U.S. v. Delle Donna

• Decision Date: 14 March 2008
• Docket Number: Criminal No. 07-784 (HAA).
• Citation: 552 F.Supp.2d 475
• Parties: UNITED STATES of America v. David DELLE DONNA and Anna Delle Donna, Defendants.
• Court: U.S. District Court — District of New Jersey

552 F.Supp.2d 475

UNITED STATES of America v. David DELLE DONNA and Anna Delle Donna, Defendants.

Criminal No. 07-784 (HAA).

United States District Court, D. New Jersey.

March 14, 2008.

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Christopher J. Christie, Esq., United States Attorney, Richard E. Constable, III, Esq., Thomas R. Calcagni, Esq., Assistant United States Attorneys, United States Attorney's Office, Newark, NJ, for United States of America.

Ralph J. Lamparello, Esq., Chasan Leyner & Lamparello, Secaucus, NJ, Lawrence S. Lustberg, Esq., Kevin McNulty, Esq., Gibbons P.C., Newark, NJ, for Defendant David Delle Donna.

Brian J. Neary, Esq., Law Offices of Brian J. Neary, Hackensack, NJ, for Defendant Anna Delle Donna.

OPINION AND ORDER ON PRETRIAL MOTIONS

ACKERMAN, Senior District Judge:

This matter comes before the Court on the joint pretrial motions (Doc. Nos. 13 and 14) filed by Defendants David Delle Donna and Anna Delle Donna, and the Government's motion for reciprocal discovery (Doc. No. 18). Defendants have been charged in a five-count Superceding Indictment ("Indictment") with: conspiracy to commit mail fraud (Count One), in violation of 18 U.S.C. § 1349; substantive mail fraud (Count Two), in violation of 18 U.S.C. §§ 1341, 1346, and 18 U.S.C. § 2; conspiracy to commit extortion under color of official right (Count Three), in violation of the Hobbs Act, 18 U.S.C. § 1951(a); and two counts of filing materially false federal income tax returns (Counts Four and Five), in violation of 26 U.S.C § 7206(1). In contemplation of the upcoming trial in this matter, Defendants have filed four pretrial motions. Defendants move for:

(1) Dismissal of Counts One and Two (mail fraud conspiracy and mail fraud) of the Indictment for failure to state a legally cognizable offense, pursuant to Federal Rule of Criminal Procedure 12(b)(3);

(2) Severance of Counts Four and Five (false tax returns) from Counts One, Two, and Three (mail fraud and Hobbs Act), pursuant to Federal Rules of Criminal Procedure 8 and 14;

(3) A bill of particulars, pursuant to Federal Rule of Criminal Procedure 7(f); and

(4) Disclosure of Federal Rule of Evidence 404(b) material 30 days before trial.

The Government has opposed Defendants' motions, and has cross-moved for reciprocal discovery pursuant to Federal Rule of Criminal Procedure 16(b)(1)(A). This Court held oral argument on these motions on March 12, 2008.

For the following reasons, Defendants' motions will be DENIED, and the Government's motion for reciprocal discovery will be GRANTED.

Background

The Indictment in this matter was returned by a Grand Jury on December 13, 2007. The Indictment charges five counts against Defendant David Delle Donna, the Mayor of Guttenberg, New Jersey, and his wife Anna Delle Donna, a former member of the Guttenberg Planning Board. Defendants pled not guilty to all counts of the Indictment on January 3, 2008.¹

David Delle Donna, a member of the Guttenberg Town Council ("Town Council"), began serving as Mayor of Guttenberg on January 1, 2002. His wife Anna was appointed to the Guttenberg Planning Board at the same time that David began his service as Mayor. In their capacities as town officials, the Delle Donnas were in the position to influence official actions taken by the town. According to the Indictment, "defendant DAVID DELLE DONNA operated and caused to be operated certain campaign committees (the `Committees')" formed to raise funds on behalf of the election campaigns of the Mayor and his affiliated slate of candidates for Town Council, and to defray the expenses of these campaigns. (Indictment, Count One at ¶ 2.) In its response brief, the Government states that "the Delle Donnas" operated the Committees (Gov't Br. at 2), and that Anna Delle Donna served as the treasurer for at least one of the Committees (id., at 16, 17).

