United States v. Totoro

• Decision Date: 27 July 2017
• Docket Number: CRIMINAL ACTION NO. 15-291
• Parties: UNITED STATES OF AMERICA, v. JOSEPH P. TOTORO, II, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

UNITED STATES OF AMERICA, v. JOSEPH P. TOTORO, II, Defendant.

CRIMINAL ACTION NO. 15-291

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

July 27, 2017

PAPPERT, J.

MEMORANDUM

On June 25, 2015, Joseph P. Totoro, II was indicted by a federal grand jury on eight counts: production of child pornography in violation of 18 U.S.C. § 2251(a), (e) (count one); enticement in violation of 18 U.S.C. § 2422(b) (count two); receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) (counts three & four);¹ transfer of obscene materials to a minor in violation of 18 U.S.C. § 1470 (counts five & six); possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (count seven); and blackmail in violation of 18 U.S.C. § 873 (count eight). (ECF No. 15.) Trial begins July 31, 2017. Totoro and the Government have filed numerous pretrial motions and this Memorandum explains the Court's reasoning in support of its decisions, reflected in the accompanying Order, on each of them.

I.

Rule 12(b) of the Federal Rules of Criminal Procedure provides 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). "However, the scope of a district court's review at the Rule 12 stage is limited." United States v. Huet, 665 F.3d588, 595 (3d Cir. 2012). "[A] pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government's evidence. The government is entitled to marshal and present its evidence at trial, and have its sufficiency tested by a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29. There is no criminal corollary to the civil summary judgment mechanism." Id. (quoting United States v. DeLaurentis, 230 F.3d 659, 660 (3d Cir. 2000)). "In evaluating a Rule 12 motion to dismiss, a district court must accept as true the factual allegations set forth in the indictment." Id. (citing United States v. Sampson, 371 U.S. 75, 78-79 (1962); United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990)). "Evidentiary questions—such as credibility determinations and the weighing of proof—should not be determined at this stage." Id. (quoting United States v. Bergrin, 650 F.3d 257, 265 (3d Cir. 2011)). "Thus, a district court's review of the facts set forth in the indictment is limited to determining whether, assuming all of those facts as true, a jury could find that the defendant committed the offense for which he was charged." Id. at 595-96 (citations omitted).

II.

On July 7, 2017, Totoro filed five motions seeking dismissal of some or all of the counts against him on various grounds, among them alleged defects in the indictment, insufficient evidence, Brady violations and unconstitutionally vague statutory language. See (ECF Nos. 135, 136, 137, 138, 141). The Government filed its Responses on July 14, 2017. (ECF Nos. 147, 148, 154.)

A. ECF No. 135

In ECF No. 135, Totoro contends that the indictment must be dismissed in its entirety because it does not contain sufficient factual allegations to support the Government's contention that he committed the charged offenses and the grand jury was not properly instructed on the elements of the offenses. (Def.'s Mot., at 4-9, 11-13, ECF No. 135.) The Court addresses each argument in turn.

i.

Rule 12(b)(3)(B) permits a criminal defendant to move for the pre-trial dismissal of an indictment as defective if it, inter alia, lacks specificity or fails to state an offense. FED. R. CRIM. P. 12(b)(3)(B)(iii), (v). Federal Rule of Criminal Procedure 7(c) outlines the statutory requirements for a grand jury indictment:

The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government. It need not contain a formal introduction or conclusion. A count may incorporate by reference an allegation made in another count. A count may allege that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. For each count, the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.

FED. R. CRIM. P. 7(c).

"An indictment returned by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for trial of the charge on the merits." Huet, 665 F.3d at 595 (quoting United States v. Vitillo, 490 F.3d 314, 320 (3d Cir. 2007)). "An indictment is facially sufficient if it '(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet,and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.'" Id. (quoting Vitillo, 490 F.3d at 320). "'[N]o greater specificity than the statutory language is required so long as there is sufficient factual orientation' to permit a defendant to prepare his defense and invoke double jeopardy." Id. (quoting United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007)). "Generally, an indictment will satisfy these requirements where it informs the defendant of the statute he is charged with violating, lists the elements of a violation under the statute, and specifies the time period during which the violations occurred." Id. (citations omitted). "In contrast, if an indictment fails to charge an essential element of the crime, it fails to state an offense." Id. (citing United States v. Wander, 601 F.2d 1251, 1259 (3d Cir. 1979)).

