US v. Upton

Decision Date29 June 1994
Docket NumberNo. CR-90-0629.,CR-90-0629.
Citation856 F. Supp. 727
PartiesUNITED STATES of America, Plaintiff, v. Edward UPTON, Thomas Lewis, Joseph Moser, Edward Hay, Charles Catarelli, Stephen Jones, Roy Hardy, Robert Knox, Hollis Huffman, Charles Bray, K. Ray Stooksbury, Robert Zuegel and Jacques Jean, Defendants.
CourtU.S. District Court — Eastern District of New York





Charles W. Gerber, Jonathan D. Polkes, Charles D. Hammerman, Asst. U.S. Attys., for plaintiff.

Stephen E. Kaufman, New York City, for Edward Upton.

Philip Katowitz, New York City, for Thomas Lewis.

Louis M. Freeman, Freeman, Nooter & Ginsberg, New York City, for Joseph Moser.

Richard Ware Levitt, New York City, for Charles Catarelli.

John D. Patten, New York City, for Stephen Jones.

Jerry D. Bernstein, New York City, for Roy Hardy.

Bernard H. Udell, Brooklyn, for Robert Knox.

Jay Gregory Horlick, Brooklyn, for Jacques Jean.


GLASSER, District Judge:

The twenty-nine count Superseding Indictment in this case arises out of charges of falsification of airplane maintenance records for Eastern Air Lines, Inc. ("Eastern"), at John F. Kennedy International Airport ("JFK") in New York City, and Hartsfield Airport ("Hartsfield") in Atlanta.1 Defendants are also charged with obstructing the administration of the law by, among other things, testifying falsely before the Federal Aviation Administration of the Department of Transportation ("FAA"), regarding their knowledge of and participation in a conspiracy to falsify Eastern's maintenance records.

For the purposes of this memorandum and order, the defendants will be referred to as follows. The defendants who worked at JFK, Thomas Lewis ("Lewis"), Joseph Moser ("Moser"), Charles Catarelli ("Catarelli"), Roy Hardy ("Hardy"), Robert Knox ("Knox"), Jacques Jean ("Jean") and Stephen Jones ("Jones"), will be referred to as the "JFK Defendants." The defendants who worked at Hartsfield in Atlanta, Edward Hay ("Hay"), Charles Bray ("Bray"), Hollis Huffman ("Huffman"), K. Ray Stooksbury ("Stooksbury"), and Robert Zuegel ("Zuegel"), will be referred to as the "Atlanta Defendants." Upton worked at Eastern's headquarters in Miami, Florida.

I. Motion to Dismiss or Sever
A. Impermissible Joinder

The Atlanta defendants, Knox, and Upton claim that they were improperly joined in the indictment and that their trials should be severed, pursuant to Rule 8(b) of the Federal Rules of Criminal Procedure,2 which permits joinder of multiple defendants if they are alleged to have participated in a common scheme or plan. United States v. Bernstein, 533 F.2d 775, 789 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976). It is well settled that the good-faith inclusion of a conspiracy count establishes the requisite common scheme or plan and is sufficient to support joinder of defendants under Rule 8(b). United States v. Uccio, 917 F.2d 80, 87 (2d Cir.1990); United States v. Aiken, 373 F.2d 294, 299-300 (2d Cir.), cert. denied, 389 U.S. 833, 88 S.Ct. 32, 19 L.Ed.2d 93 (1967). Joinder of a conspiracy count with substantive counts arising from the conspiracy is proper because the conspiracy charge provides a common link and demonstrates the extension of a common plan. Bernstein, 533 F.2d at 789; United States v. Smith, 789 F.2d 196, 206 (3rd Cir.) ("As long as the government has charged conspiracy in good faith, an allegation of conspiracy is a sufficient reason for trying the conspiracy and all substantive offenses together"), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986).

An exception to this general rule is that where counts unrelated to the general conspiracy are alleged, the government has the burden of showing that they are a part of the conspiracy. See United States v. Carrozza, 728 F.Supp. 266, 270 (S.D.N.Y.1990), aff'd, 956 F.2d 1160 (2d Cir.1992) (table). In this case all the counts contained in the Superseding Indictment are clearly related to the conspiracy count. This is so, even with regard to the obstruction of justice count, which alleges that certain defendants testified falsely before the FAA. The indictment alleges that the false testimony was a critical component in the over-arching scheme to defraud the federal government and was a part of the original conspiracy.3 Accordingly, joinder of all the counts complies with Rule 8(b). See United States v. Cunningham, 723 F.2d 217, 229 (2d Cir.1983), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984).

