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United States v. Nestor

August 11, 2010

UNITED STATES OF AMERICA,
v.
MATTHEW NESTOR, AND JAMIE GENNARINI. DEFENDANTS.



The opinion of the court was delivered by: A. Richard Caputo United States District Judge

(JUDGE CAPUTO)

MEMORANDUM

Presently before the Court are various motions by Defendant Matthew Nestor and the Government. Defendant Nestor's motions include a motion to dismiss (Doc. 51), a motion for bill of particulars (Doc. 52), a motion to produce Grand Jury minutes (Doc. 55), and a motion for release of Brady materials (Doc. 57.) The Government has made a motion to preclude the use of a claim of right defense by Matthew Nestor and co-defendant Jamie Gennarini (Doc. 63.)*fn1 For the reasons discussed in this opinion, Defendant's motions will be granted in part and denied in part, and the Government's motion will be granted in part and denied in part.

BACKGROUND

On December 10, 2009, the Grand Jury indicted Defendant Nestor on two counts of conspiracy under 18 U.S.C. §1951, five counts of extortion under 18 U.S.C. §1951, one count of corrupt persuasion under 18 U.S.C. §1512(b)(3), one count of conspiracy under 18 U.S.C. §241, and one count of deprivation of Constitutional rights under 18 U.S.C. §242. The Grand Jury also indicted Defendant Gennarini on one count of conspiracy under 18 U.S.C. §1951, two counts of extortion under 18 U.S.C. §1951, one count of conspiracy under 18 U.S.C. §241, and one count of deprivation of Constitutional rights under 18 U.S.C. §242. The indictment ("Indict.") alleges the following:

The Shenandoah Police Department is a law enforcement agency tasked with investigating crimes committed in Shenandoah, a town in Schuylkill County, Pennsylvania. Employees of this department are responsible for conducting themselves in compliance with federal, state, and local laws. Defendant Nestor was, at times relevant to his indictment, this department's Chief of Police. Defendant Jamie Gennarini was, at such relevant times, a captain in the department. (Indict. at 1, Doc. 1.)

From 2004 until about September 17, 2007, in Shenandoah, Pennsylvania and the Middle District of Pennsylvania, Defendant Nestor conspired to people known to the grand jury to knowingly obstruct, delay, and affect commerce and the movement of articles in commerce by extortion. Defendant Nestor conspired to obtain property not due to him with the consent of Person # 1, Person # 2, Person # 3, and others, under color of official right. (Indict. at 2.)

As part of the manner, means, and object of the conspiracy, Defendant Nestor and others entered into a scheme to extort cash payments for profit from bookmakers in Shenandoah who were engaged in illegal gambling. Defendant Nestor and others would use Nestor's status as Chief of Police to carry out the extortion scheme. In 2004, Participant # 1, a bagman for Defendant Nestor, approached bookmakers at establishments in Shenandoah and threatened them into making cash payments to Defendant Nestor, or else Defendant Nestor would use his authority to arrest the bookmakers. Beginning in 2004 and continuing through 2007, Participant # 1 collected these weekly cash payments and Defendant Nestor arranged with his co-conspirators for Participant # 1 to deliver the payments to Participant # 2, a middleman in the scheme. Participant # 1 and Participant # 2 would retain small chunks of cash for themselves before paying Defendant Nestor. During the scheme, the Shenandoah Police Department took no enforcement action against the local bookmakers. (Indict. at 2-3.)

In furtherance of the conspiracy, in 2004, Defendant Nestor met with Participant # 1 and Participant # 2 at the garage belonging to Participant # 2 in Schuylkill County to discuss the scheme. (Indict. at 3-4.) At Defendant Nestor's direction, Participant # 1 met with Person # 1 and threatened his illegal gambling establishment into making payments to Defendant Nestor or suffer the exercise of Defendant Nestor's authority as Chief of Police. Participant # 1 also perpetrated this behavior against Person # 2 and Person # 3. On July 28, October 30, and November 3 of 2006, and January 11, 18, and 25 of 2007, Participant # 1, on behalf of Defendant Nestor, went to the establishment of Person # 1 and collected cash from three illegal gambling operations. (Indict. at 4-5.)

