US v. Aliperti, 94-CR-259 (DRH).

• Decision Date: 04 November 1994
• Docket Number: No. 94-CR-259 (DRH).,94-CR-259 (DRH).
• Parties: UNITED STATES of America, v. Buovodantona ALIPERTI, Anthony Losquadro, and Donald Zimmer, Defendants.
• Court: U.S. District Court — Eastern District of New York

867 F. Supp. 142

UNITED STATES of America, v. Buovodantona ALIPERTI, Anthony Losquadro, and Donald Zimmer, Defendants.

No. 94-CR-259 (DRH).

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

November 4, 1994.

Reynolds, Caronia & Gianelli, Hauppauge, by Paul Gianelli, for Aliperti.

Brafman Gilbert & Ross, P.C., New York City by Benjamin Brafman, for Losquadro.

Perini & Hoerger, Hauppauge, by Raymond G. Perini, for Zimmer.

Zachary W. Carter, U.S. Atty., E.D.N.Y., Brooklyn, by Loretta Lynch, Edgardo Ramos, Asst. U.S. Attys., for U.S.

HURLEY, District Judge.

In the above-referenced prosecution, each Defendant is charged with conspiracy to obstruct, delay, and affect commerce by extortion, as well as the substantive crime of extortion, pursuant to the Hobbs Act, 18 U.S.C. § 1951. Defendant Aliperti is also charged with perjury. 18 U.S.C. § 1623(a). Currently before the Court are the following motions for pre-trial relief: (1) motions to dismiss Counts One through Five of the Indictment as "facially insufficient" in that they fail to allege a quid pro quo, or, in the alternative, for a bill of particulars; and (2) motion by Defendant Zimmer to dismiss Count Five on the ground that it is duplicitous and charges him with crimes that allegedly occurred "outside the statute of limitations" period.¹ For the reasons set forth below, the motions are granted in part and denied in part.

Discussion

I. Motions to Dismiss

A. Sufficiency of Counts One through Five: Failure to Allege a Quid Pro Quo

The Court first considers Defendants' motions to dismiss Counts One through Five of the Indictment on the ground that these counts are facially insufficient. Defendants contend that these counts fail to meet the requirements of Federal Rule of Criminal Procedure 7(c)(1), for they fail to allege that the Defendants received property "in return for ... agreements to perform specific official acts." (Losquadro Mem. at 7 (emphasis in original).) In other words, Defendants contend that the Government has failed to allege a quid pro quo.

Rule 7 provides, in pertinent part, that "the indictment ... shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.... It need not contain ... any other matter not necessary to such statement." Fed.R.Crim.P. 7(c)(1). Courts have consistently explained that an indictment meets the requirements of Rule 7 when it contains "(a) the elements of an offense, (b) notice to the defendant of the charges he must be prepared to meet, and (c) information sufficient to protect the defendant against double jeopardy." United States v. Albunio, No. CR-91-0403, 1992 WL 281037, at *2 (E.D.N.Y. Sept. 9, 1992) (citing United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980)); see also United States v. Hernandez, 980 F.2d 868, 871 (2d Cir.1992) (citing United States v. Carrier, 672 F.2d 300, 303 (2d Cir.), cert. denied, 457 U.S. 1139, 102 S.Ct. 2972, 73 L.Ed.2d 1359 (1982)).

Generally, an indictment that tracks the statutory language defining the offense satisfies these three requirements, and, as such, is sufficiently specific to withstand a motion to dismiss. See United States v. Citron, 783 F.2d 307, 314 (2d Cir.1986) (citations omitted); United States v. Upton, 856 F.Supp. 727, 739 (E.D.N.Y.1994) (citing Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). Such an indictment need only be supplemented when the statute itself contains "generic terms." See Hamling, 418 U.S. at 118, 94 S.Ct. at 2908; see also Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962).

Defendants do not dispute that the Indictment in this case tracks the statutory language of 18 U.S.C. § 1951.² Defendants contend, however, that the statutory language, as incorporated in the Indictment, "fails to allege every essential element of the offenses charged." (Losquadro Mem. at 8.) More specifically, Defendants argue that, according to the Supreme Court's decision in Evans v. United States, ___ U.S. ___, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992), a quid pro quo is an additional element of the crime of extortion that is not explicitly set forth in the statute. This Court disagrees.

