U.S. v. Fruchter, 99 CR 366 (DAB).
| Decision Date | 11 July 2000 |
| Docket Number | No. 99 CR 366 (DAB).,99 CR 366 (DAB). |
| Citation | 104 F.Supp.2d 289 |
| Parties | UNITED STATES of America, v. Philip FRUCHTER, Steven Fruchter, Lawrence Braun, Dauda Yague, a/k/a "Cheik," Mamadou Sylla, Mitchell Grand, Miguel Mercedes, Samba William, Muninauth Pulchan, a/k/a "Ramish," and Frank Singh, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Benjamin Brafman, New York City, for Defendant Stephen Fruchter.
Austin V. Campriello, Robinson, Silverman, Pearce, Aronsohn & Berman LLP, New York City, for Defendant Philip Fruchter.
Don D. Buchwald, New York City, for Defendant Lawrence Braun.
Maurice H. Sercarz, New York City, for Defendant Dauda Yague.
William J. Stampur, New York City, for Defendant Mamadou Sylla.
Robert Kalina, New York City, for Defendant Mitchell Grand.
Frank A. Ortiz, Brooklyn, NY, for Defendant Miguel Mercedes.
Daniel J. Nobel, New York City, for Defendant Samba William.
Peter K. Wilson, New York City, for Defendant Muninauth Pulchan.
Arthur J. Viviani, New York City, for Defendant Frank Singh.
Mary Jo White, United States Attorney for Southern District of New York, New York City, of counsel, Alexander H. Shapiro, Kevin S. Reed, Assistant United States Attorneys.
Defendants are charged in a forty-four (44) count Indictment with racketeering, conspiracy, mail fraud, and numerous other offenses. Defendants now move for various forms of relief.
On April 13, 1999, the Government filed a forty-four (44) count Indictment charging Defendants with racketeering, conspiracy, mail fraud, and numerous other offenses. Defendants are ten principals, owners and employees of a mail sorting company called American Presort, Inc. ("API").
Counts One and Two charge each of the Defendants with violating the substantive and conspiracy provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962, based on their involvement in alleged mail fraud schemes against the United States Postal Service ("USPS") and clients of API, as well as acts of bribery of USPS employees, in violation of 18 U.S.C. § 1962(c). Count Three charges each of the Defendants with conspiracy to commit mail fraud, postage meter fraud, false statements and bribery, in violation of 18 U.S.C. §§ 1341, 501, 1001 and 201. Counts Four through Fifteen charge each of the Defendants with mail fraud against the USPS in violation of 18 U.S.C. §§ 1341 and 1342. Count Sixteen charges Defendants Steven Fruchter ("Steven Fruchter"), Philip Fruchter ("Philip Fruchter") and Lawrence Braun ("Braun") with postage meter fraud in violation of 18 U.S.C. §§ 501 and 502. Count Seventeen charges Steven Fruchter with postage meter fraud in violation of 18 U.S.C. §§ 501 and 502. Counts Eighteen through Twenty-Eight charge each of the Defendants with making false statements in violation of 18 U.S.C. §§ 1001 and 1002. Count Twenty-Nine charges Steven Fruchter, Philip Fruchter and Braun with mail fraud against API clients in violation of 18 U.S.C. §§ 1341 and 1342. Counts Thirty through Forty-Four charge Steven Fruchter, Philip Fruchter, Braun and Dauda Yague ("Yague") with bribery of Postal Service employees in violation of 18 U.S.C. §§ 201 and 202. The Indictment also contains a forfeiture allegation against Defendants Steven Fruchter, Philip Fruchter and Lawrence Braun.
Defendants move for various forms of relief. Defendant Steven Fruchter seeks to dismiss Counts One and Two on the grounds that the Counts fail to allege a "pattern of racketeering activity" as required by 18 U.S.C. § 1962. Defendants Mamadou Sylla ("Sylla"), Miguel Mercedes ("Mercedes"), Samba William ("William"), Muninauth Pulchan ("Pulchan") and Frank Singh ("Singh") also seek dismissal of Counts One and Two on the grounds that they did not participate in the operation, management or direction of the alleged substantive or conspiracy racketeering violations. Defendants Braun, Mercedes, Pulchan and Singh move to dismiss Count Four alleging that it is duplicitous. Defendants Mercedes and Singh seek dismissal of Counts Five through Fifteen on the grounds that these Counts fail to allege sufficiently the fundamental mailing component of 18 U.S.C. § 1341. For the same reason, Defendant Singh seeks dismissal of Counts Thirteen through Twenty-Three. Defendant Pulchan seeks to dismiss Counts Eighteen through Twenty-Eight on the grounds of multiplicity. Defendant Singh moves to dismiss these same Counts, alleging they constitute an ex post facto violation. Defendant Braun seeks to dismiss Count Twenty-Nine on the ground that it is duplicitous.
