OPINIONBY: [*1]
PLATT
OPINION: MEMORANDUM AND
ORDER
PLATT, CHIEF UNITED STATES DISTRICT JUDGE
Defendants filed voluminous pretrial motions requesting various forms of
relief. For the reasons noted below, their motions are denied in their
entirety.
FACTS ALLEGED IN THE INDICTMENT
The indictment charges the eighteen defendants in one hundred and two
counts of violations of thirteen different federal statutes. n1 The
indictment's core is Count 95 which charges eleven of the eighteen
defendants with participating in a pattern of racketeering activity in
violation of section 1962(c) of the so-called RICO Act,
18 U.S.C. § 1962(c) (1982). Nearly every count of the indictment is
a predicate RICO Act as the crimes alleged fall into two types: the
original criminal activity that spurred the investigation such as
extortion, labor bribery, benefit fund bribery, and mail and wire fraud,
and crimes allegedly committed during the investigation such as
obstruction of justice, perjury, and making materially false statements.
n1 Two defendants have pleaded guilty to charges contained in this
indictment, so they will not be considered "defendants" for the purpose
of the pretrial motions.
The RICO enterprise allegedly
[*2] included
two labor organizations, Mason Tenders' Local Union 13 of the Laborers
International Union of North America (Local 13) and the Mason Tenders'
District Council of Greater New York Trust Funds, and persons associated
with and employed by those organizations. Six of the named individual
RICO defendants were employed by or officers of Local 13: the Local's
President, Joseph Cervone: the Vice-President,
Basil
Robert Cervone, Jr.; the Business Manager,
Basil
Robert Cervone; and three shop stewards, John Cerasuolo, Eltore
DiSanto, and Vincent Vanacore. Other named RICO defendants include the
Business Manager of Mason Tenders' Local 46, Peter Vario; the Business
Agent of the Carpenter's Local 531, Henry Walaski; and the Business
Agent of the Cement and Concrete Workers Local 20, Joseph Frangipane. In
addition to these nine RICO defendants who were officers or employees of
labor unions, Count 95 names two businessmen as RICO defendants: the
owner of the Bernesser Masonry Corporation, George Bernesser, and the
owner of the Cadin Contracting Corporation and A.J. DiBernard & Sons,
Albert DiBernardo.
The indictment alleges that
Basil Robert Cervone in his role as
the Business Manager
[*3] of Local
13 was principally responsible for extorting money from contractors
performing construction projects in Queens County, New York, from 1979
until 1985. Sixty-one of the seventy-one alleged acts of labor bribery,
29 U.S.C. § 186 (1982 and Supp. III 1985) were allegedly committed
by Cervone himself or with other defendants. He is the only defendant
charged with benefit fund bribery,
18 U.S.C. § 1954 (1982). Cervone is also charged with extortion,
18 U.S.C. § 1951 (1982), obstruction of justice,
18 U.S.C. § 1503 (1982), mail fraud,
18 U.S.C. § 1341 (1982), wire fraud,
18 U.S.C. § 1343 (1982), embezzlement,
18 U.S.C. § 664 (1982), and two types of conspiracy violations,
18 U.S.C. § 371 (1982) and
18 U.S.C. § 1962(c) (1982).
The indictment alleges that Cervone conducted an illegal enterprise in
six different ways:
1. using threats and use of force to obtain payoffs from developers,
builders, contractors, and subcontractors;
2. sending troublesome workers to construction sites and withdrawing
them only upon payment;
3. demanding bribes from non-union contractors by threatening to
unionize their projects, thus raising the contractors' cost of doing
business;
4. failing to enforce
[*4]
provisions in collective bargaining agreements in return for payoffs;
5. obtaining bid information and passing it along to favored contractors
and subcontractors, along with efforts to bar disfavored bidders from
under bidding favored bidders; and,
6. improperly favoring certain union employees by, inter alia, allowing
them to work under false names, allowing them to work without proper
record keeping, placing them on payrolls without performing work, and
other strategems.
