On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-01-0178.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2010
Before Judges Graves and Sabatino.
On leave granted, we review the trial court's denial of defendant Rachel Marshall's motion to dismiss, as time-barred, the four discrete counts of the instant indictment that charge her individually with crimes. For reasons explained in this opinion, we reverse the trial court as to the three counts accusing defendant of substantive crimes, which are factually based on her alleged conduct outside of the five-year criminal statute of limitations, established at N.J.S.A. 2C:1-6b(1). However, with respect to the other count--charging defendant with participation in a conspiracy to engage in illegal racketeering activity--we reject her contention of untimeliness, but do so without prejudice to the trial judge's reconsideration of that contention after further development of the factual record. In particular, the trial court shall re-examine the timeliness of the racketeering conspiracy charges against defendant after relevant proofs are potentially adduced at trial concerning such issues as: the duration of the alleged conspiracy, the timing of overt acts by co-conspirators, and whether or not defendant withdrew, or attempted to withdraw, from the conspiracy more than five years before the indictment against her was issued.
Because defendant's appeal arose out of a ruling on a pretrial motion and we granted her request for interlocutory review, the factual record is limited. Even so, the record is adequate to resolve many of the issues before us.
Defendant is an attorney. At the times relevant to the indictment, she was admitted to the practice of law in New Jersey. She maintained offices in Newark and Jersey City, practicing under the business designation, The Marshall Law Practice, LLC.
The indictment consists of thirty-eight counts. It names sixteen individuals, including defendant, as participants in an alleged racketeering enterprise in violation of N.J.S.A. 2C:41-2d. As described in the indictment, the alleged enterprise "was engaged in distributing cocaine in an amount in excess of five ounces, contrary to N.J.S.A. 2C:35-5b(1), and the financial facilitation of criminal activity, in an amount in excess of $500,000, contrary to N.J.S.A. 2C:21-25."
The indictment contends that the co-conspirators laundered the proceeds of illegal drug distribution activities. They allegedly did so by, among other things, "converting cash to money orders in order to avoid federal and state reporting requirements that banks in the United States would require;" "depositing checks and money orders in a structured manner in an effort to avoid [f]ederal and [s]tate reporting requirements in the United States;" and "using nominees to purchase real properties, luxury vehicles, and other items in an eff[or]t to further conceal and disguise the true source of funds[.]" The indictment identifies the first-named defendant, Vicente Esteves, as "the leader of this narcotic[s] network."
Defendant's inclusion in the indictment stems from her alleged involvement in representing a buyer, defendant Leonardo Hernandez, an alleged nominee of Esteves, in the purchase of a residence in Manalapan, New Jersey. Defendant also apparently represented Hernandez in a separate transaction involving a liquor license. Hernandez eventually conveyed the Manalapan property to Esteves for $1.00.
With respect to the real estate transaction, the indictment essentially alleges that defendant facilitated the racketeering enterprise by structuring bank deposits into her attorney escrow account in sums under $10,000, so as to evade bank reporting requirements. Defendant is charged with failing to file the appropriate IRS Forms 8300 reporting currency transactions over $10,000. Defendant's wrongful alleged involvement in the alleged liquor license transaction for Hernandez is less clear from the face of the indictment.
Defendant is accused of crimes in four counts of the indictment. In Count One, she is charged, along with all of the other defendants, with conspiracy to engage in racketeering activities, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:41-2d. Count One alleges that defendants' pattern of racketeering activity, as defined in N.J.S.A. 2C:41-1d, "consisted of at least two instances of racketeering conduct, including the possession of controlled dangerous substances with intent to distribute, in violation of N.J.S.A. 2C:35-5, and/or the financial facilitation of criminal activity in violation of N.J.S.A. 2C:21-25 . . . [.]" Count One further alleges that the conspiracy "occurred on about divers dates between May 2, 2000 and May 30, 2008," in New Jersey and in numerous other states.
The three other counts of the indictment mentioning defendant charge her with substantive crimes. Those specific charges particularly arise from defendant's handling of the Manalapan real estate closing in 2001 and certain bank deposits made into her attorney escrow account ...