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UNITED STATES v. RECOGNITION EQUIP.

April 6, 1989

UNITED STATES OF AMERICA
v.
RECOGNITION EQUIPMENT, INCORPORATED, WILLIAM G. MOORE, JR., ROBERT W. REEDY



The opinion of the court was delivered by: REVERCOMB

 GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 Oral argument on the motions discussed below was heard on March 7th and 8th, 1989. In this memorandum, the Court denies defendants' motion to dismiss Count I of the indictment, grants in part defendants' motion for a bill of particulars, denies defendants' motion to discover the Grand Jury transcript, and grants in part defendants' motion for discovery.

 I. Defendants' Motion to Dismiss Count I

 Defendants are charged in Count I of the indictment with violation of 18 U.S.C. § 371 which reads in part:

 
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, each shall be fined not more than $ 10,000 or imprisoned not more than five years, or both.

 Defendants have moved to dismiss Count I on the grounds that it is confusing and duplicitous, improperly charges offenses under both prongs of 18 U.S.C. § 371, seeks to impose criminal liability for conduct not plainly in violation of statute, and improperly alleges two separate conspiracies in a single count. The Court will address each of these arguments in turn.

 A. Defendants argue that Count I is so confusing and duplicitous as to violate the requirement of Fed. R. Crim. P. 7(c) that an indictment "shall be a plain, concise and definite statement of the essential facts constituting the offense charged." This, they argue, is because Count I fails to provide defendants with adequate notice of the charges against them, fails to delineate the scope of the alleged conspiracy clearly, would hinder proper evidentiary rulings at trial, and would make it impossible to verify whether there had been a unanimous jury verdict.

 After hearing extensive oral argument on these points, the Court finds that the government has successfully demonstrated that the conspiracy alleged under § 371 is described with sufficient detail to apprise defendants of what they must be prepared to defend pursuant to the requirements of Rule 7(c). The indictment alleges some 96 overt acts, and the conclusions the government draws from them are spelled out as the ten alleged conspiratorial objects. The indictment alleges that various "means and methods" were used in furtherance of the § 371 conspiracy, but the fact that vague means are alleged does not mean that the nature of the conspiracy is improperly alleged, because § 371 places no limitation on the "methods" which may be used to defraud the United States. Tanner v. United States, 483 U.S. 107, 107 S. Ct. 2739, 2752, 97 L. Ed. 2d 90 (1987). Since the Court could not dismiss Count I on the grounds that the government had failed to allege means necessary to state a violation of § 371 there are no grounds to dismiss because the listed "means and methods" are laid out vaguely. The indictment does state the essential elements of the offense, does allege at least one overt act in furtherance of the conspiracy, and therefore serves to apprise defendants of what they must be prepared to defend. See United States v. Treadwell, 245 U.S. App. D.C. 257, 760 F.2d 327, 337 (D.C.Cir. 1985), cert. denied, 474 U.S. 1064, 88 L. Ed. 2d 788, 106 S. Ct. 814 (1986). No further allegations are required in a § 371 indictment. United States v. Tarvers, 833 F.2d 1068, 1075 (1st Cir. 1987) (holding that the essential elements of a § 371 indictment are an agreement to pursue an unlawful object accompanied by an overt act in furtherance of the agreement).

 The indictment puts defendants on notice that they must be prepared to defend actions allegedly taken in furtherance of a conspiracy to subvert the Postal Service's procurement process. An indictment alleging a § 371 conspiracy is sufficient if it describes the essential nature of the conspiratorial agreement and sets forth the essential elements of the offense. Treadwell, 760 F.2d at 337. In this case, the indictment describes the governmental functions defendants are alleged to have conspired to impede (Indictment para. 12a-e). It also sets forth the essential nature of the conspiracy in paragraph 13, detailing the alleged scheme by means of which the procurement process was impeded. Paragraph 13 also alleges that the defendants knew of the activities of the other co-conspirators. Further detail is provided by paragraph 14, which lists 96 overt acts. The Court finds that this level of detail suffices to satisfy the requirements of Rule 7(c) and Treadwell.

 The defendants have also argued (relying on the vagueness of the list of "means" and of the indictment generally) (1) that the grand jury may not have found probable cause to support each element of the offense; (2) that they cannot discern the government's legal theory; (3) that it would be difficult to ensure a unanimous jury verdict; and (4) that the Court may have a hard time drafting instructions and making evidentiary rulings.

 Following each alleged "object" in the indictment is a "means" clause, including "cheating, deceit, fraud, theft, embezzlement, dishonesty," and so forth, which tracks the language of the cases interpreting the "fraud prong" of § 371, but has no obvious connection with many of the overt acts. Defendants have argued that the "means" clause is so vague as to show that the Grand Jury may not have found probable cause as to each element of the offense. The government points out that defendants have no right to complain about the vagueness or notice failings of this language in the indictment, since indictments do not require a "means" explanation at all. The essential elements of a § 371 offense are (1) an agreement (2) one or more unlawful objects and (3) an overt act in furtherance of the agreement. United States v. Tarvers, 833 F.2d 1068, 1075 (1st Cir. 1987). As stated earlier, § 371 does not require any particular means or methods to be used, and therefore, means and methods are not an essential element of a properly framed § 371 indictment.

