US v. Doherty

• Citation: 675 F. Supp. 726
• Decision Date: 22 July 1987
• Docket Number: Crim. A. No. 86-240-Y.
• Parties: UNITED STATES of America v. Thomas K. DOHERTY, Nelson E. Barner, Nicholas Salerno, Arthur J. Pino, Robert W. Clemente, Sr., John A. Deliere, and Frank Ray.
• Court: U.S. District Court — District of Massachusetts

675 F. Supp. 726

UNITED STATES of America v. Thomas K. DOHERTY, Nelson E. Barner, Nicholas Salerno, Arthur J. Pino, Robert W. Clemente, Sr., John A. Deliere, and Frank Ray.

Crim. A. No. 86-240-Y.

United States District Court, D. Massachusetts.

July 22, 1987.

COPYRIGHT MATERIAL OMITTED

Asst. U.S. Attys., Robert Mueller, and A. John Pappalardo, Boston, Mass., for plaintiff.

Thomas Troy, Reading, Mass., Thomas E. Finnerty, Boston, Mass., George Gormley, Boston, Mass., Frank Marchetti, Summerville, Mass., Thomas Noone, Salem, Mass., Richard Egbert, Boston, Mass., and Thomas May, Boston, Mass., for defendants.

POST-TRIAL MEMORANDUM AND ORDER

YOUNG, District Judge.

On May 7, 1987, the jury returned its verdict in the above-captioned matter after a seventeen-week trial. The jury found Thomas K. Doherty, Nelson E. Barner, and Nicholas Salerno guilty on Count I, what this Court and the parties have denominated as the "general conspiracy" to commit mail fraud. Thomas K. Doherty also was found guilty on Count XI of racketeering.¹ Nelson E. Barner was also found guilty on Count II of perjury. The defendants Arthur J. Pino, Robert W. Clemente, Sr., and John A. Deliere were each found guilty of separate conspiracies to commit mail fraud on Counts III, V and VII, and VI, respectively. Prior to trial, three additional defendants, Gerald W. Clemente, Jr., Richard J. Madden, and Frank Ray, had entered pleas of guilty. Frank Ray pled guilty to conspiracy to commit mail fraud on Count III and to perjury on Count IV.² At the close of the evidence and then again after the verdict the defendants who had gone to trial submitted motions for judgment of acquittal as well as motions for a new trial after the jury verdict. This Court, while recognizing that some of the legal issues raised were substantial, denied the defendants' requests for relief with the proviso that this opinion would follow to address the most significant issues. Subsequently, on June 12th and 19th, this Court imposed sentences of incarceration on each of the defendants but stayed the execution of the sentences imposed pending the resolution of the expected appeals from the jury verdict. See 18 U.S.C. § 3143(b).

The Court and its staff then turned their attention to the immediate needs of other, equally pressing cases. Due to the very real practical demands of another large scale criminal conspiracy case pending in the western section of this district, which followed on the heels of this present matter, the judgments against each defendant had not yet been entered when the Supreme Court announced its decision in McNally v. United States, ___ U.S. ___, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). As a direct result of the wholly unexpected explication of the law of mail fraud set forth in that opinion, the defendants Thomas K. Doherty, Nelson E. Barner, Nicholas Salerno, Arthur J. Pino, Robert W. Clemente, Sr., and John A. Deliere now all renew their motions to dismiss the indictment or, alternatively, move that this Court grant them an acquittal or a new trial. Certain of these defendants also filed motions "to stay entry of judgment." Additionally, the defendant Frank Ray moves that the Court permit him to withdraw his guilty plea and then dismiss the indictment against him.

This Court immediately set the matters down for a hearing after which the motions were taken under advisement. This opinion deals with the issues created in the instant case by the Supreme Court's decision in McNally, as well as explaining the significant grounds for denial of the post-trial motions earlier filed.

I. JURISDICTION OVER THE McNALLY ISSUES

As a threshold matter, the government opposes the Court's consideration of the defendants' renewed motions on the ground that this Court lacks subject matter jurisdiction. The government characterizes the defendants' filings as motions for arrest of judgment pursuant to Fed.R.Crim. P. 34. Not all of the defendants' submissions have been so entitled. Instead, defendants Deliere and Salerno specifically labeled one of their joint submissions of June 26th as a motion for reconsideration of the motion for judgment of acquittal and the motion to dismiss.³

The defendants' submissions entitled "motion to stay entry of judgment" are, in fact, motions for arrest of judgment that must be denied as untimely.⁴

The other motions, however, do not fall within the ambit of Rule 34. The defendants' motions that this Court reconsider its previous rulings on their motion to dismiss, motion for judgment of acquittal, and motion for a new trial, are better characterized as falling under Federal Rules of Criminal Procedure 12(b), 29, and 33. This Court has subject matter jurisdiction to entertain these motions.

