United States v. Culoso, No. 78 Cr. 592 (IBC).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtIRVING BEN COOPER
Citation461 F. Supp. 128
PartiesUNITED STATES of America v. Salvatore CULOSO, a/k/a "Sal Culoso," a/k/a "Sal Caluso," Defendant.
Decision Date31 October 1978
Docket NumberNo. 78 Cr. 592 (IBC).

461 F. Supp. 128

UNITED STATES of America
v.
Salvatore CULOSO, a/k/a "Sal Culoso," a/k/a "Sal Caluso," Defendant.

No. 78 Cr. 592 (IBC).

United States District Court, S. D. New York.

October 31, 1978.


461 F. Supp. 129

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, for the United States; Lee S. Richards, Asst. U. S. Atty., New York City, of counsel.

Eaton, Van Winkle, Greenspoon & Grutman, New York City, for defendant; Samuel N. Greenspoon, Gary A. Woodfield, New York City, of counsel.

OPINION

IRVING BEN COOPER, District Judge.

The indictment herein is under attack; defendant Culoso calls for its dismissal on the ground that it is outlawed by the statute of limitations and/or venue is totally absent. If this is not to be, defendant demands a transfer of venue and a bill of

461 F. Supp. 130
particulars addressed to two counts (3 and 4). We find impressive merit in the totality of the Government's opposition (set out in its brief) and accordingly we are constrained to and do deny the instant motion in all respects

The conspiracy count

We emphasize certain portions thereof decisive of the application now before us. In this count (one), this defendant is charged with unlawfully agreeing with others to defraud the United States of its lawful right to have the Small Business Administration (S.B.A.) administer the provisions of the Small Business Act "fairly and impartially without influence, unlawful inducement, false representations, favor or fraud."

The objectives and means of the conspiracy are clearly set out in the indictment: On or about March 23, 1973, defendant agreed with certain principals of Jordan Metal Products Corporation ("Jordan") that in return for a sum of money, he would procure for Jordan a loan from a bank (whose deposits were insured by the Federal Deposit Insurance Corporation) ninety percent (90%) of which would be guaranteed by the S.B.A.; that Jordan, upon advice of defendant, sought a $350,000 S.B.A. guaranteed loan and "as required by CULOSO said principals did agree to make and did make a $35,000 payment to CULOSO without disclosing the payment to the S.B. A." or the bank.

Further, that following defendant's advice, Jordan temporarily increased its capitalization "to induce the approval of their loan application using approximately $30,000 of their personal funds with assurances from CULOSO that after the loan was approved those principals of Jordan could siphon this money back out of Jordan Metal."

And so, on the advice and direction of defendant, Jordan issued checks "made out to businesses to which Jordan Metals owed no money, principals of Jordan Metals made disguised and unreported payments totaling $35,000" to this defendant, and by the same method those principals made such withdrawals from their company "of the money temporarily used to capitalize the company during the pendency of the loan applications" and "drafted false invoices to support the fraudulent checks."

Significant among the overt acts recited in the conspiracy count, it is alleged that defendant advised the President of Jordan that it would be a "`defalcation' to fail to report the finder's fee on the S.B.A. application and that if any questions about the defendant's role in the transaction were asked the defendant should be identified as solely an insurance broker."

The substantive counts

The second count in essence charges that defendant aided the application for an S.B.A. guaranteed loan without disclosing either the monies paid or to be paid the defendant or the $30,000 capitalization added to Jordan as hereinabove mentioned; also that defendant advised the issuance of checks by Jordan to payees not owed money by it (see above) which checks were used "to generate cash to pay the defendant CULOSO'S fee and to secretly refund the above-described capitalization."

Count three charges defendant corruptly endeavored to obstruct the proper administration of law under which an S.B.A. proceeding was conducted by "advising a principal of Jordan Metals to misrepresent the full extent of the defendant CULOSO'S services in obtaining the loan and to prepare false and fraudulent checks and invoices some of which were presented to an S.B.A. employee in an interview at Jordan Metals' offices on July 31, 1975."