 In the Treadwell case cited above, it was held sufficient under § 371 for an indictment to track the language of the statute and contain sufficient facts to describe the essential nature of the conspiratorial agreement. This Count I certainly does, and would even if the "means" language were omitted. It sets forth the multiple objects of the conspiracy, and describes the essential nature of the agreement in the "objects" paragraphs, which describe which governmental functions defendants allegedly agreed to impede. The "means" list is not surplus, since it is clearly intended to link each object to the standards of § 371. Since it tracks the elements of § 371, which is an independent offense not requiring a showing that any specific statute has been violated, the "means" list does not have to describe the specific elements of any substantive offense other than § 371.

 (1) Defendants have argued that the vagueness of the allegations makes it impossible to be certain whether the Grand Jury found probable cause. The Court thinks this issue has been raised too early, since it is not clear whether the government will, or will not be able to show a single conspiracy. The cases cited by defendants were cases where a single count contained multiple conspiracies. In such a case, the trial court is faced with trying to excise a duplicitous charge, and in the cases cited by the defendants, the indictments were unclear as to whether the grand jury had found probable cause to indict on the separate conspiracies. See, e.g., United States v. Cryan, 490 F. Supp. 1234, (D.N.J.), aff'd, 636 F.2d 1211 (3d Cir. 1980). In Cryan, the government's case as developed at trial failed to show any evidence that the defendants knew enough about a pre-existing conspiracy between some of the same persons to argue effectively that only one conspiracy was alleged in the indictment. When the trial court in Cryan learned that there would be a complete failure of proof as to knowledge of the pre-existing conspiracy which the defendants were alleged to have joined, the court found that it could not determine whether the Grand Jury would have indicted on the basis of the later transactions in which the defendants were involved. Therefore, the court decided that it would be improper simply to excise that portion of the indictment which depended on the defendants having joined a larger, older conspiracy. To have done so would have forced the court to second guess the Grand Jury on whether it would have indicted had the more recent conspiracy been the only one placed before it. The court was also concerned that evidence about the pre-existing conspiracy would prejudice the defendants in the eyes of the jury since there was no evidence that the defendants knew about it. Cryan did not hold that a court should look behind the indictment to the Grand Jury's findings before any evidence has been presented. The Cryan situation has not been reached in this case, since the government has alleged, both in the indictment, and during oral argument, that it will make a circumstantial case that defendants knew about the doings of the unindicted co-conspirators. The government has alleged knowledge on defendants' part of all aspects of the conspiracy, and must be allowed to attempt to prove it.

 (2) Although defendants have complained that the indictment does not particularize the government's legal theories, in the sense that the "means" list fails to specify how the overt acts furthered violation of § 371, defendants have no right to know what legal theories the government will use to make the link between the overt acts and the ten conspiratorial objects. United States v. Shoher, 555 F. Supp. 346 (S.D.N.Y. 1983). Therefore, failure to draft the indictment in such a way as to reveal those theories is not a flaw in the indictment.

 (3) As to the difficulty the Court will have in making rulings, the defendants argue that Count I should be dismissed because the "means" clause will make it difficult for the Court to draft jury instructions, ensure a unanimous verdict, and make evidentiary rulings. Given the complexity of the charges, the only way in which the Court would allow this indictment to go to the jury would be with a special verdict form, which the Court believes overcomes defendants' objection that the multiplicity of objects afforded by the indictment might make a compromise verdict possible. Where an indictment alleges a conspiracy to commit several offenses against the United States, the charge is sustained by proof of conspiracy to commit any one of the offenses. United States v. Alvarez, 735 F.2d 461 (11th Cir. 1984). A properly drawn special verdict form would alleviate the problem of ensuring unanimity.

 (4) With respect to evidence, Count I defines the relevant time period, identifies the corrupted procurement process, identifies co-conspirators and sets forth in detail the nature of the scheme. But, recognizing the force of defendant's argument, and since the Court understands defendants' objection that Count I seeks to criminalize activities which, taken individually, are not criminal violations, the Court emphasizes the importance it attaches to the government's ability to show agreement, which is the sine qua non of the law of conspiracy, and intentional impairment or obstruction of the lawful functions of the USPS. At oral argument, the government argued that knowing participation in any one of the listed objects would be sufficient for conviction under § 371, and that it was not necessary for the government to prove defendants' knowledge of the prior Voss-Gnau corruption in order to convict defendants of, for example, conspiracy to effect the theft, or illegal receipt of USPS property. *fn1" The Court reminds the government that evidence on any given object is not the same as showing a conspiracy with the intent of impairing the integrity, or impeding the lawful functions, of the USPS, and that the government's evidence at trial will be admitted and evaluated with that showing in mind. *fn2"

