United States v. Gilmore

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UNITED STATES OF AMERICA v. COREY GILMORE, Defendant.

No. 24-cr-127 (LJL)

United States District Court, S.D. New York

August 29, 2024

OPINION AND ORDER

LEWIS J. LIMAN UNITED STATES DISTRICT JUDGE

Defendant Corey Gilmore moves to dismiss the Indictment against him on the grounds that it is duplicitous. Dkt. No. 22. Defendant also argues that portions of each of the two counts against him are barred by the statute of limitations. Id.

For the following reasons, the motion to dismiss is denied.

BACKGROUND

On March 5, 2024, a grand jury sitting in this District returned an Indictment against Defendant on two counts. Dkt. No. 8. Count One charges Defendant with violating 18 U.S.C. § 666(a)(1)(B) by soliciting and accepting approximately $27,000 in bribes from “at least in or about 2016 through at least in or about 2022,” while an agent of the New York City Housing Authority (“NYCHA”) “in exchange for arranging for certain contractors to receive no-bid contracts from NYCHA.” Id. Count Two charges Defendant with committing extortion under the Hobbs Act, 18 U.S.C. § 1951(b)(2), during the same time period and in connection with the same activity. Id.

The complaint supporting Defendant's arrest specifies that Defendant was a superintendent at various properties operated by NYCHA. Dkt. No. 1 ¶ 7. The charges stem from his solicitation of approximately 27 bribes of approximately $1,000 each, paid by at least two separate contractors to obtain a series of no-bid purchase orders for work at the properties Defendant superintended. Id. ¶ 8.

DISCUSSION

Defendant argues that the Indictment should be dismissed because the charges in it are duplicitous and because certain of the conduct is time-barred. Dkt. No. 22. The Government opposes the motion. Dkt. No. 25.

I. The Indictment is Not Impermissibly Duplicitous

“An indictment is duplicitous if it joins two or more distinct crimes in a single count.” United States v Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992). “Duplicitous pleading, however, is not presumptively invalid.” United States v. Olmeda, 461 F.3d 271, 281 (2d Cir. 2006); see United States v. Sturdivant, 244 F.3d 71, 75 n.3 (2d Cir. 2001). “A single count of an indictment should not be found impermissibly duplicitous whenever it contains several allegations that could have been stated as separate offenses, but only when the failure to do so risks unfairness to the defendant.” United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981) (internal citations omitted). The determination of whether a defendant is prejudiced by a duplicitous indictment is guided by “the policy considerations that underlie the doctrine,” including “avoiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another, avoiding the risk that the jurors may not have been unanimous as to any one of the crimes charged, assuring the defendant adequate notice, providing the basis for appropriate sentencing, and protecting against double jeopardy in a subsequent prosecution.” Id. (internal citations and quotations omitted). Even when an indictment combines two separate crimes in a single count, prejudice to the defendant can be avoided by requiring the Government to proceed on only one theory of liability at trial or “through jury instructions and the verdict form.” United States v. Arguedas, 2021 WL 5567749, at *1 (S.D.N.Y. Nov. 29, 2021) (citing Sturdivant, 244 F.3d at 79).

Defendant argues that “courts have held that the rule against duplicity is violated where a single count alleges multiple acts of bribery in violation of 18 U.S.C. § 666.” Dkt. No. 22 at 3. Defendant asserts that Count One is duplicitous because it accuses him “of accepting multiple (but unspecified number of) bribes, from multiple (but unspecified number of) contractors, in exchange for helping them receive multiple (but unspecified number of) no-bid contracts,” id. at 3-4, and that Count Two is duplicitous because it accused Defendant of “extorting an unspecified number of contractors on an unspecified number of occasions,” id. at 4.

