 1 (Docket No. 21).
These instances of alleged misconduct, even when viewed cumulatively, do not give rise to a presumption of prejudice. Contrary to Defendant's assertions, Defendant has failed to establish that the grand jury was biased or otherwise not independent. Similarly, the instances of alleged misconduct do not establish that the grand jury's decision to indict was substantially influenced by the alleged misconduct. Because Defendant has failed to show that she has suffered prejudice, dismissal of the indictment is not warranted.
2. Pre-indictment Delay
"The statute of limitations is `the primary guarantee against bringing overly stale criminal charges.'" United States v. Cornielle, 171 F.3d 748, 751 (2d Cir. 1999) (quoting United States v. Marion, 404 U.S. 307, 322 (1971) (quoting United States v. Ewell, 383 U.S. 116, 122 (1966))). However, "[a]n indictment brought within the time constraints of the statute may nevertheless violate due process where pre-indictment delay has been shown to cause `substantial prejudice' to the defendant's ability to present his defense and `the delay was an intentional device to gain [a] tactical advantage over the accused.'" Id. at 752 (quoting Marion, 404 U.S. at 324). The defendant bears the "heavy burden" of proving both prongs of this standard. Id. She has proved neither.
Defendant states that "[t]he defense is prejudiced due to failures of recollection as to key events and the loss of certain records." Defendant's Memorandum of Law at 8. Defendant fails to indicate whose recollections have failed; what key events are the subject of these recollections; and which records have been lost. After taking responsibility for some of the pre-indictment delay, Defendant baldly asserts: "Upon information and belief, the delay attributable to the government may have been for tactical advantages." Defendant's Memorandum of Law at 8. Such conclusory statements fall well short of meeting Defendant's heavy burden of showing that the her due process rights were violated by pre-indictment delay.
3. Insufficiently of Indictment
In accordance with this Court's Order dated January 29, 2003, Defendant re-briefed her argument that the indictment was insufficient. See Brief in Compliance with this Court's January 29, 2003 Order.
"[A]n 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." United States v. Bailey, 444 U.S. 394, 414 (1980) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). It is well-settled that "an 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." United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (quoting United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992)).
(1) Count 1
Defendant argues that count 1 of the indictment ("Count 1") is insufficient for a number of reasons.
Count 1 states in pertinent part:
Between on or about March 4, 1997, and on or about July 30, 1997, at Albany, Albany County, in the Northern District of New York, and elsewhere, the defendant, PATRICIA J. FORD, being an agent of the New York State Public Employees Federation, AFL-CIO, an organization receiving in the one-year period beginning March 5, 1996, federal benefits in excess of $10,000.00 described above, knowingly and corruptly agreed to accept and accepted something of value from Peter Bynum intending to be influenced in connection with the award of business or transactions with and of the New York States Public Employees Federation, AFL-CIO, of a value of $5,000.00 or more.
All in violation of Title 18, United States Code, Sections 666(a)(1)(B) and 2. Indictment at 2.18 U.S.C. § 666 states in pertinent part:
(a) Whoever, if the circumstance described in subsection (b) of this section exists —
(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof —
(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that —
(i) is valued at $5,000 or more, and
(ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; or
(B) curruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more; or
(2) curruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more;
shall be fined under this title, imprisoned not more than 10 years, or both.
(b) The circumstances referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.18 U.S.C. § 666.
