The opinion of the court was delivered by: GEORGE LINDBERG, Senior District Judge
On August 14, 2003, a three-count indictment was filed against Ronald
J. Presbitero ("Presbitero") and Joe J. Velasquez, a/k/a Pepe Velasquez
("Velasquez") (collectively, "Defendants"). Count I charges Defendants
with conspiracy to defraud the United States in violation of
18 U.S.C. § 371 by impeding, impairing, obstructing, and defeating the lawful
functions of the Internal Revenue Service in the correct determination
and collection of revenue and income taxes. Counts II and III charge
Presbitero with filing and causing the filing of false federal corporate
income tax returns for the fiscal years ending April 30, 1997 and April
30, 1998, respectively, in violation of 26 U.S.C. § 7206(1).
Defendants have filed a motion to dismiss the indictment pursuant to
Fed.R.Crim.P. 12(b) and the Due Process Clause of the Fifth Amendment.
Defendants' motion is hereby denied.
Federal Rule of Criminal Procedure 12(b) provides, in relevant part,
that "[a] party may raise by pretrial motion any defense, objection, or
request that the court can determine without a trial of the general
issue." Fed.R.Crim.P. 12(b). "A motion to dismiss an indictment is
. . . similar to a civil Rule 12(b)(6) motion. . . ." United States
v. Pitt-Des Moines, Inc., 970 F. Supp. 1346, 1349 (N.D. III. 1997)
(citation omitted). As such, an "indictment, or a portion thereof, may be
if it is otherwise defective or subject to a defense that may be
decided solely on issues of law." United States v. Labs of Va.,
Inc., 272 F. Supp.2d 764, 768 (N.D. Ill. 2003) (citation omitted);
but see United States v. Kingston, 971 F.2d 481, 491 (10th Cir.
1992) ("Because it is a drastic step, dismissal of an indictment is a
disfavored remedy.") (citation omitted).
After careful review, the Court concludes that dismissal is not
appropriate because the factual bases for Defendants' motion have not
been established. Moreover, the legal authority cited to support
Defendants' arguments is inapposite. Accordingly, it is not necessary to
subject the instant indictment to any further due process analysis.
I. The Indictment Does Not Amount to Harassment.
Defendants assert that "the government offends Due Process where it
harasses an individual by successive grand jury inquiries and successive
indictments for offenses arising out of the same transactions and course
of conduct." Based on that assertion, Defendants argue that the instant
indictment constitutes harassment because it involves allegations and
evidence similar to the allegations and evidence presented in United
States v. Presbitero & Presbitero Drywall Co., Case No. 02 CR
165 (N.D. Ill.). Defendants' position is not well-taken.
Defendants state that the instant indictment concerns, inter
alia, Defendants' alleged conspiracy to defraud the United States by
"issu[ing] checks to . . . six corporations . . . [and] claim[ing] these
payments, totaling approximately $5.9 million, as cost of goods sold
deductions on [Presbitero Drywall's] federal income tax
returns . . . [even though] the six corporations were `fictitious,' the
invoices for work performed were `false,' and the `claimed payments had
not been made.'" However, Defendants also acknowledge that the indictment
in Case No. 02 CR 165 alleged that Defendants "made false statements
and/or omissions in ERISA required documents, in violation of
18 U.S.C. § 1027, and . . . devised a scheme to defraud the
Chicago District Counsel of Carpenters Pension, Welfare, and Apprentice
Trust Funds . . ., in violation of 18 U.S.C. § 1341." Standing alone,
these two admissions are sufficient to defeat Defendants' argument.*fn1
Quite clearly, the indictments are directed to completely different acts
and offenses.*fn2 This distinction is crucial in light of the cases
cited by Defendants in support of their motion.*fn3 See Abbate v.
United States, 359 U.S. 187, 196-201 (1959) (Brennan, J., comment)
(addressing possibility of one defendant being tried repeatedly under
separate federal statutes for the same underlying criminal acts/conduct);
CA 79-2617 Cont'l Can
Co., U.S.A. v. Marshall, 603 F.2d 590, 591-93, 597 (7th
Cir. 1979) (defendant cited repeatedly for same offense suffered
harassment); United States v. Am. Honda Motor Co., 273 F. Supp. 810,
812, 819-20 (N.D. Ill. 1967) (defendant indicted repeatedly for
the same offense in different federal districts> suffered
harassment); United States v. Am. Honda Motor Co., 271 F. Supp. 979,
980-81, 987-88 (N.D. Cal. 1967) (same). In fact, one of the cases
cited by Defendants held that a defendant subjected to prosecution for
two separate offenses possession of a firearm by a felon and
attempted murder arising out of a single act/event had not
been deprived due process. See United States v. Jordan,
870 F.2d 1310, 1311-12, 1313-14 (7th Cir. 1989).
II. The Indictments Do Not Present Diametrically Opposed
Defendants also argue that the allegations of the instant indictment
"are facially inconsistent to the government's first trial theory despite
the fact that no new evidence has come to light." In support, Defendants'
In the 2002 case, the government theorized that
Presbitero Drywall and Ronald Presbitero issued
payments to the subcontractors for drywall
installation labor, but did not report all of the
worker hours on the monthly Fringe Benefit Funds
Reports. Significantly, the government steadfastly
argued that the corporation paid a substantial
amount of money over time for extensive hours of
actual labor. . . . Under the new charges, however,
the government theorizes that Presbitero Drywall's
cost of goods sold deductions for payments to the
subcontractors were inflated. In other words, the
government now theorizes that all or some of the
extensive hours of work performed (as was argued in
the first trial) was not in fact performed.
On the basis of this purported inconsistency, Defendants request that
the instant indictment be dismissed.
The indictments do not contain facially inconsistent allegations or
diametrically opposed theories of prosecution.*fn4 Furthermore,
Defendants' briefs do not explain why a party could not simply under
report labor hours on ERISA-required documents and exaggerate
its cost of goods sold deductions on its tax returns. The two filings are
wholly unrelated and ultimately submitted to different federal agencies.
Although both acts may constitute criminal behavior, they are independent
from one another (and require the government to establish different
criminal elements using evidence specific to each allegation). Therefore,
it is possible to commit both criminal acts simultaneously in order to
derive illegal benefits from each act. in such cases, the government
should not have to choose which case to prosecute.
The cases cited by Defendants do not mandate a different conclusion. As
with Defendants' harassment argument, each case may be distinguished.
Three of Defendants' cases concern a defendant or defendants subjected to
multiple indictments for the same act/conduct or offense. See Smith
v. Groose, 205 F.3d 1045, 1049, 1052 (8th Cir. 2000) ("The question
before us is whether the Due Process Clause forbids a state from using
inconsistent, irreconcilable theories to secure convictions against two
or more defendants in prosecutions for the same offenses arising out
of the same event. . . . To violate due process, an inconsistency
must exist at the core of the prosecutor's cases against defendants for
the same crime.) (emphasis added); Thompson v.
Calderon, 120 F.3d 1045, 1058 (9th Cir. 1997) ("From these bedrock
principles, it is well established that when no new significant evidence
comes to light a prosecutor cannot, in order to convict two defendants at
separate trials, offer inconsistent theories and facts
regarding the same crime.") (emphasis added); United States v.
Ashland-Warren, Inc., 537 F. Supp. 433, 434, 449-50 (M.D. Term.
1982) (government may be precluded from altering its position concerning
substantive law in an effort to justify multiple indictments alleging
the same offense and filed against the same defendant). A ...