United States v. Raineri

• Decision Date: 29 October 1980
• Docket Number: No. 80-CR-29.,80-CR-29.
• Citation: 521 F. Supp. 16
• Parties: UNITED STATES of America, Plaintiff, v. Alex J. RAINERI, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

521 F. Supp. 16

UNITED STATES of America, Plaintiff, v. Alex J. RAINERI, Defendant.

No. 80-CR-29.

United States District Court, W. D. Wisconsin.

October 29, 1980.

COPYRIGHT MATERIAL OMITTED

Frank M. Tuerkheimer, U. S. Atty., Madison, Wis., for plaintiff.

Daniel W. Linehan and Gene D. Linehan, Linehan Law Offices, Madison, Wis., for defendant.

ORDER

CRABB, Chief Judge.

On October 15, 1980, the Honorable William L. Gansner, United States Magistrate, entered a Report and Recommendation in this case, directed to eight motions to dismiss filed by defendant. Neither party has filed an objection to the report and recommendation although provided with an opportunity to do so.

In the absence of any objections, I consider that I am under no obligation to undertake a review of any portion of the record or of any of the proposed findings or recommendations made by the magistrate. However, I have made such a review to satisfy myself that the findings and recommendations are supported by the record and the law.

At the outset, I express my admiration for the manner in which the magistrate has organized and clarified the defendant's numerous and often overlapping motions. For the purpose of the following discussion, I will adopt the numbering system used by the magistrate in his report and recommendation.

Defendant's motions (2), (3), (4) and (7) are directed to alleged defects in the government's proof which are properly evaluated at trial. As the magistrate observed, any pretrial determination would be wasteful of the time of both the court and the parties. Moreover, such a pretrial determination might have the legal effect of an acquittal of the defendant, thereby barring trial. While such a result would be desirable to defendant, it would be unduly prejudicial to the government, which has its own interest in obtaining a fair trial on the charges against defendant. Defendant's motions (2), (3), (4) and (7) will be denied.

Defendant's motion (6), relating to election by the government of the false statements it will proceed upon at trial, needs no action, since the government has made an election as requested by defendant. However, so that the record is clear, the motion will be denied.

Defendant's motion (2) requires little comment. In this motion, defendant contends that Count I is duplicitous because it alleges two means of commission of the same illegal act. The magistrate noted, correctly, that such an allegation is not duplicitous, but proper, and that any potential confusion among the jurors may be avoided by careful instructions. This motion will be denied.

Defendant's motion (1) requires only slightly more comment. The United States Attorney is under no obligation to produce exculpatory evidence to the grand jury, except possibly (and I stress possibly) that which would clearly and unequivocally negate guilt. In the absence of any showing by defendant that the government was in possession of guilt-negating evidence, I decline to review or to evaluate the evidence which was presented to the grand jury. Defendant's motion (1) will be denied, as will his motion for an evidentiary hearing on the motion.

Finally, I turn to defendant's motion to dismiss (8), on the ground that Count V is legally insufficient to state a crime. It is defendant's position that the indictment is insufficient because it charges him with threatening a witness without alleging that he knew that the person threatened was to be a witness. The law does not require such knowledge on the part of a defendant; a fortiori none need be alleged in the indictment. United States v. De Stefano, 476 F.2d 324, 328-29 (7th Cir. 1973). This motion will be denied.

ORDER

IT IS ORDERED that

1. The findings of fact proposed by the United States Magistrate in his Report and Recommendation of October 15, 1980, are adopted as the court's findings of fact.

2. The defendant's motions to dismiss numbered (1) through (8) in the Report and Recommendation are DENIED.

3. The defendant's requests for pretrial evidentiary hearings on his motions to dismiss numbered (1), (2), (3), (4), (5) and (8) are DENIED.

REPORT AND RECOMMENDATION

WILLIAM L. GANSNER, Magistrate.

INTRODUCTION

This report and recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(B). It addresses the fourth group of defendant Raineri's pretrial motions, those seeking dismissal of the charges in this case.

On June 6, 1980, a five-count indictment was returned against Alex J. Raineri.