 B. Defendants argue that Count I is duplicitous, since it charges violations of both clauses of § 371, i.e., conspiracy to commit an offense against the United States and conspiracy to defraud the United States. Defendants argue that a count which alleges violation of both clauses of § 371 violates Rule 8(a) because it charges two separate offenses. The government has argued, correctly, that a conspiracy is a single offense no matter how many objects it encompasses, May v. United States, 84 U.S. App. D.C. 233, 175 F.2d 994 (D.C.Cir.), cert. denied, 338 U.S. 830, 94 L. Ed. 505, 70 S. Ct. 58 (1949), and that, accordingly, a violation of both prongs of § 371 may be alleged in a single count of an indictment without charging more than one offense. Since the law of conspiracy allows for schemes with more than one object, the fact that a count may allege conspiracy both to commit offenses against the United States and to defraud the United States does not necessarily make that count duplicitous. Treadwell, 760 F.2d at 335-36.

 Duplicity is the joining of two or more offenses in a single count. It is clear, however, that a count charging conspiracy may contain several conspiratorial objects while remaining one offense. Thus, according to the Supreme Court, "the allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for 'the conspiracy is the crime, and that is one, however diverse its objects.'" Braverman v. United States, 317 U.S. 49, 87 L. Ed. 23, 63 S. Ct. 99 (1942) (quoting Frohwerk v. United States, 249 U.S. 204, 63 L. Ed. 561, 39 S. Ct. 249 (1919)). The D.C. Circuit has specifically held that a "multiplicity of objects or of means" fails to convert a single conspiracy into more than one offense. May v. United States, 175 F.2d at 1002. Although § 371 is phrased as if it contained two separate offenses, May held that this is not so, since the conspiracy is the crime charged, and that is one offense, however diverse its objects. The same argument defendants make here was made in Treadwell, 760 F.2d at 334-35, and the Court of Appeals again held that under Braverman, the "gist of the crime of conspiracy as defined by the statute is the agreement or confederation of the conspirators," and that it is the agreement which the statute punishes, although a single agreement may have multiple objects. "Thus, a single conspiracy may contemplate . . . the violation of one or more federal statutes in addition to defrauding the United States." Treadwell at 336. The Court concludes that both prongs of § 371 may coexist within a single count.

 C. The defendants have also argued that the indictment is flawed insofar as it seeks to criminalize innocent lobbying activities. The government responds by arguing that conspiracy to defraud the United States can mean a conspiracy to deprive the United States of its right to conduct its business free from deceit, fraud, misrepresentation, cheating, theft, etc., and does not necessarily mean conspiracy to violate a particular criminal statute. It is well settled that the term "defraud" in § 371 is not confined to common-law fraud, under Dennis v. United States, 384 U.S. 855, 16 L. Ed. 2d 973, 86 S. Ct. 1840 (1966). In a recent case, the Supreme Court stated that a § 371 conspiracy embraces "any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government." Tanner v. United States, 483 U.S. 107, 107 S. Ct. 2739, 2751, 97 L. Ed. 2d 90 (1987). Accordingly, § 371 embraces not only schemes which deprive the government of money or property in violation of statute, but also those which affect the integrity of the United States and its agencies by means of deceit, craft or trickery, or by means that are at least dishonest. McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875, 2881 n. 8, 97 L. Ed. 2d 292 (1987). In United States v. Haldeman, 181 U.S. App. D.C. 254, 559 F.2d 31 at 122 (1976), it was said that § 371 makes a crime out of an agreement which "means to deprive the Government of its right to have the officials of its departments and agencies transact their official business honestly and impartially, free from corruption, fraud, improper and undue influence, dishonesty and obstruction." Thus, "it has long been accepted that 18 U.S.C. § 371 defines a substantive crime," United States v. Gallup, 812 F.2d 1271, 1276 (10th Cir. 1987), and that "to be held liable under the broad sweep of the fraud prong of § 371, defendants need not have agreed to commit, or have actually committed, a specific substantive offense. They merely must have agreed to interfere with or to obstruct one of the government's lawful functions." United States v. Nersesian, 824 F.2d 1294, 1313 (2d Cir. 1987).

 The indictment contains six objects which constitute specific "offenses against the United States," and also contains four objects which track the "fuzzy" nature of the "defraud" prong as developed in the case law interpreting § 371, since they do not allege violations of separate criminal statutes, and rely on § 371 to criminalize those objects by its own force. Although the cases say that § 371 is designed to criminalize acts which deprive the right of the government to the proper functioning of its agencies and procurement processes, the Court is troubled by the prospect that the jury could convict these defendants for influencing a procurement by acts which do not rise, legally, to the level of corruption as forbidden by statute.

 The government stated at oral argument that a conviction under the four "defraud" objects would lie despite acquittal on the six "offense" objects. Whether this is the case will have to be determined upon the sufficiency of the government's evidence at trial. The Court intends to scrutinize the proofs offered at trial carefully to determine the sufficiency of evidence regarding deceit, craft, trickery and dishonesty on the part of these defendants. See United States v. Tarnopol, 561 F.2d 466, 474-75 (3d Cir. 1977). Although the Court has concluded that the four objects in Count I which are geared toward the "fraud prong" ...


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