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THEODORE ROOSEVELT INN OF COURT
NASSAU COUNTY BAR ASSOCIATION
E-DISCOVERY AND SOCIAL MEDIA PROGRAM
NOVEMBER 3, 2011
TIMED AGENDA
1. Introductory Comments and Overview of Social Media - Jonathan I. Ezor 15 minutes
2. Introduction and Explanation of Skit - Robert Zausmer 5 minutes
3. Skit - Robert Zausmer, Janice Shea, Hon. Timothy Driscoll, 30 minutes
Touro Law Center Students: Jennifer Maldonado, Jesseka Green
4. Additional Material Regarding Social Media and Ethics – Jonathan I. Ezor 25 minutes
5. Q&A 20 minutes
6. Summing Up - Robert Zausmer, Jonathan I. Ezor 5 minutes
E-Discovery and
Social Media:
Social Media and Legal
Ethics
Prof. Jonathan I. Ezor
Touro Law Center
Theodore Roosevelt Inn of Court CLE Presentation
Nassau County Bar Association
November 3, 2011
Electronic
Communications Crucial
for All Businesspeople
• Multiple channels of electronic business
communication
– Text messages
– Web sites
– Videoconferencing
– Social media
– Others
• Can be one-way, two-way or multipoint
Common Challenges of Electronic
Business Communication
• Addressing and attachment errors
• Lack of nuance & tone
• Heightened expectations of responsiveness
• Informality
• Compliance
• Management
Attorneys’ Ethical
Obligations Add to
Challenges
• Rules of Professional Conduct impact on attorney
communication
• Lawyers must ensure compliance with those as
well as with good business practices
• Confidentiality biggest potential breach
“Adopting” A Listing
• Ok, but beware of issues like those
discussed in SC Ethics Advisory Op. 09-10
– The lawyer must monitor the “claimed” listing
to make sure all comments are in conformity
with the ethical rules, especially the rules for
attorney advertising writing of things like
testimonials and client endorsements that
create unjustified expectations, and
comparisons
• Be careful when linking to another site!
Recommendations
• LinkedIn allows parties to “recommend” the work
of a another participant. Issues?
• What about asking a client to recommend your
work?
Recommendations
• Be mindful of rules that place limitations on the
use and content of testimonials
• Model Rule 4.1 (duty of candor) prohibits the
making of a false statement of material fact to a
third person
– Beware of possible exaggerations regarding your
biography, experience, etc.
• What about asking a Judge to recommend you?
• What about announcing on Facebook or LinkedIn
that you just won a big jury trial or negotiated a
big deal?
Recommendations
• Depending on the rules in your
jurisdiction, this could require you to add
a disclaimer along the lines of “results will
vary in each case” or similar language
• A related issue, depending on the content
of your blogs or tweets
– Could they be governed by your state’s
restrictions on lawyer advertising?
– If so, what are your obligations?
Recommendations
• Texas: must file video postings seeking
clients with the Advertising Review
Committee
• Connecticut: sending LinkedIn invitation
that links to page describing law practice
is an advertisement subject to all relevant
rules
• LinkedIn allows users to provide
professional information under
“specialties.” Are there any issues with
that? [email protected]
Recommendations
• Depending on the content, it could run afoul of
bar rules, such as Illinois Rule 7.4(c) and NY Rule
7.4(a), that prohibit attorneys from claiming they
are “specialists” in a certain field
• Any other risks in posting information about your
matters?
Lying To A Tribunal
• Model Rule 3.3 prohibits attorneys from
making a false statement of fact to a
tribunal
• New connections via social media provide
“channels” for discovery of such
statements
Investigative Issues
• How is it being used?
– Employment background check?
– Information about opposing counsel? Judge?
– Information about parties? Witnesses?
Jurors?
• Front page article in The Washington Post
(May 29, 2010) about the increasing use of
subpoenas to obtain information from
social networking sites
Friending Issues
• In most jurisdictions, a judge and attorney who
appears before the judge can be “friends”; e.g.
New York:
Other States’ Ethics
Opinions on Friending
• Permissible:
– SC Op. 17-2009 (2009)
– Ky. Op. JE-119 (2010)
– Ohio Op. 2010-7 (Dec. 3, 2010)
• But NOT in Florida, Op. 2009-20 (2009)
– A judge cannot lend the prestige of her office
to advance the private interests of others or
convey an impression that some are in a
special position of influence [email protected]
Friending Issues
• Other friending issues with judges?
– In re Public Reprimand of Terry, Inquiry No. 08-
234 (Apr. 1, 2009)
– N.C. child custody and support case
• Judge friended defense counsel and saw information
posted by the defense counsel about the case
– Asking how he could prove the negative that his client
did not have an affair
– Noting that he had a wise judge (to which the judge
responded that he had two very good parents to
choose from)
– Asking how long the trial would last
Friending Issues
• Other issues with respect to whom an attorney
can friend?
– Opposing counsel?
– Parties to a dispute in which you are counsel?
– Witnesses in an active case
“Fake” User Profiles
• An attorney was reprimanded because he hid his
real identity and posed as a teacher and posted
on classmates.com that another teacher had
engaged in sex with students – In re Carpenter,
95 P.3d 203 (Or. 2004)
• Fake patient profiles in the healthcare space
Blogging And Other
Interactive Media
• LinkedIn allows users to post and answer
questions; bloggers and tweeters often address
legal issues; and sites like “Counsel.net” and
Quora allow users to seek answers to legal
questions
• This is a particularly risky area. Any issues?
Conflicts Of Interest
• With whom are you communicating?
– What if it is with a party with an adverse interest to a
client of the firm? (Model Rules 1.7, 4.2)
• Other issues?
Inadvertent Creation Of An
Attorney-Client
Relationship
• The discussion could lead to a situation where a
“prospective” client relationship is formed, which
has several consequences
• Must keep that information confidential (Model
Rule 1.18)
• Obtaining this confidential information could lead
to disqualification with respect to existing clients
who would have an interest in knowing that
information [email protected]
Inadvertent Creation Of An
Attorney-Client
Relationship
• An organization needs a well-considered policy to address
these issues, including:
– Use a disclaimer (“general informational purposes”), but how
do you do that with Tweets?
– Do not post confidential information
– Restrict recipients, followers, etc.
• Very little risk with passive review, but the more interactive,
the more dangerous
– Contact with represented party
– Do not discuss subject matter of your cases!
Inadvertent Creation Of An
Attorney-Client
Relationship
• Depending on the circumstances, this could run afoul of
rules prohibiting the unlicensed practice of law – or it could
inadvertently create an attorney-client relationship
• An organization needs a good policy to address these
issues – things to consider
– Keep it general
– Restrict recipients
– Use a disclaimer (“general informational purposes”)
– Do not post confidential information
Lawyers (and Law
Students) Tweeting Badly
Remember:
How and Why Not
• Twitter is public; remember that all, not just followers,
may see/search your tweets
• Jurors, clients, judges and colleagues can/will follow
you
• Many horror stories of accidental disclosures,
embarrassments; can impact on career and reputation
• Be a good example
Key Question is Why?
• Media sees Twitter as celebrity hangout, text message alternative (“Having eggs for breakfast”)
• True but only one side of story
• “Other” Twitter is tremendous business/knowledge resource
• Blogs are great model: links, opinions and discussions
• Ideal is to provide as well as receive value
Conclusion
• Beware of advertising issues
• Be careful with judicial relationships
• Avoid deception and act transparently
• Keep confidences confidential
• Establish and follow a policy for interactive
contact
Knowledge, Policies and
Procedures Must Work Together
To Minimize Risks
• Adequate funding of IT staff, including training
• Make sure attorneys and support staff given
proper education
• Set up systems with legal practice concerns in
mind
• Keep up with legal trade press, ethics opinions
QUESTIONS?
E-Discovery and
Social Media:
An Introduction
Prof. Jonathan I. Ezor
Touro Law Center
Theodore Roosevelt Inn of Court CLE Presentation
Nassau County Bar Association
November 3, 2011
Social Networking Not a
New Idea
• Internet has long been home to communities
• Linked by common interests, demographics,
topics
• Usenet, IRC, chat rooms & message boards
• Anonymity/pseudonymity a factor
New Services for New
Purposes
• Growing number of social media services/sites
• Offer multimedia, commerce, networking
• Accessible via multiple devices/programs
• Issues of privacy & ethics
• Major 3: Facebook, LinkedIn & Twitter
Facebook: Multifaceted &
Multimedia
• Started by/for college students
• Now literally global
• Statistics
(http://www.facebook.com/press/info.php?statistics):
– More than 750 million active users
– 50% of our active users log on to Facebook in any given
day
– Average user has 130 friends
– People spend over 700 billion minutes per month on
Ways to Use Facebook
• Updates: “What’s On Your Mind?”
• Comment on others’ “walls”
• Photos/video posts
• Links
• “Like” other users/pages
• Chat
• Games & applications
Challenges of Facebook
• Tone is often personal rather/in addition to
professional
• Broad information sharing and searchability
• Privacy controls confusing, often changed
• Others can “tag” you
LinkedIn:
Professional Super-
Directory
• LinkedIn focused on professional rather than
personal use
• Posted profiles, networks of connections
• Can leverage one’s connections’ connections to
reach new people
• Search by company, position, etc.
• Also offers jobs listings & groups
Ways to Use LinkedIn
• Self-Promotion
• Business intelligence
• Client development
• Benchmarking
• Job searches
Challenges of LinkedIn
• Ethical questions: “Specialties”
• Privacy issues
• Only as good as extended network
• Some features require fee
What is Twitter?
• Best described as a service
• http://twitter.com is the site
• Twitter’s service allows other software to connect to it
• Twitter started in March 2006, company founded in 2007
• Millions of users throughout world
E-Discovery & Social
Media:
A Simulation
• Dramatis Personae:
– Hon. Timothy Driscoll
– Robert Zausmer, Esq., Meyer Suozzi
– Janice Whelan Shea, Esq., Meyer Suozzi
– Jennifer Maldonado, Touro Law Center student
– Jesseka Green, Touro Law Center student
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK COMMITTEE ON PROFESSIONAL ETHICS
FORMAL OPINION 2010-2
OBTAINING EVIDENCE FROM SOCIAL NETWORKING WEBSITES
TOPIC: Lawyers obtaining information from social networking websites.
DIGEST: A lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent.
RULES: 4.1(a), 5.3(c)(1), 8.4(a) & (c)
QUESTION: May a lawyer, either directly or through an agent, contact an unrepresented person through a social networking website and request permission to access her web page to obtain information for use in litigation?
OPINION
Lawyers increasingly have turned to social networking sites, such as Facebook, Twitter and YouTube, as potential sources of evidence for use in litigation.1 In light of the information regularly found on these sites, it is not difficult to envision a matrimonial matter in which allegations of infidelity may be substantiated in whole or part by postings on a Facebook wall.2 Nor is it hard to imagine a copyright infringement case that turns largely on the postings of certain allegedly pirated videos on YouTube. The potential availability of helpful evidence on these internet-based sources makes them an attractive new weapon in a lawyer's arsenal of formal and informal discovery devices.3 The prevalence of these and other social networking websites, and the potential 1 Social networks are internet-based communities that individuals use to communicate with each other and view and exchange information, including photographs, digital recordings and files. Users create a profile page with personal information that other users may access online. Users may establish the level of privacy they wish to employ and may limit those who view their profile page to “friends” – those who have specifically sent a computerized request to view their profile page which the user has accepted. Examples of currently popular social networks include Facebook, Twitter, MySpace and LinkedIn. 2 See, e.g., Stephanie Chen, Divorce attorneys catching cheaters on Facebook, June 1, 2010, http://www.cnn.com/2010/TECH/social.media/06/01/facebook.divorce.lawyers/index.html?hpt=C2. 3 See, e.g., Bass ex rel. Bass v. Miss Porter’s School, No. 3:08cv01807, 2009 WL 3724968, at *1-2 (D. Conn. Oct. 27, 2009).
benefits of accessing them to obtain evidence, present ethical challenges for attorneys navigating these virtual worlds. In this opinion, we address the narrow question of whether a lawyer, acting either alone or through an agent such as a private investigator, may resort to trickery via the internet to gain access to an otherwise secure social networking page and the potentially helpful information it holds. In particular, we focus on an attorney's direct or indirect use of affirmatively “deceptive” behavior to "friend" potential witnesses. We do so in light of, among other things, the Court of Appeals’ oft-cited policy in favor of informal discovery. See, e.g., Niesig v. Team I, 76 N.Y.2d 363, 372, 559 N.Y.S.2d 493, 497 (1990) (“[T]he Appellate Division’s blanket rule closes off avenues of informal discovery of information that may serve both the litigants and the entire justice system by uncovering relevant facts, thus promoting the expeditious resolution of disputes.”); Muriel, Siebert & Co. v. Intuit Inc., 8 N.Y.3d 506, 511, 836 N.Y.S.2d 527, 530 (2007) (“the importance of informal discovery underlies our holding here”). It would be inconsistent with this policy to flatly prohibit lawyers from engaging in any and all contact with users of social networking sites. Consistent with the policy, we conclude that an attorney or her agent may use her real name and profile to send a “friend request” to obtain information from an unrepresented person's social networking website without also disclosing the reasons for making the request.4 While there are ethical boundaries to such “friending,” in our view they are not crossed when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements. See, e.g., id., 8 N.Y.3d at 512, 836 N.Y.S.2d at 530 (“Counsel must still conform to all applicable ethical standards when conducting such [ex parte] interviews [with opposing party’s former employee].” (citations omitted)). The potential ethical pitfalls associated with social networking sites arise in part from the informality of communications on the web. In that connection, in seeking access to an individual's personal information, it may be easier to deceive an individual in the virtual world than in the real world. For example, if a stranger made an unsolicited face-to-face request to a potential witness for permission to enter the witness’s home, view the witness's photographs and video files, learn the witness’s relationship status, religious views and date of birth, and review the witness’s personal diary, the witness almost certainly would slam the door shut and perhaps even call the police. In contrast, in the “virtual” world, the same stranger is more likely to be able to gain admission to an individual’s personal webpage and have unfettered access to most, if not all, of the foregoing information. Using publicly-available information, an attorney or her investigator could easily create a false Facebook profile listing schools, hobbies,
4 The communications of a lawyer and her agents with parties known to be represented by counsel are governed by Rule 4.2, which prohibits such communications unless the prior consent of the party’s lawyer is obtained or the conduct is authorized by law. N.Y. Prof’l Conduct R. 4.2. The term “party” is generally interpreted broadly to include “represented witnesses, potential witnesses and others with an interest or right at stake, although they are not nominal parties.” N.Y. State 735 (2001). Cf. N.Y. State 843 (2010)(lawyers may access public pages of social networking websites maintained by any person, including represented parties).
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interests, or other background information likely to be of interest to a targeted witness. After creating the profile, the attorney or investigator could use it to make a “friend request” falsely portraying the attorney or investigator as the witness's long lost classmate, prospective employer, or friend of a friend. Many casual social network users might accept such a “friend request” or even one less tailored to the background and interests of the witness. Similarly, an investigator could e-mail a YouTube account holder, falsely touting a recent digital posting of potential interest as a hook to ask to subscribe to the account holder’s “channel” and view all of her digital postings. By making the “friend request” or a request for access to a YouTube “channel,” the investigator could obtain instant access to everything the user has posted and will post in the future. In each of these instances, the “virtual” inquiries likely have a much greater chance of success than if the attorney or investigator made them in person and faced the prospect of follow-up questions regarding her identity and intentions. The protocol on-line, however, is more limited both in substance and in practice. Despite the common sense admonition not to “open the door” to strangers, social networking users often do just that with a click of the mouse. Under the New York Rules of Professional Conduct (the “Rules”), an attorney and those in her employ are prohibited from engaging in this type of conduct. The applicable restrictions are found in Rules 4.1 and 8.4(c). The latter provides that “[a] lawyer or law firm shall not . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” N.Y. Prof’l Conduct R. 8.4(c) (2010). And Rule 4.1 states that “[i]n the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.” Id. 4.1. We believe these Rules are violated whenever an attorney “friends” an individual under false pretenses to obtain evidence from a social networking website. For purposes of this analysis, it does not matter whether the lawyer employs an agent, such as an investigator, to engage in the ruse. As provided by Rule 8.4(a), “[a] lawyer or law firm shall not . . . violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” Id. 8.4(a). Consequently, absent some exception to the Rules, a lawyer’s investigator or other agent also may not use deception to obtain information from the user of a social networking website. See id. Rule 5.3(b)(1) (“A lawyer shall be responsible for conduct of a nonlawyer employed or retained by or associated with the lawyer that would be a violation of these Rules if engaged in by a lawyer, if . . . the lawyer orders or directs the specific conduct or, with knowledge of the specific conduct, ratifies it . . . .”). We are aware of ethics opinions that find that deception may be permissible in rare instances when it appears that no other option is available to obtain key evidence. See N.Y. County 737 (2007) (requiring, for use of dissemblance, that “the evidence sought is not reasonably and readily obtainable through other lawful means”); see also ABCNY Formal Op. 2003-02 (justifying limited use of undisclosed taping of telephone conversations to achieve a greater societal good where evidence would not otherwise be available if lawyer disclosed taping). Whatever the utility and ethical grounding of these limited exceptions -- a question we do not address here -- they are, at least in
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most situations, inapplicable to social networking websites. Because non-deceptive means of communication ordinarily are available to obtain information on a social networking page -- through ordinary discovery of the targeted individual or of the social networking sites themselves -- trickery cannot be justified as a necessary last resort.5 For this reason we conclude that lawyers may not use or cause others to use deception in this context. Rather than engage in “trickery,” lawyers can -- and should -- seek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful “friending” of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual’s social networking page. Given the availability of these legitimate discovery methods, there is and can be no justification for permitting the use of deception to obtain the information from a witness on-line.6 Accordingly, a lawyer may not use deception to access information from a social networking webpage. Rather, a lawyer should rely on the informal and formal discovery procedures sanctioned by the ethical rules and case law to obtain relevant evidence. September 2010
5 Although a question of law beyond the scope of our reach, the Stored Communications Act, 18 U.S.C. § 2701(a)(1) et seq. and the Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq., among others, raise questions as to whether certain information is discoverable directly from third-party service providers such as Facebook. Counsel, of course, must ensure that her contemplated discovery comports with applicable law. 6 While we recognize the importance of informal discovery, we believe a lawyer or her agent crosses an ethical line when she falsely identifies herself in a “friend request”. See, e.g., Niesig v. Team I, 76 N.Y.2d 363, 376, 559 N.Y.S.2d 493, 499 (1990) (permitting ex parte communications with certain employees); Muriel Siebert, 8 N.Y.3d at 511, 836 N.Y.S.2d at 530 (“[T]he importance of informal discovery underlie[s] our holding here that, so long as measures are taken to steer clear of privileged or confidential information, adversary counsel may conduct ex parte interviews of an opposing party’s former employee.”).
NEW YORK STATE BAR ASSOCIATIONCommittee on Professional Ethics
Opinion 843 (9/10/10)
Topic: Lawyer's access to public pages of another party's social networking site for thepurpose of gathering information for client in pending litigation.
Digest: A lawyer representing a client in pending litigation may access the public pages ofanother party's social networking website (such as Facebook or MySpace) for the purpose ofobtaining possible impeachment material for use in the litigation.
Rules: 4.1; 4.2; 4.3; 5.3(b)(1); 8.4(c)
QUESTION
1. May a lawyer view and access the Facebook or MySpace pages of a party other than his orher client in pending litigation in order to secure information about that party for use in the lawsuit,including impeachment material, if the lawyer does not “friend” the party and instead relies onpublic pages posted by the party that are accessible to all members in the network?
OPINION
2. Social networking services such as Facebook and MySpace allow users to create an onlineprofile that may be accessed by other network members. Facebook and MySpace are examples ofexternal social networks that are available to all web users. An external social network may begeneric (like MySpace and Facebook) or may be formed around a specific profession or area ofinterest. Users are able to upload pictures and create profiles of themselves. Users may also linkwith other users, which is called “friending.” Typically, these social networks have privacy controlsthat allow users to choose who can view their profiles or contact them; both users must confirm thatthey wish to “friend” before they are linked and can view one another’s profiles. However, somesocial networking sites and/or users do not require pre-approval to gain access to member profiles.
3. The question posed here has not been addressed previously by an ethics committeeinterpreting New York’s Rules of Professional Conduct (the "Rules") or the former New YorkLawyers Code of Professional Responsibility, but some guidance is available from outside NewYork. The Philadelphia Bar Association’s Professional Guidance Committee recently analyzed thepropriety of “friending” an unrepresented adverse witness in a pending lawsuit to obtain potentialimpeachment material. See Philadelphia Bar Op. 2009-02 (March 2009). In that opinion, a lawyerasked whether she could cause a third party to access the Facebook and MySpace pages maintainedby a witness to obtain information that might be useful for impeaching the witness at trial. Thewitness’s Facebook and MySpace pages were not generally accessible to the public, but rather wereaccessible only with the witness’s permission (i.e., only when the witness allowed someone to“friend” her). The inquiring lawyer proposed to have the third party “friend” the witness to accessthe witness’s Facebook and MySpace accounts and provide truthful information about the thirdparty, but conceal the association with the lawyer and the real purpose behind “friending” thewitness (obtaining potential impeachment material).
4. The Philadelphia Professional Guidance Committee, applying the Pennsylvania Rules ofProfessional Conduct, concluded that the inquiring lawyer could not ethically engage in theproposed conduct. The lawyer’s intention to have a third party “friend” the unrepresented witnessimplicated Pennsylvania Rule 8.4(c) (which, like New York’s Rule 8.4(c), prohibits a lawyer fromengaging in conduct involving “dishonesty, fraud, deceit or misrepresentation”); Pennsylvania Rule
5.3(c)(1) (which, like New York’s Rule 5.3(b)(1), holds a lawyer responsible for the conduct of anonlawyer employed by the lawyer if the lawyer directs, or with knowledge ratifies, conduct thatwould violate the Rules if engaged in by the lawyer); and Pennsylvania Rule 4.1 (which, similar toNew York’s Rule 4.1, prohibits a lawyer from making a false statement of fact or law to a thirdperson). Specifically, the Philadelphia Committee determined that the proposed “friending” by athird party would constitute deception in violation of Rules 8.4 and 4.1, and would constitute asupervisory violation under Rule 5.3 because the third party would omit a material fact (i.e., that thethird party would be seeking access to the witness’s social networking pages solely to obtaininformation for the lawyer to use in the pending lawsuit).
5. Here, in contrast, the Facebook and MySpace sites the lawyer wishes to view are accessibleto all members of the network. New York’s Rule 8.4 would not be implicated because the lawyer isnot engaging in deception by accessing a public website that is available to anyone in the network,provided that the lawyer does not employ deception in any other way (including, for example,employing deception to become a member of the network). Obtaining information about a partyavailable in the Facebook or MySpace profile is similar to obtaining information that is available inpublicly accessible online or print media, or through a subscription research service such as Nexis orFactiva, and that is plainly permitted.[1] Accordingly, we conclude that the lawyer may ethicallyview and access the Facebook and MySpace profiles of a party other than the lawyer’s client inlitigation as long as the party’s profile is available to all members in the network and the lawyerneither “friends” the other party nor directs someone else to do so.
CONCLUSION
6. A lawyer who represents a client in a pending litigation, and who has access to the Facebookor MySpace network used by another party in litigation, may access and review the public socialnetwork pages of that party to search for potential impeachment material. As long as the lawyerdoes not "friend" the other party or direct a third person to do so, accessing the social network pagesof the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1(prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyersfor unethical conduct by nonlawyers acting at their direction).
(76-09)
[1] One of several key distinctions between the scenario discussed in the Philadelphia opinion and this opinion is that thePhiladelphia opinion concerned an unrepresented witness, whereas our opinion concerns a party – and this party may or may notbe represented by counsel in the litigation. If a lawyer attempts to “friend” a represented party in a pending litigation, then thelawyer’s conduct is governed by Rule 4.2 (the “no-contact” rule), which prohibits a lawyer from communicating with therepresented party about the subject of the representation absent prior consent from the represented party’s lawyer. If the lawyerattempts to “friend” an unrepresented party, then the lawyer’s conduct is governed by Rule 4.3, which prohibits a lawyer fromstating or implying that he or she is disinterested, requires the lawyer to correct any misunderstanding as to the lawyer's role, andprohibits the lawyer from giving legal advice other than the advice to secure counsel if the other party's interests are likely toconflict with those of the lawyer's client. Our opinion does not address these scenarios.
United States District Court,S.D. New York.
GIDATEX, S.r.L., Plaintiff,v.
CAMPANIELLO IMPORTS, LTD., CampanielloImports of Florida, Ltd., and Campaniello Enter-
prises, Inc., Defendants.
No. 97 Civ. 9518(SAS).Sept. 20, 1999.
Furniture manufacturer sued terminated distrib-utor for trademark infringement. On defendant'smotion to exclude evidence, the District Court,Scheindlin, J., held that plaintiff's use of private in-vestigators to secretly tape conversations with de-fendant's salespeople did not violate New York dis-ciplinary rules against attorney misrepresentationsand contact with represented parties.
Motion denied.
West Headnotes
[1] Attorney and Client 45 32(12)
45 Attorney and Client45I The Office of Attorney
45I(B) Privileges, Disabilities, and Liabilities45k32 Regulation of Professional Con-
duct, in General45k32(12) k. Relations, dealings, or
communications with witness, juror, judge, or op-ponent. Most Cited Cases
Furniture manufacturer's counsel did not viol-ate New York rule against communicating with rep-resented parties by having private investigatorssecretly tape conversations with terminated distrib-utor's salespeople, in effort to gain evidence intrademark infringement suit; investigators did notintrude upon distributor's attorney-client privilegeor attempt to use superior legal knowledge to take
advantage of salespeople. N.Y.Ct.Rules, §1200.35(a)(1) [DR 7–104, subd. A, par. 1].
[2] Attorney and Client 45 32(14)
45 Attorney and Client45I The Office of Attorney
45I(B) Privileges, Disabilities, and Liabilities45k32 Regulation of Professional Con-
duct, in General45k32(14) k. Candor, and disclosure to
opponent or court. Most Cited CasesFurniture manufacturer's counsel did not viol-
ate New York rule against attorney misrepresenta-tions by having private investigators secretly tapeconversations with terminated distributor'ssalespeople, in effort to gain evidence in trademarkinfringement suit; hiring of investigators to pose asconsumers was accepted investigative technique,not misrepresentation. N.Y.Ct.Rules, §1200.3(a)(4)[DR 1–102, subd. A, par. 4].
[3] Antitrust and Trade Regulation 29T 256
29T Antitrust and Trade Regulation29TIII Statutory Unfair Trade Practices and
Consumer Protection29TIII(D) Particular Relationships
29Tk254 Professionals29Tk256 k. Legal professionals; attor-
ney and client. Most Cited Cases(Formerly 382k862.1 Trade Regulation)Ethical rules governing attorney misrepresenta-
tions and contact with represented parties shouldnot govern situations where party is legitimately in-vestigating potential unfair business practices byuse of undercover agent posing as member of thegeneral public engaging in ordinary business trans-actions with target.
[4] Evidence 157 154
157 Evidence157IV Admissibility in General
157IV(E) Competency
FOR EDUCATIONAL USE ONLY Page 182 F.Supp.2d 119, 53 U.S.P.Q.2d 1008(Cite as: 82 F.Supp.2d 119)
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
157k154 k. Evidence wrongfully ob-tained. Most Cited Cases
Court is not obligated to exclude evidence evenif it finds that counsel obtained evidence by violat-ing ethical rules.
*119 Thomas G. Bailey, Jr., Frank Morreale, Whit-man, Breed, Abbott & Morgan, L.L.P., New York,NY, for Plaintiff.
Nathan Lewin, Tim Preso, Miller, Cassidy, Larroca& Lewin, L.L.P., Washington, DC, for Defendants.
OPINION AND ORDERSCHEINDLIN, District Judge.
Defendants, Campaniello Imports, Ltd., Cam-paniello Imports of Florida, Ltd. and CampanielloEnterprises, Inc. (collectively “Campaniello”),move for an order in limine precluding plaintiffGidatex, S.r.L. (“Gidatex”) from offering the testi-mony and reports of Gidatex's investigators andthree secretly-obtained tape recordings of conversa-tions between Gidatex's undercover investigatorsand defendants' employees. Campaniello claimsthat Gidatex's investigators used their “superior leg-al knowledge” to trick and manipulate defendants'sales clerks into making statements to support Gid-atex's claims under the Lanham Act. Campanielloalleges that plaintiff's counsel violated the Codes ofProfessional Responsibility established by theAmerican Bar Association (“ABA”) and the NewYork State Bar Association (“NYSBA”) by causingthe investigators to communicate*120 with a partyknown to be represented by counsel. Accordingly,relying on United States v. Hammad, 858 F.2d 834,837 (2d Cir.1988), Campaniello urges that the evid-ence be precluded at trial as a remedy for the al-leged violation of these ethical rules.
