United States v. Thompson

• Decision Date: 28 October 2015
• Docket Number: No. 15–CR–80 (S–2)(ILG).,15–CR–80 (S–2)(ILG).
• Citation: 141 F.Supp.3d 188
• Parties: UNITED STATES of America, v. Alvaun THOMPSON, Defendant.
• Court: U.S. District Court — Eastern District of New York

141 F.Supp.3d 188

UNITED STATES of America,

v.Alvaun THOMPSON, Defendant.

No. 15–CR–80 (S–2)(ILG).

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

Signed Oct. 28, 2015.

Matthew Jacobs, United States Attorney's Office, Brooklyn, NY, for United States of America.

Michael Daniel Weil, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

GLASSER

, Senior District Judge:

A second superseding indictment charges Defendant in Count One with sex trafficking a child under the age of 14, in violation of 18 U.S.C. §§ 1591(a)(1)

, (a)(2), (b)(1) ; in Counts Two and Three with sex trafficking a child under the age of 18, in violation of 18 U.S.C. §§ 1591(a)(1), (a)(2), (b)(1), (b)(2) ; in Count Four with promoting prostitution, in violation of the Travel Act, 18 U.S.C. § 1952(a)(3)(A) ; in Count Five with sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a), (e) ; in Count Six with possessing child pornography, in violation of § 2252(a)(4)(B), (b)(2); in Counts Seven and Ten with the illicit transportation of a minor, in violation of 18 U.S.C. § 2423(a) ; in Counts Eight and Eleven with transporting persons in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 2421 ; and in Counts Nine and Twelve with interstate prostitution, in violation of 18 U.S.C. § 2422(a). Dkt. No. 35.

Defendant moves (1) to dismiss Counts Four and Seven through Twelve for running afoul of Rule 7(c) of the Federal Rules of Criminal Procedure

; (2) to dismiss Counts One through Three on the ground that the charging statute, 18 U.S.C. § 1591, is unconstitutionally overbroad; (3) alternatively, to dismiss those counts for charging scienter insufficiently; (4) for a bill of particulars; and (5) to strike surplusage from the indictment. See Defendant's Memorandum of Law in Support of His Motion to Dismiss, Dkt. No. 33 ("Def. Mem."); Defendant's Supplemental Motion to Dismiss, Dkt. No. 41 ("Def. Supp.").

Each claim is addressed in turn.

I. Sufficiency of Counts Four and Seven through Twelve

Defendant challenges the sufficiency of Counts Four and Seven through Twelve of the second superseding indictment under Federal Rule of Criminal Procedure 7(c)

, which requires a "plain, concise and definite written statement of the essential facts constituting the offense charged." These counts charge federal crimes that require proof of conduct that violates state law, federal law, or both. Defendant contends that the indictment does not sufficiently cite the state law that was violated or describe the underlying conduct. Finding merit to some of these claims, the Court grants in part and denies in part Defendant's motion to dismiss, without prejudice.

A. The Indictment

The challenged portions of the indictment are as follows. Counts Seven through Twelve charge violations of three similar statutes: 18 U.S.C. §§ 2422

(in the indictment, "Interstate Prostitution"), 2421 ("Mann Act"), and 2423 ("Illicit Transportation of a Minor"). The Interstate Prostitution counts allege that Defendant induced "one or more individuals to travel in interstate commerce to engage in prostitution, and any sexual activity for which a person could be charged with a criminal offense." Counts 9, 12. The Mann Act and Illicit Transportation counts accuse Defendant of transporting two individuals (minors) with the intent that they engage "in prostitution, and any sexual activity for which a person could be charged with a criminal offense." Counts 7–8, 10–11. All of these counts essentially track the statutes, except the indictment substitutes "prostitution and any sexual activity for which a person could be charged" for "prostitution or any sexual activity...."

Count Four charges a violation of the Travel Act, 18 U.S.C. § 1952(a)(3)(A)

, (b)(i)(1), and accuses Defendant of using the Internet with intent to promote "an unlawful activity, to wit: a business enterprise involving prostitution, in violation of the laws of the State of New York."¹

Defendant argues that in Counts Seven through Twelve, "sexual activity for which a person could be charged" is not defined and "incorporates a multitude of state and federal crimes." Def. Mem. at 14. He notes that the government's proof may include "evidence that the defendant himself had sexual relationships with Jane Doe # 1 and Jane Doe # 2," and that he "cannot prepare to meet these charges without a clear statement as to whether he is being charged with transporting women for the purposes of prostitution or some other sex crimes." Id. at 15. At oral argument, Defendant added that there no reason to believe that the grand jury was presented with evidence of statutory rape. Oct. 24, 2015 Transcript ("Tr.") at 22. Defendant also contends that Count Four is too general because New York has several crimes concerning prostitution. Def. Mem. at 12–13.

