U.S. v. Calhelha

• Citation: 456 F.Supp.2d 350
• Decision Date: 11 October 2006
• Docket Number: No. 3:06CR12 (JBA).,3:06CR12 (JBA).
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Jose CALHELHA, et al.

Page 350

456 F.Supp.2d 350

UNITED STATES of America v. Jose CALHELHA, et al.

No. 3:06CR12 (JBA).

United States District Court, D. Connecticut.

October 11, 2006.

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William F. Dow, III, Jacobs, Grudberg, Belt, Dow & Katz, P.C., New Haven, CT, for Jose Calhelha.

Alex V. Hernandez, Krishna R. Patel, U.S. Attorney's Office, Bridgeport, CT, Kevin J. O'Connor, U.S. Attorney's Office, New Haven, CT, for United States of America.

RULING ON PENDING MOTIONS [DOCS.] ## 50, 52, 551

ARTERTON, District Judge.

Defendants Jose Calhelha and Diana Calhelha, along with codefendant Antonio Fernandes, are charged with various violations of the Immigration and Nationality Act relating to alleged activities involving illegal aliens including the illegal encouragement, harbor, and transport of aliens into and within the United States for the purpose of, inter alia, obtaining the service of these aliens at the Calhelhas' Dunkin' Donuts stores in Connecticut. Specifically, the Superseding Indictment ("Indictment") [Doc. # 48] charges all defendants with conspiracy to encourage, harbor, and transport aliens illegally into the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(v) (Count 1) and transport of aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and 18 U.S.C. § 2 (Count 5). Defendant Jose Calhelha is also charged with encouraging aliens to enter the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and 18 U.S.C. § 2 (Count 2), bringing aliens into the United States for commercial advantage or private financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2 (Count 3), harboring aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and 18 U.S.C. § 2 (Count 4), fraud in connection with false identification documents in violation of 18 U.S.C. § 1028(a)(2) and 18 U.S.C. § 2 (Count 6), and hiring of aliens in violation of 8 U.S.C. § 1324a(a)(1)(A). Defendant Fernandes is also charged with fraud in connection with false identification documents in violation of 18 U.S.C. § 1028(a)(2) and 18 U.S.C. § 2 (Count 6).

Defendants Jose and Diana Calhelha now move to dismiss the Superseding Indictment and for access to the grand jury transcripts and/or for in camera review, see Mot. to Dismiss [Doc. # 55], for a bill of particulars, see Mot. for Particulars [Doc. # 52], and for discovery, see Mot. for Discovery [Doc. # 50]. For the reasons that follow, the motions to dismiss and for discovery will be denied and the motion seeking a bill of particulars will be granted in part and denied in part.

I. Facts Alleged in Indictment

The Indictment claims that Jose and Diana Calhelha and Antonio Fernandes conspired to encourage, harbor, and transport aliens illegally into the United States by alleging the following facts. Jose Calhelha owned and operated 10 Dunkin' Donuts stores in Connecticut between 2002 and 2005 and Diana Calhelha had an ownership interest in at least one of those stores. Indictment ¶¶ 4-5. Beginning in 2002, Jose Calhelha "devised a plan to recruit aliens from Portugal who would travel to the United States to be employed at his Dunkin' Donuts stores. All of the aliens were to be brought into the United States for commercial advantage, private financial gain, and in violation of the immigration laws of the United States." Id. ¶ 6.

According to the Indictment, Jose Calhelha "recruited aliens to illegally work in the United States by, among other methods, advertising in a Portugese newspaper for employees for his Dunkin' Donuts stores;" "defendants transported aliens from Newark International Airport to Connecticut and within Connecticut so that these aliens could work at the various Dunkin' Donuts stores;" "Jose Calhelha employed the aliens at the various Dunkin' Donuts stores knowing that they did not have authorization to work in the United States;" "Jose Calhelha initially paid some of the aliens in cash. For a period of time he also paid aliens by checks made payable to fraudulent identities on the checks;" "Jose Calhelha sold fraudulent identity documents to aliens recruited and employed to manage his stores and later paid them with checks payable in the names appearing on the fraudulent United States identity documents;" "Antonio Fernandes sold fraudulent identity documents to at least one alien recruited from Portugal;" "Diana Calhelha and Antonio Fernandes during various time periods would oversee the management of some or all of the stores knowing that some of the managers and employees were undocumented aliens;" and "Diana Calhelha directed the aliens as to where they would work, transported them to their job sites and directed them as to what job functions they would perform on particular days." Id. ¶¶ 20(a)(h).

