U.S. v. Ganim

• Decision Date: 12 September 2002
• Docket Number: No. 3:01CR263(JBA).,3:01CR263(JBA).
• Citation: 225 F.Supp.2d 145
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES v. Joseph P. GANIM.

Page 145

225 F.Supp.2d 145

UNITED STATES v. Joseph P. GANIM.

No. 3:01CR263(JBA).

United States District Court, D. Connecticut.

September 12, 2002.

COPYRIGHT MATERIAL OMITTED

Ronald Scott Apter, U.S. Attorney's Office, Hartford, CT, John A. Danaher, III, James I. Glasser, Michael R. Sklaire, U.S. Attorney's Office, New Haven, CT, for Plaintiff.

Roland Acevedo, Seiff, Kretz, Maffeo, New York City, Richard T. Meehan, Jr., Edward J. Gavin, Michael T. Meehan, Meehan & Meehan, Bridgeport, CT, Rosemarie T. Weber, Morrison, Mahoney & Miller, LLP, Hartford, CT, J. Bruce Maffeo, New York City, for Defendant.

Ruling on Motion to Dismiss Indictment [Doc. # 50]

ARTERTON, District Judge.

The primary issues presented in this motion by Bridgeport Mayor Joseph Ganim to dismiss the indictment pending against him are Ganim's contentions that portions of the indictment's "honest services" mail fraud allegations must fail because (1) the mail fraud statute under which they are brought does not provide the requisite notice that the acts alleged in the indictment are proscribed by the statute and (2) the indictment's allegations of an ill-defined scheme fail to provide him with the notice of what he is alleged to have done that violates that law. While Ganim's argument has currency given the wording of both the statute and indictment, the Government at the conclusion of oral argument on this motion clarified that this scheme will be prosecuted at trial only as a scheme to deprive the citizenry of Ganim's honest services by bribery of (or extortion by) an elected official. Thus, the jury's consideration will be confined to whether the Government has proved a scheme whereby Ganim demanded, sought, received or agreed to receive something of value either with the specific corrupt intent to be influenced in the performance of an official act (bribery) or through the unlawful use of force, violence or fear (extortion).

Additionally, the Court sua sponte vacates part of its earlier ruling denying Ganim's request for a bill of particulars and directs the Government to provide particularization of the specific benefits Ganim is alleged to have unlawfully received. With these clarifications and limitations, the Court concludes that the indictment (read in light of the forthcoming bill of particulars) charges offenses for which the mail fraud statute provides the requisite notice that the acts are criminalized by the statute, and gives Ganim adequate notice of the charges against him.

Ganim's remaining arguments, which address the RICO counts, other aspects of the mail fraud charges, and the constitutionality of the federal-program bribery statute, are either without merit or must await determination at trial after the presentation of the Government's evidence. For the reasons elaborated below, the defendant's motion to dismiss is denied in its entirety, the Court's order denying Ganim's motion for a bill of particulars is vacated in part, and a bill of particulars setting out the specific benefits Ganim is alleged to have received is ordered.

I. Introduction

On October 31, 2001, a federal grand jury returned a 24 count indictment against Ganim, the sitting mayor of Bridgeport, Connecticut. Ganim filed a motion to dismiss portions of the indictment on March 15, 2002. On March 27, 2002, a Superseding Indictment was filed, and on July 1, 2002 oral argument was held.