Connection between the illegal act and the integrity of the federal program. Defendant claims that Count 1 is deficient because there is no connection between the alleged illegal act and a risk to the integrity of the federally funded program. In United States v. Santopietro, 166 F.3d 88 (2d Cir. 1999), the Second Circuit held that for a violation of 18 U.S.C. § 666(a)(1)(B) to exist there must be "at least some connection between the bribe and a risk to the integrity of the federal[ly] funded program." Id. at 93. Such a connection was established in Santopietro, where "substantial federal funds were received by Waterbury for housing and urban development programs and the corrupt payments concerned real estate transactions within the purview of the agencies administering federal funds." Id. at 93; see also United States v. Ganim, 225 F. Supp.2d 145, 164 (D.Conn. 2002) (holding that the required connection existed where the indictment alleged that Bridgeport received federal funds administered by the Office of Planning and Economic Development, the Office of Public Facilities and the Bridgeport Water Pollution Control Authority (WPCA) and that the defendant used his influence with city agencies including the Office of Planning and Economic Development, the Office of Public Facilities, and the WPCA for the benefit of those who allegedly bribed him). However, the Second Circuit explained that § 666(a)(1)(B) could not be used to prosecute, for example, "a bribe paid to a city's meat inspector in connection with a substantial transaction just because the city's parks department had received a federal grant of $10,000." Santopietro, 166 F.3d at 93.
The Fifth Circuit has characterized Santopietro as establishing a "purview test": "To be prosecuted under § 666, a bribed official must at least influence other officials who have within their purview federally funded programs, but the corruption need not touch those programs." United States v. Lipscomb, 299 F.3d 303, 331 (5th Cir. 2002).
Unlike the hypothetical meat inspector, Ford was the Secretary-Treasurer of an organization that received federal funds. In other words, she had federal funds within her purview. Accordingly, the Court finds that the indictment alleges the requisite connection between the alleged illegal act and the risk to the integrity of the federally funded program.
"Under a federal program." Defendant argues that Count 1 is deficient because it fails to allege that PEF received $10,000 "under a Federal program." Defendant states: "These words are in the statute for a reason, and their omission from the count causes [this] count to not comply with the charging requirements-even if mere tracking of the statutory language were the standard." Brief in Compliance with this Court's January 29, 2003 Order at 4 ("Defendant's Second Memorandum of Law ") (Docket No. 20).
Paragraph 1A of Count 1 alleges that PEF "received benefits in excess of $10,000.00 in the form of grants from the United States Department of Labor, Occupational and Safety Health Administration." Paragraph 2 alleges that Defendant was an agent of an organization that received federal benefits in excess of $10,000. While the words "under a Federal program" are not used, Count 1 clearly alleges that PEF received $10,000 under a Federal program.
Time that $10,000 in benefits was received. Count 1 charges Ford with criminal activity "[b]etween on or about March 4, 1997, and on or about July 30, 1997" while she was an agent of an organization that received federal benefits in excess of $10,000 in the twelve month period beginning on March 5, 1996. This twelve month period thus ended on March 4, 1997. Indictment at 2. Defendant argues: "Thus this $10,000 element is not adequately alleged, in that as alleged, the $10,000 payment did not occur in the `continuous period that commences no earlier than twelve months before the commission of the offense.'" Defendant's Second Memorandum of Law at 4 (quoting 18 U.S.C. § 666(d)(5)).
18 U.S.C. § 666(b) provides that § 666 applies to the conduct of an agent of an organization which receives "in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance." 18 U.S.C. § 666(d)(5) defines "in any one-year period" to mean "a continuous period that commences no earlier than twelve months before the commission of the offense or that ends no later than twelve months after the commission of the offense." 18 U.S.C. § 666(d)(5). In other words, the alleged illegal conduct must occur within the relevant one year period. Count 1 properly alleges that illegal conduct occurred on or about March 4, 1997, which is within the relevant one year period (i.e., March 5, 1996 to March 4, 1997).
18 U.S.C. § 2. Count 1 charges Defendant with a violation of 18 U.S.C. § 2. That statute states:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.18 U.S.C. § 2.
Defendant argues: "That the addition of section 2 may be adequate in some circumstances does not make it adequate in all-especially in an indictment like this one, which is absolutely bare bones." Defendant's Second Memorandum of Law at 5. Defendant fails to explain fully the grounds for her objection to the charge that she violated 18 U.S.C. § 2. However, it seems that she is arguing that the charge should have set forth which subpart of § 2 was violated and how it was violated.
