author: SHAW, District Judge.

text:
    D.A. DELAHOUSSAYE, Louisiana Rice Properties, Inc., Rice Capital Sales, Inc., Del Rico, Inc. v. Richard SEALE, Robert (Bob) Odom, Gilbert Lyons, Manning J. Broussard, William G. Boudreaux.
    Civ. A. No. 83-0730.
    United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.
    April 11, 1985.

      Louis M. Phillips, Taylor Proter, Brooks & Phillips, Baton Rouge, La., for plaintiffs.
    Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, La., for Richard Seale.
    C. James Gelpi, New Orleans, La., for Bob Odom.
    F. Jefferson Millican (PLC), Jennings, La., for Gilbert Lyons.
    Pugh & Boudreaux, Charles J. Boudreaux, Sr., Lafayette, La., for Manning J. Broussard & William G. Boudreaux.
   RULING

SHAW, District Judge.

Now before the Court is the motion of all five defendants (Robert Odom, Richard Seale, Gilbert Lyons, Manning Broussard and William Boudreaux) to reconsider denial of summary judgment, and the two separate summary judgment motions of defendants Broussard and Boudreaux and of defendants Lyons and Seale. For the reasons hereinafter set out, the summary judgment motion filed by all defendants is hereby GRANTED; therefore, the remaining summary judgment motions are moot.

Plaintiffs in this case have brought an action under 42 U.S.C. § 1983, alleging that defendants “used their positions as Warehouse Commission and Louisiana Department of Agriculture officials to arbitrarily deprive and violate plaintiffs’ constitutionally protected property right to operate one’s business pursuant to State License and otherwise without arbitrary, unlawful governmental intrusion and interference.” The plaintiffs, three Louisiana corporations and Deblanc Delahoussaye, a part owner and officer of the three corporations, allege that on March 26, 1982, defendants Odom, Seale and Lyons voted as a majority of the Louisiana Warehouse Commission (the Commission) to suspend the warehouse license of plaintiff Louisiana Rice Properties, Inc. (LRP) because of economic problems faced by a related corporation, Southwest Louisiana Grain Corporation (Southwest Grain).

Defendants claim that their action was justified by an audit and examination of LRP’s Unit 4 (Southwest Grain), which revealed that Southwest Grain was unable to meet its financial obligations to farmers and carried a debt of over $600,000.00. Delahoussaye confirmed these findings in a meeting with defendant Odom on February 25, 1982. According to defendants, Southwest Grain did not hold a warehouse license but did hold a grain dealer’s license, and speculation in the sale of grain had caused the failure of Southwest Grain. Defendants suspended LRP’s warehouse license because of its close interconnection with Southwest Grain and “its ability to generate much needed cash through the issuance of warehouse receipts on and the sale of grain not belonging to it and the history that others similarly situated had done so.”

According to plaintiffs, however, defendants knew that LRP was a distinct corporate entity and had not violated any state statutes. Plaintiffs also claim that they did not receive notice of the Commission’s suspension until March 31, when plaintiff Delahoussaye received a letter from Odom advising that the warehouse license held by LRP had been suspended under the authority of LSA-R.S. 54:257 “because of discrepancies in your warehouse audit.” The letter was hand delivered by defendant Boudreaux, assistant director of the Commission. Boudreaux was also one of three inspectors allegedly sent on March 31 to inspect and audit the books of LRP, after the written notification of suspension was delivered. Following their inspection, these inspectors determined that there were no discrepancies in LRP’s warehouse receipts book. Plaintiffs claim that Odom had also directed the inspectors to take over the operations of Rice Capital Sales, Inc. and Del Rico, Inc., but that the books of these corporations were never inspected.

Furthermore, plaintiffs complain that defendants advised a Monroe newspaper of their intention to seize control of “facilities operated by” LRP on March 30, even though the inspection was not to be performed until the next day. On March 31, defendants and press officer Larry Michaud informed other media across the state that the Louisiana Department of Agriculture had seized and closed LRP as well as the three facilities owned by Delahoussaye in Kaplan because they owed $600,000 to area farmers. Plaintiffs allege that defendants knew that LRP was a distinct entity and that the audit by the inspectors had revealed no discrepancies or violations by the time of these communications. Several newspapers printed the information released by defendants on April 1.

