US v. Habicht

• Decision Date: 03 June 1991
• Docket Number: Crim. A. No. 91-10039-MA.
• Citation: 766 F. Supp. 22
• Parties: UNITED STATES of America v. Michael C. HABICHT, Robert Emmet Joyce, James Francis Melvin, James Michael Murphy, Jr., Michael Oliver McNaught, and Patrick Joseph Nee.
• Court: U.S. District Court — District of Massachusetts

766 F. Supp. 22

UNITED STATES of America v. Michael C. HABICHT, Robert Emmet Joyce, James Francis Melvin, James Michael Murphy, Jr., Michael Oliver McNaught, and Patrick Joseph Nee.

Crim. A. No. 91-10039-MA.

United States District Court, D. Massachusetts.

June 3, 1991.

COPYRIGHT MATERIAL OMITTED

Michael Laurano, Boston, Mass., for defendant Michael C. Habicht.

George C. McMahon, McMahon Law Offices, North Quincy, Mass., for defendant Robert Emmet Joyce.

Anthony Cardinale, Boston, Mass., for defendant Michael Oliver McNaught.

James W. Lawson, Oteri, Weinberg & Lawson, Boston, Mass., for defendant James Francis Melvin.

Joseph Murphy and Patrick Murphy, Boston, Mass., for James Michael Murphy, Jr.

Fishman, Kenneth J. Fishman, Bailey & Fishman, Boston, Mass., for defendant Patrick Joseph Nee.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

Michael C. Habicht, Robert Emmet Joyce, James Francis Melvin, James Michael Murphy, Jr., Michael Oliver McNaught, and Patrick Joseph Nee are charged in a nine count indictment alleging violations of 18 U.S.C. § 1962(c) and (d) (conspiracy to violate and substantive violation of the Racketeer Influenced and Corrupt Organizations Act or "RICO"), 18 U.S.C. § 1951 (conspiracy and attempt to obstruct commerce by extortion of property), 18 U.S.C. § 2113(a) (attempted robbery of a federally insured bank), 18 U.S.C. § 371 (conspiracy to violate 18 U.S.C. § 2113(a)), and 18 U.S.C. § 924(c)(1) (use of firearms during commission of a dangerous felony). The charges stem from what the Government contends were two distinct conspiracies, an agreement to rob a Brink's, Inc., armored truck carrying money from the Shawmut Arlington Trust Company in Methuen, Massachusetts, and an agreement to rob a Transfer Services, Inc., armored truck carrying money belonging to the Bank of New England, in Abington, Massachusetts.¹ The latter plan ended abruptly on January 9, 1991, when all of the defendants, along with a considerable number of weapons, were seized in Abington during what the Government alleges was an attempt to carry out the Transfer Services robbery.

The defendants raise a number of issues by way of pretrial motion. This memorandum and order will address the motion to strike and to dismiss and the motion for relief from prejudicial joinder.

I. Motion to Dismiss Counts One and Two

The defendants Habicht, Joyce, Melvin, and Murphy move to strike Racketeering Act A from Counts One and Two and to dismiss Counts One and Two of the indictment.² Count One of the indictment charges a RICO conspiracy in violation of 18 U.S.C. § 1962(d). Count Two, which charges a substantive violation of RICO, 18 U.S.C. § 1962(c), incorporates by reference the same allegations. The defendants argue that in a RICO prosecution, the Government must plead particular facts to demonstrate that a RICO charge can be proven. More specifically, the defendants argue that the Government has failed to show that the defendants agreed to participate in an enterprise through a pattern of racketeering: that the Government lacks "proof" of an enterprise, an agreement, the commission of more than one predicate crime, or the continuity of criminal action necessary to establish the RICO violations charged. The Government does not dispute that it will be required to prove these elements to prevail on the RICO charges, but asserts that a RICO indictment is not obliged to follow any special rules of detailed factual pleading. The Government argues that a RICO indictment must only follow ordinary principles of criminal pleading, and that the instant indictment meets all of those requirements.

Federal Rule of Criminal Procedure 7(c) requires that the indictment contain a "plain, concise and definite written statement of the essential facts constituting the offense charged." Generally, "an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 114, 94 S.Ct. 2887, 2906, 41 L.Ed.2d 590 (1974).

