U.S. v. STERN, (S.D.N.Y. 2003)

MICHAEL MUKASEY, Chief Judge, District

This case is now before the court in connection with defendant Ephraim Stern's remaining motions to dismiss the indictment, to compel examination of the grand jury minutes, for discovery of various kinds, and for a bill of particulars. His motion to direct the government to move for a downward departure pursuant to U.S.S.G. § 5k1.1, or to suppress statements, was denied by Judge Lynch in a characteristically thorough and well-reasoned opinion. See United States v. Stern. 02 Cr. 1015 and 03 Cr. 81, 2003 U.S. Dist. LEXIS 17835 (S.D.N.Y. Oct. 7, 2003).

Except as set forth below, and for the reasons set forth below, the remaining motions are denied.

I.

Stern stands indicted in this case for making false statements to FBI agents in connection with an investigation, in violation of 18 U.S.C. § 1001. He attacks the indictment as vague and duplicitous, and argues that the false statements it charges were not material to the investigation in question and resulted from what would be, in the context of a grand jury investigation, a "perjury trap." (Memorandum of Law in Support of Omnibus Motions ("Defendant's Memorandum") at 7-8) None of these arguments withstands analysis.

In relevant part, the indictment charges Stern in one count as follows:

In or about December 2002 . . . EPHRAIM STERN . . . in a matter within the jurisdiction of the executive branch of the Government of the United States, . . . made materially false . . . statements and representations, to wit, STERN falsely indicated to agents of the Federal Bureau of Investigation that he had made and provided them with the recordings of all relevant phone calls while purportedly assisting in Government investigations, when, in truth and in fact, STERN failed to record and otherwise advise the FBI of a material conversation with another individual in which STERN requested that the individual lie to a third person in a way that STERN knew would conceal improper conduct by STERN during an investigation.

Stern argues that that language is vague because it is difficult to know how it is that he "indicated" false information to FBI agents, and the like. However, what the indictment plainly means is that Stern lied to FBI agents in December 2002 by telling them that he had recorded and turned over all relevant conversations in connection with an investigation in which he was supposed to be assisting, whereas he had had relevant conversations that he did not record and turn over, including at least one where he told another person to lie in such a way as would conceal Stern's improper conduct during an investigation. The indictment does not specify what improper conduct was being concealed, although the government in its memorandum appears to disclose that that conduct was theft of money from an undercover transaction. (Government's Memorandum of Law in Opposition to Defendant's Pre-Trial Motions ("Government Memorandum") at 2).

Assuming that it is supplemented by a bill of particulars that specifies the improper conduct being concealed, the indictment is sufficiently specific that Stern can understand what he is being charged with and defend himself. It is at least as specific as any drug indictment that charges a defendant with distributing or possessing for distribution, say, one kilogram or more of cocaine during a one-month period. No more detail is required.

Nor is the indictment dismissible as duplicitous. An indictment may charge more than one false statement in the same count, so long as the jury is instructed that it must agree unanimously both that the defendant made at least one of the charged false statements, and which statement that was. See United States v. Crisci, 273 F.3d 235, 239 (2d Cir. 2001) (conviction affirmed although single false statement: count charged seven separate false statements).

Here, I am not convinced that the indictment does charge more than one false statement, as opposed to more than one iteration of the same false statement. Nonetheless, so long as the jury is instructed that it cannot convict absent unanimous agreement as to which false statement the defendant made and on what occasion he made it, there is nothing improper about requiring this defendant to stand trial on the charge as framed in the indictment.

Stern argues as well that the indictment must be dismissed because his false statements were not material in that the FBI knew at the time he made them that they were false, and therefore no one could have been misled. Here too, the law is against him. All that is necessary is that the government show that the statement, if believed, could have influenced the decision of the agency to which it was directed. See United States v. Gaudin, 515 U.S. 506, 509 (1995). A conviction for making a false statement to an FBI agent will be affirmed even if the evidence shows that the agent to whom the statement was made was aware at the time that the statement was false and therefore did not believe it. In United States v. Brogan, 522 U.S. 398 (1998), the Court wrote: "It could be argued, perhaps, that a disbelieved falsehood does not pervert an investigation. But making the existence of this crime turn upon the credulousness of the federal investigator (or the persuasiveness of the liar) would be exceedingly strange." Id. at 402.

Stern's final argument in favor of dismissal of the indictment is that he was set up — i.e., that he was the victim of what would be, in a grand jury context, a "perjury trap" (Defendant's Memorandum at 7-8) — because the FBI agent asked him questions knowing that he would lie so that he then could be prosecuted. This argument suffers from at least three defects. First, the perjury trap defense has never been recognized in this Circuit. See United States v. Regan. 103 F.3d 1072, 1079 (2d Cir. 1997) (noting that the defense has been discussed but never recognized). Second, even the discussion in Regan and inWheel v. Robinson, 34 F.3d 60, 68 (2d Cir. 1994), whichRegan cites, took place in relation to false grand jury statements, see id., not false statements to investigative agencies, where such considerations as the need to monitor during the pendency of an investigation the reliability of an informant always may be present, whereas such considerations may not be present during a grand jury investigation. Third, even in relation to false grand jury testimony, "the existence of a legitimate basis for an investigation and for particular questions answered falsely precludes any application of the `perjury trap' doctrine." Regan, 103 F.3d at 1079, (quotingWheel, supra) (internal quotation marks omitted).

