US v. Mavroules, Crim. No. 92-10243-MA.

• Decision Date: 30 March 1993
• Docket Number: Crim. No. 92-10243-MA.
• Citation: 819 F. Supp. 1109
• Parties: UNITED STATES, Plaintiff, v. Nicholas MAVROULES, Defendant.
• Court: U.S. District Court — District of Massachusetts

819 F. Supp. 1109

UNITED STATES, Plaintiff, v. Nicholas MAVROULES, Defendant.

Crim. No. 92-10243-MA.

United States District Court, D. Massachusetts.

March 30, 1993.

Tracy A. Miner, Francis X. Bellotti, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Boston, MA, for defendant.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

The Defendant, Nicholas Mavroules, has filed certain objections to four pretrial rulings made by the United States Magistrate Judge in this case. The Magistrate denied each of the Defendant's four motions to dismiss the charges in this indictment. I adopt the Magistrate's findings for the following reasons.

The Defendant claims that Counts One and Seventeen should be dismissed because of defects in the indictment. The rule is that an indictment only needs to set forth unambiguously the elements of an offense and the essential facts constituting the offense charged. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); United States v. Allard, 864 F.2d 248, 250 (1st Cir.1989). See Fed. R.Crim.P. 7(c)(1). Count One, charging violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), Title 18 U.S.C. § 1962(c), describes the Defendant's alleged participation in an enterprise, which engaged in a pattern of racketeering activity and which had an effect on interstate commerce.¹ In accord with the Magistrate, I find that Count One was adequately pled by the United States. Whether the United States can prove a RICO violation at trial is another matter. Therefore, I deny the Defendant's Motion to Dismiss Count One.²

I also find that Count Seventeen, charging conspiracy to commit extortion, Title 18 U.S.C. § 1951, was well pled. As required, the indictment alleges that the Defendant entered into an agreement for unlawful purposes — to extort money for himself and employment for his brother in return for assistance in securing a liquor store license for Ralph Kaplan; that a sufficient nexus with interstate commerce existed, see United States v. Devin, 918 F.2d 280, 293 (1st Cir. 1990) (burden of proving effect on interstate commerce is "not onerous"); and that the Defendant used his office wrongfully to instill economic fear. Thus, I decline to dismiss Count Seventeen.³

In addition, contrary to the Defendant's assertions, I find that Counts Seven and Eight are not multiplicitous. Each count requires proving a different fact. Count Seven requires proof that the Defendant filed a false financial disclosure report on May 15, 1990, and Count Eight requires proof that the Defendant filed another false disclosure report on June 11, 1990. See United States v. Guzman, 781 F.2d 428, 432-33 (5th Cir.), cert. denied, 475 U.S. 1143, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986) (false statements, made in separate documents, constitute separate crimes under 18 U.S.C. § 1001). Though apparently repeating the same falsehood set forth in the first disclosure report, the falsity of the second disclosure report further impaired the Ethics Committee's ability to perform its oversight role. Thus, it constituted an additional violation of 18 U.S.C. § 1001. See United States v. Salas-Camacho, 859 F.2d 788, 791 (9th Cir.1988) (multiplicitous counts are permissible for false statements where later falsehoods further impaired operations of government). Therefore, I deny the Defendant's Motion to Dismiss as multiplicitous either Counts Seven or Eight.

Finally, I find that the Defendant has failed to show selective prosecution. Contrary to the Defendant's assertions, there is no credible evidence to support the view that the United States chose to prosecute Congressman Mavroules, and not others, for partisan reasons. Under the past two Republican Administrations, elected officials from both parties have been indicted and prosecuted. Moreover, the Defendant has not succeeded in showing that there are other similarly situated elected officials that the United States has suspiciously demurred from prosecuting. Therefore, I also deny the Defendant's Motion to Dismiss Counts One through Sixteen for selective prosecution.

In conclusion, I find that the indictment is properly constructed, clearly stating the specific charges for which the Defendant has been called to trial. I also find that the indictment properly notifies the Defendant of the charges, allowing him to prepare a defense to those charges. Thus, the Magistrate's Reports and Recommendations are accepted and approved as an order of this court.

SO ORDERED.

REPORT AND RECOMMENDATION ON DEFENDANT NICHOLAS MAVROULES' MOTION TO DISMISS COUNT SEVENTEEN, CONSPIRACY TO COMMIT EXTORTION (# 53)

COLLINGS, United States Magistrate Judge.

