U.S. v. Elson

• Citation: 968 F.Supp. 900
• Decision Date: 16 June 1997
• Docket Number: No. 95 Cr. 179(JGK).,95 Cr. 179(JGK).
• Parties: UNITED STATES of America v. Monya ELSON, Defendant.
• Court: U.S. District Court — Southern District of New York

968 F.Supp. 900

UNITED STATES of America v. Monya ELSON, Defendant.

No. 95 Cr. 179(JGK).

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

June 16, 1997.

COPYRIGHT MATERIAL OMITTED

Mary Jo White, United States Attorney, Southern District of New York by Jeffrey M. Zimmerman Assistant United States Attorney, New York City, for Government.

James J. DiPietro, Joseph A. Gentile, Brooklyn, NY, for Defendant.

OPINION AND ORDER

KOELTL, District Judge:

In March, 1995, a Grand Jury in the Southern District of New York returned a three count Indictment against the defendant, Monya Elson. The first two counts of the Indictment charge Elson with conducting and participating in, and conspiring to conduct and participate in, the conduct of an enterprise through a pattern of racketeering activity, in violation of Title 18 of the United States Code, Sections 1962(c) and (d) ("RICO"). The pattern of racketeering activity alleged in the Indictment included three murders and two attempted murders. The third count of the Indictment charges Elson with participating in a Hobbs Act extortion, in violation of Title 18, United States Code, Sections 1951 and 1952.

Elson has now made an omnibus motion in regard to this Indictment. Elson first seeks to transfer his prosecution to the Eastern District of New York, or, alternatively, to transfer only the homicide allegations to that district. Elson also moves to dismiss the racketeering counts in the Indictment, alleging that those charges are legally insufficient. Elson's motion also seeks to suppress the fruits of various court-authorized wiretaps. Finally, Elson seeks to strike from the Indictment allegedly unnecessary, superfluous and inherently prejudicial verbiage.¹

II.

Elson moves to transfer this case, or at least those portions of the case containing the homicide allegations, to the Eastern District of New York.² "For the convenience of parties and witnesses, and in the interests of justice, the court upon motion of the defendant may transfer the proceeding as to that defendant or any one or more of the counts thereof to another district." Fed.R.Crim.P. 21(b). "The burden of setting forth facts sufficient to warrant transfer is, of course, on the moving party." United States v. Persico, 621 F.Supp. 842, 858 (S.D.N.Y.1985).

In deciding whether transfer is appropriate under Rule 21(b), courts generally consider the factors set forth in Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964). These factors include the location of the defendant, the location of possible witnesses, where the events at issue occurred, the location of relevant documents, the location of defense counsel, the relative accessibility of the place of trial, the expenses to be incurred by the parties if the transfer is denied, the docket condition of each district, and any other special factors. See United States v. Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir.1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991); United States v. Keuylian, 602 F.2d 1033, 1038 (2d Cir.1979); United States v. Spy Factory Inc., 951 F.Supp. 450, 455-56 (S.D.N.Y.1997). A Court should weigh all of these factors and determine whether the interests of justice would be better served by changing the trial venue. See Maldonado-Rivera, 922 F.2d at 966.

Elson argues that the Eastern District of New York is a more convenient forum than the Southern District of New York because all of the actual murders and one of the attempted murders occurred in the Eastern District, the investigation of those crimes was conducted by detectives from a precinct in the Eastern District, and the defendant, the alleged victims, and the civilian witnesses all reside in the Eastern District. In response, the Government argues that the defendant is currently incarcerated in this district and that most of the relevant documents are already in the Government's possession, and are stored in this district. The Government also argues that the Eastern District cannot be considered more convenient than the Southern District because the two districts are adjacent, and the courthouses are located only a few miles apart.