The motion to dismiss the indictment must be denied.

II.

Stern asks also that the court inspect the grand jury minutes to assure that Stern is tried for the false statements the grand jury found he probably made, and that the grand jury was properly instructed. However, a presumption of regularity attaches to any indictment valid on its face and returned by a duly constituted grand jury. See Costello v. United States. 350 U.S. 359, 363 (1956). Therefore, absent any indication of government impropriety that would defeat that presumption,see United States v. Brito, 907 F.2d 392, 394-96 (2d Cir. 1990) (noting the possibility of abuse resulting from reliance exclusively on hearsay presented through one witness) (and cases cited therein) — and Stern has presented none here — this court has no roving commission to inspect grand jury minutes, and will not fashion one. See United States v. Wilson, 565 F. Supp. 1416, 1436-37 (S.D.N.Y. 1983) (Weinfeld, J.), aff'd, 750 F.2d 7 (2d Cir. 1984).

III.

Stern has moved as well for discovery under Federal Rule of Criminal Procedure 16, which requires production of the defendant's own statements, documents shown by the defendant to be material to his defense, and other items. This motion contains no particularized showing of materiality, and is not accompanied by an affidavit stating in what respect the government has failed to meet its discovery obligations. The government stated that it intended to meet with Stern's new counsel, who entered the case after the subject motion was filed, and to produce necessary documents. (Government Memorandum at 9 n. 1) I have no reason to believe that Rule 16 and other routine discovery has not been produced by now. If such production is lacking, the court can deal with any such shortcoming at a conference if Stern asks for one.

In addition, Stern has requested production of statements both by witnesses the government intends to call and those it does not intend to call at trial. A defendant has no right to production of a statement under 18 U.S.C. § 3500 before a witness testifies. See United States v. Percevault, 490 F.2d 126, 132 (2d Cir. 1974). To the extent that Stern may be asking for production of the statements of persons the government does not intend to call in the belief that such statements may contain exculpatory material, or material going to the credibility of government witnesses — Brady orGiglio material — such material need be produced only in time for effective use at trial; there is no pretrial discovery right with respect to it. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977).

IV.

As noted, Stern has moved also for a bill of particulars. He seeks explicit information about the factual circumstances of the charge, including whether Stern responded to a question in making the charged false statement, the exact question and words Stern used, the date and place of the statement, the name of the person Stern asked to lie, the name of the third person referred to in the charge, and the improper conduct Stern was allegedly concealing, as referred to in the charge. In addition, he seeks the government's legal theory, with such inquiries as how the false statement was material and what the definition is of "in a way" as used in the indictment.

A bill of particulars is not, strictly speaking, a pretrial discovery device, although motions for a bill of particulars are made before trial and the results of serving such a bill include conveying information. Rather, a bill of particulars is supposed to avoid unfair surprise at trial, and to permit the defendant to assert at some future time the defense of double jeopardy. Those ends are the only legitimate purpose of a bill of particulars. See Wong Tai v. United States, 273 U.S. 77, 87 (1927); New York Central Hudson River R.R. Co. v. United States, 212 U.S. 481, 497 (1909). More specifically, a bill of particulars may not be used to require the government to specify its legal theory, see United States v. Persico, 621 F. Supp. 842, 868 (S.D.N.Y. 1985) (and cases cited therein), nor may it be used to preview the government's evidence or trial strategy, or to require the government to specify how it will prove the charges. See Wilson, supra, 565 F. Supp. at 1438-39. "The defendants are not entitled to a bill of particulars setting forth the `whens,' `wheres,' and `with whoms' regarding the . . . conspiracy."United States v. Muyet, 945 F. Supp. 586, 599 (S.D.N.Y. 1996).

However, there is one item of information that should be disclosed, notwithstanding that to do so would limit the government's proof at trial, and that is the particular wrongful conduct that Stern was allegedly seeking to conceal. Here, the government appears already to have disclosed this information in its memorandum where it stated that Stern was seeking to conceal theft of funds from an undercover transaction. Whatever the range of Stern's wrongful conduct, he should not be forced to speculate that the government may have some other wrongful act in mind that it intends to spring upon him at trial, and possibly to make him the victim of unfair surprise. Therefore, the government will specify by November 21, 2003, the wrongful act Stern allegedly was attempting to conceal, and the approximate time such act occurred — month and year being sufficient.

As to the item of information specified immediately above, the motion for a bill of particulars is granted. In all other respects, the motion is denied.

SO ORDERED.