Opinion
Criminal No. 02-127 ADM/AJB
November 1, 2002
Mark D. Larsen, Esq., Assistant United States Attorney, for Plaintiff.
Robert G. Malone, Esq., for Defendant Thomas James Martin.
Janice M. Symchych, Esq., for Defendant Joseph Paul Biernat.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On October 29, 2002, Defendant Thomas James Martin's ("Martin") Motion to Dismiss Count 8 for Multiplicity [Docket No. 167] and Motion to Dismiss Count 8 for Failure to State an Offense Against the United States of America [Docket No. 166] were argued before the undersigned United States District Judge. Defendant Joseph Paul Biernat's ("Biernat") Motion to Dismiss Counts 5-8 of the Second Superseding Indictment [Docket No. 169], and Motion in Limine to Exclude Purported 404(b) Evidence [Docket No. 170], and Plaintiff United States of America's (the "Government") Motion for Production of Defendant Biernat's Witness List and Exhibit List [Docket No. 174], were also argued. Additionally before the Court are other pre-trial motions not the subject of oral argument. The factual background for this matter is adequately set forth in the September 16, 2002, Report and Recommendation ("RR") of Magistrate Judge Arthur J. Boylan [Docket Nos. 134 135], and is incorporated by reference for the purposes of the parties' present motions.
II. DISCUSSION A. Biernat's Motion to Sever Counts
Biernat seeks severance of Count 8. The Court finds that the addition of Count 8 at a time so close to the commencement of trial is tardy. The Second Superseding Indictment adding Count 8 was filed on October 16, 2002. Count 8 alleges mail fraud premised upon Biernat's mailing of his tax return on April 11, 2000. Biernat argues that the Government's allegation related to Biernat's tax statement is problematic because it calls into question the propriety of the inclusions/exclusions contained on Biernat's 1999 federal income tax return, implicating an otherwise unnecessary tax law analysis. Biernat argues he has had inadequate notice of tax-related allegations and has had no meaningful opportunity to prepare his defense accordingly.
At the time the Second Superseding Indictment was filed the trial was scheduled to begin on November 4, 2002, giving the defense only two and a half weeks of notice to prepare to defend Count 8. The Government had previously been prepared to proceed to trial on two occasions prior to October 16 without ever raising the need for a new charge implicating tax issues. The lateness of the added charge and the different character of evidence that might become relevant to the new charge requires the severance of Count 8. Biernat's Motion is granted. The severance of this count is meant in no way to lend any credence to Biernat's suggestion that Count 8 was added due to prosecutorial vindictiveness. The Court finds Biernat's argument of vindictive prosecution to be entirely without merit.
Arraignment of Biernat on Count 8 will take place on November 4, 2002.
B. Martin's Motion to Dismiss Count 8 for Multiplicity
Martin argues Count 8 is multiplicitous. Multiplicity is the improper charging of the same offense in several counts of the indictment, which violates the constitutional protection against double jeopardy. Black's Law Dictionary 1036 (7th ed. 1999); Gerberding v. United States, 471 F.2d 55, 58 (8th Cir. 1973). Martin offers no argument supporting this assertion, but presumably claims that because Counts 5-7 are mail fraud counts, Count 8 improperly re-charges the same offense in a different count. However, each of counts 5-8 specify different overt acts allegedly constituting the offense. As such, Count 8 appropriately asserted. Martin's Motion is denied.
C. Martin's Motion to Dismiss Count 8 for Failure to State an Offense Against the United States of America
Martin asserts that Count 8 alleges Martin committed mail fraud arising out of co-defendant Biernat's mailing of his tax return after the alleged scheme to defraud had been completed. Martin argues that a mailing occurring after the object of a scheme is completed is not sufficiently related to the scheme to support a mail fraud charge. 18 U.S.C. § 1341; United States v. Maze, 414 U.S. 395, 400 (1974) (holding that to come within the federal mail fraud statute a mailing must be "for the purpose of executing the scheme"); United States v. Taylor, 789 F.2d 618, 620 (8th Cir. 1986) (stating that the Government must prove "the use of the mails was for the purpose of executing the scheme"); Taylor, 789 F.3d at 620 (stating that generally the "use of the mails after a scheme reaches fruition will not constitute grounds for a conviction"). In light of the severance of Count 8, Martin's Motion to Dismiss Count 8 will be considered prior to his trial but after the conclusion of the Biernat trial on the non-severed counts of the Second Superseding Indictment.
