United States v. Manetti

• Decision Date: 08 February 1971
• Docket Number: Crim. A. No. 2052.
• Citation: 323 F. Supp. 683
• Parties: UNITED STATES of America, Plaintiff, v. Vincent J. MANETTI, Cathy Pritchard, James M. Saunders, Geraldine Octavio Turner and Vandella W. Burke, Defendants.
• Court: U.S. District Court — District of Delaware

323 F. Supp. 683

UNITED STATES of America, Plaintiff, v. Vincent J. MANETTI, Cathy Pritchard, James M. Saunders, Geraldine Octavio Turner and Vandella W. Burke, Defendants.

Crim. A. No. 2052.

United States District Court, D. Delaware.

February 8, 1971.

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Joseph J. Longobardi, Jr., of Longobardi & Schwartz, Wilmington, Del., for defendants Vincent J. Manetti, Cathy Pritchard and Geraldine Octavio Turner.

Robert H. Richards, III, of Richards, Layton & Finger, Wilmington, Del., for defendant Vandella W. Burke.

Sidney Balick, of Aerenson & Balick, Wilmington, Del., for defendant James M. Saunders.

Norman Levine, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

STAPLETON, District Judge.

This case is currently before me on the following motions:

1. Motions of defendants Manetti, Pritchard, Turner and Burke to dismiss the indictment as to them on the ground that it is too vague and indefinite.

2. Motions of defendants Manetti, Pritchard and Turner to dismiss the indictment as to them on the ground that the dismissal of a prior indictment against them under Rule 48(a) of the Federal Rules of Criminal Procedure precluded further prosecution with respect to the same subject matter.

3. Motions of defendants Manetti, Pritchard, Turner and Burke to dismiss the indictment on the ground that the grand jury which returned it was the same panel which had been presented with illegally seized evidence in an earlier proceeding against some of the present defendants.

4. Motions of defendants Manetti, Pritchard, Saunders and Burke to permit inspection and copying of the grand jury record.

5. Motions of defendants Manetti, Pritchard, Turner and Burke for a bill of particulars.

6. Motion of defendant Burke to sever.

7. Motion of defendant Burke to transfer.

8. Motions of defendants Manetti, Pritchard, Turner and Burke to inspect certain documents and records.

I. SUFFICIENCY OF THE INDICTMENT.

The indictment consists of one count. Paragraph 1 alleges that the defendants and certain other named individuals, from on or about December 1, 1965, until January 16, 1969, willfully conspired with each other and with "diverse other persons" to commit violations of Sections 1084 and 1952 of Title 18 of the United States Code.¹

Paragraph 2 of the indictment charges that "it was a part of the conspiracy" that Manetti, Turner and one Jordan "did travel and cause travel in interstate commerce with the intent to promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of an unlawful activity, that is, a business enterprise involving gambling in the form of numbers writing, otherwise known as lottery policy writing, in violation of Title 11, Delaware Code, Sections 661, 662, 665 and 670(a) in violation of Title 18, United States Code, § 1952".

Paragraph 3 alleges "that it was further a part of said conspiracy, that defendants, being engaged in the business of numbers writing", did "knowingly cause" the use of telephone facilities for the transmission between specified points in Maryland and Delaware of "bets, wagers, information (sic.) which entitled betters and wagerers to receive money or credit as a result of bets or wagers, and other gambling information in violation of Title 18, United States Code, §§ 1084 and 1952".

Paragraph 4 alleges "that it was a part of said conspiracy that defendants would cause" the receiving of numbers bets and wagers at various specified points in Maryland and Delaware.

Paragraph 5 of the indictment alleges that "it was further part of the conspiracy that defendants would cause" interstate telephone communications of numbers bets, wagers and other gambling information between specified points in Maryland and Delaware.

Paragraph 6 alleges that "it was further part of the conspiracy that defendants would cause interstate travel for the purpose of receiving and distributing monies that were the proceeds of said bets and wagers between" specified points in Maryland and Delaware.

