US v. Bucey

• Decision Date: 04 January 1988
• Docket Number: No. 86 CR 644.,86 CR 644.
• Parties: UNITED STATES of America v. Wesley BUCEY.
• Court: U.S. District Court — Northern District of Illinois

691 F. Supp. 1077

UNITED STATES of America v. Wesley BUCEY.

No. 86 CR 644.

United States District Court, N.D. Illinois, E.D.

January 4, 1988.

COPYRIGHT MATERIAL OMITTED

Roger Markley, Asst. U.S. Atty., Chicago, Ill., for plaintiff.

David S. Mejia, Patrick A. Tuite, Tuite, Mejia & Giacchetti, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ANN C. WILLIAMS, District Judge.

The defendant Wesley Bucey was indicted on September 3, 1986 and charged with violations of 18 U.S.C. §§ 2, 1001, 1341, and 1503 and 31 U.S.C. §§ 5313 and 5322(b). The grand jury returned a superseding indictment on May 23, 1987 charging the defendant with the violation of 18 U.S.C. § 371 in addition to the violations in the original indictment. The defendant moves this court to dismiss the indictment pursuant to Federal Rules of Criminal Procedure 7 and 12 and the fifth and fourth amendments. In the alternative, the defendant moves to declare the offenses charged in Counts VIII and IX under 31 U.S.C. § 5322(a) rather than under 31 U.S.C. § 5322(b). The defendant also moves to strike prejudicial surplusage from the indictment. For the following reasons, the defendant's motions are denied.

The facts alleged in the indictment are as follows.¹ At all times pertinent to the indictment, Bucey and his co-conspirator Boston Witt were "persons" and acted in the capacity of "financial institutions" under 31 U.S.C. § 5312 and 31 C.F.R. § 103.11. In these capacities, Bucey and Witt were required to file a report for each transaction in currency in excess of ten thousand dollars conducted by, through, or to them, including the transfer, receipt, withdrawal and deposit of currency. Both Bucey and Witt were associated with the Nestor Barclay Corporation ("Nestor Barclay") and the Huguenot National Church ("Church"). The Church had a bank account at Freedom Federal Savings Bank ("Freedom Federal") in Glen Ellyn, Illinois. Freedom Federal is a "financial institution" under the relevant statutes cited above.

Count I of the indictment charges a violation of 18 U.S.C. § 371 and alleges that Bucey and Witt conspired to defraud the United State by impairing, obstructing and defeating the lawful government functions of the Department of the Treasury.² Specifically, Bucey and Witt impaired the collection of accurate data and reports relating to currency transactions in excess of ten thousand dollars at financial institutions, impaired the collection of accurate and truthful information and data to be used in determining the current sources and amounts of income, and obstructed the determination, assessment and collection of income taxes. Bucey and Witt also concealed the source of funds subject to forfeiture under the federal laws relating to controlled substances. Furthermore, the defendant counseled and advised others to prepare tax returns which fraudulently misstated the source and the amount of income in violation of 26 U.S.C. § 7206(2). Finally, Bucey and Witt caused the mail and interstate phone lines to be used with the intent of distributing the proceedings of narcotics distribution in violation of 18 U.S.C. § 1952(a)(1), (3).

The defendant and Witt carried out the scheme in the following manner. On or about October 30, 1985, Witt met two individuals in New Mexico whom he believed to be involved in the distribution of narcotics and dangerous drugs. These individuals were in fact two New Mexico State police officers acting as undercover government agents. On November 4, 1985, in Las Vegas, Witt offered to help the individuals launder their cash by portraying it as income received for services rendered to a church in the Chicago area. Witt and his partner Bucey advised the individuals that their money would be portrayed as contributions that the Church received on behalf of earthquake disaster victims and deposited in Freedom Federal. The defendant, who would receive a fee for his efforts, would then funnel the money back to the individuals as a fee for services never rendered and provide false documentation for the transactions. On or about January 23, 1986, the defendant and Witt also arranged to use the Church as a front to help a third government agent, James Dembitz, avoid having his money traced by the government. The transactions with this third agent were also arranged so that it would appear that the agent was receiving cash from the Church for services that were purportedly, but never actually, rendered. On or about April 24, 1986, Bucey met a fourth undercover government agent, Richard Ahern, who was posing as a businessman seeking to find a way to have his business avoid taxes. Bucey advised Ahern that he could create sham donations of property to reduce Ahern's taxes and that the donations would be based on backdated valuations. On or about June 16, 1986, Bucey requested that Dembitz send him a copy of the Federal Grand Jury subpoena that Dembitz said he had received to appear before the grand jury that was investigating Bucey in Chicago. Bucey advised Dembitz to give false testimony to the grand jury. On June 16, 1986, Bucey heard that Ahern had been subpoenaed to testify before the grand jury. He advised Aherns that Aherns would have no records to present to the grand jury and that his memory, however faulty, was all that he had.