Campaniello's motion is denied for severalreasons. First, I am not convinced that the ethicalrules cited by defendants are applicable to the situ-ation at hand. Second, even assuming these rulesare applicable, Campaniello has failed to meet itsburden of demonstrating that Gidatex's counsel vi-
olated them. Finally, even if Campaniello couldshow an ethical violation by plaintiff's counsel, pre-clusion of evidence at trial is not the proper rem-edy.
I. BackgroundGidatex, the owner of the federally registered
trademark “Saporiti Italia” for use on or in connec-tion with furniture and accessories, filed this suit onDecember 29, 1997, against Campaniello allegingviolations of the Lanham Act, 15 U.S.C. §§ 1114(1)and 1125(a), common law trademark infringementand common law unfair competition under NewYork State law.FN1 For over twenty years, Cam-paniello acted as a licensed sales agent of SaporitiItalia furniture in the United States. This litigationarose out of Campaniello's continued use of theSaporiti Italia trademark after Gidatex terminatedCampaniello's agency in 1995. Campaniello main-tains that it is entitled to use the mark in connectionwith its sale of genuine Saporiti Italia goods re-maining in Campaniello's stock at the time it wasterminated.
FN1. The Complaint was served on Febru-ary 23, 1998.
At trial, Gidatex seeks to prove that Campani-ello engaged in “bait and switch” tactics by luringcustomers into its showrooms and warehouse withsigns and advertisements bearing the Saporiti Italiatrademark, and then selling customers furniture pro-duced by other manufacturers. To prove such“palming-off” or “passing-off”, Gidatex's counsel,Thomas Bailey, of Whitman, Breed, Abbott & Mor-gan, hired two private investigators, MichaelKessler and Susan Peterson, to pose as interior de-signers visiting Campaniello's showrooms andwarehouse and secretly tape-record conversationswith defendants' salespeople.
A. Investigators' Visits1. December 12, 1997
On December 12, 1997, Susan Peterson visitedCampaniello's showroom on 57th Street in NewYork City. See Letter of Susan Peterson to Thomas
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Bailey, Counsel for Gidatex, dated December 22,1997, attached to Plaintiff's Memorandum of Lawin Opposition to Defendants' Motion in Limine(“Pl.'s Mem.”), Ex. 3. Peterson observed that aSaporiti Italia sign was the only sign on Campani-ello's facade. See id. Once inside the showroom,Peterson noticed a closet full of large red bindersbearing the Saporiti Italia name and what appearedto be binders stuffed with pamphlets also bearingthe Saporiti name. The transcript from Peterson'srecorded conversation with Campaniello saleswo-man Marya Samawi indicates that Peterson ex-pressed an interest in Saporiti Italia furniture andasked to view a Saporiti Italia catalogue. See Tran-script, December 12, 1997, Pl.'s Mem., Ex. 3A.Samawi showed Peterson several pieces of furniturein the showroom and gave her several catalogues,including those by manufacturers Il Loft, Reflexand Rossi di Albizzate.
2. December 15, 1997On December 15, 1997, Peterson again visited
Campaniello's 57th Street showroom and taped herconversation with an unidentified female salesclerk. After Peterson expressed an interest in Sapor-iti Italia furniture, the sales clerk informed her thatthe company “doesn't exist anymore ... it dis-solved.” Transcript, December 15, 1997, Pl.'sMem., Ex. 3B at 3. A portion of their conversationfollows:
*121 Investigator: So that company doesn't existanymore then?
Sales Clerk: No.
Investigator: Okay. So would I be getting [ ] thesame quality?
Sales Clerk: Oh absolutely. Absolutely.
Investigator: Would I be getting the same, Imean, if I guess the same workmanship?
Sales Clerk: Absolutely.
Investigator: What happened, they changed or
something?
Sales Clerk: Well, they had a fight. The twobrothers I guess.
Investigator: Okay. So where would I be able toget the Saporiti then?
Sales Clerk: Well there is one brother. SaporitiItalia as it existed doesn't exist anymore.
Investigator: So, there is no place to get their fur-niture?
Sales Clerk: As far as I know.
Id. at 4–5.
3. January 20, 1998After filing its Complaint on December 29,
1997, Gidatex sent Peterson back to Campaniello'sNew York showroom for a third time on January20, 1998. See Letter of Susan Peterson to ThomasBailey, dated February 4, 1998, Pl.'s Mem., Ex. 4.Peterson again taped a conversation with MaryaSamawi, who told Peterson that the Saporiti Italianame “is no longer there.... We have very fewSaporiti items in the store.... These two brother[s]that were working together, but they split. And nowthe second brother is doing this other line. But it isstill Saporiti.... The quality and everything is stillthe same.” Transcript, January 20, 1998, Pl.'sMem., Ex. 4 at 2–3.
4. March 27, 1998Michael Kessler and Susan Peterson visited the
Campaniello warehouse in Long Island City, NewYork on March 27, 1998. See Letter of SusanPeterson to Thomas Bailey, dated March 30, 1998,Pl.'s Mem., Ex. 5. The investigators did not recordany conversations during this visit. However, theyobserved two Campaniello delivery trucks and afork-lift displaying the Saporiti Italia name. Theyalso observed Saporiti Italia furniture on sale at thewarehouse.
B. Disciplinary Rule 7–104(A)(1)
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ABA and NYSBA Disciplinary Rule (“DR”)7–104(A)(1) provides:
During the course of the representation of a clienta lawyer shall not ... communicate or cause an-other to communicate on the subject of the rep-resentation with a party the lawyer knows to berepresented by a lawyer in that matter unless thelawyer has the prior consent of the lawyer repres-enting such other party or is authorized by law todo so.
N.Y. Comp.Codes R. & Regs. tit. 22, §1200.35.
C. Disciplinary Rule 1–102(A)(4)Disciplinary Rule 1–102(A)(4) prohibits a law-
yer from “circumvent[ing] a disciplinary rulethrough actions of another” and “engag[ing] in con-duct involving dishonesty, fraud, deceit or misrep-resentation.” N.Y. Comp.Codes R. & Regs. tit. 22,§ 1200.3(2) & (4). Although it is not a crime inNew York State for a person to record his or herconversation with another person without the know-ledge or consent of the person being recorded, seeMcKinney's Penal Law § 250.00, “there is authorityfor the proposition that it is unethical for an attor-ney to do so, since such conduct is considered to in-volve deceit or misrepresentation.” Miano v. AC &R Advert. Inc., 148 F.R.D. 68, 76 (S.D.N.Y.1993)(denying defendant's motion pursuant to DR7–104(A)(1) and DR 1–102(A)(4) to precludeplaintiffs from offering tapes in evidence), adoptedand approved, 834 F.Supp. 632 (S.D.N.Y.1993).
*122 II. Applicability of the Disciplinary Rulesto These Recordings and Conversations
A. Preserving the Attorney/Client Relationship
[1] The New York State Bar Association Com-mittee on Professional Ethics has stated that thepurpose of DR 7–104(A)(1) “is to preserve theproper functioning of the attorney-client relation-ship”. See Opinion of N.Y. St. Bar Ass'n., Comm.Prof. Eth. 607 (1990) at 1. Under the circumstances
presented here, Gidatex's investigators did not in-trude upon Campaniello's attorney-client privilegeor attempt to use superior legal knowledge to takeadvantage of Campaniello's salespeople. Neither in-vestigator was an attorney and neither attempted tointerview party witnesses.
The investigators posed as interior design-ers—typical Campaniello customers. Because theCampaniello showrooms and warehouse are open to“the trade”, any interior designer is welcome toenter the showroom or warehouse and express aninterest in Saporiti Italia furniture. While it mighthave been annoying and time-consuming for Cam-paniello sales clerks to talk with phony customerswho had no interest in buying furniture, the invest-igators did nothing more than observe and recordthe manner in which Campaniello employees con-ducted routine business. Having operated a fur-niture business for over twenty years, surely Cam-paniello had come to expect that customers wouldenter the Campaniello showroom during businesshours, engage in conversation with sales clerks,make inquiries regarding various brands of fur-niture, and leave without making a purchase. Therewas no risk that Campaniello's low level employeeswould disclose, or were even aware of, any inform-ation protected by the attorney/client privilege. SeeMiano, 148 F.R.D. at 90 n. 23 (noting that therewas no evidence that employees were “taken ad-vantage of” or that “the information [ ] securedbreached attorney-client communications”).
[2] As for DR 1–102(A)(4)'s prohibitionagainst attorney “misrepresentations”, hiring in-vestigators to pose as consumers is an accepted in-vestigative technique, not a misrepresentation. Thepolicy interests behind forbidding misrepresenta-tions by attorneys are to protect parties from beingtricked into making statements in the absence oftheir counsel and to protect clients from misrepres-entations by their own attorneys.FN2 The presenceof investigators posing as interior decorators didnot cause the sales clerks to make any statementsthey otherwise would not have made. There is no
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evidence to indicate that the sales clerks weretricked or duped by the investigators' simple ques-tions such as “is the quality the same?” or “so thereis no place to get their furniture?”
FN2. For example, many cases involvingthe rule against “dishonesty, fraud, deceit,or misrepresentation” involve the fraudu-lent over-billing of clients, see, e.g., Mat-ter of Kroll, 212 A.D.2d 220, 630N.Y.S.2d 512 (1st Dep't 1995), thecomingling of attorney and client funds,see, e.g., Matter of Powers, 197 A.D.2d57, 611 N.Y.S.2d 728 (4th Dep't 1994),and other criminal activity, such as moneylaundering, see, e.g., Matter of Backal, 208A.D.2d 176, 622 N.Y.S.2d 699 (1st Dep't1995).
B. Policy Interests in Trademark and UnfairCompetition Law
[3] These ethical rules should not govern situ-ations where a party is legitimately investigatingpotential unfair business practices by use of an un-dercover posing as a member of the general publicengaging in ordinary business transactions with thetarget. To prevent this use of investigators mightpermit targets to freely engage in unfair businesspractices which are harmful to both trademark own-ers and consumers in general. Furthermore, exclud-ing evidence obtained by such investigators wouldnot promote the purpose of the rule, namely preser-vation of the attorney/client privilege.
*123 In this case, Gidatex had a right to de-termine whether Campaniello had complied withGidatex's “cease and desist” letter dated October16, 1997. The evidence gathered by the investigat-ors demonstrates that defendants' employees in-formed consumers that plaintiff's business nolonger exists and that the other brands of furnituresold by Campaniello are “the same” as the SaporitiItalia brand. Neither of these statements are true.Courts have recognized the relevance of such evid-ence. See, e.g., Niesig v. Team I, 76 N.Y.2d 363,373, 559 N.Y.S.2d 493, 558 N.E.2d 1030 (1990)
(rejecting suggestion of bright-line rule barring op-posing counsel from conducting ex parte interviewsof any employee of represented corporation becauseprohibition would compromise “the values servedby permitting access to relevant information.”). Forexample, in Apple Corps Ltd., MPL v. Int'l Collect-ors Soc., 15 F.Supp.2d 456 (D.N.J.1998), the courtcondoned a secret investigation conducted by copy-right owners of defendant's business activity to de-termine defendant's compliance with the terms of aconsent decree. In Apple, plaintiffs had sued to en-join a marketer and distributor of collectors' stampsfrom selling postage stamps featuring copyrightedimages of The Beatles. A consent order enjoinedsome stamp sales, but allowed defendants to sellcertain stamps featuring John Lennon's name andimage pursuant to a licensing agreement. See id. at460. To test defendant's compliance with the con-sent order, plaintiffs' counsel instructed her secret-ary, her co-counsel's stepson, an associate's hus-band, and private investigators to telephone the de-fendant posing as interested consumers and attemptto order the enjoined stamps. Id. at 462–464.Plaintiffs' counsel telephoned defendant herself us-ing a false name and provided the other callers witha script describing specific stamps.
Upon discovering that the defendant was viol-ating the consent order, plaintiffs filed a motion forcontempt. After granting plaintiffs' motion, the dis-trict court considered and rejected defendant'scross-motion for sanctions against plaintiffs' coun-sel for violating New Jersey's attorney disciplinaryrules forbidding attorneys from engaging in deceit-ful conduct and from communicating with partiesrepresented by counsel. Id. at 472. Noting that theethical rules were “intended to ‘prevent situationsin which a represented party may be taken advant-age of by adverse counsel,’ ” id. at 474 (quotingNiesig, 76 N.Y.2d at 370, 559 N.Y.S.2d 493, 558N.E.2d 1030), the court found the rules inapplicableto counsel's conduct. “The only misrepresentationsmade were as to the callers' purpose in calling andtheir identities. They posed as normal consumers.”Apple, 15 F.Supp.2d at 474. “If Plaintiffs' investig-
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ators had disclosed their identity and the fact thatthey were calling on behalf of Plaintiffs, such an in-quiry would have been useless to determine[defendant's] day-to-day practices in the ordinarycourse of business.” Id. at 476.
The court further noted that this type of con-duct, used frequently by undercover agents in crim-inal cases and by discrimination testers in civilcases, has not been condemned on ethical groundsby courts, ethics committees, or grievance commit-tees. Id. at 475; see also David B. Isbell & Lucanto-nio N. Salvi, Ethical Responsibilities of Lawyersfor Deception by Undercover Investigators andDiscrimination Testers: An Analysis of the Provi-sions Prohibiting Misrepresentations Under theModel Rules of Professional Conduct, 8 Geo. J.Legal Ethics 791, 804 (Summer 1995). Indeed,“[t]he prevailing understanding in the legal profes-sion is that a public or private lawyer's use of anundercover investigator to detect ongoing violationsof the law is not ethically proscribed, especiallywhere it would be difficult to discover the viola-tions by other means.” Apple, 15 F.Supp.2d at 475(citing the Declaration of Professor Bruce A.Green, Co–Chair, ABA Litigation Section Commit-tee on Ethics and Professionalism and Vice– *124Chair of the NYSBA Committee on ProfessionalEthics).
In the instant case, enforcement of the trade-mark laws to prevent consumer confusion is an im-portant policy objective, and undercover investigat-ors provide an effective enforcement mechanismfor detecting and proving anti-competitive activitywhich might otherwise escape discovery or proof. Itwould be difficult, if not impossible, to prove a the-ory of “palming off” without the ability to recordoral sales representations made to consumers. Thus,reliable reports from investigators posing as con-sumers are frequently recognized as probative andadmissible evidence in trademark disputes. See,e.g., Nikon, Inc. v. Ikon Corp., 803 F.Supp. 910,921–922 (S.D.N.Y.1992), aff'd, 987 F.2d 91, 95–96(2d Cir.1993) (evidence of investigators' interviews
with non-party sales clerks admitted to show“passing off” and actual confusion among con-sumers between “Ikon” and Nikon cameras); seealso Louis Vuitton S.A. v. Spencer Handbags Corp.,597 F.Supp. 1186, 1188 (E.D.N.Y.1984), aff'd, 765F.2d 966 (2d Cir.1985) (affirming permanent in-junction issued after considering secretly recordedvideotape of defendants' principals meeting withundercover investigator hired by plaintiff to discusscounterfeiting scheme); Union Carbide v.Ever–Ready, Inc., 531 F.2d 366, 384 (7th Cir.1976)(overturning district court's exclusion of testimonyin trademark infringement trial of undercover“shopper” sent by plaintiff into department store topurchase defendant's goods).
III. Campaniello Fails to Meet Its Burden ofDemonstrating that Gidatex's Counsel Violatedthe Ethical Rules
Assuming, arguendo, that the ethical rules citedby defendants are applicable to the situation athand, defendants have not met their burden ofdemonstrating that Gidatex's counsel has violatedthese rules. Courts in this Circuit have adopted athree-part test to determine whether counsel has vi-olated DR 7–104(A)(1): Did counsel communicatewith a “party”? If so, did counsel know that theparty was represented by a lawyer in this matter?Finally, did counsel “cause” the communication tooccur? See, e.g., Miano, 148 F.R.D. at 75.
According to Campaniello, Bailey's conductfalls within DR 7–104(A)(1) because: (1) Campani-ello's sales clerks are “parties”; (2) Bailey knew,both before and after filing the Complaint, thatCampaniello was represented by counsel; and (3)Bailey “caused” his investigators to communicatewith the sales clerks. It is undisputed that Baileyhired the investigators to determine whether Cam-paniello was inappropriately using the SaporitiItalia trademark in connection with its sales of otherbrands of furniture. Therefore, the question ofwhether Bailey violated DR 7–104 turns on wheth-er the sales clerks were parties, whether they wererepresented by counsel at the time of the commu-
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nication, and whether Bailey knew they were rep-resented by counsel at that time.
A. Were the Sales Clerks “Parties”?A corporate employee is a party within the
meaning of DR 7–104(A)(1) if, for example, “(1)he/she had high-level managerial responsibility andwas capable of binding the corporation; or (2) his/her acts or omissions may be imputed to the corpor-ation for the purposes of civil or criminal liability;or (3) his/her statements may constitute an admis-sion by the [the corporation].” Miano, 148 F.R.D. at76–77 (citing Polycast Tech. Corp. v. Uniroyal,Inc., 129 F.R.D. 621, 624 (S.D.N.Y.1990); Uni-versity Patents, Inc. v. Kligman, 737 F.Supp. 325,327 (E.D.Pa.1990); Chancellor v. The Boeing Co.,678 F.Supp. 250, 253 (D.Kan.1988); McKitty v. Bd.of Educ., 86–3176, 1987 WL 28791,*2 (S.D.N.Y.December 16, 1987); Massa v. Eaton Corp., 109F.R.D. 312, 313 (W.D.Mich.1985); *125Niesig, 76N.Y.2d at 363, 559 N.Y.S.2d 493, 558 N.E.2d1030). The New York Court of Appeals has defined“party” to include:
corporate employees whose acts or omissions inthe matter under inquiry are binding on the cor-poration (in effect, the corporation's “alter-egos”)or imputed to the corporation for purposes of itsliability, or employees implementing the adviceof counsel. All other employees may be inter-viewed informally.
Niesig, 76 N.Y.2d at 374, 559 N.Y.S.2d 493,558 N.E.2d 1030.
Campaniello's sales clerks are low-level em-ployees with no management responsibilities what-soever. As a result, they would generally not beconsidered parties under DR 7–104(A)(1), becausethey have no apparent or actual authority to bindthe company, and their statements would not usu-ally constitute admissions by the company. In theinstant case, however, Gidatex—despite its strenu-ous assertions to the contrary—is seeking to use thesales clerks' statements to impute liability to Cam-paniello. Put another way, Gidatex intends to offer
the clerks' statements regarding Saporiti Italia fur-niture as admissions by Campaniello itself thatCampaniello is involved in a “palming-off”scheme. As a result, I find that under the specificcircumstances presented here, the sales clerks are“parties” for purposes of DR 7–104(A)(1).
B. Were Defendants “Represented” by Counsel?Typically, before a complaint is filed, there is
uncertainty as to whether a party is represented, butafter it is filed, it is likely that a party has represent-ation. See Miano, 148 F.R.D., at 77–78.
[An] organization should be considered a partyanytime it has specifically retained counsel torepresent its interests regarding the subject ofrepresentation or has specifically referred thematter to house counsel.... [T]he retaining of anattorney by a party claiming protection of the rulemust have a nexus to a potential dispute. ... Thefact that [defendant] had counsel “for generalbusiness purposes” was irrelevant, however, ab-sent a specific connection to a potential lawsuit.
Federal Sav. & Loan Ins. Corp. v. Hilden-brand, No. 89–A–535, 1989 WL 107377, *4(D.Colo. Sept. 8, 1989) (emphasis added). Here,two of the four investigators' visits occurred priorto the filing of the Complaint, and a third occurredprior to the date Gidatex served the Complaint onCampaniello. However, defendants argue that basedon the adversarial history of these parties, Gidatexknew Campaniello was represented both before andafter Gidatex filed its Complaint. Indeed, for overthree years prior to the initiation of this trademarkinfringement suit, the parties were embroiled in twoadditional lawsuits on two different continents in-volving Campaniello's claims against Gidatex forbreach of contract, misrepresentation, unjust en-richment and fraud. During those litigations, Cam-paniello was represented by three different trialcounsel, none from the law firm that representsCampaniello in the instant trademark action.
Despite the permanent adversarial status of theparties, Gidatex adheres to the technical argument
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that Campaniello had not yet specifically retainedcounsel to represent it in this trademark infringe-ment dispute. It is true that with respect to this dis-pute Gidatex's counsel sent an October 16, 1997“cease and desist” letter directly to Mr. ThomasCampaniello and not to Campaniello's counsel. It isalso true that at the time of the first two visits of theinvestigators, December 12 and 15, 1997, Gidatexhad not yet initiated its trademark infringementcase, and Campaniello had not yet retained its cur-rent counsel. Nevertheless, after years of related lit-igation between Gidatex and Campaniello, it is un-realistic to conclude that Bailey did not know thatCampaniello was represented by counsel.
C. No Violation of Disciplinary RulesAlthough Bailey's conduct technically satisfies
the three-part test generally used *126 to determinewhether counsel has violated the disciplinary rules,I conclude that he did not violate the rules becausehis actions simply do not represent the type of con-duct prohibited by the rules. The use of private in-vestigators, posing as consumers and speaking tonominal parties who are not involved in any aspectof the litigation, does not constitute an end-runaround the attorney/client privilege. Gidatex's in-vestigators did not interview the sales clerks ortrick them into making statements they otherwisewould not have made. Rather, the investigatorsmerely recorded the normal business routine in theCampaniello showroom and warehouse.FN3
FN3. The above-analysis of the technicalrequirements of the disciplinary rules onlyunderscores my earlier conclusion thatthese rules do not apply in the context ofthis case.
D. Exclusion of Evidence[4] Finally, it must be noted that DR
7–104(A)(1) and DR 1–102(A)(4) are disciplinaryrules, not statutes. The Second Circuit Court of Ap-peals has ruled that a court is not obligated to ex-clude evidence even if it finds that counsel obtainedthe evidence by violating ethical rules. See UnitedStates v. Hammad, 858 F.2d 834, 837 (2d Cir.1988)
(discouraging suppression of evidence to punishunethical conduct of prosecutor). Likewise, NewYork State courts will admit evidence procured byunethical or unlawful means in violation of theNYSBA Code of Professional Responsibility. Forexample, in Stagg v. New York City Health & Hosp.Corp., 162 A.D.2d 595, 556 N.Y.S.2d 779 (2dDep't 1990), the court admitted testimony allegedlyobtained in violation of DR 7–104(A)(1) findingthat:
even if the matters to which the investigator testi-fied were unethically obtained, they neverthelesswould be admissible at trial. New York followsthe common law rule that the admissibility ofevidence is not affected by the means throughwhich it is obtained. Hence, absent some consti-tutional, statutory, or decisional authority man-dating the suppression of otherwise valid evid-ence [ ], such evidence will be admissible even ifprocured by unethical or unlawful means.
Stagg, 556 N.Y.S.2d at 780. Here, the remedyof preclusion would not serve the public interest orpromote the goals of the disciplinary rules.
IV. ConclusionFor the foregoing reasons, Campaniello's mo-
tion in limine to preclude Gidatex from offeringtestimony, reports, and recorded conversation of itsinvestigators is denied.
S.D.N.Y.,1999.Gidatex, S.r.L. v. Campaniello Imports, Ltd.82 F.Supp.2d 119, 53 U.S.P.Q.2d 1008
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Mckinney's Consolidated Laws of New York Annotated CurrentnessCivil Practice Law and Rules (Refs & Annos)
Chapter Eight. Of the Consolidated LawsArticle 45. Evidence (Refs & Annos)
§ 4506. Eavesdropping evidence; admissibility; motion to suppress in certain cases
1. The contents of any overheard or recorded communication, conversation or discussion, or evidence derivedtherefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section250.05 of the penal law, may not be received in evidence in any trial, hearing or proceeding before any court orgrand jury, or before any legislative committee, department, officer, agency, regulatory body, or other authorityof the state, or a political subdivision thereof; provided, however, that such communication, conversation, dis-cussion or evidence, shall be admissible in any civil or criminal trial, hearing or proceeding against a personwho has, or is alleged to have, committed such crime of eavesdropping.
2. As used in this section, the term “aggrieved person” means:
(a) A person who was a sender or receiver of a telephonic or telegraphic communication which was intentionallyoverheard or recorded by a person other than the sender or receiver thereof, without the consent of the sender orreceiver, by means of any instrument, device or equipment; or
(b) A party to a conversation or discussion which was intentionally overheard or recorded, without the consentof at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment;or
(c) A person against whom the overhearing or recording described in paragraphs (a) and (b) was directed.
3. An aggrieved person who is a party in any civil trial, hearing or proceeding before any court, or before anydepartment, officer, agency, regulatory body, or other authority of the state, or a political subdivision thereof,may move to suppress the contents of any overheard or recorded communication, conversation or discussion orevidence derived therefrom, on the ground that:
(a) The communication, conversation or discussion was unlawfully overheard or recorded; or
(b) The eavesdropping warrant under which it was overheard or recorded is insufficient on its face; or
(c) The eavesdropping was not done in conformity with the eavesdropping warrant.
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4. The motion prescribed in subdivision three of this section must be made before the judge or justice who is-sued the eavesdropping warrant. If no eavesdropping warrant was issued, such motion must be made before ajustice of the supreme court of the judicial district in which the trial, hearing or proceeding is pending. The ag-grieved person must allege in his motion papers that an overheard or recorded communication, conversation ordiscussion, or evidence derived therefrom, is subject to suppression under subdivision three of this section, andthat such communication, conversation or discussion, or evidence, may be used against him in the civil trial,hearing or proceeding in which he is a party. The motion must be made prior to the commencement of such trial,hearing or proceeding, unless there was no opportunity to make such motion or the aggrieved person was notaware of the grounds of the motion. If the motion is granted, the contents of the overheard or recorded commu-nication, conversation or discussion or evidence derived therefrom, may not be received in evidence in any trial,hearing or proceeding.
CREDIT(S)
(Added L.1969, c. 1147, § 8.)
Current through L.2011, chapters 1 to 54 and 57 to 495.
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McKinney's CPLR § 4506 Page 2
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NYCLA COMMITTEE ON PROFESSIONAL ETHICS
FORMAL OPINION No. 737
Date Issued: 5/23/07
TOPIC: Non-government lawyer use of investigator who employs dissemblance DIGEST: In New York, while it is generally unethical for a non-government lawyer to knowingly utilize and/or supervise an investigator who will employ dissemblance in an investigation, we conclude that it is ethically permissible in a small number of exceptional circumstances where the dissemblance by investigators is limited to identity and purpose and involves otherwise lawful activity undertaken solely for the purpose of gathering evidence. Even in these cases, a lawyer supervising investigators who dissemble would be acting unethically unless (i) either (a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently or (b) the dissemblance is expressly authorized by law; and (ii) the evidence sought is not reasonably and readily available through other lawful means; and (iii) the lawyer’s conduct and the investigator’s conduct that the lawyer is supervising do not otherwise violate the New York Lawyer’s Code of Professional Responsibility (the “Code”) or applicable law; and (iv) the dissemblance does not unlawfully or unethically violate the rights of third parties. These conditions are narrow. Attorneys must be cautious in applying them to different situations. In most cases, the ethical bounds of permissible conduct will be limited to situations involving the virtual necessity of non-attorney investigator(s) posing as an ordinary consumer(s) engaged in an otherwise lawful transaction in order to obtain basic information not otherwise available. This opinion does not address the separate question of direction of investigations by government lawyers supervising law enforcement personnel where additional considerations, statutory duties and precedents may be relevant. This opinion also does not address whether a lawyer is ever permitted to make dissembling statements directly himself or herself. CODE: DR 1-102(a)(2)(3)(4), DR 1-104(d), DR 5-102, DR 7-102(a)(5), DR 7-104 QUESTION: Under what circumstances, if any, is it ethically permissible for a non-government lawyer to utilize the services of and supervise an investigator if the lawyer knows that dissemblance will be employed by the investigator?
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OPINION:
The word “dissemble” is defined as follows: “To give a false impression about (something); to cover up (something) by deception (to dissemble the facts).” Black’s Law Dictionary (8th ed. 2004).
DR 1-102(a)(3) provides: “A lawyer or law firm shall not . . . engage in illegal
conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer.” (emphasis added). DR 1-102(a)(4) of the Code provides: “A lawyer or law firm shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” (emphasis added). DR 7-102(a)(5) provides, “In the representation of a client, a lawyer shall not knowingly make a false statement of law or fact.” DR 1-104(d) provides, in relevant part, that a lawyer shall be responsible for a violation of the disciplinary rules by another lawyer or non-lawyer through involvement, knowledge or supervisory authority if the lawyer orders, or directs the specific conduct, or, with knowledge of the specific conduct, ratifies it.
