United States v. Schwimmer

• Decision Date: 30 November 1986
• Docket Number: No. 86 CR 528.,86 CR 528.
• Parties: UNITED STATES of America, v. Martin SCHWIMMER, Defendant.
• Court: U.S. District Court — Eastern District of New York

649 F. Supp. 544

UNITED STATES of America, v. Martin SCHWIMMER, Defendant.

No. 86 CR 528.

United States District Court, E.D. New York.

November 30, 1986.

COPYRIGHT MATERIAL OMITTED

Bruce Maffeo, Sp. Atty., Organized Crime Strike Force, E.D.N.Y., Brooklyn, N.Y., for plaintiff.

Kostelanetz & Ritholz (Robert S. Fink, Kathryn Keneally, New York City, of counsel), for defendant.

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

Defendant is charged in a one-count indictment. It alleges a violation of 18 U.S.C. § 1503,¹ which provides, in relevant part, that "whoever corruptly ... influences, obstructs or impedes, or endeavors to influence, obstruct or impede, the due administration of justice commits a crime." Specifically, defendant is alleged to have corruptly endeavored to influence, obstruct and impede the due administration of justice by causing the creation of a false and fabricated document and its submission to a Special Grand Jury. Defendant has made motions seeking dismissal of the indictment, striking of surplusage, disclosure of certain information, and an audibility hearing.

Facts

The indictment alleges that on November 21, 1983, a Special Grand Jury was empanelled in this District to inquire into possible violations of the federal anti-racketeering statute and other laws. The targets of the investigation were members and associates of the Lucchese crime family. The grand jury was interested in, among other things, certain transactions involving municipal bonds issued by Sullivan County, New York. It sought information concerning the cash purchase by certain individuals of $250,000 worth of those bonds, the subsequent exchange of certain coupons from the bonds for $15,000 in cash, and the subsequent sale of the bonds for $250,000 in cash.

Defendant Schwimmer is alleged to have been a participant in the bond transactions, and he is alleged to have endeavored to obstruct justice by causing the creation and submission to the grand jury of a false and fabricated document relating to the bonds.

Discussion

A. Motion to Dismiss the Indictment

1. Failure to Identify the Allegedly False Document

The first ground upon which defendant seeks dismissal is the failure to identify in the indictment the allegedly falsified document that defendant is accused of having caused to be submitted to the grand jury. Defendant argues that this case may be analogized to a perjury prosecution, and cites several cases, see, e.g., United States v. Tonnelli, 577 F.2d 194, 200 (3d Cir.1978), that stand for the proposition that a perjury indictment must set out specifically the allegedly perjurious statement.

This is not, however, a perjury case. Defendant is charged with obstruction of justice, and the indictment specifies the way in which he is alleged to have obstructed justice: by causing the submission of a false document to the grand jury. See United States v. Friedland, 660 F.2d 919, 930 (3d Cir.1981) (fact that § 1503 obstruction violation consists of attempt to induce rendering of false testimony does not transform it into a "false statements" case, and specificity requirements for such indictments therefore do not apply), cert. denied, 456 U.S. 989, 102 S.Ct. 2268, 73 L.Ed.2d 1283 (1982).

An indictment under section 1503 is sufficient if it "furnishes sufficient information as to the time, place and essential elements of the crime to enable the defendants to prepare for trial and avoid a claim of double jeopardy. United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir.1973) cert. denied, 415 U.S. 985, 94 S.Ct. 1579, 39 L.Ed.2d 882 (1974)." United States v. Weiss, 491 F.2d 460, 466 (2d Cir.), cert. denied, 419 U.S. 833, 95 S.Ct. 58, 42 L.Ed.2d 59 (1974).

Here the indictment reveals the approximate time and place of the alleged obstruction, describes the type of obstruction (causing the creation and submission of a false document), names the body before which the due administration of justice was allegedly impeded, specifies the nature of its inquiry, and sets out in detail the particular subject matter to which the alleged false document related.