Defendants heavily rely on United States v. Rosenblatt, 554 F.2d 36 (2d Cir.1977), in support of their Rule 8(b) motions. In Rosenblatt, an alleged co-conspirator, Brooks, made false entries in the accounts payable records at the Manhattan Postal Service headquarters and obtained checks totalling over $180,000, payable to persons having no claim to payment from the Postal Service. Brooks was indicted for conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and testified against the defendant, Rosenblatt. Rosenblatt, a college dean, agreed to "launder" the checks through the college's bank account and keep a certain percentage for his services. He was indicted along with Brooks for a violation of 18 U.S.C. § 371. The Second Circuit reversed the jury verdict of guilty because there was no agreement, either pleaded or proved, as to which fraud was to be executed. The court wrote:

Our difficulty with Rosenblatt's conviction arises from the lack of any agreement between him and Brooks concerning the type of fraud in which they were engaged. It is clear that Brooks was defrauding the United States by obtaining payment for government checks which he had caused to be printed without authorization. The government stipulated, however, that Rosenblatt did not know the truth about Brooks' activities.... In other words, both men agreed to defraud the United States, but neither agreed on the type of fraud. On this appeal, Rosenblatt argues that under 18 U.S.C. § 371 a conspiracy must be grounded upon agreement on some common scheme or plan. He maintains that proof of an agreement to defraud, without further qualification as to the nature of the fraud, is insufficient to support a conviction under § 371. We agree and reverse the conviction.

Id. at 38 (emphasis added).

Defendants therefore contend that Rosenblatt stands for the proposition that unless the indictment establishes an agreement among the purported conspirators, the indictment does not satisfy Rule 8(b) and should be dismissed in its entirety. The focus of the court's attention, however, was on the fact that the government did not, and given its stipulation could not, prove an agreement between Brooks and Rosenblatt as to the essential nature of the fraud allegedly perpetrated against the United States in violation of 18 U.S.C. § 371: "Proof of the essential nature of the plan is required because `the gist of the offense remains the agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant.'" Id. (quoting United States v. Borelli, 336 F.2d 376, 384 (2d Cir.1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965)). The court did not discuss Rule 8(b), joinder or severance and consequently Rosenblatt cannot govern the disposition of the present motion.

More important, however, is the fact that the Superseding Indictment in this action does meet the requirements of the court's explicit holding in Rosenblatt. The court concluded that,

We hold that when the government proceeds under the conspiracy-to-defraud clause it must plead and prove an agreement with respect to the essential nature of the alleged fraud. Thus, just as the particular offense must be specified under the "offense" branch ... the fraudulent scheme must be alleged and proved under the conspiracy-to-defraud clause.

Id. at 42 (citation omitted). In this action, the Superseding Indictment pleads an agreement among and between defendants with respect to the essential nature of the alleged fraud; namely, obstructing the functions of the FAA by misrepresenting the safety of Eastern's aircraft. Paragraph 18 of the Superseding Indictment reads in part as follows:

On or about and between January 1, 1987 and October 13, 1989 ... defendants ... did unlawfully, wilfully and knowingly conspire, combine, confederate and agree to defraud the United States by impeding, impairing, obstructing, and defeating the lawful government functions of the FAA to promote safety of flight of civil aircraft in air commerce and insure that aircraft are in a safe condition and are properly maintained.

The Superseding Indictment then states in subsequent paragraphs that it was part of the conspiracy to use intimidation to encourage falsification of aircraft maintenance records; falsify log books, work cards and computer entries; disregard FAA maintenance program requirements; conceal the falsifications from the FAA; testify falsely before the FAA; and cause aircraft that were not properly maintained and repaired to fly and carry unsuspecting passengers.

The government has therefore alleged a single, overarching conspiracy among and between the Atlanta and JFK defendants, and Upton, the essential nature of which was to impede and obstruct the FAA. Because the Superseding Indictment pleads "an agreement with respect to the essential nature of the alleged fraud," it does not run afoul of the Federal Rules of Criminal Procedure. Defendants' reliance on United States v. Levine, 546 F.2d 658, 665-66 (5th Cir.1977) ("since allegations of proximate conspiracies are legally insufficient to establish a single overall conspiracy, the conspiracy count could not `reasonably have been made.'"), is, therefore, misplaced as well. As the court noted in Uccio, 917 F.2d at 87, "it is an `established rule' that `a non-frivolous...

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