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holding that a mail fraud count was sufficient where it tracked the statutory language, alleged a use of the mails, and identified the approximate time frame and nature of the scheme
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00 Cr. 209 (RWS)
September 20, 2000
Hon. Mary Jo White, United States Attorney for the Southern District of New York, New York, NY, for United States of America.
Boyd M. Johnson, III, Esq., Assistant US Attorney Of Counsel, Stephanie M. Carvlin, Esq., New York, NY, for Defendant.
Defendant Randall Zandstra ("Zandstra") moves for an order dismissing the indictment pursuant to Federal Rules of Criminal Procedure 12(b)(2) and 7(c) 1), or, alternatively, for an order requiring the Government to file a bill of particulars, and for an order requiring the Government to specify immediately any bad acts it intends to introduce at trial, pursuant to Federal Rule of Evidence 404(b).
For the reasons set forth below, the motion is denied in part and granted in part.
Background and Prior Proceedings
Zandstra, who previously worked for a Manhattan-based company named High Market Vending Associates, is alleged to have conspired with others to violate the mail fraud statute, and to have devised a scheme to commit mail fraud, and of aiding and abetting that scheme, from in or about May 1999 through on or about July 29, 1999, by sending fraudulent promotional materials via Federal Express to prospective customers in order to induce the purchase of vending machines and services that were never intended to be provided. On March 3, 2000, a Grand Jury sitting in the Southern District returned a two-count indictment against Zandstra, charging him with violating 18 U.S.C. § 371, 1341 and 1342.
The instant motion was filed on July 7, 2000, and submissions were received through September 10, 2000, at which time the matter was deemed fully submitted.
Discussion I. Dismissal of the Indictment A. The Standard For Sufficiency Of An Indictment
Rule 7(c) provides in relevant part that an indictment shall contain a "plain, concise and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c)(1). This rule incorporates the rights of an accused under the Sixth Amendment "to be informed of the nature and cause of the accusation" and under the Fifth Amendment to not be subject to double jeopardy and to be protected from prosecution for crimes based on evidence not presented to the grand jury. See United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999).
The Second Circuit has set forth the standard for the sufficiency of an indictment as follows:
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. . . . [A]n 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.
United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992) (citations and internal quotation marks omitted).
B. The Sufficiency Of The Indictment In This Case
Zandstra has moved to dismiss both counts of the indictment on the ground that they are "unconstitutionally vague and fails to provide a plain, concise and definite written statement of the essential facts constituting the offenses charged," in violation of Zandstra's rights under Federal Rule of Criminal Procedure 7(c) and the Fifth and Sixth Amendments.
The primary charging language of Count One, which charges Zandstra with conspiring to violate the mail fraud statute, reads:
From in or about May 1999, up to and including on or about July 29, 1999, in the Southern District of New York and elsewhere, RANDALL ZANDSTRA, the defendant, and others known and unknown, unlawfully, willfully, and knowingly did combine, conspire, confederate, and agree together and with each other to commit offenses against the United States, to wit, violations of Title 18, United States Code, Section 1341.
It was a part and an object of this conspiracy that RANDALL ZANDSTRA, the defendant, and others known and unknown, having devised and intending to devise a scheme and artifice to obtain money and property by means of false and fraudulent pretenses, representations, and promises, and for the purpose of executing such scheme and artifice and attempting to do so, unlawfully, willfully, and knowingly deposited and caused to be deposited mail matter to be delivered by a private and commercial carrier, to wit, fraudulent promotional materials, sent and delivered by Federal Express, concerning High Market Vending Associates intended to induce the purchase of vending machines and services, in violation of Title 18, United States Code, Section 1341.
Indictment, ¶¶ 1 and 2.
Count One also specifies certain overt acts which the Government alleges were committed by Zandstra and others in furtherance of and to effect the illegal conspiracy, namely, two instances on which fraudulent promotional materials were allegedly sent out from High Market Vending Associates to victims of the conspiracy: (1) on or about June 17, 1999 to an individual in West Bloomfield, Michigan, and (2) on or about July 6, 1999 an individual in Appleton, Wisconsin, conspiracy. Count One also specifies that from on or about July 15, 1999 until on or about July 29, 1999, Zandstra and others occupied an office space at 325 West 38th Street, Suite 404, New York, New York, under the name High Market Vending Associates.