D. Biernat's Motion to Dismiss Counts 5-8 of the Second Superseding Indictment
As a result of the severance of Count 8, consideration of Biernat's Motion to Dismiss Count 8 will be deferred.
Biernat's Motion on the remaining mail fraud counts, Counts 5-7 of the Second Superseding Indictment, is that the charges suffer from duplicity. Duplicity is the joining of two or more offenses in the same count of an indictment. Black's Law Dictionary 519 (7th ed. 1999); United States v. Nattier, 127 F.3d 655, 657 (8th Cir. 1997). The vice of double pleading is that a jury may convict a defendant "without unanimous agreement on the defendant's guilt with respect to a particular offense." Nattier, 127 F.3d at 657 (citation omitted). Here, the mail fraud counts do not join two offenses in any one count. Rather, the mail fraud counts suggest two distinct schemes for the deprivation of honest services, either one of which, if committed, would constitute mail fraud. Biernat argues that by alleging two separate schemes within the same count, a jury might not unanimously agree as to which scheme was committed while still convicting under the language of the count, thereby implicating a risk similar to that of double pleading. This risk is cured, however, "by a limiting instruction requiring the jury to unanimously find the defendant guilty of at least one distinct act." Id. An instruction can be drafted to make clear to the jury the need for unanimity on a particular offense. Martin joins in this Motion [Docket No. 179], and both Motions are deferred with respect to Count 8 and denied with respect to Counts 5-7.
E. Biernat's Motion in Limine to Exclude Purported 404(b) Evidence Regarding Tax Evasion or Tax-related Wrongdoing
Biernat argues that the 404(b) evidence related to Biernat's tax statement raises issues which are not relevant to the remaining counts of the Indictment. This danger is largely obviated by the severance of Count 8. Any remaining Rule 404(b) evidentiary considerations are better addressed during the trial when the context of the allegations are better developed.
Likewise, Martin's Motion in Limine to Preclude the Government from Introduction of Any Evidence Under the Purview of Rule 404(b) [Docket No. 144] and Martin's Motion in Limine Precluding the Government from Introduction of Evidence of the 1993 Transaction at co-Defendant Biernat's House [Docket No. 145] will be deferred to the context of trial.
F. The Government's Motion for Production of Defendant Biernat's Witness List and Exhibit List
The Government has been directed to provide its witness and exhibit lists to both Defendants. Likewise, Biernat is hereby directed to provide a witness list and an exhibit list to the Government by Noon on November 1, 2002. The Court has reviewed the Biernat witness and exhibit lists and finds no prejudice arises by the Government's access to these materials at this time. The Government's Motion is granted.
G. Biernat's Motion to Dismiss Counts I and II for Failure to State an Offense Against the United States
Judge Boylan's September 16, 2002, RR recommended denying this Motion, and his recommendation was not objected to by either Defendant. Accordingly, this Motion is denied.
H. The Government's Motion to Admit Evidence Regarding Prior Bad Acts (1993 Construction Work)
The admissibility of Rule 404(b) evidence relating to 1993 construction work will be addressed at trial. The Government is required to first offer evidence relating to the conduct which forms the basis for the counts in the Indictment on trial. After the Court has heard this evidence, the issues will be more appropriately framed, and the context developed. At such time the balancing of the probative and prejudicial aspects of the proffered evidence can be more appropriately assessed. Government counsel is cautioned to approach the bench outside the presence of the jury to secure an admissibility ruling prior to eliciting testimony relating to the 1993 construction work. Neither counsel may allude to such evidence during opening statements.
I. Martin and Biernat's Motion for Pretrial Questionnaire of Venire
This issue was previously addressed in this Court's October 29, 2002, Order, but the Defendants' Motion remains. As discussed in the Order, Section II(B)(5), this Court will use a juror questionnaire of its own design. No questionnaires will be mailed to potential jurors before trial. This Motion is granted in part.
J. The Government's Motion for Protective Order Regarding Witness Statements
This Motion is granted with respect to the following four documents:
1. The CAP Audit/Investigative Plan for Plumbers Union Local 15, for Audit Year Ending Date of December 31, 1999.
2. The Pre-Audit Checklist for Plumbers Union Local 15, for year ending date of December 31, 1999.
3. The Zero File Review for Plumbers Union Local 15 dated April 19, 2000.
4. The Report of Investigation dated December 8, 2000. Copies of these four documents shall not be made by the defense, and the substance of these four documents shall not be disclosed by the defense to any third party, absent an Order of this Court following a showing of good cause. All copies of these four documents shall be returned to the Government at the close of evidence in the trial of this case.
