The opinion of the court was delivered by: DONALD J. LEE
Presently before the Court is Defendant William E. Rusin's Motion to Quash Count Twenty-Six of Indictment for Violation of Rule 8(a), Fed. R. Crim. P. (Document No. 364).
On September 20, 1991, a Grand Jury indicted Defendant William E. Rusin ("Rusin") and twenty-two others in a twenty-nine count indictment.
Count One charges all Defendants with a dual-object conspiracy in violation of 18 U.S.C. § 371. The objects of the conspiracy are alleged to be, first, taking part in an illegal gambling business involving video poker machines in violation of Pennsylvania law and 18 U.S.C. § 1955 and, second, laundering the proceeds of the illegal gambling business in violation of 18 U.S.C. § 1956(a)(1)(A)(i), that is, conducting and attempting to conduct financial transactions affecting interstate commerce by receiving, transferring, delivering, depositing and otherwise transacting cash proceeds of the video poker gambling with the intent to promote the carrying on of video poker gambling.
Count Two charges all Defendants with taking part in an illegal gambling business involving video poker machines in violation of Pennsylvania law and 18 U.S.C. § 1955.
Counts Three through Twelve charge Defendants other than Rusin with substantive crimes involving interstate activity regarding gambling.
Counts Thirteen through Twenty-Nine charge substantive violations of the money laundering statute, 18 U.S.C. 1956(a)(1)(A)(i).
Count Twenty-Six charges Rusin and John F. "Duffy" Conley ("Duffy Conley") with the substantive crime of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) & § 2. Count Twenty-Six states:
The grand jury further charges:
On or about the period 1988 and 1989, within the Western District of Pennsylvania and elsewhere, the defendants JOHN F. "DUFFY" CONLEY and WILLIAM RUSIN did knowingly conduct and attempt to conduct financial transactions, affecting interstate or foreign commerce, by depositing and/or causing to be deposited, monetary instruments to the Duffy Vending Accounts, account # 2-680118 and account #2-746105 through the Robinson Township Branch of Pittsburgh National Bank, which involved the proceeds of a specified unlawful activity, that is, illegal gambling involving video poker machines, knowing that the property involved in such financial transactions, that is, monetary instruments in the form of United States currency or coin or checks, represented the proceeds of the illegal gambling activity. This was done with the intent to promote the carrying on of a specified unlawful activity, that is, illegal gambling with video poker machines.
Indictment, Count Twenty-Six, at 59 (Document No. 1) (emphasis added). Rusin challenges Count Twenty-Six on the grounds that it is duplicitous in violation of Federal Rule of Criminal Procedure 8(a).
The Court has allowed Defendants to move to join in each others pretrial motions. Defendants Duffy Conley, Mark A. Abbott, ("Abbott"), Michael Sukaly ("Sukaly") and Frank Garofalo ("Garofalo") have joined in the motion before the Court. In light of the grounds advanced in opposition to and in support of Count Twenty-Six, the counts charging these joining Defendants are indistinguishable from Count Twenty-Six in all material respects.
The Court, therefore, deems the counts in which the joining Defendants have been charged with money laundering to be fairly implicated, in whole or in part, by the present motion and the joinders therein.
The Court's references to Count Twenty-Six in the following Discussion apply equally to all the implicated counts.
In a federal criminal prosecution, joinder of counts and defendants within an indictment is governed by Federal Rule of Criminal Procedure 8, which provides:
RULE 8. Joinder of Offenses and of Defendants
(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
Fed. R. Crim. P. 8 (1993) (emphasis added). "Duplicity is the joining of two or more distinct offenses in a single count, so that a general verdict does not reveal exactly which crimes the jury found the defendant had committed." United States v. Gomberg, 715 F.2d 843, 845 (3d Cir. 1983), cert. denied, 465 U.S. 1078, 104 S. Ct. 1439, 79 L. Ed. 2d 760 (1984), overruled on other grounds, Garrett v. United States, 471 U.S. 773, 85 L. Ed. 2d 764, 105 S. Ct. 2407 (1985). The question presented in this motion is whether Count Twenty-Six charges Rusin and Duffy Conley with more than one offense.
