US v. Finley
| Decision Date | 29 November 1988 |
| Docket Number | No. 87 CR 364.,87 CR 364. |
| Citation | 705 F. Supp. 1272 |
| Parties | UNITED STATES of America, Plaintiff, v. Morgan FINLEY, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
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James Holloway, Federal Defender Program, Sulzer & Shopiro, Chicago, Ill., for John Adams.
Glenn Gutsche, Chicago, Ill., for Melvin Dubrock.
Louis Garippo, Susan G. Feibus, Chicago, Ill., for Morgan Finley.
Clinton Sims, Chicago, Ill., for David Hammond.
Keith Spielfogel, Robert S. Bailey, Chicago, Ill., for Marian Humes.
Donald Bertucci, Federal Defender Program, Chicago, Ill., for Perry Hutchinson.
Lewis Myers, Federal Defender Program, Chicago, Ill., for Charles Knox.
William Martin, Oak Park, Ill., for Michael Lambesis.
Philip Parenti, Chicago, Ill., for Clarence McClain.
Ira Raphaelson, Michael Shepard, U.S. Atty.'s Office, Chicago, Ill., for U.S.
On May 14, 1987, the federal government filed an indictment against nine defendants in connection with the FBI's "Operation Incubator" investigation into corruption in the awarding of various collection contracts by the City of Chicago. The defendants are Morgan Finley, Clerk of the Circuit Court of Cook County; Michael Lambesis, a former Chicago police officer and the former chief investigator of the Clerk's office; Clarence McClain, a former City of Chicago official; Perry Hutchinson, a former Alderman for the Ninth Ward of the City of Chicago; Marian Humes, a former Alderman for the Eighth Ward of the City of Chicago; John Adams, the former City Deputy Director of Revenue and Acting Director of Revenue; Melvin G. DuBrock, the former Assistant Commissioner of the Department of Streets and Sanitation of the City of Chicago; Charles Knox, an unlicensed lawyer; and David Hammond, also an unlicensed lawyer.
The defendants are charged with mail fraud, wire fraud, violation of the Travel Act and Hobbs Act, conspiracy, racketeering, and other offenses. Defendants Lambesis and DuBrock have pleaded guilty. Presently before the Court are numerous motions to dismiss and other motions relating to the sufficiency and form of the indictment. For the reasons described below, defendants' motions are denied with the exception of McClain's motion for a bill of particulars, which is granted in part.
The indictment1 consists of sixty-seven counts, not all of which name each defendant. The allegations center around attempts to procure Chicago and Cook County contracts for Systematic Recovery Services, Ltd. ("SRS"), a private debt collections firm based in New York. The factual allegations are taken as true for purposes of the pending motions. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 332 n. 16, 96 L.Ed. 367 (1952).
Count One, which contains most of the indictment's factual allegations, charges that the defendants violated 18 U.S.C. § 371 by conspiring to commit violations of the mail fraud, wire fraud and interstate travel statutes. Count One details 284 overt acts committed in furtherance of this conspiracy. These acts include discussions between the defendants and other co-conspirators concerning the procurement of public contracts for SRS; requests for payments of cash and other things of value in exchange for defendants' assistance in procuring such contracts; payoffs from SRS through Michael Raymond, an unindicted co-conspirator who cooperated with authorities during much of the alleged conspiracy; the provision of non-public information to SRS; attempts to thwart efforts of competitors to procure contracts; and the creation of purportedly independent research projects concerning debt collection contracts, which projects were secretly funded by SRS.
Counts Two through Fifteen charge the defendants with violations of the Travel Act, 18 U.S.C. § 1952, by travelling and using interstate facilities to commit bribery and extortion.
Counts Sixteen through Forty-three charge most of the defendants with extortion and attempted extortion in violation of the Hobbs Act, 18 U.S.C. § 1951, by obtaining property from SRS under color of official right and by the wrongful use of fear of economic harm.
Counts Forty-four through Fifty-eight charge the defendants with mail fraud and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343 by devising a scheme to defraud and to obtain property, including public contracts, through fraudulent representations.
Count Fifty-nine charges the defendants with violations of the racketeering statute (RICO), 18 U.S.C. § 1962, by conspiring to participate in the conduct of the affairs of SRS through a pattern of racketeering activity, including extortion, mail and wire fraud, and wrongful travel and use of interstate facilities.