Count One is brought pursuant to 18 U.S.C. § 371, which reads in relevant part that it shall be unlawful:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy. . . .
Count Two of the indictment, which accuses Zandstra and others of devising a scheme to commit mail fraud, and of aiding and abetting that scheme, reads:
From in or about May 1999, up to and including on or about July 29, 1999, in the Southern District of New York, RANDALL ZANDSTRA, the defendant, and others known and unknown, unlawfully, willfully, and knowingly did devise a scheme to obtain property by means of false and fraudulent pretenses, representations, and promises, to wit, to induce the purchase of vending machines and services that were never intended to be provided, and for the purpose of executing such scheme and artifice and attempting to do so, deposited and caused to be deposited mail matter to be delivered by a private and commercial interstate carrier, to wit, fraudulent promotional materials concerning High Market Vending Associates to be delivered by Federal Express.
Indictment ¶ 4.
Count Two is brought pursuant to 18 U.S.C. § 1341 and 1342. Section 1341 reads in relevant part that it shall be unlawful:
[H]aving devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . for the purpose of executing such scheme or artifice . . . [to] deposit or cause to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier. . . .18 U.S.C. § 1341.
Finally, Section 1342 provides that it shall be unlawful to use or assume any fictitious, false, or assumed title, name or address for the purpose of conducting a scheme or device mentioned in Section 1341. See 18 U.S.C. § 1342.
Zandstra contends that Count One is not detailed enough to apprise him of the charges he must be prepared to meet and, therefore, violates Rule 7(c) and the Sixth Amendment. Section 371 is violated when two or more persons conspire to commit any offense against the United States. The offense of mail fraud occurs when money is obtained by means of false pretenses or representations as a result of a scheme to defraud involving use of the mail. See 18 U.S.C. § 1341. The elements of a conspiracy charge are: (1) an agreement between the defendant and at least one other person to commit an offense; (2) that the defendant knowingly participated in the conspiracy with the specific intent to commit the illegal object of the conspiracy, and; (3) that during the conspiracy an overt act in furtherance of the illegal objective was committed by a member of the conspiracy.
See United States v. Salameh, 152 F.3d 88, 145-46 (2d Cir. 1998) (citations omitted).
The language of Count One tracks the conspiracy statute, 18 U.S.C. § 371, alleges each of the essential elements of the crime of conspiracy, states the nature of the fraudulent scheme that was the subject of the conspiracy (committing mail fraud by sending fraudulent promotional materials to prospective customers in order to induce purchases for items and services never intended to be provided), specifies the approximate time period during which the conspiracy took place (in or about May 1999 up to and including on or about July 29, 1999), states the place from which the scheme was allegedly operated (in the Southern District of New York and elsewhere, and including an office space at 325 West 38th Street), and specifies overt acts that furthered, and effected the illegal objects of, the conspiracy (two mailings). Therefore, Count One satisfies Rule 7(c).
Zandstra contends that Count Two violates Rule 7(c) and the Fifth and Sixth Amendments because it does not name any victims, state the dates when the fraudulent materials were sent or received, or indicate which of the marketing materials sent were fraudulent or the alleged inaccuracies in these materials.
Count Two is sufficient insofar as it charges Zandstra with violating 18 U.S.C. § 1341. The essential elements of the crime of mail fraud are (1) use of the mails to further (2) a scheme to defraud with (3) money or property as the object of the scheme. See United States v. Kinney, 211 F.3d 13, 17 (2d Cir. 2000) (citation omitted). Count Two tracks the statutory language, identifies the approximate time period during which this scheme is alleged to have taken place (from in or about May 1999 up to and including on or about July 29, 1999), alleges the use of a private and commercial interstate carrier (Federal Express), the nature of the fraudulent scheme (the use of fraudulent promotional materials to induce the purchase of vending machines and services that were never intended to be provided), and the object of the scheme (to obtain money or property).