First, the Government contends that its course-of-conduct charge meets the so-called "Blochberger test." See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). The Government states:
The test for determining whether several offenses or only one has been charged is to determine whether identical elements will be proved relative to each event or if any event during the course of conduct requires proof of varying elements. . . . Here, of course, the elements to be proven relative to each event during the course of conduct will be identical.
Second Omnibus Response at 10-11 (citations omitted). Subsidiary to this contention is the contention that the Indictment alleges one continuing offense, but multiple means of committing it. Id. at 9, 10.
Second, the Government contends that Rusin will suffer none of the prejudice associated with a duplicitous indictment. Moreover, it asserts that Rusin will actually benefit from the double-jeopardy implications of the course-of-conduct charge.
The Court finds the Government's contentions to be without merit. The offense of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), as defined by Congress, is not a continuing, course-of-conduct offense. Moreover, the likelihood of prejudice in this case is palpable, assuming a showing of such a likelihood is required in a pretrial challenge to a count charging an offense that was not defined by Congress.
A. Money Laundering Cannot be Charged as a Course of Conduct
The disposition of this motion is controlled by Blochberger --but not by the so-called "Blochberger test," as the Government would have it. The defendant in Blochberger was convicted on counts two, three and five of an indictment. Count two charged an illegal sale of drugs not in the original stamped package on a specified day. Count three charged an illegal sale of drugs not in the original stamped package to the same purchaser on the day after the day specified in count two. Count five arose from the same sale of drugs as count three, but charged that the sale was made not pursuant to a written order from the purchaser. Blochberger, 284 U.S. at 301.
The defendant challenged his conviction and sentence on both counts three and five on the ground that the counts were based upon the same act, yet charged under different statutes. The Court, after enunciating the now-familiar "Blochberger test," found that convicting and sentencing the defendant on both count three and count five passed muster under it.
Relevant to the present motion is the Blochberger Court's analysis of count's two and three and the defendant's challenge to conviction and sentence on both. The defendant contended that the first sale and the second sale were part of a continuing offense. The evidence showed that on the first day, shortly after the first sale, the purchaser paid for the second quantity of drugs, which were not delivered until the second day. The Court compared In re Snow, 120 U.S. 274, 30 L. Ed. 658, 7 S. Ct. 556 (1887) with Ebeling v. Morgan, 237 U.S. 625, 59 L. Ed. 1151, 35 S. Ct. 710 (1915). In re Snow addressed the offense of cohabitating with more than one woman, of which the Court stated:
"It is, inherently, a continuous offense, having duration; and not an offense consisting of an isolated act. * * *
"A distinction is laid down in adjudged cases and in text-writers between an offense continuous in its character, like the one at bar, and a case where the statute is aimed at an offense that can be committed uno ictu [sic]."
Blochberger, 284 U.S. at 302 (quoting In re Snow, 120 U.S. at 281, 286). In contrast, Ebeling addressed the offense of willful tearing of mailbags with the intent to rob. After examining the words of the statute, the Ebeling court stated:
"These words plainly indicate that it was the intention of the lawmakers to protect each and every mail bag from felonious injury and mutilation. Whenever any one mail bag is thus torn, cut, or injured, the offense is complete. Although the transaction of cutting the mail bags was in a sense continuous, the complete statutory offense was committed every time a mail bag was cut in the manner described, with the intent charged. The offense as to each separate bag was complete when that bag was cut, irrespective of any attack upon, or mutilation of, any other bag."
Blochberger, 284 U.S. at 303 (quoting Ebeling, 237 U.S. at 629) (emphasis added by this Court). The Blochberger Court also stated, "'The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. * * * If the latter, there can be but one penalty.'" Id. at 302 (quoting Wharton's Criminal Law § 34 n.3 (11th Ed.)). The Blochberger Court found Ebeling to be controlling. The Court looked to the legislative intent as manifested in the words of the statute before it and stated:
The Narcotics Act does not create the offense of engaging in the business of selling the forbidden drugs, but penalizes any sale made in the absence of either of the qualifying requirements set forth. Each of several successive sales constitutes ...