Four of the seven non-RICO defendants are businessmen, rather than union
officers or employees: the owner of Brix, Inc., George Barba; a
supervisory employee of the Benjamin Contracting Corporation, Edward
Cummings; the owner of Ralph Morea, Inc., Ralph Morea; and the owner of
the Perna Contracting Corporation, Anthony Perna. The other three
non-RICO defendants were shop stewards of Local 13: Michael Belvedere,
Vincent DiMarcantonio, and Nicola Ranieri.
DEFENDANTS PRETRIAL MOTIONS
The principal evidence against defendants consists of tapes of
conversations surreptitiously recorded by wiretaps placed on telephones,
in cars, and in offices pursuant to warrants obtained under Title III of
the Omnibus Crime
[*5] Control
and Safe Streets Act,
18 U.S.C. §§ 2510-2520 (1982 and Supp. IV 1986). Defendants move to
supress all such evidence on the grounds that the wiretap orders were
improperly obtained and executed. They also move to strike particular
counts of the indictment as failing to allege facts constituting a crime
or as improperly multiplicitous. Severances pursuant to Rules Eight (8)
and Fourteen (14) of the Federal Rules of Criminal Procedure and various
court-ordered discovery orders are also sought.
I. PROBABLE CAUSE FOR ISSUANCE OF A WIRETAPE ORDER
Based on an affidavit dated November 8, 1984, by FBI Special Agent Paul
Meyer, the Honorable I. Leo Glasser of this Court authorized for a
period of thirty days the interception of the telephone communications
of defendant
Basil Robert Cervone, one Ralph
Scopo, and others conducted on telephone number 516-791-7660, located at
Cervone's personal residence at 535 Bunker Court, North Woodmere, New
York. This wiretap order was renewed on monthly intervals, with some
monthly interruptions until April 24, 1986. Based primarily on evidence
collected through this tap, electronic bugs were placed on Local 13's
office phone, placed in Cervone's
[*6]
automobile, and placed on a phone in a vacation residence in Florida
used by Cervone. One or more defendants argue that as the original
wiretap order was faulty, all subsequent surveillance must be surpressed
in addition to the original month's recordings.
a. Standing
Not all defendants have standing to contest the admissibility of all the
government's electronic surveillance evidence.
HN1
Only
"aggreived persons" have standing to contest a wiretap's propriety. See
18 U.S.C. § 2518(10)(a) (1982). An aggreived person is one "who was
a party to any intercepted wire or oral communication or a person
against whom the interception was directed."
18 U.S.C. § 2510(11) (1982). The term " 'aggreived person' . . .
should be construed in accordance with existent standing rules."
Alderman v. United States, 394 U.S. 165, 175 n.9 (1969). Thus, "[a]
person who was not named in the wiretap order and was not a party to any
conversation intercepted during that tap is not an 'aggreived person'
and may not move to supress information derived from it."
United States v. Salerno, 794 F.2d 64, 70 (2d Cir. 1986), rev'd on
other grounds,
107 S. Ct. 2095 (1987). However, defendants whose
[*7]
conversations were not recorded and who were not named in the wiretap
orders may possess standing based on a reasonable expectation of privacy
in the premises where an electronic surveillance device is installed.
See
United States v. Payden, 613 F. Supp. 800, 813 (S.D.N.Y. 1985);
United States v. Baker, 443 F. Supp. 526, 531 (S.D.N.Y. 1977)
(garage manager possessed standing to contest lawfulness of tap placed
in office).
Applying the standing doctrine to the facts of this case, defendant
Basil
Robert Cervone clearly has standing to contest the lawfulness of
all the electronic surveillance evidence. Further, every defendant named
in a particular month's interception order has standing to contest all
tapes made pursuant to that particular order. Finally, any defendant may
contest the lawfulness of the taping of any conversation in which he
participated. Each of the nine defendants who were officers or employees
of Local 13 possess standing as to recordings made from taps placed in
Local 13's offices. Defendants not falling into these categories as to
particular recordings may not object to a tape's admissibility on Fourth
Amendment grounds.
b. Probable Cause
HN2Wiretap
orders
[*8] are
authorized only after a judge makes the following probable cause
determinations:
(a) there is probable cause for belief that an individual is committing,
has committed, or is about to commit a particular offense . . .;
(b) there is probable cause for belief that particular communications
concerning that offense will be obtained through such interceptions;
* * * *
(d) there is probable cause for belief that the facilities from which,
or the place where, the wire or oral communications are to be
intercepted are being used, or are about to be used in connection with
the commission of such offense, or are leased to, listed in the name of,
or commonly used by such person.