Defendants Philip Fruchter, Yague and Pulchan seek to suppress all physical evidence obtained through searches of API. In addition, Defendant Philip Fruchter requests a Franks hearing on the reliability of the information provided to the Magistrate Judge at the time of the application of the search warrants. The Defendants also request a suppression hearing, alleging that the warrants were overbroad, the postal inspectors went beyond the scope of the warrant and that the second warrant was the fruit of the poisonous tree of the first warrant.
Defendant Yague seeks suppression of his post-arrest statements on the grounds that he was not advised of his Miranda rights until after custodial interrogation began, that he did not understand the rights when they were eventually given and thus he did not validly waive his rights, and that his statements were involuntary. Defendant Yague also requests a suppression hearing.
Defendants Sylla, Mitchell Grand ("Grand"), Mercedes, William, Pulchan and Singh all seek severance from Defendants Steven Fruchter, Philip Fruchter, Braun and Yague. Defendants argue that they should not be prejudiced from the spillover of the evidence against these four principal defendants and that Defendant Yague gave a statement which implicates each of them. In the alternative, Defendants argue that the Counts against them should be severed from the Counts in which they are not named.
Defendants Braun, Grand, Sylla, and William seek various forms of discovery including bills of particulars, Brady material and 404(b) material. Defendant Grand also seeks the preservation of the rough notes of Government agents and early production of Jencks Act material.
Finally, each Defendant joins in the motions of his co-Defendants to the extent such action is beneficial.
Count One alleges substantive racketeering violations against all of the Defendants. (Indictment ¶¶ 1-12.) Count Two incorporates Count One by reference, and alleges that each of the Defendants "agreed that a conspirator would commit at least two of the acts of racketeering in the conduct of the affairs of the enterprise." (Indictment ¶ 15.)
Defendant Steven Fruchter moves for dismissal of Counts One and Two of the Indictment, for failure to allege a "pattern of racketeering activity" as required by 18 U.S.C. § 1962. Defendants Sylla, Mercedes, William, Pulchan and Singh also seek dismissal of Counts One and Two on the grounds that they did not participate in the operation, management or direction of the alleged substantive or conspiracy racketeering violations, as required in Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993).
The crux of Stephen Fruchter's argument is that the alleged predicate acts, when viewed in the context of API's day-to-day operations, constitute "no more than a handful of isolated acts that account for a minuscule percentage of the business of API." (Stephen Fruchter Mem. at 8.) Thus, Stephen Fruchter argues, they are "no more than sporadic activity." (Stephen Fruchter Mem. at 2-10.)
"Review of a criminal RICO indictment ... is governed by Rule 7(c)(1) of the Federal Rules of Criminal Procedure, which only requires that the indictment be a plain, concise and definite written statement of the essential facts constituting the offense charged." United States v. Reale, No. 96 Cr. 1069, 1997 WL 580778 at *5, (S.D.N.Y. Sept.17, 1997) (internal quotations omitted). "An indictment need only provide a defendant with sufficient notice to permit him to defend against the charges and to bar future charges that may place him in double jeopardy." United States v. Wang, No. 98 Cr. 0199, 1998 WL 556160 at *1, (S.D.N.Y. Aug.31, 1998) ().
A "pattern of racketeering activity" has three components: 1) at least two predicate acts of racketeering activity within ten years of one another; 2) interrelatedness of the predicate acts; and 3) the predicate acts reveal "continued, or the threat of continued, racketeering activity." United States v. Diaz, 176 F.3d 52, 93 (2d Cir.1999).
The relatedness component may be satisfied by pleading predicate acts that have "the same or similar purposes, results, participants, victims, or methods of commission." Id. Further, "[t]wo [predicate] ... acts that are not related to each other may nevertheless be related indirectly because each is related to the RICO enterprise." United States v. Minicone, 960 F.2d 1099, 1106 (2d Cir.1992) (internal quotations omitted).
"The continuity prong of a RICO pattern `is both a closed-and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.'" Diaz, 176 F.3d at 93 (citing H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 241, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)). Closed-end continuity may be demonstrated by "a series of related predicates extending over a substantial period of time." Cofacredit, S.A. v. Windsor Plumbing Supply Co.,...
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