On April 2, Larry Michaud advised Delahoussaye that defendants had made a mistake and that they would issue a retraction. The Commission held a hearing on April 23 wherein it determined that the warehouse license of LRP would be reinstated. Plaintiffs allege that no retraction was issued until April 27, 1982, when Louisiana newspapers were advised that the warehouse license of Louisiana Rice Properties had been reinstated.

According to plaintiffs, the decision to “close down” and suspend the warehouse license of Louisiana Rice Properties, the arbitrary seizure of Rice Capital Sales and Del Rico and the communication of these unlawful actions to Louisiana newspapers and media constituted violations of section 1983. Plaintiffs claim they have suffered injury to their corporate reputations and have suffered financial losses as a direct result of defendants’ actions, including the refusal of many suppliers to continue to provide inventory on credit and serious cash flow problems. Plaintiffs have also alleged a pendent state claim under LSA-C.C. art. 2315 for tortious interference with plaintiffs’ business and damage to the businesses’ reputations. Plaintiff Delahoussaye has also brought a separate state libel action, alleging that defendants announced to the media on March 31 that the Department of Agriculture had audited Delahoussaye personally and found that he owed area farmers $600,000 as owner of Louisiana Rice Properties.

There are two essential elements to any section 1983 action. First, the conduct complained of must have been committed by a person acting under color of state law, which is not disputed in this case. Second, defendants’ conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). Viewed in the light most favorable to plaintiffs, the complaint in this case asserts only two constitutional violations: the deprivation of liberty and property interests without due process of law, in violation of the due process clause of the fourteenth amendment.

The fourteenth amendment encompasses violations of both procedural and substantive due process. Generally, substantive due process claims involve conduct which infringes upon certain provisions of the Bill of Rights made applicable to the states through the fourteenth amendment. Due process standing alone also has a substantive aspect in cases of serious physical violence involving conduct that shocks the conscience, Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952); Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981); and may in cases of excessive abusive behavior, with a caveat that “implication of nontextual substantive rights from the general monitions of the due process clause is a matter not to be undertaken lightly but only with the caution of seasoned and mature thought.” Rutherford v. United States, 702 F.2d 580, 584 (5th Cir.1983). Although the Supreme Court outlined the appropriate analysis of procedural due process claims in Parratt, 451 U.S. at 527, 101 S.Ct. at 1908, the restrictive Parratt analysis does not apply to these substantive due process violations. Thibodeaux v. Bordelon, 740 F.2d 329 (5th Cir.1984).

The plaintiffs have alleged no substantive due process claims in this case, however, for the temporary suspension of their licenses and injury to their business reputations. The Fifth Circuit has held that “the fourteenth amendment provides only procedural protection against injury inflicted by state officers” to reputation interests. In re Selcraig, 705 F.2d 789 (5th Cir.1983). Nor have plaintiffs characterized the temporary license suspension as “conscience shocking” or excessively abusive conduct which is inherently impermissible. Schiller v. Strangis, 540 F.Supp. 605, 614-15 (D.Mass.1982). Therefore plaintiffs can only claim that the state has unlawfully interfered with protected property or liberty interests by failing to provide adequate procedural safeguards; that the procedures used by the state were inadequate in light of the significance of the affected interests. Schiller, 540 F.Supp. at 613.

Accordingly, whether plaintiffs have alleged a cognizable violation of their fourteenth amendment right to procedural due process involves a dual inquiry: were they deprived of a protected interest, and if so, was the deprivation accomplished without adherence to due process standards? Findeisen v. North East Independent School District, 749 F.2d 234, 237 (5th Cir.1984). The first question under the procedural due process analysis is thus whether plaintiffs have been deprived of a protected liberty or property interest.

Addressing first the temporary license suspension, this Court finds that the warehouse license does fall within the definition of “property.” See, e.g. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). There is a question of fact as to whether plaintiffs were actually deprived of this property interest, since the three companies were apparently allowed to continue operations. Yet, plaintiffs claim that the license was not reinstated until April 27, almost a month after they received notice of the suspension. For the purposes of this ruling, the Court will assume that plaintiffs were actually deprived of the property interests alleged.

Plaintiffs also alleged injury to their business reputations by the defendants’ March 30 and 31 communications to the area media. In Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976), the Supreme Court held that “reputation alone, apart from some more tangible interest such as employment, is [not] ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.” The Court held that a federally recognized liberty interest is implicated only when an individual’s reputation is stigmatized in connection with the denial of some specific constitutional guarantee or some “more tangible” interest. Id. at 70.0-01, 96 S.Ct. at 1160. The Fifth Circuit has found constitutional deprivations of liberty when there have been additional injuries to employment or other interests—stigma “plus” the loss or denial of another right. In re Selcraig, 705 F.2d at 789; Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980).