The Government is correct that given the proximity of the two courthouses, the defendant has failed to show that the factors bearing on convenience indicate that the interests of justice would be served by transfer. As the court stated in United States v. Persico, 621 F.Supp. 842 (S.D.N.Y.1985)

When a racketeering case is properly venued in either of two adjacent districts ... it is difficult to imagine convenience interests that would compel transfer of the case. As between the two districts the situs of prosecution is generally a decision more properly within the province of the Attorney General than a federal district judge.

Since the prosecution has already been brought here, the grand jury which heard evidence is located here, the government's attorneys are located here, and a large number of documents and other evidence accumulated by the government to support its charges are located here, it would be imprudent to transfer the case to [The Eastern District]. Id. at 858-59.

Given the proximity of the two courthouses, the defendant has failed to carry his burden of showing that the Eastern District would be a more convenient forum for this litigation. The defendant has also failed to show that the transfer is necessary to serve the interests of justice. All such a transfer would do is unnecessarily delay the trial, which has already been scheduled. See id. at 858.

In the alternative, Elson seeks to have the murder and attempted murder allegations, which are included in the racketeering charges, severed and transferred to the Eastern District. However, for the same reasons explained above, transfer to the Eastern District of these charges is not justified based on considerations of convenience. Moreover, such severance would waste judicial resources, because it would lead to duplicative prosecutions. Thus, Elson's motion to transfer the entire prosecution to the Eastern District, or in the alternative to transfer only the murder and attempted murder allegations is denied.

II.

Elson also moves to dismiss the first two counts of the Indictment as legally insufficient. Both counts allege that Elson "together with others known and unknown were members of a group known as `Monya's Brigada' and constituted an `enterprise' as that term is defined in Title 18, United States Code, Section 1961(4), that is, a group of individuals associated in fact, which was engaged in, and the activities of which affected, interstate and foreign commerce. Monya's Brigada was an organized criminal group that operated in the Southern District of New York and elsewhere."

Count One further charges that Elson "and others known and unknown, being persons employed by and associated with the racketeering enterprise described above, which enterprise was engaged in, and the activities of which affected, interstate and foreign commerce, unlawfully, willfully and knowingly combined, conspired, confederated and agreed together and with each other to conduct and participate, directly and indirectly, in the conduct of the affairs of that enterprise through a pattern of racketeering activity.... It was part of the conspiracy that the defendant agreed to participate in the conduct of the enterprise's affairs by personally committing at least two of the acts of racketeering, set forth ... below," in violation of 18 U.S.C. § 1962(d).

Count Two further charges that "[f]rom in or about August 1990 up to and including the date of the filing of this Indictment, in the Southern District of New York and elsewhere, [Elson], and others known and unknown to the Grand Jury, being a person[] employed by and associated with the enterprise described in ... this Indictment, which enterprise was engaged in, and the activities of which affected, interstate and foreign commerce, unlawfully, willfully and knowingly conducted and participated, directly and indirectly, in the conduct of the affairs of that enterprise through a pattern of racketeering activity ... by committing two or more acts of racketeering, as set forth in ... this Indictment," in violation of 18 U.S.C. § 1962(c).

In seeking dismissal of these two counts, Elson argues that the Indictment fails both to identify adequately the membership of the conspiracy and does not demonstrate the nature of any agreement between the unidentified members of the conspiracy. Elson also asserts that the Government has failed to identify a true enterprise, but rather has "haphazardly put together a group of people without any continuity in terms of their purpose, planning, or functions." Elson asserts that if this Court does not dismiss these two counts, it should conduct a hearing to determine whether the Government's evidence regarding these counts is sufficient.

"An indictment is sufficient when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events." 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) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962)). Moreover, "`an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.'" Stavroulakis, (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 55, 46 L.Ed.2d 50 (1975)); see also United States v. Dransfield, 913 F.Supp. 702, 706 (E.D.N.Y. 1996).

In this case, Count One of the Indictment tracks the language of 18 U.S.C. § 1962(d), which makes it "unlawful for any person to conspire to violate any of the...