US v. Raphael

• Decision Date: 05 March 1992
• Docket Number: No. S2 90 Cr. 450 (RWS).,S2 90 Cr. 450 (RWS).
• Citation: US v. Raphael, 786 F. Supp. 355 (S.D. N.Y. 1992)
• Parties: UNITED STATES of America, v. Alan RAPHAEL, Defendant.
• Court: U.S. District Court — Southern District of New York

786 F. Supp. 355

UNITED STATES of America, v.Alan RAPHAEL, Defendant.

No. S2 90 Cr. 450 (RWS).

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

March 5, 1992.

Otto G. Obermaier, U.S. Atty., S.D.N.Y. (Steven M. Witzel, Andrew E. Tomback, Asst. U.S. Attys., of counsel), New York City, for U.S.

Weil, Gotshal & Manges(John R. Wing, Diane B. de Forest, of counsel), New York City, for defendant.

OPINION

SWEET, District Judge.

DefendantAlan Raphael("Raphael") has moved to dismiss the second superseding indictment (the "Indictment") filed against him on grounds that it is barred by the Fifth Amendment's Double Jeopardy clause and that the Government has used the Grand Jury improperly.In the alternative, Raphael seeks an order limiting the Government's use of evidence obtained in recent Grand Jury proceedings and an order quashing subpoenas issued to defense witnesses.Raphael also has moved for an order directing the Government to provide him with discovery and a bill of particulars.

For the reasons set forth below, Raphael's motion to dismiss the Indictment on double jeopardy grounds is denied.The motion based on the Grand Jury proceedings is granted in part, and the Government ordered to deliver the materials at issue to the Court for an in camera inspection for further resolution of the motion.

Prior Proceedings and Facts

A complete recitation of the pertinent facts and prior proceedings is set forth in the prior opinions in this matter, familiarity with which is presumed.SeeUnited States v. Alegria, S90 Cr. 450, 1991 WL 238223(S.D.N.Y.Nov. 6, 1991);United States v. Alegria,761 F.Supp. 308(S.D.N.Y.1991).Only a brief summary is provided here.

Raphael was originally named as a defendant along with a number of other persons in an indictment unsealed on November 14, 1990.He and the others were generally charged with altering vehicle identification numbers ("VINs"), possessing vehicles with altered VINs, transporting stolen vehicles, and conspiring to commit these offenses.

The Grand Jury returned a superseding indictment on February 27, 1991.In it, Raphael was specifically charged in six counts with: (1) conspiracy (Count 1); (2) altering a VIN number (Count 4); (3) unlawfully possessing a vehicle with an altered VIN (Count 10); (4) mail fraud (Count 16); and (5) wire fraud (Counts 17 and 18).The mail fraud count and the second wire fraud count were also listed as overt acts to the conspiracy (Overt Acts 7, 12).

The first trial ended in a mistrial on May 13, 1991, because the Government failed to disclose certain information to the defense.A second trial was commenced on May 15, 1991.After the close of evidence, the two VIN counts (Counts 4 and 10) were dismissed, see Trial Transcript 2736, and the remaining counts sent to the jury.

The jury returned guilty verdicts on all four counts.Raphael then moved for an acquittal or new trial.His motion was granted on November 6, 1991.The first count was dismissed for the Government's failure to prove Raphael's participation in the conspiracy charged in the first superseding indictment.A new trial was ordered for the remaining mail and wire fraud counts.

On Christmas Eve, December 24, 1991, the Government served a Grand Jury subpoena returnable January 2, 1992, on one of Raphael's defense witnesses, Michael Petrone("Petrone").The subpoena stated that it was issued in connection to an investigation of violations of the false statement and wire fraud statutes, see18 U.S.C. §§ 1001,1343, although the Government informed Raphael's counsel that it was actually related to an investigation of a possible obstruction of justice.

Petrone appeared before the Grand Jury on January 7.Soon after he began to testify, the Grand Jury left to file another superseding indictment, i.e. the current Indictment, against Raphael.The Government states that the Indictment actually had been voted on beforehand.Letter in Response 3 (Feb. 5, 1992).The Grand Jury returned, and Petrone's testimony continued.

Three days later, two other defense witnesses were served with subpoenas.These subpoenas stated that they were in regard to suspected violations of the obstruction of justice and false statement statutes.See18 U.S.C. §§ 1001,1503.They are currently adjourned pending resolution of the present motion.

This motion was filed on January 28, 1992.Oral argument was heard on February 6, 1992, and the motion considered submitted as of that date.

Discussion

I.Double Jeopardy

In an admittedly unusual argument, Raphael contends that he has already been placed in jeopardy for the conduct alleged in the Indictment and that it should be dismissed under the "same conduct" test set forth in Grady v. Corbin,495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548(1990).

