United States v. Pirk

267 F. Supp. 3d 392
Procedural entryThis page is a short order in United States v. Pirk. Read the opinion of the Court — 282 F. Supp. 3d 585
District Court, W.D. New York·Decided July 24, 2017·No. 1:15-CR-00142 EAW·Published

Opinion

DECISION AND ORDER

ELIZABETH A. WOLFORD', United States District Judge

Presently before the Court is the motion (Dkt. 385) of defendant Thomas Scanlon (“Scanlon”) to dismiss Counts 28, 29, and 30 of the Second Superseding Indictment returned on March 16, 2016 (Dkt. 33), alleging various crimes in connection with the operation of the Kingsmen Motorcycle Club (“KMC”). Scanlon also seeks a bill of particulars with respect to Counts 27 and 28.1 (Dkt. 385). Because the Second Superseding Indictment adequately alleges the obstruction of justice and 'perjury charges that are the subject of Counts 28, 29 and 30, Scanlon’s motion to dismiss is denied, With respect to his requested particularization of Counts 27-and 28, the Court reserves decision and requests supplemental briefing in accordance with the schedule set forth below.

BACKGROUND

Scanlon and 11 remaining co-defendants 2 are charged with various crimes in the 46-count Second Superseding Indictment (“Indictment”),'including a violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. (“RICO”), drug trafficking offenses, and firearms offenses. (Dkt. 33). As relevant to this Decision and Order,] the Indictment includes two counts against Scanlon charging Obstruction of Justice in violation of 18 U.S.C. § 1503 (Counts 27 and 28), [395]*395and two counts against Scanlon charging perjury in connection with alleged false statements before the grand jury in violation of 18 U.S.C. § 1623(c) (Counts 29 and 30).

After Scanlon filed the instant motion on December 7, 2016 (Dkt. 385), the'Government filed a response on January 10, 2017 (Dkt. 437), and Scanlon filed a reply on February -24, 2017, (Dkt. 509). Oral argument was held’ before the undersigned on May 9, 2017, at which time the Court reserved decision. (Dkt. 593).

DISCUSSION

I. Motion to Dismiss

Scanlon moves to dismiss Counts, 28, 29, and 30 of the Indictment. (Dkt. 385 at 14-21). For the reasons set forth b.elow, the Court denies Scanlon’s motion.

A. Legal Standard

Federal Rule of Criminal Procedure 12(b) states that “[a] party may raise by pretrial motion' any defense, objection, or request that the court can determine without a trial oh the merits.” Fed. R. Crim. P. 12(b)(1). “The general issue in á criminal trial is, of course, whether the defendant is guilty of the offense charged.” United States v. Doe, 63 F.3d 121, 125 (2d Cir. 1995). A pre-trial motion to dismiss an indictment under Rule 12 must satisfy a “high standard.” United States v. Lazore, 90 F.Supp.2d 202, 203 (N.D.N.Y. 2000). “In deciding a motion to dismiss an indictment for 'failure to. state, a criminal offense,, a court must assume the truth of the allegations in the indictment and determine whether the indictment is valid on its face.” United States v. Larson, No. 07-CR-304S, 2011 WL 6029985, at *1 (W.D.N.Y. Dec. 5, 2011) (citing United States v. Bicoastal Corp., 819 F.Supp. 156, 158 (N.D.N.Y. 1993)). This Court may pot “look beyond the face of the indictment and draw inferences as. to the proof that would be introduced by the government at trial.” Id. (quoting United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998)) (alterations omitted).

Federal Rule of Criminal Procedure 7(c) requires that an indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged....” Fed. R. Crim. P. 7(c)(1). 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.” Alfonso, 143 F.3d at 776; see also United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992) (“An indictment is sufficient when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events.”). The indictment “need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.” Alfonso, 143 F.3d at 776.

B. Count 28

Scanlon argues that Count 28 must be dismissed “[t]o the extent that this Count relies on false statements allegedly made to an FBI agent, as distinct from any statements made to the grand jury....” (Dkt. 385 at 19-21). According to Scanlon, the nexus requirement — that is, the requirement that the alleged unlawful act have a “relationship in time, causation, or logic” to the interfered-with judicial proceeding must be alleged in the indictment and is lacking here because, at least-to some extent, the count alleges that Scan-[396]*396Ion impeded only an FBI investigation. (Id.). The Government responds that all of Scanlon’s “statements, to either the FBI or to the Grand Jury, were made while the defendant was on actual notice of such judicial proceedings by virtue of the fact that he was served a Grand Jury subpoena, and then testified before the Grand Jury pursuant to such subpoena.” (Dkt. 437 at 12-13).

Count 28 charges Scanlon with a violation of 18 U.S.C. § 1503 as follows:

Between on or about July 15, 2015, and on or about September 16, 2015, in the Western District of New York, ... THOMAS SCANLON ... did corruptly influence, obstruct and impede, and endeavor to influence, obstruct and impede the due administration of justice in investigations being conducted by a Grand Jury and the Federal Bureau of Investigation

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