U.S. v. Palfrey

• Decision Date: 16 August 2007
• Docket Number: Criminal No. 07-46(GK).
• Parties: UNITED STATES of America, v. Deborah Jeane PALFREY, Defendant.
• Court: U.S. District Court — District of Columbia

499 F.Supp.2d 34

UNITED STATES of America, v. Deborah Jeane PALFREY, Defendant.

Criminal No. 07-46(GK).

United States District Court, District of Columbia.

August 16, 2007.

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Catherine K. Connelly, Daniel Pearce Butler, William Rakestraw Cowden, U.S. Attorney's Office, Washington, DC, for Plaintiff.

Preston Burton, Orrick, Herrington & Sutcliffe, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

KESSLER, District Judge.

The Indictment in this case charges Defendant with violating three federal statutes through her operation of Pamela Martin and Associates, a business that allegedly offered prostitution services to clients in the District of Columbia, Maryland and Virginia. Defendant has filed seven motions,¹ seeking dismissal of all counts of the Indictment, asking the Court to strike certain terms in the Indictment, and requesting a Bill of Particulars. Upon consideration of the Motions, Omnibus Opposition, Supplemental Authority, Omnibus Reply, the applicable case law, and the entire record herein, and for the reasons stated below, the Court rules as follows:

1. Defendant's Motion to Dismiss Indictment Due to Selective Prosecution [Dkt. No. 63] is denied,

2. Defendant's Motion to Strike as Prejudicial Surplusage the Use of Aliases in the Indictment [Dkt. No. 61] is denied,

3. Defendant's Motion to Dismiss for Unconstitutional Application of the Local Prostitution Statutes [Dkt. No. 67] is denied,

4. Defendant's Motion to Dismiss Count One of the Indictment and its Attendant Forfeiture Allegation [Dkt. No. 64] is denied,

5. Defendant's Motion to Dismiss Counts Two Through Four of the Indictment [Dkt. No. 66] is denied, 6. Defendant's Motion to Dismiss Count Five of the Indictment and its Attendant Forfeiture Allegation [Dkt. No. 65] is denied, and

7. Defendant's Motion for a Bill of Particulars [Dkt. No. 68] is granted in part and denied in part.

I. BACKGROUND

On March 1, 2007, a federal grand jury returned a five count Indictment against Defendant in this case. Count I of the Indictment charges Defendant under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., based upon her alleged interstate travel in aid of racketeering, 18 U.S.C. § 1952 ("Travel Act"). Counts II through IV charge Defendant with violations of the Travel Act, 18 U.S.C. § 1952. Count V charges her with conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h), and with aiding and abetting said conspiracy in violation of 18 U.S.C. § 2. The Indictment also provides notice that the Government will seek forfeiture, pursuant to 18 U.S.C. §§ 982(a)(1) and 1963, of Defendant's property derived from proceeds obtained from her alleged RICO and money laundering activities.

Defendant has filed six Motions attacking the Indictment, and one Motion seeking more facts about the Government's case. She seeks dismissal of all Counts of the Indictment on the ground of selective prosecution and on the ground that each of the Counts alleges her intent to facilitate violations of prostitution statutes that are unconstitutional under Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). She has filed three separate Motions seeking dismissal of Count I, Counts II through IV, and Count V, on the basis that the allegations are deficient. She has also filed a Motion seeking to strike three aliases named in the Indictment. Finally, she requests a Bill of Particulars to provide her with additional information to assist in the preparation of her defense.

II. ANALYSIS

A. Motion to Dismiss Indictment Due to Selective Prosecution

Defendant moves to dismiss all Counts of the Indictment due to "the apparent selective motivation of the United States in seeking the Indictment." Def.'s Mot. (Dkt. No. 63)² at 1. She argues that she is the only one of many owners of escort services operating in the District of Columbia to be indicted. She also claims that the timing of the Indictment raises an inference of improper motive. As a result of the Government's "apparent selective motivation," Defendant seeks dismissal of the Indictment or, in the alternative, discovery relating to the decision to prosecute her.