There are ten other counts in the indictment. Counts II through VII allege that the defendant violated 18 U.S.C. §§ 1341, 1343 by using the United States mail and wire communications to execute the above scheme to defraud. Counts VIII and IX allege that the defendant violated 31 U.S.C. §§ 5313 and 5322(b) by intentionally failing to file required Currency Transaction Reports ("CTR") with the Internal Revenue Service ("IRS") following transactions involving currency in excess of ten thousand dollars. These failures to file CTRs were part of a pattern of illegal currency transactions exceeding one hundred thousand dollars between January and February of 1986 and were committed in furtherance of and while violating 18 U.S.C. § 1001. Counts X and XI allege that the defendant violated 18 U.S.C. §§ 2 and 1001 by concealing material facts and by preparing false and misleading CTRs to be filed with the IRS. Finally, Count XII alleges that the defendant violated 18 U.S.C. § 1503 by corruptly endeavoring to influence, obstruct and impede the due administration of justice by encouraging an undercover government agent who had purportedly been subpoenaed to testify before the grand jury to give false and misleading testimony when appearing before that grand jury.

I Motion To Strike Surplusage

The defendant moves this court to strike from the indictment all references to narcotics, dangerous drugs and drug dealing. Allegations will be stricken as surplusage only if "it is clear that the allegations are not relevant to the charge and are inflammatory and prejudicial." Wright & Miller, Federal Practice and Procedure § 127 (1982). Simply put, legally relevant information is not surplusage. United States v. Richter, 610 F.Supp. 480, 496 (N.D.Ill.1985), aff'd, United States v. Mangovski, 785 F.2d 312 (7th Cir.), aff'd, United States v. Konstantinov, 793 F.2d 1296 (7th Cir.), cert. denied, 479 U.S. 855, 107 S.Ct. 191, 93 L.Ed.2d 124 (1986); See also United States v. Climatemp, Inc., 482 F.Supp. 376, 391 (N.D.Ill.1979), aff'd, 705 F.2d 461 (7th Cir.), cert. denied sub nom., Fakter v. United States, 462 U.S. 1134, 103 S.Ct. 3116, 77 L.Ed.2d 1370 (1983). Consequently, due to the exacting standard, motions to strike information as surplusage are rarely granted. See United States v. Fischbach and Moore, Inc., 576 F.Supp. 1384 (W.D.Pa.1983); Wright & Miller, Federal Practice and Procedure § 127 (1982).

In this case, the defendant argues that the allegations of drug trafficking and narcotics transactions, which would show that the money involved came from illegal sources, are irrelevant. Simply put, whether the money involved in this case came from legitimate or illegitimate sources is not relevant to the charges contained in the indictment. The government argues that the information at issue is relevant to both the conspiracy and the mail and wire fraud charges. The court agrees. Count I of the indictment charges the defendant with a conspiracy to defraud the United States in several different ways. The source of the money involved is directly relevant to at least three of the means used in the conspiracy to defraud the United States.³ The evidence of the allegedly illegitimate source of the funds at issue is also relevant with regard to explaining the purpose behind the money laundering scheme alleged in Counts II through VII. The Seventh Circuit has held "that evidence of other crime may be presented when they are so blended or connected with the one on trial that proof of one incidently involves the other or explains the circumstances thereof or tends logically to prove any element of the crime charged" (emphasis added). United States v. Dorn, 561 F.2d 1252, 1258 (7th Cir.1977); See also United States v. Moreno-Nunez, 595 F.2d 1186, 1188 (9th Cir.1979) (prior crime evidence can legitimately be offered to elucidate the background and development of the conspiracy); United States v. Wilson, 578 F.2d 67, 72 (5th Cir.1978) (courts and treatises have approved and allowed "the introduction of evidence of other criminal activity in order to complete the story of the crime on trial"). The court may consider whether the evidence of other acts would help the jury understand the factors surrounding the crime at issue and whether the absence of evidence concerning the other acts would leave a "conceptual void" in the story. See United States v. Hattaway, 740 F.2d 1419, 1425 (7th Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984), cert. denied sub nom., Curran v. United States, 469 U.S. 1028, 105 S.Ct. 448, 83 L.Ed.2d 373 (1984). In Hattaway, the court allowed the admission of "disgusting and...