U.S. v. Benjamin

Decision Date23 September 1999
Docket NumberNo. 97-CR-133E.,97-CR-133E.
Citation72 F.Supp.2d 161
PartiesThe UNITED STATES of America v. Donald BENJAMIN, Jr., a/k/a Ducky, Neal Benjamin, Jeffrey Evans, Ronald Wilson, a/k/a Big Ron, Edward Ingenito, a/k/a Buster, Joseph Scicchitano, a/k/a J.D., Carlos Wiggins, a/k/a Los, Jeff Bellamy, John Bryant, a/k/a J.B., Sherry Marie Boula, Omar T. Ferguson, Jamie Friel, James V. Hamilton, a/k/a Black, Gary Hanson, a/k/a Butch, Thomas Johnson, a/k/a T, Amos Keith, Kim Kohl, Earl Thomas, a/k/a Slim, Lorraine Benjamin, Scott Crandall, Susan Fisher, Jeff Gayton, Greg Hirliman, Jimmy Leon a/k/a Jimmy Dale, Kevin Martinelli, Lamont Parks, Terri Pearman, Michael Rhodes a/k/a Micah, Demetrious Sayles, a/k/a Meechie.
CourtU.S. District Court — Western District of New York

Denise E. O'Donnell, United States Attorney, Thomas S. Duszkiewicz, Assistant United States Attorney, of counsel, Buffalo, NY, for the Government.

Terence M. Connors, Vincent E. Doyle, III, Buffalo, NY, for Donald Benjamin.

John J. Lavin, Buffalo, NY, for Neal Benjamin.

William G. Clauss, Federal Public Defender, Marianne Mariano, Assistant Federal Public Defender, of counsel, Buffalo, NY, for Wilson.

James P. Harrington, Buffalo, NY, for Edward Ingenito.

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP, Paul J. Cambria, Jr., Herbert L. Greenman, of Counsel, Buffalo, NY, for Joseph Scicchitano.

Robert N. Convissar, Buffalo, NY, for Carlos Wiggins.

Horace A. Hutson, Buffalo, NY, for John Bryant.

John J. Molloy, West Seneca, NY, for Sherry Marie Boula.

Joel L. Daniels, Buffalo, NY, for Omar T. Ferguson.

Nathaniel L. Barone, II, Jamestown, NY, for Jamie Friel.

Terrence B. Newcomb, Buffalo, NY, for James V. Hamilton.

Robert M. Goldstein, Buffalo, NY, for Gary Hansen.

Thomas J. Eoannou, Buffalo, NY, for Amos Keith.

Gerald T. Walsh, Buffalo, NY, for Defendant Kim Kohl.

James P. Milbrand, Buffalo, NY, for David Sharpe.

MEMORANDUM and ORDER

ELFVIN, Senior District Judge.

The above individuals ("the defendants"), twenty-nine in all, are charged in and by a Superceding Indictment1 filed April 28, 1998, with having conspired to possess particular controlled substances with the intention to distribute the same and with distributing such. Further, certain of the defendants are charged with — non-conspiratorially — distributing particular controlled substances and one of the defendants is charged with having unlawfully engaged in a continuing criminal enterprise.

Certain pretrial motions filed by or on behalf of fifteen of the defendants were referred to the Hon Leslie G. Foschio, a United States Magistrate Judge of this Court, for his consideration and recommended dispositions. Judge Foschio's Decision and Order ("the R & R") was filed May 21, 1998. Thereafter and timely, certain of the defendants filed objections to the R & R, oppositions to such objections were served and filed. All of the same have been argued to the undersigned who has taken the same and the R & R into deliberative consideration.

The undersigned has given close attention to the premises advanced on behalf of each of such objecting defendants, has examined certain items which Judge Foschio had placed under seal and has considered all of the legal and factual arguments presented by such defendants.

Upon such due consideration, the May 31, 1998 Decision and Order of Judge Foschio is affirmed in all aspects.

Such objections are therefore and hereby ORDERED denied.

REPORT and RECOMMENDATION

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This matter was referred to the undersigned by the Hon. John T. Elfvin on July 9, 1997. The matter is presently before the court for a determination of pretrial motions from Defendants Donald Benjamin (Doc. # 119), filed December 12, 1997, Wilson (Doc. # 118), filed December 12, 1997, Ingenito (Doc. # 138), filed December 31, 1997, Scicchitano (Doc. # 120), filed December 15, 1997, Wiggins (Doc. # 94), filed November 14, 1997, Bryant (Doc. # 136), filed December 29, 1997, Boula (Doc. # 139), filed January 9, 1998, Ferguson (Doc. # 98), filed November 4, 1997, Friel (Docs. # 33 and 128), filed July 7, 1997 and December 16, 1997, respectively, Hanson (Doc. # 130), filed December 23, 1997, Johnson (Doc. # 90), filed September 23, 1997, Keith (Doc. # 104), filed November 24, 1997, Kohl (Doc. # 95), filed November 14, 1997, Sharpe (Doc. # 102), filed November 19, 1997, and Thomas (Doc. # 121), filed December 15, 1997.1,2

