US v. Long

• Decision Date: 27 September 1988
• Docket Number: No. SS 87 Cr. 943 (DNE).,SS 87 Cr. 943 (DNE).
• Citation: 697 F. Supp. 651
• Parties: UNITED STATES of America, v. John F. LONG and John S. Mahoney, Jr., Defendants.
• Court: U.S. District Court — Southern District of New York

697 F. Supp. 651

UNITED STATES of America, v. John F. LONG and John S. Mahoney, Jr., Defendants.

No. SS 87 Cr. 943 (DNE).

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

September 27, 1988.

COPYRIGHT MATERIAL OMITTED

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., Joan McPhee, Asst. U.S. Atty., New York City, of counsel, for U.S.

Jo Ann Harris, and Michael G. Dowd, New York City, for defendant John S. Mahoney, Jr.

Law Offices of Lawrence Vincent Kelly, Lawrence Vincent Kelly, James P. Lavin, and Diane B. Walker, New York City, of counsel, for defendant John F. Long.

OPINION AND ORDER

EDELSTEIN, District Judge:

BACKGROUND

John F. Long ("Long") is, and at all relevant times of the indictment was, Secretary-Treasurer of Local 804 ("Local 804") of the International Brotherhood of Teamsters ("Teamsters"). John S. Mahoney, Jr. ("Mahoney") occupied the same post with Teamsters Local 808 ("Local 808"). On December 14, 1987, the grand jury handed up an indictment charging Long with one count of violating the Racketeer Influenced and Corrupt Organizations Act, ("RICO"), 18 U.S.C. § 1961 et seq., and one count of conspiring to violate RICO. That indictment remained sealed until January 13, 1988. The grand jury returned an eight count superseding indictment ("First Superseder") on April 27, 1988. The First Superseder added Mahoney as a defendant. A second superseding indictment ("Second Superseder"), which added four counts against Long, was filed on June 29, 1988.

The RICO counts charge that, from 1978 through 1987, Long, Mahoney, and others participated in a racketeering enterprise aimed at producing income for its members. The participation is summarized in the indictment by reference to ten enumerated acts of racketeering. These acts include bribery, receipt of kickbacks for being influenced in matters relating to an employee benefit plan, receipt of unlawful payments from employers, extortion, and obstruction of justice.

There are several other participants in this alleged enterprise who played key roles: Vincent Joseph Rotondo, alleged to be a former high-ranking member of the Decavalcante organized crime faimily; Jesse Hyman, chief executive of Resource Capital Group, Ltd. ("Resource Capital"); Penvest, Inc. ("Penvest"), a company allegedly controlled by Hyman. The indictment charges that Long and Mahoney used their position as high ranking officials of Teamster locals to disburse Teamster pension funds to further the ends of the alleged enterprise. For instance, both Long and Mahoney allegedly invested pension funds in Penvest in exchange for various payoffs. Rotondo allegedly reaped profits from this enterprise and also assisted in its operation.

Both defendants have made omnibus pretrial motions seeking, inter alia, dismissal of the entire indictment, dismissal of certain counts of the indictment, an order suppressing certain evidence obtained by the grand jury, a transfer of venue, additional discovery material, a bill of particulars, and severance of defendants and counts. The defendants have also jointly applied for an order of recusal and directing this case be reassigned.

I. MOTIONS FOR RECUSAL

Long and Mahoney¹ seek an order from this court recusing itself and directing the case be sent back to the "wheel" for reassignment. After the instant case was assigned to this court, the government filed a civil RICO complaint that basically parallels the charges in the instant indictment. That case was assigned by lot to the late Judge Daronco, and was later transferred to Judge Broderick. At the government's request and with consent of counsel for both Long and Mahoney, the civil case was transferred to this court—a procedure that is common in parallel civil and criminal RICO cases. Finally, the government filed a civil RICO action against the Teamsters, United States v. International Brotherhood of Teamsters, 88 Civ. 4486 (DNE), which pursuant to Rule 15 of the Local Rules for the Division of Business was referred to this court to decide whether it should be accepted as related.

As an initial matter, the court notes that Mahoney's motion for the court to recuse itself and order this case to be reassigned, does not suggest that this court cannot impartially preside over the trial. In fact, Mahoney clearly points out that he does not charge any actual prejudice to him. Mahoney's Memorandum in Support of Motion for the Court to Recuse Itself ("Mahoney's Recusal Memo") at 14. Mahoney does contend, however, that the government has manipulated the assignment rules of this court so as to cause United States v. International Brotherhood of Teamsters, 88 Civ. 4486 (DNE) to come before this court. From that contention, Mahoney concludes that his due process rights have been infringed and, therefore, the appropriate remedy is for this court to recuse itself in the instant case.

