The opinion of the court was delivered by: SPORKIN
This matter is before the Court on defendants' motions for: (1) dismissal of the indictment in whole or in part; (2) dismissal of counts 11-41 of the indictment on grounds of double jeopardy; (3) dismissal of counts 11-41 on grounds that underlying statute is "void for vagueness"; (4) striking of forfeiture allegations; (5) a bill of particulars; (6) severance; and (7) pre-trial production of documents under subpoena. The government has filed a single omnibus response. The Court heard oral argument on all motions on September 16, 1996.
The defendants are accused in a multi-count indictment with participating in a scheme of fraud, embezzlement and money laundering, and conspiracy to commit such acts. Defendant Coleman, along with defendant Gjerset, is alleged to have devised a scheme to embezzle and launder funds belonging to the United Food and Commercial Workers Union (UFCW), Coleman's employer. Defendants Arnone and Whitaker, owners of various building companies, are alleged to have assisted Coleman and Gjerset in the scheme by laundering some funds through bank accounts belonging to their companies, accepting such funds as payment for building work, and receiving loans from the UFCW that were improperly authorized by Coleman. The defendants have all pleaded not guilty.
Several of the motions do not need further analysis. First, defendants concede that their motion on double jeopardy grounds (i.e. civil forfeiture and substantive money laundering counts place them in double jeopardy) has been rendered without legal merit in light of the Supreme Court's recent decision in United States v. Ursery, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996) (not double jeopardy to commence criminal proceedings against defendant subject of related civil forfeiture proceedings). Second, defendants admit that their motion on "void for vagueness" grounds is simply made to preserve the issue for appeal and that the particular argument has not succeeded in any of the many Courts that have addressed it. Third, based on representations by the government, defendants have withdrawn their motion to strike the forfeiture allegations. Finally, the government has withdrawn its opposition to the issuance of a subpoena for documents in the possession of the UFCW, with the understanding that the Court will not rule at this time on the admissibility of such documents at trial. The remaining contested motions will now be addressed.
1. Motions to Dismiss the Indictment in Whole or In Part
Defendants move for dismissal of the entire indictment based on their contention that each count is legally deficient in some manner. The Court will address each argument in the order presented.
A. Counts Two through Ten: Aiding and Abetting under 29 U.S.C. § 501(c)
Defendants Whitaker, Arnone and Gjerset claim that they cannot be properly charged in counts two through ten of the indictment of aiding and abetting a violation of 29 U.S.C. § 501(c). Section 501(c) places criminal liability on:
Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer, or by which he is employed, directly or indirectly. . .
29 U.S.C. § 501(c) (emphasis added).
The Government concedes that defendants Whitaker, Arnone and Gjerset are not officers or employees of the UFCW. However, counts two and ten also charge defendants under 18 U.S.C. § 2, which imposes punishment on an aider or abettor as if he or she were a principal to the particular crime charged. Defendants contend that 18 U.S.C. § 2 does not apply to 29 U.S.C. § 501(c), because by its very terms, § 501(c) applies only to persons who are officers or employees, directly or indirectly, of a labor organization. They claim that to charge non-labor organization persons as aiders and abettors would circumvent the language and purpose of § 501(c).
The parties agree there is no Court holding on this issue. The Government does cite Judge Friendly's dissent in United States v. Capanegro, 576 F.2d 973 (2d Cir. 1978), cert. denied, 439 U.S. 928, 58 L. Ed. 2d 320, 99 S. Ct. 312 (1979). The majority in Capanegro found that the defendants in question were union employees and therefore did not reach the question of aiding and abetting. Judge Friendly disagreed with his colleagues analysis, but noted that "if the Government had procured an indictment charging that [the union employee co-defendant] had violated 29 U.S.C. § 501(c) and ...