U.S. v. Blackwell
| Decision Date | 21 January 1997 |
| Docket Number | Criminal No. 95-671 (AJL). |
| Citation | 954 F.Supp. 944 |
| Parties | UNITED STATES of America, Plaintiff, v. Dorothy BLACKWELL, a/k/a Dorothy Richardson Blackwell, a/k/a Dorothy Blackwell McNeil, a/k/a Dorothy Richardson and Charles McNeil, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Faith S. Hochberg, United States Attorney, John M. Fietkiewicz, Asst. U.S. Atty., Renee M. Bumb, Asst. U.S. Atty., Office of the United States Attorney, Newark, NJ, for plaintiff.
Peter V. Ryan, West Orange, NJ, for defendant Dorothy Blackwell.
Michael N. Pedicini, Morristown, NJ, for defendant Charles McNeil.
The Grand Jury (the "Grand Jury") returned a fifty-three count indictment (the "Indictment") on 6 December 1996 against defendants Dorothy Blackwell ("Blackwell") and Charles McNeil ("McNeil") (collectively, the "Defendants"), charging embezzlement, 18 U.S.C. § 656, fifty-one counts of money laundering, 18 U.S.C. § 1956(a)(1)(B)(i) ("Section 1956(a)(1)(B)(i)") and conspiracy to commit money laundering, 18 U.S.C. § 1956(h) ("Section 1956(h)"). The Grand Jury filed a superseding indictment (the "Superseding Indictment") on 22 May 1996 and a second superseding indictment (the "Second Superseding Indictment") on 29 May 1996. The differences among these indictments are indicated below.1
This opinion addresses the pretrial motions filed by Blackwell2 on 8 July 1996 to dismiss Count Two of the Second Superseding Indictment ("Count Two"), pursuant to Federal Rule of Criminal Procedure 12 ("Rule 12") (the "Motion to Dismiss"),3 and for disclosure of grand jury transcripts pursuant to Federal Rules of Criminal Procedure 6(e)(3)(C)(ii) ("Rule 6(e)(3)(C)(ii)") (the "Disclosure Motion").
This opinion also addresses the pretrial motion filed by McNeil4 on 22 March 1996 seeking (1) disclosure of material pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ("Brady"); (2) disclosure of material pursuant to Rule 404(b) of the Federal Rules of Evidence ("Rule 404(b)"); (3) early disclosure of information discoverable pursuant to the Jencks Act, 18 U.S.C. § 3500 (the "Jencks Act"); and (4) an order pursuant to Rule 104(a) of the Federal Rules of Evidence barring the introduction of co-conspirators' statements under Rule 801(d)(2)(E) of the Federal Rules of Evidence ("Rule 801(d)(2)(E)") and an in limine hearing on admissibility of co-conspirators statement (the "Omnibus Motion").5
This opinion further addresses four motions filed by the Government shortly before trial. These included: a motion to allow the use of demonstrative charts and summary witnesses at trial (the "Demonstrative Charts and Summary Witnesses Motion"); a motion to allow the introduction of an audit (the "Audit") of the National Westminster Bank, pursuant to Rule 803(6) of the Federal Rules of Evidence ("Rule 803(6)") (the "Rule 803(6) Motion"); a motion to allow the introduction of pre-marked exhibits (the "Pre-Marked Exhibit Motion"); and a motion concerning judicial notice (the "Judicial Notice Motion").6
Finally, this opinion addresses Blackwell's sentencing hearing (the "Sentencing Hearing"), held on 5 December 1996. At the Sentencing Hearing, objections to the Department of Probation's presentence investigation report (the "Presentence Investigation Report") were addressed.
The following facts are taken from the Second Superseding Indictment. During all times relevant to the Second Superseding Indictment, Blackwell was employed as an operations clerk in the Asset-Based Lending Department at the branch office of the National Westminister Bank of New Jersey ("NatWest") located in the Cherry Hill, New Jersey (the "NatWest Cherry Hill Branch"). Second Superseding Indictment, ¶ 2 at 1. The job responsibilities for Blackwell included accepting deposits from "asset-based lending customers" of the bank. Id., ¶ 4 at 2. At the NatWest Cherry Hill Branch, customers gave their deposits, in the form of either cash or checks, to Blackwell who was "required to initial the deposit ticket to acknowledge receipt of the funds, return a copy of the initialed deposit ticket to the customer, and credit the customer's account." Id.
Between January 1989 and October 1990, Eastern Music Systems Corporation ("Eastern Music"), one of the NatWest's asset-based lending customers, made deposits consisting of both cash and checks with NatWest at the NatWest Cherry Hill Branch. Second Superseding Indictment, ¶¶ 5-6 at 2. During this period, Blackwell "failed to deposit at least approximately $470,000.00" in cash delivered by Eastern Music to NatWest (the "Embezzled Money"). Id.