Mahoney imputes to the United States Attorney Machiavellian purposes coupled with Delphian foresight. The instant case was assigned to this court by the "wheel" in an absolutely impartial and random fashion. The government thus had no control over this assignment. Although Mahoney theorizes that this case served as the rudder by which the government could steer the Teamsters case to this court, he fails to explain what course the government would have followed if Lady Luck had not smiled on the government that Thursday and the name of another judge had found its way out of the wheel. Further, the transfer of the Long and Mahoney civil RICO case was transferred in routine fashion with the consent of the defendants and counsel. Again, the government had no unilateral power to effectuate the transfer. Finally, the decision to accept or reject the Teamsters case as related was for this court to make.² The government had no say whatsoever in that decision. That the government could have predicted these events, or expended these efforts on the chance that they would occur, all for the purpose of having a particular judge assigned to a case is a dubious proposition at best.

Moreover, the defendant does not claim that he has suffered any prejudice as a result of this court hearing his case. Mahoney unequivocally states that this court is biased neither for nor against him. Nevertheless, he fails to explain why—given his concession of this court's impartiality and lack of bias—the government would subject itself to a path wrought with fortuity solely to have the opportunity to request whether the court would accept the Teamsters case. This tortured reasoning defies logic. Although Mahoney accuses the government of "judge-shopping," the tenor of this motion suggests that it is Messrs. Mahoney and Long who, for reasons known only to them and their counsel, are seeking to shop for a judge more to their liking.

Mahoney argues that he has a right to the random assignment of a judge. Without addressing the merits of this contention, this case was assigned, as it is in every criminal case, by random drawing from the wheel. The defendant has received what he asked for—impartial assignment —no more and no less. He is entitled to a fair trial, and he will be afforded one. Accordingly, defendants' motion for reassignment is denied.

II. MOTIONS OF JOHN S. MAHONEY, JR.

1. Transfer of Venue to Eastern District of New York

Defendant Mahoney seeks an order dismissing the instant indictment for failure to establish venue, or in the alternative, an order pursuant to Federal Rule of Criminal Procedure 21(b) transferring this case to the United States District Court for the Eastern District of New York. Mahoney contends that this court should dismiss the indictment naming him because the conduct alleged in the indictment, with the exception of giving perjurious testimony as alleged in Counts Five and Six, took place in the Eastern District. Moreover, Mahoney argues that Counts One through Four fail to allege venue with the requisite specificity. Finally, Mahoney maintains that permitting the government to manufacture venue by requiring a defendant to testify in the district about acts allegedly committed outside the district and then basing venue on the false testimony will deny him due process of law.

Federal Rule of Criminal Procedure 18 requires prosecution "in a district in which the offense was committed." Although the government must prove venue at trial by a preponderance of the evidence, see United States v. Panebianco, 543 F.2d 447, 445 (2d Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977), at this stage it suffices for the government to allege with specificity that the charged acts support venue in this district. See United States v. Castellano, 610 F.Supp. 1359, 1388 (S.D.N.Y.1985); United States v. Valle, 16 F.R.D. 519, 521-22 (S.D.N.Y. 1955). Moreover, if the indictment is not sufficiently specific on its face, the government may remedy the inadequacy by providing a sworn bill of particulars. See C. Wright, Federal Practice and Procedure: Criminal 2d § 125 at 380-81 (1982).

The propriety of venue in a particular district depends on the nature of the crime charged. See United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946). If an offense involves a single act, it is relatively simple to ascertain the "district in which the offense was committed." In the case of other offenses, venue is proper in any district in which any part of the alleged crime was committed. See United States v. Ramirez-Amaya, 812 F.2d 813, 816 (2d Cir. 1987); see also 18 U.S.C. § 3237(a). Thus, for example, a conspiracy charge may be prosecuted in any district in which an overt act in furtherance of the conspiracy was committed. See e.g. Ramirez, supra, 812 F.2d at 816 (conspiracy case properly in the Southern District of New York because the cocaine at issue was flown over the Verrazano Narrows, although it landed in the Eastern District of New York).

The instant indictment alleges that Mahoney committed in the ...