The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM OPINION AND ORDER OF COURT DENYING SUPPLEMENTAL MOTION TO DISMISS (DOC. NO. 540) HONEST SERVICES FRAUD COUNTS 1 THROUGH 32 FOR FAILURE TO ALLEGE MATERIALITY
Defendant has filed a Supplemental Motion to Dismiss Honest Services Fraud Counts 1 Through 32 for Failure to Allege Materiality (doc. no. 540) on the grounds that the Indictment fails to allege any facts in support of a necessary element of the offenses of "honest services" mail and wire fraud, 18 U.S.C. §§ 1341, 1343 and 1346, namely, concealment or misrepresentation of a material fact. Defendant's supplemental motion to dismiss the Indictment relies on Neder v. United States, 527 U.S. 1 (1999) (holding that materiality is an element of a "scheme or artifice to defraud" under the federal mail fraud, wire fraud, and bank fraud statutes which must be included in the trial court's jury instructions, although any error in omitting such instruction is subject to harmless error analysis), and this Court's ruling on September 12, 2006, advising the parties that "materiality, as defined by Neder . . . is an element of honest services fraud under 18 U.S.C. §§ 1341, 1343 and 1346 [and that the] . . . Court's specific instructions on this element of honest services fraud will be set forth in its Final Jury Instructions." September 12, 2006 "Order of Court Granting Defendant's Motion for Reconsideration of the Order of Court at Doc. No. 374." (doc. no. 430).
After careful consideration of defendant's motion and brief in support, the government's response thereto, defendant's reply brief, and this Court's June 29, 2006 Memorandum Opinion and Order of Court Denying Motion to Dismiss (Doc. No. 180), (doc. no. 264), the Court will deny defendant's supplemental motion to dismiss.
On September 13, 2007, this Court held that the law of the case doctrine limited the scope of the hearing on defendant's supplemental suppression motion, explaining as follows:
The law of the case doctrine applies in the context of pretrial rulings of the same or different judges of coordinate jurisdiction in criminal matters. See generally United States v. O'Keefe, 128 F.3d 885 (5th Cir. 1997) (Under law of the case doctrine and general principles of comity, successor judge in criminal proceeding has same discretion to reconsider order as would first judge, but should not overrule earlier judge's order or judgment merely because later judge might have decided matters differently); United States v. Wheeler, 256 F.2d 745 (3d Cir. 1958) (rulings of previous judge of same court on the defendants' motions to dismiss the indictment, which were identically based, are the "law of the case" and cannot be disturbed); United States v. Baynes, 400 F.Supp. 285, 310 n.3 (E.D.Pa.), aff'd 517 F.2d 1399 (3d Cir. 1975) (Becker, J., holding in criminal proceeding that "the 'law of the case' principle . . . is the law in this circuit. . . . Under this principle, judges of coordinate jurisdiction sitting in the same court and in the same case may not ordinarily overrule the decisions of each other. The most oft advanced rationale of the 'law of the case' principle is one of judicial comity to preserve the orderly functioning of the judicial process.").
As in the civil context, however, this doctrine is discretionary and flexible. Compare United States v. Alexander, 106 F.3d 874 (9th Cir. 1997) (error for district court to reconsider ruling on suppression motion following declaration of mistrial by reason of hung jury where suppression ruling constituted law of the case and no extraordinary circumstances existed to warrant disregard of previous ruling), with United States v. Todd, 920 F.2d 399 (6th Cir. 1990) (not error for court to reconsider suppression rulings made by court of coordinate jurisdiction following mistrial, and to admit evidence previously excluded; "A court may recognize and enforce prior rulings based on this doctrine, but also retains the power to reconsider previously decided issues as they arise in the context of a new trial.").
B. Application of Law of the Case Doctrine
Defendant proffers no new evidence, new law or other extraordinary reasons why this Court should not follow the law of the case, except with regard to those matters that have been "reopened" by the decision of the Court of Appeals and this Court's sua sponte scheduling order. Therefore, the scope of the supplemental suppression hearing is narrow: it is limited to matters involving Orsini's credibility viz a viz defendant's "repeated assertions that Agent Orsini lacks veracity and that his affidavits in support of the search warrants were 'infected with his deliberate and reckless falsehoods . . .'", Wecht, 484 F.3d at 210, and with regard to the execution of the search warrants at Wecht Pathology and Box 20. . . .
September 13, 2007 Memorandum and Order of Court Regarding Pending Motions (Docs. No. 524, 527, 535) Relating to Supplemental Suppression Hearing, at 17-21. (doc. no. 537).
Defendant raised the issue of defective indictment for failure to allege the necessary elements of the "honest services branch" of the mail and wire fraud statutes, or sufficient facts in support of those necessary elements, at great length and from many different angles, in his brief in support of his initial motion to dismiss Indictment (doc. no. 207) at 9-33, including as to the element of materiality,*fn1 and in his reply brief, wherein he specifically raised the issue of Neder materiality. Defendant's Reply Brief to Government's Brief in Opposition to Defendant's Motion to Dismiss at Docket No. 180 (doc. no. 252), at 6, n.7 ("Furthermore, the Third Circuit requires a material violation to sustain a claim for honest services fraud, [United States v. Panarella, 277 F.3d 678, 696 (3d Cir. 2002)], comporting with the Supreme Court's requirement that materiality is an element of mail and wire fraud.").
This Court's June 29, 2006 Memorandum Opinion and Order of Court (doc. no. 264) denied defendant's initial motion to dismiss on his "materiality" challenge and all of the ...