DR 1-102(a)(2) of the Code provides, “A lawyer or law firm shall not . . .
circumvent a Disciplinary Rule through actions of another.” (emphasis added). Accordingly, when a lawyer is faced with the option of hiring an investigator who
intends to employ dissemblance in order to gather certain evidence1, the lawyer must consider whether the Code of Professional Responsibility permits the lawyer to proceed.
A plain reading of DR 1-102(a)(4) (the “Honesty Rule”), DR 7-102(a)(5) (the
“False Statement Rule”), together with DR 1-102(a)(2) and DR 1-104(d), (“the Integrity Rules”), on their face leave little doubt that “dissemblance” is ethically impermissible in New York if dissemblance is deemed equivalent to “dishonesty, fraud, deceit, or misrepresentation.” Moreover, the legality, vel non, of the specific conduct also has a bearing on whether the conduct is covered within the meaning of DR 1-102(a)(3).
Importantly, dissemblance is distinguished here from dishonesty, fraud, misrepresentation, and deceit by the degree and purpose of dissemblance. For purposes of this opinion, dissemblance refers to misstatements as to identity and purpose made solely for gathering evidence. It is commonly associated with discrimination and trademark/copyright testers and undercover investigators and includes, but is not limited to, posing as consumers, tenants, home buyers or job seekers while negotiating or engaging in a transaction that is not by itself unlawful. Dissemblance ends where
1 This opinion only addresses the situation in which the investigator acts as the lawyer’s agent as opposed to the client’s agent. See, e.g., Midwest Motor Sports v. Arctic Cat Sales Inc., 347 F.3d 693, 695-6 (8th Cir. 2003) (lawyers had “retained” the investigator and directed the investigator’s conduct). The question of agency will likely depend on the facts and circumstances. See, e.g., Allen v Int’l Truck & Engine, 2006 U.S. Dist. LEXIS 63720 at *22-25 (S.D. Ind. 2006) (analysis of counsel’s level of involvement in investigation).
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misrepresentations or uncorrected false impressions rise to the level of fraud or perjury2, communications with represented and unrepresented persons in violation of the Code, see DR 7-104, or in evidence-gathering conduct that unlawfully violates the rights of third parties. See also David B. Isbell & Lucantonio Salvi, Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers: An Analysis of the Provisions Prohibiting Misrepresentation Under The Model Rules of Professional Conduct, 8 Geo. J. Legal Ethics 791, 817 (Summer 1995) (“[ABA Model] Rule 8.4(c) applies to conduct by a lawyer in a private capacity that is so grave as to call into question the lawyer’s fitness to practice law . . . .”).
This opinion does not address the separate question of direction of investigations
by government lawyers supervising law enforcement personnel where additional considerations, statutory duties and precedents may be relevant. Such investigations, which are discussed approvingly in United States of America v. Parker, 165 F. Supp. 2d 431, 476 (W.D.N.Y. 2001), are outside the scope of this opinion. This opinion also does not address whether a lawyer is ever permitted to himself or herself make dissembling statements directly. Survey of Authorities
We are aware of only three jurisdictions that have adopted explicit rule-based exceptions for the use of dissemblance in an investigation; two of which are limited to government lawyers: Oregon,3 Alabama4 and Florida5. There is no explicit rule-based exception permitting the use of dissemblance in New York. Accordingly, any ethically permissible use of dissemblance must rely on existing case law and ultimately on a principles-based determination.
Nor can we look to the ABA for firm guidance. In its opinion on surreptitious recording, the ABA left “for another day the separate question of when investigative practices involving misrepresentations of identity and purpose nonetheless may be ethical.”6 Aside from D.C. Opinion 323 (2004) and Oregon Opinion 2005-173, which interpret certain language in Oregon’s explicit exception for “covert activity” (Rule 8.4(b)), we are aware of one other ethics opinion, from Utah, on the subject of
2 See, e.g., In the Matter of Malone, 105 A.D. 2d 455; 480 N.Y.S.2d 603 (Third Dept 1984) (New York State Corrections Inspector General, a lawyer, advised informant to lie in arbitration testimony in order to protect the informant from retribution by fellow correctional officers; the lawyer was censured as a result). 3 Oregon’s Rule 8.4(b) provides an exception for lawyers to advise clients or supervise “lawful covert activity” in the investigation of violations of “civil or criminal law or constitutional rights” provided the conduct is otherwise in compliance with Oregon’s Rules of Professional Conduct and that “the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future.” See also Oregon Opinion 2005-173 (interpreting “advise and supervise” to mean a lawyer may not “participate directly” in the covert activity). 4 Alabama’s Rule 3.8(2) permits a government prosecutor to advise and order “any action that is not prohibited by law” and to have “limited participation in the action.” 5 Florida’s Rule 4-8.4(c) permits a government lawyer to supervise an “undercover investigation.” 6 ABA 01-422.
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dissemblance in investigations.7 Utah’s Opinion 02-05 (2002) concludes that a government lawyer “who participates in a lawful covert governmental operation” that uses dissemblance “does not, without more, violate the Rules of Professional Conduct.”
Certain federal district courts have declined to suppress evidence gained through
investigative dissemblance. In Gidatex, Judge Shira Scheindlin noted: “As for DR 1-102(a)(4)'s prohibition against attorney ‘misrepresentations’, hiring investigators to pose as consumers is an accepted investigative technique, not a misrepresentation.”8 In Cartier v. Symbolic, Inc., the same court cited Gidatex in refusing to find that Cartier’s use of an investigator demonstrated its consent to any alleged trademark infringement.9 The New Jersey District Court in Apple Corps stated that the Honesty Rule does “not apply to misrepresentations solely as to identity or purpose and solely for evidence-gathering purposes.”10 The court rested its conclusion on the prevailing understanding in the legal profession, as evidenced in part by other courts’ decisions11 and on statutory construction.12
More recently, another federal district court cited Gidatex for the proposition that, “prohibition against attorney misrepresentations in DR1-102(a)(4) is not applicable to use of undercover investigations initiated by private counsel in trademark infringement case.” United States of America v. Parker, 165 F. Supp. 2d 431, 476 (W.D.N.Y. 2001) (upholding undercover law enforcement sting operation supervised by prosecutor).
While Gidatex and Parker appear to judicially sanction, as ethically permissible,
the use of dissemblance in investigations, the specific issue of whether the use of dissemblance in investigations is ethical was not the actual holding in both cases. Much if not all of the judicial commentary on the issue of the ethical use of dissemblance is dicta. The Gidatex court observed that, “a court is not obligated to exclude evidence even if it finds that counsel obtained the evidence by violating ethical rules.” Gidatex, 82 F. Supp. 2d at 126 (emphasis in the original). Similarly, the Parker court also observed that, “even if the alleged misconduct, attributed by Defendants to the Government attorneys in this case, were deemed an ethical violation, and the relevant disciplinary rule were applicable to the instant facts, such does not warrant use of the exclusionary rule as a remedy for such violation.” Parker, 165 F. Supp. 2d at 477 (internal citations omitted). Simply put, these cases dealt primarily with the issue of admissibility of evidence -- not with the ethical issues in obtaining it.
Other courts throughout the country have struggled with this issue to
mixed results. The Eighth Circuit in Midwest Motor Sports called for the suppression of evidence because it believed the attorneys could have obtained the
7 Cf., Ala. Opinion Ro-89-31 (permitting a lawyer to direct an investigator to pose as a customer in order to determine whether plaintiff lied about his injuries). 8 Gidatex v. Campaniello Imports, Ltd., 82 F. Supp.2d 119, 122 (S.D.N.Y. 1999). 9 Cartier v Symbolix, Inc., 2006 U.S. Dist. LEXIS 71446 at *20 (S.D.N.Y. 2006). 10 Apple Corps Ltd. v. International Collectors Society, 15 F. Supp. 2d 456, 475 (D. N.J. 1998) 11 Id. (citations omitted). 12 Id. at 475-576. New Jersey’s False Statement rule includes the word “material” unlike New York’s rule.
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information through “formal procedures, such as a motion to compel.”13 Likewise the Supreme Court of Wisconsin in In re Wood held that an attorney in a dispute with a former client violated the Honesty Rule when he hired an investigator to pose as the former client in order to obtain a document, which “could have been subpoenaed.”14 In Allen v. Int’l Truck & Engine, the U.S. District Court for the Southern District of Indiana suppressed evidence because a company had sent investigators to talk to employees internally in response to allegations of racial hostility by plaintiff-employees, knowing that some of the employees were represented by counsel in the matter.15
On the other hand, the Seventh and Tenth Circuits have explicitly authorized the
use of “testers” in racial discrimination cases, the Seventh Circuit noting that the “deception was a relatively small price to pay to defeat racial discrimination.”16 And the U.S. Supreme Court has upheld the standing of “testers” in such cases.17
The public and profession’s expectations with respect to dissemblance in
investigations may evolve over time, and rules such as the Dishonesty Rule must be applied in the light of reason and experience 18 While we recognize that there is no nationwide consensus on this issue at this time, we conclude that the conduct approved by a number of courts as discussed above is most consistent with the overall purposes of the Disciplinary Rules and conforms to professional norms and societal expectations. Non-government attorneys may therefore in our view ethically supervise non-attorney investigators employing a limited amount of dissemblance in some strictly limited circumstances where: (i) either (a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently or (b) the dissemblance is expressly authorized by law; and (ii) the evidence sought is not reasonably available through other lawful
13 Midwest Motor Sports v. Arctic Cat Sales Inc., 347 F.3d 693, 700 (8th Cir. 2003). The court observed that the investigator’s surreptitious recording combined with the fact that counsel had violated the no-contact rule should result in suppression. Midwest at 699. See also Hill v Shell Oil Company, 209 F. Supp. 2d 876, 880 (E.D. Ill. 2002) (noting a “discernable continuum in the cases from clearly impermissible to clearly permissible conduct.”). 14 In re Wood, 190 Wis. 2d 502; 526 N.W.2d 513, 514 (Wisc. 2005). 15 Allen v Int’l Truck & Engine, 2006 U.S. Dist. LEXIS 63720 at *25-26 (S.D. Ind. 2006) 16 Richardson v. Howard, 712 F.2d 319, 321-22 (7th Cir. 1983); Hamilton v. Miller, 477 F.2d 908, 909 n.1 (10th Cir. 1973). The U.S. Supreme Court defined a “tester” as “an individual who, without an intent to rent or purchase a home or apartment, poses as a renter or purchaser for the purpose of collecting evidence of unlawful steering practices.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 373; 71 L. Ed., 2d 214, 225 ; 201 S. Ct. 1114, 1121 (1982). 17 Havens Realty Corp. v. Coleman, 455 U.S. 363, 373; 71 L. Ed., 2d 214, 225 ; 201 S. Ct. 1114, 1121 (1982). 18 See, e.g., N.Y. State 328 (1974) (secret taping impermissible except under “extraordinary” circumstances); N.Y. County 696 (1993) (secret taping permissible where one party has consented); ABA 01-422 (taping permitted if legal and lawyer does not falsely deny the fact of recording); N.Y. City 2003-2 (permitting non-routine taping in “pursuit of a generally accepted societal good”). See also ABA 06-439 (in negotiations, posturing or puffery “are statements upon which parties to a negotiation ordinarily would not be expected justifiably to rely.”)
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means19; and (iii) the lawyer’s conduct and the investigators’ conduct that the lawyer is supervising do not otherwise violate the Code (including, but not limited to, DR 7-104, the “no-contact” rule) or applicable law; and (iv) the dissemblance does not unlawfully or unethically violate the rights of third parties. Moreover, the investigator must be instructed not to elicit information protected by the attorney-client privilege. CONCLUSION:
A plain reading of New York’s Code of Professional Responsibility supports the
view that it is generally unethical for a non-government lawyer to utilize and/or supervise an investigator who will employ dissemblance in an investigation if the dissemblance is unlawful; rises to the level of fraud or perjury; unlawfully violates the rights of third parties; otherwise violates the Code, or where other lawful means of obtaining evidence is available. Nevertheless, under certain exceptional conditions as set forth in this opinion, dissemblance by a non-attorney investigator supervised by an attorney is ethically permissible. Lawyers who supervise investigators employing dissemblance, however, should interpret these exceptions narrowly.
19 See Midwest Sports and Wood decisions described supra. In Pautler, the court noted that the DA “had several choices” other than dissemblance in pursuing the suspect’s apprehension. Pautler at 1180.
United States District Court,W.D. New York.
UNITED STATES of America,v.
Darnyl PARKER, John A. Ferby, David Rodriguez,Robert E. Hill, William Parker, Defendants.
No. 00–CR–053A.April 19, 2001.
Defendant police officers moved to dismisscharges of conspiracy to violate civil rights, con-spiracy to commit theft and theft of governmentproperty, conspiracy and attempt to commit robberyand extortion, including under color of officialright, and possession of firearm in furtherance ofcrime of violence, and moved to suppress evidenceand strike surplusage from indictment. The DistrictCourt, Arcara, J., adopted Report and Recommend-ation of Foshio, United States Magistrate Judge,holding that: (1) indictment fairly tracked languageof applicable statutes and apprised defendants of al-leged facts; (2) indictment was not duplicitous; (3)fact that supposed drug dealer from whom defend-ants allegedly stole money was FBI agent did notpreclude prosecution; (4) indictment did not containsurplusage; (5) prosecuting attorney did not violateethical rules; and (6) even if prosecuting attorneyhad violated ethical rules, suppression of evidencewas not proper remedy.
Motion denied.
West Headnotes
[1] United States Magistrates 394 25
394 United States Magistrates394k24 Review and Supervision by District
Court394k25 k. Proceedings for review; objection
to report. Most Cited CasesDistrict court refused to consider defendants'
untimely objections to Magistrate Judge's Reportand Recommendation that defendants' motion todismiss theft and conspiracy charges be denied;court had twice granted defendants' motions for ex-tensions of time to file objections, and defendants'filing of third motion for extension one-half hourbefore close of business day on date objectionswere due after second extension demonstrated lackof diligence in trying to comply with scheduling or-ders. 28 U.S.C.A. § 636(b); U.S.Dist.Ct.RulesW.D.N.Y., Criminal Rule 58.2(a)(2).
[2] Indictment and Information 210 60
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k58 Subject-Matter of Allegations210k60 k. Elements and incidents of of-
fense in general. Most Cited Cases
Indictment and Information 210 71.2(1)
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k71 Certainty and Particularity210k71.2 Purpose of Requirement and
Test of Compliance210k71.2(1) k. In general. Most Cited
CasesIndictment is facially valid under rules of crim-
inal procedure and sufficient under Sixth Amend-ment if it contains elements of offense charged,fairly informs defendant of charges against whichhe must defend, and enables defendant to pleaddouble jeopardy in bar of further prosecution.U.S.C.A. Const.Amend. 6; Fed.Rules Cr.Proc.Rule7(c)(1), 18 U.S.C.A.
[3] Indictment and Information 210 86(2)
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k86 Place of Offense210k86(2) k. Sufficiency in general. Most
Cited Cases
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Indictment and Information 210 87(7)
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k87 Time of Offense210k87(7) k. Certainty. Most Cited Cases
Indictment and Information 210 110(3)
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k107 Statutory Offenses210k110 Language of Statute
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Federal indictment need only track language ofstatute which defines charged offense and, if neces-sary to apprise defendant of nature of accusationagainst him, state time and place of alleged offensein approximate terms.
[4] Indictment and Information 210 110(3)
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k107 Statutory Offenses210k110 Language of Statute
210k110(3) k. Sufficiency of indict-ment in language of statute in general. Most CitedCases
Where indictment tracks statutory language, itshould nevertheless provide facts and circum-stances as will inform accused of specific offense,coming under general description, with which he ischarged.
[5] Indictment and Information 210 110(3)
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k107 Statutory Offenses210k110 Language of Statute
210k110(3) k. Sufficiency of indict-ment in language of statute in general. Most CitedCases
Indictments which track statutory language de-
fining offense are generally sufficient under rulesof criminal procedure so long as the application toparticular defendant is clear. Fed.RulesCr.Proc.Rule 7(c), 18 U.S.C.A.
[6] Indictment and Information 210 56
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k56 k. Constitutional requirements as toaccusation. Most Cited Cases
Indictment which complies with rules of crim-inal procedure satisfies Sixth Amendment require-ment that charge inform defendant of nature andcause of accusation. U.S.C.A. Const.Amend. 6;Fed.Rules Cr.Proc.Rule 7(c), 18 U.S.C.A.
[7] Indictment and Information 210 110(3)
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k107 Statutory Offenses210k110 Language of Statute
210k110(3) k. Sufficiency of indict-ment in language of statute in general. Most CitedCases
Counts of indictment charging three defendantpolice officers with conspiracy to violate civilrights, conspiracy to steal and theft of governmentproperty, conspiracy, attempt to violate, and viola-tion of Hobbs Act, possession of firearm in further-ance of crime of violence, and money laundering,were sufficiently pleaded under Sixth Amendmentand rules of criminal procedure; all counts fairlytracked language of statutes on which they werebased, and provided general alleged factual circum-stances of offenses, and thus fairly apprised defend-ants of nature of charges. U.S.C.A. Const.Amend. 6; Fed.Rules Cr.Proc.Rule 7(c)(1), 18 U.S.C.A.; 18U.S.C.A. §§ 371, 641, 924(c), 1951, 1956; Compre-hensive Drug Abuse Prevention and Control Act of1970, § 406, 21 U.S.C.A. § 846.
[8] Indictment and Information 210 125(1)
210 Indictment and Information
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210VI Joinder210k125 Duplicity
210k125(1) k. In general. Most CitedCases
Indictment is duplicitous if it joins two or moredistinct crimes in single count.
[9] Indictment and Information 210 125(1)
210 Indictment and Information210VI Joinder
210k125 Duplicity210k125(1) k. In general. Most Cited
CasesTest to determine whether there are two of-
fenses charged in single count of indictment, mak-ing count duplicitous, is whether each provision incount requires proof of fact which other does not.
[10] Indictment and Information 210 125(1)
210 Indictment and Information210VI Joinder
210k125 Duplicity210k125(1) k. In general. Most Cited
CasesCount of indictment should only be ruled im-
permissibly duplicitous if general verdict of guiltymight actually conceal contrary findings as to dif-ferent alleged crimes, or if appropriate basis forsentencing is not provided.
[11] Indictment and Information 210125(5.5)
210 Indictment and Information210VI Joinder
210k125 Duplicity210k125(4) Series of Acts Constituting
One or Same Offense210k125(5.5) k. Conspiracy. Most
Cited CasesCount of indictment alleging that conspiracy
had multiple objectives is not duplicitous.
[12] Indictment and Information 210125(19.1)
210 Indictment and Information210VI Joinder
210k125 Duplicity210k125(19) Several Modes or Means of
Committing Same Offense210k125(19.1) k. In general. Most
Cited CasesCount of indictment is not duplicitous if allega-
tion states that offense has been committed in morethan one way or through different means.
[13] Indictment and Information 210125(20)
210 Indictment and Information210VI Joinder
210k125 Duplicity210k125(19) Several Modes or Means of
Committing Same Offense210k125(20) k. Conjunctive averments
under disjunctive statutes. Most Cited CasesWhere statute defining offense defines dis-
junctively the means by which statute may be viol-ated, it is permissible to allege offense in indict-ment conjunctively.
[14] Indictment and Information 210125(5.5)
210 Indictment and Information210VI Joinder
210k125 Duplicity210k125(4) Series of Acts Constituting
One or Same Offense210k125(5.5) k. Conspiracy. Most
Cited CasesCount of indictment alleging that defendant po-
lice officers conspired “to rob and steal” from FBIagent posing as drug dealer was not duplicitous,since conspiracy could have multiple objectives. 18U.S.C.A. § 641.
[15] Indictment and Information 210125(30)
210 Indictment and Information
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210VI Joinder210k125 Duplicity
210k125(19) Several Modes or Means ofCommitting Same Offense
210k125(30) k. Larceny or taking andusing property without consent of owner. MostCited Cases
Counts in indictment alleging that defendantpolice officers “stole, purloined, and converted”cash from drug “stash house” were not duplicitous,since single act could be committed by alternativemeans under statute. 18 U.S.C.A. § 641.
[16] Indictment and Information 210 125(1)
210 Indictment and Information210VI Joinder
210k125 Duplicity210k125(1) k. In general. Most Cited
CasesEven if conduct alleged in single count of in-
dictment could have been charged in separatecounts, fact that such conduct is alleged in singlecount does not render indictment duplicitous whereindictment tracks elements of offense as defined instatute.
[17] Indictment and Information 210125(5.5)
210 Indictment and Information210VI Joinder
210k125 Duplicity210k125(4) Series of Acts Constituting
One or Same Offense210k125(5.5) k. Conspiracy. Most
Cited Cases
Indictment and Information 210 125(19.1)
210 Indictment and Information210VI Joinder
210k125 Duplicity210k125(19) Several Modes or Means of
Committing Same Offense210k125(19.1) k. In general. Most
Cited CasesCounts of indictment charging defendant police
officers with conspiracy to violate Hobbs Act by“robbery and extortion,” and violating Hobbs Actby taking money from FBI agent posing as drugdealer by “force and consent obtained under colorof right” were not duplicitous, since conspiracycould have multiple objectives, and violation couldbe committed by alternate means. 18 U.S.C.A. §1951.
[18] Indictment and Information 210144.1(1)
210 Indictment and Information210IX Motion to Dismiss
210k144.1 Grounds210k144.1(1) k. In general. Most Cited
CasesEven assuming any counts of indictment char-
ging defendant police officers with conspiracy to“rob and steal” from FBI agent posing as drug deal-er, with stealing, purloining, and converting prop-erty, with conspiracy to violate Hobbs Act by“robbery and extortion,” or with taking money fromagent by “force and consent obtained under color ofright” were duplicitous, such fact did not requiredismissal; remedy of special jury instruction to as-sure unanimity could have avoided any prejudice todefendants. 18 U.S.C.A. §§ 341, 641, 1951.
[19] Civil Rights 78 1088(1)
78 Civil Rights78I Rights Protected and Discrimination Prohib-
ited in General78k1088 Police, Investigative, or Law En-
forcement Activities78k1088(1) k. In general. Most Cited
Cases(Formerly 78k132.1)When law enforcement officers commit action-
able wrongs against individuals, such conduct mayconstitute violation of individuals' constitutionalrights, even though if same action were taken bywrongdoer not acting under color of law, conduct
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would not constitute such violation.
[20] Civil Rights 78 1808
78 Civil Rights78VI Offenses and Penalties
78k1808 k. Offenses. Most Cited Cases(Formerly 78k472.1)Fact that victim of police illegality may also be
guilty of criminal behavior does not disentitle suchperson to protection of Fourth and FourteenthAmendments, and thus such police illegality mayconstitute violation of criminal statute prohibitingviolation of constitutional rights by one acting un-der color of state law. U.S.C.A. Const.Amends. 4,14; 18 U.S.C.A. § 242.
[21] Civil Rights 78 1808
78 Civil Rights78VI Offenses and Penalties
78k1808 k. Offenses. Most Cited Cases(Formerly 78k472.1)Willful conduct taken by police officers with
specific intent to violate rights made specific byprovisions of Constitution or decisions of courts in-terpreting them will support conviction under stat-ute prohibiting violation of constitutional rights byone acting under color of state law. 18 U.S.C.A. §242.
[22] Civil Rights 78 1808
78 Civil Rights78VI Offenses and Penalties
78k1808 k. Offenses. Most Cited Cases(Formerly 78k472.1)If evidence demonstrates that police officer did
not act with purpose of enforcing the law but,rather, with criminal intent, and thereby willfullyviolated federally protected right, criminal liabilitymay attach under statute prohibiting violation ofconstitutional rights by one acting under color ofstate law; fact that officer may not have been think-ing in constitutional terms is not material. 18U.S.C.A. § 242.
[23] Conspiracy 91 24.10
91 Conspiracy91II Criminal Responsibility
91II(A) Offenses91k23 Nature and Elements of Criminal
Conspiracy in General91k24.10 k. Success; attaining object-
ive. Most Cited CasesConspiracy charge does not require showing
that unlawful objectives of conspiracy were accom-plished.
[24] Conspiracy 91 25
91 Conspiracy91II Criminal Responsibility
91II(A) Offenses91k23 Nature and Elements of Criminal
Conspiracy in General91k25 k. Object. Most Cited Cases
Crime of conspiracy does not require that ob-ject of unlawful agreement be capable of fruition.
[25] Civil Rights 78 1808
78 Civil Rights78VI Offenses and Penalties
78k1808 k. Offenses. Most Cited Cases(Formerly 78k472.1)Fact that drug dealer from whom defendant po-
lice officers stole money was actually undercoverFBI agent did not render it legally impossible fordefendants to intend to willfully violate Fourth andFourteenth Amendment rights of supposed drugdealer by stealing from him; even actual drug deal-er would have been entitled to constitutional pro-tections. 18 U.S.C.A. §§ 241, 242.
[26] Conspiracy 91 38
91 Conspiracy91II Criminal Responsibility
91II(A) Offenses91k38 k. Defenses. Most Cited Cases
Fact that undercover FBI agent from whom de-fendant police officers stole money was posing as
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drug dealer, and fact that proceeds from drug trans-actions were subject to forfeiture, did not providelegal justification for theft precluding prosecutionof defendants for conspiring to violate Fourth andFourteenth Amendment rights of supposed drugdealer; even if stolen money had been contraband,supposed drug dealer would have been entitled todue process of law. 18 U.S.C.A. §§ 241, 242.
[27] Criminal Law 110 31
110 Criminal Law110II Defenses in General
110k31 k. Defenses in general. Most CitedCases
Even if defendant police officers had probablecause to arrest undercover FBI agent posing as drugdealer, defendants' alleged theft of money fromagent was not justified as seizure incident to arrest,and thus probable cause to arrest did not precludeprosecution of defendants for conspiring to violateFourth and Fourteenth Amendment rights of sup-posed drug dealer. 18 U.S.C.A. §§ 241, 242.
[28] Criminal Law 110 752.5
110 Criminal Law110XX Trial
110XX(F) Province of Court and Jury inGeneral
110k752.5 k. Dismissal or nonsuit. MostCited Cases
Indictment, valid on its face, may not be dis-missed based on insufficient evidence; there is nosuch thing as motion for summary judgment incriminal case.
[29] Indictment and Information 210144.1(3)
210 Indictment and Information210IX Motion to Dismiss
210k144.1 Grounds210k144.1(3) k. Incompetent or insuffi-
cient evidence. Most Cited CasesUnless government has made what can fairly
be described as full proffer of evidence it intends topresent at trial, sufficiency of evidence is not ap-propriately addressed on pretrial motion to dismissindictment.
[30] Conspiracy 91 43(8)
91 Conspiracy91II Criminal Responsibility
91II(B) Prosecution91k43 Indictment or Information
91k43(8) k. Conspiracy to extortmoney or against exercise of civil rights. MostCited Cases
Defendant police officers' assertions that en-counter between defendants and drug dealer fromwhom they stole money was consensual, since drugdealer was actually undercover FBI agent hoping tocatch defendants in sting operation, or that they hadprobable cause to arrest supposed drug dealer, wereirrelevant for purpose of determining whether countin indictment charging defendants with conspiracyto violate supposed drug dealer's Fourth and Four-teenth Amendment rights was sufficiently pled; de-fendants' assertions constituted evidentiary matterswhich could not be resolved without trial. 18U.S.C.A. § 241.
[31] Larceny 234 1
234 Larceny234I Offenses and Responsibility Therefor
234k1 k. Nature and elements in general.Most Cited Cases
Conviction for theft of government propertydoes not require proof that defendant knew propertytaken belonged to government. 18 U.S.C.A. § 641.
[32] Constitutional Law 92 4511
92 Constitutional Law92XXVII Due Process
92XXVII(H) Criminal Law92XXVII(H)2 Nature and Elements of
Crime92k4511 k. Defenses in general. Most
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Cited Cases(Formerly 92k257)In prosecution for theft of government prop-
erty, due process is satisfied by showing defendantengaged in wrongful conduct, and defendant maynot complain that facts outside his knowledge,demonstrating that property belonged to govern-ment, brought into play federal penalties or en-hanced punishment. U.S.C.A. Const.Amend. 5; 18U.S.C.A. § 641.
[33] Conspiracy 91 43(4)
91 Conspiracy91II Criminal Responsibility
91II(B) Prosecution91k43 Indictment or Information
91k43(4) k. Knowledge and intent.Most Cited Cases
Where conspiracy to commit particular crime ischarged, it is necessary to allege that co-conspirators agreed with same degree of criminalintent required for object crime.
[34] Conspiracy 91 24.5
91 Conspiracy91II Criminal Responsibility
91II(A) Offenses91k23 Nature and Elements of Criminal
Conspiracy in General91k24.5 k. Knowledge and intent.
Most Cited CasesAs knowledge of government's ownership of
property is not required to support prosecution fortheft of government property, such knowledge isalso irrelevant to intent necessary to establish con-spiracy to commit theft of government property. 18U.S.C.A. §§ 341, 641.
