US v. Maling

• Decision Date: 23 April 1990
• Docket Number: No. CR. 88-116-C.,CR. 88-116-C.
• Citation: 737 F. Supp. 684
• Parties: UNITED STATES of America v. Ralph L. MALING, Keith V. Maling, Chris E. Maling, Al Maling, Richard Booker, Mark Gill (aka "Fish"), Timothy Hanscom, Michael (aka "Big Mike") Hurley, John Monroe, Ralph G. Richard, Paul Rizzo, William (aka "Billy") Shaw, Robert S. (aka "Bobby") Stowe, Richard Sullivan, and Emelio Doe (aka "Emelio").
• Court: U.S. District Court — District of Massachusetts

737 F. Supp. 684

UNITED STATES of America v. Ralph L. MALING, Keith V. Maling, Chris E. Maling, Al Maling, Richard Booker, Mark Gill (aka "Fish"), Timothy Hanscom, Michael (aka "Big Mike") Hurley, John Monroe, Ralph G. Richard, Paul Rizzo, William (aka "Billy") Shaw, Robert S. (aka "Bobby") Stowe, Richard Sullivan, and Emelio Doe (aka "Emelio").

No. CR. 88-116-C.

United States District Court, D. Massachusetts.

April 23, 1990.

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Paul V. Kelly and Brien T. O'Connor, U.S. Attys., for U.S.

Jack I. Zalkind, Boston, Mass., and Gerald Lefcourt, New York City, for Ralph L. Maling.

Earle C. Cooley, Cooley, Manion, Moore & Jones, P.C., Boston, Mass., for Chris E. Maling.

Martin G. Weinberg, Oteri, Weinberg & Lawson, Boston, Mass., for Keith V. Maling.

William A. Brown, Brown & Prince, Boston, Mass., for Ralph G. Richard.

Joan Lieberman, Boston, Mass., for Al Maling.

Robert Sheketoff, Boston, Mass., for Mark Gill.

Carol S. Ball, Murphy & O'Connell, Boston, Mass., for Timothy Hanscom.

Anthony Traini, Leppo & Traini, Randolph, Mass., for Michael Hurley.

Mary Ellen Kelleher, Boston, Mass., for John Monroe.

Richard N. Ivker, Boston, Mass., for Paul Rizzo.

William D. Crowe, Boston, Mass., for William Shaw.

Harry C. Mezer, Boston, Mass., for Richard Sullivan.

No appearance for Robert S. Stowe, Richard Booker and Emelio Doe.

MEMORANDUM

CAFFREY, Senior District Judge.

This case is now before the Court on twelve pretrial motions brought by the defendants. On September 21, 1989, the grand jury handed down a twenty-count third superseding indictment in this case. The indictment charges the defendants, as described in the various counts,¹ with criminal conspiracy in violation of 21 U.S.C. § 846, engaging in a criminal enterprise in violation of 21 U.S.C. § 848, distribution of marijuana in violation of 21 U.S.C. § 841(a)(1), conspiracy to import marijuana in violation of 21 U.S.C. § 963, possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), conspiracy to defraud the government in violation of 18 U.S.C. § 371, aiding and abetting in violation of 18 U.S.C. § 2, false and fraudulent statements in violation of 26 U.S.C. § 7206(1), and criminal forfeitures in violation of 21 U.S.C. § 853(a). The defendants have now filed all their dispositive, non-evidentiary pretrial motions, and, on February 12, 1990, this Court heard oral argument concerning these motions. Based on a careful review of the pleadings and arguments in this case, this Court rules as follows.

A. Motion to Dismiss Count One

Count one charges all fifteen defendants with criminal conspiracy in violation of 21 U.S.C. § 846. Count one describes the conspiracy as lasting for 14 years "beginning at an unknown date, believed to be sometime in 1973, and continuing to and including August 1987." Count one alleges that the conspiracy took place in seven states: Massachusetts, New Hampshire, Maine, North Carolina, Florida, Colorado, and Arizona. Count one further charges that the fifteen defendants conspired to distribute more than 1,000 kilograms of marijuana in violation of 21 U.S.C. § 841 and § 841(b)(1)(A)(vii).

A number of the defendants² have joined in moving to dismiss count one citing three principal reasons: lack of adequate notice of the offense charged, problems of "constructive amendment" in the indictment, and a violation of the statute of limitations. This Court shall discuss each argument in turn.

1. Adequate Notice

Specifically, the defendants claim that count one fails to state any overt acts of the conspiracy, fails to provide notice of specific criminal transactions in the conspiracy, fails to specify the location and time of the conspiracy, and fails to identify all the co-conspirators. Further, the defendants claim that count one violates Rule 7(c)(1) of the Federal Rules of Criminal Procedure which requires particularity in the indictment. Upon review, these complaints are not persuasive.