I. INTRODUCTION

The defendant seeks dismissal of Count 17 charging conspiracy to commit extortion on four grounds, i.e., (1) the charge is barred by the statute of limitations, (2) the indictment fails "... to expressly sic allege any agreement whatsoever between the alleged conspirators," (3) it "... fails to allege the requisite nexus between the alleged conspiracy to extort and interstate commerce," and (4) it "... fails to set forth the essential elements of a conspiracy to commit extortion by wrongful use of fear."

II. THE LEGAL STANDARD

The motion is without merit for essentially the same reasons the Motion to Strike and/or Dismiss the Rico Count (# 55) is without merit. As the Court wrote in the case of United States v. Habicht, 766 F.Supp. 22, 25-27 (D.Mass., 1991):

... the defendants' thesis hinges on an erroneous equation of what the Government must charge in the indictment with what the Government must prove at trial. The allegations of an indictment are presumed to be true for the purposes of assessing sufficiency, and inquiry into whether the Government can prove its case at trial is inappropriate at this stage. 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). See United States v. Campbell Hardware, Inc., 470 F.Supp. 430, 433 (D.Mass., 1979).

In order for a criminal indictment to be sufficient, all that is required is that the indictment "... shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." Rule 7(c)(1), Fed.R.Crim.P. In the words of the Supreme Court:

... An indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the 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. Hagner v. United States, 285 U.S. 427 52 S.Ct. 417, 76 L.Ed. 861 (1932); United States v. Debrow, 346 U.S. 374 74 S.Ct. 113, 98 L.Ed. 92 (1953). It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as "those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth the offence intended to be punished." United States v. Carll, 105 U.S. 611, 612 26 L.Ed. 1135 (1882).

Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974).

Put another way, the issue is "... whether the indictment fairly identifies and describes the offense." United States v. Allard, 864 F.2d 248, 250 (1 Cir., 1989).

III. THE TEXT OF COUNT SEVENTEEN

Count 17 reads as follows:

1. Beginning at a time unknown but at least by in or about 1973, and continuing to in or about January, 1988, in the District of Massachusetts,

NICHOLAS MAVROULES,

defendant herein, who in 1973 was the Mayor of Peabody, did knowingly, willfully and unlawfully conspire with others known and unknown to the grand jury, to obtain and cause to be obtained from the proprietor of Kappy's Liquors, Ralph Kaplan, approximately $25,000 in United States currency and the guarantee of employment for his brother George Mavroules, in return for defendant NICHOLAS MAVROULES', promise to facilitate the acquisition of a liquor license for a liquor store to be located in Peabody, Massachusetts with the consent of the proprietor of Kappy's Liquors, Ralph Kaplan, by wrongful use of fear of economic harm and under color of official right, and did thereby obstruct, delay and affect interstate commerce.

GENERAL ALLEGATIONS

2. In or about 1973, Ralph Kaplan owned and operated a chain of liquor stores located in various cities and towns in proximity to Peabody, Massachusetts.

3. At defendant NICHOLAS MAVROULES' request, Ralph Kaplan was introduced to defendant NICHOLAS MAVROULES.

4. Defendant NICHOLAS MAVROULES then offered to Ralph Kaplan the opportunity to purchase a liquor license in Peabody, Massachusetts.

5. Ralph Kaplan expressed an interest in purchasing the liquor license but stated that he needed a location in which to operate a liquor store.

6. Defendant NICHOLAS MAVROULES, along with an attorney, then undertook to locate suitable facilities for a liquor store and proposed a number of sites to Ralph Kaplan.

7. A short time later, the liquor license application of Ralph Kaplan was approved by the Peabody Liquor Licensing Board.

8. In or about 1973, NICHOLAS MAVROULES met with Ralph Kaplan, and others to discuss the progress of Ralph Kaplan's liquor license application before the Alcoholic Beverages Control Commission (ABCC) of the Commonwealth of Massachusetts and offered to provide help to Ralph Kaplan before the ABCC.

9. At that meeting, NICHOLAS MAVROULES took Ralph Kaplan aside privately and asked to become a partner with Ralph Kaplan in the new liquor store. Ralph Kaplan refused the request.

10. Defendant NICHOLAS MAVROULES, in lieu of becoming Kaplan's partner, then demanded a lump sum payment of approximately $40,000 in cash from Ralph Kaplan over and above the $35,000 paid by Kaplan and others to the previous license holder to purchase the liquor license.

11. When Ralph Kaplan stated that he could not afford that amount of money, defendant NICHOLAS MAVROULES

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