United States v. Kelly

• Citation: 462 F.Supp.3d 191
• Decision Date: 22 May 2020
• Docket Number: 19-CR-286 (AMD)
• Parties: UNITED STATES of America, v. Robert Sylvester KELLY, Defendant.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

462 F.Supp.3d 191

UNITED STATES of America,

v.Robert Sylvester KELLY, Defendant.

19-CR-286 (AMD)

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

Signed May 22, 2020

Elizabeth Geddes, Maria E. Cruz Melendez, Nadia Shihata, United States Attorneys Office, Brooklyn, NY, for United States of America.

Douglas C. Anton, Pro Hac Vice, Law Office of Douglas C. Anton, Esq., Hackensack, NJ, Steven A. Greenberg, Pro Hac Vice, Greenberg Trial Lawyers, Michael I. Leonard, Pro Hac Vice, LeonardMeyer LLP, Chicago, IL, Thomas A. Farinella, The Law Office of Thomas A. Farinella, New York, NY, for Defendant.

ORDER

ANN M. DONNELLY, United States District Judge:

The defendant is awaiting trial on charges of racketeering in violation of 18 U.S.C. §§ 1962(c) and 1963, three counts of Mann Act transportation to engage in illegal sexual activity in violation of 18 U.S.C. § 2421(a), three counts of Mann Act coercion and enticement to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(a), one count of Mann Act coercion of a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b), and one count of Mann Act transportation of a minor with intent to engage in illegal sexual activity in violation of 18 U.S.C. § 2423(a). (ECF No. 43.) Currently before the Court are the defendant's motions to dismiss the racketeering charge and to strike the allegations that cite Section 2307 of the New York Public Health Law. (ECF Nos. 41, 42). The Government opposes. (ECF Nos. 46, 47.) For the reasons that follow, the motions are denied.

BACKGROUND

The third superseding indictment,¹ returned on March 12, 2020, charges the defendant with racketeering and violations of the Mann Act. (ECF No. 43.) The racketeering charge alleges an enterprise that includes the defendant and his managers, bodyguards, drivers, personal assistants, runners and members of his entourage. (Id. ¶ 1.) According to the indictment, the enterprise, which engaged in and affected interstate commerce, "constituted an ongoing organization whose members functioned as a continuing unit for a common purpose of achieving the objectives of the [e]nterprise." (Id. ) The purposes of the enterprise were to promote the defendant's music and brand, to recruit women and girls to engage in illegal sexual activity with the defendant and to produce pornography, including child pornography. (Id. ¶ 2.) The defendant, through the means and methods of the enterprise (see id. ¶ 9), is alleged to have committed fourteen racketeering acts against six victims between January of 1994 and 2017. (Id. ¶¶ 11-38.)

Two of the racketeering acts (twelve and fourteen) and four of the Mann Act counts (six through nine) involve allegations that the defendant had sexual intercourse with Jane Doe #6 in violation of Section 120.20 of the New York Penal Law —reckless endangerment in the second degree—and Section 2307 of the New York Public Health Law, which prohibits someone who knows that he is infected with "an infectious venereal disease

" from having sexual intercourse with another person. In particular, the indictment alleges that the defendant "engaged in unprotected sexual intercourse with Jane Doe #6 without first informing Jane Doe #6 that he had contracted herpes and obtaining her consent to sexual intercourse in these circumstances." (ECF No. 43 ¶¶ 33-34, 37-38, 43-46.)

DISCUSSION

The defendant makes two challenges to the third superseding indictment. First, he argues that the racketeering count must be dismissed because the indictment does not allege a legally cognizable enterprise within the meaning of 18 U.S.C. § 1962(c). (ECF No. 41 at 5-10.) Second, he moves to strike the charges that cite Section 2307 of the New York Public Health Law on the theory that the law is "facially invalid, overbroad, and vague." (ECF No. 49 at 1.) Neither claim is persuasive.

I. Motion to Dismiss Count One

"The dismissal of an indictment is an extraordinary remedy reserved only for extremely limited circumstances implicating fundamental rights." United States v. De La Pava , 268 F.3d 157, 165 (2d Cir. 2001) (citation and internal quotation marks omitted). Rule 7 of the Federal Rules of Criminal Procedure requires that an indictment contain a "plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). An indictment satisfies this rule if it "first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Stringer , 730 F.3d 120, 124 (2d Cir. 2013) (quoting Hamling v. United States , 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (internal quotation marks and citations omitted)).

