U.S. v. Bidloff

• Citation: 82 F.Supp.2d 86
• Decision Date: 24 January 2000
• Docket Number: No. 97-CR-233A.,97-CR-233A.
• Parties: UNITED STATES of America v. Howard BIDLOFF, Kevin Bregman, and Russell Bronson, Defendants.
• Court: U.S. District Court — Western District of New York

82 F.Supp.2d 86

UNITED STATES of America v. Howard BIDLOFF, Kevin Bregman, and Russell Bronson, Defendants.

No. 97-CR-233A.

United States District Court, W.D. New York.

January 24, 2000.

COPYRIGHT MATERIAL OMITTED

Denise E. O'Donnell, United States Attorney, Martin J. Littlefield, Assistant United States Attorney, of counsel, Buffalo, NY, for United States.

LoTempio & Brown, Patrick J. Brown, of counsel, Buffalo, NY, for defendant Bidloff.

E. Carey Cantwell, Buffalo, NY, for defendant Bregman.

Angelo Musitano, Niagara Falls, NY, for defendant Bronson.

ORDER

ARCARA, District Judge.

This case was referred to Magistrate Judge Leslie G. Foschio pursuant to 28 U.S.C. § 636(b)(1), on March 30, 1998. Defendants Howard Bidloff, Kevin Bregman and Russell Bronson filed motions to dismiss the Indictment and to suppress the testimony of cooperating witnesses. Defendants Bidloff, Bregman and Bronson also filed motions for discovery and a bill of particulars, and the government filed a motion for reciprocal discovery. On May 12, 1999, Magistrate Judge Foschio filed a Report and Recommendation recommending that defendants' motions to dismiss the Indictment and to suppress the testimony of cooperating witnesses be denied. On that same date, Magistrate Judge Foschio also filed a Decision and Order, granting in part and denying in part defendants' motions for discovery, denying defendants' motions for a bill of particulars and making various other pretrial rulings.

Defendant Bronson objected to the Magistrate Judge's recommendation that the Court deny his motion to dismiss the Indictment. Additionally, defendants Bidloff and Bronson both objected to the Decision and Order which denied their motions for a bill of particulars and required that they provide reciprocal discovery within 60 days prior to trial.¹ Oral argument on the objections was held on December 17, 1999.

A. Report and Recommendation

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation. Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, defendants' motions to dismiss the Indictment are denied.

B. Decision and Order

With respect to defendants' objections to the Decision and Order, pursuant to 28 U.S.C. § 636(b)(1)(A), the district court "may reconsider any pretrial matter under this subparagraph (A), where it has been shown that the magistrate's order is clearly erroneous or contrary to law." Id. The Court has carefully reviewed the submissions of the parties and Magistrate Judge Foschio's Order, and having considered oral argument from counsel, the Court finds that the Order was neither clearly erroneous nor contrary to law. The Magistrate Judge did not err in denying defendants' motions for a bill of particulars. In any event, as for defendants' requests for disclosure of any "unnamed" co-conspirators, the government has represented that all witnesses who will testify at trial have been identified to the defendants. Accordingly, defendants' objections to Magistrate Judge Foschio's May 12, 1999 Decision and Order are denied.²

The parties are ordered to appear before this Court on January 26, 2000 at 9:00 a.m. for a meeting to set a trial date.

IT IS SO ORDERED.

REPORT and RECOMMENDATION

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This matter was referred to the undersigned for all pre-trial matters by Honorable Richard J. Arcara by order dated March 30, 1998. It is presently before the court on Defendants' motion to dismiss the Indictment and to suppress testimony of cooperating witnesses.

BACKGROUND and FACTS

These Defendants were charged, together with 21 co-defendants, with conspiracy to commit wire and mail fraud in violation of 18 U.S.C. § 371 and §§ 1341, 1343. Specifically, Defendants are alleged to have engaged in the fraudulent sales of investments in germanium and indium,¹ metals used in various industrial applications.

