U.S. v. Russell

• Decision Date: 22 August 2007
• Docket Number: No. 3:07CR31 (AHN).,3:07CR31 (AHN).
• Citation: 639 F.Supp.2d 226
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America, v. Philip D. RUSSELL.

639 F.Supp.2d 226

UNITED STATES of America, v. Philip D. RUSSELL.

No. 3:07CR31 (AHN).

United States District Court, D. Connecticut.

August 22, 2007.

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John H. Durham, Peter S. Jongbloed, U.S. Attorney's Office, New Haven, CT, for United States of America.

RULING ON MOTIONS TO DISMISS INDICTMENT

ALAN H. NEVAS, District Judge.

The indictment in this obstruction of justice case alleges that the defendant, Philip D. Russell ("Russell"), an attorney who specializes in civil and criminal litigation in state and federal courts, violated two obstruction of justice statutes by destroying a laptop computer ("Computer") containing photographs of naked boys and information about the sexual exploitation of children. The Computer belonged to Robert Tate ("Tate"), the choirmaster and organist employed by Russell's client, a Greenwich, Connecticut church ("Church").

Russell has moved to dismiss the indictment. He asserts that neither count one, which charges a violation of 18 U.S.C. § 1512(c)(1) (the evidence tampering statute), nor count two, which charges a violation of 18 U.S.C. § 1519 (the anti-shredding provision of the Sarbanes-Oxley Act), sufficiently allege the required nexus between his obstructive conduct and any federal proceeding or investigation that was reasonably foreseeable to him. In other words, he argues that he cannot be prosecuted for obstructing a hypothetical future federal proceeding that he did not, and could not have known about. He also asserts that § 1519 was not enacted to criminalize the destruction of contraband and that the statute's failure to include a mens rea requirement or define its unique "in relation to or contemplation of" language renders it void for vagueness. For the following reasons, the motions [docs. ## 13 & 15] are DENIED.

STANDARD

Under the Fifth Amendment, an indictment returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to call for trial on the charges. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956). Pursuant to Fed.R.Crim.P. 7(c), an indictment must contain a "plain, concise and definite written statement of the essential facts constituting the offense charged." Id. An indictment is legally sufficient if it does little more than track the statutory language of the statute charged, state the approximate time and place of the alleged crime, and contain some amount of factual particularity to ensure that the prosecution will not fill in the elements of its case with facts other than those considered by the grand jury. E.g., United States v. Walsh, 194 F.3d 37, 44 (2d Cir.1999). As the Supreme Court recently reiterated, "an indictment has two constitutional requirements: first, [it must] contain the elements of the offense charged and fairly inform a defendant of the charge against which he must defend, and second, [it must] enable him to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Resendiz-Ponce, 549 U.S. 102, 127 S.Ct. 782, 788, 166 L.Ed.2d 591 (2007) (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). However, as the Resendiz-Ponce Court observed, "while an indictment parroting the language of a federal criminal statute is often sufficient, there are crimes that must be charged with greater specificity[,]" such as when the definition of an offense includes generic terms. Id. at 789 (citing Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)) ("It is an elementary principal of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as the definition; but it must state the specifics,—it must descend to particulars.").

In determining whether an indictment is sufficient, the court must read it in its entirety and include facts that are necessarily implied by the specific allegations. E.g., United States v. LaSpina, 299 F.3d 165, 177 (2d Cir.2002); United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992). The validity of an indictment is tested by its allegations, not by whether the government can prove its case. Costello v. United States, 350 U.S. at 363, 76 S.Ct. 406. Thus, a technically sufficient indictment "is not subject to dismissal on the basis of factual questions, the resolution of which must await trial." United States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir.1998) (holding that the district court erred in dismissing the indictment based on sufficiency of evidence); see also United States v. Paccione, 738 F.Supp. 691, 696 (S.D.N.Y.1990). "It is axiomatic that, in a criminal case, a defendant may not challenge a facially valid indictment prior to trial for insufficient evidence. Instead, a defendant must await a Rule 29 proceeding or the jury's verdict before he may argue evidentiary sufficiency." United States v. Gambino, 809 F.Supp. 1061, 1079 (S.D.N.Y.1992), aff'd, 17 F.3d 572 (2d Cir. 1994).