The first count of the indictment¹ charges Ganim with violating the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 ("RICO"). Ganim is alleged to have been engaged in a racketeering enterprise with Pinto, Leonard Grimaldi, the Office of the Mayor, and unnamed others. The modus operandi of the enterprise is alleged to have been the solicitation and acceptance of various bribes and kickbacks from companies and individuals seeking to do business with the City of Bridgeport ("City" or "Bridgeport"), as well as other attempts to realize unlawful gain. Ganim is alleged to have engaged in eleven racketeering acts: (1) in connection with the privatization of Bridgeport's waste waster system, Professional Services Group ("PSG"), the low bidder on the contract, was forced to pay Pinto and Grimaldi $311,000 to obtain the contract, in violation of the Hobbs Act² and the federal mail fraud statute³; (2) in connection with the extension of the waste water contract, Ganim is alleged to have received $156,000 (through Pinto and Grimaldi) from PSG, in violation of the Connecticut bribe receiving statute⁴ and the federal mail fraud statute; (3) in connection with the construction of the Harbor Yard Stadium, Ganim is alleged to have taken (through Pinto and Grimaldi) cash and other property, including meals and entertainment, from the Kasper Group, in violation of the federal mail fraud statute; (4) in connection with the construction of a hockey arena, Ganim is alleged to have taken (through Pinto and Grimaldi) cash and other property, including meals and entertainment, from the Kasper Group, in violation of the federal mail fraud statute; (5) Ganim is alleged to have used City funds to buy himself a $1 million life insurance policy, in violation of the federal mail fraud statute; (6) Ganim is alleged to have violated the Hobbs Act by extorting a $5,000 kickback from Frank Sullivan, a financial consultant, on the commission Sullivan earned in connection with the City's purchase of the life insurance policy; (7) Ganim is alleged to have violated the Connecticut bribe receiving statute and the federal mail fraud statute in selecting Sullivan as financial advisor and broker for municipal pension plans in return for payment to Ganim and Pinto of a portion of any commissions; (8) Ganim is alleged to have received (through Pinto) property from Alfred Lenoci, Jr., president of UER, in exchange for selecting UER and Harbor Communications to oversee City programs funded by Bridgeport Energy, in violation of the Connecticut bribe receiving statute and the federal mail fraud statute; (9) Ganim is alleged to have violated the federal mail fraud statute in taking $50,000 (through Pinto) from B & C Gravel for supporting relocation of the juvenile court; (10) Ganim is alleged to have received property for selecting a company owned by Alfred Lenoci, Jr., and Alfred Lenoci, Sr., as the preferred developer for vacant strips of land in Bridgeport, in violation of the Connecticut bribe receiving statute and the federal mail fraud statute; and (11) Ganim is alleged to have violated the federal mail fraud statute by causing the City to extend sewer service to his residence cost-free.

In addition to the RICO allegations in count one, the majority of the racketeering acts that form the basis of the RICO count correspond to substantive counts of the indictment. For example, the Hobbs Act violation in Racketeering Act 6 (the alleged life insurance kickback) also forms the basis of the substantive Hobbs Act violation found in Count Fifteen. The two counts of false tax returns are not the subject of Ganim's motion to dismiss.

II. Standard

"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). "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." Id. at 177, 94 S.Ct. 2887 (quotations omitted). The indictment "must descend to particulars," however, if "the definition of an offence ... includes generic terms." United States v. Cruikshank, 92 U.S. 542, 558, 2 Otto 542, 23 L.Ed. 588 (1875) (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," United States v. Alfonso, 143 F.3d 772, 776-777 (2d Cir.1998) (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).

III. Vagueness/Notice of Charges

In Racketeering Acts 1B, 1C, 1D, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 7B, 7C, 7D, 8B, 9, 10B, 11A and 11B (and the corresponding substantive counts 4-6, 8-14, and 17-21) of the indictment, Ganim is charged with violating the federal mail fraud statute, 18 U.S.C. § 1341.⁵ Only four⁶ of the charged mail fraud Racketeering Acts charge what may be termed `traditional' mail fraud; that is, a scheme to "obtain[] money or property by means of false or fraudulent pretenses, representations, or promises. ..." (These counts are not the subject of Ganim's vagueness arguments.) The remaining ten<sup>7</sup> are brought under 18 U.S.C § 1346, which provides that "the term `scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."

Ganim advances two separate challenges to these "honest services" portions of the indictment: (1) the statute under which they are brought does not provide the requisite notice that the acts alleged in the indictment are proscribed by the statute and (2)...