                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-24-2000

United States v. DeLaurentis
Precedential or Non-Precedential:

Docket 00-5121




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Recommended Citation
"United States v. DeLaurentis" (2000). 2000 Decisions. Paper 228.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/228


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Filed October 24, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-5121

UNITED STATES OF AMERICA
       Appellant

v.

JAMES V. DeLAURENTIS

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY

(Criminal No. 99-431)
District Court Judge: Honorable Stephen M. Orlofsky

Argued: June 30, 2000

Before: ALITO and McKEE, Circuit Judges,
and FULLAM Senior District Judge.*

(Opinion Filed: October 24, 2000)

       George S. Leone, Esq.
       Chief, Appeals Division
       U.S. Attorney's Office
       970 Broad Street
       Newark, NJ 07102-2535

Counsel for the Appellant



_________________________________________________________________
* The Hon. John P. Fullam, Senior District Judge for the Eastern District
of Pennsylvania, sitting by designation.
       Louis M. Barbone, Esq. (Argued)
       Jacobs & Barbone, P.A.
       1125 Pacific Avenue
       Atlantic City, NJ 08401

       Counsel for the Appellee

OPINION OF THE COURT

FULLAM, District Judge:

The government appeals from the district court's pretrial
dismissal of two counts of an indictment. We have
jurisdiction pursuant to 18 U.S.C. S3731, and the scope of
review is plenary.

The two dismissed counts charged the defendant James
V. DeLaurentis, the Supervisor of Detectives for the
Hammonton Police Department, in Hammonton, New
Jersey, with violations of 18 U.S.C. S666 (theft or bribery
involving programs receiving federal funds). The dismissal
was based upon the district court's conclusion that the
government's evidence did not suffice to show a nexus
between the alleged bribes and any federal interest or
program, under the standards set forth in this court's
recent decision in United States v. Zwick, 199 F.3d 672 (3d
Cir. 1999). We conclude that the order appealed from must
be reversed, for both procedural and substantive reasons.

We address first the procedural issue. Unless there is a
stipulated record, or unless immunity issues are
implicated, a pretrial motion to dismiss an indictment is
not a permissible vehicle for addressing the sufficiency of
the government's evidence. See United States v. Knox, 396
U.S. 77, 83 n.7 (1969), United States v. Gallagher, 602 F.2d
1139, 1142 (3d Cir. 1979) cert. dismissed, 441 U.S. 1040,
and cert. denied, 444 U.S. 1043 (1980); United States v.
King, 581 F.2d 800, 802 (10th Cir. 1978). Federal Rule of
Criminal Procedure 12(b)(2) authorizes dismissal of an
indictment if its allegations do not suffice to charge an
offense, but such dismissals may not be predicated upon
the insufficiency of the evidence to prove the indictment's

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charges. See United States v. Sampson, 371 U.S. 75, 78-79
(1962).

In civil cases, of course, the summary judgment
procedures contemplated by Federal Rule of Civil Procedure
56 may be utilized to test, pretrial, the sufficiency of the
evidence to establish triable issues of fact; but there is no
corollary in criminal cases. The government is entitled to
marshal and present its evidence at trial, and have its
sufficiency tested by a motion for acquittal pursuant to
Federal Rule of Criminal Procedure 29.

We recognize that the district court may have adopted the
novel procedure followed here in order to preserve the
government's right of appeal, but that result could readily
have been achieved by a post-verdict ruling under Rule 29.
Be that as it may, we simply cannot approve dismissal of
an indictment on the basis of predictions as to what the
trial evidence will be. The charges set forth in the two
dismissed counts substantially track the language of the
statute; the indictment is sufficient on its face. Indeed, the
defendant did not, and does not now, challenge the
dismissed counts as facially insufficient. The case must
therefore be remanded to the district court for trial on all
counts.

In addition to the procedural error discussed above, it is
our view that the district judge mis-applied the substantive
law, as clarified in the Zwick case, supra. On this issue, we
labor under the same handicap as the district court,
namely, the fact that there has not yet been a trial, hence
no actual assessment of the government's evidence can be
made. In the interest of providing guidance to the district
court for the future conduct of the trial, however, we
consider it appropriate to register our firm conclusion that,
if the government's evidence is to the same effect as the
parties and the district court have thus far assumed it will
be, it would suffice to permit a jury to convict the defendant
of violating 18 U.S.C. S666.