On October 3, 2006, the Government instituted civil forfeiture proceedings against Defendant, alleging that certain of her assets were acquired from criminal activity. United States v. 803 Capitol Street, No. 06-1710 (D.D.C. filed Oct. 3, 2006). During those proceedings, on February 26, 2007, Defendant's counsel in that case ("civil case counsel") sent an email to the Government raising the possibility of a conflict of interest in the Department of Justice, requesting appointment of a Special Counsel, and indicating Defendant's intent to release her telephone records. Defendant does not dispute that the Government had notified her prior to February 26, 2007 that it was on the verge of presenting the Indictment to the grand jury for its approval. Nor does she dispute that the Government agreed to delay presenting the Indictment in order to meet with her civil case and criminal case counsel to discuss possible pre-indictment resolution of the cases. When that meeting proved unproductive, the Government charged Defendant under the five count Indictment in this, case on March 1, 2007.

It is well-established that to sustain a dismissal for selective prosecution, a defendant must show both (1) that she was singled out for prosecution from others similarly situated; and (2) that her prosecution was motivated by a discriminatory purpose. See Def.'s Mot. (Dkt. No. 63) at 5; United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). The Supreme Court has noted that "the standard is a demanding one." Armstrong, 517 U.S. at 463, 116 S.Ct. 1480. To warrant dismissal, a defendant must present "clear evidence" that the decision to prosecute her had a discriminatory effect and was motivated by a discriminatory purpose. Id. at 464, 116 S.Ct. 1480. To obtain discovery on a claim of selective prosecution, Armstrong requires the defendant to adduce "some evidence tending to show the essential elements of" a selective prosecution defense. Id. at 462-63, 116 S.Ct. 1480. Defendant's Motion falls far short of any such showing.

Defendant first claims that the Government's decision to indict her, and not the many other escort service owners operating within the District of Columbia, constitutes disparate treatment of similarly situated individuals. She has not, however, offered a single piece of evidence to support that claim, or to demonstrate that other escort service or spa owners who have committed similar acts have not been indicted.

She argues that "[t]he government has revealed nothing to distinguish the operations of [her] service from that of any other escort service or spa." Def.'s Mot (Dkt. No. 63) at 7. It is Defendant who bears the burden of producing such evidence in the first instance, however, not the Government. In Armstrong, the Supreme Court expressly rejected the Ninth Circuit's view that "a defendant may establish a colorable basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant." 517 U.S. at 469, 116 S.Ct. 1480. Rather, the Court approved the position adopted by the majority of the Courts of Appeals, but not the Ninth Circuit, that the defendant must "produce some evidence that similarly situated defendants ... could have been prosecuted, but were not." Id. Defendant's unsupported allegation that she has received disparate treatment simply cannot meet the demanding showing required by Armstrong.³

Moreover, even though the Indictment was filed just three days after her civil case counsel's email on February 26, 2007, the Government had been investigating Defendant for a substantial period of time. The Government's investigation became public on October 3, 2006 when the civil forfeiture case was filed — five months before her civil case counsel's email — and the investigation likely began well before that. The delay between the Government's preparation of the Indictment and presentation of it to the grand jury was, as the Government explains, caused by the' fact that Defendant's first criminal case defense attorney quite appropriately requested such a delay in order to meet with the Government prior to issuance of the Indictment. The Government cannot be faulted for agreeing to suspend the Indictment until after discussions with Defendant and her counsel. Contrary to Defendant's contention, there is no "suspicion inherent in this sequence." Def.'s Reply at 11.

In sum, the Motion to Dismiss for Selective Prosecution must be denied for lack of any evidentiary support.

B. Motion to Strike the Use of Aliases

The Indictment in this case names Defendant "Deborah Jeane Palfrey, also known as `Jeane Palfrey,' also known as `Julia,' also known as `Pamela Martin.'" Defendant contends that the Government's listing of those three aliases after her name is prejudicial because it "inaccurately suggest[s] a sinister use of criminal, aliases." Dkt. No. 61, at 1. She therefore requests that the Court exercise its discretion under Rule 7(d) of the Federal Rules of Criminal Procedure to strike those terms from the Indictment as surplusage.

"The scope of a district court's discretion to strike material from an indictment is narrow.... Material that can fairly be described as `surplus' may only be stricken if it is irrelevant and prejudicial." United States v. Oakar, 111 F.3d 146, 157 (D.C.Cir.1997) (Internal citations omitted).

The three aliases named in the Indictment in this case are neither irrelevant nor prejudicial. As the Government has explained, the aliases are relevant because they are the only names by which some of the witnesses knew Defendant. See United States v. Brodie, 326 F.Supp.2d 83, 90 (D.D.C.2004) (...