18 U.S.C. § 2518(3) (1982).
HN3The
probable cause standard in electronic surveillance cases is identical to
the probable cause standard in regular search warrant cases. See
United States v. Fury, 554 F.2d 522, 530 (2d Cir.), cert. denied,
433 U.S. 910 (1977).
HN4A judge's
determination of probable cause is entitled to substantial deference by
reviewing courts. See
Illinois v. Gates, 462 U.S. 213, 236 (1982);
United States v. Martino, 664 F.2d 860, 867 (2d Cir. 1981) (review
of electronic surveillance
[*9] order's
propriety), cert. denied,
458 U.S. 1110 (1982).
HN5A showing
of a substantial basis or fair probability that evidence sought will be
found by a particular tap may justify authorization of an electronic
surveillance order. Cf.
Gates, 462 U.S. at 236;
United States v. Travisano, 724 F.2d 341, 346 (2d Cir. 1983)
("[T])here must be a fair probability that the premises will yield the
objects specified in the search warrant."). A court must consider the
totality of the circumstances surrounding a search warrant or wiretap
order application. See
Gates, 462 U.S. at 230-31.
The totality of the circumstances presented by the original search
warrant application of FBI Special Agent Paul Meyer amply justified the
first wiretap order. Special Agent Meyer provided information from two
government informants, tapes of another suspect's conversations with
Cervone and others linking Cervone to illegal activity, and pen register
results from Cervone's home telephone. The evidence of Cervone's
involvement in labor racketeering was particularly strong, as was his
use of telephones to discuss such activity. The evidence that he used
the initially targeted telephone to discuss such
[*10] matters
was less strong, but still sufficient to justify a tap.
Source B, one of the two confidential informants noted in the affidavit,
provided Judge Glasser with a basis for believing that defendant
Basil
Robert Cervone planned labor racketeering transactions over his
home telephone. Source B's reliability and basis of knowledge were
sufficient to credit his accusations. In a statement against his penal
interest, source B admitted he belonged to a criminal organization
operating in the New York metroplitan area. Independent investigation
and other reliable sources had verified his tips on many occasions. He
claimed he spoke to defendant Cervone regarding illegal activity over
both Cervone's home and office telephones. In light of the informant's
contacts and track record, his accusation on August 4, 1984, that
Basil
Robert Cervone conducted labor racketeering transactions over his
home telephone deserved considerable weight by Judge Glasser.
In accordance with standard Fourth Amendment doctrine requirements, the
confidential informant's tip was confirmed by additional independent
evidence included in the wiretap order affidavit. The additional
evidence most strongly supported the
[*11]
informant's claim that
Basil Robert Cervone was involved
in labor racketeering. Starting in April 1983, the conversations of one
Ralph Scopo were recorded as part of a separate investigation. Scopo was
identified by another confidential informant, Source A in the Meyer
affidavit, as a member of an organized crime family. Meyer's affidavit
also indicated that Scopo was President of the District Council of
Cement and Concrete Workers.
Portions of four conversations between Scopo and Cervone on December 8,
1983, December 9, 1983, January 6, 1984, and May 1, 1984, included in
the wiretap affidavit showed that they discussed, respectively, a
contractor's use of non-union labor and Scopo's plans to discuss such
use with the contractor, Cervone's decision to leave a particular
contractor alone, Cervone's willingness to let Scopo "handle" a
particular contractor, and Cervone's concern for Scopo's access to cash.
The first two calls were from Cervone to Scopo, while the second two
calls were from Scopo to Cervone. The affidavit did not indicate the
location from which Cervone called Scopo or the location where Scopo
reached Cervone. Nonetheless, these calls confirmed the informant's
claim
[*12] that
Cervone used telephones to conduct racketeering activity.