[35] Criminal Law 110 36.6
110 Criminal Law110II Defenses in General
110k36.5 Official Action, Inaction, Repres-entation, Misconduct, or Bad Faith
110k36.6 k. In general. Most Cited CasesFact that government permitted theft of its
property pursuant to sting investigation does notprovide defense to charge of theft of governmentproperty. 18 U.S.C.A. § 641.
[36] Extortion and Threats 165 25.1
165 Extortion and Threats165II Threats
165k25 Nature and Elements of Offenses165k25.1 k. In general. Most Cited Cases
To support violation of Hobbs Act, it is onlynecessary to show that effect on interstate com-merce flowing from defendant's threatened extor-tion be potential or subtle. 18 U.S.C.A. § 1951.
[37] Extortion and Threats 165 25.1
165 Extortion and Threats165II Threats
165k25 Nature and Elements of Offenses165k25.1 k. In general. Most Cited Cases
Where charge is attempted violation of HobbsAct, actual effect on commerce need not be estab-lished, only possibility thereof. 18 U.S.C.A. § 1951.
[38] Conspiracy 91 28(3)
91 Conspiracy91II Criminal Responsibility
91II(A) Offenses91k28 Conspiracy to Commit Crime
91k28(3) k. Particular crimes. MostCited Cases
Extortion and Threats 165 25.1
165 Extortion and Threats165II Threats
165k25 Nature and Elements of Offenses165k25.1 k. In general. Most Cited Cases
For charge of conspiracy or attempt to violateHobbs Act, it is sufficient if alleged purpose was todo acts which, had they been attainable, would haveaffected commerce. 18 U.S.C.A. § 1951.
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[39] Conspiracy 91 38
91 Conspiracy91II Criminal Responsibility
91II(A) Offenses91k38 k. Defenses. Most Cited Cases
Fact that drug dealer from whom defendant po-lice officers stole money was actually undercoverFBI agent did not preclude conspiracy to violateHobbs Act; defendants believed agent was drugdealer, and theft from drug dealer would have re-duced dealer's ability to buy drugs, a commoditymoving in interstate commerce. 18 U.S.C.A. § 1951.
[40] Conspiracy 91 38
91 Conspiracy91II Criminal Responsibility
91II(A) Offenses91k38 k. Defenses. Most Cited Cases
If future conduct defendants are alleged to haveagreed on included all elements of violation ofHobbs Act, fact that, because of circumstances un-known to defendants, intended effect on interstatecommerce is impossible of completion is no de-fense to charge of conspiracy to violate Act. 18U.S.C.A. § 1951.
[41] Criminal Law 110 38
110 Criminal Law110II Defenses in General
110k38 k. Compulsion or necessity; justifica-tion in general. Most Cited Cases
Fact that defendant police officers were re-quired to carry guns while on duty under New Yorklaw was no defense to charge of carrying firearmduring and in relation to crime of violence relatingto defendants' alleged theft of money from FBIagent posing as drug dealer while defendants wereon duty. 18 U.S.C.A. § 924(c).
[42] Criminal Law 110 44
110 Criminal Law110III Attempts
110k44 k. In general. Most Cited CasesDefendant may be guilty of attempt to commit
criminal act despite fact that his accomplice is un-dercover agent who does not intend to commit un-derlying crime. 18 U.S.C.A. § 1956.
[43] Criminal Law 110 31
110 Criminal Law110II Defenses in General
110k31 k. Defenses in general. Most CitedCases
Fact that defendant police officer's accomplicewas working with government and did not intend tocarry out transaction with defendant to launder pro-ceeds of drug transaction did not preclude prosecu-tion of defendant for alleged violation of moneylaundering statute; accomplice's intention not tocomplete act was merely fact unknown to defendantwhich prevented completion of crime, but did notexonerate defendant. 18 U.S.C.A. § 1956.
[44] Conspiracy 91 24(7)
91 Conspiracy91II Criminal Responsibility
91II(A) Offenses91k23 Nature and Elements of Criminal
Conspiracy in General91k24 Combination or Agreement
91k24(4) Necessity of CulpableCoconspirator
91k24(7) k. Informer or govern-ment agent as coconspirator. Most Cited Cases
Generally, no agreement in furtherance of con-spiracy can occur between single defendant and un-dercover government agent, since agent does notintend to agree.
[45] Conspiracy 91 24(7)
91 Conspiracy91II Criminal Responsibility
91II(A) Offenses91k23 Nature and Elements of Criminal
Conspiracy in General
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91k24 Combination or Agreement91k24(4) Necessity of Culpable
Coconspirator91k24(7) k. Informer or govern-
ment agent as coconspirator. Most Cited CasesFact that person with whom defendant police
officer conspired to sell narcotics to defendant's sonwas government informant who did not intend tocomplete transaction did not preclude prosecutionof defendant for conspiracy, since defendant alsoconspired with his son. Comprehensive Drug AbusePrevention and Control Act of 1970, § 406, 21U.S.C.A. § 846.
[46] Indictment and Information 210 137(1)
210 Indictment and Information210VIII Motion to Quash or Set Aside
210k137 Grounds210k137(1) k. In general. Most Cited
CasesMotion to strike surplusage from indictment
will be granted only where challenged allegationsare not relevant to crime charged and are inflam-matory and prejudicial.
[47] Indictment and Information 210 137(1)
210 Indictment and Information210VIII Motion to Quash or Set Aside
210k137 Grounds210k137(1) k. In general. Most Cited
CasesIf alleged surplusage in indictment is subject to
government's anticipated proof at trial, it will not bestricken regardless of degree of potential prejudiceto defendant.
[48] Indictment and Information 210 137(1)
210 Indictment and Information210VIII Motion to Quash or Set Aside
210k137 Grounds210k137(1) k. In general. Most Cited
CasesWhether to strike language from indictment as
surplusage is within court's discretion.
[49] Indictment and Information 210 120
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k118 Surplusage and Unnecessary Matter210k120 k. Matter of description. Most
Cited CasesReference in indictment against defendant po-
lice officers to “persons in the State of New York,including individuals located in the City of Buf-falo” as persons toward whom defendants' conspir-acy to rob and steal money was directed was notsurplusage, even though government conceded thatgrand jury lacked evidence regarding such persons;indictment made several allegations that defendantsintended to act against more than specific drugdealer from whom they stole money, who was actu-ally undercover FBI agent. 18 U.S.C.A. §§ 241, 242.
[50] Indictment and Information 210 119
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k118 Surplusage and Unnecessary Matter210k119 k. In general. Most Cited Cases
References in indictment against defendant po-lice officers to “others unknown” with whom de-fendants allegedly conspired to steal governmentproperty was not surplusage; since it was not illo-gical that such others existed, challenged referencedid not broaden unfairly the scope of the allegedconspiracy. 18 U.S.C.A. §§ 371, 641.
[51] Indictment and Information 210 119
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k118 Surplusage and Unnecessary Matter210k119 k. In general. Most Cited Cases
Use of term “to rob” in indictment charging de-fendant police officers with conspiracy to steal gov-ernment property was not surplusage, even thoughapplicable statute employed the terms “embezzle,”
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“steal,” “purloin,” and “convert,” but not “rob”; in-dictment's use of term may have assisted jury in un-derstanding body of proof offered by government insupport of count. 18 U.S.C.A. §§ 371, 641.
[52] Indictment and Information 210 119
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k118 Surplusage and Unnecessary Matter210k119 k. In general. Most Cited Cases
Reference in indictment against defendant po-lice officers that objective of conspiracy betweenthem was to “intimidate, threaten and extort drugdealers” was not surplusage, even though govern-ment conceded that grand jury was not presentedwith evidence of identity of individuals; fact thattotal number of intended victims were not immedi-ately known or that they could not be identified didnot restrict introduction of evidence that object ofconspiracy as alleged included any drug dealers ofwhich defendants became aware. 18 U.S.C.A. §§371, 641.
[53] Indictment and Information 210 119
210 Indictment and Information210V Requisites and Sufficiency of Accusation
210k118 Surplusage and Unnecessary Matter210k119 k. In general. Most Cited Cases
Reference in count of indictment against de-fendant police officers alleging conspiracy to viol-ate Hobbs Act by stealing money from supposeddrug dealer to “others unknown” with whom de-fendants might have conspired was not surplusage;in light of jury instruction that conspiracy had to beestablished by government's evidence, any failureby government to support allegation regarding oth-er unknown co-conspirators was more likely to un-dermine jury's assessment of strength of govern-ment's case than work to disadvantage of defense.18 U.S.C.A. § 1951.
[54] Constitutional Law 92 4523
92 Constitutional Law
92XXVII Due Process92XXVII(H) Criminal Law
92XXVII(H)3 Law Enforcement92k4521 Conduct of Police and Pro-
secutors in General92k4523 k. Investigative activity in
general. Most Cited Cases(Formerly 92k257.5)Undercover “sting” investigations initiated
without probable cause do not constitute due pro-cess violation. U.S.C.A. Const.Amend. 5.
[55] Attorney and Client 45 32(7)
45 Attorney and Client45I The Office of Attorney
45I(B) Privileges, Disabilities, and Liabilities45k32 Regulation of Professional Con-
duct, in General45k32(7) k. Miscellaneous particular
acts or omissions. Most Cited CasesNew York ethical rule prohibiting attorney
from making misrepresentations does not apply toprosecuting attorneys who provide supervision andadvice to undercover investigations. N.Y.Code ofProf.Resp., DR 1–102, subd. A(4).
[56] Criminal Law 110 392.32(2)
110 Criminal Law110XVII Evidence
110XVII(I) Competency in General110k392.1 Wrongfully Obtained Evidence
110k392.32 Miscellaneous Govern-ment Misconduct or Mischief in Procurement ofEvidence in General
110k392.32(2) k. Attorney discip-line rule violation or other misconduct. Most CitedCases
(Formerly 110k394.1(1))Attorney's violation of state rules of profes-
sional conduct does not warrant use of exclusionaryrule as sanction for such violation.
[57] Criminal Law 110 661
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110 Criminal Law110XX Trial
110XX(C) Reception of Evidence110k661 k. Necessity and scope of proof.
Most Cited CasesAdmissibility of evidence in federal criminal
proceedings is limited only by Constitution, acts ofCongress, Federal Rules of Evidence, or SupremeCourt rules.
*437 Denise E. O'Donnell, United States Attorney,Buffalo, NY (Robert C. Moscati, *438 and Kath-leen M. Mehltretter, Assistant United States Attor-neys, of Counsel), for Government.
Harrington & Mahoney, Buffalo, NY (Mark J. Ma-honey, of Counsel), for Defendants Darnyl Parker.
Anne E. Adams, Buffalo, NY, for Defendant Ferby.
Brown & Kelly, LLP, Buffalo, NY (Rodney O. Per-sonius, of Counsel), for Defendant Rodriguez.
Juan E. Irene, Buffalo, NY, for Defendant Rodrig-uez.
Steiner & Blotnik, Buffalo, NY (Michael M. Blot-nik, of Counsel), for Defendant Hill.
Michael J. Stachowski, Buffalo, NY, for DefendantWilliam Parker.
Pratcher & Associates, Buffalo, NY (Joseph M.Cox, of Counsel), for Defendant Sayles.
DECISION AND ORDERARCARA, District Judge.
[1] This case was referred to Magistrate JudgeLeslie G. Foschio, pursuant to 28 U.S.C. §636(b)(1)(A), on April 7, 2000. On December 22,2000, defendants filed a joint motion for dismissal,to strike surplusage and for suppression of evid-ence. On January 10, 2001, the government filed aresponse to the motion. Magistrate Judge Foschioheard oral argument on the motion on March 15,2001.
On April 19, 2001, Magistrate Judge Foschiofiled a Report and Recommendation, recommend-ing that the defendants' joint motion to dismiss andfor suppression of evidence be denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule58.2(a)(2) of the Local Rules of Criminal Procedurefor the United States District Court for the WesternDistrict of New York (“Local Rules of CriminalProcedure”), defendants were required to file anyobjections to the Magistrate Judge's Report and Re-commendation by May 7, 2001. On May 3, 2001,defendants filed a motion for an extension of timeto file objections, stating that they needed addition-al time to evaluate the 78–page Report and Recom-mendation. On May 4, 2001, the Court granted themotion and extended the time to file objections toJune 4, 2001.
On June 4, 2001, defendants filed a second mo-tion for extension of time. This time, defendantsstated the need for the extension as follows:
While a draft of these objections has been pre-pared, this additional time is needed in order tocirculate and finalize the objections. That processnecessarily requires the coordination of effortsand incorporation of changes and revisionsamong counsel for five of the six defendants.
That same day, June 4, 2001, the Court granteddefendants' motion and extended the time to file ob-jections to June 8, 2001.
On Friday, June 8, 2001, at 4:27 p.m., defend-ants filed yet a third motion for extension of time.This time, defendants explained the need for the ex-tension as follows:
While a draft of these objections has been pre-pared, this additional time is needed in order tocirculate and finalize the objections. That processnecessarily requires the coordination of effortsand incorporation of changes and revisionsamong counsel for five of the six defendants.
This is obviously the exact same reason given
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in their June 4th motion.
On Monday, June 11, 2001, before the Courthad a chance to rule on or even consider the June8th motion for an extension,*439 defendants sub-mitted their proposed objections. The objections are93 pages long.FN1 Along with the objections, de-fendants filed a motion for permission to exceed the25–page limit for briefs contained in Rule 49.1(e)of the Local Rules of Criminal Procedure.
FN1. The objections are not double spaced.There appears to be only a single space orone and one-half spaces between lines. Inthe future, all briefs submitted by defensecounsel shall be double spaced.
After careful consideration, the Court deniesdefendants' June 8th motion for extension of time.Defendants waited until the last minute to file theirextension motion, clearly assuming that the Courtwould automatically grant the motion. However,the Court has granted defendants two previous ex-tensions, and they have cited no new reason for athird extension. Defendants have already been giv-en additional time to circulate and finalize theirproposed objections. No satisfactory explanation isgiven as to why the time was insufficient. Absent asufficient reason, this Court expects that itsscheduling orders will be obeyed. Scheduling or-ders are not mere formalities that can be disreg-arded or treated cavalierly. Waiting until one-halfhour before the close of business on the day the ob-jections are due to file a motion for an extension oftime demonstrates a lack diligence in trying to com-ply with the Court's scheduling orders.
Accordingly, because defendants' objectionswere not filed by June 8, 2001, they are untimelyand the Court shall not consider them.FN2
FN2. Similarly, defendants waited until thelast minute to request permission to exceedthe page limitation in the Local Rules ofCriminal Procedure. Again, defendantssimply assumed that the Court would grant
their request. By waiting until the elev-enth-hour to make the request, defendantsput the Court in a difficult position wherethere is no middle ground; the Court musteither except the 93–page brief or deny therequest, which results in the objections be-ing untimely. After reviewing the file,however, the Court sees no reason why itshould take defendants 93 pages to statetheir objections. After all, defendants' ori-ginal motion before the Magistrate Judgewas only 43 pages and the Report and Re-commendation itself is only 78 pages.
After carefully reviewing the Report and Re-commendation, the record in this case, and thepleadings and materials submitted by the parties,and no objections having been timely filed, it ishereby
ORDERED, that pursuant to 28 U.S.C. §636(b)(1)(A), and for the reasons set forth in Ma-gistrate Judge Foschio's Report and Recommenda-tion, the defendants' joint motion to dismiss and forsuppression of evidence is denied. Trial in this caseshall commence on July 17, 2001 at 9:30 a.m. A fi-nal pretrial conference shall be held on July 5, 2001at 2:00 p.m.
IT IS SO ORDERED.
REPORT and RECOMMENDATIONFOSCHIO, United States Magistrate Judge.
JURISDICTIONThis matter was referred to the undersigned,
pursuant to 28 U.S.C. § § 636(b)(1)(A) and636(b)(1)(B), on April 7, 2000 by Hon. Richard J.Arcara. The matter is presently before the court onDefendants' Joint Motion for Dismissal, to StrikeSurplusage, and for Suppression of Evidence filedDecember 22, 2000 (“Defendants' Motion”) (Doc. #66).FN1
FN1. Defendants' motion to strike surplus-age is non-dispositive. See United States v.King, 2000 WL 362026, *2 n. 1 (W.D.N.Y.
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March 24, 2000).
BACKGROUNDIn this case, Defendants Darnyl Parker, Ferby,
Rodriguez, and Hill are charged *440 with violat-ing 18 U.S.C. § 241, conspiracy to violate federallyprotected civil rights (Count I); and 18 U.S.C. §371, conspiracy to commit theft of governmentproperty in violation of 18 U.S.C. § 641 (Count II);Defendants Darnyl Parker, Ferby, and Rodriguezare charged with theft of government property onJanuary 7, 2000, in violation of 18 U.S.C. § § 641and 2 (Count III). Defendants Darnyl Parker, Ferby,Rodriguez, and Hill are charged with theft of gov-ernment property on February 13, 2000, in violationof 18 U.S.C. § § 641 and 2 (Count IV).
Count V of the Indictment charges DefendantsDarnyl Parker, Ferby, Rodriguez, and Hill withconspiracy to commit robbery and extortion, in-cluding under color of official right, in violation of18 U.S.C. § 1951. Count VI of the Indictmentcharges Defendants Darnyl Parker, Ferby, Rodrig-uez, and Hill with an attempted violation of 18U.S.C. § § 1951 and 2, by robbery and extortion,including under color of official right, on February13, 2000, by the taking and obtaining of $36,442from an undercover agent believed by Defendantsto be a drug dealer. Count VII charges Darnyl Park-er, Ferby, Rodriguez, and Hill with a violation of18 U.S.C. § 924(c), carrying and possession of afirearm in furtherance of the crimes of violence al-leged in Counts V and VI.
Defendant Darnyl Parker is individuallycharged with obtaining $1,000, on November 17,2000, from a confidential source, whom Defendantbelieved to be a drug dealer, by extortion, includingunder color of official right, in violation of 18U.S.C. § § 1951 and 2 (Count VIII). Parker is alsocharged with obtaining, on January 5, 2000, $1,000from the confidential source, by extortion, includ-ing under color of official right, in violation of 18U.S.C. § § 1951 and 2. Parker is further charged, inCount X, with conducting and attempting to con-duct, a financial transaction involving the transfer
and delivery of $2,500, represented to be proceedsof an unlawful narcotics transaction prohibited by21 U.S.C. § 841(a)(1), in violation of 18 U.S.C. § §1956(a)(3)(A) and 2.
In Count XI, the Indictment charges Defend-ants Darnyl Parker, William Parker, and RenoSayles with conspiracy to possess with intent to dis-tribute cocaine, on November 2, 1999, in violationof 21 U.S.C. § 846.
Finally, Defendant Ferby is charged, in CountXII, with obtaining information from a governmentagency, through unauthorized access to a computer,for unlawful purposes and private gain, as allegedin Counts I, II, and III, in violation of 18 U.S.C. § §1030(a)(2)(B), 1030(c)(2)(B) and 2.
On August 28, 2000, Defendants filed a motionfor a bill of particulars and discovery. (Doc. # 42).An Amended Bill of Particulars was filed by theGovernment on September 13, 2000 (Doc. # 48).By Decision and Order (“the D & O”) datedNovember 3, 2000 (Doc. # 54), the motion wasgranted in part, denied in part, and dismissed asmoot in part. Defendants subsequently filed objec-tions. On February 27, 2001, District Judge Arcararejected Defendants' objections and affirmed the D& O (Doc. # 81).
Defendants' Joint Memorandum of Law wasfiled December 27, 2000 (Doc. # 67); Defendants'Amended Joint Memorandum of Law was filedDecember 29, 2000 (Doc. # 67) (“Defendants'Memorandum”). The Government's Response toDefendants' Motions was filed on January 10, 2001(Doc. # 70); the Government's Amended Responsewas filed on January 23, 2001 (Doc. # 72)(“Government's Response”). Defendants' ReplyMemorandum of Law was filed January 23, 2001(Doc. # 71) *441 (“Defendants' Reply”). Oral argu-ment was conducted March 15, 2001.FN2
FN2. By letter dated April 13, 2001, theGovernment informed the court that De-fendant Sayles entered a plea of guilty be-
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fore the District Judge to a superseding in-formation (Doc. # 87) in resolution of theinstant charge and that, accordingly, themotion should be deemed withdrawn as toDefendant Sayles.
FACTS FN3
FN3. Facts are taken from the allegationsof the Indictment, the Complaint, filed onMarch 1, 2000 (Doc. # 1), the AmendedBill of Particulars (Doc. # 48), and the pa-pers filed in connection with the instantmotion.
Defendants Darnyl Parker, Rodriguez, and Hillare police officers employed by the City of BuffaloPolice Department, a law enforcement agency oper-ating under the laws of the State of New York, andare alleged during the relevant time periods, to havebeen assigned as detectives to the Department'sNarcotics Unit. Indictment Introduction ¶ ¶ 1–2.Defendant Ferby is an agent employed by theUnited States Drug Enforcement Agency (“DEA”)and, during the relevant periods as alleged in the In-dictment, assigned to the same Buffalo Police Nar-cotics Unit as Parker, Rodriguez, and Hill. Id., ¶ 2.
The Indictment alleges that Defendants DarnylParker, Ferby, Rodriguez, and Hill, while acting aspolice officers under color of state law, engaged ina conspiracy to violate the constitutional rights ofcertain persons, including “Jamaican” drug dealerswithin the City of Buffalo, specifically the protec-tions against unreasonable search and seizure andthe right to due process of law. Indictment Count I¶ 2. The conspiracy is alleged to have commencedno later than November 10, 1999 when DefendantDarnyl Parker met with a known drug trafficker,but who, unknown to Parker, was then also a con-fidential source (“CS–1”) for the Federal Bureau ofInvestigation (“FBI”). Indictment Count I ¶ 4.
On November 2, 1999, at a meeting betweenParker and CS–1 at Parker's residence, CS–1 gaveParker $2,500, representing part of the proceeds of
Parker's earlier $5,000 stake in a prospective co-caine transaction, conducted by CS–1, to be rein-vested for Parker's benefit and profit by CS–1 in afuture cocaine transaction. Indictment Count X;Complaint, ¶ 13. During a meeting with CS–1 onNovember 10, 1999, Parker stated to CS–1 thatParker and others were interested in robbing“Jamaicans,” apparently referring to illegal drugtraffickers from that country, and asked CS–1 if heknew any such persons. Indictment Count I, ¶ 14.Parker pursued the subject with CS–1 at meetingswith CS–1 on November 17 and November 23,1999. Id., ¶ ¶ 6, 7.
At the November 17th meeting, CS–1 paidParker $1,000 in government funds in return forsensitive law enforcement information provided byParker to CS–1 and another person regarding localdrug investigations. Complaint, ¶ ¶ 6, 15; Indict-ment Count VIII. Also, at the same meeting, Parkeris alleged to have repeatedly requested CS–1 to sellsome cocaine to Parker's son, William Parker, a co-defendant in Count XI. Indictment Count XI; Com-plaint, ¶ 15. During the November 17th meetingwith CS–1, Parker also stated to CS–1 that he wasinterested in robbing the Jamaican drug traffickers,but had no interest in arresting them, and assuredCS–1 he would be compensated for his assistancein Parker's robbery plan. Complaint, ¶ 15.
Following two meetings with CS–1 on Decem-ber 22 and December 29, 1999, Parker was told byCS–1, on January 5, 2000, that the supposed Ja-maican drug dealer *442 would soon be in Buffalo,that CS–1 would inform Parker of the location ofthe drug dealer's stash house on West Avenue inBuffalo and vehicle description, and that the dealerwould have money on him. Indictment Count I, ¶ ¶9–11. At the December 22nd meeting, Parker saidto CS–1, “Let's do it, let's do it, let's do it.” At theDecember 29th meeting, Parker asked CS–1 to givehim two days prior notice of the drug dealer's ex-pected visit “so I can get ready.” Id., ¶ ¶ 9, 11.
On January 5, 2000, during a meeting withParker at his residence in Buffalo, CS–1 paid Park-
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er another $1,000 in government funds for provid-ing CS–1 with sensitive law enforcement informa-tion. Indictment Count IX; Amended Bill of Partic-ulars No. 22; Complaint, ¶ 24.
After conducting surveillance on what they be-lieved was the Jamaican drug dealer's stash house at929 West Avenue in Buffalo on January 7, 2000,Defendants Darnyl Parker, Ferby, and Rodriguez,while acting in their official capacity as Buffalo po-lice officers, at about noontime, made a warrantlessand unauthorized forcible entry into the apartmentat the purported drug dealer's stash house intendingto steal cash and property belonging to the dealer,during which entry they stole a gold watch and agold ring which had been secretly placed there byinvestigators. Indictment Count I, ¶ 17; AmendedBill of Particulars No.13. Subsequently, on January10, 2000, at approximately 9 a.m., in furtherance ofthe conspiracy, Ferby allegedly made a computerinquiry regarding reported criminal activity at the929 West Avenue address through a federal govern-ment information data base using facilities at thelocal DEA office. Id., ¶ 20; Amended Bill of Partic-ulars No. 29.
After an unsuccessful attempt by DefendantsParker and Hill to effect a further unlawful reentryinto the West Avenue stash house, which took placeon January 15, 2000, Parker met with CS–1 onJanuary 24, 2000 at which time Parker requestedCS–1 inform him when the “Jamaican” drug dealerwould be in Buffalo so that Parker “can have [his]people ready.” Indictment Count I, ¶ ¶ 25–27. Park-er again met with CS–1 to ascertain when the drugdealer would arrive in Buffalo and was told byCS–1 that the drug dealer would be at a particularlocation in the City of Buffalo on February 13,2000. Id., ¶ ¶ 29, 30.
On February 13, 2000, after surveillance of thealleged drug dealer, then unknown to Defendants tobe an undercover agent with the Federal Bureau ofInvestigation (“FBI”), Kevin White (“AgentWhite”), Defendants Darnyl Parker, Ferby, Rodrig-uez, and Hill, acting in their official capacity as
Buffalo police officers and believing Agent Whiteto be the “Jamaican” drug dealer previously identi-fied by CS–1, stopped, detained and searchedAgent White, and his vehicle, eventually robbingAgent White of $36,442 in government fundswhich Defendants then believed to be proceeds ofnarcotics trafficking by White, posing as the Ja-maican drug dealer previously described to Defend-ants by CS–1. Indictment, ¶ 33. Defendants' stop,search, and seizure of White, and the robbery tookplace early in the evening on February 13th in apublic parking lot at the corner of Elmwood Aven-ue and Allen Street in Buffalo. Amended Bill ofParticulars No. 13.
According to the Indictment, Defendants neverofficially reported the stop of Agent White nor theseizure of the money from White, nor did Defend-ants inventory the money, turn it in to the BuffaloPolice Department as evidence, give White a re-ceipt for the money taken from him, or arrest Whiteas a narcotics trafficking suspect. Indictment CountI, ¶ ¶ 36, 39. Instead, Defendants converted thefunds for *443 their own purposes or those of an-other person. Id., ¶ 38. It is also alleged that whenDefendants stopped and robbed White, the fact thatthey were armed facilitated their ability to threatenWhite, and to successfully complete the plannedrobbery. Id., ¶ 4.
The Defendants' burglary, and attempted break-in, at the West Avenue apartment were the subjectof video and audio surveillance. Complaint, ¶ ¶ 26,31. The stop, detention, search and seizure ofmoney from Agent White on February 12, 2000was also monitored by surveillance along with in-tercepts of Defendant Parker's cellular telephoneconversations with his three co-conspirators. Com-plaint, ¶ ¶ 53, 54 n. 6, 63. Most of the conversationsbetween Defendant Darnyl Parker and CS–1 wereconsensually recorded by the investigators. Id., ¶ 3.
For CS–1's assistance in setting up Defendants'scheme to rob the “Jamaican” drug dealer, DarnylParker allegedly gave CS–1 $7,000, on February14, 2000, at a meeting at Parker's residence, as his
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share of the robbery proceeds. Indictment Count I,¶ 35; Complaint, ¶ 65. At that time, Parker askedCS–1 to sell some cocaine to Parker's son, co-defendant William Parker, and CS–1 indicated hewould contact Parker in the future to arrange for acocaine distribution to William Parker. IndictmentCount XI; Complaint, ¶ 65.
Allegedly, Darnyl Parker again met with CS–1on, Tuesday, February 22, 2000 at which timeCS–1 told Parker that William Parker should ar-range to pay CS–1 some money toward the pur-chase of cocaine if William Parker still was inter-ested. Indictment Count XI; Complaint, ¶ 68.Darnyl Parker told CS–1 to contact him that Fridayto arrange for making the payment. Complaint, ¶68. Darnyl Parker eventually telephoned CS–1 onMonday, February 25, 2000, and, later that day,phoned Reno Sayles, a relative and co-defendant inCount XI, to contact Parker regarding arranging forthe cocaine sale to William Parker. IndictmentCount XI; Complaint, ¶ ¶ 69, 70. At about 3 p.m.,Darnyl Parker, William Parker, Reno Sayles andCS–1 met at Darnyl Parker's residence at whichtime Darnyl Parker placed an order with CS–1 forone half of a kilogram of cocaine for Sayles andWilliam Parker, and gave CS–1 $6,600, one-half ofthe total price, as an advance payment. IndictmentCount XI; Complaint 73.