The first three counts, which span a five-week period from August 23 to September 29, 1978, allege that defendant caused the use of a facility in interstate commerce¹ with intent to promote and facilitate the carrying on of a business enterprise involving prostitution (the Show Bar in Hurley, Wisconsin), and that he thereafter performed certain acts to facilitate the prostitution enterprise: Count I — caused a check payable to a prostitute to be taken across the state line; Count II — caused a check paying for electrical power provided to the Show Bar to be taken across the state line; and Count III — caused the delivery and pickup facilities of American Linen Supply to be used between Minnesota and Wisconsin. Counts I, II, and III allege violations of 18 U.S.C. §§ 1952 and 2.

Count IV alleges that defendant committed perjury, in violation of 18 U.S.C. § 1623, when he testified before the Grand Jury on March 18, 1980, and denied having travelled with Cira Gasbarri — the person running the Show Bar — to and from Reno, Nevada, during a three-week period in September and October of 1978.

Count V alleges that on March 19, 1980, defendant endeavored to obstruct justice by arranging for a Grand Jury witness, Patricia Colassaco, to be threatened in connection with her prospective testimony, in violation of 18 U.S.C. § 1503.

The following dismissal motions are before the court:

1. Motion to dismiss the indictment on the ground of the government's failure to present exculpatory evidence to the Grand Jury;

2. Motion to dismiss Counts I, II, and III on the grounds that these counts do not allege a business enterprise within the meaning of 18 U.S.C. § 1952 and that the crimes charged are not within the intended scope of § 1952;

3. Motion to dismiss Counts I, II, and III on the ground that the interstate activity alleged in these counts is insufficient to state an offense;

4. Motion to dismiss Counts I, II, and III on the ground that these counts do not allege the requisite intent;

5. Motion to dismiss Count I or require the government to elect, on the ground that the count is duplicitous;

6. Motion to dismiss Count IV or require the government to elect, on the ground that not all statements alleged in the count are false;

7. Motion to dismiss Count IV on the ground that the alleged false statements are not material; and

8. Motion to dismiss Count V on the ground of insufficiency.

The following motions filed by defendant are not addressed in this report and recommendation, for the reasons stated:

1. Motion to dismiss the indictment on the ground that the court's plan for selection of grand and petit jurors will deny defendant's right to a fair and impartial jury of his peers (motion not yet ripe for decision; see Decision and Order entered October 3, 1980, at 4-6);

2. Motion to dismiss the indictment on grounds of pre-indictment delay (motion withdrawn by defendant; see Defendant's Reply Memorandum, at 6);

3. Motion to dismiss Counts I, II, and III on the ground that no principal has been charged in connection with these counts (motion withdrawn by defendant; see Defendant's Reply Memorandum, at 17).

Such facts as are necessary to a consideration of defendant's motions are incorporated within the appropriate section of the following opinion.

OPINION

1. The Grand Jury and Exculpatory Evidence

Defendant has moved to dismiss the indictment in this case on the ground that the indictment was obtained as a result of the government's failure to present the grand jurors with exculpatory evidence.² Defendant has further moved for an evidentiary hearing on his motion at which, he claims, "he will be able to present witnesses who will demonstrate that a principal Government witness or witnesses against the Defendant in this action harbor extremely ill feelings against the Defendant and suffer from severe mental disorders." (Defendant's Memorandum In Support of Motions, at 35). Although defendant's argument refers to "witnesses," it is clear from both other arguments in his brief and from counsel's affidavit in support of the motion that he is referring to only one witness — Cira Gasbarri. It is defendant's contention that the government was obliged to inform the grand jury that Ms. Gasbarri "was in a mental state which would reflect upon her competency to testify." (Defendant's Motion to Dismiss-8, at 1).

The government has demonstrated by affidavit that Ms. Gasbarri's testimony before the Grand Jury played a substantial part in the ultimate indictment in this case. (Affidavit of Frank M. Tuerkheimer, filed July 18, 1980, at paragraphs 7-17). The government has also conceded, in essence, that evidence bearing upon Ms. Gasbarri's mental state per se was not presented to the Grand Jury. The government argues, however, that it was not legally obliged to present such evidence and that Ms. Gasbarri's testimony was corroborated by testimony from a number of other witnesses.

Upon review of counsel's affidavits and arguments, I am persuaded that no evidentiary hearing on the alleged exculpatory evidence as to Ms. Gasbarri's mental state or competency is necessary, and that defendant's motion to dismiss the indictment because of the government's failure to present such evidence to the Grand Jury should be denied.

The parties apparently agree that the government generally is under no obligation to present a Grand Jury with all of the potentially exculpatory evidence in its possession. The parties also apparently agree...