McNeil had a personal relationship with Blackwell. Second Superseding Indictment, ¶ 2 at 4. During the times relevant to the Second Superseding Indictment, McNeil maintained checking accounts at the NatWest Cherry Hill Branch (the "McNeil NatWest Checking Account") and First Fidelity Bank, N.A., Jersey City, New Jersey (the "McNeil First Fidelity Checking Account"), and a savings account at Hudson City Savings Bank ("Hudson City"), Cherry Hill, New Jersey (the "McNeil Hudson City Savings Account") (collectively the "McNeil Accounts"). Id., ¶¶ 2-4. On or about 10 January 1990, Blackwell was given Power of Attorney with respect to the McNeil Hudson City Savings Account. Id., ¶ 4.
On or about 18 January 1990, McNeil obtained a loan from Hudson City of approximately $24,750.00 (the "Hudson City Loan"). Second Superseding Indictment, ¶ 5 at 5. The Hudson City Loan was secured by the McNeil Hudson City Savings Account. Id. "Between in or about September 1989 through at least as late as August 1991," McNeil rented a safe deposit box at Hudson City (the "Hudson City Safe Deposit Box"). Id., ¶ 6. In or about January 1990, Blackwell was appointed as McNeil's "deputy" with respect to the Hudson City Safe Deposit Box; she was thereby authorized access to the Hudson City Safe Deposit Box. Id.
The Second Superseding Indictment contained two counts. Count One ("Count One") charged Blackwell, "[b]etween in or about January 1989 and continuing through in or about October 1990, ... knowingly and wilfully embezzled, purloined, and misapplied moneys and funds of [NatWest]" in violation of 18 U.S.C. § 656 ("Section 656"). Second Superseding Indictment, ¶ 7 at 3. Count one also charged Blackwell with aiding and abetting in violation of 18 U.S.C. § 2. Id. The applicable statute of limitations for a violation of Section 656 requires an "indictment be returned or the information [be] filed within 10 years after the commission of the offense." 18 U.S.C. § 3293.
Count Two charged Defendants with conspiracy to commit money laundering in violation of 18 U.S.C. § 371 ("Section 371") (the "Conspiracy"). Count Two specifically charged:
Between in or about January 1989 and continuing through at least as late as April 1992, [Defendants] knowingly and willfully conspired and agreed with each other to conduct and to attempt to conduct financial transactions, that is, the deposit and withdrawal of money to and from the McNeil Accounts and the payments on the [Hudson City Loan], which financial transactions involved the proceeds of specified unlawful activity, that is, the embezzlement of NatWest's funds, knowing that the property involved in the financial transactions represented the proceeds of some form of unlawful activity, and knowing that these financial transactions were designed in whole or in part to conceal and disguise the nature, location, source, ownership, and control of the proceeds of said specified unlawful activity[.]
Second Superseding Indictment, ¶ 7 at 5-6.
The Second Superseding Indictment alleged the object of the Conspiracy was to use the Embezzled Money in a manner designed to conceal Blackwell's embezzlement of the money from NatWest. Second Superseding Indictment, ¶ 8 at 6. Defendants were charged with a series of acts taken in furtherance of the Conspiracy: (1) Defendants deposited cash into and later withdrew money from the McNeil Accounts, id., ¶¶ 9-11 at 6-7; (2) McNeil paid off the Hudson City Loan, within five months of obtaining it, "by making eight cash payments totaling $24,750.00," id., ¶ 12 at 7; and (3) "in or about September 1989 and in or about August 1991," Defendants entered the Hudson City Safe Deposit Box "on at least approximately forty different days." Id., ¶ 13. The Second Superseding Indictment alleged all of the transactions described above "involved at least some of the embezzled NatWest money." Id., ¶ 14.
The Second Superseding Indictment charged Defendants with committing five overt acts (the "Overt Acts") in furtherance of the Conspiracy:
1. Between in or about January 1989 and in or about April 1991, [Defendants] made and caused to be made cash deposits into the McNeil NatWest Checking Account ("Overt Act One").
2. Between in or about October 1989 and at least as late as April 1992, [Defendants] made and caused to be made cash deposits into the McNeil First Fidelity Checking Account ("Overt Act Two").
3. On or about January 18, 1990, [McNeil] obtained the Hudson City Loan ("Overt Act Three").
4. On or about August 23, 1991, [Defendants] entered the Hudson City Safe Deposit Box ("Overt Act Four").
5. On or about August 23, 1991, [Defendants] surrendered the Hudson City Safe Deposit Box ("Overt Act Five").
Second Superseding Indictment at 8-9 (emphasis added).
As indicated, the Indictment charged Blackwell with embezzlement and Defendants with fifty-one counts of money laundering in violation of Section 1956(a)(1)(B)(i) and one count of conspiracy to commit money laundering in violation of Section 1956(h). Count Fifty-Three of the Indictment...
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