The Indictment recites relevant applicable New Jersey law regarding campaign contributions and campaign committee reporting requirements. The New Jersey Campaign Contributions and Expenditures Act, N.J. Stat. Ann. §§ 19:44A-1, et seq. (the "Campaign Act"), requires the treasurer of a candidate campaign committee to keep an accurate written record of all contributions. The Campaign Act also requires a candidate committee treasurer to report all contributions, and the names and addresses of contributors, to the New Jersey Election Law Enforcement Commission ("ELEC") on forms issued by the ELEC. Only aggregate contributions not exceeding $300 in 2005, or $400 in years prior to 2005, are exempt from reporting requirements. The Campaign Act bars the personal use of campaign contributions, and a recent amendment requires the reporting of any cash contribution, regardless of amount. In addition, the New Jersey Local Government Ethics Law, N.J. Stat. Ann. § 40A:9-22.1, et seq. (the "LGEL"), requires that all local government officials file an annual Financial Disclosure form with the New Jersey Department of Community Affairs, Local Government Services Division, Local Finance Board. This form must list all sources of income, earned or unearned, exceeding $2,000, as well as all gifts having an aggregate value exceeding $400 from a single source, as well as fees and honoraria exceeding $250 from a single source.

In the Indictment's most critical description of the obligations imposed by New Jersey law, it refers to the Campaign Act and its implementing regulations in stating:

The campaign treasurer and the candidate were under a duty to the campaign committee to, among other things, honestly and truthfully account for the committee's receipts and to not use any of the committee's funds for any improper purpose or expenditure, pursuant to N.J. Stat. Ann. 19:44A-1 et seq., N.J.A.C. 19:25-1.1 et seq., and their common-law obligations as fiduciaries of the committee.

(Indictment, Count One at ¶ 4.) As will be seen, this statement forms the basis for the Government's theory of mail fraud based on the deprivation of the right of honest services.

I. Conspiracy to Commit Mail Fraud (Count One) and Mail Fraud (Count Two)

The Delle Donnas held two major campaign fundraising events each year (the "Campaign Events") during 2001-2005, the period covered by the Indictment's mail fraud and extortion charges. During the years that David Delle Donna was on the ballot as a candidate for Mayor, proceeds from tickets sold for Campaign Events were billed as contributions to the joint candidates' committee of David Delle Donna and his affiliated Town Council candidates. In years without a mayoral election, ticket proceeds for Campaign Events were billed as contributions to the joint candidates'" committee of Town Council candidates affiliated with the Mayor.

"1-1," as identified in the Indictment, was a Guttenberg property owner and bar operator. From 2001 to 2005, I-1 paid between approximately $2,000 and $6,000 in cash for tickets to various Campaign Events. 1-1 also purchased tickets by check during this time. "1-2," a real estate developer identified in the Indictment, hosted a private fundraiser in 2003 or 2004 for David Delle Donna's mayoral campaign. Among the funds collected by 1-2 at these events was between approximately $250 and $500 in cash, which 1-2 subsequently turned over to David Delle Donna.

In connection with these contributions, the Indictment charges the Delle Donnas with mail fraud and conspiracy to commit mail fraud. It alleges that the Delle Donnas knowingly did, and conspired to, "us[e] the United States mails for the purpose of executing a scheme and artifice to defraud and obtain money and property from the Committees and their contributors and to deprive the Committees of their right to the honest services of their respective treasurers and candidate DAVID DELLE DONNA, by means of materially false and fraudulent pretenses, representations, and promises." (Indictment, Count One at ¶ 8 (conspiracy); see also Indictment, Count Two at ¶ 2 (substantive mail fraud).) According to the Indictment, the object of the Defendants' fraudulent scheme was to "divert cash campaign contributions and ticket proceeds from the Committees and to conceal material information regarding this conduct." (Indictment, Count One at ¶ 9.)

In support of the conspiracy, the Indictment alleges that: (1) cash contributions from I-1, I-2, and others were not deposited in the appropriate Committee account but were instead allegedly diverted by Defendants to their personal use; (2) Defendants allegedly conspired to prepare, sign, and use the mails to file ELEC forms that intentionally failed to disclose the cash contributions despite being certified by Committee treasurers to be truthful and accurate; and (3) Defendants conspired to prepare, sign, and use the mails to file, pursuant to the LGEL, false Financial Disclosure forms that failed to disclose the cash contributions.

The Indictment relies on the allegations of Count One in charging substantive mail fraud in Count Two, predicated on the Defendants' use of the mails to file a March 3, 2003 LGEL Financial Disclosure Statement for 2002 with the New Jersey Department of Community Affairs. The LGEL form "intentionally failed to disclose approximately $5,000 in cash campaign contributions that [Defendants] had diverted." (Indictment, Count Two at ¶ 3.)

II. Conspiracy to Commit Extortion (Count Three)

Count Three of the Indictment charges Defendants with "knowingly and willfully conspir[ing] and agree[ing] with each other and others to obstruct, delay, and affect interstate commerce by extortion under color of official right, by obtaining corrupt payments that were paid by I-1, with I-1's consent." (Indictment, Count Three at It 2.) According to the `Indictment, Defendants agreed to obtain money from 1-1 "with the intent to be influenced and rewarded for taking, attempting to take, and refraining from taking official action in their positions as Guttenberg officials." (ld., ...