The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Memorandum Opinion and Order of Court Denying Motion to Dismiss (Doc. No. 180)
On January 20, 2006, the government brought an 84 count indictment alleging that defendant, Dr. Cyril Wecht, committed the crimes of theft of honest services - wire fraud and mail fraud, mail fraud, wire fraud, and theft concerning an organization receiving federal funds, in violation of 18 U.S.C. §§ 1341 1342, 1343 and 1346, 18 U.S.C. §§ 1341 and 1342, 18 U.S.C. §§ 1342 and 1343, and 18 U.S.C. § 666, respectively, when he unlawfully used his public office as the Coroner of Allegheny County, Pennsylvania, for his private financial gain (doc. no. 1). More specifically, the indictment alleges, among other things, that defendant falsely billed his clients (through the mail) for services such as limousine rides to the airport and other private engagements, while using County Coroner's office vehicles and employees to drive him to the airport and other private engagements; that defendant created false travel agency bills and false limousine reports and transmitted them via facsimile from the coroner's office to private clients in other states; and, that defendant otherwise used the Allegheny County Coroner's Office employees to perform other personal work, including secretarial work, for his own private financial gain. Defendant categorically denies these allegations. The trial of this case will commence on October 16, 2006, as agreed to by the parties in the March 1, 2006 Pretrial Order (doc. no. 42).
Currently pending before this Court is defendant's Motion to Dismiss the Indictment (doc. no. 180). After careful consideration of defendant's motion and supporting brief, the government's response thereto (doc. no. 249), and defendant's reply brief (doc. no. 252) and for the reasons that follow, said motion will be DENIED.
Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides that an indictment must contain the provision of law that the defendant is alleged to have violated and "a plain, concise and definite written statement of the essential facts constituting the offense charged."
Fed.R.Crim.P. 7(c))(1). The indictment must include all of the elements of the crime alleged, United States v. Spinner, 180 F.3d 514 (3d Cir. 1999), as well as specific facts that satisfy all those elements; a recitation "in general terms the essential elements of the offense" is not sufficient. United States v. Panarella, 277 F.3d 678, 684-85 (3d Cir. 2002). A district court may review the facts in the indictment to see whether, as a matter of law, they reflect a proper interpretation of criminal activity under the relevant criminal statute. 277 F.3d at 684-85. In considering a motion to dismiss an indictment, the district court must accept as true all factual allegations set forth in the indictment. United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990). The dismissal of an indictment is authorized only if its allegations are not sufficient to charge an offense, but such dismissals may not be based upon arguments related to the insufficiency of the evidence to prove the charges in the indictment. United States v. DeLaurentis, 230 F.3d 659, 660-61 (3d Cir. 2000). To the extent defendant alleges government misconduct in the form of a vindictive prosecution, the defendant must show that there has been misconduct of a nature sufficient to invoke the Court's supervisory powers, and that the defendant was prejudiced by such misconduct. Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988); United States v. Williams, 504 U.S. 36 (1992). The defendant has the burden of proof on a claim of vindictive prosecution, United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989), and defendant's burden is a rigorous one. United States v. Jarrett, 447 F.3d 520 (7th Cir. 2006).
A. General Allegations and Background
Although there are 70 paragraphs (having numerous subparagraphs) and 84 Counts in the Indictment, it actually states three fairly simple and straightforward sets of charges, and is not nearly the complicated and vague charging document the defendant makes out. The three groups of charges in the indictment are: A. "Honest Services" mail and wire fraud, also known as "intangible rights" fraud, wherein the victims are Allegheny County and its citizens, pursuant to 18 U.S.C. §§ 1341, 1343, 1346 and 2; B. Simple mail and wire fraud, wherein the victims are various private clients and outlying counties which used Dr. Wecht's services, pursuant to 18 U.S.C. §§1341, 1343 and 2; and C. Theft concerning a public entity receiving federal funds, pursuant to 18 U.S.C. §§ 666(a)(1)(A) and 2. Accepting as true all facts properly pled in the Indictment for purposes of deciding the legal sufficiency of the Indictment and the merits of this motion to dismiss, the Indictment avers the following.
From 1996 through 2000, Allegheny County was organized and subject to the provisions of the Second Class County Code, 16 P.S. §§ 3101-5106-A, and the Coroner of Allegheny County was an elected "Row Office" official who managed the personnel and resources of the Allegheny County Coroner's Office ("ACCO"). Indictment, ¶ 2. In May 1998, the voters of Allegheny County approved a Home Rule referendum, and effective January 1, 2000, Allegheny County became a Home Rule County. Indictment, ¶ 3. Pursuant to its Home Rule Charter, Allegheny County was organized and governed by the provisions of the Administrative Code that was promulgated pursuant to the Charter, and the Coroner was subject to the Administrative Code. Indictment, ¶ 4.