For these reasons, when considering a motion to dismiss an indictment, the court must not conflate permissible claims based on the sufficiency of the government's allegations with impermissible claims based on the sufficiency of the government's evidence. United States v. Elson, 968 F.Supp. 900, 905 (S.D.N.Y.1997). "[I]t would run counter to the whole history of the grand jury institution to permit an indictment to be challenged `on the grounds that there was inadequate or incompetent evidence before the grand jury.'" United States v. Williams, 504 U.S. 36, 55, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992) (quoting Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956)).

It would be proper, however, to dismiss an indictment that fails to state an offense under the charged statute. See United States v. Panarella, 277 F.3d 678, 684-85 (3d Cir.2002) (noting that an indictment fails to state an offence if the specific facts alleged fall beyond the scope of the charged statute as a matter of statutory interpretation).

THE INDICTMENT

The indictment in this case contains the following allegations: The Church had employed Tate as its choirmaster and organist for 24 years. For many years, Tate knowingly possessed and stored on his Computer and other storage media child pornography, including photographs and information about sexual exploitation of children. On October 6, 2006, the FBI began a criminal investigation of Tate regarding his long-term possession of child pornography and exploitation of children.

On October 7, 2006, a Church employee, who was using Tate's Computer on Church-related work, discovered a substantial number of images of, inter alia, naked boys. On October 8, 2006, Church officials sealed and wrapped Tate's Computer, treating it as evidence. On that same day, Russell, an attorney who specialized in civil and criminal litigation in state and federal courts, began representing the Church with respect to its employment of Tate, given that Tate's Computer contained images of naked boys.

On October 9, 2006, Russell and two Church officials met with Tate and confronted him about the images on his Computer. Tate acknowledged that the images were his and resigned from the Church. Russell gave Tate the name of a criminal defense attorney who was available to represent Tate. Later that day, Tate contacted that criminal defense attorney. Russell and the Church officials also made arrangements for Tate to leave Connecticut and travel to California. They permitted Tate to pack a bag so as to leave Church property, at which time Tate removed from his apartment on Church property various items, including his child pornography collection. Tate ultimately discarded most of that collection. Russell took possession of Tate's Computer and took it apart.

In count one, the indictment charges that Russell, after learning that Tate's Computer contained images of naked boys, took possession of it and corruptly altered, destroyed, mutilated, and concealed it and attempted to do so by taking it apart with the intent to impair its integrity and availability for use in an official proceeding and thereby making it unavailable for an official proceeding before a judge, court, magistrate judge, and grand jury, in violation of 18 U.S.C. § 1512(c)(1).

In count two, the indictment alleges that, in violation of 18 U.S.C. § 1519, Russell unlawfully, willfully, and knowingly altered, destroyed, mutilated, concealed, and covered up a record, document, and tangible object with the intent to impede, obstruct, and influence the investigation and proper administration of any matter within the jurisdiction of any department and agency of the United States, which was the FBI's investigation of Tate's possession of child pornography and exploitation of children. It further alleges that Russell, in relation to and in contemplation of any such matter and case, after learning that Tate's Computer contained images of naked boys, altered, destroyed, mutilated, concealed, and covered it up by taking it apart and impairing its integrity thereby making it unavailable to the FBI in its investigation of Tate.

THE STATUTES

The statute charged in count one, 18 U.S.C. § 1512(c)(1), makes it a crime for a person to corruptly alter, destroy, mutilate, or conceal a record, document, or other object, or attempt to do so, with the intent to impair the object's integrity or availability for use in an official proceeding. Another section of this statute, § 1512(f)(1), provides that an official proceeding need not be pending or about to be instituted at the time of the offense.

The statute charged in count two, 18 U.S.C. § 1519, imposes criminal liability on a person who knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a...