United States v. Payden

Decision Date08 July 1985
Docket NumberNo. SS 84 Cr 566 (DNE).,SS 84 Cr 566 (DNE).
Citation613 F. Supp. 800
PartiesUNITED STATES of America v. Donald PAYDEN, Eugene Coleman and Anthony Grant, Defendants.
CourtU.S. District Court — Southern District of New York







Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for plaintiff; John K. Carroll, Asst. U.S. Atty., New York City, of counsel.

Robert M. Simels, P.C., Robert M. Simels, New York City, of counsel, for defendant Donald Payden.

Harry R. Pollack of counsel, for defendant Eugene Coleman.*

Robert L. Herbst, New York City, of counsel, for defendant Anthony Grant.


EDELSTEIN, District Judge:

Defendant Donald Payden ("Payden") has filed pretrial motions covering a wide range of issues. Defendants Anthony Grant ("Grant") and Eugene Coleman ("Coleman") have joined in Payden's motions. The background of this case has been set forth elsewhere, see United States v. Payden, 609 F.Supp. 1273 (S.D.N.Y. 1985), aff'd 768 F.2d 487 (2d Cir.1985); in re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 605 F.Supp. 839 (S.D.N.Y.1985), rev'd, 767 F.2d 26 (2d Cir.1985); United States v. Payden, 598 F.Supp. 1388 (S.D.N.Y.1984), rev'd, 759 F.2d 202 (2d Cir.1985). Familiarity with these opinions is assumed so that only the facts directly relevant to the pretrial motions will be set forth herein.


An indictment was filed on August 13, 1984 charging defendants Payden and Coleman with conspiring to violate the narcotics laws of the United States, in violation of 21 U.S.C. § 846, and charging Payden with distribution and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. A superseding indictment was filed on October 10, 1984, which added a charge against defendant Grant for conspiracy and further charged Payden with organizing and supervising a continuing criminal enterprise, in violation of 21 U.S.C. § 848. A second superseding indictment was filed on February 25, 1985, which contained a more detailed list of items sought by the government from Payden, pursuant to the forfeiture provisions of 21 U.S.C. § 848.


The defendants present a number of potential grounds to dismiss the indictment. Most of these arguments are boilerplate and may be dismissed summarily.

A. Multiple Conspiracies.

The defendants contend that the conspiracy count of the indictment must be dismissed because it alleges multiple conspiracies. Specifically, defendants contend that count one, which alleges a conspiracy between the three defendants and others beginning in 1979 and continuing until 1984, charges several conspiracies, separated by time, location and intermediaries.

An indictment is sufficient if it: (1) contains the elements of the offense charged; (2) fairly informs the defendant of the nature of the criminal activity with which he is charged; and (3) enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. United States v. Carrier, 672 F.2d 300, 303 (2d Cir.), cert. denied, 457 U.S. 1139, 102 S.Ct. 2972, 73 L.Ed.2d 1359 (1982). "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.' ... `Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.'" Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 2907-2908, 41 L.Ed.2d 590 (1974) (quoting United States v. Carll, 105 U.S. 611, 612, 15 Otto 611, 26 L.Ed. 1135 (1882) and United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31 L.Ed. 516 (1888)).1

Count one charges a conspiracy spanning over five years, and lists nine overt acts committed in furtherance of the conspiracy. Rule 8(a) of the Federal Rules of Criminal Procedure prohibits the charging of more than one offense in one count. Rule 7(c), however, specifically authorizes charging in a single count that an offense was committed by more than one means. "The charging of multiple means constituting a single and continuing offense is thus permitted even though the components of that single offense may otherwise be treated as separate offenses.... The question that arises, therefore, is whether the statute under which the defendants have been charged `by its very nature, contemplates that several separate transactions form a single, continuing scheme, and may therefore be charged in a single count.'" United States v. Abrams, 543 F.Supp. 1184, 1190 (S.D.N.Y.1982) (quoting United States v. Daley, 454 F.2d 505, 509 (1st Cir.1972)); see United States v. Berardi, 675 F.2d 894, 897-99 (7th Cir.1982).

