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United States v. Hess

February 23, 1999

UNITED STATES OF AMERICA
v.
RICHARD HESS, ARTHUR PENA, JOHN MORROW, AND CARLOS RIVERA, DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

HON. JEROME B. SIMANDLE

OPINION REGARDING BILL OF PARTICULARS

This matter is before the court on the motions of defendants Carlos Rivera, John Morrow, Richard Hess and Arthur Pena for a bill of particulars, pursuant to Federal Rule of Criminal Procedure 7(f).

BACKGROUND

On October 26, 1998, a Grand Jury for the District of New Jersey returned a 26 count Superseding Indictment charging defendants Richard Hess, Arthur Pena, John Morrow, Carlos Rivera, and Raymond Sancho with conspiracy and various predicate offenses that allegedly resulted in the West New York Police Department, (the "WNYPD"), being operated through a pattern of racketeering activity that included extortion and bribery in the misuses of police authority in violation of Racketeering Influenced and Corrupt Organizations Act, ("RICO"), Title 18 U.S.C. § 1962. Sancho has subsequently entered a plea of guilty.

The Superseding Indictment charges all four remaining defendants with racketeering (Count 1) and involvement in the RICO Conspiracy (Count 2), as well as involvement in the substantive acts relating to the alleged misuse of their authority as police officers -- namely, their alleged involvement in the conspiracy to extort money in exchange for protection of the illegal gambling establishments of Boardwalk Amusements (Predicate Act 2 and Count 4).

Morrow and Rivera are also charged in the conspiracy to extort money in exchange for the improper return of illegal gambling device parts (Predicate Acts 13 and Count 13), as well as their alleged acceptance of extortion payments to protect the Boardwalk gambling businesses (Predicate Acts 10(a), 11(a), and 12(a) and Counts 10, 11, and 12) and their alleged acceptance or extortion payments to protect a prostitution business (Predicate Acts 18(a) and 19(a) and Counts 18 and 19). The Superseding Indictment also includes alleged conspiracy to commit theft of money seized during the course of police raids on establishments with illegal gambling machines (Count 23); and the alleged theft -- and acts of obstruction and concealment -- of approximately $60,000 in cash that had been found during the course of police investigation at the scene of a fire within West New York (Count 24).

Beyond Counts 1, 2, and 4 above, defendant Hess is further charged with conspiring with others in Predicate Acts 3, 4, and 5(b) through 9 of Count 1, with accepting bribes for the protection of the Boardwalk Amusements gambling establishments. This conduct also is charged substantively in Counts 5 through 9. Finally, Hess is charged in Predicate Acts 20(a) and (b), 21(a) and (b), and 22(a) and (b) of Count 1 with allegedly extorting payments and accepting bribes for the protection of a business that was engaged in the illegal sale of alcohol after curfew hours. This conduct comprises Counts 20, 21, and 22 of the Superseding Indictment.

The charges as to defendant Pena in the Superseding Indictment also include allegations he conspired to receive protection money in bribes from the Funhouse rides gambling business (Count 14), and that he extorted cash bribes and protection money from the Funhouse (Count 15), and that he conspired to receive bribes and protection money from GMOG's video gambling business (Count 16) as well as from LaCachita's and Manolo's video gambling business (Count 17). Pena is also charged with filing false income tax returns for 1991 and 1992 due to his alleged failure to report income derived from the alleged corrupt enterprise. (Counts 25 and 26).

DISCUSSION I. Standard on Motion for Bill of Particulars

Federal Rule of Criminal Procedure 7(f) permits a defendant, under certain circumstances, to obtain information about the charges against him from the government through a bill of particulars. Rule 7(f) states:

The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.

The purpose of a bill of particulars is "to inform the defendant of the nature of the charges brought against him, to adequately prepare his defense, to avoid surprise during trial and to protect him against a second prosecution for an inadequately described offense." United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1971), cert. denied, 405 U.S. 936 (1972).

"Although Rule 7(f) is construed liberally, it does not permit a defendant to obtain wholesale discovery of the Government's evidence." United States v. Eisenberg, 773 F. Supp. 662, 689 (D.N.J. 1991). "A bill of particulars, unlike discovery, is not intended to provide the defendant with the fruits of the government's investigation." United States v. Smith. 776 F.2d 1104, 1111 (3d Cir. 1985). "Rather, it is intended to give the defendant only that minimum amount of information necessary to permit the defendant to conduct his own investigation." Id. A bill or particulars also serves "to define and limit the government's case" because "as with an indictment, there can be no variance between the notice given in a bill of particulars and the evidence at trial." Id.