In Grady,the Supreme Court significantly expanded the protection provided by the Fifth Amendment's Double Jeopardy Clause.¹There, the Court held that "a subsequent prosecution must do more than merely survive the Blockburgerv. U.S.,284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306(1932)test. As ... suggested in Illinois v.Vitale,447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228(1980) the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted."Id. at 521, 110 S.Ct. at 2093.This is not an evidentiary bar, but one based upon conduct.Id.;see alsoUnited States v. Calderone,917 F.2d 717, 725(2d Cir.1990)(Newman, J., concurring)(Grady bars second prosecution whenever defendant at risk that entirety of an offense element in pending prosecution might be established by conduct constituting entirety of distinct component of previously prosecuted offense), cert. filed,60 U.S.L.W. 3014(1991).

In Calderone, the Second Circuit applied Grady to bar the subsequent conspiracy prosecution of defendants who were acquitted of prior conspiracy charges.The defendants were originally indicted with 27 other persons on charges of participating in an allegedly wide-ranging drug conspiracy.At the close of the first case, the trial court granted the defendants' Rule 29 motions, acquitted them, and dismissed the charges against them for insufficient evidence.The Government then filed a new indictment against the defendants in an attempt "to modify the charging instrument so as to charge the separate sub-conspiracy" in which the defendants allegedly participated.917 F.2d at 719.

The new indictment substantially overlapped the original one, even though it alleged a more intimate conspiracy and a number of new substantive counts.The Government argued that the underlying conspiracy agreements were different, and the subsequent prosecution thus not barred.The Court of Appeals rejected this contention, finding that the same conduct would be proven in both instances as conspiracy is often proven by the conduct that gives rise to the conspiracy.Id. at 721-22.Moreover, the Court barred the prosecution of the substantive counts, holding that the defendants already were prosecuted for the conduct that supported those offenses.Id. at 721;see alsoUnited States v. Gambino,920 F.2d 1108, 1109(2d Cir.1990)(overt acts for which defendant already prosecuted may not remain in conspiracy indictment), cert. denied,___ U.S. ___, 112 S.Ct. 54, 116 L.Ed.2d 31(1991);United States v. Russo,906 F.2d 77, 78(2d Cir.1990)(per curiam)(later prosecution of predicate act alleged in RICO indictment of which defendant acquitted remanded for entering of nolle prosequi).

Although these principles undoubtedly seem appealing to Raphael, there is a primary distinction between the above cases and the present situation that renders them inapplicable.In each of those cases, the defendant was fully acquitted of the charges in the first indictment and the Government later chose to reindict the defendant on different charges based on the same conduct.The latter indictments initiated separate proceedings against the defendants.

Here, Grady would obviously bar the Government's prosecution of Raphael for the charges in the Indictment were this a subsequent prosecution.It is not.Instead, the upcoming trial is just another stage in this prosecution.The last trial ended in the acquittal of Raphael on the conspiracy count and an order for a new trial on the three fraud counts, at Raphael's behest.The superseding indictment on the fraud charges, although styled differently, does not subject Raphael to double jeopardy.²See, e.g., United States v. Sonnenschein,565 F.2d 235, 236(2d Cir.1977)(per curiam);United States v. Guariglia,757 F.Supp. 259, 265 n. 1(S.D.N.Y.1991).Therefore, double jeopardy can only bar the prosecution of the fraud counts if they represent multiple punishment for the same conduct, which they do not.SeeGrady,495 U.S. at 515-18, 110 S.Ct. at 2090-91;Pinkerton v. United States,328 U.S. 640, 644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489(1946);In re Nofziger,925 F.2d 428, 435(D.C.Cir.1991);Guariglia,757 F.Supp. at 265.

II.The Grand Jury

Raphael contends that the Government's recent use of the Grand Jury is improper and that the pending subpoenas should be quashed and the Indictment dismissed.The Government replies that it has done nothing unpropitious.

It is well-settled that "it is improper to utilize a Grand Jury for the sole or dominating purpose of preparing an already pending indictment for trial."United States v. Dardi,330 F.2d 316, 336(2d Cir.), cert. denied,379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50(1964);seeIn re Grand Jury Subpoena Duces Tecum Dated January 2, 1985 (Simels),767 F.2d 26, 29(2d Cir.1985) hereinafter Simels.As simple as the rule is to state, it is as difficult to prove.Seeid. at 30;see alsoIn re Grand Jury Proceedings (Fernandez Diamante),814 F.2d 61, 70-71(1st Cir.1987) hereinafter ...