US v. Moore

Decision Date13 November 1992
Docket NumberNo. 91-CR-230A.,91-CR-230A.
Citation811 F. Supp. 112
PartiesUNITED STATES of America, v. James MOORE, Russell Amsden, a/k/a "Hymo", Bart T. Mazzara, Frank Grisanti, a/k/a "Chickie Botts", Nicholas A. "Sonny" Mauro, Defendants.
CourtU.S. District Court — Western District of New York

Dennis C. Vacco, U.S. Atty. (Anthony M. Bruce, Asst. U.S. Atty., of counsel), Buffalo, NY, for U.S.

Matusick, Spadafora & Verrastro (John Humann, of counsel), Buffalo, NY, for defendant Moore.

Boreanaz, Carra & Boreanaz (Harold J. Boreanaz, of counsel), Buffalo, NY, for defendant Mauro.

ARCARA, District Judge.

This matter was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(B), for report and recommendation on defendant Moore's motion to dismiss Counts I and II of the Indictment and motion to suppress, and defendant Mauro's motion to dismiss the Indictment. Magistrate Judge Foschio filed a Report and Recommendation on October 20, 1992 denying defendants' motions.

This Court, having carefully reviewed Magistrate Judge Leslie G. Foschio's Report and Recommendation, as well as the pleadings and materials submitted by the parties; and no objections having been timely filed to the Magistrate Judge's Report in the above-captioned matter, it is hereby

ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), the Magistrate Judge's Report and Recommendation is accepted in its entirety.

IT IS FURTHER ORDERED that the parties shall appear in Part II of this Court at 9:00 a.m. on November 23, 1992 for a status conference.

IT IS SO ORDERED.

REPORT and RECOMMENDATION

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This matter was referred to the undersigned by the Hon. Richard J. Arcara on October 17, 1991. The matter is presently before the court for report and recommendation on Defendant Moore's motion to dismiss Counts One and Two of the Indictment, Defendant Moore's motion to suppress any information procured through electronic eavesdropping in a vehicle belonging to Leonard Falzone, and Defendant Mauro's motion to dismiss the Indictment on the ground that the Indictment against him was returned in violation of his constitutional right to a fair and impartial grand jury.

BACKGROUND and FACTS

Defendants were indicted in a fourteen count indictment on October 3, 1991 charging violations of 18 U.S.C. § 1962(c) and (d), 18 U.S.C. § 1963, 18 U.S.C. § 892, 18 U.S.C. § 894, 18 U.S.C. § 1014, 18 U.S.C. § 215(a), and 18 U.S.C. § 2. A superseding indictment was filed on October 31, 1991 charging violations of the same statutes. Specifically, Defendants are charged with forming an enterprise and using such enterprise to collect unlawful gambling debts, to obtain loans for individuals to pay gambling debts incurred in violation of the New York State Penal Law, and to make loans which were not enforceable under state and federal law because of their usurious terms, along with conspiracy to participate in the collection of unlawful gambling and usurious debts, and with making fraudulent bank loans. Additionally, Defendant Moore is charged with using his position of authority as area director of Citibank to override decisions to deny loan applications and to grant loan applications to individuals who did not qualify for such loans.

On January 3, 1992, Defendant Moore filed a motion to dismiss Counts One and Two of the Indictment on the ground that they are duplicitous and violate Moore's right to be informed of the charges against him. On January 31, 1992, and again on May 28, 1992, Defendant Moore filed motions to suppress any information procured through the use of the "Falzone Buick bug." Defendant Mauro, on July 13, 1992, filed a motion to dismiss the Indictment on the ground that the Indictment was returned in violation of his constitutional right to have the case against him presented to a fair and impartial grand jury. The Government responded to these motions on August 13, 1992. Oral argument on the matter was held on September 15, 1992.

For the reasons as set forth below, the court recommends that Defendant Moore's motion to dismiss Counts One and Two of the Indictment be DENIED; Defendant Moore's motion to suppress the information obtained from the electronic wiretap be DENIED; and Defendant Mauro's motion to dismiss the Indictment be DENIED.