The one count, 154 page, Indictment alleges fraudulent sales of germanium and indium at inflated prices through a series of telemarketing companies using mail drops in the United States, Canada, the Bahamas, and Dutch Antilles during the period 1990 to 1993. Indictment, Introduction; ¶¶ 1-5; 16. Defendant Bidloff is alleged to be an owner, with other co-defendants, of two of the sales companies used in the scheme and as a principal director of the scheme. Id., ¶ 8. Defendant Bronson is alleged to have operated another sales company used in the scheme. Id., ¶ 14. Defendants Bronson and Bregman are alleged to have acted as "openers", i.e., salesmen who make an initial sale to a customer on behalf of the telemarketing companies using false and fraudulent pretenses and misrepresentations. Id., ¶¶ 12; 13. Among the falsehoods used by Defendants, as found by the Grand Jury, were representations that there was an active speculators' market for the metals, the metals had a value much greater than in fact was case, prices for the metals were expected to enjoy imminent and significant increases because of technological advances and government stockpiling, the sales companies would buy back the customer's purchase at the customer's option, and that the salesman was not taking any commission on the initial sale. Id., ¶ 16(A), (B), (C), (D), (E), (F). "Loaders" were experienced telemarketers who contacted a customer after the initial sale by an "opener" for the purpose of persuading the customer to increase his "investment" through additional misrepresentations and high-pressure sales tactics. Id., ¶ 18. The false pretenses and misrepresentations were made from locations in Toronto, Ontario; Miami, Florida; Saba, Dutch Antilles; and Nassau, The Bahamas, and other locations within the United States. Indictment, ¶ 31. The Indictment alleges that the scheme successfully defrauded numerous persons within the United States of more than $10 million. Id., ¶ 32.

The Indictment also alleges 1,376 overt acts in furtherance of the scheme. As relevant, Overt Act # 3, Indictment at 15, states that Defendant Bidloff met with other co-conspirators during March, 1993 to discuss a partnership arrangement with one of the sales companies operated as part of the scheme. Overt Acts 588 - 618, Indictment at 63-65, detail the names of persons to whom Defendant Bregman made fraudulent sales, the dates of such sales, and the amounts of such sales along with references to a Document Control Number which in turns refers to a DCN ("Document Control Number") Discovery List. A copy of the DCN Discovery List ("List") was provided to each Defendant by the Government as part of the Government's voluntary pretrial discovery obligation. Exhibit A, Government's Response to Defendants' Omnibus Motions, filed January 19, 1999 (Doc. # 99) ("Government's Response"). Using a Bates stamp numbering system, the List describes the evidence available to the Government to establish each sale attributed to a particular Defendant. For example, in the case of Defendant Bregman, the DCN No. 402 associated with his name states that the evidence consists of a witness and card files of the "target" company. List at 15. The Indictment also alleges that Bregman was an opener for the Columbia Metals Group of Toronto. Indictment ¶ 13, one of the companies alleged to be telemarketing companies involved in the scheme. Indictment, ¶ 1(a).

Overt Acts 619 - 685 detail fraudulent sales attributed, including names of customers and amounts of sales, to Defendant Bronson during the period July 21, 1992 through April 29, 1993 and relate each sale to evidence described under DCN No. 401. DCN No. 401 refers to card files of the "target" company. List at 15. The Indictment alleges that Bronson served as an opener for the Eurocan Metals Group of Toronto, one of the companies involved in the scheme. Indictment, ¶¶ 1(a); 12. The Government stated it has provided "open discovery of all the evidence," which Defendants do not dispute. Government's Response at 6. The DCN details similar information for each Defendant alleged to have participated in the scheme as an "opener" or as a "loader". In a Decision & Order filed contemporaneously with this Report and Recommendation, the court denied, in part and granted, in part Defendants' motions for discovery and a Bill of Particulars.

Oral argument was conducted February 25, 1999. Based on the following, Defendants' motions should be DENIED.

DISCUSSION

1. Motion to Dismiss.

Defendants contend the Indictment is defective as it violates Fed.R.Crim.P. 7(c)(1). Specifically, Defendants argue the Indictment fails to state the specific false pretenses made by each Defendant and instead asserts only statutory language in conclusory form. Bronson Motion, ¶ 8. Defendants assert that such specificity is required in order to comply with Rule 7(c)(1) where mail fraud is charged. Id., ¶¶ 9, 10.

Fed.R.Crim.P. 7(c)(1) requires an indictment be "a plain, concise and definite written statement of the essential facts constituting the offense charged." An indictment is constitutionally sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and enables him to enter a plea without fear of double jeopardy. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Hernandez, 980 F.2d 868, 871 (2d Cir. 1992). Further, a federal indictment need only track the language of the statute and, if necessary, to appraise the defendant of the nature of the accusation against him, and state the time and place of the alleged offense in approximate terms. See Russell v. United States, 369 U.S. 749, 765, ...