United States v. Jones, CRIMINAL CASE NO. 1:11-CR-42-TCB-LTW

Decision Date02 July 2012
Docket NumberCRIMINAL CASE NO. 1:11-CR-42-TCB-LTW
PartiesUNITED STATES OF AMERICA, v. ERIC W. JONES and ELTON AUGUSTIN, Defendants.
CourtU.S. District Court — Northern District of Georgia
MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION AND ORDER CERTIFYING
DEFENDANT AUGUSTIN READY FOR TRIAL1

Pending before this Court are various motions brought by Defendants Eric W. Jones and Elton Augustin. Docket Entries [61-64, 66, 86, 87, 90, 92, 93]. For the reasons outlined below, this Court concludes as follows:

(1) Defendant Augustin's Motion to Dismiss Counts I, II and IV of the First Superceding Indictment should be DEEMED MOOT. Docket Entry [61].

(2) Defendant Augustin's Motion for Severance Pursuant to Rule 8(b) should be DEEMED MOOT. Docket Entry [62].

(3) Defendant Jones's Motion for Bill of Particulars is GRANTED IN PART and DENIED IN PART. Docket Entry [63].

(4) Defendant Jones's Motion to Dismiss or for the Election of Count on Grounds of Multiplicity should be DENIED. Docket Entry [64].

(5) Defendant Jones's Motion to Dismiss the Indictment should be DENIED. Docket Entry [66].

(6) Defendant Augustin's Motion to Dismiss Counts I and IV of the Second Superceding Indictment should be DENIED. Docket Entry [86]. Defendant Augustin's Alternative Motion for a Bill of Particulars should be GRANTED IN PART AND DENIED IN PART. Docket Entry [86].

(7) Defendant Augustin's Motion to Sever Defendant is DENIED. Docket Entry [87].

(8) Defendant Augustin's Motion to Dismiss Counts I and II of the Second Superceding Indictment should be DENIED. Docket Entry [90].

(9) Defendant Jones's Amended Motion to Dismiss the Indictment should be DENIED. Docket Entry [92].

(10) Defendant Jones's Motion for Adoption of Prior Motions is GRANTED IN PART AND DENIED IN PART. Docket Entry [92].

(11) Defendant Jones's Motion for Production of Grand Jury Transcripts is GRANTED. Docket Entry [93].

DEFENDANT AUGUSTIN'S MOTION TO DISMISS COUNTS I, II, AND IV
OF THE FIRST SUPERCEDING INDICTMENT AND MOTION FOR
SEVERANCE PURSUANT TO RULE 8(B)

On December 27, 2011, Defendant Augustin filed a Motion to Dismiss CountsI, II and IV of the First Superseding Indictment and a Motion for Severance Pursuant to Rule 8(b). Docket Entries [61, 62]. On March 13, 2012, the Government filed a Second Superceding Indictment and Augustin again moved to dismiss counts I and IV of the Second Superseding Indictment and to sever defendants. Docket Entries [86, 87]. Accordingly, Defendant Augustin's Motion to Dismiss Counts I, II, and IV of the First Superceding Indictment or in the Alternative for a Bill of Particulars and Defendant's Motion for Severance Pursuant to Rule 8(b) should be DEEMED MOOT. Docket Entries [61, 62].

DEFENDANT AUGUSTIN'S MOTION TO DISMISS COUNTS I AND IV OF
THE SECOND SUPERCEDING INDICTMENT OR IN THE ALTERNATIVE
FOR A BILL OF PARTICULARS

On March 13, 2012, Defendants Eric W. Jones and Elton Augustin ("Defendants") were charged by the Grand Jury with conspiracy to commit extortion under color of official right in violation of 18 U.S.C. § 1951(a). Docket Entry [76]. Additionally, both Defendants were charged with making false statements in violation of 18 U.S.C. § 1001(a)(2). Docket Entry [76]. Specifically, Defendant Augustin ("Augustin") was charged with four counts (Counts Three through Six) of making false statements and Defendant Jones ("Jones') was charged with two counts (Counts Seven and Eight) of making false statements. Docket Entry [76].

In Defendant Augustin's Motion to Dismiss Counts I and IV of the Second Superceding Indictment, Augustin argues that Count I (Conspiracy to Commit Extortion Under Color of Official Right) should be dismissed because it fails to allege a prioragreement between Jones and Augustin to achieve an unlawful motive. Augustin contends, in the alternative, that the Court should grant a bill of particulars outlining the terms of the agreement, Augustin's acts showing his participation in the agreement, and the unlawful goals of the agreement. Augustin further argues that Count IV (False Statement) should be dismissed because it is multiplicitous. Docket Entry [86].