DISCUSSION1. Defendants' Motion to Dismiss for Violation ofFed.R.Crim.P. 7(c)(1) and the Sixth Amendment.
Defendants move to dismiss Counts I, II, andIV—XI as insufficiently pleaded in violation ofFed.R.Crim.P. 7(c)(1) and constitutional require-ments for federal indictments. Defendants' Motion ¶¶ 13–30 (Count I); Id., ¶ 36 (Count II); Id., ¶ ¶55–57 (Count IV); Id., ¶ ¶ 58–63, 65–69 (Count V);Id., ¶ ¶ 70–75 (Count VI); Id., ¶ ¶ 83–86 (CountVII); Id., ¶ ¶ 87–88 (Counts VIII & IX); Id., ¶ ¶97–98 (Count X); and Id., ¶ 101 (Count XI).
[2][3][4] An indictment is facially valid andconstitutionally sufficient if it contains the elementsof the offense charged, fairly informs a defendant
of the charges against which he must defend, andenables a defendant to plead double jeopardy in barof further prosecution. Hamling v. United States,418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590(1974); United States v. Hernandez, 980 F.2d 868,871 (2d Cir.1992). Further, a federal indictmentneed only track the language of the statute whichdefines the charged offense and, if necessary to ap-prise the defendant of the nature of the accusationagainst him, state the time and place of the allegedoffense in *444 approximate terms. Russell v.United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8L.Ed.2d 240 (1962); United States v. Covino, 837F.2d 65, 69 (2d Cir.1988). Where an indictmenttracks the statutory language, it should neverthelessprovide “facts and circumstances as will inform theaccused of the specific offence, coming under thegeneral description, with which he is charged.”Hamling, supra, at 117–18, 94 S.Ct. 2887 (internalcitation and quotation marks omitted).
[5][6] The form of the indictment is governedby Fed.R.Crim.P. 7(c)(1) and requires that the in-dictment “be a plain, concise, and definite writtenstatement of the essential facts constituting the of-fense charged.” It is well settled that indictmentswhich track the statutory language defining an of-fense are, as a general rule, sufficient under Rule7(c) so long as its application to a particular de-fendant is clear. United States v. Upton, 856F.Supp. 727, 739 (E.D.N.Y.1994). An indictmentwhich complies with Rule 7(c)(1) satisfies the SixthAmendment's requirement that the charge informthe defendant of the “nature and cause of the accus-ation.” Russell, supra, at 763–64, 82 S.Ct. 1038.Accord United States v. Walsh, 194 F.3d 37, 44 (2dCir.1999); Upton, supra, at 738.
[7] A fair reading of the challenged countsshows they all track the language of the statutesupon which they are based and fairly apprise De-fendants of the essential facts of the alleged of-fenses, as well as the nature and circumstances ofthe charges, as required by Fed.R.Crim.P. 7(c)(1)and the Sixth Amendment.
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A. Count I—Conspiracy to Violate Civil Rights.Count I provides 41 paragraphs of specific
facts upon which the alleged violation of 18 U.S.C.§ 241 is based. As relevant, § 241 outlaws conspir-acies “to injure, oppress, threaten, or intimidate anyperson in any state ... in the free exercise or enjoy-ment of any right or privilege secured ... by theconstitution.” In sum, Count I alleges Defendantsagreed to violate the constitutional rights of sup-posed drug dealers. Count I further specifies De-fendants acted with an intent to violate the FourthAmendment right to be free of unreasonablesearches and seizures, and the Fourteenth Amend-ment right to freedom from a deprivation understate law of liberty and property without due pro-cess. As such, the Count fairly tracks the languageof § 241, and provides ample details of the way De-fendants entered the conspiracy and acted in fur-therance of it, and therefore fairly alleges the natureand circumstances of the offense charged. Count Iis therefore not subject to dismissal upon thegrounds asserted by Defendants.
B. Count II—Conspiracy to Steal GovernmentProperty.
This count alleges Defendants conspired tocommit a theft of government property in violationof 18 U.S.C. § § 641 and 371. As relevant, § 641prohibits embezzlement, stealing, purloining, orknowing conversion of government property. Sec-tion 371 punishes any conspiracy to “commit anyoffense against the United States.” Count II fairlytracks the language of both the statutes, and togeth-er with the reallegation of paragraphs 4—41 of theIndictment with references to Count I, as the re-quired overt acts, it details the Defendants' entry in-to the alleged scheme and the circumstances of De-fendants' plan to steal property owned by the Gov-ernment. Count II thus contains a plain statement ofthe facts underlying the charge, and adequately ap-prises Defendants of the nature and circumstancesof the offense against *445 them. As such, it is notsubject to dismissal for insufficient pleading.
C. Count IV—Theft of Government Property.
Count IV alleges Defendants violated 18U.S.C. § 641 by stealing and converting moneytaken from Agent White on February 13, 2000. Thecount fairly tracks § 641, the substance of which isstated above, and therefore is sufficient on its face.
D. Count V—Hobbs Act Conspiracy.Count V charges Defendants conspired to ob-
struct, delay and affect interstate commerce by rob-bery, and extortion including claim of right in viol-ation of the Hobbs Act, 18 U.S.C. § 1951, duringthe period November 10, 1999 through March 2,2000 by taking money from a confidential sourceand a government undercover agent. As relevant, §1951 states that any person who “in any way or de-gree obstructs, delays, or affects commerce ... byrobbery or extortion or attempts or conspires so todo” violates the statute. 18 U.S.C. § 1951(a). Extor-tion is defined to include “obtaining of propertyfrom another, with his consent, induced by wrong-ful use of actual or threatened force, violence, orfear, or under color of official right.” 18 U.S.C. §1951(b)(2). As such, the count tracks the languageof the statute, provides the general circumstances ofthe alleged offense, and there is no basis to dismissit.
E. Count VI—Attempt to Violate the Hobbs Act.Count VI alleges an attempt to obstruct, delay
and affect interstate commerce of robbery and ex-tortion by taking money from the undercover agenton February 13, 2000 by threats of force, and con-sent induced by wrongful use of force or threats offorce, from the agent who Defendants believed wasa drug dealer. Here, again, the count substantiallytracks the statute, as recited above, and providesreasonable specifics permitting Defendants a fairopportunity to defend. Accordingly, it is sufficienton its face and not subject to dismissal.
F. Count VII—Firearm Violation.In this count, Defendants are alleged to have
knowingly, willfully, and unlawfully carried andpossessed a firearm in furtherance of a crime of vi-olence in violation of 18 U.S.C. § 924(c). As relev-ant, § 924(c) punishes any person “who, during and
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in relation to any crime of violence ... uses or car-ries a firearm, or who, in furtherance of any suchcrime, possesses a firearm”. 18 U.S.C. §924(c)(1)(A). The count specifically alleges thepredicate crimes of violence as required by § 924(c)to be the alleged Hobbs Act violations alleged inCounts V and VI. Therefore, this count also tracksthe statute, and provides fair detail as to nature andcircumstances of the offense. Accordingly, there isno basis to dismiss.
G. Count VIII—Hobbs Act Violation.This count charges Defendant Darnyl Parker
with an attempt to interfere with commerce by ex-tortion of $1,000 from a confidential source in viol-ation of 18 U.S.C. § 1951, the Hobbs Act. The rel-evant text of § 1951 is stated, supra. As such,Count VIII tracks the language of the statute andprovides the essential facts upon which the chargeis based. There is no basis to dismiss on thegrounds asserted by Defendants.
H. Count X—Money Laundering.Count X charges Defendant Parker with know-
ingly and wilfully engaging, and attempting to en-gage, on February 2, *446 1999, in a financialtransaction with a cooperating source involving thetransfer and delivery of $2,500 represented to con-stitute proceeds of an unlawful drug transaction, inviolation of 18 U.S.C. § 1956(a)(3)(A). As relevant,§ 1956(a)(3)(A) prohibits conducting or attemptingto conduct, with intent to carry on “specific unlaw-ful activity,” a financial transaction involving prop-erty, including currency, § 1956(c)(5), “representedto be the proceeds of specified unlawful activity.”The statute defines specified unlawful activity toinclude illicit drug trafficking. §§ 1956(c)(7)(A);1961(1). “Represented” is defined to include rep-resentations made by a law enforcement officer oranother person at the direction of a federal investig-ator or prosecutor. § 1956(a)(3)(A). As such, thecount tracks the elements of § 1956(a)(3)(A), andprovides notice of the essential facts upon whichthe charge is based. Accordingly, the count is notsubject to dismissal.
I. Count XI—Narcotics Conspiracy.This count charges Defendants Darnyl Parker,
William Parker and Reno Sayles with a conspiracyto possess with intent to distribute 500 grams ormore of cocaine between November 17, 1999 andMarch 2, 2000 in violation of 21 U.S.C. § 846. Asrelevant, § 846 prohibits conspiracies entered intofor the purpose of violating 21 U.S.C. § 841(a)(1),by possession, distribution or possession with intentto distribute a controlled substance, including co-caine. As such, Count XI fairly tracks the statute,provides sufficient details of the basis of thecharge, and is not subject to dismissal.
Accordingly, as to each count challenged byDefendants as insufficiently pleaded in violation ofFed.R.Crim.P. 7(c)(1) and the Sixth Amendment,the court finds the count substantially tracks thelanguage of each statute and provides sufficient no-tice of the nature and circumstances of each charge.There is, therefore, no merit to Defendants' motionon this ground.
2. Duplicity.Defendants move to dismiss Counts I, II, III,
IV, V, VI, VII, VIII, and IX on the grounds they areduplicitous. Defendants' Motion, ¶ ¶ 14—30 (CountI); Id., ¶ ¶ 46—49 (Count II); Defendants' Reply at8–10 (Count III); Defendants' Motion, ¶ ¶ 55—57(Count IV); Id., ¶ ¶ 64—69 (Count V); Id., ¶ ¶76—79 (Count VI), Id., ¶ ¶ 92–93 (Counts VIII andIX); see generally Defendants' Memorandum at12–13; Defendants' Reply at 4–13.
In particular, Defendants assert that becauseCount I alleges that the general purposes of theconspiracy were to “rob and steal money, propertyand drugs ... and to convert” such to their own use,Indictment Count I ¶ 3, the count charges three dif-ferent offenses, and is therefore duplicitous. De-fendants' Memorandum at 12; Defendants' Reply at4. The same argument is raised by Defendantsagainst Count II as it alleges, Indictment Count II ¶2, that Defendants conspired to commit an offenseagainst the United States by stealing, purloining,and converting government funds and property. Id.
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Defendants similarly attack Counts III and IV inthat these counts charge Defendants with stealing,purloining, and converting government propertylocated at the West Avenue apartment on January 7,2000 (Parker, Ferby, and Rodriguez) (Count III),and the $36,442 in government funds from AgentWhite on February 13, 2000 (Parker, Ferby,Rodriguez, and Hill) (Count IV), respectively. Id.
Further, Defendants move against Count V onthe ground that the count alleges a violation of theHobbs Act by conspiracy to obstruct, delay, and af-fect *447 commerce through robbery and extortion,and Count VI on the ground that this count allegesan attempted violation of the Hobbs Act throughrobbery, extortion and under color of official right.Defendants' Reply at 10–13. Finally, Defendants ar-gue Count VIII, charging Defendant Darnyl Parkerwith a Hobbs Act violation, and Count IX, chargingParker with a second Hobbs Act violation, shouldbe dismissed because these counts allege crimescommitted through the use of force, threats offorce, extortion, and under color of official right.Id. According to Defendants, as these Hobbs Actviolation counts allege the respective offenses werecommitted through acts described as stealing, pur-loining,FN4 converting, robbery, force, threats offorce, extortion, and under color of right, the countsallege more than one crime and, hence, are duplicit-ous. Defendants' Memorandum at 12–13; Defend-ants' Reply at 4–13.
FN4. “to take away for one-self: appropri-ate wrongfully and often under circum-stances that involve a breach of trust.”WEBSTER'S THIRD NEW INTERNA-TIONAL DICTIONARY, UNABRIDGED(1986) at 1846.
[8][9][10] “An indictment is duplicitous if itjoins two or more distinct crimes in a single count.”United States v. Aracri, 968 F.2d 1512, 1518 (2dCir.1992) (citing United States v. Murray, 618 F.2d892, 896 (2d Cir.1980)); United States v. Droms,566 F.2d 361, 363 (2d Cir.1977); United States v.Gleave, 786 F.Supp. 258, 264 (W.D.N.Y.1992),
rev'd on other grounds sub nom. United States v.Knoll, 16 F.3d 1313 (1994). The test to be appliedto determine whether there are two offenses or onlyone offense charged is “whether each provision inthe count requires proof of a fact which the otherdoes not.” Blockburger v. United States, 284 U.S.299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Acount of an indictment should only be ruled imper-missibly duplicitous when the policy goals underly-ing this doctrine are offended, i.e., “if a general ver-dict of guilty might actually conceal contrary find-ings as to different alleged crimes, or if an appro-priate basis for sentencing is not provided.” UnitedStates v. Margiotta, 646 F.2d 729, 732–33 (2dCir.1981).
[11][12] As to conspiracy charges, it is estab-lished law that a conspiracy may be alleged to havemultiple purposes. Braverman v. United States, 317U.S. 49, 54, 63 S.Ct. 99, 87 L.Ed. 23 (1942) (“forconspiracy is the crime and that is one, however di-verse its objects”). Thus, a conspiracy count al-leging the conspiracy had multiple objectives is notduplicitous. United States v. Murray, 618 F.2d 892,896–97 (2d Cir.1980) (“allegation in single countof conspiracy to commit several crimes is not dupli-citous because conspiracy is one crime despite di-verse objects”). Further, a count of an indictment isnot duplicitous if the allegation states that the of-fense has been committed in more than one way orthrough different means. See United States v.Schwartz, 899 F.2d 243, 246 (3rd Cir.1990), cert.denied, 498 U.S. 901, 111 S.Ct. 259, 112 L.Ed.2d217 (1990) (bank fraud); United States v. Berardi,675 F.2d 894, 897 (7th Cir.1982) (obstruction ofjustice); United States v. Droms, supra, at 363(falsifying financial statements to IRS); UnitedStates v. Carson, 464 F.2d 424, 435 (2d Cir.)(conspiracy committed by alternate means not du-plicitous), cert. denied, 409 U.S. 949, 93 S.Ct. 268,34 L.Ed.2d 219 (1972); United States v. Wesley,918 F.Supp. 81, 86 (W.D.N.Y.1996) (receipt orpossession of a firearm by a felon in violation of 18U.S.C. § 922(g)(1)).
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[13] Where, therefore, the statute defining theoffense defines disjunctively, i.e., *448 through theuse of the conjunctive “or,” the means by which thestatute may be violated, it is permissible to allegethe offense in the indictment conjunctively, i.e.,through the use of the conjunctive “and.” UnitedStates v. Astolas, 487 F.2d 275, 279 (2d Cir.1973)(citing United States v. Conti, 361 F.2d 153 (2dCir.1966), rev'd on other grounds, 390 U.S. 204, 88S.Ct. 899, 19 L.Ed.2d 1035 (1968)), cert. denied,416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305(1974). In such a case, a conviction will be sus-tained “if the evidence justifies a finding that thestatute was violated in any of the ways alleged.”Id., see also Turner v. United States, 396 U.S. 398,420, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); UnitedStates v. Burton, 871 F.2d 1566, 1572 (11thCir.1989) (issue presented under 18 U.S.C. § 641);United States v. Hicks, 619 F.2d 752, 758 (8thCir.1980) (noting rule is “well known” and statingthat upon trial court usually instructs jury in the“disjunctive form used in the statute.”); UnitedStates v. Viserto, 596 F.2d 531, 538 (2d Cir.1979)(charge of distribution and possession with intent todistribute in single count alleging violation of 21U.S.C. § 841(a) upheld); United States v. Wyant,576 F.2d 1312, 1319 (8th Cir.1978) (quoting UnitedStates v. Conti, supra.); United States v. UCO OilCompany, 546 F.2d 833, 837 (9th Cir.1976).
Indeed, charging in the disjunctive “wouldmake the indictment bad for uncertainty, so it is ne-cessary to connect them [the actions of defendantalleged to violate the statute] with the conjunctive‘and’ before the evidence can be admitted as tomore than one act.” Joyce v. United States, 454F.2d 971, 977 (D.C.Cir.) cert. denied, 405 U.S.969, 92 S.Ct. 1188, 31 L.Ed.2d 242 (1972). As thecourt in Joyce, supra, stated, “[t]his favors the ac-cused for he will be charged with only one offenseand a judgment on a general verdict of guilty uponthat count will bar further prosecution on all mat-ters alleged therein.” Id.
[14] In Counts I and II, the allegations charging
that the object of Defendants' conspiracy was “torob and steal” from its intended victims, Indict-ment, Count I ¶ 3; Count II, ¶ 3, are permitted asconspiracies may have multiple objectives, Braver-man, supra, and as stated, Discussion, supra, at447–48, an indictment may allege conjunctivelywhat a statute defines disjunctively as the prohib-ited means by which the offense may be accom-plished. Here, as discussed, Discussion, supra, at444, each count of the Indictment challenged byDefendants, fairly tracks the language of the re-spective statutory provision upon which the count isalleged to be based.
Specifically, Count I alleges that Defendants,while acting under color of state law, conspired toviolate the constitutional rights and privileges ofpersons within the City of Buffalo during the periodbetween November 10, 1999 and March 2, 2000through injury, oppression, threats, and intimida-tion. The allegations relating to this count describea scheme by which the Defendants, acting as policeofficers, sought to rob and steal from suspected“Jamaican” drug dealers their illegal drugs and drugtrafficking proceeds after being identified to De-fendants by a known drug trafficker, and, in fur-therance of the conspiracy, carried out a warrantlessentry into, and theft from, a supposed drug stashhouse, and a subsequent theft of suspected drugmoney from an undercover agent believed by De-fendants to be such for a “Jamaican” drug dealer.Indictment Count I, ¶ ¶ 3–41. Count II, based onthe general allegations set forth with Count I,charges Defendants with a conspiracy to steal, pur-loin, and convert government property, namely thevaluables and cash *449 planted by investigators atthe undercover stash house on West Avenue takenby Defendants on January 7, 2000, and the cash inthe possession of the undercover agent posing as adrug dealer taken by Defendants on February 13,2000, in violation of 18 U.S.C. § 641.
As stated, a conspiracy count is not duplicitousbecause it alleges that the conspiracy had multipleobjects. Braverman, supra; Murray, supra. Further,
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to the extent that Counts I and II charge in the con-junctive how the objective of the conspiraciescharged were to be accomplished, such allegationsproperly allege the alternative means by which thedefined offense may be committed. Aracri, supra;Carson, supra. Accordingly, neither Count I norCount II is duplicitous for the reasons asserted byDefendants.
[15] Counts III and IV charge thefts of govern-ment property, namely the cash taken from the sup-posed West Avenue stash house on January 7,2000, and from Agent White on February 13, 2000,in violation of 18 U.S.C. § 641. Defendants attackthese counts as duplicitous in that, according to De-fendants, because the counts allege Defendantsstole, purloined, and converted the cash, the countseach charge at least two distinct crimes. Defend-ant's Reply at 8.
As relevant, 18 U.S.C. § 641 prohibits embez-zlement, stealing, purloining, or “knowingly” con-verting any “money” or “thing of value of theUnited States.” Count III charges that DefendantsParker, Ferby, and Rodriguez, on January 7, 2000“did knowingly, willfully, and unlawfully steal,purloin, and convert to their own use, and the use ofanother, certain property and things of value of theUnited States having a value in excess of $1,000”described as a gold watch and ring. Indictment at16. Count IV alleges identical conduct by all fourDefendants with respect to the taking of cash fromAgent White on February 13, 2000. Indictment at16–17. Thus, each count tracks the language of §641, and alleges, conjunctively, the alternativemeans by which the offense as defined in the statutemay be committed.
[16] That a count in an indictment asserts, asstated in the relevant statute, that the offense maybe committed in a variety of ways does not renderthe count duplicitous. “A duplicitous indictment,which alleges several offenses in the same count,must be distinguished from ‘the allegation in asingle count of the commission of a crime by sever-al means.’ ” Aracri, supra, at 1517 (quoting Mur-
ray, supra, at 896). “The latter is not duplicitous.”Id. Moreover, even if the conduct alleged couldhave been charged in separate counts, the fact thatsuch conduct is alleged in a single count does notrender the indictment duplicitous where the indict-ment tracks the elements of the offense as definedin the statute. United States v. Zolli, 51 F.R.D. 522,527 (S.D.N.Y.1970) (“[a duplicity] inquiry is ne-cessary only where the indictment is not framed inthe statutory language.”) In Zolli, the count chal-lenged as duplicitous charged defendants with a vi-olation of 18 U.S.C. § 1503—intimidation of a fed-eral witness and obstruction of justice. Rejectingdefendants' contention that the separate clauses ofthe statute describing witness intimidation and ob-struction of justice stated separate offenses, thecourt found that § 1503 established the offense ofobstruction of justice through the alternative meansas defined in the statute and, accordingly, suchmeans were properly included in a single count.Zolli, supra, at 528.
Nor is there any merit to Defendants' conten-tion regarding Counts III and IV that as the altern-ative means by which a violation of 18 U.S.C. §641 may be accomplished,*450 i.e., to steal, pur-loin, or convert, commonly recognized forms of thecrime of theft, are, included as elements of the un-derlying offense defined by § 641, alleging them ina single count renders the count duplicitous. De-fendants' Memorandum at 12–13. To assert that anelement of a crime is a separate offense merely be-cause it incorporates a common law crime does notmake the element itself an offense which may beseparately charged in an indictment. Rather, it re-mains an element regardless of whether the crimesare defined by the statute to constitute, as here, al-ternative means by which the offense, as defined bythe statute, may be committed. Moreover, § 641does not seek to punish the embezzling, stealing,purloining or conversion as crimes per se, rather, itprohibits any such form of theft of governmentproperty. It is black letter law that a crime isdefined by its elements. Black's Law Dictionary,6th ed. (West 1990) at 520 (defining “elements” as
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“[t]hose constituent parts of a crime which must beproved by the prosecution to sustain a convic-tion.”). Defendants' argument that the alternativemeans of committing the crime of violating § 641,as defined in the statute, brings to mind the obser-vation, attributed to Lincoln, that calling a dog's taila leg will not thereby cause the dog to have fivelegs as the dog's tail remains a tail and not a dog'sleg no matter what it is called. Defendants cantherefore no more transmute an element of a crimeinto a separate offense by referring to it as suchthan could calling the dog's tail a leg in Lincoln'saphorism change the number of legs on the dog.
In United States v. Hill, 835 F.2d 759 (10thCir.1987), relied on by Defendants, Defendants'Reply at 8–9, the indictment, charging a violationof 18 U.S.C. § 641, only alleged defendant, an er-ratic cooperating witness, had stolen drug buymoney from the DEA, and failed to conjunctivelyallege a theft by conversion of the subject govern-ment property; however, the evidence at trialproved only that defendant converted the buymoney after receiving it from the agency. Hill,supra, at 763–64. Finding a prejudicial variance,the court refused to affirm defendant's convictionupon the indictment. Id. As such, Hill provides nosupport for Defendants' contention that the chal-lenged counts in this case are duplicitous. Rather,by implication, the case holds that a conjunctivepleading of the alternative forms of theft defined by§ 641 is proper, and indeed. necessary, to accom-modate potential variations in the Government'sevidence at trial. Accordingly, where, as here, theindictment charges an offense the commission ofwhich the statute provides may be accomplished byalternative means, as defined elements of the of-fense, the duplicity doctrine is inapplicable. SeeZolli, supra, at 527.
[17] Defendants' attacks on Counts V, VI, VIII,and IX of the Indictment for duplicity, Defendants'Memorandum at 12; Defendants' Reply at 10–13,fail for the same reasons. Count V charges all De-fendants with a conspiracy to violate the Hobbs Act
by robbery and extortion as defined in 18 U.S.C. §1951 based on an agreement to unlawfully takemoney from CS–1 and Agent White. Count VIcharges all Defendants with violating § 1951 bytaking money from Agent White on February 13,2000 by force and consent obtained under color ofright. Counts VIII and IX charge Defendant Parkerwith violating § 1951 in connection with two tak-ings of money from CS–1, the confidential sourcewith whom Parker had been dealing. However, asdiscussed, a conspiracy may be alleged to havemultiple purposes and offenses generally may be al-leged to have been committed by alternate meanswithout becoming duplicitous.
*451 Defendants argue that Counts V, VI, VIII,and IX should be found to be duplicitous based onUnited States v. Starks, 515 F.2d 112 (3d Cir.1975).Defendants' Reply at 10–13. In Starks, the indict-ment charged, in a single count, both conspiracy toviolate the Hobbs Act and an attempt to do so.Starks, supra, at 116. Relying on United States v.Jacobs, 451 F.2d 530, 534 (5th Cir.1971), cert.denied, 405 U.S. 955, 92 S.Ct. 1170, 31 L.Ed.2d231 (1972), the court in Starks stated that theHobbs Act enacted four separate of-fenses—robbery, extortion, attempted robbery orextortion, and conspiracy to commit robbery or ex-tortion. Starks, supra, at 115 n. 4. As the court inStarks found the challenged count charged both aconspiracy and an attempted violation of the stat-ute, the court held it was improper, and that thegovernment should have been required to electupon which form of the offense under 18 U.S.C. §1951 it requested a verdict, or the indictmentshould have been dismissed. Id.
However, in the case at bar, Defendants arecharged with conspiracy to violate § 1951 as to“Jamaican” drug dealers in Count V, and with anattempt to violate § 1951 in Count VI as to particu-lar supposed “Jamaican” drug dealer, Agent White.Moreover, Count VIII charges Defendant DarnylParker with an attempt to violate § 1951 as to CS–1on a particular occasion and, in Count IX, Parker is
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charged with a second attempt to violate § 1951 asto CS–1 on a different occasion. In the instant case,as the alleged § 1951 conspiracy, Count V, and thethree attempted violations of § 1951 (Counts VI,VIII & IX) are each stated in separate counts,Starks is inapposite to Defendants' motion. Addi-tionally, as each of these counts tracks the languageof the respective statute, § 1951, it is not duplicit-ous. Zolli, supra. Finally, as discussed, an indict-ment which charges conjunctively what the statuteprohibits disjunctively, is not duplicitous. Discus-sion, supra, at 447–48. Thus, there is no merit toDefendants' contention that Count V, VI, VIII, andIX are subject to dismissal on duplicity grounds.
[18] Even assuming any of the counts chal-lenged by Defendants were found to be duplicitoussuch fact does not require dismissal as the remedyof a special jury instruction to assure unanimity willavoid any prejudice to Defendants. United States v.Weller, 238 F.3d 1215, 1219–220 (10th Cir.2001)(rejecting argument that 18 U.S.C. § 656 charge ofembezzlement and willful misapplication are dupli-citous and approving special instruction requiringjury be unanimous on either means of committing“a single offense.”); Droms, supra, at 362 n. 1(“Duplicity, of course, is a rule of pleading andwould in no event be fatal to the count.”); Bins v.United States, 331 F.2d 390, 393 (5th Cir.1964)(recognizing “approved procedure for submittingduplicitous counts [to jury] by limiting instruc-tions”); Gleave, supra, at 265 (noting use of specialjury instruction requiring unanimity on specificevidence of culpability to guard against potentialjury confusion where defendants claimed dupli-city).
Further, should the trial judge determine, afterhearing all of the Government's proof, that therenevertheless exists a serious risk of jury confusion,another remedy would be to require the Govern-ment to elect among the alternative theories ofculpability presented rather than to dismiss thatcount of the indictment. United States v. Vario,1989 WL 253781 *8 (E.D.N.Y.1989) (an appropri-
ate remedy when a count is duplicitous is to havethe government elect the charge contained in thecount upon which it will rely); United States v.Kearney, 444 F.Supp. 1290, 1295 (S.D.N.Y.1978) (“Unless the defects inherent*452 in a duplicitouscount have not been obviated by the contents of abill of particulars or appropriate jury instructions ...the appropriate remedy for a duplicitous count is torequire the government to elect one of the multipleoffenses embraced therein on which to proceed.”)(citing cases).
Finally, based on the extensive discoveryprovided to Defendants regarding the expectedevidence at trial as well as the details of the back-ground of the investigation as recited in the Indict-ment, Defendants have been given adequate noticeof the basis of the Government's case as to eachcount. Additionally, Discussion, supra, at 451, spe-cial instructions to the jury can avoid the risk that afinding of guilt on any offenses claimed by Defend-ants to be included improperly within a singlecount, will lack unanimity. Thus, even if it is as-sumed that any duplicity exits regarding any countof the Indictment as challenged by Defendants,such will not violate, in this case, the policies un-derlying the duplicity doctrine requiring dismissalof the counts prior to trial. See Margiotta, supra, at733 (single count containing several allegationswhich could have been separately stated as offensesnot duplicitous unless failure to do so “risks unfair-ness to the defendant.”).