Five recorded conversations noted in the affidavit between Scopo and
others referring to
Basil Robert Cervone also
corroborated Cervone's involvement in racketeering. These conversations
occurred on March 7, 1984, April 16, 1984, May 10, 1984, May 17, 1984,
and June 1, 1984. Substantial portions of the first two conversations
were quoted in the affidavit, while the latter three conversations were
summarized. Contractors or their representatives discussed allocation of
payments between Cervone and Scopo in each conversation. Every
conversation referred to "Bobby" who was identified by Scopo in the
April 16, 1984, conversation as defendant
Basil Robert Cervone. Although
hearsay, the references to defendant Cervone provided a substantial
basis for believing that he was involved in labor racketeering. See
Fed. R. Crim. P. 41(c)(1) ("the finding of probable cause may be
based upon hearsay evidence in whole or in part").
Pen register records from June 27, 1984, until October 9, 1984, for the
targeted telephone in Cervone's residence confirmed the informant's
claim that Cervone used his home telephone for business calls. They
[*13]
indicated calls to the contractors Scopo spoke to in the recorded
conversations. They also showed calls until July 9, 1984, from Cervone
to Scopo made on Cervone's home telephone.
Since the evidence that defendant
Basil Robert Cervone was involved
in racketeering was so strong, the likelihood that a tap on his home
telephone would reveal admissible evidence was greater than suggested
only by the informant's tip and the pen register records. A strong
showing by one type of evidence of one aspect of probable cause may
compensate for a somewhat weaker showing by another type of evidence as
to a different facet of probable cause. Cf.
Gates, 462 U.S. at 232-34. Because the evidence of Cervone's
activity indicated his involvement with a widespread and ongoing
criminal scheme, the alleged staleness of the evidence included in the
affidavit did not significantly degrade the evidence's value. See
Martino, 664 F.2d at 867 ("Where the supporting affidavits present a
picture of continuing conduct or an ongoing activity, as contrasted with
isolated instances of illegal acts, the passage of time between the last
described act and the presentation of the application becomes less
significant.").
[*14]
c. Franks Hearing
Defendant
Basil Robert Cervone argues that
the wiretap order affidavit misrepresented the substance of Cervone's
conversation on May 1, 1984, with Scopo, and that he is entitled to a
Franks hearing on the order's validity. See
Franks v. Delaware, 438 U.S. 154, 171 (1978). Cervone argues that if
the entire transcript of the May 1, 1984, conversation had been provided
to Judge Glasser, his inquiry concerning Scopo's finances would have
appeared appropriate considering the state of Scopo's wife's health.
Cervone is entitled to a hearing on his allegation that FBI Special
Agent Meyer omitted material information (the full text of the May 1,
1984, telephone call) only if both of the following criteria are met:
1. He specifically alleges Special Agent Meyer's falsehood and reckless
disregard for the truth; and,
2. He establishes the absence of probable cause once the allegedly
material information from the May 1, 1984, conversation is added to the
affidavit. See generally
Franks, 438 U.S. at 171;
United States v. Levasseur, 816 F.2d 37, 43 (2d Cir. 1987).
Cervone has alleged that Special Agent Meyer's affidavit was misleading;
however, a hearing is
[*15]
unnecessary because adding the omitted material would not negate
probable cause for the electronic surveillance orders. Even if the May
1, 1984, conversation was completely innocuous, there was sufficient
other evidence noted supra linking defendant to wrongdoing.
d. Normal Investigative Techniques
HN6Title III
requires that electronic surveillance order affidavits show that normal
investigative procedures, such as physical surveillance, search
warrants, subpoenas, and interviews with witnesses and participants have
been unsuccessfully tried or reasonably appear unlikely to succeed.
18 U.S.C. § 2518(3)(c) (1982). Defendants challenge Special Agent
Meyer's showing of the failure or lack of effectiveness of normal
investigative techniques.
Special Agent Meyer's affidavit indicated that physical surveillance
could not determine the content of various conversations to be
wiretapped between defendant
Basil Robert Cervone and others.
Search warrants and subpoenas were ineffective because payoffs were
allegedly in cash. Interviews with witnesses and participants were of no
avail because of fears of retaliation. Undercover operations would not
be successful because
Basil Robert Cervone's [*16] group
was "close knit." Thus, Special Agent Meyer enumerated the other methods
available, and noted their shortcomings. The law requires no more. See
Fury, 554 F.2d at 530.