To withstand a motion to dismiss pursuant to Rule 12, an indictment "need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." United States v. Yannotti , 541 F.3d 112, 127 (2d Cir. 2008) (citation omitted); see also Hamling , 418 U.S. at 117, 94 S.Ct. 2887 ("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 offence intended to be punished.’ ") (citation omitted). Indictments do not "have to specify evidence or details of how the offense was committed," United States v. Wey , No. 15-CR-611, 2017 WL 237651, at *5 (S.D.N.Y. Jan. 18, 2017) (citations omitted), and "[a] pretrial motion to dismiss an indictment must not weigh the sufficiency of the evidence," United States v. Tucker , No. 16-CR-91, 2017 WL 3610587, at *2 (S.D.N.Y. Mar. 1, 2017) (citing United States v. Alfonso , 143 F.3d 772, 777 (2d Cir. 1998) ). Finally, "[w]hen considering a motion to dismiss, the Court must treat the indictment's allegations as true." Wey , 2017 WL 237651, at *5 (citing United States v. Velastegui , 199 F.3d 590, 592 n.2 (2d Cir. 1999), cert. denied , 531 U.S. 823, 121 S.Ct. 67, 148 L.Ed.2d 32 (2000) ).

The first count of the third superseding indictment charges the defendant with racketeering in violation of 18 U.S.C. § 1962(c). An indictment charging a violation of Section 1962(c) is sufficient if it alleges the following elements: "(1) that the defendant was employed by or associated with an enterprise; (2) that the defendant knowingly conducted or participated directly or indirectly in the conduct of the affairs of the enterprise through a pattern of racketeering activity; (3) that the defendant knowingly committed or aided and abetted the commission of at least two acts of racketeering; and (4) that the activities of the enterprise affected interstate or foreign commerce." United States v. Triumph Capital Grp., Inc. , 260 F. Supp. 2d 444, 449 (D. Conn. 2002) (citing United States v. Long , 917 F.2d 691, 696 (2d Cir. 1990) (citations omitted)).

The indictment alleges all four elements. Count One charges that from 1994 to "present," the defendant was a member and leader of an enterprise, the activities and affairs of which affected interstate and foreign commerce. (ECF No. 43 ¶ 12.) It alleges that the defendant knowingly participated in "the conduct of the affairs of the [e]nterprise through a pattern of racketeering activity" which was designed to achieve the common purposes of the enterprise: to recruit women and girls for illegal sexual activity and to produce child pornography. (Id. ¶¶ 1, 10, 11-38.) Further, it alleges that the defendant and other members of the enterprise committed fourteen separate acts consistent with the enterprise's purpose, and includes the approximate times and places of those acts. (Id. ¶¶ 13-38.) Accordingly, Count One states the elements of the offense of racketeering. See Alfonso , 143 F.3d at 776 ("We have no doubt that Count One of the indictment in the instant case meets these basic pleading requirements by accurately stating the elements of the offense charged and the approximate time and place of the robbery that defendants allegedly conspired to commit ...."); United States v. Cooper , 17-CR-296, 2020 WL 2307646, at *3 (E.D.N.Y. May 8, 2020) ("Because the government's allegations in the superseding indictment clearly track and satisfy the elements, if proven, of the charged racketeering-related counts, they are sufficient under Rule 7(c).") (citation omitted).

Nevertheless, the defendant maintains that the allegations in the indictment do "not form a legally cognizable RICO enterprise under the law." (ECF No. 41 at 5.) First, citing Boyle v. United States , 556 U.S. 938, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009), he argues that the Government does not sufficiently identify the enterprise's purpose, the identities of the enterprise's members, the members’ relationships with the enterprise or the longevity of the enterprise. (Id. at 7.) Second, citing a host of civil cases, he argues that the indictment's description of the enterprise is flawed as a matter of law because "a party cannot be both the defendant ‘person’ and the ‘enterprise.’ " (Id. at 8 (emphasis in the original).) Neither argument is persuasive.

The essence of the defendant's first argument is that the "structural features" discussed in Boyle are sub-elements of an "enterprise" that also must be alleged in an indictment. The Government responds that the Boyle features are not essential elements of a racketeering offense that need to be pleaded to satisfy Rule 7 ; it maintains that the allegation of an association-in-fact enterprise by itself is sufficient and that requiring it to plead an enterprise with the Boyle features is tantamount to challenging the evidentiary sufficiency of a properly pleaded indictment. (ECF No. 46 at 6 ("[A] motion to dismiss an indictment for its failure...