Here, based on the detailed allegations con-tained in the Indictment, the extensive discoveryavailable to Defendants, and the availability of spe-cial instructions to the jury to assure a unanimousverdict, no such unfairness to Defendants will resultif the Government is not required to separately al-lege the acts which Defendants assert render thecounts duplicitous.FN5 Accordingly, Defendants'attack on the Indictment based on any asserted du-plicity is without merit.
FN5. As the Government has not assertedthat any duplicitousness in the Indictment
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is subject to the single continuing schemeexception available in this circuit, seeAracri, supra, at 1518 (acts capable of sus-taining separate counts may be included insingle count “if those acts could be charac-terized as part of a single continuing of-fense.”) (quoting United States v. Tutino,883 F.2d 1125, 1141 (2d Cir.1989), cert.denied, 493 U.S. 1081, 110 S.Ct. 1139,107 L.Ed.2d 1044 (1990), rejecting FifthCircuit law as stated in Bins, supra, at 393(“any acts capable of being charged as sep-arate counts must be alleged in separatecounts.”)), the court will not addresswhether the exception may be applicable toany of the counts challenged by Defend-ants.
3. Failure to State an Offense.Defendants also seek to dismiss Counts I, II,
and IV—XI of the Indictment on the ground thatupon the facts as stated, the counts fail, as matter oflaw, to establish the respective offenses charged.Defendants' Motion, ¶ ¶ 6–12 (Count I); Id., ¶ ¶36–39, ¶ ¶ 42–45, ¶ ¶ 48–49 (Count II); Id., ¶ ¶50–54 (Count IV); Id., ¶ ¶ 58–63 (Count V); Id., ¶ ¶70–75 (Count VI); Id., ¶ ¶ 80–82 (Count VII); Id., ¶¶ 87–91 (Counts VIII & IX); ¶ ¶ 94–96, ¶ 98(Count X); Id., ¶ ¶ 99–100 (Count XI.)
A. Count I—Conspiracy to Violate § 241.Defendants assert that Count I should be dis-
missed as, based on the facts stated in the Indict-ment, Defendants could not as a matter of law haveviolated any constitutional right of Agent White,the person whom Defendants believed was a drugdealer when they took the alleged action againsthim on February 13, 2000. Indictment, ¶ 33. De-fendants' Memorandum at 13–26; Defendants'Reply 15–24. Specifically, Defendants contend that(i) as the undercover agent, as part of the investiga-tion, expected Defendants to stop him and voluntar-ily handed over the money at Defendants' allegedrequest, the encounter was consensual and thereforecould not *453 constitute a seizure within the
Fourth Amendment; (ii) no unlawful search andseizure occurred as, based on the facts alleged inthe Indictment, Defendants had probable cause tostop the agent whom they reasonably believed to bea drug dealer and seize what they reasonably be-lieved to be proceeds of drug trafficking; (iii) as themoney reasonably believed by Defendants to bedrug trafficking proceeds seized from the undercov-er agent was subject to forfeiture and as under therelation back doctrine there was no lawful owner-ship interest in the money by the agent or govern-ment, it was thus legally impossible for Defendantsto commit a theft of government property as to themoney; and (iv) any corrupt intent by Defendants,as alleged in the Indictment, does not vitiate De-fendants' reasonable objective belief that they wereacting with probable cause thereby rendering it im-possible that Defendants acted in violation of theagent's constitutional rights, relying on Whren v.United States, 517 U.S. 806, 116 S.Ct. 1769, 135L.Ed.2d 89 (1996) and Graham v. Connor, 490U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).Defendants' Memorandum at 14–20. There are sev-eral errors in Defendants' contentions.
Under federal law, intentional violations ofconstitutional rights are subject to two forms ofcriminal prosecution. 18 U.S.C. § 242 prohibitswillful violations of the constitutionally protectedrights of persons and discrimination based on raceor alien status. 18 U.S.C. § 241, prohibiting anyconspiracy to violate federal constitutional rights,the offense of which Defendants are charged, isconsidered the companion statute to § 242 and issubject to similar requirements of proof as to theelement of willfulness set forth in § 242. Screws v.United States, 325 U.S. 91, 117, 65 S.Ct. 1031, 89L.Ed. 1495 (1945) (Rutledge, J.) (concurring op.);United States v. McClean, 528 F.2d 1250, 1255 (2dCir.1976) (extortionate police seizure of moneyfrom drug dealers pursuant to a conspiracy “wouldalso have constituted a violation of § 241”).
[19][20] It is fundamental that when law en-forcement officers commit actionable wrongs
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against individuals, such conduct may constitute aviolation of the person's constitutional rights eventhough if the same action were taken by a wrongdo-er not acting under color of law the conduct wouldnot constitute such a violation. Bivens v. Six Un-known Agents, 403 U.S. 388, 391–92, 91 S.Ct.1999, 29 L.Ed.2d 619 (1971). “An agent act-ing—albeit unconstitutionally—in the name of the[state] possesses a far greater capacity for harmthan an individual trespasser exercising no author-ity other than his own.” Id. at 392, 91 S.Ct. 1999(citing cases). Thus, where one acting under colorof state law commits a crime against an individual,which impairs a constitutionally protected personalor property interest, such conduct may be prosec-uted under 18 U.S.C. § 242. See United States v.Lanier, 520 U.S. 259, 261, 117 S.Ct. 1219, 137L.Ed.2d 432 (1997) (conviction of state judge under§ 242 for rape of employees may be sustained if de-fendant had fair warning that conduct subject tocriminal liability under § 242 as violating victim'sliberty interest right to be free from assaultswithout due process). The fact that a victim of po-lice illegality may also be guilty of criminal behavi-or, which motivated the investigative activity, doesnot disentitle such person to the protection of theFourth and the Fourteenth Amendment, and such il-legality may constitute a violation of § 242. Irvinev. California, 347 U.S. 128, 137, 74 S.Ct. 381, 98L.Ed. 561 (1954) (“If the officials have willfullydeprived a citizen of the United States of a right orprivilege secured to him by the Fourteenth amend-ment, that being the right to be secure ... against*454 unreasonable searches ... their conduct mayconstitute a federal crime under ... [18 U.S.C. § 242]”) (warrantless search and seizure by police ofhome of suspected gambler); McClean, supra, at1254–55 (conviction for conspiracy under 18U.S.C. § 371 to violate 18 U.S.C. § 242 and for vi-olation of § 242 upheld where police extorted fromdrug dealers proceeds of drug trafficking). See alsoUnited States v. Alonso, 740 F.2d 862, 872 (11thCir.1984) (conviction under 18 U.S.C. § 242 for vi-olation of due process rights of persons with owner-ship interests in drug trafficking proceeds upheld
where police fraudulently removed funds from po-lice department property room) (citing McClean,supra.).
[21][22] Willful conduct taken by officers withthe specific intent to violate rights made specific bythe provisions of the Constitution or decisions ofthe courts interpreting them will support a convic-tion under § 242. Screws, supra, at 103–04, 65S.Ct. 1031. “The fact that the defendants may nothave been thinking in constitutional terms is notmaterial where their aim was not to enforce locallaw but to deprive a citizen of a right and that rightwas protected by the Constitution.” Id. at 105, 65S.Ct. 1031 (emphasis added). Thus, if the evidencedemonstrates that a police officer did not act withthe purpose of enforcing the law but, rather, with acriminal intent and thereby willfully violated a fed-erally protected right, criminal liability under § 242may attach. If criminal liability under § 242 arisesbased on such circumstances, as a completed of-fense, it follows that, where an officer conspireswith similar intent to violate such protected rights,criminal culpability also arises under § 241. UnitedStates v. Guest, 383 U.S. 745, 759, 86 S.Ct. 1170,16 L.Ed.2d 239 (1966) (where “predominant pur-pose of the conspiracy is to impede or prevent exer-cise of [a constitutional right],” culpability under §241 attaches regardless of defendant's othermotives).
[23] It is well established that a conspiracycharge does not require a showing that the unlawfulobjectives of the conspiracy be accomplished.United States v. Feola, 420 U.S. 671, 694, 95 S.Ct.1255, 43 L.Ed.2d 541 (1975). “The law of conspir-acy identifies the agreement to engage in a criminalventure as an event of sufficient threat to social or-der to permit the imposition of criminal sanctionsfor the agreement alone ... regardless of whether thecrime agreed upon is actually committed.” Id. (cit-ing United States v. Bayer, 331 U.S. 532, 542, 67S.Ct. 1394, 91 L.Ed. 1654 (1947)). “Criminal intenthas crystallized, and the likelihood of actual, ful-filled commission warrants preventive action.”
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Feola, at 694, 95 S.Ct. 1255; United States v. Tra-pilo, 130 F.3d 547, 553 n. 9. (2d Cir.1997) (quotingUnited States v. Everett, 692 F.2d 596, 600 (9thCir.1982) (“[T]he crime of conspiracy is completeupon the agreement to violate the law, ... and is notdependent upon the ultimate success or failure ofthe planned scheme.”), cert. denied, 460 U.S. 1051,103 S.Ct. 1498, 75 L.Ed.2d 930(1983)).
[24] Further, the crime of conspiracy does notrequire that the object of the unlawful agreement becapable of fruition. “[T]he impossibility that the de-fendants' conduct would result in consummation ofthe contemplated substantive crime is not persuas-ive or controlling.” United States v. Meyers, 529F.2d 1033, 1037 (7th Cir.), cert. denied, 429 U.S.894, 97 S.Ct. 253, 50 L.Ed.2d 176 (1976).Moreover, a mistaken belief by alleged conspiratorsas to the existence of facts which provide the basisfor federal prosecution is no defense to a conspir-acy charge to commit the substantive offense whichis the object of the conspiracy. Feola, supra,(holding that knowledge of the true identity of vic-tim as *455 a federal officer unnecessary to an in-dictment for conspiracy to assault a federal officer);United States v. Jannotti, 673 F.2d 578, 591 (3dCir.) (en banc ) (upholding Hobbs Act conspiracyconvictions based on receiving money to influenceofficial conduct from undercover agents posing asforeign business persons seeking favorable officialaction using government funds), cert denied, 457U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); United States v. Rose, 590 F.2d 232, 235 (7thCir.1978) (upholding conviction for conspiracy toengage in interstate transportation of stolen goodsdefendants erroneously believed to be stolen by un-dercover agents who never intended to engage inthe planned theft), cert. denied, 442 U.S. 929, 99S.Ct. 2859, 61 L.Ed.2d 297 (1979); Craven v.United States, 22 F.2d 605, 609 (1st Cir.1927)(sustaining conviction for conspiracy to illegallyimport foreign liquor despite defendants' erroneousbeliefs that liquor was of foreign origin). “It is ... ir-relevant that the ends of the conspiracy were fromthe very inception of the agreement objectively un-
attainable.” Jannotti, supra, at 591 (citing cases).But see Ventimiglia v. United States, 242 F.2d 620(4th Cir.1957) (mistaken belief that person towhom defendants made payments was a union rep-resentative negated conviction for conspiracy to vi-olate 29 U.S.C. § 186(a) prohibiting employer pay-ments to union representative).
While a legal impossibility that a defendantcould have intended to commit an alleged unlawfulobjective may, in limited circumstances, constitutea defense to a conspiracy charge, no facts in the In-dictment support a finding that it was legally im-possible for Defendants to conspire with the intentto violate federal constitutional rights. “Unless alegal impossibility arising at the time of the act[which is the object of the conspiracy] relates backto cover the intent which precedes the substantiveact and makes it [the substantive act] non-criminal... [such impossibility of intent] does not apply tothe inchoate crime of conspiracy ....” Perry E.Mann, Jr., Case Comment, IMPOSSIBILITY INCONSPIRACY, 15 Wash. & Lee L.Rev. 122, 127(1958). See also DEVELOPMENTS IN THE LAW,CRIMINAL CONSPIRACY, 72 Harv. L.Rev. 922,944–45 (1959) (noting that “unless unlawful intent[going to the object of the conspiracy] is legally im-possible, an anti-social combination exists.”)(citing, as an example of such legal impossibility,Foster v. Commonwealth, 96 Va. 306, 31 S.E. 503(1898) (boy under fourteen cannot have the legalintent to commit rape)); see also State v. Moretti,97 N.J.Super. 418, 235 A.2d 226 (1967) (findingconspiracy to perform illegal abortion on non-pregnant woman not legally impossible of comple-tion). The Second Circuit has stated that even a leg-al impossibility as to the objectives of the conspir-acy does not invalidate a federal conspiracy charge.See Trapilo, supra, (“Where ... an indictment al-leges conspiracy, legal impossibility affords a con-spirator no defense.”) (citing United States v.Feola, supra, at 693, 95 S.Ct. 1255 (1975)).
Here, Count I alleges a conspiracy to violatethe Fourth Amendment and Fourteenth Amendment
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due process rights of “persons,” including drugdealers located in Buffalo, New York in violationof 18 U.S.C. § 241. As noted, § 241 outlaws anyconspiracy whose purpose is “to injure, oppress,threaten, or intimidate any person ... in the free ex-ercise or enjoyment of any right or privilege se-cured to him by the Constitution or laws of theUnited States.” There is nothing on the face ofCount I upon which it can be found that the tar-geted victims of the conspiracy were persons towhom Fourth and Fourteenth Amendment rightsdid not attach or that some legal impediment pre-vented Defendants*456 from forming an intent toviolate such rights as alleged.
[25] Defendants do not dispute that the Jamaic-an drug dealers whom Defendants allegedly inten-ded to act against, and Agent White, are personswho also enjoyed such protected rights. Thus, it isnot legally impossible that Defendants could intendto willfully violate federal constitutional rights ofsuch drug dealers and Defendants' contention thatCount I is defective as Defendants were led to mis-takenly believe the person whose rights they are al-leged to have violated, alleged by the Indictment aspart of the conspiracy, Indictment Count I, ¶¶28–30, was a supposed drug dealer, is irrelevant.Even drug dealers are considered, for purposes ofsections 241 and 242, as persons who retain consti-tutional rights, capable of being violated in themanner as alleged in the Indictment. Irvine, supra,at 137, 74 S.Ct. 381 (illegal entry into home ofgambler to place hidden microphone); McClean,supra, at 1254 (police officers' extortion of moneyfrom drug dealers, and conspiracy to violate § 242,found to be actions under color of state law“without adhering to the processes due under thelaw.”). Although the actions of Defendants in seiz-ing Agent White on February 13, 2000 are allegedas part, or in furtherance, of the conspiracy, Indict-ment Count I, ¶ 33, the object of the conspiracy, asfound by the Grand Jury, was to violate the rightsof drug dealers operating in the Buffalo area. In-dictment Count I, ¶ 3. Defendants do not disputethat § 241 does not require the pleading of any
overt acts. See United States v. Skillman, 922 F.2d1370, 1375 (9th Cir.1990) (citing cases). Accord-ingly, Defendants' mistaken beliefs as to the iden-tity of Agent White, including the asserted exist-ence of probable cause to stop Agent White, is ir-relevant to the legal viability of Count I.
[26] Moreover, contrary to Defendants' conten-tion, Defendants' Memorandum at 16–17, the factthat proceeds of drug activity are subject to seizureand forfeiture is not controlling. McClean, supra, at1255. Even if some of the property stolen by De-fendants is considered to be contraband, a victim ofpolice extortion is “entitled to have the status of theseized property determined by due process.” Id.Further, as discussed, Discussion, supra, at 454, asDefendants are charged with conspiracy, that theproperty may have been subject to forfeiture if thecircumstances were as Defendants argue is irrelev-ant to the charged § 241 conspiracy violation as theobject of a conspiracy need not actually be com-pleted or capable of completion in order to supporta conviction.
[27] Defendants' argument, Defendants'Memorandum at 15, that on the face of the Indict-ment no violation of § 241 could be found becauseDefendants had probable cause to effect a warrant-less arrest, and an incidental seizure of the per-ceived drug money of the suspected drug dealerwas therefore constitutionally permissible, isequally without substance. First, Defendants' claimthat they acted against Agent White with probablecause only presents a factual question for tri-al—whether when they entered into the allegedconspiracy Defendants intended to violate the con-stitutional rights of suspected Jamaican drug deal-ers as alleged—as the object of the conspiracy isstated to be the violation of the Jamaican drug deal-ers's rights, not Agent White's. Indictment Count I,¶ 3. How Defendants may have perceived AgentWhite's actual identity is therefore irrelevant. Asdiscussed, such identity is not an element of § 241,and it is sufficient if the indictment alleges that “theintended future conduct [defendants] *457 agreed
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upon include all of the elements of the substantiveoffense.” Jannotti, supra, at 592. Moreover, asnoted, Count I alleges that the purpose of the con-spiracy was not solely to violate Agent White'srights, while acting as a Jamaican drug dealer, but,rather, those of any Jamaican drug dealers identi-fied to Defendants by CS–1. As discussed, supra,whether the specific constitutional protectionssought to be abridged by Defendants' conspiracy, asalleged in the Indictment, were in fact ultimatelyviolated is irrelevant to the § 241 conspiracycharge. In this case, Count I directly alleges thatDefendants conspired to violate the specifiedFourth Amendment and Fourteenth Amendmentdue process constitutional rights of individual per-sons, i.e. the Jamaican drug dealers, and that, asevidence of their corrupt intent, Defendants carriedout this object against Agent White while he posedas such a drug dealer. Therefore, Defendants' asser-tions that when they acted against him Defendantshad probable cause to arrest the undercover agent isirrelevant to whether they are properly alleged tohave conspired with the requisite intent to violatefederal civil rights of those within their corrupt pur-pose, as described in the Indictment.
The question, in addition to the other factualquestions presented by the allegations in the Indict-ment, thus presented, under Count I of the Indict-ment, for trial is whether, when their alleged con-spiracy was formed, Defendants intended to violatefederal constitutional rights. Screws, supra, at 105,65 S.Ct. 1031. As Defendants are not charged witha violation of § 242, their mistaken beliefs regard-ing the actual identity of the undercover agent whenthey took action against him, as alleged, and thesubsequent conduct in relation to the stop, presentsan issue of fact going to the ultimate question ofwhether there was at the outset a conspiracy in viol-ation of § 241, and the nature of Defendants' inten-tions at the time of its formation. See McClean,supra, at 1255 (evidence that “property taken forofficial rather than private use” relevant to defend-ant's intent to violate constitutional rights).
Even if it were supposed, for the purposes ofdiscussion, that Count I alleges circumstances, asstated in the Indictment, that may have caused areasonable officer to believe the circumstances cre-ated probable cause to effect an arrest of the sup-posed drug dealer, Count I alleges Defendants didnot act on such belief. Rather, it charges that De-fendants intended to rob, steal or extort money fromthe intended victims of their scheme, and therebyintended to specifically violate the victims' consti-tutional rights, regardless of the existence of prob-able cause to take official action against the vic-tims. In short, the allegations in Count I requireproof that Defendants intended to violate the vic-tims' constitutional rights, thus negating any basisto believe, for the purposes of the instant motion,Defendants intended to act, or eventually did act,based on reasonable belief that probable cause exis-ted and that no such violation could therefore havebeen intended or effected.
Put another way, an indictment alleging a viol-ation of either 18 U.S.C. § 241, or § 242, against apolice officer asserts that where a police officer,acting in his official capacity, intended to commit acrime against a person, the officer did not, as to thealleged conduct, act in the reasonable belief that hewas not violating the person's constitutional rights.By charging Defendants with a violation of § 241,the Indictment alleges Defendants agreed to actwith the specific intent to violate a person's consti-tutional rights. Screws, supra, at 103–104, 65 S.Ct.1031. “Those who decide to take the law into theirown hands ... plainly act to deprive a prisoner *458of the trial which due process of law guaranteeshim. And such a purpose need not be expressed; itmay ... be reasonably inferred from all the circum-stances attendant on the act.” Screws, supra, at 106,65 S.Ct. 1031. The intent required to support acharge of conspiracy to violate federal constitution-al rights in violation of § 241 satisfies the require-ment that a defendant act with a specific intent toviolate the constitutional rights protected by thestatute. United States v. Guest, supra, at 753–54, 86S.Ct. 1170 (internal citations omitted). Defendants'
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contention that on its face Count I fails to state anoffense in violation of § 241, accordingly, iswithout basis.
[28][29] Additionally, it is generally held thatan accusatory instrument valid on its face may notbe dismissed based on insufficient evidence. UnitedStates v. Williams, 504 U.S. 36, 54, 112 S.Ct. 1735,118 L.Ed.2d 352 (1992); United States v.Casamento, 887 F.2d 1141, 1182 (2d Cir.1989),cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107L.Ed.2d 1043 (1990); United States v. Contreras,776 F.2d 51, 54 (2d Cir.1985). “There is no suchthing as a motion for summary judgment in a crim-inal case.” Russell v. United States, 369 U.S. 749,791, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (Harlan,J. dissenting). See also Fed.R.Crim.P. 12(b)(1)(“[a]ny defense ... which is capable of determina-tion without the trial of the general issue may beraised before trial by motion.”); United States v.Knox, 396 U.S. 77, 83 n. 7, 90 S.Ct. 363, 24L.Ed.2d 275 (1969) (question of whether defendantmade alleged statement wilfully is one for trial)(stating that Fed.R.Crim.P. 12(b)(1), “indicates thatevidentiary questions of this type should not be de-termined on such a motion.”); United States v. Alf-onso, 143 F.3d 772, 776–77 (2d Cir.1998)(reversing as “premature” trial court's dismissal ofindictment for failure to allege facts sufficient toestablish jurisdictional element of charged HobbsAct violation). “Unless the government has madewhat can fairly be described as a full proffer of theevidence it intends to present at trial ..., the suffi-ciency of the evidence is not appropriately ad-dressed on a pretrial motion to dismiss an indict-ment.” Id.
[30] Defendants' assertions, including that noconstitutional violation occurred because the Indict-ment fails to allege facts showing the encounterbetween Defendants and Agent White was otherthan a consensual one, Defendants' Reply at 2, orthat Defendants acted based on probable cause, De-fendants' Memorandum at 15, as discussed, Discus-sion, supra, at 452–58, are irrelevant, for purposes
of whether Count I sufficiently pleads an offense,to whether they conspired with the intent to violatea person's constitutional rights as alleged in CountI. Screws, supra, at 105, 65 S.Ct. 1031. However,even if such arguments were found to be relevanton the question of Defendants' guilt, the argumentspresented by Defendants as grounds to dismissCount I constitute evidentiary matter which cannotbe resolved without trial of the general issue,Fed.R.Crim.P. 12(b)(1), as the question of whetherDefendants conspired with the intent to willfully vi-olate the constitutional rights of any person is the“general issue” which arises from the Indictment'sallegations. Indictment Count I ¶ 2 (Defendants“did wilfully conspire ... to injure, oppress, threatenand intimidate persons ... in the free exercise andenjoyment [of their constitutional rights]”). Assuch, Defendants' contentions must await trial.
Defendants also rely on Graham v. Connor,490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443(1989) and Whren v. United States, 517 U.S. 806,116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) to supporttheir contention that the Indictment alleges no viol-ation*459 of § 241 was committed. Defendants'Memorandum at 19–20. In Graham, the SupremeCourt held that § 1983 civil actions against policeofficers in cases involving alleged use of excessiveforce were to be judicially considered as claiming aviolation of the Fourth Amendment. Graham,supra, at 394–95, 109 S.Ct. 1865. The Court heldthat in determining such claims, as the issue turnsupon the Fourth Amendment's standard of reason-ableness, the question is whether in all of the cir-cumstances a police officer's use of force was“objectively reasonable,” thus precluding liabilitybased solely on a retrospective evaluation of thecircumstances which confronted the officer regard-less of the officer's subjective beliefs. Id. at 397,109 S.Ct. 1865. In Whren, the Court noted that asthe Fourth Amendment renders reasonable “certainactions to be taken in certain circumstances,whatever the subjective intent” of the officer, theofficer's subjective intent in effecting a traffic stopis irrelevant to the validity of the stop under the
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Fourth Amendment. Whren, supra, at 814, 116S.Ct. 1769. Rather, the Court found such stops mustbe tested under the Fourth Amendment's protectionagainst unreasonable seizures. Whren, 517 U.S. at812, 116 S.Ct. 1769.
Based on these holdings, Defendants argue thatas the Fourth Amendment violation alleged in rela-tion to Defendants' encounter with Agent Whitewas, on the face of the Indictment, either consensu-al or a stop based on probable cause, it was“objectively reasonable” and therefore no FourthAmendment violation occurred. Defendants'Memorandum at 18–20. However, neither case gov-erns the validity of the instant indictment.
First, as the Indictment charges a conspiracy inviolation of § 241, against a group of drug dealers,and not a specific individual, the Defendants' reas-onable beliefs regarding their encounter with AgentWhite are irrelevant as the validity of a convictionunder § 241 does not depend on whether Defend-ants actually were successful in violating someone'sprotected constitutional rights but whether theyentered into the alleged conspiracy with the intentto do so. Discussion, supra, at 454. Second, even ifthose circumstances were relevant, as they might bein the case of an indictment brought under § 242,neither case involved a criminal prosecution againsta police officer under 18 U.S.C. § 241 or § 242.Therefore, the Court in Graham and Whren, had nooccasion to consider the extent to which the issuesraised in both cases had any relevance to a criminalprosecution under these statutes. Third, Defendants'argument assumes, without authority, that the hold-ings in these cases are applicable to the instant pro-secution.
As noted, the question in Graham was whether,in a § 1983 action seeking damages against policefor excessive force in connection with a stop of anautomobile and a physical seizure of the plaintiff,the liability of the police officers should be determ-ined exclusively under the Fourth Amendment. InGraham, the Court held that the sole test for an ex-cessive force claim under § 1983 was the Fourth
Amendment's prohibition against unreasonablesearches and seizures, Graham, supra, at 386, 109S.Ct. 1865, and, therefore, that the officers' subject-ive motives or intentions, whether good or bad,were irrelevant. Id. In Whren, the issue was whethera defendant should be permitted to suppress evid-ence from a traffic stop based on the officers' sub-jective purposes to investigate possible narcoticspossession regardless of the existence of probablecause to stop the defendant's vehicle for a traffic vi-olation. In Whren, the Court held that in applyingthe exclusionary rule based on alleged FourthAmendment violation*460 in connection with atraffic stop, the investigators' subjective intentionsare also irrelevant. Whren, supra, at 813, 116 S.Ct.1769. Thus, neither case had occasion to considerwhether the objective reasonableness standard ap-plicable to a claim based on a violation of theFourth Amendment, or as a basis to invoke the ex-clusionary rule in a criminal proceeding, could barprosecution under § § 241 and 242. Defendants citeno case which has applied Graham or Whren to aprosecution under either statute, and the court's re-search has revealed none.
Even assuming for the sake of analysis that theobjective reasonableness standard for determiningcivil liability under § 1983 is applicable to a crim-inal prosecution brought pursuant to § 241, whetherthe facts presented to Defendants prior to their al-leged encounter with Agent White objectively andreasonably established either reasonable suspicionor probable cause to effect a reasonable seizure ofthe agent and the funds he was carrying, is not de-terminative of whether Defendants conspired withthe requisite intent to sustain conviction under §241. Defendants' attack on Count I therefore fails aseven if the objective reasonableness standard is ap-plicable to an alleged violation of § 241, the Indict-ment nevertheless requires evidence at trial thatwhen Defendants entered into the conspiracy, De-fendants intended willfully to violate the FourthAmendment rights of their intended victims by sub-jecting them to seizures based on conduct that wasobjectively un reasonable in light of all of the sur-
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rounding circumstances that Defendants contem-plated. See Graham, supra, at 396, 109 S.Ct. 1865 (citing Tennessee v. Garner, 471 U.S. 1, 8–9, 105S.Ct. 1694, 85 L.Ed.2d 1 (1985) (the question is“whether the totality of the circumstances justifie[s]a particular sort of ...seizure.”)). The error in De-fendants' reliance upon Graham and Whren there-fore is that their argument assumes Defendants ac-ted lawfully in carrying out their official dutiesbased solely on objective and reasonable grounds.However, the Indictment alleges they conspiredwith specific intent to violate constitutional rights,i.e., that they intended to act against protected per-sons even if, for Fourth Amendment purposes, thecircumstances were objectively reasonable to justi-fy a seizure. The existence of such circumstancesdoes not require the conclusion that Defendants didnot conspire with an intent to willfully violate therights of the victims as alleged. Rather, the allega-tion refutes any suggestions Defendants acted in anobjectively reasonable manner.