The statute criminalizes bribery committed by "an agent
. . . of a State, local, or Indian tribal government, or any
agency thereof . . . in connection with any business,
transaction, or series of transactions of such . . .

                               3
government[,] or agency involving anything of value of
$5,000 or more . . . ," but only if

       the organization, government, or agency receives, in
       any one year period, benefits in excess of $10,000
       under a Federal program involving a grant, contract,
       subsidy, loan, guarantee, insurance, or other form of
       Federal assistance.

18 U.S.C. S666.

It is undisputed that the defendant was, at all relevant
times, the Supervisor of Detectives in the Hammonton New
Jersey Police Department, and was thus an agent of a local
government or agency. It is also undisputed that the town
of Hammonton was the recipient of federal funds,
amounting to at least $25,000 per year for a three-year
period. A literal reading of the statute would suggest that,
if the defendant solicited or accepted bribes to influence or
reward him in the performance of his police duties, he
would be subject to punishment under the statute. But, as
this court decided in United States v. Zwick, supra, and as
other courts have also determined, e.g. United States v.
Phillips, 219 F.3d 404 (5th Cir. 2000), the literal language
of the statute must be considered in conjunction with the
concepts of federalism embodied in our Constitution. For a
conviction under S666, therefore, the evidence must show
some connection between the defendant's bribery activities
and the funds supplied by the federal government, or the
programs supported by those federal funds.

In United States v. Zwick, supra, this court undertook an
exhaustive review of the judicial decisions which have
addressed the somewhat elusive definition of the required
nexus. That discussion need not be repeated here. We
concluded that, although it is not necessary to show that
the bribery activities of the defendant actually impacted the
federal funds themselves, or had a direct bearing on the
expenditure of those funds, it must appear that there is
some connection between the bribery activities and a
federal interest. In the Zwick case itself, the federal funds
consisted of a small disaster relief fund which was used for
snow-removal and flood-control. The bribery occurred in
connection with developers being granted sewer access

                               4
permits and landscaping contracts which, so far as the
evidence disclosed, were totally unrelated to the federal
grant or the activities funded by the federal grant. The
court set aside the conviction, but remanded for a new trial
to afford the government an opportunity to attempt to show
such a connection. (The trial judge had ruled that no such
connection need be shown).

In the present case, the defendant was the Supervisor of
Detectives, and among his other duties he was assigned to
assist the New Jersey Division of Alcoholic Beverage Control
in the enforcement of the state alcoholic beverage laws,
under the supervision of the chief of police, who was the
defendant's father. The federal funds were received from the
Department of Justice under the Community Oriented
Policing Services Program ("COPS Fast"), and were used by
the Hammonton Police Department to pay the salary of an
additional police officer (who happened to be the
defendant's brother) for street patrol duties.

The indictment charges that the defendant accepted
bribes for interceding with the town council to permit
renewal of the license of a particular bar which had been
the focus of much police activity because of fighting, drug
sales, disorderly conduct, underage drinking, public
drunkenness, public urination, public lewdness, etc.

The evidence outlined by the government would permit a
rational jury to conclude that the defendant's successful
intercession enabled this problem establishment to remain
open, necessitating a disproportionate allocation of police
manpower, to the detriment of street patrol activities
elsewhere in the town. Indeed, the official records
submitted by the government purport to show that, on
several occasions, the very same officer whose salary is
being paid with federal funds was dispatched to this
problem bar to quell disturbances or make arrests.

Thus, this case differs markedly from the Zwick situation.
It more nearly resembles Salinas v. United States, 522 U.S.
52 (1997). In that case, the federal government provided
funds for physical improvements to a state prison, and paid
a per diem fee for each federal prisoner housed there. A
corrections officer accepted bribes to permit a federal

                               5
prisoner to have conjugal visits. The Supreme Court had no
difficulty in concluding that the defendant was properly
convicted under S666.

When it supplied the town of Hammonton with $75,000
to strengthen its police patrols, the federal government had
a legitimate interest in discouraging police corruption
affecting the patrol activities it was financing. There is no
Constitutional impediment to applying S666 in this case.

The district court's order dismissing Counts Two and Six
of the indictment is vacated, and this case is remanded for
trial on all counts of the indictment.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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