A defendant may be convicted for violating 18 U.S.C. § 2 even if such a violation was not charged in the indictment, United States v. Smith, 727 F.2d 214, 217 (2d Cir. 1984) and, "a fortiori, may be convicted of aiding and abetting the commission of a crime where the indictment refers to 18 U.S.C. § 2 but does not additionally track the language of that statute." Virella v. United States, 750 F. Supp. 111, 115 (S.D.N.Y. 1990) (citations omitted). Accordingly, the indictment is not defective because it fails to track the language of § 2.
b. Count 2
Count 2 of the indictment ("Count 2") states in pertinent part:
On or about March 31, 1997, at Albany, Albany County, in the Northern District of New York, and elsewhere, the defendant, PATRICIA J. FORD, being an agent of the New York States Public Employees Federation, AFL-CIO, an organization receiving in the one-year period beginning March 5, 1996, federal benefits in excess of $10,000.00 described above, embezzled at least $5,000.00 in funds under the care and custody of the New York States Public Employees Federation, AFL-CIO.
All in violation of Title 18, United States Code, Sections 666(a)(1)(B) and 2. Indictment, at 3.
Connection between the illegal act and the integrity of the federal program. For the reasons give above with respect to Count 1, the Court finds that Count 2 alleges the requisite connection between the illegal act alleged in Count 2 and the risk to the integrity of the federally funded program.
"Under a federal program." As in Count 1, Count 2 clearly alleges that PEF "received benefits in excess of $10,000.00 in the form of grants from the United States Department of Labor, Occupational and Safety Health Administration" and that Defendant was an agent of an organization that received federal benefits in excess of $10,000. Accordingly, Count 2 alleges that PEF received $10,000 under a Federal program.
Time that $10,000 in benefits was received. As explained above, 18 U.S.C. § 666 applies to the conduct of an agent of an organization which receives certain Federal benefits in excess of $10,000 during "a continuous period that commences no earlier than twelve months before the commission of the offense or that ends no later than twelve months after the commission of the offense." 18 U.S.C. § 666(d)(5).
Count 2 alleges that Defendant committed an offense on March 31, 1997. Count 2 must therefore also allege that PEF received certain Federal benefits in excess of $10,000 during a continuous period beginning no earlier than April 1, 1996 or ending no later than March 30, 1998. Paragraph 1 of Count 2 properly alleges that PEF received benefits in excess of $10,000 during a continuous period beginning April 1, 1996 and ending March 31, 1997. However, paragraph 2 of Count 2 alleges that PEF received benefits in excess of $10,000 during a continuous period beginning March 5, 1996 (i.e., more than one year before the date that the alleged offense was committed).
The Government acknowledges that paragraph 2 "contains an inadvertent error" and states that "in the event that we are held to the 62 date, the first two payments are still available to establish jurisdiction." Government's Response to Ford's February 4, 2003 Brief at 3. That is, the Government explains that it can show that PEF received benefits in excess of $10,000 between March 5, 1995 and March 4, 1996. However, paragraph 2 of Count 2, standing alone, does not allege a violation of 18 U.S.C. § 666. The Government thus fails to recognize that if it is held to the paragraph 2 date, Count 2 does not allege the necessary elements of a § 666 violation.
While paragraph 1 of Count 2 does allege a one-year period that covers the date of the alleged offense, paragraph 2 alleges a different one-year period that does not. The indictment thus fails to provide the Defendant with adequate notice of an essential element of the charged offense. As Count 2 stands, Defendant cannot know whether to defend against the allegation that PEF received more than $10,000 in federal benefits in a one year period ending on March 31, 1997 or in a one-year period ending on March 4, 1997. Because this internal inconsistency relates to an element of the offense, it may not be dismissed as a mere technical error. Indeed, the Government appears to recognize as much by acknowledging that it may be held to one of the two dates given in Count 2. However, the Court may not re-write the indictment to conform to what it believes the grand jury intended to allege. See United States v. Pirro, 212 F.3d 86, 92 (2d Cir. 2000) ("To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure.") (quoting Russell v. United States, 369 U.S. 749, 770 (1962)). Accordingly, the Court finds that Count 2 must be dismissed as it fails to inform Defendant of the charge against which she must defend.