The sixth amendment requires that "in all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation." U.S. Const. amend. VI. An indictment "is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against him which he must defend, and second, enables him to plead an acquittal or conviction in bar of future prosecutions of the same offense." United States v. Allard, 864 F.2d 248, 250 (1st Cir.1989) (quoting United States v. Serino, 835 F.2d 924, 929 (1st Cir.1987)). See also United States v. Murphy, 762 F.2d 1151, 1154 (1st Cir.1985). An indictment charging an offense of 21 U.S.C. § 846 is sufficient where it identifies the conspiracy in the words of the statute, names the statute violated, and specifies the duration of the conspiracy. See United States v. Dempsey, 806 F.2d 766, 769 (7th Cir.1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 497 (1987); United States v. Khan, 728 F.2d 676, 681 (5th Cir.1984). See also United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir.1988). Furthermore, Rule 7(c)(1) requires that an indictment "shall be in plain, concise and definite statement of the essential facts constituting the offense charged." Fed.R. Crim.P. 7(c)(1). Finally, the indictment charging a violation of 21 U.S.C. § 846 need not allege an overt act in furtherance of the conspiracy. See Dempsey, 806 F.2d at 769; Khan, 728 F.2d at 681.

In light of these standards, count one satisfies the constitutional and statutory requirements of adequate notice for criminal defendants. Count one charges the offense using the language of 18 U.S.C. § 846 and names the statute. The indictment also identifies the underlying violations of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(vii). Count one identifies fifteen co-conspirators by name which gives the defendants sufficient notice of the members of the alleged conspiracy. Also, count one outlines the duration of the alleged fourteen-year conspiracy with sufficient specificity. See United States v. Nunez, 668 F.2d 10, 12 (1st Cir.1981) ("great generality in the allegation of date is allowed ... where ... the exact time of the commission of the crime is not important."). And, as noted above, count one need not allege any overt acts in furtherance of the conspiracy.

The defendants principally cite United States v. Cecil, 608 F.2d 1294 (9th Cir. 1979), in support of their argument that count one fails to give adequate notice. In Cecil, however, the indictment at issue was open-ended as to the beginning and the termination of the conspiracy, a problem which is not present in this case. 608 F.2d at 1297. Further, the Cecil decision was based, in part, on the fact that no overt acts were alleged in the conspiracy indictment, an allegation which is not required in this case. Id. Finally, the holding in Cecil has never been cited nor adopted by the Court of Appeals for the First Circuit. Thus, this Court does not find the Cecil decision controlling in this case, and, for the reasons stated above, defendants' arguments claiming inadequate notice under count one are not persuasive.

2. Constructive Amendment

The defendants next argue that count one is so vague that it would allow the government to alter its theory of prosecution and introduce evidence at trial that was not the basis of the indictment by the grand jury. Such constructive amendment would be impermissible. The defendants' argument, however, is premature.

"A constructive amendment `occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecution or court after the grand jury has last passed on them.'" United States v. Dunn, 758 F.2d 30, 35 (1st Cir.1985) (quoting Gaither v. United States, 413 F.2d 1061, 1071-72 (D.C.Cir.1969)). See also Stirone v. United States, 361 U.S. 212, 217-19, 80 S.Ct. 270, 273-74, 4 L.Ed.2d 252 (1960). Such a constructive amendment, either by alteration of the words of the indictment, a jury instruction which modifies the charge, or the admission of evidence which modifies the offense charged, is prejudicial per se and reversible error. Dunn, 758 F.2d at 35. See also United States v. Mollica, 849 F.2d 723, 728-29 (2d Cir.1988).

In this case, the Court has yet to face any of these questions. At this point, the defendants have only suggested that the indictment may be too broad and may allow the government to introduce evidence beyond the scope of the indictment. But this objection is properly made when the claimed objectionable evidence is before the Court. At this time, the defendants' arguments concerning constructive amendment are not grounds for a dismissal.³

3. Statute of Limitations

The defendants argue that the conspiracy charged in count one was, at best, a number of separate conspiracies. The defendants assert that the evidence at trial will show the central conspiracy charged in count one, in fact, ended before September 21, 1984. Further, the defendants claim that the evidence at trial will show any further criminal activity as alleged in counts eight, nine, ten, eleven, twelve and thirteen was not part of the same conspiracy. As such, the defendants assert that the conspiracy charged in count one ended five years before the issuance of the third superseding indictment on September 21, 1989, and, therefore, count one should be dismissed as barred by the statute of limitations. This argument, however, is both premature and speculative, and does not create grounds to dismiss count one at this time.

The statute of limitations for all non-capital federal crimes is five years. 18 U.S.C. § 3282. Generally, the statute of limitations period begins to run when the crime, as alleged, is complete. See Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970). In the case of non-overt act conspiracies, the statute of limitations is satisfied if...