II. CHALLENGE TO THE EXECUTION OF THE ELECTRONIC SURVEILLANCE ORDER
Defendants allege that the FBI failed to comply with the electronic
surveillance orders in two ways: first, they intercepted conversations
unrelated to criminal activity, and, second, they failed to seal
promptly the surveillance tapes. The defendants seek suppression of the
recordings at trial to sanction the alleged violations. Review of the
documentation provided to this Court by the government shows that no
improprieties occurred.
a. Minimization
HN7Law
enforcement officers may not listen to or record conversations not
involving criminal activity. See
18 U.S.C. § 2518(5) (1982). Thus, interception of such conversations
must be "minimized" to use the jargon of the trade.
HN8The
defendants have the burden of showing that a substantial number of
non-pertinent conversations have Been unreasonably intercepted to
justify holding a pretrial hearing on minimization. See
United States v. Cirillo, 499 F.2d 872, 881 (2d Cir.), cert.
[*17] denied,
419 U.S. 1056 (1974). Defendants point to the recording of a January
14, 1985, conversation between
Basil Robert Cervone and his
attorney, Carl Tunick, and seventeen allegedly improperly recorded calls
in June and July 1985 as evidence of faulty minimization.
To counter these allegations, the government provided the following
documentation: instructions given to the FBI Agents regarding
minimization, contemporaneous logs maintained by the surveillance agents
indicating both calls recorded and minimized, an affidavit from Special
Agent Meyer describing the surveillance team's actual minimization
procedures, and copies of the periodic reports sent to Judge Glasser
summarizing the surveillance results.
Review of the reports sent to Judge Glasser shows that the FBI minimized
20% of all overheard coversations. This percentage is deceptively low
because it includes a very large number of very brief calls that ended
before minimization could occur when it was appropriate. Thus, the
percentage of minimized conversations of any significant length was
substantially higher than 20%.
The defendants have received several months to review the surveillance
tapes, yet they have identified
[*18] a
relative handful of allegedly improper recordings. Set against this
modest showing, the government has shown that it tried in good faith to
minimize improper recording and succeeded in at least one out of every
five conversations. The defendants have failed to meet their burden of
proof under Cirillo justifying either an evidentiary hearing on
minimization or suppression of the electronic surveillance evidence on
this ground.
b. Sealing
HN9Tapes made
pursuant to an electronic surveillance order must be sealed promptly
after termination of such an order.
18 U.S.C. § 2518(a) (1982). For the statute's purposes, an
electronic surveillance order covers a continuous period of interception
at a particular location, regardless of the designation of judicial
orders authorizing the various portions of the continuous period of
surveillance at such location. See
United States v. Vasquez, 605 F.2d 1269, 1275-78 (2d Cir.), cert.
denied,
444 U.S. 981 (1979); see also
United States v. Nersesian, 824 F.2d 1294, 1305-06 (2d Cir.), cert.
denied,
108 S. Ct. 357 (1987);
United States v. Massino, 784 F.2d 153, 155-56 (2d Cir. 1986). For
example, if a phone is tapped continuously
[*19] for one
year, based on twelve one-month orders authorizing such surveillance,
all of the tapes of such surveillance need not be sealed at the earliest
until taping is actually terminated during the last month of
surveillance. See
United States v. Badalamenti, 794 F.2d 821, 823-25 (2d Cir. 1986).
HN10Sealing
within two days of an order's termination is clearly proper. See
Massino, 784 F.2d at 158. Delays of more than two days require
justification. See id.
Defendants claim that the government tardily sealed the surveillance
tapes on several occasions. Review of the records provided by the
government shows that the U.S. Attorney's Office generally sealed tapes
promptly at the end of each thirty-day period of surveillance, rather
than as allowed at the end of an entire period of surveillance at a
particular location. Thus, although tapes were sealed on December 10,
1984, three days after the termination of a thirty-day surveillance
period, and on April 23, 1984, four days after ending another period of
surveillance, the tapes need not have been sealed at either time since
recordings were made from December 1984 until June 1985.
