United States v. Pirk, 1:15–CR–00142 EAW
| Decision Date | 24 July 2017 |
| Docket Number | 1:15–CR–00142 EAW |
| Parties | UNITED STATES of America, v. David PIRK, Andre Jenkins, a/k/a Little Bear, Timothy Enix a/k/a Blaze, Filip Caruso a/k/a Filly, Edgar Dekay, II a/k/a Ed a/k/a Special Ed, Jason Williams a/k/a Toop, Thomas Koszuta a/k/a Kazoo, Gregory Willson a/k/a Flip, Emmett Green, Robert Osborne, Jr., Stanley Olejniczak, Jack Wood a/k/a Jake a/k/a Snake, Ryan Myrtle, Thomas Scanlon a/k/a Tom, Glen Stacharczyck a/k/a Turbo, and Sean McIndoo a/k/a Professor, Defendants. |
| Court | U.S. District Court — Western District of New York |
Brendan T. Cullinane, Joseph M. Tripi, U.S. Attorney's Office, Buffalo, NY, Marianne Shelvey, U.S. Department of Justice/Organized Crime Section, Washington, DC, for the United States of America.
Joseph A. Agro, Thomas J. Eoannou, Buffalo, NY, for Defendant Gregory Willson.
Cheryl Meyers Buth, Meyers Buth Law Group PLLC, Orchard Park, NY, William T. Easton, Rochester, NY, for Defendant David Pirk.
Barry Nelson Covert, Herbert L. Greenman, Lipsitz Green Scime Cambria LLP, Michael S. Deal, DeMarie & Schoenborn, P.C., Buffalo, NY, for Defendant Andre Jenkins.
John Patrick Pieri, John Patrick Pieri, Esq., Buffalo, NY, for Defendant Flip Caruso.
Emily P. Trott, Buffalo, NY, for Defendant Edgar Dekay II.
A. Joseph Catalano, Niagara Falls, NY, for Defendant Jason Williams.
Lori Ann Hoffman, Tully Rinckey PLLC, Buffalo, NY, for Defendant Thomas Koszuta.
Kevin W. Spitler, Buffalo, NY, for Defendant Emmett Green.
Andrew D. Brautigam, Brautigam & Brautigam, LLP, Fredonia, NY, for Defendant Robert Osborne, Jr.
Michael J. Stachowski, Buffalo, NY, for Defendant Stanley Olejniczak.
John J. Molloy, West Seneca, NY, for Defendant Jack Wood.
Lawrence J. Desiderio, Law Office of Lawrence Desiderio, Buffalo, NY, for Defendant Ryan Myrtle.
Daniel C. Oliverio, Reetuparna Dutta, Patrick E. Fitzsimmons, Timothy W. Hoover, Spencer Leeds Durland, Hodgson Russ LLP, Buffalo, NY, for Defendant Thomas Scanlon.
Mehmet K. Okay, The Okay Law Firm, Batavia, NY, for Defendant Glen Stacharczyck.
Mark J. Mahoney, Harrington and Mahoney, Buffalo, NY, for Defendant Sean McIndoo.
DECISION AND ORDER
The above-captioned matter involves 12 remaining defendants1 named in a 46-count Second Superseding Indictment (Dkt. 33) ("Indictment") returned on March 16, 2016, alleging various crimes, including a conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq.("RICO"), in connection with the operation of the Kingsmen Motorcycle Club ("KMC").
The Court initially referred all pretrial matters to Magistrate Judge Michael J. Roemer, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). (Dkt. 35). On September 7, 2016, Judge Roemer issued a Decision and Order that set December 7, 2016, as the deadline to file pretrial motions. (Dkt. 294).2 In an effort to promote the expeditious handling of the pretrial motions, the undersigned subsequently terminated the referral to Judge Roemer of many of the pretrial motions. (Dkt. 446; Dkt. 473; Dkt. 534).