We come now to count four which charges that defendant by various means endeavored "to obstruct, delay and prevent the communication to a criminal investigator of information relating to a violation of criminal statutes ... by ... advising a principal of Jordan Metals to misrepresent the full extent of the defendant CULOSO'S services in obtaining the loan and to prepare false and fraudulent

461 F. Supp. 131
checks and invoices some of which were presented to an F.B.I. agent pursuant to a subpoena served on Jordan Metals on January 16, 1976."

The statute of limitations

Defendant places a great deal of emphasis on his contention that the prosecution of this indictment in its entirety is time-barred under 18 U.S.C. § 3282 because the loan application which contains the initial false statements was submitted earlier than five years before the filing of the indictment on August 10, 1978. This position must fall because the conspiracy count alleges some overt acts in furtherance of the objectives of the conspiracy which occurred after the filing of the indictment. The statute begins to run, in criminal conspiracy charges, from the date of the last overt act. United States v. Brasco, 516 F.2d 816, 818 (2d Cir. 1975); United States v. Albanese, 123 F.Supp. 732, 734 (S.D.N.Y. 1954), aff'd 224 F.2d 879 (2d Cir.), cert. denied 350 U.S. 845, 76 S.Ct. 87, 100 L.Ed. 753 (1955); United States v. Flynn, 103 F.Supp. 925, 927 (S.D.N.Y.1951), aff'd, 216 F.2d 354 (2d Cir. 1954).

Accordingly, if the pursuit of the objectives of the same conspiracy embraced some overt acts (as alleged) committed within the last five years, the conspiracy count in its entirety stands, for it is not time-barred.

Defendant urges upon us as decisive of his contention the rule in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1956).1 He argues that the conspiracy ended in April, 1973 when the loan application (with vital information bearing on its merits omitted) was filed. Repeated throughout the indictment is the assertion that a crucial objective of the conspiracy was the defendant's status as a "finder" and this in turn was concealed from the agency of the Government. While the concealment was initiated when the loan application was filed, defendant is charged with perpetuating the same concealment long after it was filed. The indictment points this up by reciting as an overt act that defendant received an installment on his fixed "finder's" fee less than five years before the indictment was filed; that defendant advised principals at Jordan Metal to assure others that he was just selling insurance; by counseling such principals to draw false checks and invoices (referred to in the opening of this opinion) for the sole purpose of hiding his "finder's" fee from the S.B.A. and the Grand Jury. The first count makes it plain that the conspiracy to make false statements and conceal material facts culminated in an inspection conducted by an S.B.A. employee and then in the production of documents to the Grand Jury, both of which events occurred well within the last five years.

A conspiracy does not come to an end because one of its primary objectives, or even its chief objective, has been achieved. United States v. Perrone, 161 F.Supp. 252 (S.D.N.Y.1958). Indeed, the final settling of the conspiracy's financial arrangements "and other acts necessary to complete the operation and consummate the arrangements between the conspirators" are as much a part of the conspiracy as the commission of the crime which is its primary object. These basic principles of the law of conspiracy have been followed by this and other Circuits since the Grunewald decision. United States v. Portner, 462 F.2d 678 (2d Cir.), cert. denied, 409 U.S. 983, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972); United States v. Colasurdo, 453 F.2d 585, 592 (2d Cir. 1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972); United States v. Nowak, 448 F.2d 134 (7th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 714, 30 L.Ed.2d 731 (1972); United States v. Hickey, 360 F.2d 127 (7th Cir.), cert. denied, 385 U.S. 928, 87 S.Ct. 284, 17 L.Ed.2d 210

461 F. Supp. 132
(1966); see Cleaver v. U. S., 238 F.2d 766 (10th Cir. 1956).2

As set forth in the indictment, the conspiracy from its very inception was an agreement to conceal material facts from federal authorities. The drafting of fraudulent checks and invoices, some prepared before the application and some after, was one important group of acts within that conspiracy. Those checks and invoices were prepared, pursuant to the initial arrangements between the conspirators, for any federal agents (whether or not from the S.B.A.) who might seek evidence of how the loan money was being used by Jordan Metal.3 For this reason, this case is quite unlike Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953); and Grunewald, supra. In all three cases the objects of the conspiracy at issue — interstate transportation of a woman for immoral purposes; phony marriage ceremonies for the purpose of deceiving United States immigration officials; and obtaining no prosecution rulings in tax cases by bribery — had been entirely achieved before the statements and acts sought to be introduced were made. In each case the efforts to conceal the initial conspiracies were not shown to be an initial part of the conspiracy.