Counts Sixty through Sixty-two and Sixty-four charge defendants McClain and Adams with tax fraud in violation of 26 U.S.C. §§ 7206(1) and 7206(4).
Finally, Counts Sixty-three and Sixty-five through Sixty-seven charge several of the defendants with making false statements to the Federal Bureau of Investigation in violation of 18 U.S.C. § 1001.
Defendant Humes has moved, pursuant to Fed.R.Crim.P. 7(f), for a bill of particulars with respect to certain paragraphs of the indictment. She seeks disclosure of the identities of the victims of the alleged mail and wire fraud, the objects of the alleged fraud, and the dates, times, places, and nature of any conduct by which she allegedly aided and abetted violation of the Travel Act, if the government intends to proceed upon an aiding and abetting theory.
The granting of a bill of particulars is within the discretion of the trial court. United States v. Kendall, 665 F.2d 126, 134 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 140 (1982). The purpose of a bill of particulars is to provide the defendant with the information necessary to prepare a defense. See United States v. Hedman, 458 F.Supp. 1384, 1385 (N.D.Ill.1978). A bill of particulars is required only where the charges in the indictment are so general that they do not advise the defendant of the specific acts of which he or she is accused. See United States v. Andrus, 775 F.2d 825, 843 (7th Cir.1985). A bill of particulars is not necessary where the indictment sets forth the elements of the offense charged and sufficiently apprises the defendant of the charges to allow the preparation of a defense. Kendall, 665 F.2d at 134.
The indictment in this case is very detailed, and it contains sufficient information to inform the defendant of the charges against her. Furthermore, the government has made available its videotapes of defendants' conduct and is transcribing for defendants the tapes it plans to introduce as evidence. The government is not required to go further and provide defendant with all of the details of the evidence the government plans to introduce or the purposes for which it will be introduced. Kendall, 665 F.2d at 135. Defendant's motion for a bill of particulars is therefore denied.
Defendant McClain has also moved for a bill of particulars with respect to certain paragraphs of the indictment. He seeks (1) specification of the qualifications of competing bidders for city contracts; (2) specification of documents demonstrating SRS's performance on one of the contracts in issue; (3) specification of the evidence which demonstrates that he had knowledge that SRS would give kickbacks to public officials; (4) specification of the manner in which his receipt of money from SRS was illegal; (5) specification of the evidence that he had knowledge of receipt of money by co-conspirators; (6) specification of the manner in which Chicago or Cook County was defrauded of "money or property;" and (7) further details of the concealment of assets alleged in Count Sixty-one.
With the exception of Count Sixty-one, the indictment is sufficiently detailed to provide McClain with knowledge of the elements of the offense charged and to allow him to prepare a defense. The additional information which McClain seeks relates solely to the nature of the government's evidence, the theory of the government's case, and other information beyond the scope of a bill of particulars. With respect to Count Sixty-one, however, a bill of particulars is necessary. That count charges McClain with violating 26 U.S.C. § 7206(4) by concealing "settlement proceeds in excess of $400,000 upon which levy was authorized by Section 6331 of the Internal Revenue Code." McClain requests that the government be ordered to "specify the `levy' authorized by Section 6331 of the Internal Revenue Code and when it was actually issued and specify how defendant McClain ... did knowingly and unlawfully conceal settlement proceeds from the IRS." Without a bill of particulars, McClain is unable to prepare a defense against this charge, as evidenced by the Court's own inability to determine whether Count Sixty-one even relates to the other charges in the indictment. (See infra at n. 16.) McClain's motion for a bill of particulars is therefore granted with respect to Count Sixty-one and denied in all other respects. The bill of particulars is due December 15, 1988.
Defendant Humes has moved to dismiss Count One on the grounds that it is vague and that it fails to charge an offense. Humes claims that the indictment fails to specify the exact scope of the conspiratorial agreement between her and the other defendants, that it fails to explain how the agreement contributed to the substantive violations, that it fails to specify the victims of the fraud which defendant allegedly conspired to commit, that it does not identify the tangible thing of value which the conspirators agreed to obtain, and that it charges multiple conspiracies.
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