The Government has not offered any suggestion or argument as to how this conflict should be reconciled.
Having found that Count 2 must be dismissed, the Court need not address Defendant's remaining arguments regarding the sufficiency of Count 2.
c. Count 3
Count 3 alleges that Defendant "embezzled and unlawfully converted to her own use and the use of others" approximately $10,000 in PEF funds in violation of 29 U.S.C. § 501(c). Defendant argues that Count 3 fails to allege criminal intent. The Government counters that Count 3's allegation that Ford "embezzled and unlawfully converted" adequately alleges criminal intent.
29 U.S.C. § 501(c) states: "Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer, or by which he is employed, directly or indirectly, shall be fined not more than $10,000 or imprisoned for not more than five years, or both." 29 U.S.C. § 501(c).
As an initial matter, the Court finds that "the word `embezzle' connotes to both lawyers and laymen that the act was performed with wrongful intent." United States v. Willis, 515 F.2d 798, 800 (7th Cir. 1975) (internal quotation marks omitted). However, there is a split among the Circuits as to whether the phrase "unlawfully converted" similarly connotes wrongful intent.
Defendant relies on United States v. Morrison, 536 F.2d 286 (9th Cir. 1976) in support of her argument that the indictment fails to allege criminal intent. In Morrison, the Ninth Circuit held that a complaint which charged that the defendant "did convert to his own use and exchange for other funds or property, without authorization by law, the sum of forty dollars ($40.00) which had come into his hands under his control in the execution of his employment and service as such an employee" failed to allege an intent element. Id. at 287 n. 5, 289. The Court rejected the government's contention that intent could be inferred from the allegation that the defendant "converted" postal funds without "authorization by law" because the allegation "could have alleged merely a tort." Id. at 289.
Morrison is cited with apparent approval in a recent Second Circuit case. See Pirro, 212 F.3d at 95.
However, other Courts of Appeals have held that "convert" adequately alleges criminal intent. In United States v. Lester, 541 F.2d 499 (5th Cir. 1976), the Fifth Circuit held "[t]he term convert implies, by its very legal nature, some kind of willful purpose and wrongful intent in the taking of property that does not belong to the converter." Id. at 501-02. While the Court noted that intent in generally irrelevant in a civil tort action for conversion, it found that "[c]onversion in a criminal context, by its nature, involves the element of purposeful intent to assert dominion over another's property." Id. at 502 n. 4.
The Seventh Circuit, in United States v. Minick, 636 F.2d 181 (7th Cir. 1980), agreed with the Fifth Circuit's conclusion in Lester and found that "an indictment charging conversion . . . contains the necessary allegation of intent." Id. at 184.
In a recent Ninth Circuit case, the Court found that an indictment alleging that the defendant "unlawfully used, embezzled, hypothecated, and converted to her own use, more than $1,000" was sufficient. See United States v. Ross, 206 F.3d 896, 899-900 (9th Cir. 2000). The Court distinguished Morrison on the grounds that the indictment in Morrison only alleged conversion and did not also allege that the defendant had unlawfully used, embezzled, and hypothecated postal funds. Id. at 900. The Ross Court also explained that it construed the indictment liberally in favor of validity given the untimeliness of the objection to the sufficiency of the indictment. Id. at 899-900.
In United States v. Foley, 73 F.3d 484 (2d Cir. 1996), abrogated on other grounds, United States v. Salinas, 522 U.S. 52 (1997), the Second Circuit stated that when "one element of the offense is implicit in the statute, rather than explicit, and the indictment tracks the language of the statute and fails to allege the implicit element explicitly, the indictment fails to allege an offense." Foley, 73 F.3d at 488 (citing United States v. Carll, 105 U.S. 611, 613 (1881) and United States v. Ivic, 700 F.2d 51, 58-59, 64-65 (1983)). In Foley, the Court reversed a conviction on the grounds that the government failed to prove an element of the charged offense. Id. at 493. The Court did not squarely address the sufficiency of the indictment.