The government's argument that the untimeliness of the motions creates a jurisdictional bar is ill applied to the circumstances of this case. The Court notes as an initial matter that while the Rules are quite specific as to the filing deadlines for Rules 29, 33, and 34, "it is well-established that the failure of an indictment to state an offense is a fatal defect that may be raised at any time." United States v. Watkins, 709 F.2d 475, 478 n. 2 (7th Cir. 1983); see 1 C. Wright, Federal Practice and Procedure § 193, at 693-95 (1982) (noting that courts have considered Rule 12 as controlling Rule 34 on the question of the timing of a motion alleging failure of an indictment to state an offense). Even with respect to the renewed motions under Rules 29 and 33, however, the government is in error in arguing that this Court is somehow acting in contravention of Fed.R. Crim.P. 45 by further considering the motions sought to be renewed (and thus, in effect, enlarging the time in which arguments in support of those motions might be advanced). Rule 45 and the specific time constraints in Rules 29 and 33 do not address the present context, viz. where post-trial motions were initially timely filed and denied but now an intervening change in the law occurring prior to entry of judgment has, quite properly, caused the litigants to renew their motions. Under these circumstances a court still retains its subject matter jurisdiction and indeed has a duty to confront any possible errors causing manifest injustice.

This proposition is supported by the Ninth Circuit's decision in Arizona v. Manypenny, 672 F.2d 761 (9th Cir.), cert. denied, 459 U.S. 850, 103 S.Ct. 111, 74 L.Ed. 2d 98 (1982). In Manypenny, the court held that a district court has the power to reconsider a timely motion for judgment of acquittal if necessary to correct a manifest error. Id. at 765-66; see United States v. Giampa, 758 F.2d 928, 936 n. 1 (3d Cir. 1985) (court had inherent power to order judgment of acquittal sua sponte beyond scope of time set forth in Rule 29c) (citing Arizona v. Manypenny); United States v. Nava-Maldonado, 566 F.Supp. 1436, 1440 (D.Nev.1983) (same).

The unique set of circumstances here presented are covered neither by Rule 45 nor any specific proscription contained in the Rules of Federal Criminal Procedure. "In all cases not provided for by rule, the district judges ... may regulate their practice in any manner not inconsistent with these rules or those of the district in which they act." Fed.R.Crim.P. 57. "The firing point of the legal system is with the trial judge who is best situated to administer the law and protect the rights of all." Manypenny, 672 F.2d at 765 (quoting U.S. v. Richter, 488 F.2d 170, 174 9th Cir.1973). While mindful that Rule 57 should not be misused and that there are limits to a district court's inherent powers, this Court nonetheless believes it provident to address the motions to reconsider on the merits.

II. THE MERITS OF THE McNALLY ISSUES

A. Motion to Dismiss the Indictment

"An indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a 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." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); United States v. Fusaro, 708 F.2d 17, 23 (1st Cir. 1983), cert. denied, 464 U.S. 1007, 104 S.Ct. 524, 78 L.Ed.2d 708 (1983). When the counts in an indictment track the statutory language with specificity and the language sets forth all the elements necessary to constitute the offense, the Hamling test is satisfied. Fusaro, 708 F.2d at 23; United States v. Gordon, 780 F.2d 1165, 1171 (5th Cir.1986). The indictment here tracks the language of 18 U.S.C. § 371, the conspiracy statute, and the language of 18 U.S.C. § 1962(c), the racketeering statute. All the conspiracy counts, i.e., Counts I, III, V-VII, and the racketeering count, Count XI, also charged the material elements of the mail fraud statute, the substantive crime which was the subject of the conspiracy and racketeering counts. Under the mail fraud statute,⁵ 18 U.S.C. § 1341, the material elements are (1) use of the mails, (2) for the purpose of executing, (3) a scheme or artifice to defraud. Gordon, 780 F.2d at 1170. Each of the conspiracy counts, as well as the RICO count, charged that the defendants conspired to devise and participate in a scheme and artifice to defraud the Commonwealth and caused the United States mails to be used in executing their scheme. See, e.g., Indictment, Count I, ¶¶ 8, 9, 22(gg); Count III, ¶¶ 4, 7(e)(i); Count XI, ¶ 9. The defendants, however, argue that even if the indictment was heretofor sufficient it fails to withstand scrutiny after the Supreme Court's decision in McNally v. United States, ___ U.S. ___, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987).⁶

In McNally, the Supreme Court interpreted the mail fraud statute as "limited in scope to the protection of property rights." Id., ___ U.S. at ___, 107 S.Ct. at 2881. For the purposes of that action, an alleged failure to disclose a financial interest to other persons in...