I. Count One

Defendant Augustin contends that Count One of the Second Superceding Indictment should be dismissed because it does not allege that Augustin knowingly participated in a prior agreement with Jones to achieve an unlawful objective. In support, Augustin argues that the Government's evidence suggests that Defendants Augustin and Jones each worked at the club separately but did not work together as part of an overall agreement or master plan to achieve an illegal goal. In response, the Government contends that Count I is sufficient because it tracks the elements of the crime charged. The Government further contends that the indictment satisfactorily alleges an agreement because it alleges that Defendants "did knowingly conspire."

Federal Rule of Criminal Procedure 12(b)(3)(B) allows a defendant to file a motion, alleging a defect in the indictment or information. Fed. R. Crim. P. 12(b)(3)(B). "An indictment is considered legally sufficient if it: (1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense." UnitedStates v. Schmitz, 634 F.3d 1247, 1259 (11th Cir. 2011). The sufficiency of a criminal indictment is determined from its face. United States v. Salman, 378 F.3d 1266, 1268 (11th Cir. 2004) (quoting United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992)). "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, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished." United States v. Garrett, 467 F. App'x 864, 867 (11th Cir. 2012), citing Hamling v. United States, 418 U.S. 87, 117 (1974); see also Critzer, 951 F.2d at 307-08; United States v. Malone, No. 804CR348T24TGW, 2005 WL 1243762, at *3 (M.D. Fla. May 25, 2005) (finding that indictment for extortion conspiracy sufficient to withstand a motion to dismiss because it tracked the language of the extortion conspiracy statute which set forth the essential elements of the crime).

In this case, the Indictment includes the essential elements of a Hobbs Act conspiracy under 18 U.S.C. § 1951. The Indictment not only references the statute, but it also tracks the language of the statute in that it provides Jones and Augustin conspired to obstruct, delay, or affect commerce by means of extortion. Compare Count One, Docket Entry [76] with 18 U.S.C. § 1951(a). Furthermore, while this Court agrees with Defendants that the existence of an agreement between the conspirators is an essential element of a conspiracy claim, the words of the indictment convey the existence of an agreement between Jones and Augustin. United States v. Davis, 679 F.2d 845, 851-52 (11th Cir. 1982); see also United States v. Chandler, 388 F.3d 796, 805-06 (11th Cir.2004) ("The essence of the conspiracy is this agreement to commit an unlawful act."); United States v. Willis, 232 F. App'x 527, 536 (6th Cir. 2007) (noting that the elements of a conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951, includes (1) an agreement between two or more individuals, (2) affecting interstate commerce, (3) to obtain property from another, (4) with consent, (5) induced under color of official right). The Indictment states that Defendants Jones recruited Defendant Augustin and that Jones and Augustin "did knowingly conspire" to extort money from the proprietors of a nightclub. The word conspire is commonly understood to mean "to agree together, especially secretly, to do something wrong, evil, or illegal" or "to join in a secret agreement to do an unlawful or wrongful act or an act which becomes unlawful as a result of the secret agreement." See Merriam-Webster's Collegiate Dictionary (11th ed. 2012), http://www.merriam-webster.com/dictionary/conspire; Collins English Dictionary (10th ed. 2009), http://dictionary.reference.com/browse/conspire?s=t. Thus, while the Indictment does not specifically utilize the word "agreement," other words within the Indictment convey the same meaning. The indictment further alleges the unlawful object of Augustin and Jones's alleged agreement—to extort money from the proprietor of the nightclub. Thus, the Indictment sufficiently alleges an agreement for the purpose of a common unlawful goal (extortion). See, e.g., United States v. Bascaro, 742 F.2d 1335, 1348 (11th Cir. 1984) (finding that the indictment adequately charged conspiracy when it provided the locale and dates of the conspiracy, names of coconspirators, and alleged that conspirators "unlawfully, willfully and knowinglyconspire[d], combine[d], confederate[d], and agree[d] together, which each other and with diverse other persons known and unknown to the Grand Jury to distribute and to possess with intent to distribute, marijuana.") (abrogated on other grounds by United States v. Lewis, 492 F.3d 1219 (11th Cir. 2007)); United States v. Mavroules, 819 F. Supp. 1109, 1111 (D. Mass. 1993) (concluding that conspiracy was adequately pled where the indictment alleged that the Defendant conspired with others for unlawful purposes-to extort money for himself and employment for his brother).

Augustin argues on reply that the use of the general term "conspired" is not sufficient. In support, Augustin contends that when an indictment includes a "general description of an offense," it must be accompanied with a statement of the facts and circumstances to inform him of the specific offense with which he is charged. Augustin further contends that Count I is insufficient because he has not been provided with information about the illicit agreement he is...

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