United States v. Baroni

UNITED STATES OF AMERICA, v. WILLIAM E. BARONI, JR. and BRIDGET ANNE KELLY, Defendants.

Case: 2:15-cr-00193-SDW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

June 13, 2016

NOT FOR PUBLICATION

OPINION

WIGENTON, District Judge.

Before this Court are Defendants William E. Baroni Jr. ("Baroni") and Bridget Anne Kelly's ("Kelly") (collectively, "Defendants") Motions to Dismiss the Indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B).¹

For the reasons stated below, the Motions to Dismiss are DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY

This Court assumes familiarity with the allegations and procedural history of this case and reviews only the facts relevant to the present motion. On April 23, 2015, Baroni, former Deputy Executive Director of the Port Authority of New York and New Jersey ("Port Authority"), andKelly, former Deputy Chief of Staff for Legislative and Intergovernmental Affairs for the Office of the Governor of New Jersey ("OGNJ") were indicted by the United States Attorney's Office for the District of New Jersey ("USAO") on charges of conspiracy, fraud, and civil rights violations for their alleged roles in causing lane closures on the George Washington Bridge ("GWB") in September 2013. (Dkt. No. 1, Indictment.) The Indictment alleges that Defendants, along with David Wildstein ("Wildstein"), conspired to improperly close Local Access Lanes on the GWB to create traffic problems in order to punish the Mayor of Fort Lee, New Jersey, Mark Sokolich, for refusing to endorse Governor Chris Christie's re-election campaign. (Id. at 4-5.) To do so, the Indictment alleges that Defendants falsely claimed the reductions were part of a traffic study to justify using Port Authority personnel "to implement the changes to the Local Access Lanes" to hide "the true punitive purpose of the plan." (Id. at 5-8.) Personnel used included a manager who was tasked with implementing the lane changes, maintenance staff who altered signage for the changes, a traffic engineer, toll booth operators, the Port Authority Police Department, and employees of the Port Authority engineering department who collected and reviewed traffic data for the phony study. (Id. at 9-11.) Defendants communicated, in part, via email and text as they planned and implemented their scheme. (See, e.g., id. at 8, 11, 12, 13, 15.)

The nine-count Indictment specifically charges Defendants as follows:

Count 1: Conspiracy to Obtain by Fraud, Knowingly Convert, and Intentionally Misapply Property of an Organization Receiving Federal Benefits in violation of 18 U.S.C. § 666(a)(1)(A) and 18 U.S.C. § 371.

Count 2: Obtaining by Fraud, Knowingly Converting, and Intentionally Misapplying Property of an Organization Receiving Federal Benefits in violation of 18 U.S.C. § 666(a)(1)(A) and § 2.

Count 3: Conspiracy to Commit Wire Fraud in violation of 18 U.S.C. § 1349.

Counts 4-7: Wire Fraud in violation of 18 U.S.C. § 1343 and § 2.²

Count 8: Conspiracy Against Civil Rights in violation of 18 U.S.C. § 241.

Count 9: Deprivation of Civil Rights in violation of 18 U.S.C. § 242 and § 2.

On February 1, 2016, Defendants moved to dismiss the Indictment. (Dkt. Nos. 71, 72.) The Government timely filed its opposition on March 11, 2016. (Dkt. No. 91.) Defendants filed their replies on April 13, 2016. (Dkt. Nos. 102, 103.) The Government requested and was granted permission to file a sur-reply. (Dkt. Nos. 105, 106, 107.) This Court held oral argument on the motions on April 28, 2016. (Dkt. No. 109.)

II. LEGAL STANDARD

Federal Rule of Criminal Procedure 12(b)(3)(B) permits a defendant to move to dismiss for "a defect in the indictment" including a "lack of specificity" or "failure to state an offense." FED. R. CRIM. P. 12(b)(3)(B); see also United States v. Delle Donna, 552 F. Supp. 2d 475, 482 (D.N.J. 2008) (noting that a defendant may "move to dismiss an indictment at any time for failure to state an offense"). An indictment must contain a "'plain, concise, and written statement of the essential facts constituting the offense charged' and include the statute(s) that the defendant(s) are alleged to have violated." Della Donna, 552 F. Supp. at 482 (quoting FED. R. CRIM. P. 7(c)(1)). "[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or a conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974); see also United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007). "[N]o greater specificity than the statutory language is required so long as there is sufficient factualorientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution." United States v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989).