Paragraph 7 of the indictment alleges a number of specific overt acts which are claimed to have been done in furtherance of the conspiracy. While four of these specific acts are not expressly alleged to have been done by any of the named defendants, it is alleged that on or about November 21, 1968, defendants Manetti and Turner traveled from a specified point in Delaware to a specified point in Maryland and that on or about December 24, 1968, defendant Manetti traveled between specified points in Delaware. The indictment then concludes with the words "all in violation of Title 18, United States Code, Section 371".

The general principles governing this segment of defendants' challenge to the indictment were recently summarized by Judge Latchum in United States v. Borland, 309 F.Supp. 280, 286 (D.Del.1970):

"The general test for the sufficiency of an indictment is whether it contains the elements of the offense intended to be charged, whether it sufficiently apprises the defendant of the charges which he must be prepared to meet and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a formal acquittal or conviction. When the indictment charges a conspiracy to commit offenses against the United States, however, it is well established that `it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy * * * or to state such object with the detail which would be required in an indictment for committing a substantive offense * * *. In charging such a conspiracy "certainty, to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is necessary."' * * *"

The government claims to have met these standards. It relies in particular, upon the subsidiary rule that an indictment which tracks the language of the statutes involved is ordinarily sufficient.²

Defendants, while acknowledging these general rules, point out that where the statutory definition of an offense includes generic terms, the indictment "must descend to particulars"³ and any general description of the offense "must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged."⁴ Defendants also rely upon the rule that where a statute states several offenses in disjunctive, the indictment must inform the defendant of the specific violation or violations with which he is charged.⁵

The indictment, fairly read, charges one crime, a violation of Section 371 of Title 18 of the United States Code. That section makes it a crime for two or more persons to conspire to commit an offense against the United States if one or more of such persons do any act to effect the object of the conspiracy. The elements of the crime prohibited are, accordingly, an agreement, an object unlawful under the laws of the United States, and an overt act.⁶

Of these elements, there can be no material dispute here as to the sufficiency of the allegations of the first and third. Paragraph 1 alleges an agreement between the defendants during a specified period of time. While the time period stated is of substantial duration, this does not, either by itself or in conjunction with any other factor present in this case, impair the validity of the indictment.⁷ Paragraph 7 adequately alleges specific overt acts which a member or members of the alleged conspiracy are claimed to have committed in furtherance of the conspiracy. Since an allegation of one overt act is sufficient, the fact that some of the alleged overt acts are not expressly identified as acts of any conspirator, does not impair the validity of the indictment.⁸

Defendants' contention with respect to the insufficiency of the allegations of an unlawful object, on the other hand, is a more debatable one. In my judgment, that contention would have to be sustained, under the law of the cases cited by defendant, if the charging portion of the indictment contained nothing more than the first paragraph.⁹ The indictment goes on, however, in paragraphs 2 through 7 to acquaint defendant with the specific kind of activity they allegedly conspired to perpetrate. In substance, the charging portion of the indictment, read as a whole, alleges that defendants were engaged in the business of numbers writing and that, during the period from December 1, 1965 to January 16, 1969, they conspired:

(1) to receive numbers bets in Delaware and Maryland,

(2) for some of their number to travel in interstate commerce with the intent of establishing, promoting, managing, carrying on, and facilitating their numbers business in Delaware,

(3) to use telephone facilities for transmission between specified points in Maryland and Delaware of bets, gambling information, and information which entitled betters to receive money or credit as a result of bets, and

(4) to cause interstate travel for the purpose of receiving and distributing monies that were the proceeds of the aforementioned numbers bets.¹⁰

Thus, while it is true the statutory provisions which defendants are alleged to have conspired to violate speak to some extent in generic terms and do refer to a number of different offenses in the disjunctive, the charging portion of the indictment, when fairly read, seems to me to adequately apprise defendants of the conduct they are alleged to have conspired to perpetrate and of the specific segments of the statutes which it was allegedly the object of the conspiracy to violate. With one minor exception,¹¹ no part of the indictment itself is stated in disjunctive, and, accordingly, the fact that the activities which defendants allegedly conspired to conduct would have been a violation of more than one statute, or of...