To be sure, on one occasion, March 3, 1986, after
[*20] all the
electronic surveillance in this case had terminated, tapes were sealed
after a statutory period of surveillance had run and after a three-day
delay. In this instance, sealing involved in the government's words "two
hundred twenty-six tapes drawn from three separate telephone lines and a
microphone over a three month period." Memorandum of Law on Behalf of
the United States at 77. This Court notes that the quantity of tapes
sealed on March 3, 1984, substantially exceeded the number sealed on
other occasions. As a practical matter, the one-day delay beyond the
allowable two-day grace period was a de minimis violation of the Second
Circuit's prophylactic two-day rule and is satisfactorily justifiable.
See
Massino, 784 F.2d at 155;
United States v. Gigante, 538 F.2d 502, 506 (2d Cir. 1976).
III. MOTIONS TO STRIKE PARTICULAR COUNTS OF THE INDICTMENT
Defendants move to strike various counts of the indictment. For the
reasons noted below, these motions must be denied.
a. Count 23 - Mail Fraud
Defendant Ralph Morea, owner of Ralph Morea, Inc., demands that Count 23
be stricken for failing to allege a crime. Count 23 alleges the
following facts. Defendant Morea,
[*21] along
with codefendants
Basil Robert Cervone and Peter
Vario, engaged in a fraudulent scheme directed against a contractor, M &
M Management Company (M & M). At one time, defendant Morea entered into
a contract with M & M to perform subcontracting services at a
construction site in Howard Beach, Queens. At some date after November
1, 1984, defendant Morea terminated his obligation to perform such
services for M & M by falsely stating to M & M that he could not obtain
the necessary mason tenders to perform the promised work. Morea feared
losing money if he were compelled to complete the Howard Beach project
at the agreed-upon price. Defendant Peter Vario obtained the assistance
of defendant
Basil Robert Cervone in providing M
& M with another subcontractor who performed Morea's contract at a
higher price than Morea would have received. The codefendants used the
mails in executing this scheme.
HN11Mail fraud
requires proof of a fraudulent scheme intended to deprive a victim of
money or property through the use of the mails. See
Carpenter v. United States, 108 S. Ct. 316, 320 (1987);
McNally v. United States, 107 S. Ct. 2875, 2880-81 (1987);
United States v. Starr, 816 F.2d [*22] 94, 98 (2d
Cir. 1987). The fraudulent scheme alleged in Count 23 had two
objectives:
1. Releasing defendant Morea from his contractural obligation to perform
work at the Howard Beach site; and,
2. Obtaining the contract for another subcontractor at a higher price.
Defendant Morea intended to avoid losing money (the difference between
his cost of performance and the contractural price) by engaging in the
scheme. The defendants intended that the scheme's victim, M & M, lose
money by paying more for a second subcontractor's services than it would
have paid for Morea's services. Thus, the indictment properly alleges a
scheme to deprive M & M of money. See
United States v. Covino, 837 F.2d 65, 70-72 (2d Cir. 1988)
(indictment must allege deprivation of money or property). Although the
money allegedly lost by M & M did not allegedly flow directly into the
pockets of named defendants Ralph Morea,
Basil Robert Cervone, or Peter
Vario, the indictment does allege that defendant Morea intended to avoid
losing money through the scheme's operation. There is no requirement in
the statute's language or interpretation by the Courts that the
identical money or property lost by a mail fraud scheme's
[*23] victim
be obtained by a mail fraud scheme's perpetrators.
Although well taken, defendant Morea's various objections to Count 23
must be denied. His focus on the absence of an allegation that M & M
lost property is misplaced. The indictment properly alleges that M & M
lost money, not property. Actual injury to M & M by the scheme is also
alleged. His claim that use of the mails cannot be shown is an
evidentiary issue that must be decided at trial.
For the reasons noted, Count 23 must remain.
b. Counts 23, 58, 62, 64 and 96-Multiplicity and Duplicity
Two defendants, George Bernesser and Joseph Frangipane, have moved to
strike various counts of the indictment as multiplicitous or
duplicitous:
1. Defendant Bernesser claims that Count 96, alleging perjury, and Count
26, alleging obstruction of justice, are multiplicitous in that "Mr.
