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United States District Court for the District of Massachusetts
November 23, 2020, Decided; November 23, 2020, Filed
Criminal No. 19-10081-IT
[*643] MEMORANDUM & ORDER
After Defendants Gordon Ernst, William Ferguson, Donna Heinel, and Jovan Vavic moved to dismiss1 a one-count Indictment [#1] charging them and others with a Racketeering Conspiracy, the government filed a 165-paragraph Superseding Indictment [#272], again alleging Racketeering Conspiracy but adding factual allegations and twenty-one new counts. Defendants Ernst, Ferguson, Heinel, and Vavic sought dismissal of the Superseding Indictment. Motion to Dismiss as to Heinel [#331]; Motion to Dismiss as to Vavic [#333]; Motion to Join as to Ferguson [#338]; Motion to Join as to Ernst [#337]; Motion to Join as to Vavic [#465]. Following [**4] a hearing on the motions, the government noted its intent to supersede again to "address some of the concerns the Court identified at the recent hearing." Gov't's Proposed Jury Instructions 3 [#490]. The government subsequently filed a Second Superseding Indictment [#505], adding further factual allegations and charges.
Defendants have expressed concern that by superseding, the government has again mooted the Defendants' motions to dismiss after the Defendants engaged in resource-intensive briefing and without resolution of the substantive legal issues raised in Defendants' motions. Status Report 4 [#537]. ] As a matter of law in this Circuit, however, "the grand jury's return of a superseding indictment does not void the original indictment." United States v. Vavlitis, 9 F.3d 206, 209 (1st Cir. 1993) (citing United States v. Friedman, 649 F.2d 199, 202 (3d Cir. 1981) and United States v. Holm, 550 F.2d 568, 569 (9th Cir. 1977)). Accordingly, in the interest of resolving the disputed legal issues while conserving the parties' resources, the court addresses the pending motions as they pertain to the Superseding Indictment [#272]. For the reasons discussed below, the court rejects various theories put forth by the government as to how these Defendants may be proven guilty of the offenses charged. Nonetheless, because the Superseding Indictment meets the [**5] minimal requirements of technical sufficiency so as to call for a trial on the merits, the charges [*644] survive. Accordingly, Defendants' motions to dismiss are DENIED.2
I. THE FACTS ALLEGED IN THE SUPERSEDING INDICTMENT
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
502 F. Supp. 3d 637 *; 2020 U.S. Dist. LEXIS 218928 **; 2020 WL 6871040
UNITED STATES OF AMERICA, v. GORDON ERNST, DONNA HEINEL, WILLIAM FERGUSON, and JOVAN VAVIC, Defendants.
Subsequent History: Motion denied by United States v. Ernst, 2021 U.S. Dist. LEXIS 140983, 2021 WL 3190833 (D. Mass., July 28, 2021)
Motion denied by United States v. Heinel, 2021 U.S. Dist. LEXIS 196979 (D. Mass., Oct. 13, 2021)
Motion denied by United States v. Heinel, 2021 U.S. Dist. LEXIS 204907 (D. Mass., Oct. 25, 2021)
Prior History: United States v. Abdelaziz, 2020 U.S. Dist. LEXIS 22506 (D. Mass., Feb. 10, 2020)
Indictment, enterprise, Superseding, conspiracy, alleges, Defendants', charges, honest, conspired, bribe, deprived, licenses, conspiracy charge, wire fraud, joined, athletic, bribery, manage, federal property, designate, Counts, fails, mail, motion to dismiss, recruits, factual allegations, money laundering, property right, mail fraud, endeavor
Criminal Law & Procedure, Common Characteristics, Superseding Instruments, Effect of Original Indictment, Relation Back Doctrine, Constitutional Law, Fundamental Rights, Procedural Due Process, Grand Jury Requirement, Grand Juries, Indictments, Right to Indictment by Grand Jury, Contents, Sufficiency of Contents, Contents, Challenges, Fraud Against the Government, Mail Fraud, Elements, Fraud, Wire Fraud, False Claims, Evidence, Burdens of Proof, Allocation, Jurisdiction & Venue, Jurisdiction, Governments, Legislation, Interpretation, Interpretation, Rule of Lenity, Banking Law, Racketeering, Money Laundering, Fundamental Freedoms, Judicial & Legislative Restraints, Overbreadth & Vagueness of Legislation, Vagueness, Scope of Protection, Defective Joinder & Severance, Duplicity, Definition of Duplicity, Trials, Verdicts, Unanimity, Inchoate Crimes, Conspiracy, Challenges & Waivers, Dismissal, Grounds for Dismissal, Legal Insufficiency, Accusatory Instruments, Burdens of Proof, Racketeer Influenced & Corrupt Organizations Act, Prosecution, Bribery, Public Officials, Abuse of Public Office, Illegal Gratuities