United States v. Anderson

• Decision Date: 21 November 1973
• Docket Number: Crim. No. 73-0527-Y.
• Citation: 368 F. Supp. 1253
• Parties: UNITED STATES of America v. N. Dale ANDERSON.
• Court: U.S. District Court — District of Maryland

368 F. Supp. 1253

UNITED STATES of America v. N. Dale ANDERSON.

Crim. No. 73-0527-Y.

United States District Court, D. Maryland.

November 21, 1973.

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George Beall, U. S. Atty., Russell T. Baker, Jr., Ronald S. Liebman, Barnet D. Skolnik, Asst. U. S. Attys., Baltimore, Md., for the Government.

Norman P. Ramsey, Baltimore, Md., for Anderson.

MEMORANDUM AND ORDER

JOSEPH H. YOUNG, District Judge.

Defendant Dale Anderson is charged in a 43-count indictment with various violations of the Travel Act, 18 U.S.C. § 1952, the Hobbs Act, 18 U.S.C. § 1951, and 26 U.S.C. § 7201, Income Tax Evasion. Defendant has made numerous motions, some of which have already been disposed of by oral opinion, and others of which have been held for resolution by written opinion. The Court will now dispose of defendant's remaining motions relating to dismissal of various counts of the indictment, to electronic surveillance, and to production of grand jury minutes. The Court will also rule on the Government's objections to part of this Court's oral ruling on the bill of particulars.

I. MOTION TO DISMISS

Defendant has moved for the dismissal of substantially all of the indictment on grounds of vagueness, lack of subject matter jurisdiction, duplicity and failure to state elements of the crime. For the following reasons this motion is denied in its entirety.

1. Counts 13 and 15

The most difficult issue raised by defendant is the sufficiency of the jurisdictional allegations in Counts 13 and 15, both of which charge defendant with violations of the Travel Act. The Travel Act proscribes travel in interstate commerce or use of "* * * any facility in interstate * * * commerce, including the mail, with intent to — (3) * * * promote, manage, establish, carry on * * *" certain unlawful activity including bribery and extortion (emphasis added). The defendant claims that the word in which appears in the statute indicates a congressional intent that federal jurisdiction be invoked only where there has been physical travel across state lines or the interstate use of telephone or other wire facilities. Counts 13 and 15 of the indictment allege only that defendant "* * * did cause * * * the use of a facility in interstate commerce, to wit the Baltimore Branch of the Federal Reserve Bank of Richmond." Thus, the indictment apparently alleges the intrastate use of an interstate facility.

The law is unclear on what constitutes sufficient contact with interstate commerce to establish jurisdiction under the Travel Act. United States v. Wechsler, 392 F.2d 344 (4th Cir. 1968), cert. denied, 392 U.S. 932, 88 S.Ct. 2283, 20 L. Ed.2d 1389 (1968), would seem to indicate that intrastate use of an interstate facility would be sufficient. However, the court also noted that the check in question also bore an out-of-state bank endorsement. A contrary view was expressed in United States v. DeSapio, 299 F.Supp. 436 (S.D.N.Y.1969), aff'd, 435 F.2d 272 (2d Cir. 1972), where the court ruled that the Travel Act clearly required a use in interstate commerce and that intrastate phone calls did not establish jurisdiction.

The defendant relies on United States v. Altobella, 442 F.2d 310 (7th Cir. 1971), and Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971), which are distinguishable from the instant case. However, both of these cases evidence concern that an overexpansion of Travel Act jurisdiction could usurp state law enforcement responsibilities.

In light of the unsettled nature of the law on this issue, this Court will follow the lead of the Third Circuit in United States v. Cafero, 473 F.2d 489 (3d Cir. 1973), pet. for cert. filed, 42 U.S.L.W. 3006 (U.S. ed. July 10, 1973), which approved a similarly worded indictment. However, as in Cafero, the burden will be on the Government to prove sufficient contacts with interstate commerce at trial to sustain this Court's jurisdiction in the event of subsequent challenges by the defendant.

2. Counts 13, 15, 30, 36-39

In Part 2 of his motion, defendant moves to dismiss Counts 13, 15, 30, 36-39, which all charge defendant with aiding and abetting travel in interstate commerce for the commission of bribery and extortion. The defendant claims that the Government must allege the commission of an act by a principal to sustain an indictment for aiding and abetting.