Carll concerned an indictment that alleged that the defendant "feloniously, and with the intent to defraud the Bank of the Metropolis, which said bank is a corporation organized under the laws of the State of New York, did pass, utter, and publish upon and to the said Bank of the Metropolis a falsely made, forged, counterfeited, and altered obligation and security of the United States." Carll, 105 U.S. at 612. The Supreme Court held that the indictment was insufficient because it failed to allege that the defendant knew that the obligation and security was false, forged, counterfeited, and altered. Id. at 613. The Court found that without the express allegation of criminal intent, the statute would apply to conduct which the statute was not intended to criminalize. Id.
Similarly, in Ivic, the Second Circuit held that the term "enterprise" as used in 18 U.S.C. § 1962(c) refers to a profit-seeking enterprise. Ivic, 700 F.2d at 65. Accordingly, an indictment charging a violation of 18 U.S.C. § 1962(c) must allege that the enterprise had a financial purpose. Absent such an express allegation, § 1962(c) might be used to convict defendants whose behavior § 1962(c) was not intended to criminalize. Id. at 61-62, 64-65.
18 U.S.C. § 1962(c) states: "It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt."
This holding was overruled by Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249 (1994).
The facts of this case are distinguishable from those at issue in Ivic and Carll. Count 3 does not allege conversion alone, but alleges embezzlement and conversion. As noted above, embezzlement, by definition, connotes criminal intent. A charge of conversion that does not specify criminal intent, standing alone, might be insufficient. However, the conversion charge here was coupled with an allegation of embezzlement. Under these circumstances, it is not plausible that the grand jury indicted Defendant for merely tortious behavior which is outside the scope of what § 666 was intended to criminalize. See Ross, 206 F.3d at 899-900. The allegation of conversion, when coupled with an allegation of embezzlement, necessarily implies criminal intent.
d. Count 4
Count 4 of the indictment ("Count 4") states in pertinent part:
On or about March 31, 1997, at Albany, Albany County, in the Northern District of New York, the defendant, PATRICIA J. FORD, willfully caused a false entry to be made in a record required to be kept by Section 436 of Title 29, United States Code, that is, a disbursement journal, a record on matters required to be reported in the annual financial report of the New York State Public Employees Federation, AFL-CIO, required to be filed with the Secretary of Labor.
All in violation of Title 29, United States Code, Section 439(c), and Title 18, United States Code.
Indictment at 4.
Defendant argues that this Count is insufficient because it fails to identify the exact date that the false entry was allegedly made and who made the false entry. Defendant also suggests that the term "disbursement journal" is too vague. The Court finds that Count 4 is not unconstitutionally vague. It contains all the elements of the offense that is charged and notifies the defendant of the charge against which she must defend. Count 4 is sufficiently specific to allow Defendant to plead acquittal or conviction in bar of future prosecution.
Defendant failed to allege adequately that any of the other counts were insufficiently specific. See United States v. Crowley, 236 F.3d 104, 109 (2d Cir. 2000) ("[W]e hold that in order to raise a challenge to the specificity of an indictment within the meaning of Fed.R.Crim.P. 12(b)(2), a defendant must do more than assert in general terms that the indictment by which he or she was charged is vague or insufficiently specific.").
B. Grand Jury Minutes
Defendant asks this Court to order the Government to turn over transcripts of all grand jury testimony. Pretrial discovery of grand jury testimony is governed by Federal Rule of Criminal Procedure 6(e). Rule 6(e)(6) provides that "[r]ecords, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before a grand jury." Fed.R.Crim.P. 6(6). An exception to this general rule of secrecy is made for the disclosure of grand jury materials "at the request of the defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Fed.R.Crim.P. 6(3)(E)(ii). However, grand jury proceedings "receive a presumption of secrecy and closure." In re Grand Jury Subpoena, 103 F.3d 234, 239 (2d Cir. 1996) (citation omitted). This presumption may be rebutted by the showing of a "`particularized need' that outweighs the need for secrecy." Id. (quoting United States v. Moten, 582 F.2d 654, 662 (2d Cir. 1978)).