"In determining whether an indictment validly states the elements of the offense, [courts] need not blindly accept a recitation in general terms of the elements of the offense." Id. (citing United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002)). "Federal Rule of Criminal Procedure 12(b)(3)(B) allows a district court to review the sufficiency of the government's pleadings to . . . ensur[e] that legally deficient charges do not go to a jury." Id. (citing Bergrin, 650 F.3d at 268). "Although the Government is not required to set forth its entire case in the indictment, 'if the specific facts' that are alleged 'fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation,' the indictment fails to state an offense." Id. (quoting Panarella, 277 F.3d at 685); see also United States v. Stock, 728 F.3d 287, 292-93.

Here, the indictment provides the "plain, concise, and definite written statement of the essential facts constituting the offense charged" required by Rule 7(c) and ThirdCircuit precedent. For every count, the indictment identifies the statute alleged to have been violated, sets forth the essential elements of the offense tracking the relevant statutory language, specifies the location where the crime allegedly occurred and provides the dates or time period of the alleged offense. See (ECF No. 15). The indictment further alleges that Totoro used the internet to facilitate his crimes. (Id.) Finally, all counts relating to the sexual exploitation of a minor incorporate the first six paragraphs of the indictment, which in relevant part state:

During this inappropriate relationship [with M1], Joseph P. Totoro II sent M-1 sexually explicit photographs of himself and encouraged her to take sexually explicit photographs of herself and to send them to him. Joseph P. Totoro II sent M-1 numerous text messages describing the sexual acts he wanted to perform with M-1.

(Id. ¶ 5.)

Accepting all of the factual allegations as true, the indictment sets forth the essential elements of the charged offenses and contains "sufficient factual orientation" to apprise Totoro of the offending conduct such that he can prepare his defense and invoke double jeopardy. Moreover, the facts alleged fall squarely within the scope of the relevant criminal statutes and, if proven, would permit convictions on the charged offenses. The indictment is therefore sufficient. See Stock, 728 F.3d at 292-93; Huet, 665 F.3d at 594-96.

Totoro argues that the indictment is not sufficiently specific with respect to counts one through seven because it "fail[s] to describe the nature of sexually [sic] conduct" and "fail[s] to mention any facts to support the allegation that [he] engaged in the charged conduct." (Def.'s Mot., at 6-7.) Totoro misunderstands Rule 7(c)'s requirements. The indictment need only set forth the "essential facts constituting theoffense charged," FED. R. CRIM. P. 7(c), and contain allegations sufficient to "apprise the defendant with reasonable certainty of the nature of the accusation against him," Russell v. United States, 369 U.S. 749, 765 (1962). The indictment need not contain a description of the sexually explicit conduct or include detailed facts supporting its allegations. See, e.g., Stock, 728 F.3d at 299 ("Usually, a recitation of the statutory language satisfies the first requirement, so long as there is sufficient factual orientation to permit a defendant to prepare his defense and invoke double jeopardy. And typically, a factual orientation that includes a specification of the time period of the alleged offense is sufficient for the second and third requirements. In short, detailed allegations are unnecessary." (emphasis added, internal citations and quotations omitted)); DeLaurentis, 230 F.3d 659, 660-61 (Rule 12(b)(2) permits dismissal of an indictment if the allegations are insufficient to charge an offense, "but such dismissals may not be predicated upon the insufficiency of the evidence to prove the indictment's charges."); United States v. Bloom, 78 F.R.D. 591, 604 (E.D. Pa. 1977) ("The question that a district court must ask in reviewing the sufficiency of an indictment to charge an offense is not whether the indictment states...