The Indictment specifically sets forth several state and local laws as the sources of the "Fiduciary and Ethical Duties of the Coroner" of Allegheny County. Indictment, ¶¶ 5-11. From 1996 through 2000, the Second Class County Code required the Coroner to comply with the "Public Official and Employee Ethics Act" of 1998 ("Ethics Act"), Oct. 15, P.L. 729, No. 93, §§1101-1113, effective December 15, 1998, 65 Pa.C.S. §§ 1101.1 - 1113, including its reporting and ethics requirements; additionally, Allegheny County's employment policy as of 2000 required all of its employees to abide by the Ethics Act. Indictment, ¶ 5. Paragraphs 1102 and 1103(a) of the Ethics Act,*fn1 65 Pa.C.S. §§ 1102, 1003(a), prohibit an official of a political subdivision, including the Coroner, from using the authority of his office "for his private pecuniary benefit" and from "accepting any honorarium." Indictment, ¶ 6.
Additionally, the Second Class County Code provided that the Allegheny County Coroner could conduct autopsies and other professional services for other counties, but required all fees collected for such services to be accounted for and paid to the Allegheny County treasurer. Indictment, ¶ 7. The Second Class County Code also required that bodies of unidentified deceased persons be taken to the Allegheny County morgue and, if the Coroner deems it necessary, embalmed and preserved, and, if the Coroner is unable to otherwise determine the cause and manner of death, to perform an autopsy; the Second Class County Code also proscribed the Coroner's removal of unclaimed corpses from the morgue, where they are to remain "except upon the certificate of the Coroner." Indictment, ¶ 10-11.
The Indictment also identifies Allegheny County laws that governed the ethics and accountability of officials from 2000 through 2005, namely, the Administrative Code adopted by Allegheny County under its Home Rule Charter to govern all employees and Independently Elected Officials, including the Coroner. Indictment, ¶ 8. The Administrative Code required the Coroner to devote "a full time effort to the duties" of his office, and prohibited officials, including the Coroner, from using Allegheny County resources for any non-county purpose, and from using the office for private financial gain, and required the Coroner to file annual financial disclosure forms. Indictment, ¶¶ 8-9.
The Indictment recites the following averments about defendant in his capacity as Coroner at paragraphs 12-23: as Coroner of Allegheny County from 1970 through 1980, and again from 1996 through 2005, Dr. Wecht was responsible for managing the operations of the ACCO, was prohibited from using the ACCO resources for private financial gain, and was required to file truthful annual financial disclosure forms, which he failed to do in 2001, 2002, and 2003, but belatedly filed, after news of the federal government's investigation became public in February 2005; Dr. Wecht filed a lawsuit in June 2000, seeking to exempt his office from the ethics and other provisions of the Administrative Code, which lawsuit was resolved against him by the Pennsylvania courts, which ruled that the Coroner of Allegheny County was covered by the accountability, conduct and ethics provisions of its Administrative Code.*fn2 Indictment, ¶¶ 12-16.
The "Defendant's Private Business" is described at paragraphs 17-23 of the Indictment. Dr. Wecht is the sole owner and principal officer of Wecht Pathology and Associates, Inc. ("Wecht Pathology"), a domestic, professional for-profit corporation registered in Pennsylvania. The total and yearly incomes of Wecht Pathology, and Dr. Wecht's personally, for the years 1997 through 2004 are stated. Indictment, ¶ 20-21. The indictment also avers that from 1998 through 2004, Dr. Wecht stated to the IRS that he devoted 100% of his time to the business of Wecht Pathology. Indictment, ¶ 23. That business is described as providing medical-legal forensic pathology opinions, consultations and expert testimony in civil and criminal litigation throughout the United States and in foreign countries, providing medical-legal pathology opinions, consultations and expert testimony for public entities (e.g., public defender and district attorney offices) in civil and criminal litigation, conducting autopsies for other counties in Western Pennsylvania and private clients, speaking at public and private events for honoraria, authoring publications for royalties, and performing in entertainment venues.
B. "Honest Services" mail and wire fraud, also known as "intangible rights" fraud, wherein the victims are Allegheny County and its citizens, pursuant to 18 U.S.C. §§ 1341, 1343, 1346 and 2.
Paragraphs 24 through 35, and Counts 1 through 24, charge defendant with wire fraud - theft of honest public services from 1996 through 2005, wherein Dr. Wecht "devised and intended to devise a scheme to defraud, for obtaining money and property, and for depriving another of the intangible right of honest services, by means of breaching his fiduciary and ethical duties as Coroner of Allegheny County and making false and fraudulent pretenses and representations, well knowing at the time that he was breaching his fiduciary and ethical duties and that the pretenses and representations were false and fraudulent when made." Indictment, ¶ 25.