Accordingly, the Third Circuit has observed that "motions for a bill of particulars should be granted whenever an indictment's failure to provide factual or legal information significantly impairs the defendant's ability to prepare his defense or is likely to lead to prejudicial surprise at trial." United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989). However, in deciding whether to grant a motion for a bill of particulars,

trial judges must be allowed to exercise broad discretion in order to strike a prudent balance between the defendant's legitimate interest in securing information concerning the government's case and numerous countervailing considerations ranging from the personal security of witnesses to the unfairness that can result from forcing the government to commit itself to a specific version of the facts before it is in a position to do so. Id.

Thus, "when discovery provided by the government fills in the outline of the indictment, the necessity for a bill of particulars declines." United States v. Sourlis, 953 F. Supp. 568, 578 (D.N.J. 1996); United States v. Caruso, 948 F. Supp. 382, 393 (D.N.J. 1996). The grant of a bill of particulars lies within the sound discretion of the district court. United States v. Armocida, 515 F.2d 29, 54 (3d Cir.), cert. denied, 423 U.S. 858 (1975).

In United States v. Vastola, 670 F. Supp. 1244, 1269-70 (D.N.J. 1987), the court held that the defendants in a complex RICO and RICO conspiracy case were entitled to a bill of particulars identifying the "central facts" of the government's case against them, while not requiring the government to provide information regarding uncharged overt acts and uncharged criminal conduct because such information was not central to the offenses as charged. Id.

With these teachings in mind, we examine the requests for a Bill of Particulars filed respectively by defendants Richard Hess, Arthur Pena, Carlos Rivera, and John Morrow (who joins Rivera's requests).

II. Determination Regarding Bills of Particulars

The 26-count Superseding Indictment against the four remaining defendants provides a substantially detailed recitation of allegations over the course of 51 pages. Similarly, many thousands of pages of discovery materials have been made available to the defendants for inspection and copying, together with hundreds of tapes of consensually recorded conversations. The government's trial exhibit list has been furnished recently, as required by the court, and 52 taped recordings are identified for use at this trial, according to AUSA Blaney's letter of February 17, 1999. Other discovery has been provided in response to specific requests. This court has the general impression that the United States has already provided a great deal of information framing the details of the crimes charged which, when added to the Superseding Indictment, supplies content to the allegations. The specific requests will be examined and granted where it appears that the indictment is vague and unfair, or when discovery has not given the defendant sufficient information to conduct his own investigation.

A. Defendant Richard Hess' Demand for Bill of Particulars

1. State specifically the identity of all co-conspirators in this case.

Defendant Richard Hess is charged with Counts 1-9 and 20-22. Only Counts 1-4 allege that he has conspired with others. Count 1 specifically names co-conspirators in Paragraphs 11-21 and elsewhere. Paragraph 44 contains the substantive racketeering charge under 18 U.S.C. § 1962(c), and while it lists the named defendants and 12 named conspirators, it also alleges that "others" were conspirators without identifying them. If the United States is alleging that "others," beyond those identified in Count 1, were racketeering conspirators as alleged in ¶ 44, then defendant Hess is entitled to know who these alleged co-conspirators are. The court finds that the identities of co-conspirators, if known to the government, lies within the "minimum amount of information necessary to permit the defendant to conduct his own investigation," United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985), and to enable the court and the parties to identify an out-of-court declarant as an alleged co-conspirator for purposes of admitting such statements against a defendant at trial under Federal Rule of Evidence 801(d)(2)(E). The government shall supply such identification of the alleged "other" conspirators in Count 1, ¶ 44, and the request is granted to this extent.

The court's ruling is the same with respect to the racketeering conspiracy charged in Count 2, ¶ 2. The request is granted and the identification of the "other" RICO co-conspirators shall be supplied.

The same applies to Count 3, ¶ 2; the request is granted and the identification of the "other" conspirators involved in extortion of money from WNYPD detainees in violation of 18 U.S.C. § 1951(a) shall be supplied.

Similarly, in Count 4, ¶ 2, the request is granted and the United States must identify any persons known to be other conspirators who are not already named in this charge of conspiracy to extort protection money from Boardwalk Amusements in violation of 18 U.S.C. § 1951(a).

The remaining counts against Hess do not allege that he is a co-conspirator (Counts 5-9 and 20-23) and his ...


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