The opinion of the court was delivered by: WOLIN
Before the Court are various pre-trial motions brought by defendants Joseph C. Parlavecchio ("Parlavecchio") and Alfonse R. Rossi ("Rossi"). Both defendants move to dismiss Count 28 of the Indictment (Travel Act violation alleging use of the mails to promote unlawful activity) under Federal Rule of Criminal Procedure 12(b)(2) on the ground that it fails to allege an essential element of the crime charged. They also move for a bill of particulars with regard to Counts 29 through 40 of the Indictment (money laundering) on the ground that these counts fail to set forth the specified mail fraud offenses as to which each money laundering allegation relates.
Finally, Parlavecchio moves to dismiss Count 41 of the Indictment (obstruction of justice) on the ground that it fails to provide him with sufficient notice of the allegations against him. In the alternative, Parlavecchio moves for a bill of particulars on this count on the same ground.
The Court heard oral argument on October 20, 1995. For the reasons set forth below, the Court will grant defendants' motion to dismiss Count 28 of the Indictment but will deny the remaining motions.
On April 28, 1995 a federal grand jury indicted defendants, charging that they established a corporation known as Mutual Investment Associates, Inc. ("Mutual") to purchase a building in Newark, New Jersey (the "Building") which Mutual later leased to defendants' employer, the Board of Education of the City of Newark (the "Board"), for use as an elementary school. The Indictment further alleges that, once the Board perceived a conflict of interest and insisted that defendants divest themselves of any interest in the Building, defendants "arranged a scheme to conceal their interest" in Mutual and in the Building (Indictment p. 2, P 4(f)). Defendants allegedly represented that they had relinquished their interest in Mutual and that they had no interest in any business which was a party to a contract with the Board, when in fact they merely purported to sell their shares in Mutual to relatives and took back a mortgage, thereby continuing for a number of years to receive the rental payments the Board continued to pay to Mutual.
The Indictment charges each defendant with one count of conspiracy in violation of 16 U.S.C. § 371, twenty-six counts of mail fraud in violation of 18 U.S.C. § 1341, and one count of use of the mails to promote unlawful activity in violation of the Travel Act, 18 U.S.C. § 1952(a)(3). It charges Parlavecchio with five counts and Rossi with four counts of money laundering under 18 U.S.C. § 1956(a)(1)(B)(i), and Parlavecchio with one count of obstruction of justice in violation of 18 U.S.C. § 1503.
I. Dismissal of the Travel Act Count
Count 28 of the Indictment alleges a violation of the Travel Act predicated upon an alleged "bribery" offense under N.J.S.A. 2C:27-7 (the "New Jersey statute"). Defendants move to dismiss Count 28 on two grounds: (1) that the Indictment does not state a claim under the New Jersey statute; and (2) that even if defendants violated the New Jersey statute, their conduct cannot serve as a predicate act under the Travel Act because it does not constitute "generic" bribery as required by the federal statute.
Under the Travel Act, a person commits a crime when he or she
. . . uses any facility in interstate or foreign commerce, including the mail, with intent to -- (1) distribute the proceeds of any unlawful activity; or (2) commit any crime of violence to further any unlawful activity; or (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3) . . . .
18 U.S.C. § 1952(a) (West 1986). "Unlawful activity" includes, among other things, "extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States." 18 U.S.C. § 1952(b) (West 1986). The government alleges "bribery" as the predicate act for its Travel Act charge.
A. Defendants' Argument that the Conduct Alleged Does Not Violate the New Jersey Statute
The government alleges that defendants violated the Travel Act by committing bribery in violation of the laws of New Jersey, specifically the New Jersey statute. Defendants argue that even if the government's allegations are true, the alleged conduct would not violate the New Jersey statute and would therefore not violate the Travel Act. The New Jersey statute reads:
A public servant commits a crime if he knowingly, directly or indirectly, receives any benefit in connection with the furnishing to or for the government of any goods, supplies, property or services for which the agreement or contract is made, or the expense or consideration paid, by the branch, subdivision or agency which employs the public servant.
Tracking the New Jersey statute, Count 28 alleges that defendants, over a fifteen-year period during which they were employed by the Board, knowingly, willfully, directly and indirectly received a benefit, namely monies in connection with the Board's lease of the Building, in connection with the furnishing to and for the Board of property, namely the lease of the Building, for which the Board made the agreement and contract and paid the expense and consideration. It further alleges that defendants knowingly and willfully used the United States mails to distribute the proceeds of this unlawful activity and with the intent to promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of this unlawful activity.
The Court finds the New Jersey statute somewhat unclear and finds defendants' arguments against its applicability to their alleged criminal conduct to be colorable.
As set forth below, however, even if the conduct alleged in Count 28 violates the New Jersey statute it cannot form a predicate act under the Travel Act. It is therefore unnecessary for the Court to pass on the applicability of the New Jersey ...