Thus, the Indictment will permit the Govern-ment to establish at trial that Defendants' intentionwhen they conspired, and, as evidence of their con-spiratorial anti-constitutional intent, when they ac-ted against Agent White, was to steal and extortfunds from drug dealers regardless of the presenceof probable cause or reasonable suspicion at thetime of the planned thefts, thereby rendering irrel-evant whether the circumstances Defendants expec-ted, in accordance with the purposes of the conspir-acy, to confront, and in fact did confront, were ob-jectively reasonable in justifying the seizures thattook place pursuant to the conspiracy. Therefore,the Defendants' intent regarding adherence to con-stitutional protections when they entered into thealleged conspiracy will be the overriding issue fortrial in this case. “Since the gravamen of the of-fense is conspiracy, the requirement that the offend-er must act with the specific intent to interfere withthe federal rights in question is satisfied.” UnitedStates v. Guest, supra, at 753–54, 86 S.Ct. 1170(upholding indictment for violation of 18 U.S.C. §241 to violate rights secured under Fourteenth
Amendment equal protection*461 clause and theconstitutionally recognized freedom of interstatetravel) (citing Screws, supra ). The allegation inCount I that Defendants conspired with the criminalintent required for conviction under § 241 thus neg-ates the assertion that Defendants agreed to actagainst the Jamaican drug dealers only when thecircumstances made it “objectively reasonable” todo so. Accordingly, the alleged intent to violateconstitutional right allegations, a required elementof § 241, forecloses finding, on the face of the In-dictment, that no crime is alleged. As such, thecourt finds that neither Graham nor Whren providesany ground for dismissal of this count of the Indict-ment. Alternatively, absent a full proffer on the re-cord in this case of the evidence the Governmentexpects to offer in support of Count I, a dismissalof Count I on the ground that the objective reason-ableness test as applicable to prove an allegedFourth Amendment violation, enunciated in Gra-ham, and applied in Whren, supra, bars prosecutionin this case, as a matter of law, would be premature.Alfonso, supra, at 776.
Further, and importantly, as Count I alsocharges Defendants with a conspiracy to violate thedue process rights of persons believed to be drugdealers who are also protected under the FourteenthAmendment, by stealing their money, proof of De-fendants' intent to do so is all that is required. Asthe Fourteenth Amendment's due process clause,unlike the Fourth Amendment, does not include anobjective reasonableness standard, the holdings inGraham and Whren are irrelevant to whether thisalleged constitutional violation was also among theunlawful purposes of the charged conspiracy. SeeMcClean, supra, 1255–56 (victims of police theftby extortion of drug proceeds entitled to have“status of seized funds determined by due pro-cess.”). Therefore, Defendants' contention that theholdings in Graham and Whren present a basis fordismissal of Count I is without merit.
B. Count II Conspiracy to Violate 18 U.S.C. § 641.Count II of the Indictment charges Defendants
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with a conspiracy to steal and convert governmentproperty, as prohibited by 18 U.S.C. § 641, in viol-ation of 18 U.S.C. § 371. Based on the allegations,such conspiracy relates to the described theft fromthe West Avenue stash house which occurred onJanuary 7, 2000, Indictment, Count III, and fromAgent White on February 13, 2000, Indictment,Count IV. Defendants contend, based on their read-ing of the Indictment, that because the money wasvoluntarily surrendered by the agent as part of theinvestigation, or because Defendants objectivelyand reasonably believed they had probable cause toseize the money from a suspected drug dealer, themoney was thus subject to seizure and forfeiture,according to Defendants' objectively reasonable be-lief, and therefore lost its character as governmentfunds subject to theft through the relation-back doc-trine. Defendants' Memorandum at 14–15; Defend-ants' Reply at 23. There are two difficulties withDefendants' creative theory.
[31][32] First, as discussed, because in thiscount Defendants are charged with conspiracy toviolate § 641, what they believed to be the facts atthe time of any substantive offense resulting fromthe conspiracy is irrelevant to the conspiracy chargeas whether the object of a conspiracy is in fact ac-complished, or, as pertinent to Defendants' theory,is capable of being accomplished, is irrelevant tothe crime of conspiracy and the legality of Count II.Discussion, supra, at 454. Second, even if Defend-ants' beliefs as to the ownership interests in themoney seized from Agent White were relevant, it isgenerally held *462 that conviction for theft of gov-ernment property under § 641 does not requireproof that the defendant knew the property takenbelonged to the government. United States v. Jer-mendy, 544 F.2d 640, 641 (2d Cir.1976), cert.denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d585 (1977) (citing cases); United States v.Sicurella, 834 F.Supp. 621, 626 (W.D.N.Y.1993),aff'd sub nom., United States v. LaPorta, 46 F.3d152, 158–59 (2d Cir.1994). Due process is satisfiedby showing a defendant engaged in wrongful con-duct and a defendant “may not complain that facts
out [side] his knowledge brought into play federalpenalties or enhanced punishment.” Sicurella,supra, at 626 (quoting United States v. Bolin, 423F.2d 834, 837 (9th Cir.1970)). Thus, as with CountI, the allegation that Defendants conspired with anintent to steal property belonging to another fore-closes dismissal of Count II on the basis that, asDefendants' assert, Defendants acted against AgentWhite and the stash house with an intent to lawfullyseize contraband and subject it to forfeiture. The al-legation that the Defendants involved in the con-spiracy acted with the intent to steal overrides De-fendants' contention that the Indictment establishesDefendants intended to act lawfully in respect tothe property. Additionally, the lack of relevancy tothe conspiracy charge of the property's status as aproper subject for theft renders Defendants' argu-ment that no theft was possible based on the rela-tion-back doctrine equally irrelevant to the facialvalidity of Count II.
[33][34] Where a conspiracy to commit a par-ticular crime is charged, it is necessary to allegethat the co-conspirators agreed with the same de-gree of criminal intent required for the objectcrime. Feola, 420 U.S. at 686, 95 S.Ct. 1255 (1975)(citing cases). Accordingly, the Supreme Court hasstated that “a greater degree of intent for conspirat-orial responsibility than for responsibility for theunderlying substantive offense” is not required. Id.at 688, 95 S.Ct. 1255. Therefore, as knowledge ofthe government's ownership of the property allegedto have been stolen in violation of § 641 is not re-quired, such knowledge is also irrelevant to the in-tent necessary to establish a conspiracy to commitsuch a theft in violation of 18 U.S.C. § 341 as al-leged in Count II. Thus, Defendants' guilt on thiscount will turn on whether they conspired to stealproperty which may have been owned by the gov-ernment regardless of whether the property in factbelonged to the government and whether it couldhave been subject to forfeiture if the facts were asDefendants supposed. Id. at 693, 95 S.Ct. 1255(knowledge of a fact upon which federal jurisdic-tion is based need not be alleged to sustain a federal
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conspiracy charge). “That individuals know thattheir planned joint venture violates federal as wellas state law seems totally irrelevant to that purposeof conspiracy law which seeks to protect societyfrom the dangers of concerted criminal activity.”Id.
Further, as discussed, Discussion, supra, at453–56, in connection with Defendants' attack onthe legal viability of Count I, as Defendants arecharged, in Count II with conspiracy to violate §641, any questions regarding whether the moneyactually taken from Agent White was in fact gov-ernment funds is also irrelevant as the factual capa-city to complete the substantive offense which isthe object of the conspiracy does not bar prosecu-tion for a conspiracy to commit the offense. Thus,any beliefs Defendants assertedly held regardingthe actual character of the source of the funds at is-sue are equally irrelevant to the validity of CountII. Either Defendants conspired with the intent tosteal the property taken from the stash house andthe money taken from the undercover*463 agent orthey did not. If they did, it cannot be said they in-tended to seize the property and funds with a lawfulpurpose thereby displacing, the Government's own-ership of the property on the basis of the relationback doctrine. In any event, as explained, the iden-tity of the property and the actual ownership of theproperty allegedly taken by Defendants as the Gov-ernment's is irrelevant to a charge of conspiracy toviolate § 641. Moreover, as an intent to steal at thetime the alleged conspiracy was entered into andsubsequently acted upon and an intent to enforcethe law, one criminal, as the Indictment alleges, theother lawful, as Defendants assert, cannot logicallycoexist at the same time, Defendants' contentionthat they were merely acting to interdict illegal drugactivity whey they entered the stash house and en-countered Agent White requires trial on the ques-tion of their actual purpose.
[35] Finally, that the Indictment does not statefacts upon which it can be found that Defendantsforcibly took the cash from the agent, as Defend-
ants argue, Defendants' Memorandum at 14, isequally irrelevant as there is no defense to a § 641charge based on the government permitting theft ofits property pursuant to sting investigation. Section641 does not require proof of a lack of consent toan alleged theft nor does its text provide that suchconsent establishes a defense. See LaPorta, supra at158; Sicurella, supra, at 627 (where governmentrole limited to “facilitating” defendant's criminalconduct in destruction of government property nodefense is established). Even if it existed, such adefense would require trial. Thus, as discussed,neither is such consent an element or defense to aconspiracy to violate § 641. Whether Defendantsacted with a lawful purpose without the intention ofviolating constitutional rights, the predicate for De-fendants' contention, that because Defendantsseized contraband subject to forfeiture proceedingsno theft was possible, also requires trial. Again, be-cause Count II charges a conspiracy to violate §641, the question is whether Defendants agree tosteal property that unknown to them belonged tothe government; whether the property at issue mayhave also been subject to eventual forfeiture, andthus not subject to a theft, is therefore irrelevant.The court notes Defendants do not raise similar ar-guments with respect to the alleged thefts from thestash house which is the basis for Count III of theIndictment.
Further, Defendants do not argue the seizure ofthe money initiated either federal or state forfeitureproceedings, or even that such proceedings werecommenced or consummated, as to any propertywhich is the subject of the instant indictment.Therefore, the relation-back doctrine does not applyto the property stolen by Defendants as alleged un-der Count II. As noted, one cannot intend to law-fully seize property for the purpose of initiating for-feiture proceedings and at the same time intend tosteal it. There is, thus, no basis to find, on the faceof the Indictment, that it was legally impossible forDefendants to have acted with the intent required tosupport both the substantive offense of violating §641, i.e., a general intent to steal without know-
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ledge of the government's ownership interest, andthe conspiracy charge as alleged in Count II. Ac-cordingly, Defendants' asserted grounds for dis-missal of Count II are without merit.
C. Count IV—Theft of Government Property FromAgent White
In this count, Defendants are charged with thesubstantive violation of 18 U.S.C. § 641 based onthe alleged robbery, theft, or conversion of themoney taken from Agent White on February 13,2000. Defendants*464 reiterate their argumentsagainst Count II adding that the Indictment fails toallege facts upon which it can be found that De-fendants “acted unlawfully” as to Agent White inthe course of obtaining the money. Defendants'Reply at 20. As explained in connection with De-fendants' challenge to Count II, there is no supportfor Defendants' theory that the Defendants actedlawfully in seizing the money so as to defeat, abinitio, the government's ownership or possessoryinterests in the money. Further, as Defendants' in-tent regarding their conduct, on February 13, 2000,in relation to Agent White, including whether theyacted to lawfully seize the money as drug proceedsor steal the money, is the general issue raised by theIndictment, there is no basis to dismiss Count IV atthis stage. Williams, supra; Knox, supra; Alfonso,supra; Casamento, supra; Contreras, supra.
D. Counts V, VI, and VIII—Conspiracy to Violatethe Hobbs Act, 18 U.S.C. § 1951, and Violations ofthe Hobbs Act by Robbery and Extortion.
Count V alleges Defendants conspired to viol-ate 18 U.S.C. § 1951 (“ § 1951 ” or “the HobbsAct”) by robbery and extortion against CS–1, andAgent White. Count VI alleges Defendants commit-ted a substantive violation of the Hobbs Act by rob-bing and extorting money from Agent White, andCounts VIII and IX charge Defendant Darnyl Park-er with substantive Hobbs Act violations based onextortions of $1,000 from CS–1 on November 17,1999 and January 5, 2000, respectively. Defendantsassert that because the counts fail to allege factsfrom which it can be determined that Defendants
intended an actual or potential effect upon interstatecommerce, they must be dismissed. Defendants'Memorandum at 31–33; Defendants' Reply at26–28.
[36] To support a violation of § 1951, it is onlynecessary to show that the effect on interstate com-merce flowing from the defendant's threatened ex-tortion be “potential or subtle.” United States v.Curcio, 759 F.2d 237, 241 (2d Cir.1985) (internalcitation omitted). Where the government has estab-lished a narcotics sting investigation using its ownfunds to ensnare the unwary offender, the theft ofsuch funds from an undercover agent mistakenlybelieved to be a narcotics purchaser, and the poten-tial resultant loss of such funds as a source of futuredrug transactions, has been held to be a sufficientnexus to interstate commerce to support a HobbsAct violation based on the depletion-of-assets the-ory. United States v. Jones, 30 F.3d 276, 285 (2dCir.) (citing United States v. Daley, 564 F.2d 645,649 (2d Cir.1977)), cert. denied, 513 U.S. 1028,115 S.Ct. 602, 130 L.Ed.2d 513 (1994).
[37][38][39] As relevant to the instant case, thesupposed drug purchaser's ability to buy moredrugs, a commodity moving in interstate commerce,is potentially reduced by the robbery or extortionthereby supporting federal jurisdiction under theHobbs Act. Jones, supra, at 285; Curcio, supra, at241. Where the charge is an attempted violation, anactual effect on commerce need not be established,only “a possibility thereof.” Jones, supra, at 285(internal citation omitted). Moreover, in a conspir-acy or attempt to violate § 1951, it is sufficient ifthe purpose of the conspiracy was alleged to “doacts which, had they been attainable, would haveaffected commerce.” Jannotti, supra, at 591(emphasis added).
In this case, Defendants are charged in Count Vwith conspiracy to rob and extort money from per-sons they believed to be drug dealers. Whether thecharged conspiracy was or could ever be successfulin attaining this unlawful objective does not *465negate the potential effect upon interstate com-
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merce from occurring as Defendants are alleged tohave intended such effect by their unlawful plan.Moreover, had Defendants succeeded in their plan,the intended effect upon commerce would have oc-curred. Thus, the fact that in Count VI Defendantsare alleged to have attempted to carry out theirscheme against an undercover government agent,using government funds to execute the investiga-tion, is also irrelevant to the validity of the Indict-ment on its face. See Jones, supra, at 285–86(upholding convictions for Hobbs Act conspiracyand substantive violations where government fundsintended to purchase drugs were stolen from under-cover agent); Jannotti, supra, at 592–93 (upholdingHobbs Act conspiracy conviction where defendants,municipal council members, obtained funds fromundercover agents posing as foreign investors seek-ing favorable governmental action on a fictitioushotel development project).
[40] In Jannotti, the court rejected defendants'argument that because it was factually impossiblethat the illicit transaction, as represented to defend-ants by the undercover investigation, could everhave affected interstate commerce, federal jurisdic-tion was insufficient to support Hobbs Act liability.Jannotti, supra, at 592–93. The Jannotti majorityopinion cited several cases in which Hobbs Actconvictions involving undercover investigationswere sustained despite the fact that because of thegovernment's involvement no impact upon inter-state commerce was likely to have occurred. Id. Forexample, in United States v. Rindone, 631 F.2d 491(7th Cir.1980), the Seventh Circuit rejected a claimthat defendant's Hobbs Act conviction for extortingmunicipal work permits was invalid for lack of therequisite interstate nexus where the governmentsupplied the money used in the extortionate schemebased on the “federal interest in deterring even fu-tile threats to interstate commerce.” Rindone,supra, at 493 (internal citation omitted). Similarly,where the charge is a Hobbs Act conspiracy, if thefuture conduct defendants are alleged to haveagreed upon included all of the elements of a viola-tion of § 1951, the fact that because of circum-
stances unknown to defendants the intended effectupon interstate commerce is impossible of comple-tion is no defense. See Jannotti, supra, at 592(citing Rose, supra, at 235). Here, the allegation inCounts V and VI, respectively, is that Defendantsconspired and attempted to rob and extort drug pro-ceeds from suspected drug dealers thereby deplet-ing the assets available to such drug dealers to con-duct future drug transactions.
Defendants rely on United States v. Jones,supra, for the proposition that a defendant's convic-tion under § 1951 based on robbery is insufficient ifthe proof shows only an intent to rob. Defendants'Memorandum at 33. While the court in Jones notedthis proposition was a correct instruction to the juryin that case, Jones at 285, the court also sustaineddefendants' convictions for Hobbs Act violations,including a Hobbs Act conspiracy, if the jury alsofound that there was an actual or potential effectupon interstate commerce based on evidence thatthe stolen money represented a payment for an ex-pected drug transaction, and the jury found suchtransactions were of an interstate character. Id.Thus, in affirming defendants' Hobbs Act conspir-acy convictions, the court in Jones expressly reliedon Jannotti, supra, finding that convictions forHobbs Act attempt and conspiracy violations havebeen sustained “even without evidence of an actualeffect on interstate commerce.” Jones at 284. De-fendants contend Counts VIII and IX are legally de-ficient for the same reasons asserted as *466 toCounts V and VI. Defendants' challenge to CountsV, VI, VIII, and IX is therefore without foundation.
E. Count VII—Possession of a Firearm in Violationof 18 U.S.C. § 924(c).
In Count VII, Defendants are alleged to haveknowingly, willfully and unlawfully carried andpossessed a firearm in furtherance of a crime of vi-olence in violation of 18 U.S.C. § 924(c). Defend-ants argue this count is facially defective in that itfails to state facts upon which Defendants could befound to have so used their service weapons as De-fendants claim they were on duty at the time of the
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incidents described in Counts V (the Hobbs Actconspiracy count) and VI (the Hobbs Act robberyand extortion count involving the alleged theft fromAgent White), the crimes of violence upon whichCount VII is based. Defendants' Memorandum at28–30. Defendants rely upon Bailey v. UnitedStates, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d472 (1995) in which the Supreme Court limited themeaning of the word “use” of a firearm in connec-tion with a drug offense under § 924(c). However,as the Government points out, Government'sAmended Response at 26, Defendants are chargedwith the postBailey amended version of § 924(c)and, accordingly, Bailey is inapposite. Defendantsdo not dispute the Government's position that §924(c), as amended, applies to Count VII. Thus,Bailey is inapposite.
As amended, § 924(c) prohibits use or carryingof a firearm “during and relation to any crime of vi-olence” or possession of a firearm “in furtheranceof such crime.” Count VII explicitly alleges De-fendants carried and possessed a firearm “in fur-therance of [the crimes of violence alleged incounts V and VI].” As such, Count VII adequatelytracks the language of the statute, and is not defect-ive on this basis. Defendants do not dispute thatCounts V and VI charge crimes of violence withinthe meaning of § 924(c). Whether the Governmentcan establish the elements of the offense as allegedin Count VII beyond a reasonable doubt is, accord-ingly, a question that must await trial. Alfonso,supra.
Defendants' reliance on Parr v. United States,363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277(1960), Defendants' Memorandum at 29–30, for thetheory that the requirement that Defendants, as po-lice officers, be armed while on duty, negates liabil-ity under § 924(c), is misplaced. In Parr, a mailfraud case, the Supreme Court held that defendants'use of the mails could not serve as the mailing toestablish the required interstate nexus in further-ance of the alleged scheme to defraud because thedefendants were required by state law to mail the
tax assessments, fraudulently inflated by defend-ants' embezzlements, upon which the defendantswere to receive the financial benefits of theirscheme. Parr, supra, 391, 80 S.Ct. 1171. The Courtdid not hold in Parr that all mailings required bylaw could never provide the jurisdictional elementfor federal mail fraud convictions; rather, based onthe particular circumstances presented in that case,the Court found the state law mandated mailings,because they were to be mailed regardless of thescheme, did not directly advance the fraud in thatcase, and therefore were insufficient to support aconviction for mail fraud. Id.
[41] Nevertheless, the Supreme Court has heldthat legally required mailings may serve as a juris-dictional basis for a mail fraud charge. Schmuck v.United States, 489 U.S. 705, 109 S.Ct. 1443, 103L.Ed.2d 734 (1989). In Schmuck, the Court sus-tained a mail fraud conviction based on defendants'mailings of fraudulent automobile title applicationsrequired by state law to be mailed, Schmuck, supra,at 713 n. 7, 109 S.Ct. 1443, as an “essential *467step” in assuring the success of the scheme to de-fraud by the sale of vehicles with fraudulentlylowered odometer settings. Id. at 714, 109 S.Ct.1443. Defendants cite no authority that an on-dutypolice officer who is required by law or regulationto be armed cannot be guilty of violating 18 U.S.C.§ 924(c). By definition, an officer who commits arobbery or other crime of violence acts outside thescope of his authority through his own motivation,not by force of law, and it cannot be admitted thatstate law requires officers to use or possess theirservice weapons while committing such crime. IfDefendants are found not guilty of the substantiveviolent crime allegations in Counts V and VI uponwhich Count VII is predicated, they will not beguilty of the § 924(c) charge. As such, Defendants'challenge to Count VII is baseless.
F. Count X Attempted Money Laundering.In this count, Defendant Darnyl Parker is al-
leged to have violated 18 U.S.C. § § 1956(a)(3)(A)and 2. Specifically, it is alleged that with the intent
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to promote a specified unlawful activity, Parker ac-ted as a principal, or as an aider and abettor, in con-ducting and attempting to conduct a financial trans-action with CS–1 as defined in § 1956(c)(4) withfunds alleged to be proceeds of unlawful drugactivity in violation of 21 U.S.C. § 841(a)(1). De-fendants contend that because CS–1 was cooperat-ing with the investigation he did not intend to actu-ally complete the alleged financial transaction and,therefore, based on the Indictment, because CS–1committed no offense, Parker also could not beculpable as a principal, nor having aided and abet-ted, in committing the charged offense under 18U.S.C. § 2. Defendants' Memorandum at 34.
In Defendants' motion for further particulars,Defendants requested the Government particularizewhether Darnyl Parker is alleged to have acted as aprincipal or as an aider and abettor with respect tothis offense, and whether Defendant or “the prin-cipal actor” conducted or attempted to conduct thealleged transaction. Defendants' Motion for a Billof Particulars, Request Nos. 70, 73. However, theGovernment declined to respond to the requests,and the Government's refusal to provide the reques-ted particulars was upheld by the court on thegrounds that such requests sought the Government'stheory of prosecution and evidentiary matters. D &O at 27–28. Therefore, for the purposes of analysis,the court assumes that either theory of criminal li-ability under the statute, or both, may be the subjectof proof and argument at trial. However, the courtnotes the Government now appears to assert thatParker committed the offense as a principal, not asan aider and abettor. Government's Response at 32.
Section 1956 (a)(3), by its terms, prohibits bothcompleted violations of the statute as well as at-tempted violations, and does not require joint actionto impose culpability upon one who conducts or at-tempts to conduct a prohibited financial transactionas defined by the statute. As relevant, §1956(a)(3)(B) prohibits anyone “[w]ho [ ], with in-tent to promote the carrying on of specified unlaw-ful activity ... conducts or attempts to conduct a fin-
ancial transaction involving property represented tobe the proceeds of specified unlawful activity, orproperty used to conduct or facilitate specified un-lawful activity ...” (emphasis added). A financialtransaction includes one involving the use of cur-rency, 18 U.S.C. § 1956(c)(4), (5), and a specifiedunlawful activity includes sale or distribution ofcontrolled substances. 18 U.S.C. § 1956(c)(7).“Represented” means “any representation made byanother person” at *468 the direction of a federalinvestigator or prosecutor. Id.
Based on the facts that appear in the Com-plaint, Count X arises from an agreement betweenParker and CS–1 to invest money derived by Parkerfrom CS–1, in return for confidential investigativeinformation, in future drug transactions expected toproduce a profit to Parker. Complaint ¶ ¶ 13–14;see also Government's Amended Response at 36.As such, Count X tracks the language of the statuteand properly alleges Parker engaged in a prohibitedfinancial transaction based on the representation ofCS–1, as authorized by government investigators,that the money was derived from illegal drug sales,and whether the Government's evidence can estab-lish each element of the offense must await trial. Itis irrelevant that the proceeds of the unlawful activ-ity are alleged as used to promote the same unlaw-ful activity. United States v. Skinner, 946 F.2d 176,177–78 (2d Cir.1991) (proceeds from drug salesused to purchase additional drugs in furtherance ofdefendants' drug trafficking operation sustainsmoney laundering conviction under 18 U.S.C. §1956(a)(1)(A)(i)).
It is undisputed that one charged under 18U.S.C. § 2 may be guilty as a principal or as an aid-er and abettor in accomplishing the substantive of-fense. Here, based on the specific allegations inCount X, it is apparent that Parker is alleged tohave conducted or attempted to conduct, with theassistance of CS–1, a prohibited financial transac-tion using drug trafficking proceeds to purchasemore narcotics for resale, eventually returning aprofit to Parker. Government's Response at 32
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(under Count X “it is Parker who engages in the un-lawful transaction.”). Thus, Parker, may, dependingon the evidence, be found to have conducted or at-tempted to conduct a prohibited financial transac-tion with the assistance of CS–1.
The cases on which Defendants rely, Defend-ants' Memorandum at 34, in support of their argu-ment that the Government cannot, based on the In-dictment's allegations, meet its burden of showingthat Defendant Darnyl Parker aided and abetted aprincipal because the “principal” in the instant caseis a Government informant who only pretended tocommit the underlying principal offense are inap-posite. Specifically, at issue in United States v.Perry, 643 F.2d 38 (2d Cir.1981), was a chargedconspiracy to aid and abet in the commission of adrug trafficking violation. Perry, supra, at 45–46.“To find such a conspiracy it is, of course, neces-sary to show that the defendants have agreed to pur-sue a common criminal objective.” Perry, supra, at46. In contrast, in the instant case, Darnyl Parker ischarged with a substantive offense, including an at-tempted aiding and abetting offense. Accordingly,Perry is factually distinguishable.
In United States v. Ruffin, 613 F.2d 408 (2dCir.1979), the court sustained the conviction as anaider and abettor of a defendant who, although per-sonally incapable of committing a specified crimeinvolving fraudulently obtaining funds, neverthe-less caused an agent who lacked any criminal in-tent, but possessed the capacities to engage in theproscribed conduct, to do so. The court's affirmancewas based on a distinction between a violation of18 U.S.C. § 2(a), which requires that a defendantcould not be found guilty as an aider and abettor ofalleged criminal conduct unless the other individualwas found to have committed the criminal conductas a principal, and 18 U.S.C. § 2(b) which providesthat a person who is incapable of personally com-mitting a specified crime, but who causes another todo so may be punished *469 as a principal. Id. Inthe instant case, there is no indication that DarnylParker is alleged to be culpable under Count X
based only on 18 U.S.C. § 2(a). Moreover, as Park-er is alleged to have attempted the § 1956 violation,the absence of a completed offense by another, i.e.,CS–1, is irrelevant to Parker's liability. In anyevent, the Government's primary theory at trial isthat Parker engaged in the § 1956 offense as theprimary actor. As such, Ruffin is inapplicable to thiscase.
In United States v. Elusma, 849 F.2d 76 (2dCir.1988), the court acknowledged that a convictionof aiding and abetting pursuant to 18 U.S.C. § 2(a)requires proof that the principal committed a crim-inal offense and, thus, to have had the “essentialcriminal intent.” Elusma, supra, at 78. The court,however, sustained the defendant's conviction ofaiding and abetting in the preparation of filing falsedocuments with the Immigration and NaturalizationService (“INS”), despite the fact that the allegedprincipal was not indicted, as the evidence demon-strated that the false papers were submitted to theINS by other participants in the charged illegalscheme. Id. As such, the facts in Elusma have noapplication to the instant case and Elusma does notsupport Defendants' assertion that absent a princip-al's possession of criminal intent, no accomplice li-ability exists.
[42][43][44] In this case, Count X also chargesParker with an attempted violation of § 1956.Courts have held that a defendant is guilty of an at-tempt despite the fact that his accomplice is an un-dercover agent who does not intend to commit theunderlying crime. See United States v. Washington,106 F.3d 983, 1005 (D.C.Cir.1997) (holding that al-though principal is undercover agent who lackedactual intent to commit crimes, accomplice who at-tempted to aid principal could be charged with at-tempting to aid in commission of crime as sharedintent is not required; rather, question is whether, iffacts were as defendant believed, principal wouldhave been guilty) (cert. denied, 522 U.S. 984, 118S.Ct. 446, 139 L.Ed.2d 382 (1997)). See alsoUnited States v. Jordan, 927 F.2d 53, 55 (2d Cir.)(“Those who aid and abet [an undercover agent]
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cannot expect insulation from criminal responsibil-ity”), cert. denied, 501 U.S. 1210, 111 S.Ct. 2811,115 L.Ed.2d 983 (1991). At common law,“[f]actual impossibility, where the intended sub-stantive crime is impossible of accomplishmentmerely because of some physical impossibility un-known to the defendant, is not a defense.” 2 WayneR. LaFave & Austin W. Scott, Jr., SUBSTANTIVECRIMINAL LAW 41 (1986). See Washington,supra, (“Factual impossibility is no defense.”)(citing authorities). Here, assuming the evidence attrial establishes that CS–1 never intended to com-plete the drug transaction in which Parker thoughthe had invested, such intention is merely a fact un-known to Parker which prevents completion of thecrime but does not exonerate Parker as a principalor as an aider and abettor in the alleged attempt toviolate § 1956.FN6 Thus, the fact that CS–1 wascooperating in the investigation and therefore didnot carry out or intend to carry out the drug transac-tion using funds provided*470 by Parker, as Parkeris alleged to have expected, is irrelevant to Parker'salleged violation of § 1956, as either a principal oraccomplice, and Defendants' assertion that no viol-ation of § 1956, either as an attempt or a completedoffense, could result based on Parker's involvementis without merit.