K. Biernat's Motion in Limine Requesting Measures to Protect Fair Trial Rights
As discussed with Counsel on the record, this Motion is granted in part as follows:
The publication of trial evidence by the prosecution or defense before presentation in open court is prohibited.
Counsel for all parties have stipulated to refraining from discussing the case with the media during the pendency of the trial.
Subpoenaed witnesses are to be advised by Counsel not to discuss anticipated testimony with the media before appearing in open court.
Consistent with this Court's customary practice, a cautionary instruction will be given to the jury regarding media coverage during the case.
The Court will consider whether jury sequestration is required by the circumstances at the appropriate time during trial.
A change of venue prior to the attachment of jeopardy will be considered by the Court at the appropriate time in the event the results of the juror questionnaires and voir dire indicate the inability to empanel an impartial jury.
L. Biernat's Motion in Limine Requesting the Court to Take Judicial Notice
Biernat seeks for the Court to take judicial notice of issues relating to (1) United States v. Czichray, Crim. No. 01-307, 2002 WL 54504 (D.Minn. Jan. 7, 2002), (2) United States v. Erhart, Crim. No. 01-300(1) (D.Minn. Dec. 13, 2001), (3) United States v. Sabri, Crim. No. 01-246 (D. Minn. Oct. 5, 2001), and (4) excerpts from the Physician's Desk Reference pertaining to the use and side effects of Cipro. Biernat's Motion is denied, but may be renewed at trial upon a showing by the defense establishing the relevance of any of these materials to issues remaining for trial. As discussed previously with respect to the Government's proffered 404(b) evidence, counsel must secure an evidentiary ruling prior to the mention of any of these items.M. Remaining Motions
All remaining Motions, including the Government's Motion for Order Excluding Evidence Regarding Confessions Given in Other Cases [Docket No. 149], Biernat's Motion in Limine for Admission of 404(b) Evidence Against Government Witness, Special Agent Sean Boylan [Docket No. 151], and Biernat's Motion for Discovery Evidence Relating to Misconduct Discipline of SA Boylan [Docket No. 152], will be argued on November 4, 2002, or at a later appropriate time.
III. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Biernat's Motion to Sever Counts [Docket No. 161] is GRANTED and Count 8 of the Second Superseding Indictment is severed.
2. Martin's Motion to Dismiss Count 8 for Multiplicity [Docket No. 167] is DENIED,
3. Martin's Motion to Dismiss Count 8 for Failure to State an Offense Against the United States of America [Docket No. 166] is DEFERRED,
4. Biernat and Martin's Motions to Dismiss Counts 5-8 of the Second Superseding Indictment [Docket Nos. 169 179] are DEFERRED as to Count 8 and DENIED as to Counts 5-7,
5. Biernat's Motion in Limine to Exclude Purported 404(b) Evidence [Docket No. 170] regarding tax-related wrongdoing is DEFERRED,
6. Martin's Motion in Limine to Preclude the Government from Introduction of Any Evidence Under the Purview of Rule 404(b) [Docket No. 144] is DEFERRED,
7. Martin's Motion in Limine Precluding the Government from Introduction of Evidence of the 1993 Transaction at co-Defendant Biernat's House [Docket No. 145] is DEFERRED,
8. The Government's Motion for Production of Defendant Biernat's Witness List and Exhibit List [Docket No. 174] is GRANTED,
9. Biernat's Motion to Dismiss Counts I and II for Failure to State an Offense Against the United States [Docket No. 70] is DENIED,
10. The Government's Motion to Admit Evidence Regarding Prior Bad Acts (1993 Construction Work) [Docket No. 138] is DEFERRED,
11. Martin and Biernat's Motion for Pretrial Questionnaire of Venire [Docket No. 140] is GRANTED IN PART,
12. The Government's Motion for Protective Order Regarding Witness Statements [Docket No. 141] is GRANTED,
13. Biernat's Motion in Limine Requesting Measures to Protect Fair Trial Rights [Docket No. 154] is GRANTED IN PART, and
14. Biernat's Motion in Limine Requesting the Court to Take Judicial Notice [Docket No. 156] is DENIED without prejudice and may be renewed at trial.