United States v. Larson

• Decision Date: 05 December 2011
• Docket Number: 07-CR-304S
• Parties: UNITED STATES OF AMERICA, v. CARL A. LARSON, ET AL., Defendants.
• Court: U.S. District Court — Western District of New York

UNITED STATES OF AMERICA,

v.CARL A. LARSON, ET AL., Defendants.

07-CR-304S

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Date: December 5, 2011

DECISION AND ORDER

I. INTRODUCTION

Pending before this Court is the second motion of Defendant Gerald E. Bove to dismiss Count One of the Superseding Indictment ("Sup. Indict."). (Docket No. 244.) Defendants Mark N. Kirsch, George Dewald, Michael J. Eddy, Michael J. Caggiano, Jeffrey A. Peterson, Jeffrey C. Lennon, Thomas Freedenberg, and Kenneth Edbauer have joined in this motion.¹ (Docket No. 266.) For the reasons discussed below, Defendants' motion will be denied.

II. BACKGROUND

This is a criminal action brought under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. ("RICO"), and the Hobbs Act, 18 U.S.C. § 1951. Over the course of about eleven years, Defendants, members of a construction union known as "Local 17," are alleged to have engaged in threats, physical violence, and property damage in an attempt to force construction employers in Western New York to hire Local 17 members for their projects.

In April 2010, Defendants jointly filed two motions to dismiss the Superseding Indictment(Docket No. 4), which were heard by the Honorable Hugh B. Scott, United States Magistrate Judge. On October 12, 2010, Judge Scott issued a Report and Recommendation ("R&R") recommending Defendants' motions be granted. (Docket No. 184.) The Government filed objections to the R&R. After full briefing by the parties and oral argument, on August 10, 2011, this Court issued a Decision and Order setting aside Judge Scott's recommendations and denying the motions to dismiss.² (Docket No. 229.)

On October 13, 2011, Defendant Bove moved for leave to file a second motion to dismiss. This Court granted the motion, along with the motions of Defendants Kirsch, Dewald, Eddy, Caggiano, Peterson, Lennon, Freedenberg, and Edbauer to join Defendant Bove's motion. (Docket Nos. 249, 266.) The government filed a response to Defendants' motion, to which Defendants replied. (Docket Nos. 251, 263.)

III. DISCUSSION

A. Legal Standards

Rule 12(b) of the Federal Rules of Criminal Procedure provides that a motion to dismiss may raise "any defense, objection, or request that the court can determine without a trial of the general issue." Fed. R. Crim. P. 12(b)(2). A pre-trial motion to dismiss an indictment under Rule 12 must satisfy a "high standard." United States v. Lazore, 90 F.Supp.2d 202, 203 (N.D.N.Y. 2000). In deciding a motion to dismiss an indictment for failure to state a criminal offense, a court must assume the truth of the allegations in theindictment and determine whether the indictment is valid on its face. United States v. Bicoastal Corp., 819 F.Supp. 156, 158 (N.D.N.Y. 1993). This Court is not permitted to "look[] beyond the face of the indictment and [draw] inferences as to the proof that would be introduced by the government at trial[.]" United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998).

Rule 7(c) 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). An indictment is constitutionally sufficient if it (1) contains the essential elements of the offense charged so as to inform the defendant of the nature and cause of the accusation; (2) contains enough detail to enable the defendant to plead double jeopardy in a future prosecution based on the same set of facts; and (3) prevents prosecution for crimes based on evidence not presented to the grand jury. United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999) (citing United States v. Silverman, 430 F.2d 106, 110 (2d Cir.), modified, 439 F.2d 1198 (2d Cir. 1970)).

B. Sufficiency of Count One of the Indictment

At the outset, this Court notes that Defendants' motion only seeks dismissal of Count One of the Superseding Indictment, which alleges a RICO conspiracy. Defendants Caggiano and Freedenberg, however, are not charged in Count One. Defendant Caggiano is charged in Counts Two and Three (Hobbs Act conspiracy and one count of attempted Hobbs Act extortion), and Defendant Freedenberg is charged in Counts Two and Eight (same). (See Sup. Indict. at pp. 32, 53, 59.) As such, this Court will deny the motions of Defendants Caggiano and Freedenberg as moot.