Fleshing out the overt act allegations, the Indictment also states that, in addition to placing an advertisement in at least one Portugese newspaper seeking individuals to work in his Dunkin' Donuts stores, Jose Calhelha also "met with aliens in Portugal knowing that they did not have employment authorization to work in the United States and offered them positions in his Dunkin' Donuts stores. During these meetings in Portugal, Jose Calhelha made promises to them about their position, salary, compensation package, and immigration status. Diana Calhelha was present during at least one of these meetings. During these meetings, Jose Calhelha directed them to purchase airline tickets for travel from Portugal to the United States and reimbursed them for the airfare." Id. ¶¶ 7-8. The Indictment also alleges exploitation of the aliens and physical assault of two of the aliens by defendant Fernandes, "creating an environment of intimidation and harm." Id. ¶ 20(i). The Indictment further alleges that "[d]uring the period of the conspiracy it appears that more than fifty percent (50%) of the individuals employed by [Jose Calhelha] at his various Dunkin' Donuts Stores were aliens who were utilizing social security numbers that were invalid or did not match the individual." Id. ¶ 11. The Indictment claims that Jose and Diana Calhelha "knowingly completed, caused to be completed, and maintained fraudulent 1-9 employment forms for the aliens" and that "Jose Calhelha knowingly filed and caused to be filed W-2 and W-3 tax forms with the Internal Revenue Service containing false identity information." Id. ¶¶ 12-13.

II. Motion to Dismiss or for In Camera Review

A. Standard

Upon a motion to dismiss in a criminal case, the allegations in the indictment must be accepted as true. See United States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir.1998). "The indictment . . . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c)(1). "[A]n 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, 41 L.Ed.2d 590 (1974) (citations omitted); accord Alfonso, 143 F.3d at 776. "It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly ... set forth all the elements necessary to constitute the offence intended to be punished." Hamling, 418 U.S. at 117, 94 S.Ct. 2887 (internal quotations omitted). The indictment "must descend to particulars," however, if "the definition of an offense . . . includes generic terms." United States v. Cruikshank, 92 U.S. 542, 558, 2 Otto 542, 23 L.Ed. 588 (1875) (internal citation omitted); accord United States v. Pirro, 212 F.3d 86, 92-93 (2d Cir.2000).

In the absence of a full proffer of the Government's evidence, "the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment." . Alfonso, 143 F.3d at 776-77 (reversing dismissal of an indictment when the district court "looked beyond the face of the indictment and drew inferences as to the proof that would be introduced by the government at trial" to satisfy an element of the charge); accord Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (If "valid on its face," a grand jury indictment "is enough to call for trial of the charge on the merits.") (citations and footnote omitted).

B. Discussion

Defendants Jose and Diana Calhelha move to `dismiss the Superseding Indictment, claiming "it fails to allege all elements of the alleged charges and fails to state material facts constituting elements of those charges." Mot. to Dismiss [Doc. # 55] at 1. "Alternatively, defendants move for access to grand jury transcripts and/or for in camera review of those transcripts, pursuant to Rule 6(e)(3)(E)(ii) of the Federal Rules of Criminal Procedure, because defendants contend that the grand jury was not presented with sufficient information to enable it to have found probable cause that they each committed each element of the offenses set forth in the Superseding Indictment." Id. at 1-2. The Court will address defendants' arguments specific to each count in turn.

Count 3

Count 3 of the Indictment, as noted above, charges "Bringing Aliens into the United States" in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2. 8 U.S.C. § 1324(a)(2)(B)(ii) provides:

Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien shall, for each alien in respect to whom a violation of this paragraph occurs—. . . in...