On May 17, 2007, in Shenandoah, Pennsylvania and the Middle District of Pennsylvania, Defendants Nestor and Gennarini conspired to knowingly obstruct, delay, and affect commerce and the movement of articles in commerce by extortion. Defendants conspired to obtain property not due to Defendants from Person # 4, Person # 5, and others, under color of official right. (Indict. at 8.) As part of the manner, means, and object of the conspiracy, Defendants Nestor and Gennarini entered into a scheme to extort cash payments from Person # 4, a businessman, and his family. Defendants used their status as police officers to carry out the scheme. (Indict. at 9.)

In furtherance of the conspiracy, on May 17, 2007, Defendants went in full uniform to the business of Person # 4. Defendants entered the business, and Defendant Gennarini stated, "This is the way we are going to do business in Shenandoah!" Defendants took Person # 4 into custody and demanded money from him. (Indict. at 9.) Defendants placed Person # 4 in a holding cell and threatened formal arrest unless Person # 5 produced $2,000 in cash to Defendants. Defendant Nestor took the cash from Person # 5 after Person # 5 took the money from his savings account. Defendants wrote vague and misleading entries into the police department logbook regarding the arrest and detention of Person # 4. (Indict. at 10.)

On May 17, 2007, Defendants Nestor and Gennarini, while acting under color of the laws of Pennsylvania, conspired to wrongfully seize the property of Person # 5, depriving her of rights and privileges under the Constitution, specifically the right to be free from an unreasonable seizure. It was part of the manner, means, and object of the conspiracy that Defendants Nestor and Gennarini entered into a scheme to unlawfully seize $2,000 in cash from Person # 5. Defendants used their status as law enforcement officers to obtain this property. (Indict. at 12.) In furtherance of the conspiracy, after placing Person # 4 in a holding cell, Defendant Nestor directed Person # 5 to go to the bank to obtain $2,000 cash to free Person # 4 from unlawful detention, and told him that he would be completing the arrest paperwork while he was absent. Defendant Nestor called Person # 5 during this time to find out what as taking so long. Defendants took $2,000 from Person # 5 when he returned to the police station. (Indict. at 13.)

DISCUSSION

I. MOTION TO DISMISS

Defendant is charged with five substantive counts of extortion under the Hobbs Act, 18 U.S.C. §1951, and two counts of conspiracy under this act. Defendant moves to dismiss all Hobbs Act charges because the indictment fails to allege that Defendant interfered with interstate commerce.Under the Hobbs Act, there is criminal liable for:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section. . . .

18 U.S.C. §1951(a). The element "affects commerce or the movement of any article or commodity in commerce" provides federal jurisdiction over crimes proscribed by this statute. Defendant claims that the indictment fails to allege this crucial element and therefore, all counts relating to the Hobbs Act must be dismissed.

Rule 7(c)(1) requires an indictment to contain "a plain, concise, and written statement of the essential facts constituting the offense charged" and a statement of which statutes the defendant is alleged to have violated. Fed. R. Crim. P. 7(c)(1). Under Federal Rule of Criminal Procedure 12(b)(3)(B), motions claiming a defect in the indictment must be raised prior to trial. In ruling on a Rule 12(b)(3)(B) motion to dismiss, the court's role is not to determine the sufficiency of the evidence, but to determine whether the allegations in the indictment are sufficient to charge the named offense. See United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir. 2000) (citing United States v. Sampson, 371 U.S. 75, 78-79 (1962)). The trial court should consider only those objections "that are capable of determination without the trial of the general issue." United States v. Carlos Alberto Diaz- Gomez, No. CRIM. 88-484-1, 2000 WL 1868394, at *3 (E.D. Pa. 2000) (quoting ...


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