The Second Circuit has "consistently sustained indictments which track the language of the statute and, in addition, do little more than state time and place in approximate terms." Salazar, supra, 485 F.2d at 1277. As noted above, the instant indictment does more than that. "It is not necessary that the indictment itself go into evidentiary matters." United States v. Bernstein, 533 F.2d 775, 786 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976); see United States v. Shoup, 608 F.2d 950, 960 (3d Cir.1979) (indictment sufficient where it charged obstruction of justice, cited to § 1503, and alleged that defendant impeded investigation conducted by United States Attorney); United States v. Alo, 439 F.2d 751, 756 (2d Cir.) (indictment charging obstruction of justice by giving "false and evasive answers" sufficient even though not specifying the false and evasive answers), cert. denied, 404 U.S. 850, 92 S.Ct. 86, 30 L.Ed.2d 282 (1971).²

Accordingly, the motion to dismiss for failure to identify the document in the indictment³ is denied.

2. Failure to Allege that Defendant Knew that a Grand Jury Proceeding was Pending

Defendant next argues that the indictment should be dismissed because it fails to allege that he knew of the pendency of the allegedly obstructed grand jury proceeding. The government does not dispute that such knowledge must be proven at trial, but contends that it need not be specifically alleged in the indictment. I agree.

There are three elements to the crime of obstruction of justice: 1) endeavoring; 2) corruptly; 3) to influence an officer of the court or the due administration of justice. United States v. Fasolino, 586 F.2d 939, 940 (2d Cir.1978). Each is clearly alleged in the instant indictment. As part of its proof of a corrupt endeavor to influence the due administration of justice, the government must demonstrate that there was a pending judicial proceeding of which the defendant was aware, see United States v. Capo, 791 F.2d 1054, 1070 (2d Cir.1986), but there is no requirement that this component of the required mental state be spelled out in the indictment, see generally United States v. Santoro, No. 85 CR 100(S) (JMM), slip op. at 7 (E.D.N.Y. June 18, 1986) (an indictment is not a jury charge and need not define every legal term contained therein).

"The word `corruptly' as used in section 1503 means that the act must be done with the purpose of obstructing justice." United States v. Rasheed, 663 F.2d 843, 852 (9th Cir.1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982). Thus, the allegation that defendant took certain actions "corruptly" encompasses knowledge of a judicial proceeding and intent to impede it. Accordingly, the indictment sufficiently alleges the elements that must be proven at trial, and the motion to dismiss is therefore denied.

B. Motion to Strike Surplusage

Defendant moves to strike from the indictment, Fed.R.Crim.P. 7(d),⁴ certain references to the nature of the grand jury's investigation. Specifically, he objects to references to the grand jury's inquiry into racketeering and other crimes committed by members and associates of the Lucchese crime family. The government responds, and I agree, that this language is necessary to describe the proceeding that the defendant is alleged to have endeavored to obstruct.

"A motion to strike will be granted only where it is clear that the allegation complained of is not relevant to the charge contained in the indictment and is inflammatory and prejudicial." United States v. Klein, 124 F.Supp. 476, 479-80 (S.D.N.Y. 1954) (citation omitted), aff'd, 247 F.2d 908 (2d Cir.1957), cert. denied, 355 U.S. 924, 78 S.Ct. 365, 2 L.Ed.2d 354 (1958). In this case, although it is obvious why the defendant wishes to have the challenged portions of the indictment removed, they are undoubtedly relevant to the charge. The burden is on the government to prove that the defendant knew of the grand jury investigation and deliberately obstructed it. This cannot be accomplished without describing the allegedly obstructed investigation.

Indeed, the Second Circuit has recently held that in a prosecution under 18 U.S.C. § 1503 for testifying falsely before and concealing evidence from a grand jury, background paragraphs describing the alleged loansharking, murder, extortion and narcotics distribution activities of a crime organization were "needed to inform the jury of the scope and nature of the grand jury's investigation." United States v. Langella, 776 F.2d 1078, 1081 (2d Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986). Similarly, the information at issue in the indictment here is necessary for the jury to comprehend the nature of the investigation and the role, if any, of the defendant in obstructing it. Moreover, the allegations appear to be particularly relevant here, as the government anticipates that the proof at trial will demonstrate that the defendant's fear of being linked to the organized crime figures who were the targets of the grand jury inquiry was a motive for his alleged endeavor to obstruct.

Accordingly, the motion to strike is denied. In order to protect the defendant as much as possible, however, he is encouraged to submit to the Court suggested language for jury instructions that will explain that this material is included in the indictment only for background purposes and that the jury should not allow the existence of the investigation or the nature of the crimes being investigated to prejudice them against the defendant or to in any way affect their deliberations on the crime charged in this indictment.

C. Disclosure

1. Brady Material

Defendant seeks all material the government is obliged to provide under United States v. Brady, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, ...