Defendant has not identified any "particularized need" for disclosure of the remaining grand jury transcripts. Rather, she argues that because "matters of a questionable nature" occurred before the grand jury, the full transcripts are necessary "to reinforce an already strong motion." Defendant's Memorandum of Law at 7. However, as explained above, Defendant has failed to support her conclusory accusations of prosecutorial misconduct with any evidence. Accordingly, Defendant's request for the disclosure of additional grand jury transcripts is denied.
C. Suppression of Statements
Defendant contends that law enforcement officials elicited statements from her while she was in custody without giving her a Miranda warning. She moves to suppress "all statements of Pat Ford during her interrogation by government agents." Defendant's Memorandum of Law at 14. In the alternative, Defendant requests a hearing to determine whether these statements were elicited in violation of her constitutional rights.
Defendant has submitted an affidavit describing the circumstances under which she gave statements to Agent Monaco on May 28, 1998. She states that did not think that speaking with Agent Monaco "was optional." (Ford Aff. ¶ 5, Docket No. 9.) She also states that she was led into a windowless room where Agent Monaco and another agent questioned her. She claims that "Monaco was very belligerent and accusatory." (Ford Aff. ¶ 8.) In particular, she states that he "put his finger in [her] face and said he was going to recommend to the Federal Attorney that I be prosecuted. He said as far as he was concerned `hanging' was too good for me." (Ford Aff. 6 12.)
The Court finds that Ford's affidavit is sufficiently definite to enable the court to conclude that there are contested issues of material fact with respect to the voluntariness of the statements. See United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992) ("An evidentiary hearing on a motion to suppress ordinarily is required if the moving papers are sufficiently definite, specific, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.") (quotation marks omitted). Accordingly, an evidentiary hearing is appropriate to determine whether Ford's constitutional rights were violated when she spoke with Agent Monaco. While Ford broadly requests that the Court suppress "all statements of Pat Ford during her interrogation by government agents," her affidavit is limited to the facts surrounding her interview with Agent Monaco on May 28, 1998. (Ford Aff. ¶ 13) ("That meeting was May 28, 1998."). The evidentiary hearing will therefore be limited to consideration of the statements Ford made to Agent Monaco in the May 28, 1998 interview.
D. Bill of Particulars
Defendant moves for an order directing the government to provide a bill of particulars.
Requests for bills of particulars are governed by Federal Rule of Criminal Procedure 7(f), which provides that a "court may direct the filing of a bill of particulars." F.R.Cr.P. 7(f). The purpose of a bill of particulars is to permit the defendant to identify the nature of the charges against him so that he is able to avoid unfair surprise, prepare for trial, and plead double jeopardy if he is later prosecuted for the same offense. See United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988). Courts should grant a request for a bill of particulars "only where the charges of the indictment are so general that they do not advise a defendant of the specific acts of which he is accused." United States v. White, 753 F. Supp. 432, 433 (D.Conn. 1990) (citation omitted). In determining whether to grant a bill of particulars, courts must ask "whether it is necessary to the defense," not "whether the information sought would be useful to the defendant." United States v. Taylor, 707 F. Supp. 696, 699 (S.D.N.Y. 1989) (citation omitted). In addition, the Government's disclosure may obviate the need to order a bill of particulars. See United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) ("[A] bill of particulars is not necessary where the government has made sufficient disclosures concerning its evidence and witnesses by other means.") (citing Torres, 901 F.2d at 234). The decision as to whether a request for a bill of particulars should be granted is within the discretion of the trial court. See, e.g., United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990).