It is not necessary that an indictment for mail fraud identify the victim(s). See, e.g., United States v. Loayza, 107 F.3d 257, 26-61 (4th Cir. 1997) (citing cases); United States v. Mizyed, 927 F.2d 979, 981 (7th Cir. 1991) (citation omitted). Nor must the indictment identify the exact mailing dates. See United States v. Upton, 856 F. Supp. 727, 738-740 (wire fraud indictment did not have to list particular computer transactions, telephone calls, and radio transmissions to be sufficient under Rule 7(c)) (S.D.N.Y. 1994); United States v. Reale, No. S4 96 Cr. 1069, 1997 WL 580778, at *13-*14 (S.D.N.Y. Sept. 17, 1997) (indictment for mail and wire fraud that did not identify specific mailings and wire transfers and dates thereof was sufficient under Rule 7(c)); see also United States v. Rufolo, No. 89 Cr. 938, 1990 WL 29425, at *3 (S.D.N Y March 13, 1990) (indictment for submission of false claims to United States did not have to identify dates of submission of allegedly false claims). Finally, it is not necessary that the indictment be more specific as to which materials are alleged to be fraudulent or the exact representations alleged to be inaccurate. See Upton, 856 F. Supp. at 739-740 (wire fraud count did not have to identify exact "writings, signs, signals, pictures, or sounds" comprising basis for the charge).
Count Two provides Zandstra with sufficient information in this regard, namely that he is charged with sending promotional materials concerning High Market Vending Associates regarding vending machines and services which were never intended to be provided. Therefore, Count Two satisfies Rule 7(c).
Zandstra also contends that the indictment lacks adequate allegations that he participated in the scheme to defraud, or that he had sufficient knowledge of the scheme to have the requisite intent. This portion of Zandstra's motion, in essence, challenges the sufficiency of the indictment's factual allegations to establish a violation of Section 1341 on the merits. However, "[i]t is axiomatic that, in a criminal case, a defendant may not challenge a facially valid Indictment prior to trial for insufficient evidence. Instead, a defendant must await a Rule 29 proceeding or the jury's verdict before he may argue evidentiary sufficiency." United States v. Gambino, 809 F. Supp. 1061,1079 (S.D.N.Y. 1992); see United States v. Calandra, 414 U.S. 338, 345 (1974); Costello v. United States, 350 U.S. 359, 363 (1956); United States v. Contreras, 776 F.2d 51, 54 (2d Cir. 1985).
Count Two is not sufficient, however, insofar as it purports to charge Zandstra with violating 18 U.S.C. § 1342. Count Two does not track the statutory language of Section 1342, nor does it identify the fictitious, false, or assumed title, name, or address with which Zandstra is charged with using. See 18 U.S.C. § 1342; cf. United States v. Shoher, 555 F. Supp. 346, (S.D.N Y 1983) (granting defendant's motion to order Government to clarify Section 1342 indictment by identifying fictitious name allegedly used). Therefore, that portion of Count 2 which purports to charge Zandstra with violating 18 U.S.C. § 1342 is dismissed.
Zandstra does not address this aspect of Count 2 in his papers. Nonetheless, the Court has a duty to examine an indictment and to dismiss it (or a portion thereof) sua sponte if it is legally insufficient. See Fed.R.Crim.P. 12(b)(2); see also, e.g., United States v. Purvis, 580 F.2d 853, 858 (5th Cir. 1978).
The only portion of Count Two which appears relevant to Section 1342 is the reference to that section of the United States Code itself.
Finally, Zandstra contends that Count Two, to the extent that it purports to charge the victimization of more than one person, is duplicitous. An indictment is duplicitous if it joins two or more distinct crimes in a single count. See United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992). The purpose of this rule is to avoid uncertainty as to whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another, avoiding the risk that the jurors may not have been unanimous as to any one of the crimes charged, assuring the defendant adequate notice, providing the basis for appropriate sentencing, and protecting against double jeopardy. See United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981) (citation omitted). However, "acts that could be charged as separate counts of an indictment may instead be charged in a single count if those acts could be characterized as part of a single continuing scheme." Aracri, 968 F.2d at 1518 (internal citation and quotation marks omitted). Thus, "a single count of an indictment should not be found impermissibly duplicitous whenever it contains several allegations that could have been stated as separate offenses, but only when the failure to do so risks unfairness to the defendant." Id. at 733 (citation omitted).
Although each mailing which Zandstra and others executed in furtherance of their scheme may by itself constitute a violation of the mail fraud statute, it is appropriate for the Government to treat these separate acts as elements of a single continuing scheme. See Rufolo, 1990 WL 29425, at *2-*3 (multiple submissions of false vouchers properly charged as one count of submitting false claims); Margiotta, 646 F.2d at 733 (numerous mailings properly charged as one mail fraud count). However, if Zandstra wishes, he may request that a special interrogatory be submitted to the jury asking it to identify which of the mailings it finds to be actionable. See Rufolo, 1990 WL 29425, at *3 (holding that count charging multiple acts as part of single scheme was not duplicitous but giving defendant option to request special interrogatory); Margiotta, 646 F.2d at 733 (same).
