United States v. King, CR-84-69E.

• Decision Date: 19 November 1984
• Docket Number: No. CR-84-69E.,CR-84-69E.
• Parties: The UNITED STATES of America v. Jerry L. KING.
• Court: U.S. District Court — Western District of New York

597 F. Supp. 1228

The UNITED STATES of America v. Jerry L. KING.

No. CR-84-69E.

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

November 19, 1984.

Rodney O. Personius, Asst. U.S. Atty., Buffalo, N.Y., for plaintiff.

Joel L. Daniels, Buffalo, N.Y., for defendant.

ORDER

ELFVIN, District Judge.

Following trial on a four-count indictment, the above-named individual ("the defendant") was found guilty October 9, 1984 of having conspired to deal in and utter counterfeit money (Count I) in violation of 18 U.S.C. §§ 472 and 473 and of having knowingly engaged "in misleading conduct toward another person with intent to hinder and prevent the communication to a law enforcement officer" of information relating to illegal activity (Count IV) in violation of 18 U.S.C. § 1512. The defendant was acquitted of Counts II and III which charged him with having knowingly transferred and delivered counterfeit money in violation of 18 U.S.C. § 473.

The defendant having moved against the verdicts, this Court heard oral argument on the matter October 15, 1984; defendant's motion as to Count I was denied and defendant's motion as to Count IV was taken under advisement.

The statute upon which Count IV is premised, 18 U.S.C. § 1512, is part of the "Victim and Witness Protection Act of 1982." As is set forth in the Congressional findings and declaration of purposes cited in the notes to the Act, the legislation is intended to "enhance and protect the necessary role of crime victims and witnesses in the criminal justice process," and "to ensure that the Federal Government does all that is possible * * * to assist victims and witnesses of crime without infringing on the constitutional rights of the defendant." Although section 1512 is somewhat generically captioned "Tampering with a witness, victim, or an informant," it is clear from the plain language of the statute that the section is essentially aimed at protecting witnesses and victims from intimidation or harassment. See, e.g., United States v. Hernandez, 730 F.2d 895, 898-899 (2d Cir. 1984). In the present case the government's theory of guilt under Count IV is based on conversations between the defendant and one Frank S. Orgovan, Jr. which took place between July 26th and August 4th of 1983. Orgovan had been previously apprehended by government agents for passing counterfeit money. Unbeknownst to King, Orgovan subsequently had related his and King's guilty conduct and had agreed to be "wired" in order to assist the government's investigation into King's involvement in the counterfeiting scheme. Tapes of two conversations between King and Orgovan, August 2, 1983 (Government's Exhibit 7) and August 4, 1983 (Government's Exhibit 10), were a substantial part of the evidence on the trial. In both conversations King discusses, in a rambling fashion, how Orgovan should respond to the situation King believes them to be in — to wit, threatened with incarceration. In essence, King tells Orgovan that they need to stick together and that the government will put pressure on them in various ways to get them to turn against each other. King repeatedly suggests that Orgovan refuse to cooperate with the authorities, that he should relate an exculpatory story and that he refer them to his (Orgovan's) attorney when pressed.

"They're buffaloing you. See, Frank what they're still trying to do is connect you, me and Dennis King's brother who was in prison on counterfeiting charges, get you to say the counterfeit money came from me or somethin' like that and that's all they're trying to do." Government's Exhibit 10 at 2.

King also promised several times that he would help Orgovan financially both with regard to legal fees and with regard to Orgovan's wife and children in the event Orgovan were to be sentenced to prison. See, e.g., Government's Exhibit 7 at 5, 9 and 17. At no time in either conversation is there any overt intimidation of Orgovan by King. Rather, King speaks more in the context of two friends sticking together when one of them is in trouble:¹

"Believe me, this the counterfeiting is big * * * syndicate stuff. We don't wanta get * * * involved Frank. The best thing to do is take your * * * medicine and keep your mouth shut, because the syndicate will come in and kill you, your family, me, and my family * * *." Id. at 11.

Section 1512 provides in relevant part:

"Whoever knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—* * * hinder, delay or prevent the communication to a law enforcement officer * * * of the United States of information relating to the commission or possible commission of a Federal offense * * *" shall be guilty of an offense against the United States.

The government has chosen in this case to proceed under the "misleading conduct" alternative of the statute. The phrase is defined in 18 U.S.C. § 1515(3) as one of five specific categories of conduct. Clearly the vague and generalized discussions between King and Orgovan, who was himself involved in the counterfeiting scheme, cannot be said to have been actually misleading as to Orgovan; King nevertheless would have violated the statute if the true situation had been as King thought it to be—to wit, that Orgovan had not as of that point in time made any inculpatory revelation to the authorities. So gauged, did King (A) knowingly make a false statement to Orgovan or (B) omit information from his statement to Orgovan or conceal a material fact from Orgovan so that the statement was misleading or a false impression was created or (C) submit to Orgovan...