Defendant asks the Government to specify several elements of the charge. Unfortunately, the Defendant fails to explain fully why this information is necessary to her defense. In addition, the Government has already provided Defendant with much of the information she seeks. See Government's Response to Ford's February 4, 2003 Brief ("Ford has the documentation which shows when brochures (things of value accepted from Bynum) were shipped. Dates, to the extent known, are found in the discovery."). Nevertheless, the Court finds that a limited bill of particulars is warranted. First, with respect to Count 1, the Court orders the Government to identify what Defendant knowingly and corruptly agreed to accept from Peter Bynum. With respect to Count 4, the Court orders the Government to identify the alleged false entry and the alleged disbursement journal. Without this information, the Defendant cannot adequately prepare for trial.
Instead, Defendant offers the following conclusory assertion: "The information sought is necessary in order to prepare the defense, avoid surprise, and prevent the prosecution from adapting the over broad [sic] indictment to its proof." Defendant's Second Memorandum of Law at 8.
E. Discovery
Defendant requests that this Court order the Government to turn over Agent Monaco's personnel file pursuant to Federal Rules of Criminal Procedure 16(a)(1)(E) and Brady v. Maryland, 373 U.S. 83 (1963).
Defendant cites to Fed.R.Crim.P. 16(a)(1)(C), apparently intending to refer to the Rule governing the Government's disclosure of documents and objects. Rule 16 was amended on December 1, 2002. Under the amended Rule 16, Fed.R.Crim.P. 16(a)(1)(E) governs the Government's disclosure of documents and objects.
Federal Rule of Criminal Procedure 16(a)(1)(E) states that the government shall permit the defendant to inspect and copy documents which are within the government's control if "(i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant." Fed.R.Crim.P. 16(a)(1)(E). Defendant fails to explain how any of these requirements are met.
Under Brady, the Government is required to produce evidence that is material to a defendant's guilt or punishment. Brady, 373 U.S. at 87. Evidence is material if there is a reasonable probability that the evidence would have changed the outcome of the proceeding. United States v. Bagley, 473 U.S. 667, 682 (1985). Defendant seems to argue that Agent Monaco's personnel file will yield evidence material to her guilt or punishment because Agent Monaco's "credibility is expected to be a key element in this case, including at any hearing." Defendant's Memorandum of Law at 17.
Defendant relies on United States v. Kitzewski, 877 F.2d 331 (2d Cir. 1989), to support her argument that Agent Monaco's personnel file should be disclosed. Kitzewski involved "a trial for making false declarations, where credibility is the central issue in the case and the evidence presented at trial consists of opposing stories presented by the defendant and government agents." Id. at 216. Under these circumstances, the Second Circuit held that the district court erred in refusing to conduct an in camera review of the agent's personnel file and directed the district court to conduct an in camera examination of the file. Id. While Defendant has failed to indicate what material information might be contained in Agent Monaco's file, the Court will review Agent Monaco's file in camera to determine whether any material must be turned over to Defendant under Brady.
III. CONCLUSION
For the reasons stated above, it is hereby:
ORDERED, that Defendant's motion is GRANTED IN PART and DENIED IN PART; and it is further
ORDERED, that Count 2 of the indictment is DISMISSED; and it is further
ORDERED, that a hearing regarding the suppression of statements made by Defendant will be held at a date and time to be determined upon consultation between the Court and the parties to this action; and it is further
ORDERED that the parties contact the Court immediately regarding the suppression hearing in order to schedule an appropriate date and time for the hearing; and it is further
ORDERED, that the Government provide a bill of particulars setting forth, with respect to Count 1, what Defendant knowingly and corruptly agreed to accept from Peter Bynum; and, with respect to Count 4, a description of the alleged false entry and the alleged disbursement journal; and it is further
ORDERED, that the Government deliver to the Court for in camera inspection the personnel file of Department of Labor Agent Kenneth Monaco; and it is further
ORDERED that the Clerk of the Court shall serve copies of this order by regular mail upon the parties to this action.