C. Bill Of Particulars
As an alternative to dismissal, Zandstra seeks an order requiring the Government to produce a bill of particulars. A bill of particulars cannot be used to cure an indictment that is legally insufficient. See Walsh, 194 F.3d at 45. However, so long as the indictment is minimally sufficient, the court may look to the record as a whole to determine whether the defendant has had an adequate opportunity to prepare his defense and whether he is protected from double jeopardy, see id., and may order a bill of particulars towards these purposes. See United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987); United States v. Lauersen, No. 98 Cr. 1134, 1999 WL 440619, at *3 (S.D.N.Y. June 28, 1999).
In order to obtain a bill of particulars, the defendant must show that the charges of the indictment are so general that they do not advise him of the specific acts of which he is accused. See United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990); United States v. Henry, 861 F. Supp. 1190, 1197 (S.D.N.Y. 1994). The standard applied to the information sought is not whether it is helpful to the defense, but whether it is necessary. See United States v. Love, 859 F. Supp. 725, 738 (S.D.N.Y. 1994); Henry, 861 F. Supp. at 1197. A bill of particulars is not required where the information sought has been made available in alternative forms. See Kelly, 91 F. Supp.2d at 583-84 (citations omitted). A bill of particulars will not be issued if it would "force the Government to particularize all of its evidence." Henry, 861 F. Supp. at 1197 (quoting United States v. Cephas, 937 F.2d 816, 823 (2d Cir. 1991)). Nor will a defendant be permitted to use such a request to compel the Government to disclose the manner in which it will prove the charges or preview its evidence or legal theory. See United States v. Perez, 940 F. Supp. 540, 550 (S.D.N.Y. 1996) (citations omitted); United States v. Facciolo, 753 F. Supp. 449, 451 (S.D.N.Y. 1990), aff'd, 968 F.2d 242 (2d Cir. 1992).
As explained above, the indictment provides Zandstra with a sufficient amount of detail regarding the charges against him to satisfy Rule 7(c). However, Zandstra is entitled to certain additional information in order to avoid surprise at trial, to be able to prepare an adequate defense, and to ensure that he is not prosecuted a second time for the same offense. Therefore, the Government is directed to provide Zandstra with a bill of particulars identifying the approximate dates of the allegedly fraudulent mailings, and the names of the alleged victims, if known. See Bortnovsky, 820 F.2d at 574 (defendant accused of submitting false burglary claims to insurance companies was entitled to bill of particulars where government provided voluminous discovery but failed to identify which of twelve burglary claims were alleged to be false); Reale, 1997 WL 580778, at *13-*14 (defendant accused of mail fraud entitled to bill of particulars identifying specific mailings and approximate dates). All other requests for particulars are denied.
A bill of particulars is not needed where the information required has been provided through other means, such as discovery. See Kelly, 91 F. Supp.2d at 583-84 (citations omitted). In this case, the Government maintains that it has provided discovery containing the particulars Zandstra needs. However, the Government fails to describe this discovery. Zandstra avers that the discovery provided identifies twelve possible victims and, further, that the discovery suggests that dozens of other individuals may have been solicited. Based on this characterization, which the Government does not challenge, the discovery provided does not obviate the need for a bill of particulars.
The Government avers correctly that it cannot be required to provide particulars regarding exactly when or how a conspiracy was formed or when or how a particular defendant joined the scheme. See, e.g., United States v. Johnson, 21 F. Supp.2d 329, 339-340 (S.D.N.Y. 1998) (citation omitted). Zandstra's request does not appear to be directed at such information or, indeed, to the conspiracy count at all. Rather, Zandstra seeks particularities regarding Count Two, including the names of the victims, the dates of the mailings, and the specific materials alleged to be fraudulent.
D. Rule 404(b) Evidence
The Government maintains that it does not intend to offer Rule 404(b) evidence at trial in this matter. This portion of Zandstra's motion is denied as moot.Conclusion
Therefore, for the reasons set forth above, Zandstra's motion is denied in part and granted in part. The Government is directed to provide Zandstra with a bill of particulars within five (5) days of the date of this decision.
It is so ordered.