When reviewing a motion to dismiss pursuant to Rule 12(b)(3)(B), a trial court may only consider the allegations contained in the charging document, because "the indictment must be tested by its sufficiency to charge an offense" not by whether the "charges have been established by the evidence." United States v. Sampson, 371 U.S. 75, 78-79 (1962). An indictment "fails to state an offense if the specific facts alleged in the charging document fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation." United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002), abrogated on other grounds by Skilling v. United States, 561 U.S. 358 (2010). "In evaluating a Rule 12 motion to dismiss, a district court must accept as true the factual allegations set forth in the indictment." United States v. Huet, 665 F.3d 588, 595 (3d Cir. 2012); United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990).

III. DISCUSSION

Before turning to Defendants' count-specific arguments, this Court must first address their contention that their Due Process rights have been violated because 1) they did not have fair notice that their conduct violated federal criminal law, and 2) the Government has not dealt with them in a "fundamentally fair manner." (Baroni Mot. at 1, 11-26; Kelly Mot. at 6-9.)

First, Defendants take the position that the laws under which they are charged are "impermissibly vague" pursuant to the "void-for-vagueness doctrine on an as-applied basis." (Kelly Mot. at 6.) A criminal statute is void for vagueness if it "'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,' or is so indefinite that 'it encourages arbitrary and erratic arrests and convictions.'" Colautti v. Franklin, 439 U.S. 379, 390 (1979) (internal citations omitted); United States v. Stevens, 533 F.3d 218, 249 (3d Cir.2008). This doctrine "does not mean that [a] statute must define every factual situation that may arise." United States v. Nelson, 712 F.3d 498, 508 (11th Cir. 2013). Because this is an "as applied" challenge, it must be reviewed in light of Defendants' specific conduct and the underlying facts at hand. Such an analysis is inappropriate for a pretrial motion to dismiss. See, e.g., United States v. Mazurie, 419 U.S. 544, 550 (1975) (holding it "well established that vagueness challenges to statutes which do not involve First Amendment freedoms" require review of the factual record); Huet, 665 F.3d at 595 (stating that "[a] pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government's evidence"); see also United States v. Caputo, 288 F. Supp. 2d 912, 917 (N.D. Ill. 2003) (stating that an "as applied" review requires analysis of the specific facts of a case and noting that those "types of factual determinations are not appropriately determined by a court in a pre-trial motion"); United States v. O'Brien, 994 F. Supp. 2d 167, 191 (D. Mass. 2014) (denying defendants' motion to dismiss the indictment in part for statutory vagueness and the rule of lenity, stating that "[t]o the extent that defendants raise issues that turn, even in part, on the evidence, those issues cannot properly be resolved on a motion to dismiss").³ Therefore, Defendants' motion for dismissal of any of the counts of the Indictment under the void-for-vagueness as-applied doctrine is denied.

Defendants next claim that they have been denied Due Process because the Government "mishandle[ed]" Brady material and failed to demand complete document productions from the law firm of Gibson Dunn. (Baroni Mot. at 1-2, 11-26.) Defendants previously raised these arguments in Omnibus Discovery Motions filed in November 2015 and during oral argument before this Court on February 5, 2016. (Dkt. Nos. 42, 43, 77.) This Court addressed their concerns in its ruling from the bench and granted Defendants permission to issue a Rule 17(c) subpoena to Gibson Dunn for documents to which they believed they were entitled. Aside from the Government's delay in turning over one set of materials, which the Defendants concede they have had in hand since January 11, 2016, (Baroni Mot. at 21-22, 21 n.8), Defendants point to no specific exculpatory documents that the Government has withheld. This Court finds nothing unfair in the Government's dealings with Defendants as to document discovery or any other facet of this matter. Defendants make much of the fact that they are private individuals involved in a case against the United States Government and adverse non-parties with significant resources, (Baroni Mot. at 13, 24), but this is not an uncommon state of affairs. While rhetorically satisfying, labeling oneself a "David" to the Government's "Goliath" is insufficient to create a violation of Due Process. Defendants' motion for dismissal of any of the counts of the Indictment on Due Process grounds is denied.

A. Counts One & Two

Counts One and Two charge conspiracy to violate and substantive violations of 18 U.S.C. § 666(a)(1)(A). Section 666...