The narcotics conspiracy statute, 21 U.S.C. § 846, does "by its very nature contemplate that several separate transactions form a single, continuing scheme." See United States v. Perry, 550 F.2d 524, 531 (9th Cir.), cert. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 228, 434 U.S. 827, 98 S.Ct. 104, 54 L.Ed.2d 85 (1977); United States v. Panebianco, 543 F.2d 447, 452-53 (2d Cir.1976) ("Most narcotics networks involve loosely knit vertically-integrated combinations.... Individual customers and suppliers are members of one overall conspiracy if they are aware of the size of the middleman's operations.... Parallel sales operations can be part of the same conspiracy if there is evidence of mutual dependence and support.... Hibernation for a few months does not necessarily signal the end of a criminal partnership.... Nor is a conspiracy terminated simply by turnover in some of the personnel"), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977). Even assuming, as the defendants contend, that the alleged conspirators were at various points separated by time, location and intermediaries, this does not warrant dismissal of the indictment as multiplicitous. United States v. Moten, 564 F.2d 620, 624-25 (2d Cir.), cert. denied, 434 U.S. 942, 959, 98 S.Ct. 438, 489, 54 L.Ed.2d 304, 318 (1977), 434 U.S. 974, 98 S.Ct. 531, 54 L.Ed.2d 466 (1978). Accordingly, the indictment is not void for charging multiple conspiracies.2

Payden contends that the evidence will show separate networks of drug dealing. At this juncture, however, the court is not in a position to judge the nature and the weight of the evidence to be introduced at trial. Any confusion the jury might suffer because of the nature of the conspiracy charged and proved may be ameliorated by instructing the jury on multiple conspiracies. See United States v. Konefal, 566 F.Supp. 698, 702 (N.D.N.Y.1983) ("Defendants will be protected from jury confusion or multiplicity problems by the use of appropriate jury instructions."). The government has stated that it will not object to such a charge. Government's Memorandum in Opposition to Payden's Pretrial Motions at 19. If at the close of the evidence, the court is convinced that "the evidence shows separate networks operating independently of each other," United States v. Barlin, 686 F.2d 81, 89 (2d Cir.1982), the court will instruct the jury on multiple conspiracies, see United States v. Wilkinson, 754 F.2d 1427, 1434 (2d Cir. 1985).

B. The Forfeiture Count.

Payden also contends that count two, the § 848 count, must be dismissed because it does not satisfy the notice requirements of Rule 7(c). This objection is unfounded. Rule 7(c)(2) provides: "No judgment of forfeiture may be entered in a criminal proceeding unless the indictment or the information shall allege the extent of the interest or property subject to forfeiture." All that is required under this rule is a broad allegation regarding the items sought through forfeiture. See, e.g., United States v. Grammatikos, 633 F.2d 1013, 1024 (2d Cir.1980); United States v. Thevis, 474 F.Supp. 134, 145 (N.D.Ga.1979); United States v. Bergdoll, 412 F.Supp. 1308, 1318-19 n. 17 (D.Del.1976). Count two seeks forfeiture of all profits and proceeds of profits obtained by Payden from the alleged continuing criminal enterprise and four specific items, namely $2,000.00 in cash, a twenty-five per cent interest in a company represented by shares of stock held in another person's name, an automobile and jewelry seized from Payden's home. The forfeiture count also contains an appendix which describes, in detail, the jewelry the government charges is forfeitable. There can be no credible claim that the indictment does not sufficiently allege "the extent of the interest or property subject to forfeiture," as required by Rule 7(c)(2).3 See United States v. Grammatikos, 633 F.2d 1013 (2d Cir.1980); United States v. Thevis, 474 F.Supp. 134 (N.D.Ga. 1974).

In his supplemental pre-trial motion, Payden also seeks to strike from the indictment that part of the § 848 count which seeks forfeiture of an automobile and jewelry. Payden contends that because the § 848 count alleges that the enterprise began in January of 1979, it was the government's burden in presenting evidence before the Grand Jury to establish probable cause that the automobile and jewelry were purchased by Payden after January of 1979. Payden states that he has gathered evidence contrary to the government's charge that the assets were acquired after the commencement of the alleged enterprise.

This argument is rejected. It is well established that a facially valid indictment returned by a legally constituted and unbiased grand jury may not be challenged on the ground that it was based on inadequate evidence. Costello...

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