Opinion
01 CR 416 (S10) (ILG)
June 19, 2002
MEMORANDUM AND ORDER
The defendant Weider has moved this Court for an Order that would (1) direct the government to provide a bill of particulars, and (2) strike prejudicial surplusage from the superseding indictment.
The Bill of Particulars
Weider contends that the indictment fails to provide him "with critical specifics of both charged crimes" and compels him to guess at the charges. A summary of the indictment tests the validity of those claims. Paragraphs 3-7 are introductory.
In paragraph 3 of the indictment, his co-defendant, Kukic, is alleged to be an associate of the Genovese family and an official of Local 32B/J of the Building Services Workers Union.
In paragraph 4, the defendant is alleged to be the owner and manager of the Vanderveer Estates Apartment Buildings whose custodial and maintenance employees were affiliated with Local 32B/J.
In paragraph 5, Local 187 of the Factory and Building Employees Union sought to represent the employees of the Vanderveer Apartments.
In paragraph 6, Weider sought to reduce labor costs by removing some, or all, employees affiliated with Local 32B/J. In furtherance of that objective, he paid approximately $350,000 to a representative of Local 187. In the government's Memorandum in Opposition to the Motions (Gov. Mem.) at page 2, the "representative" referred to in this paragraph, is identified as the president of that Local to whom the payment was made to replace Local 32B/J with his union.
In paragraph 7, the indictment alleges that the defendant agreed with named Genovese family representatives to reduce his labor costs by making illegal payments to Local 32B/J representatives after the payment to the representative of Local 187 did not result in its substitution of Local 32B/J.
Count One of the indictment identifies the charge it makes as "Labor Bribery — 187" and incorporates the introductory paragraphs by reference. It then tracks the language of 28 U.S.C. § § 186(a)(2) and (d)(2) in alleging the payment in excess of $1,000 to an officer and employee of Local 187.
That Count One clearly advises the defendant that he is charged with paying approximately $350,000 to the president of Local 187 in violation of the referenced statute can hardly be gainsaid.
Count Two of the indictment identifies the charge it makes as "Labor Bribery Conspiracy — Local 32B/J." It, too, incorporates the introductory paragraphs by reference and alleges that Kukic and Weider, together with the previously named persons affiliated with the Genovese family and others, conspired to commit the crime defined in 29 U.S.C. § § 186(a)(2) and (d)(4). The object of the conspiracy is clearly alleged in paragraphs 12 and 13 as being the payment of money to Kukic as an officer and employee of Local 32B/J who agreed to accept it, in violation of the referenced statute. Paragraph 14(a)-(e) describes the overt acts allegedly committed in furtherance of the conspiracy which are explicit and can hardly be claimed to compel Weider to guess at the crime with which he is charged.
It would be an affectation of research to cite cases in which the purpose to be served by a bill of particulars has been discussed. Suffice it to say the relevant Rule in this regard, Rule 7(f) of the Federal Rules of Criminal Procedure, permits a defendant to obtain such a bill when the charges against him are so vague that he couldn't adequately prepare to defend against them and prevent him from successfully claiming double jeopardy should he be prosecuted again.
This indictment, as supplemented by the extensive discovery provided thus far, and by the elaboration contained in the government's Memorandum can leave the defendants with no doubt as to the crimes with which they are charged and enable them to invoke the claim of double jeopardy should they be prosecuted again for the same crimes.
The motion for the particulars they seek is, therefore, denied.
Surplusage
Weider moves the Court for an Order that would declare the first two introductory paragraphs as surplusage and direct that they be stricken. The first paragraph alleges the existence of the Genovese Organized Crime Family as an organized criminal group that is part of a nationwide criminal organization known as "Mafia" and "La Cosa Nostra." The second paragraph describes the structure of the Genovese family as including captains of crews of made members and associates of the family the purpose of which was to generate money for its members.
Rule 7(d) of the Federal Rules of Criminal Procedure provides that "The court on motion of the defendant may strike surplusage from the indictment or information." Here, too, the cases are legion in which the Courts have held that a motion to strike under Rule 7(d) will be granted only if it is clear that the matter complained of is not relevant to the charge contained in the indictment and is inflammatory and prejudicial. United States v. Persico, 621 F. Supp. 842, 860 (S.D.N.Y. 1985). An indictment may properly include an allegation that will constitute part of the government's proof at trial and by which it will prove the charge. United States v. Esposito, 423 F. Supp. 908, 911 (S.D.N.Y. 1976); United States v. Napolitano, 552 F. Supp. 465, 480 (S.D.N.Y. 1982).
The application of those teachings to this indictment is plainly warranted and the motion to strike those allegations is denied.
Kukic has moved the Court for an Order that would sever his trial from Weider's. That motion is without merit and is denied.
SO ORDERED.