Indeed, Grunewald itself recognizes an exception to the rule it announces for just the sort of conspiracy that is charged in this indictment, i. e. a conspiracy in which the "acts of concealment are...

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22 practice notes
  • US v. Sierra-Garcia, No. CR-90-0891.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 18, 1991
    ...of the government's evidence or the theory of the government's case — in sum, it is not a discovery tool. United States v. Culoso, 461 F.Supp. 128 (S.D.N.Y.1978), aff'd mem. 607 F.2d 999 (2d Cir.1979). The granting of a bill of particulars is discretionary with the trial judge. United State......
  • U.S. v. Mitlof, No. 01 CR 466(CM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 20, 2001
    ...Wilson, 565 F.Supp. 1416, 1439 (S.D.N.Y.1983); United States v. Mannino, 480 F.Supp. 1182, 1185 (S.D.N.Y.1979), United States v. Culoso, 461 F.Supp. 128, 134 & n. 9 (S.D.N.Y.1978), aff'd without opinion, 607 F.2d 999 (2d In its request for a bill of particulars defendant's asks the Governme......
  • U.S. v. Quinn, No. CRIM. 05-0018(JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 23, 2005
    ...but rather his ability to bear the expense that concerns the Court" in conducting a Platt analysis, see, e.g., United States v. Culoso, 461 F.Supp. 128, 136 n. 12 (S.D.N.Y.1978). Since Platt explicitly calls for courts to consider the "expense to the parties," 376 U.S. at 244, 84 S.Ct. 769 ......
  • United States v. Reed, No. 84 Cr. 610 (RJW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 24, 1985
    ...district); United States v. Polin, 323 F.2d 549, 557-58 (3d Cir.1963) (venue permissible in place of filing); United States v. Culoso, 461 F.Supp. 128, 135 (S.D.N.Y.1978), aff'd mem., 607 F.2d 999 (1979) (citing cases). See also, Haddad v. United States, 349 F.2d 511 (9th Cir.), cert. denie......
  • Request a trial to view additional results
22 cases
  • US v. Sierra-Garcia, No. CR-90-0891.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 18, 1991
    ...of the government's evidence or the theory of the government's case — in sum, it is not a discovery tool. United States v. Culoso, 461 F.Supp. 128 (S.D.N.Y.1978), aff'd mem. 607 F.2d 999 (2d Cir.1979). The granting of a bill of particulars is discretionary with the trial judge. United State......
  • U.S. v. Mitlof, No. 01 CR 466(CM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 20, 2001
    ...Wilson, 565 F.Supp. 1416, 1439 (S.D.N.Y.1983); United States v. Mannino, 480 F.Supp. 1182, 1185 (S.D.N.Y.1979), United States v. Culoso, 461 F.Supp. 128, 134 & n. 9 (S.D.N.Y.1978), aff'd without opinion, 607 F.2d 999 (2d In its request for a bill of particulars defendant's asks the Governme......
  • U.S. v. Quinn, No. CRIM. 05-0018(JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 23, 2005
    ...but rather his ability to bear the expense that concerns the Court" in conducting a Platt analysis, see, e.g., United States v. Culoso, 461 F.Supp. 128, 136 n. 12 (S.D.N.Y.1978). Since Platt explicitly calls for courts to consider the "expense to the parties," 376 U.S. at 244, 84 S.Ct. 769 ......
  • United States v. Reed, No. 84 Cr. 610 (RJW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 24, 1985
    ...district); United States v. Polin, 323 F.2d 549, 557-58 (3d Cir.1963) (venue permissible in place of filing); United States v. Culoso, 461 F.Supp. 128, 135 (S.D.N.Y.1978), aff'd mem., 607 F.2d 999 (1979) (citing cases). See also, Haddad v. United States, 349 F.2d 511 (9th Cir.), cert. denie......
  • Request a trial to view additional results

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