The defendant relies on two series of cases in support of his contentions. The first series is an old line of cases starting with United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819 (1878), where the Supreme Court invalidated an indictment for failure to name a principal. See also Morgan v. United States, 159 F.2d 85 (10th Cir. 1947); Miller v. United States, 136 F. 581 (7th Cir. 1905).

The second line of cases holds that an indictment which tracks the language of the statute is insufficient unless the statute alleges all the elements of the offense. See Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Simmons, supra; United States v. Murray, 335 F. Supp. 792 (D.C.Minn.1970).

Russell v. United States, supra, established the standard for analysis of the validity of an indictment. An indictment must: (1) allege all the elements of the offense; (2) sufficiently apprise the defendant of the charges he will have to meet; and (3) protect him against subsequent prosecution for the same offense. So long as these criteria are met, minor or technical defects in the indictment which do not affect the defendant's rights are to be disregarded.

The recent cases dealing with indictments and/or convictions for aiding and abetting have followed the liberal approach of Russell and not the technical approach of Simmons. In United States v. Harris, 346 F.2d 182 (4th Cir. 1965), the court held that an indictment both as principal and as aider and abettor was valid even though there was no mention of a principal. A similar result was reached in Foster v. United States, 339 F.2d 188 (10th Cir. 1964), where the court noted that it made no difference to the defendant's knowledge of the crime alleged or to his ability to avoid subsequent prosecution whether the indictment charged him with being a principal or an aider and abettor although no other principal was named. See also Meredith v. United States, 238 F.2d 535 (4th Cir. 1956).

In United States v. Duke, 409 F.2d 669 (4th Cir. 1969), the Fourth Circuit upheld a conviction as aider and abettor although the indictment only named the defendant as a principal. However, the court commented that it would have been better practice for the indictment to have been phrased in the alternative as has been done in the instant case.

3. Counts 30, 36-39

Defendant moves to dismiss Counts 30, 36-39 for failure to state the element of interstate movement necessary to establish a violation of the Travel Act. Count 30 alleges that the defendant caused the travel across state lines of Jerome Wolff. Counts 36-39 state that an employee of Matz, Childs and Associates caused certain documents relating to federal corporate income tax to move in interstate commerce to Walter Kidde and Co., Inc., in New Jersey. The defendant claims, however, that these movements in interstate commerce were performed by victims of the bribery-extortion scheme and thus were not done with the intent to manage or promote an unlawful activity as required by 18 U.S.C. § 1952.

The defendant again relies heavily on Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). In Rewis, the convictions of the customers and owners of a gambling establishment for violations of the Travel Act were reversed. Although the customers crossed a state line, the Court felt that they did not travel with the intent to promote or manage the illegal enterprise, but merely to patronize it. The owners themselves neither travelled nor induced the customers to travel with the requisite intent. The Court had no intention of invoking federal jurisdiction to suppress a gambling establishment, essentially a local problem, merely because some of its patrons crossed a near-by border. The critical factor seems to have been a desire to avoid altering federal-state responsibilities. The defendant's position is that the victims in the instant case had no more intent to promote or manage the alleged extortion-bribery scheme than did the customers in Rewis.

The difficulty with defendant's argument is that there is no allegation that Wolff or the Matz, Childs employee(s) were the victims of the conspiracy, but only that their travel or use of the mails facilitated the conduct of the conspiracy. These parties may have been acting as co-conspirators or agents of the conspiracy. Furthermore, these Counts allege that the travel was undertaken to facilitate bribery as well as extortion, and the payor of a bribe could not be characterized as a victim.

Much of the detail relating to this interstate travel will be provided in the form of particulars and discovery. These Counts are sufficient in themselves to withstand this motion to dismiss.

4. Counts 13, 14, 15, 36-39

The defendant's motion to dismiss Counts 13, 14, 15, 36-39 are without merit. The motion raises the objection that not enough detail was alleged in the indictment to identify the checks in Counts 36-39 and the unnamed public official mentioned in Count 14. The inadequate identification of this person and these items will, it is claimed, permit the Government to "roam at large," i. e., to find any check or public official which meet the grand jury's description.

The Government correctly points out that the indictment need only identify the transaction sufficiently to permit preparation of a defense and protect against double jeopardy. See Russell v. United States, supra. The indictment need not allege factual detail beyond that which is necessary for those purposes. All of the information relevant to the...