The purpose of the scheme was allegedly to obtain money, property and other things of value, to violate the fiduciary and ethical duties owed by the Coroner to Allegheny County and its citizens, and to "deprive Allegheny County and its citizens of the intangible right to the honest service of defendant Cyril H. Wecht as Coroner of Allegheny County and other employees of the Allegheny County Coroner's Office." Indictment, ¶ 26.
The mechanics of the scheme is set forth in some detail, including the following: defendant used his position, authority and the resources of the ACCO to assist Wecht Pathology in generating private income; instructed ACCO employees to perform substantial private work for Wecht Pathology while on duty; used secretarial, computer, facsimile, and other general county resources of the ACCO in his private business; personally examined slide tissues and prepared private consulting reports in private "black lung" cases while at ACCO; used Deputy Coroners as couriers and as a private limousine service for him and his family for his own personal financial gain and for personal matters, and used Deputy Coroners and other ACCO employees to do personal and family matters for defendant; faked bills from a dummy limousine business, charged his clients for the services reflected in the fake bills, while actually using county personnel and vehicles and not limousines, and retained the proceeds generated by the phoney limousine bills for his own benefit; faked receipts from a defunct travel agency for inflated travel expenses in private cases, submitted the receipts to his clients for payment of checks made out to him personally, and kept the proceeds as "pocket money" for his personal use; and exchanged Allegheny County cadavers to Carlow College for use by its students, in exchange for the use of a laboratory at Carlow for his private work. Indictment, ¶ 28-29. The Indictment lists numerous ways in which defendant "used the position, authority, and resources of the [ACCO] for the personal and political benefit of himself and his family," including: dog walking, shopping, errands, and driving family members to the airport and other locations and events unrelated to the business of the ACCO; causing ACCO employees to participate while on duty in his unsuccessful campaign for County Executive in 2000, and for his son's efforts to win political office, and expending Allegheny County resources such as secretarial time, paper, computers, etc., on his and his son's campaigns; and using Allegheny County vehicles and gas routinely to perform outside autopsies and consulting work in other counties in Western Pennsylvania, and receiving reimbursement from the other counties for mileage and expenses but retaining said monies for his own benefit without reimbursing the county for use of the vehicles and gas. Indictment, ¶ 30-33.
Paragraph 35 sets forth Counts 1 through 24, alleging instances of wire fraud committed in furtherance of the foregoing scheme, through facsimiles sent from the ACCO to private clients, from February 2002 through February 2005, in violation of 18 U.S.C. §§ 1343, 1346 and 2. The facsimiles were mostly of invoices for private services.
Paragraph 36-40 set forth Counts 25 through 32, alleging instances of mail fraud committed in furtherance of the foregoing scheme, averring that defendant had caused to be mailed packages of "Microscopic Autopsy Tissue Slides" to various private clients, some in "black lung" cases, from January 29, 2003 through June, 2004, in violation of 18 U.S.C. §§ 1341, 1346 and 2.
C. Simple mail and wire fraud, wherein the victims are private clients and various outlying counties which used Dr. Wecht's services, pursuant to 18 U.S.C. §§ 1341, 1343 and 2.
Counts 33 through 42 allege a narrower scheme to defraud private clients, from February 2002 through March 2005, by using fake limousine receipts and reimbursements for expenses he did not actually incur because he used ACCO Deputy Coroners to provide transportation, at no cost to him, and for travel expenses based on fake travel agency bills, in violation of 18 U.S.C. §§ 1343 and 2. Indictment, ¶¶ 41-51. These clients were asked to make checks payable to defendant personally, and he retained the reimbursements for his own use, not as income to Wecht Pathology, and he testified falsely about his expenses under oath at depositions to conceal his fraud. Indictment, ¶¶ 50-51.
Counts 43 through 79 charge defendant with specific instances of mail fraud from January 2001 through June 2005, in violation of 18 U.S.C. §§ 1341 and 2, in furtherance of a scheme to obtain money by false pretenses, by preparing and having submitted fake and fraudulent mileage reimbursement invoices to the counties in Western Pennsylvania in connection with his private autopsy and consulting services.
D. Theft concerning a public entity receiving federal funds, pursuant to 18 U.S.C. § 666(a)(1)(A) and 2.
Counts 80 through 84 of the Indictment allege that during the calendar years of 2002, 2003, 2004 and 2005, defendant, being an agent of Allegheny County, a local government organization that received benefits in excess of $10,000 during each of those calendar years, embezzled, stole, obtained by fraud and otherwise converted to his own use "property" valued at $5,000 or more, of Allegheny County; specifically, defendant used the personnel, vehicles, facilities, resources, ...