FN6. The principle is different in the caseof conspiracy, where it is generally heldthat no agreement can occur between asingle defendant and undercover govern-ment agent as the agent does not intend toagree. See United States v. Chase, 372F.2d 453, 459 (4th Cir.1967) (citing au-thorities). See also United States v. Gold-berg, 756 F.2d 949, 958 (2d Cir.), cert.denied, 472 U.S. 1009, 105 S.Ct. 2706, 86L.Ed.2d 721 (1985). However, in contrastto conspiracy, an attempt depends on theintent and conduct of the defendant alone.Washington, supra, at 1005.
G. Count XI—The Narcotics Conspiracy.In this count, Defendant Darnyl Parker is
charged along with his son, William Parker and arelative, Reno Sayles, with a violation of 21 U.S.C.§ 846. Defendants contend that, based on reading ofthe Complaint, Darnyl Parker cannot be guilty ofproviding mere “assistance” to the alleged conspir-acy and that the count only alleges at most a buyer-seller relationship, insufficient as a matter of law tosupport a § 846 charge. Defendants' Memorandumat 35–36. However, assuming that evidence of abuy-sell drug deal, without more, would be insuffi-cient to support a conviction for conspiracy to en-gage in a narcotics transaction, as Count XI ad-equately tracks the language of the statute, the suf-ficiency of the Government's evidence to establisha conspiracy, rather than a casual drug purchase,must await trial. Moreover, Defendant Darnyl Park-er's relationship to the conspiracy as alleged, evenif limited to assistance, may nevertheless be ad-equate to support conviction as a co-conspirator.See United States v. Salinas, 522 U.S. 52, 65, 118S.Ct. 469, 139 L.Ed.2d 352 (1997) (facilitatingsome but not all of the conspiracy's objectives withrequisite intent sufficient to establish culpability asa member of the conspiracy).
[45] Additionally, the presence of CS–1 doesnot defeat the possibility that a conspiracy can beproven. United States v. Miranda–Ortiz, 926 F.2d172, 175–76 (2d Cir.), cert. denied, 502 U.S. 928,112 S.Ct. 347, 116 L.Ed.2d 287 (1991) (“the pres-ence of a government agent ‘does not destroy aconspiracy in which at least two other private indi-viduals have agreed to engage in an unlawful ven-ture.’ ”)(quoting United States v. Goldberg supra,at 958). Here, the Indictment charges at least twoother persons as co-conspirators, i.e., William Park-er and Reno Sayles, besides CS–1 even consideringCS–1 as a government agent for purposes of plead-ing requirements applicable to a conspiracy countwhere such agents are involved. Discussion, supra,at 469 n. 6. Consequently, Defendants' challenge toCount X must be rejected.FN7
FN7. Defendants also rely on Apprendi v.New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
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147 L.Ed.2d 435 (2000) to support theircontention that the Indictment is faciallydefective. Defendants' Memorandum at3–12; Defendants' Reply at 4–5, 10. In Ap-prendi, the Supreme Court held that “otherthan the fact of a prior conviction, any factthat increases the penalty for a crime bey-ond the prescribed statutory maximummust be submitted to a jury and provedbeyond a reasonable doubt.” Id. at2362–63; United States v. White, 240 F.3d127, 133 (2d Cir.2001). “Rejecting a form-alistic distinction between ‘elements' and‘sentencing factors,’ the Court ruled that itwas impermissible to rely on a fact notfound by the jury (other than a prior con-viction) to impose a sentence above a stat-utory maximum.” White, supra, at 133–34(citing Apprendi at 2365). Here, all the ele-ments comprising each count are alleged inthe Indictment, and Defendants concede asmuch. Defendants' Reply at 4 (“In thiscase; [sic] the point is that the elements arepled in the Indictment.” (emphasis in ori-ginal)). Thus, to whatever extent Defend-ants' sentences may be affected by thejury's finding of guilt on any count, the“facts” or “elements” upon which a De-fendant could suffer a penalty beyond astatutory maximum will have been submit-ted to the jury. Moreover, Defendants donot explain how such statutory maximumscould be exceeded based on the charges inthis case. As such, Apprendi has no relev-ance to whether the Indictment is faciallydefective in any regard as Defendants as-sert.
*471 4. Surplusage.
A. Count I—The § 241 Conspiracy.
Defendants move to strike as surplusage inCount I, ¶ 2 references to “persons in the State ofNew York, including individuals in the City of Buf-falo” alleged to be persons whose constitutional
rights Defendants conspired to violate. Defendants'Motion at 17. In their Motion for a Bill of Particu-lars, Defendants requested the identification of anypersons, as described in Count I, ¶ 2, other than thegovernment agent and the confidential source, de-scribed elsewhere in Count I, who the Grand Jurybelieved were also “intended victims” of the al-leged conspiracy. Defendants' Joint Motion for aBill of Particulars and Discovery, filed August 28,2000 (Doc. # 41) (“Defendants' Motion for a Bill ofParticulars”), Request No. 7 at 1. Responding toDefendants' request, in its Amended Bill of Particu-lars, (Doc. # 48), the Government stated that theGrand Jury was not provided with evidence “of anyother individuals as referenced in defense requestnumber 7 ” reserving its right “to introduce otherevents and individuals as evidence of the conspir-acy.” Amended Bill of Particulars ¶ 5 (emphasis ad-ded).
Defendants contend that unless the Indictment'sreferences to the unidentified persons, as containedin Count I, are stricken, Defendants will suffer pre-judice and a violation of their Fifth Amendmentright to be indicted based on evidence presented toa grand jury. Defendants' Motion at 18. In its re-sponse, the Government maintains that although theGrand Jury lacked the identity of others whom De-fendants intended to act against through their con-spiracy, the Indictment alleges that Defendants' un-lawful purpose was to act against more than oneperson; thus the references at issue do not constituteobjectionable surplusage, and are amenable to proofat trial. Government's Response at 3.
[46][47][48] Fed.R.Crim.P. 7(d) protects a de-fendant against prejudicial allegations that areneither relevant nor material to the charges made inthe indictment, not essential to the charge, or unne-cessary or inflammatory. United States v. Kemper,503 F.2d 327, 329 (6th Cir.1974), cert. denied, 419U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 824 (1975).“Motions to strike surplusage will be granted onlywhere the challenged allegations are ‘not relevantto the crime charged and are inflammatory and pre-
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judicial.’ ” United States v. Scarpa, 913 F.2d 993,1013 (2d Cir.1990) (quoting United States v. Na-politano, 552 F.Supp. 465, 480 (S.D.N.Y.1982)(citing authorities)). Further, if the material in ques-tion is subject to the government's anticipated proofat trial, it will not be stricken regardless of the de-gree of potential prejudice. United States v. Cli-matemp, Inc., 482 F.Supp. 376, 391 (N.D.Ill.), aff'dsub nom, United States v. Reliable Sheet MetalWorks, Inc. 705 F.2d 461 (7th Cir.), cert. denied,462 U.S. 1134, 103 S.Ct. 3116, 77 L.Ed.2d 1370(1983). Whether to strike language from an indict-ment as surplusage is within the court's discretion.Dranow v. United States, 307 F.2d 545, 558 (8thCir.1962).
[49] Here, Defendants seek to strike fromCount I the reference to “persons in the State ofNew York, including individuals located in the Cityof Buffalo” as persons toward whom Defendants'conspiracy was directed because the Governmentconceded in its Bill of Particulars that the GrandJury lacked evidence regarding such persons. De-fendants' Memorandum at 17–18. This assertion isfallacious. *472 Simply because the Grand Jury didnot have evidence of the identity of such personsagainst whom it found Defendants conspired to actdoes not mean that the object of the conspiracy asalleged was without evidentiary basis and the refer-ence to unidentified potential victims thereby preju-dicial. To the contrary, the Indictment makes sever-al allegations that Defendants intended to actagainst more than the specific drug dealer theyeventually, albeit mistakenly, believed was a“Jamaican” drug dealer. See, e.g., (i) Defendants“...agreed ... to rob and steal money, property anddrugs from persons whom they believed to be en-gaged in criminal activity....” Count I, ¶ 3; (ii)“Parker indicated that he worked with persons who‘go after Jamaicans' and ‘try to rob them.’ ” CountI, ¶ 4; (iii) “It was further part of the conspiracythat Parker ... and CS–1 discussed robbing Jamaic-an drug dealers.” Count I, ¶ 6; (iv) “It was gener-ally the manner and means of the conspiracy thatthe defendants would ... acquire information and
knowledge regarding actual and suspected drugdealers ... to intimidate, threaten and extort saiddrug dealers in order to accomplish the objectivesof the conspiracy.” Count II, ¶ 4 (emphasis added).
Thus, fairly read, the Indictment alleges, basedon evidence derived from an undisputedly extensiveundercover investigation, that Defendants' conspir-acy was not directed solely to a specific known in-dividual, or a group of persons whose identitieswere known to the Grand Jury. Rather, its unlawfulobjective, as broadly alleged, was to violate theconstitutional rights of suspected drug dealers, par-ticularly those of Jamaican nationality, wheneverthe opportunity was presented. The specific iden-tity, as requested by Defendants in their motion forparticularization, of such Jamaican drug dealers asintended and potential victims of the conspiracy istherefore irrelevant to the charges, and the Govern-ment's failure to particularize such creates no basisto find the challenged statements constitute prejudi-cial surplusage. Moreover, given the plethora ofGrand Jury findings regarding the scope of the con-spiracy, Count I, ¶ ¶ 2—17, 19—35, Defendants'assertion that the Grand Jury failed to consider rel-evant evidence, or lacked competent evidence, inreturning the Indictment is baseless. Accordingly,Defendants' motion to strike the material at issuefrom Count I is DENIED.
B. Count II—Theft of Government Property Con-spiracy.
Defendants seek similar relief as to referencesto “persons” believed to be suspected drug dealers,alleged in Count II, based on the same argumentsconsidered in connection with Defendants' motiondirected to Count I. Defendants' Motion at 18. Forthe reasons discussed, supra, in relation to Count I,Defendants' motion as to Count II regarding this re-quest is DENIED.
[50] Defendants further contend that referencesin Count II to “others unknown” should be strickenas well. Specifically, Count II, ¶ 2 alleges that De-fendants conspired with “others unknown” to viol-ate 18 U.S.C. § 641. Defendants argue that because,
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based an asserted lack of information in the Indict-ment and evidence revealed to them through pretri-al discovery, there is no indication of the actual ex-istence of such unknown coconspirators, the refer-ence should be stricken to prevent any prejudicialinference by the trial jury that the conspiracy is“broader” than the proof will support. Defendants'Motion at 18. In response, the Government statesthat any variance between the allegation and its trialevidence can be resolved, if necessary, by strikingthe phrase at that *473 time. Government's Memor-andum at 41. Defendants' contention is withoutmerit.
First, unlike Count I, Count II specifically al-leges the involvement of other co-conspirators inthe conspiracy to violate § 641. While Count IIcharges a conspiracy factually related to the civilrights violation conspiracy described in Count I, itis, nevertheless, a separately charged conspiracy of-fense. Thus, although Count I does not directly al-lege the involvement of unknown coconspirators, itis not illogical that such may in fact be the case, asstated in Count II, with respect to that conspiracy'stheft of government property objective. IndictmentCount II, ¶ 2. Accordingly, it cannot be said that thechallenged reference to unknown persons in CountII has the effect of broadening unfairly the scope ofthe alleged conspiracy as Defendants assert. Rather,it seeks to state what the Grand Jury likely believedto be the case based on the evidence presented to it.See United States v. Millar, 79 F.3d 338, 345 (2ndCir.1996) (“We have held that superficially incon-sistent conspiracy determinations in the same pro-ceedings are permissible where there is evidencethat the defendant conspired with ‘others un-known,’ so long as the indictment actually men-tions ‘others.’ ”) As discussed, Discussion, supra,at 444, Count II adequately tracks the statutory lan-guage, and is sufficient on its face to require trial.Accordingly, the court fails to see how the languageat issue can conceivably be considered to be preju-dicial surplusage. Climatemp, supra, ( material sub-ject to proof not surplusage); Dranow, supra,(striking surplusage discretionary with court).
[51] Defendants also attack the use of the verb“to rob” in paragraph 3 of Count II arguing thatsuch term is objectionable as it is not includedwithin the statute as an element of the § 641 of-fense. Defendants point out that § 641 employs theterms embezzle, steal, purloin, and covert, but notrob, in its definition of the offense. Overlooked,however, by Defendants' argument is that Count IIalleges a conspiracy in violation of 18 U.S.C. § 371having as its object a violation of § 641, not a viol-ation of § 641 itself as an substantive offense. Thisconspiracy offense is properly charged as it incor-porates the statutory elements of §§ 371 and 641.Specifically, Count II alleges that Defendants con-spired “to steal, purloin, and knowingly convert totheir own use” property of the United States in viol-ation of § 641. The fact that the Indictment assertsthat, in addition to a purpose to steal or purloingovernment property, among the conspiracy's ob-jectives was an intention to rob someone of suchproperty may assist the jury in an understanding ofthe body of proof which may be offered by theGovernment in support of the count. For example,evidence that one of the objectives of the conspir-acy was to rob its intended victims would assist thejury in evaluating whether the conspiracy's unlaw-ful objectives included an intention to steal or con-vert government property. While robbery includesan element of assaultive conduct, it also requires ashowing of an unlawful taking of property from an-other, i.e., stealing, thus a form of theft. UnitedStates v. Miller, 26 F.Supp.2d 415, 421(N.D.N.Y.1998) (use of descriptive titles to “mirrorproof” government intends to offer at trial not sur-plusage). Further, such evidence may also be ad-missible to establish the Defendants' intent. SeeFed.R.Evid. 404(b) (evidence of other wrongdoingadmissible to establish defendant's intent, plan andabsence of mistake). As such, the challenged refer-ence in Count II to an intent to rob is not likely toconfuse or mislead the jury, and as such does notconstitute prejudicial surplusage.
*474 [52] Defendants also contend that the ref-erence in ¶ 4 of Count II, that an objective of the
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conspiracy was to “intimidate, threaten and extort... drug dealers” should be stricken as, according toDefendants, the Government conceded in itsAmended Bill of Particulars, that the Grand Jurywas not presented with evidence of the identity ofother individuals that “were thought to be intendedvictims of the charged conspiracy.” Defendants'Joint Motion for a Bill of Particulars, ¶ 7 at 1. Asdiscussed, Discussion, supra, at 470–71, with re-gard to Defendants' motion to strike references tounidentified victims as alleged in Count I, the re-quest confuses the allegation that Defendants' con-spiratorial purpose included the objective of steal-ing money from more than one “Jamaican” drugdealer as such persons were identified by CS–1 tothe conspirators with Defendants' request for theidentities of such drug dealers, if known. The factthat the total number of intended victims were notat the outset immediately known or could not thenbe identified by name does not restrict the introduc-tion of evidence that the object of the conspiracy asalleged included any “Jamaican” drug dealers ofwhich Defendants became aware. The Govern-ment's particularization response does not concedethe charged conspiracy's object was limited to onlythe supposed Jamaican drug dealer to whom De-fendants were directed by CS–1 leading to their ar-rest in this case. In fact, as noted, the object ofCount I is not directed to any specific drug dealer.Rather, the Government's “concession” merelystates the obvious—that the names of additional po-tential victims as solicited by Defendant Parker inhis conversations with CS–1 were not then knownto CS–1 and thus were not presented to the GrandJury during its consideration of the case. As such,the challenged material permits the Government todemonstrate what the actual facts were regardingthe purported objectives of the conspiracy and thematerial is not prejudicial to the defense. SeeMiller, supra, at 421. The motion as to Count II istherefore DENIED.
C. Count IV—Theft of Government Property.Defendants seek to strike as surplusage use of
the terms to “steal” and “purloin” as elements of
the alleged violation of § 641 in Count IV. Defend-ants contend that while Count IV alleges sufficientfacts upon which to convict based on an allegedconversion of government property, the Indictmentfails to allege facts upon which it could be foundthat Defendants stole or purloined any property.Defendants' Motion at 19–20. Specifically, Defend-ants claim that because as police officers they wereauthorized to seize drug proceeds, their actions asalleged in the Indictment, could not constitute steal-ing or purloining of government property. Id. De-fendants asserted the same theory as a basis to dis-miss Counts I and II for legal insufficiency. Discus-sion, supra, at 452–64. Based on the reasons statedin connection with the court's rejection of this argu-ment, id., the court rejects the argument as a groundto strike use of the terms “steal” and “purloin” assurplusage in Count IV. Additionally, as statutoryelements of the offense, the challenged alternativemeans by which the offense was committed cannotbe said to be irrelevant, and Defendants suggest nobasis to warrant finding they will suffer any undueprejudice if these elements remain in Count IV. De-fendants' motion as to Count IV is, accordingly,DENIED.
D. Count V—Hobbs Act Conspiracy.[53] Defendants request that the allegation in
Count V that Defendants conspired with “others un-known” be stricken *475 as surplusage. Defendants'Motion at 20. Defendants argue that in the absenceof providing Defendants with the identity of suchalleged unknown additional co-conspirators, the de-fense will be prejudiced in that the jury may inferthe charged conspiracy was broader than the evid-ence will support. Id. However, the mere fact thatthe Indictment contains a reference to such un-known persons does not warrant the conclusionurged by Defendants. The jury will also be instruc-ted that the conspiracy must be established by theGovernment's evidence. Thus, if the Governmentfails to support the allegation regarding other un-known co-conspirators, it is more likely that suchfailure could undermine the jury's assessment of thestrength of the Government's case than that it will
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work to the disadvantage of the defense. In anyevent, it is premature to make such a determination.Further, assuming the Government furnishes suchevidence, the challenged references cannot be con-sidered as prejudicial surplusage. Miller, supra, at421 (allegations which “mirror proof” by govern-ment at trial not surplusage). Based on this analysis,the Defendants' motion as to Count V is DENIED.
E. Counts VIII & IX—Attempted Hobbs Act Viola-tions.
In these counts, Defendant Darnyl Parker is in-dividually charged with two attempted violations ofthe Hobbs Act based on his alleged extortion ofmoney from CS–1. Defendant contends the countsallege two “mutually exclusive” offenses in thatthey allege both the use of force and extortion un-der color of right. Defendants' Motion at 20.However, the court finds such contention to be thesame as Defendants' attack on the Indictment as-serting duplicity. Discussion, supra, at 449. As dis-cussed, because disjunctive elements are properlypleaded conjunctively, and do not thereby consti-tute separate offenses, Defendant's argument iswithout merit. Id. Further, because such alternativemeans of commission of the offense are statutoryelements, it cannot be found that their presence inthe Counts VIII and IX represent irrelevant materi-al. See Climatemp, Inc., supra. Accordingly, thereis no basis to find the challenged allegations areprejudicial surplusage. Defendants' motion as tothese counts is therefore DENIED.
F. Count XI—Cocaine Trafficking Conspiracy.Defendants contend this count contains sur-
plusage which should be stricken because it allegesthat the Defendants charged in this count acted with“others unknown” to enter into the alleged conspir-acy. Defendants' Motion at 21. Although the Gov-ernment did not respond to Defendants' particular-ization Request No. 77 seeking the identity of suchpersons, this court has denied such further particu-lars. D & O at 17 (relying on Torres v. UnitedStates, 901 F.2d 205, 234 (2d Cir.1990)) (holdingdenial of similar request proper in narcotics traf-
ficking conspiracy where defendants were providedwith detailed information through pleadings anddiscovery). As discussed, Discussion, supra, at 471,with respect to Defendants' attack on similar al-leged surplusage in Count V, the Government's in-ability to provide evidentiary support for the exist-ence of such unknown co-conspirators is morelikely to have an adverse effect on the Govern-ment's case than upon the defense. Further, assum-ing the Government intends to offer proof in sup-port of the allegation, it is not subject to a motion tostrike. As with Count V, the issue is also premature.Accordingly, the challenged reference is not preju-dicial surplusage, and the motion is DENIED as tothis count.
*476 5. Defendants' Motion to Suppress.Finally, Defendants move to suppress all evid-
ence gathered in this case derived from what De-fendants characterize as deceptive investigative“techniques” supervised by the Government's attor-neys who oversaw the investigation. Defendants'Motion at 22; Defendants' Memorandum at 25–27,38–42; Defendants' Reply at 24. Defendants basetheir contention on three propositions: (1) the ab-sence of judicial approval of the use of a “sting”type of undercover investigation in enforcing § 241;(2) the requirements of DR 1–102(A)(4) of theCode of Professional Responsibility which prohib-its attorneys from engaging in “conduct involvingdishonesty, fraud, deceit, or misrepresentation”;and (3) that the instant undercover investigation in-volved the Government's attorneys in unprofession-al conduct as prohibited by DR 1–102(A)(4). De-fendants' Memorandum at 27, 40.
[54] First, undercover “sting” investigationsinitiated without probable cause have been held notto constitute a due process violation. United Statesv. Jannotti, supra, at 608–09, citing United States v.Myers, 635 F.2d 932, 941 (2d Cir.), cert. denied,449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221(1980) (no constitutional requirement of a showingof reasonable suspicion prior to initiating undercov-er sting investigation relating to suspected unlawful
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payments to members of Congress). Moreover, inthis case, there is no serious dispute that the Gov-ernment received incriminating information assert-ing Defendant Darnyl Parker engaged in unlawfulpayments from CS–1, that Parker and others associ-ated with him had an interest in committing theftsfrom suspected drug dealers, and that such informa-tion was based on the personal experience andknowledge of CS–1. Complaint, ¶ ¶ 4, 5. Moreover,it is undisputed that Defendants' alleged misconductwas the subject of extensive audio and visual recor-ded surveillance, which substantially corroborated,as alleged by the Indictment, CS–1's information.Thus, even if reasonable suspicion was a constitu-tional prerequisite to the commencement of a“sting” investigation, based on the record, therewas a reasonable basis for the investigation at issue.Hence, that there is no caselaw specifically approv-ing the use of undercover “sting” investigations toenforce § 241 is no bar to prosecution.
[55] Second, Defendants fail to explain whatspecific conduct employed by investigators in thiscase could conceivably be viewed as deceptive andunethical within the meaning of any rules of profes-sional responsibility. Indeed, opinions of state andlocal bar associations hold DR 1–102(A)(4) doesnot apply to prosecuting attorneys who provide su-pervision and advice to undercover investigations.N.Y. State Bar Assoc. Ethics Comm. Opinion No.515 (1979); Assoc. of the Bar of the City of N.Y.Comm. on Professional Ethics Opinion No. 696,1993 WL 837936. See also Gidatex v. CampanielloImports, Ltd., 82 F.Supp.2d 119, 123(S.D.N.Y.1999) (prohibition against attorney mis-representations in DR 1–102(A)(4) not applicableto use of undercover investigations initiated byprivate counsel in trademark infringement case).Nothing on the face of the Indictment or in the re-cord indicates that, with the exception of the De-fendants' alleged unlawful seizure of Agent White,any federal agent or attorney for the Governmenthad, during the course of the five month investiga-tion, any contact with any of the Defendants uponwhich such deception or misrepresentation taken at
counsel's direction, as asserted by Defendants,could be based. Defendants' logic would, if accep-ted, mean that government attorneys could not su-pervise investigations involving*477 undercoveragents and informants who cannot reveal their trueidentity and purpose to the targets of the investiga-tion without thereby rendering the investigation fu-tile and dangerous. There is no authority for such aconclusion.
[56][57] Third, even if the alleged misconduct,attributed by Defendants to the Government attor-neys in this case, were deemed an ethical violation,and the relevant disciplinary rule were applicable tothe instant facts, such does not warrant use of theexclusionary rule as a remedy for such violation.United States v. Bidloff, 82 F.Supp.2d 86, 100(W.D.N.Y.2000) (citing United States v. Lowery,166 F.3d 1119, 1124 (11th Cir.)) (violation of statebar rule of professional conduct, prohibiting attor-ney inducements to witnesses, provides no basis forapplication of federal exclusionary rule and holding28 U.S.C. § 530(B), subjecting government attor-neys to state rules of professional conduct, estab-lished no alternative basis for the exclusion of evid-ence in federal proceedings based on alleged mis-conduct of government attorneys), rehearing andrehearing en banc denied 180 F.3d 276, cert.denied, 528 U.S. 889, 120 S.Ct. 212, 145 L.Ed.2d178 (1999). In Lowery, the court noted that pursu-ant to Fed.R.Evid. 402, the admissibility of evid-ence in federal criminal proceedings is limited onlyby the Constitution, acts of Congress, the FederalRules of Evidence, or Supreme Court rules.Lowery, at 1125.
United States v. Hammad, 858 F.2d 834 (2dCir.1988), relied on by Defendants, is not to thecontrary. In Hammad, the court held that use of asham grand jury subpoena to induce a representedwitness to make incriminating statements violatedDR 7–104(A)(1) prohibiting attorneys from contactwith represented parties. Hammad, supra, at 839.The court further held, however, that suppression ofevidence derived from such violation as a remedy is
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limited to violations of DR 7–104(A)(1) and mustbe applied “cautiously” as a matter of judicial dis-cretion. Id. at 841.FN8 Thus, the Hammad holdingis limited to violations of DR 7–104(A)(1). Gidetex,supra, at 126 (Hammad does not require, and“discour[ages],” exclusion of evidence based onethical rule violations, and noting that New Yorkcourts refuse to sanction violations of state Code ofProfessional Responsibility by suppression of evid-ence obtained as a result of such violations). Basedon the record, there is no indication Defendantswere represented during the course of the instant in-vestigation, and Defendants do not contend other-wise. Thus, as Defendant challenge in this case isbased on an asserted violation of DR 1–102(A)(4)and there is no basis to claim a violation of DR7–104(A)(4) occurred, Hammad is inapposite.
FN8. The court, in Hammad, did not con-sider the proposition relied upon inLowery, that Fed.R.Evid. 402 does not re-cognize violations of the Code of Profes-sional Responsibility, even when found bycourts, as a grounds for suppression ofevidence. Nor did the court find any altern-ative constitutional requirement which thegovernment attorney's conduct could havebeen found to have violated.
Nor does In re Gatti, 330 Or. 517, 8 P.3d 966(2000), relied on by Defendants, Defendants'Memorandum at 39–40, require a different result.In Gatti, the Oregon Supreme Court, as relevant tothe instant case, held DR 1–102(A)(3), which sup-plements DRI–102(A)(4), applied to a private attor-ney who misrepresented himself as a chiropractorduring the course of an alleged fraud investigation.The court refused to find a prosecutor's exception toDR 1–102(A)(3), Gatti at 976, and sustained a pub-lic reprimand sanction against the attorney. Id. at979. As Gatti does *478 not involve a governmentattorney's supervision of agents engaged in a formalcriminal investigation, it is inapplicable on its facts.Moreover, the court's determination that DR 1–102(A)(3) forbids the use of undercover investigative
techniques by attorneys in civil maters is contraryto caselaw in this circuit. See Gidatex, supra at 122(holding that DR 1–104(A)(4) prohibiting circum-vention of Disciplinary Rules through “dishonesty,fraud, deceit, or misrepresentation” not applicableto undercover investigation hired by private counselto elicit statements from persons approached by in-vestigators). In Gidatex, there was no indicationthat the investigators, who had been engaged byprivate attorneys, posing as interior decorators,caused the interviewed sales clerks to make “anystatements they otherwise would not have made.”Id. “The policy interests behind forbidding misrep-resentations by attorneys are to protect parties frombeing tricked into making statements in the absenceof their counsel and to protect clients from misrep-resentations by their own attorney.” Id. (citingcases). Accordingly, Gatti is neither controlling norpersuasive authority supporting Defendants' requestfor suppression of evidence.
In sum, there is no basis to exclude any evid-ence derived from the instant investigation based onan asserted violation of any relevant attorney dis-ciplinary rules, and Defendants' motion to suppressshould therefore be DENIED.
CONCLUSIONBased on the foregoing, Defendants' motion to
dismiss and for suppression of evidence should beDENIED.
Defendants' Motion to Strike Surplusage isDENIED.
SO ORDERED.
April 19, 2001.
W.D.N.Y.,2001.U.S. v. Parker165 F.Supp.2d 431
END OF DOCUMENT
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