This Decision and Order addresses the following aspects of Defendants' pretrial motions that are presently pending before the undersigned:
In short, this Decision and Order is intended to address all pending motions to dismiss and motions for bills of particular,3 except for the following which will be addressed separately: (1) Jenkins' motion to dismiss based on double jeopardy grounds (Dkt. 522); and (2) Scanlon's motion to dismiss Counts 28, 29, and 30 and motion for a bill of particulars regarding Counts 27 and 28 (Dkt. 385).4
For the reasons set forth below, the motions to dismiss are denied, and the motions for bills of particular are denied, except to the extent that particularization is sought for Counts 34–36 and 45–46, with respect to which the Court reserves decision and requests supplemental briefing from the Government within 14 days of the entry of this Decision and Order, with the Defendants seeking particularization on those counts to provide any response within 14 days after the filing of the Government's supplemental briefing, at which point the Court will take the matter under advisement.
Federal Rule of Criminal Procedure 12(b) states that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). "The general issue in a criminal trial is, of course, whether the defendant is guilty of the offense charged." United States v . Doe , 63 F.3d 121, 125 (2d Cir. 1995). 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 the indictment and determine whether the indictment is valid on its face." United States v . Larson , No. 07-CR-304S, 2011 WL 6029985, at *1 (W.D.N.Y. Dec. 5, 2011) (citing United States v . Bicoastal Corp. , 819 F.Supp. 156, 158 (N.D.N.Y. 1993) ). This Court may not "look beyond the face of the indictment and draw inferences as to the proof that would be introduced by the government at trial." Id. (quoting United States v . Alfonso , 143 F.3d 772, 776 (2d Cir. 1998) ) (alterations omitted).
Federal Rule of Criminal Procedure 7(c) requires that an indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged... Fed. R. Crim. P. 7(c)(1). An indictment is "sufficient if it, first, contains the elements of the offense charged and fairly informs the 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." Alfonso , 143 F.3d at 776 ; see also United States v. Stavroulakis , 952 F.2d 686, 693 (2d Cir. 1992) (). The 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." Alfonso , 143 F.3d at 776.
Count 1 of the Indictment charges a RICO conspiracy in violation of 18 U.S.C. § 1962(d), as to all Defendants. It alleges, in part, as follows:
[T]here existed in the Western District of New York, and elsewhere, a criminal organization, namely the Kingsmen Motorcycle Club ("KMC"). The KMC, including its leadership, members, and associates constituted an enterprise, as defined by Title 18, United States Code, Section 1961(4), that is, a group of individuals associated in fact, the activities of which affected interstate and foreign commerce, consisting of [each of] the [named] defendants ... and others, known and unknown. The enterprise constituted an ongoing organization whose members functioned as a continuing unit for a common purpose of achieving the objectives of the enterprise.
The Indictment then describes the Defendants' alleged roles within the KMC enterprise. (Id. at ¶ 26). It alleges that all Defendants were members of the KMC, and that certain members (that is, all Defendants except Olejniczak) had additional roles within the KMC aside from their membership. (Id. ). As relevant to the instant motions, Pirk was the KMC National President. (Id. ). Jenkins, Scanlon, McIndoo and Willson were Nomads, (id. ), which are KMC members who were "not required to regularly attend all of the enterprise's meetings and other events, but w[ere] expected to serve the interests of the KMC enterprise, including fighting other clubs and committing violent crimes on behalf of the KMC" and who "answered only to the National President, or Regional Presidents passing down orders to the Nomad President from the National President," (id. at ¶ 7). Enix was the Florida/Tennessee Regional President. (Id. at ¶ 26). Caruso was the New York Northern Regional KMC President. (Id. ). Williams was the Vice President of the North Tonawanda Chapter. (Id. ). Osborne was the Olean Chapter President. (Id. ). Wood was the Sergeant at Arms of the Arcade Chapter. (Id. ). Scanlon was the Olean Chapter President and New York Regional President (in addition to being a Nomad). (Id. ). Stacharczyck was the North Tonawanda Chapter President. (Id. ).
The Indictment alleges that the purposes of the KMC enterprise included:
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