BACKGROUND and FACTS

Defendants were indicted in a twenty-three count indictment on June 24, 1997 charging violations of 21 U.S.C. § 841(a)(1), § 841(b)(1)(A), § 841(b)(1)(B), § 841(b)(1)(C), § 846, § 848, § 853(a), and 18 U.S.C. § 2. Specifically, Defendants are charged with conspiracy to possess with intent to distribute, and with the distribution, of 50 grams or more of crack cocaine, 5 kilograms or more of cocaine, and 50 kilograms or more of marijuana. Defendant Donald Benjamin is charged as the principal organizer of a continuing criminal enterprise. The individual defendants are also charged with offenses including the unlawful distribution of cocaine. Additionally, the Government is seeking the forfeiture of assets constituting the proceeds from controlled substance violations against Defendants Donald Benjamin, Wilson, Ingenito, Scicchitano.

Defendants have filed omnibus motions seeking, inter alia, to dismiss their respective charges on the grounds of facial insufficiency and double jeopardy, to suppress evidence as seized pursuant to search warrants issued without probable cause, suppression of the federal electronic communication intercept evidence and the statements obtained from the intercept, and for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The Government responded on January 9, 1998.

Oral argument was conducted on January 23, 1998. Copies of the in camera applications for the state search warrants at issue were delivered to the court on March 16 and March 25, 1998. On April 30, 1998, the court directed the Government to respond to Defendants Wilson, Friel and Kohl's requests for disclosure of the in camera testimony provided to obtain the state search warrants issued as to their respective premises. The response was filed May 7, 1998; replies were filed by Defendants Kohl and Wilson on May 13, 1998, as directed.

DISCUSSION
1. Dismissal of the Indictment

Defendants move to dismiss on various grounds, including insufficiency, double jeopardy, duplicity, and that the Indictment was based on improperly obtained evidence. The Government has opposed the motion on each of these grounds.

a. Sufficiency of the Indictment

Defendants claim that the Indictment fails to fairly apprise them of the conduct giving rise to the charged offenses, as required by Rule 7(c)(1) of the Federal Rules of Criminal Procedure and, as such, the Indictment does not meet constitutional notice requirements under the Sixth Amendment as to the essential facts of the offenses charged.3 Specifically, Defendants assert that the Indictment counts are so vague and indefinite that they fail to inform Defendants of the nature or cause of the accusations giving rise to their alleged criminal liability. Additionally, Defendant Kohl argues for dismissal on insufficiency grounds based on the Government's failure to respond to discovery requests. Kohl Memorandum of Law at 2.

An indictment is facially valid and sufficient if it contains the elements of the offense charged, fairly informs a defendant of the charges against which he must defend, and enables a defendant to plead an acquittal or a conviction in bar of further prosecution for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.), cert. denied, 504 U.S. 926, 112 S.Ct. 1982, 118 L.Ed.2d 580 (1992); United States v. Ferrara, 701 F.Supp. 39 (E.D.N.Y.1988). An indictment need only track the language of the statute and, if necessary to apprise the defendant of the nature of the accusation against him, state the time and place of the alleged offense in approximate terms. Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Covino, 837 F.2d 65, 69 (2d Cir.1988); United States v. Bagaric, 706 F.2d 42, 61 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); Ferrara, supra, at 44.

The form of an indictment is governed by Fed.R.Crim.P. 7(c)(1) which provides that "the indictment ... shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged." United States v. Macklin, 927 F.2d 1272, 1276 (2d Cir.), cert. denied, 502 U.S. 847, 112 S.Ct. 146, 116 L.Ed.2d 112 (1991). To satisfy this rule, "[t]he facts alleged must be adequate to permit a defendant to plead former jeopardy upon prosecution. The indictment must also be sufficiently specific to enable the defendant to prepare a defense." United States v. Carrier, 672 F.2d 300, 303 (2d Cir.), cert. denied, 457 U.S. 1139, 102 S.Ct. 2972, 73 L.Ed.2d 1359 (1982). As such, it is well settled that indictments which track the statutory language defining an offense are, as a general rule, sufficient under Rule 7(c) so long as application to a particular defendant is clear. United States v. Upton, 856 F.Supp. 727, 739 (E.D.N.Y.1994). Additionally, while a bill of particulars cannot cure a constitutionally defective indictment, particularization is appropriate when the indictment is challenged as insufficient to permit the preparation of an adequate defense. Upton, supra, at 740-41. It is well established that an indictment which complies with Rule 7(c) also satisfies the requirements of the Sixth Amendment. Russell, supra, at 763-64, 82 S.Ct. 1038; Upton, supra, at 738; United States v....

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