The Government responds that Defendant's motion should be construed as a request for a bill of particulars, and that Defendant is not entitled to a bill of particulars (or dismissal). See Memorandum of Law in Response to the Defendant's Motions to Dismiss, Dkt. No. 44 ("Gov't Mem.") at 25. But the Government nevertheless discloses relevant state law: its brief states that all counts involve violation of New York Penal Law Articles 130 (sex offenses, which include forms of rape, statutory rape, sexual abuse, and sexual misconduct) and 230 (various degrees of prostitution, promoting prostitution, compelling prostitution, permitting prostitution, patronizing prostitutes, and sex trafficking). Id. at 27. Additionally, the brief states that Counts Seven through Nine involve Maryland Criminal Law Sections 3 (rape, statutory rape, and other sexual misconduct) and 11 (obscenity, indecent exposure, child pornography, and prostitution), and Pennsylvania Consolidated Statutes, Title 18, Chapters 30, 31 and 59 (human trafficking, sexual offenses, lewdness, obscenity, and prostitution and related offenses). Id. At oral argument, the Government confirmed that it is contemplating trial evidence of prostitution and statutory rape. Tr. at 19–20, 22. It has not addressed or been asked what was presented to the grand jury.

B. Legal Principles

"Any discussion of the purpose served by a grand jury indictment in the administration of federal criminal law must begin with the Fifth and Sixth Amendments to the Constitution." United States v. Gonzalez, 686 F.3d 122, 126 (2d Cir.2012)

(quoting Russell v. United States, 369 U.S. 749, 760, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) ). A grand jury indictment "performs three constitutionally required functions[:]

It permits the accused to be informed of the nature and cause of the accusation as required by the Sixth Amendment. It prevents any person from being subject for the same offence to be twice put in jeopardy of life or limb as required by the Fifth Amendment. Finally, it preserves the protection given by the Fifth Amendment from being ‘held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.’

United States v. Silverman, 430 F.2d 106, 110 (2d Cir.1970)

modified, 439 F.2d 1198 (2d Cir.1970) ; see Gonzalez, 686 F.3d at 126 ; United States v. Stringer, 730 F.3d 120, 124 (2d Cir.2013) (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) ). Rule 7(c) protects these rights. United States v. Walsh,

194 F.3d 37, 44 (2d Cir.1999) ; Silverman, 430 F.2d at 106.

Typically, to fulfill their constitutional functions, indictments "need do little more than to track the language of the statute charged and state the [approximate] time and place ... of the alleged crime." United States v. Vilar, 729 F.3d 62, 80 (2d Cir.2013)

(quotation omitted). But indictments also must "contain some amount of factual particularity to ensure that the prosecution will not fill in elements of its case with facts other than those considered by the grand jury." Walsh, 194 F.3d at 44.

When an indictment is sufficient, the Second Circuit "has ‘repeatedly refused, in the absence of any showing of prejudice, to dismiss ... charges for lack of specificity.’ " Stringer, 730 F.3d at 124

(quoting Walsh, 194 F.3d at 45 ); see United States v. Zolli, 51 F.R.D. 522, 526 (E.D.N.Y.1970) ("If the indictment fails to give the defendants information which they deem essential to the preparation of their defense, their remedy is a motion for a bill of particulars."). On the other hand, an indictment that is "defective for failure to [adequately] allege an essential element" is "not rescued by ... a bill of particulars stating the element." Gonzalez, 686 F.3d at 127–28 (quotation and citation omitted) (dismissing drug-charge indictment for failing to specify the quantity of drug, an essential element of the crime); see, e.g., United States v. Awan, 459 F.Supp.2d 167, 175–76 (E.D.N.Y.2006)aff'd, 384 Fed.Appx. 9 (2d Cir.2010) (Sifton, J.) (dismissing charge of a conspiracy to provide "material support or resources" to be used in a conspiracy to murder, kidnap, or maim a person outside the United States because the indictment did not specify the kind of "material support"); United States v. Solovey, 04–CR–244, 2005 WL 1279228, at *4 (W.D.N.Y. May 31, 2005).

The leading case regarding factual particularity is Russell, where the Supreme Court dismissed an indictment which (tracking the language of a statute) accused a defendant of refusing to answer a question pertinent to the "subject" of a congressional inquiry. 369 U.S. at 753–54, 82 S.Ct. 1038

. The Court found that pertinence to the subject under inquiry was "the very core of criminality"—and thus "central to every prosecution under the statute"—but often "difficult or impossible to ascertain" when not stated in the indictment. Id. at 759, 82 S.Ct. 1038. The Court held that "[w]here guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the...