Bernesser should not be punished for telling a lie and for the effect it
might have." Defendant Bernesser's Memorandum of Law at 2;
2. defendant Frangipane claims that Count 58, alleging extortion, is
duplicitous in that it "relates[s] to charges traditionally associated
with a single event." Defendant Frangipane's Memorandum of Law at 19;
3. defendant
[*24]
Frangipane also claims that Counts 62 and 64, alleging labor bribery,
are duplicitous in that they join "different acts in order to raise
misdemeanor conduct to that of a felony." Id. at 20.
"As is proper for pleading rules,
HN12duplicity
and multiplicity are not fatal to an indictment or information." 1 C.
Wright, Federal Practice and Procedure § 142, at 475 (2d ed. 1988). As
such, defendant's criticism of the wording of Counts 26, 58, 62, 64, and
96 at this time prior to trial does not concern their fundamental
substantive rights. Multiplicity may be cured by proper sentencing and
jury instructions. Cf.
United States v. Reed, 639 F.2d 896, 904 (2d Cir. 1981) ("The vice
in multiplicity of charges is that it may lead to multiple sentences for
the same offense and may improperly prejudice a jury by suggesting that
a defendant has committed not one but several crimes."). Duplicitous
pleading also rarely prejudices a defendant's fundamental rights. See
Korholz v. United States, 269 F.2d 897, 90 (10th Cir. 1959), cert.
denied,
361 U.S. 929 (1960) ("the cases reveal that a complaint of duplicity
is rarely made where but a single statutory prohibition is involved
since
[*25] the
effect of joining several violations as one rebounds to the benefit of
defendant."). But see
United States v. Kearney, 451 F. Supp. 33, 35 (S.D.N.Y. 1978).
Turning to defendant's specific objections, Count 26 (perjury) and Count
96 (obstruction of justice) are not multiplicitous. See
United States v. Langella, 776 F.2d 1078, 1082 (2d Cir. 1985) ("The
definitions of perjury and of obstruction of justice each require proof
of elements that the other does not."), cert. denied,
106 S. Ct. 1207 (1986). Count 58 (extortion) is not duplicitous as
caselaw permits the government to charge defendants either in one count
including several acts, each of which could be a separate count, or in
several separate counts standing alone. See
United States v. Smalley, 754 F.2d 944, 947 (11th Cir. 1985);
United States v. Addonizio, 451 F.2d 49, 59 (3rd Cir. 1971), cert.
denied,
405 U.S. 1048 (1972);
United States v. Provenzano, 334 F.2d 678, 684-85 (3rd Cir.), cert.
denied,
379 U.S. 947 (1964). At least until the 1984 amendments
differentiated between felony and misdemeanor charges based on the
amount of money involved, labor bribery could also be charged as
multiple
[*26] acts
within a single count or as discrete counts. See
United States v. Cohen, 384 F.2d 699, 700 (2d Cir. 1967);
United States v. Alaimo, 297 F.2d 604, 606 (3rd Cir. 1961), cert.
denied,
369 U.S. 817 (1962);
Korholz, 269 F.2d at 901.
If tried and convicted, defendants Bernesser and Frangipane face
sentencing under the 1984 sentencing amendment; the amendment's
legislative history does not reveal whether Congress intended the courts
to continue to allow prosecutors to structure labor bribery charges in
single or multiple counts. See S. Rep. No. 225, 98th Cong., 2nd Sess.
297-98, reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3477-78;
S. Rep. No. 98, 98th Cong., 1st Sess. (1983). In the absence of a clear
legislative directive to the contrary, this Court shall assume at this
time that the Congress intended to continue to allow prosecutors such
discretion. Thus, Counts 62 and 64 will not be struck from the
indictment at this time.
c. Count 80-Wire Fraud
Defendant George Barba demands dismissal of Count 80 for failing to
allege a crime. Count 80 alleges that defendants Barba and
Basil Robert Cervone "agreed to act
together to insure that a job located
[*27] on
Prince Street, in Queens, New York . . . was awarded to a favored
co-conspirator masonry subcontractor." Indictment at 47. Barba allegedly
obtained the figure included in a competing bid, and then bid below it
with a "raise and fictitious bid." Id. at 47-48. In a fashion not
specified in the indictment, an unnamed subcontractor then allegedly
obtained the