DISCUSSION
1. Moore's Motion to Dismiss Counts One and Two of the Indictment

Defendant Moore has moved to dismiss Counts One and Two of the Indictment as they pertain to him on the ground that these counts allege two distinct illegal schemes within the same counts and that there is no support for joining two separate activities within a single enterprise charge. Moore argues that to do so is "duplicitous and violates the defendant's Constitutional right to be informed of the charges against him and his right to have a unanimous verdict on each charge against him." See, Motion to Dismiss, dated January 2, 1992. Further, Moore contends that there is no proof that he had anything to do with an alleged gambling or loansharking enterprise as alleged in Counts One and Two. The Government responds that the disputed portion of the Indictment does not allege two offenses but, rather, alleges that an enterprise existed for at least two unlawful purposes, and that this is a proper form of pleading under Fed.R.Crim.P. 7(c)(1).

An indictment is invalidly duplicitous when it joins two or more distinct, separate offenses in a single count. United States v. Droms, 566 F.2d 361, 363 (2d Cir.1977); United States v. Gleave, 786 F.Supp. 258, 264 (W.D.N.Y.1992). Fed. R.Crim.P. 7(c)(1) does permit the allegation, in a single count, that an offense has been committed in a multiplicity of ways and such a count is not duplicitous. Droms, supra, at 363. A count of an indictment should only be ruled impermissibly duplicitous when the policy goals underlying this doctrine are offended, i.e., "if a general verdict of guilty might actually conceal contrary findings as to different alleged crimes, or if an appropriate basis for sentencing is not provided." United States v. Margiotta, 646 F.2d 729, 732-33 (2d Cir. 1981). The test to be applied to determine whether there are two offenses or only one offense charged is whether each provision in the count requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Sugar, 606 F.Supp. 1134, 1145 (S.D.N.Y.1985).

In this case, Count One of the Indictment alleges the existence of an enterprise formed "to make loans which were unenforceable under state or federal law in whole or in part as to principal or interest because of the laws relating to usury and were incurred in connection with the business of lending money at a rate usurious under state or federal law ..." in violation of the Racketeer Influenced and Corrupt Organizations ("RICO") Act, specifically 18 U.S.C. § 1962(c). Count Two of the Indictment alleges a conspiracy to violate the RICO act and incorporates by reference the overt acts as alleged in Count One.

After reviewing these two counts in the Indictment, the court concludes that these counts are not duplicitous. Rule 7(c) provides that "it may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means." United States v. Berardi, 675 F.2d 894, 897 (7th Cir.1982). In this case, Count One of the Indictment properly describes certain acts which constitute a pattern of racketeering activity alleged to serve a common goal of the alleged illegal enterprise, in violation of the RICO Act's Section 1962(c) which prohibits conducting an illegal enterprise for the purpose of collecting unlawful debts. See, United States v. National On Leong Chinese Merchants Association, 1991 WL 30673 (N.D.Ill.1991) (acts alleged in the RICO count to form a pattern of racketeering activity and the instances of unlawful debt collection were properly joined because they were alleged to serve a common goal: operating the affairs of an illegal gambling enterprise). The court finds nothing duplicitous in the Count One allegation of the commission of multiple acts in violation of the same statutory provision.

Moore argues that both Counts One and Two are duplicitous as they "allege two distinct illegal schemes within the same counts." Defendant Moore's Affidavit in Support of Motion to Dismiss at page 1. The two schemes asserted by Moore are that the Enterprise was conducted through the collection of various unlawful gambling debts or usurious loans and that the Enterprise "was used to generate loans to people who owed illegal gambling debts or who needed money to engage in illegal gambling activities and that loans were made to loansharks so they could put the money out on the street at usurious rates." Defendant Moore's Affidavit in Support of Motion to Dismiss at page 1.

First, the gravaman of Count One is that the Defendants, including Moore, operated an illegal enterprise for the purpose of collecting unlawful debts in violation of 18 U.S.C. § 1962(c). The fact that paragraph (C) of Count One also alleges other purposes for the Enterprise, including obtaining loans to pay off such gambling debts and making usurious loans in connection with carrying out the same illegal purpose, does not render the count duplicitous. Rather, it appears that this paragraph simply seeks to describe how the Government expects to establish the means or manner by which such unlawful debt collections by the Enterprise occurred. Allegations that a substantive offense was potentially committed through several means are not duplicitous. See, Droms, supra, at 363. In any event, should the trial judge determine, after hearing all of the Government's proof, that there exists a serious risk of jury confusion, the appropriate remedy would be to require the Government to elect among the alternative theories of...

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