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United States v. Sullivan

United States District Court, Third Circuit

July 1, 2013




Presently before the Court is Defendant, Michael J. Sullivan’s (“Sullivan”) Motion to Dismiss, which has been joined in by several of the Defendants, the Response in Opposition filed by the United States of America (“Government”), the Replies filed thereto, and the oral arguments presented during a hearing conducted on June 24, 2013. For the reasons set forth below, we deny the Motion to Dismiss.


This case involves criminal charges resulting from the federal investigation into an alleged widespread ticket-fixing scheme by nine current or former Philadelphia Traffic Court (“Traffic Court”) judges. See Indictment. According to the Indictment, the Traffic Court was used by the alleged conspirators to give preferential treatment to certain ticketholders, most commonly by “fixing” tickets for those with whom they were politically and socially connected.

Id. ¶ 1. The Indictment charges that Defendants:

achiev[ed] favorable outcomes on traffic citations for politically connected individuals, friends, family members, associates, and others with influential positions. This manipulation, or “ticket-fixing, ” consisted of: (1) dismissing tickets outright; (2) finding the ticketholder not guilty after a ‘show’ hearing; (3) adjudicating the ticket in a manner to reduce fines and avoid the assignment of points to a driver’s record; and (4) obtaining continuances of trial dates to ‘judge-shop, ’ this is to find a Traffic Court judge who would accede to a request for preferential treatment.

Id. ¶ 30. According to the Indictment, “[i]n acceding to requests for ‘consideration, ’ Defendants were depriving the City of Philadelphia and the Commonwealth of Pennsylvania of money which would have been properly due as fines and costs.” Id. ¶ 38.

The Indictment charges each of the defendants with one count of conspiracy to commit wire and mail fraud in violation of 18 U.S.C. § 1349.[1] See id. Additionally, all of the Defendants are charged with multiple counts of wire fraud, in violation of 18 U.S.C. § 1343, [2] and mail fraud in violation of 18 U.S.C. § 1341.[3] In addition, Defendants Michael Lowry (“Lowry”), Robert Mulgrew (“Mulgrew”), and Thomasine Tynes (“Tynes”) have been charged with perjury under 18 U.S.C. § 1623. Id. at p. 67-73. Defendants, Willie Singletary (“Singletary”) and William Hird have also been charged with making a False Statement to the FBI under 18 U.S.C. § 1001. Id. at p. 74-79. Former Traffic Court Judges Fortunato Perri, Sr. (“Perri”), H. Warren Hogeland (“Hogeland”), and Kenneth N. Miller (“Miller”) have pled guilty.


Sullivan’s Motion to Dismiss has been joined in by Defendants Mulgrew, Lowry, Alfano, Moy, Singletary, Bruno, and Hird. (See Doc. Nos. 73, 76, 77, 78, 85, 88, 91.) Defendant Mark A. Bruno (“Bruno”) has filed his own Motion to Dismiss, which includes, in part, the same argument set forth by Sullivan.[4] (See Doc. No. 85.) Tynes has filed a First Motion to Dismiss Counts which is based upon a separate and distinct issue. (See Doc. No. 87.) We will consider other arguments for dismissal at a later time.

As previously stated, the Indictment charges each of the Defendants with conspiracy to commit wire and mail fraud under 18 U.S.C. § 1349, wire fraud under 18 U.S.C. § 1343, and mail fraud under 18 U.S.C. § 1341.[5] Defendants move to dismiss the Indictment based upon the argument that the money the Government alleges was lost in fees and costs is not “a property interest because the conduct charged is too inchoate; until a traffic violator has been adjudicated guilty, no fine or cost can be imposed and neither the City of Philadelphia nor the Commonwealth can claim any legal entitlement to any fines or costs arising from the violations.” (Sullivan’s Mot. to Dismiss at 1-22.) According to Defendant, “[s]imply put, through the Indictment the Government seeks to criminalize alleged violations of state judicial conduct rules; such an improper expansion of federal power should not be allowed.” (Id. at 2.)


“Federal Rule of Criminal Procedure 7(c)(1) requires only that an indictment be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” United States v. Huet, 665 F.3d 588, 594 (3d Cir. 2012). “‘It is well-established that ‘[a]n indictment returned by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for trial of the charge on the merits.’” Id. at 594-95 (quoting United States v. Vitillo, 490 F.3d 314, 320 (3d Cir. 2007)). The Court of Appeals for the Third Circuit (“Third Circuit”) has previously held that “an indictment is facially sufficient if it ‘(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.’” Id. at 595 (quoting Vitillo, 490 F.3d at 321). “‘[N]o greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit a defendant to prepare his defense and invoke double jeopardy.’” Id. (citing United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007)). “In contrast, if an indictment fails to charge an essential element of the crime, it fails to state an offense.” Id. (citing United States v. Wander, 601 F.2d 1251, 1259 (3d Cir. 1979)).

“‘Federal Rule of Criminal Procedure 12(b)(3)(B) allows a district court to review the sufficiency of the government’s pleadings to . . . ensur[e] that legally deficient charges do not go to a jury.’” Id. (quoting United States v. Bergrin, 650 F.3d 257, 268 (3d Cir. 2011)). “[T]he scope of a district court’s review at the Rule 12 stage is limited.” Id. “‘[A] pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government’s evidence.’” Id. (quoting United States v. DeLaurentis, 230 F.3d 659, 660 (3d Cir. 2000)). In evaluating a Rule 12 motion to dismiss, the factual allegations set forth in the indictment must be accepted as true by the district court. Id. (citing United States v. Sampson, 371 U.S. 75, 78–79 (1962); United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990)). “‘Evidentiary questions - such as credibility determinations and the weighing of proof - should not be determined at this stage.’” Id. (quoting Bergrin, 650 F.3d at 265 (internal marks and citation omitted)). “Thus, a district court’s review of the facts set forth in the indictment is limited to determining whether, assuming all of those facts as true, a jury could find that the defendant committed the offense for which he was charged.” Id. at 595-96 (citations omitted).


The mail and wire fraud statutes both require the existence of a “scheme or artifice to defraud, or for obtaining money or a property by means of false or fraudulent pretenses.” See 18 U.S.C. §§ 1341, 1343. In this case, the question presented is whether the Indictment adequately alleges that Defendants engaged in a scheme to defraud the Commonwealth and the City of money in costs and fees.[6] Upon consideration of all of the arguments, and the extensive caselaw concerning this issue, we conclude that it does.

A. Supreme Court Cases

In order to come to this conclusion, a summary of the following four main Supreme Court cases interpreting the phrase “money or property interest” in the mail and wire fraud statutes is instructive: McNally v. United States, 483 U.S. 350 (1987), superseded by statute, 18 U.S.C. § 1346; Carpenter v. United States, 484 U.S. 19 (1987); Cleveland v. United States, 531 U.S. 12 (2000); and Pasquantino v. United States, 544 U.S. 349 (2005).

1. McNally v. United States

McNally involved a former public official of the Commonwealth of Kentucky, and a private individual, who were involved in a self-dealing patronage scheme involving commissions and premiums paid on awarding insurance coverage for the State. 483 U.S. at 353-355. The defendants were charged with, and convicted of, violating Section 1341 by devising a scheme to defraud the citizens and government of Kentucky of their ...

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