A RICO conspiracy charge must allege that each defendant agreed to participate in an enterprise through a pattern of racketeering and agreed to commit at least two predicate acts. United States v. Winter, 663 F.2d 1120, 1136 (1st Cir.1981), cert. denied, 460 U.S. 1011, 103 S.Ct. 1249, 75 L.Ed.2d 479 (1983). The existence of an "enterprise," as defined by 18 U.S.C. § 1961(4), and a "pattern of racketeering activity", as defined by 18 U.S.C. §§ 1961(1), (5), are separate elements of the offense and must be separately charged. Pattern consists of something more than the predicate acts themselves: it requires "continuity plus relationship". Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985). Continuity is not an element of RICO, but is "nevertheless a necessary characteristic of the evidence used to prove the existence of pattern." United States v. Boylan, 898 F.2d 230, 250 (1st Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990). The substantive RICO offense differs in that the Government must show the commission, and not just the agreement to commit the predicate offenses. See United States v. Ruiz, 905 F.2d 499, 503 (1st Cir.1990).

There is simply no case law to support the defendants' contention that a RICO indictment must plead facts in extraordinary detail. In fact, as the Government suggests, the First Circuit case law seems to indicate otherwise. See Winter, 663 F.2d at 1135-38; United States v. Angiulo, 847 F.2d 956, 964, cert. denied, 488 U.S. 852, 109 S.Ct. 138, 102 L.Ed.2d 110 (1988). Other circuits have consistently rejected the argument that a RICO indictment must meet a higher standard of pleading than other criminal indictments. See, e.g., United States v. Cauble, 706 F.2d 1322, 1333-34 (5th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984) (rejecting post-conviction challenge to the specificity of an indictment charging RICO violations under the standard three-part test of sufficiency elucidated in Hamling).

The defendants' reliance on Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) to justify a higher standard of specificity is misplaced because there is simply no factual deficiency in this case analogous to that in Russell. Russell involved a prosecution under 2 U.S.C. § 192 for failure to answer questions pertinent to a subject under inquiry by Congress. The Court held that since the indictment did not specify the subject under inquiry in Congress, which was "the very core of the criminality" alleged, the indictment failed because it did not perform one of its essential functions, to inform the defendant "`of what he must be prepared to meet.'" Russell, 369 U.S. at 764, 82 S.Ct. at 1047 (citations omitted). "Where guilt depends so crucially upon a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute." Id.

Count One of the indictment in this case charges that the defendants constituted an "Enterprise" within the meaning of § 1961(4):

that is, a group of individuals associated in fact which engaged in various criminal activities, consisting of acts indictable under Title 18, United States Code, Section 1951 (relating to interference with interstate commerce by acts of robbery) and acts involving robbery in violation of Massachusetts General Laws, Ch. 265, § 17 and Massachusetts common law.

Indictment, Count I, ¶ 1.

As the Government points out, this description of the enterprise is quite similar to the one found adequate in Winter, 663 F.2d at 1136. It alleges the existence of an enterprise, the association of each defendant with that enterprise, and the specific unlawful purpose of the association.

Count One further charges a conspiracy between the defendants to conduct the enterprise through a pattern of racketeering. It specifies a general date, approximately December of 1989 through January 9, 1991, and a place, the District of Massachusetts. Indictment, Count I, ¶ 2. It describes the purposes of the conspiracy, to "plan, prepare for, and execute armed robberies" Id. at ¶ 3, and to "use incendiary devices and weapons, including machine guns, in executing armed robberies." Id. at ¶ 4. Although there is no requirement in the First Circuit that a RICO conspiracy charge specify overt acts in furtherance of the conspiracy, United States v. Angiulo, 847 F.2d at 964, the indictment lists a number of overt acts committed by the defendants and their coconspirators in furtherance of the racketeering conspiracy. Indictment, Count I, ¶ 7. These allegations are certainly sufficient to alert the defendants to the nature of the conspiracy charged.

The acts of racketeering that the defendants are charged with agreeing to commit (Count One) and committing (Count Two) are likewise facially adequate. The two acts of racketeering, which are referred to as "Racketeering Act A" and "Racketeering Act B" (and will be so referred to in this memorandum) are set out in some detail in paragraph five of Count One. Paragraph six charges that each of the defendants agreed to and did participate in the pattern of racketeering activity. Racketeering Act A charges a conspiracy (the "Brinks Conspiracy") extending from approximately April, 1990, to June 22, 1990, to take money belonging to Shawmut Arlington Trust Company from employees of Brink's, Inc., in violation of the Hobbs Act, 18 U.S.C. § 1951, and of M.G.L. c. 265 § 17, and of Massachusetts common law. Racketeering Act B charges a conspiracy (the "Transfer Services conspiracy") extending from approximately July 25, 1990, to January 9, 1991, to take money belonging to Bank of New England from Transfer Service, Inc.,...