Count One of the Superseding Indictment alleges in relevant part:

There existed in the Western District of New York, and elsewhere, an "Enterprise" as that term is defined in Title 18, United States Code, Section 1961(4); namely, a labor union and a group of individuals associated in fact. The Enterprise consisted of a labor union known as [Local 17], a labor organization as defined under the Labor Management Relations Act, Title 29, United States Code, Section 152(5) . . . and defendants CARL A. LARSON, JAMES L. MINTER III, MARK N. KIRSCH, GERALD H. FRANZ, JR., JEFFREY A. PETERSON, GERALD E. BOVE, JEFFREY C. LENNON, KENNETH EDBAUER, GEORGE DEWALD, and MICHAEL J. EDDY, and others, known and unknown to the grand jury, who were associated in fact and will be hereinafter referred to as the Local 17 Criminal Enterprise.

(Sup. Indict. at 2.) Additionally, the indictment alleges that, from on or about January 1, 1997 to December 2007, "the Local 17 Criminal Enterprise functioned as a continuing unit for a common purpose to achieve shared objectives[.] . . . The Local 17 Criminal Enterprise was engaged in, and its activities affected, interstate commerce." (Sup. Indict. at 2-3.)

The indictment goes on to describe the various roles of Defendants in the alleged enterprise. For example, Defendant Kirsch is described as a "primary figure within the Local 17 Criminal Enterprise and a member of Local 17. Kirsch is currently the President and Business Manager for Local 17 and has held those positions continuously since 1997." (Sup. Indict. at 3.) Defendant Peterson is described as a "member" of Local 17 "who also occupied positions of influence within the Local 17 Criminal Enterprise, including, Guard, Organizer, Financial Secretary and Business Representative since at least 2000." (Sup. Indict. at 4.) Defendant Bove is alleged to be a "member of Local 17 who also occupied positions of influence within the Local 17 Criminal Enterprise, including, Vice President and Business Representative from at least 2000 through his retirement in 2004." (Sup. Indict. at 4.) Defendants Lennon, Edbauer, Dewald, and Eddy are alleged to be "members" ofLocal 17 and "associated with the Local 17 Criminal Enterprise." (Sup. Indict. at 4.)

The indictment describes the objectives of the Local 17 Criminal Enterprise to include "attempts to obtain by extortion" the property - primarily jobs - of various construction employers throughout Western New York. (Sup. Indict. at 5.) The indictment continues:

[D]efendants . . . together and with others, both known and unknown, being persons employed by and associated with the Local 17 Criminal Enterprise, which was engaged in, and the activities of which affected, interstate commerce, unlawfully and knowingly combined, conspired, confederated and agreed, together, with each other, and with others, to violate the provisions of Title 18, United States Code, Section 1962(c); that is, to conduct and participate, directly and indirectly, in the conduct of the affairs of the Local 17 Criminal Enterprise through a pattern of racketeering activity . . .

It was a part of the conspiracy that during the aforesaid period, [Defendants], together and with others, agreed that a conspirator employed by or associated with the Local 17 Criminal Enterprise would commit at least two acts of racketeering activity in the conduct of the affairs of the Local 17 Criminal Enterprise.

(Sup. Indict. at 8-9.)

Defendants contend that Count One of the Superseding Indictment is facially insufficient because it does not adequately describe the existence of a criminal "enterprise," as is required to charge Defendants with a RICO conspiracy under 18 U.S.C. § 1962(d). In particular, Defendants argue that the government has failed to describe an entity with the requisite purpose, relationships among the participants, and longevity to qualify as an "enterprise" under RICO. (Mem. in Support of Mot. Dismiss at 4 (citing Boyle v. United States, _ U.S. _, 129 S.Ct. 2237, 2243-44, 173 L.Ed.2d 1265 (2009).) Defendants maintain that "[t]he concept of an 'enterprise' in this case is so abstract andinsubstantial that it is imponderable to imagine how it could be proven to 'exist' or, for that matter proven not to exist." (Id. at 5 (emphasis in original).) Because the indictment fails to adequately allege an essential element of the crime of RICO conspiracy, Defendants contend Count One must be dismissed.

The threshold question is whether the indictment is required to allege the existence of an "enterprise" in charging Defendants with racketeering conspiracy under 18 U.S.C. § 1962(d). The relevant substantive RICO offense prohibits "any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity[.]" 18 U.S.C. § 1962(c). In turn, the RICO conspiracy provision states that "[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section." 18 U.S.C. § 1962(d).

The Court of Appeals for the Second Circuit recently addressed the question of whether the establishment of an "enterprise" is an essential element of the crime of RICO conspiracy under § 1962(d). In United States v. Applins, 637 F.3d 59 (2d Cir. 2011), cert. denied by Pierce v. United States, _ S.Ct. _, 2011 WL 3958466 (Oct. 11, 2011), defendants allegedly were members of a Syracuse, New York, street gang known as the "Elk...