In Evans, the Supreme Court was confronted with the issue of what the Government must prove at trial in order to obtain a conviction under 18 U.S.C. § 1951.³ In its opinion, the Court provided a detailed explanation of the history and meaning of the terms "extortion under color of official right." The Court began by noting that, as a matter of statutory interpretation, "it is a familiar `maxim that a statutory term is generally presumed to have its common-law meaning.'" 112 S.Ct. at 1885 (quoting Taylor v. United States, 495 U.S. 575, 592, 110 S.Ct. 2143, 2154, 109 L.Ed.2d 607 (1990)). Further, the Court explained that

where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.

Id. (quoting Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249, 96 L.Ed. 288 (1952)).

Applying this rule of statutory construction to Section 1951, the Court began by setting forth the common-law definition of extortion: "an offense committed by a public official who took `by colour of his office' money that was not due to him for the performance of his official duties." Id. The Court indicated that this definition encompasses the concept of a quid pro quo:

As we explained above, our construction of the statute

is informed by the common-law tradition from which the term of art was drawn and understood. We hold today that the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.

Id. at 1889. Indeed, in response to the dissent's contention that the majority had "`simply made up' the requirement that the payment must be given in return for official acts," the Court stated that, "on the contrary," the quid pro quo requirement "is derived from the statutory language `under color of official right,' which has a well-recognized common-law heritage...." Id. at 1889 n. 20. Further, in another portion of the opinion, the Court emphasized that the definition does not pertain to every taking by a public official of "something of value that he was not `due'"; instead, under the common-law definition, "the payment must be `for the performance of his official duties.'" Id. at 1885 n. 5.

Based upon this language, this Court finds that the requirement of a quid pro quo, rather than amounting to an additional element unspecified in the statute, is encompassed within the language of the statute itself.⁴ The term "under color of official right," as used in the statute, is not generic in nature, but, instead, is a "legal term of art." See Hamling v. United States, 418 U.S. 87, 118, 94 S.Ct. 2887, 2908, 41 L.Ed.2d 590 (1974) (citations omitted). The legal definition of "under color of official right" thus "does not change with each indictment; it is a term sufficiently definite in legal meaning to give a defendant notice of the charge against him." See id. (citations omitted); see also Carrier, 672 F.2d at 303. As the definition of a legal term "need not be alleged in the indictment in order to establish its sufficiency," see Hamling, 418 U.S. at 119, 94 S.Ct. at 2908, the Court rejects Defendants' contention that the Government was required to separately allege a quid pro quo.⁵ Defendants' motion to dismiss the Indictment is, therefore, denied.

B. Count Five: Duplicity and Statute of Limitations

Defendant Zimmer also contends that Count Five of the Indictment should be dismissed on the grounds that it is duplicitous and that its allegations fall outside of the statute of limitations period. Each of these grounds is addressed separately below.

1. Duplicity

The Court first considers Defendant Zimmer's contention that Count Five is duplicitous in that it "charges numerous separate and distinct crimes in a single count." (Zimmer Mem. at 12.)

"A claim of duplicity is that two or more distinct offenses are charged in a single count." United States v. Albunio, No. CR-91-0403, 1992 WL 281037, at *4 (E.D.N.Y. Sept. 9, 1992). A single count that alleges more than one offense, however, is not necessarily subject to dismissal. Indeed, "under the law of this Circuit, `acts that could be charged as separate counts of an indictment may instead be charged in a single count if those acts could be characterized as part of a single continuing scheme.'" United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir.1992) (quoting United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990)) (further citation omitted).

The Government contends that Defendant Zimmer engaged in an "extortionate scheme that lasted from 1985 to December 1991," and that "the various payments and benefits ... were all alleged to have been made in connection with the scheme...." (Gov't Mem. at 41.) Having read Count Five in the context of the Indictment as a whole, which alleges that Defendants engaged in a single, continuous scheme of extortion,⁶ Defendant Zimmer's motion to dismiss Count Five on the ground of duplicity is denied.⁷ See Albunio, 1992 WL 281037, at *1, 4 (holding that a single count charging "multiple acts of extortion at various (unspecified) locations at various (unspecified) times over a three year period from various (unspecified) `victims'" was not duplicitous in that it charged a single, continuous...