The Indictment is not impermissibly duplicitous under the law in the Second Circuit. Defendant cites the Fifth Circuit decision in Bins v. United States, 331 F.2d 390, 393 (5th Cir. 1964), cert. denied, 379 U.S. 880 (1964). See Dkt. No. 22 at 2 (citing United States v. Kearney, 444 F.Supp. 1290, 1295 (S.D.N.Y. 1978) (quoting Bins, 331 F.2d at 393)). The Second Circuit, however, has explicitly rejected “the law of the Fifth Circuit ‘that any acts capable of being charged as separate offenses must be alleged in separate counts.'” Aracri, 968 F.2d at 1518 (quoting Margiotta, 646 F.2d at 733 (citing Bins, 331 F.2d at 393)). Instead, “under the law of this Circuit, ‘acts that could be charged as separate counts of an indictment may instead be charged in a single count if those acts could be characterized as part of a single continuing scheme.'” Id. (quoting United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989) (citation omitted), cert. denied, 493 U.S. 1081 (1990)). The only Second Circuit case cited by Defendant to support the notion that separate bribes and separate acts of extortion each must be charged in separate counts is the 1967 decision in United States v. Cohen, 384 F.2d 699 (2d Cir. 1967). But Cohen stands for the proposition that multiple payments made pursuant to a single bribery agreement need not be charged in a single count. See id. at 700. “Nothing in Cohen dictates that a defendant must be charged with a separate offense for each particular alleged payment simply because he may be so charged.” United States v. McGuinness, 764 F.Supp. 888, 892 (S.D.N.Y. 1991).^[1]

As reflected in the complaint supporting Defendant's arrest, the charges in the Indictment relate to a continuing scheme to extract bribes from contractors seeking NYCHA business. Dkt. No. 1; see United States v. Robinson, 294 Fed.Appx. 630, 632 (2d Cir. 2008). That same complaint gives notice to Defendant of the number of bribes, the number of contractors, and the number of no-bid contracts, as well as the locations of the contracts and details regarding how Defendant purportedly solicited the payments. Dkt. No. 1 ¶ 8. That level of detail protects Defendant against the theoretical risk that he would not be able to protect himself against double jeopardy in a subsequent prosecution. See Margiotta, 646 F.2d at 733. “[D]uplicity may actually inure to [the] defendant's benefit by ‘limiting the maximum penalties' he might face if he were charged and convicted on separate counts for what amounts to a single scheme.” Olmeda, 461 F.3d at 281 (quoting Margiotta, 646 F.2d at 733). Finally, to the extent that the evidence at trial fails to prove the existence of such a single continuing scheme, any prejudice to Defendant can be cured by jury instructions and an appropriate verdict form with an interrogatory. See United States v. Rumore, 2008 WL 2755827, at *4 (S.D.N.Y. July 14, 2008).^[2]

II. Defendant's Challenge Based on the Statute of Limitations is Premature

The Indictment, which was filed on March 3, 2024, charges Defendant with bribes and extortion from 2016 to 2022. Dkt. No. 8. Defendant argues that because of the five-year statute of limitations applicable to federal crimes, 18 U.S.C. § 3282, he can be charged only for conduct that occurred starting from March 2, 2019. Dkt. No. 22 at 6-10.

Section 3282 of Title 18, which governs the time within which most noncapital federal offenses may be prosecuted, provides that “no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” 18 U.S.C. § 3282(a). “[C]riminal limitations statutes are ‘to be liberally interpreted in favor of repose.'” Toussie v. United States, 397 U.S. 112, 115 (1970) (quoting United States v. Scharton, 285 U.S. 518, 522 (1932)). “'Statutes of limitations normally begin to run when the crime is complete.'” Id. (quoting Pendergast v. United States, 317 U.S. 412, 418 (1943)). “Ordinarily, completion occurs at the moment the defendant's conduct satisfies every element of the offense.” United States v. Green, 897 F.3d 443, 448 (2d Cir. 2018); see United States v. Sampson, 898 F.3d 270, 277 (2d Cir. 2018).

However, “[a] continuing offense presents an exception to the rule.” Green, 897 F.3d at 448. A crime is a continuing offense when “the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” Toussie, 397 U.S. at 115; see United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir. 1995). “A ‘continuing offense' is, in general, one that involves a prolonged course of conduct; its commission is not complete [and the statute of limitations does not begin to run] until the conduct has run its course.” United States v. Eppolito, 543 F.3d 25, 46 (2d Cir. 2008) (quoting Rivera-Ventura, 72 F.3d at 281). “If a defendant raises a statute-of-limitations defense under § 3282(a), the government bears the burden of proving compliance with the statute to a jury beyond a reasonable doubt.” Sampson, 898 F.3d at 276.

The Second Circuit has not decided whether bribery under 18 U.S.C. § 666(a)(1)(B) or Hobbs Act extortion under 18 U.S.C. § 1951(b)(2) are continuing offenses for statute of limitations purposes. The Second Circuit has held that embezzlement in violation of 18 U.S.C. § 641 is not a continuing offense, emphasizing that the inquiry must focus on “the nature of the crime” and congressional intent rather than on the conduct described...