Moreover, the “ ‘plus’ of the stigma-plus requirement need not itself be a protected liberty or property interest.” Marrero, 625 F.2d at 513 n. 17. In this case, the temporary suspension of plaintiffs’ warehouse license in addition to the reputational injuries would constitute a “more tangible interest” sufficient to implicate a protected liberty interest. The Court will once again assume that the plaintiffs did suffer the reputational injury alleged from the defendants’ communications for the purposes of this motion.

Once a protected interest is found, then the question is raised as to whether adequate procedures were provided. As the Fifth Circuit stated in Marrero, 625 F.2d at 519, “[i]n order to state a claim under the fourteenth amendment, the complainant must allege facts showing not only that the State has deprived him of a liberty or property interest but also that the State has done so without due process of the law.” Although plaintiffs have never argued that they were not accorded adequate procedural safeguards, this remains the only basis for plaintiffs’ claim.

In this case, Louisiana law specifies the plaintiffs’ only procedural rights for suspension of warehouse licenses, providing that:

The commission may temporarily suspend the license of any warehouse or warehouse company found violating any provision of this Chapter or the rules and regulations adopted under it.
Within ten days of the suspension, the commission shall hold a hearing at which the suspended warehouse or warehouse company shall be heard in opposition to the suspension and its continuance.

LSA-E.S. 54:257. Therefore, the state has authorized certain post-deprivation remedies which are provided within ten days of the temporary suspension. The question remains whether these state-provided remedies were adequate or satisfied the relevant due process standards.

In Parratt, the Supreme Court noted that many of its decisions required that a hearing take place before the state interfered with a liberty or property interest of its citizens. In these cases the deprivation was authorized by state procedure and thus it was possible for the state to provide notice and a hearing before the deprivation occurred. Thibodeaux, 740 F.2d at 334, citing Parratt, 451 U.S. at 537-38, 101 S.Ct. at 1913-14. On the other hand, the Court noted that other decisions have held that state post-deprivation remedies could satisfy the due process clause. Id. See, e.g., Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). The Court added that:

[t]hese cases recognize that either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process can, when coupled with the availability of some meaningful means by which to assess the propriety of the State’s action at some time after the initial taking, satisfy the requirements of procedural due process ... we have rejected the proposition that ‘at a meaningful time and in a meaningful manner’ always requires the State to provide a hearing prior to the initial deprivation of property. This rejection is based in part on the impracticability in some cases of providing any preseizure hearing under a state-authorized proeedure, and the assumption that at some time a full and meaningful hearing will be available.

Parratt, 451 U.S. at 539-41, 101 S.Ct. at 1914-16.

Therefore the relevant inquiry under the Parratt analysis is whether the deprivation occurred through an established state procedure, since the Supreme Court held in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), that post-deprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than “random and unauthorized action." As the Supreme Court stated in Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984),

[t]he underlying rationale of Parratt is that when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply ‘impracticable’ since the state cannot know when such deprivations will occur.

In Hudson, the court also applied the Parratt analysis to intentional deprivations of property, noting that “intentional acts are even more difficult to anticipate.” Id. Moreover, the court noted that even though a state agent who intends to deprive a person of his property can provide predeprivation process, “[w]hether an individual employee himself is able to foresee a deprivation is of no consequence. The controlling inquiry is solely whether the State is in a position to provide for predeprivation process.” Id. 104 S.Ct. at 3204.

Regarding plaintiffs' alleged deprivation of a property interest in their warehouse license, it is clear that the deprivation did not occur as a result of an established state procedure. To either negligently or intentionally suspend the license of a solvent business can only be characterized as random and unauthorized. As in Hudson, the state is unable to foresee the potential negligent or intentional deprivation of a license or property interest, rendering predeprivation process impracticable. Furthermore, the state has provided a full and meaningful hearing within a reasonable time after the deprivation.

On the other hand, Logan v. Zimmerman Brush Company, supra, is a classic example of a deprivation effectuated through an established state procedure which destroyed the claimants’ entitlement without according him proper procedural safeguards. Therein, Zimmerman Brush Company discharged the plaintiff purportedly because his short left leg made it impossible for him to continue as a shipping clerk. Logan brought his unlawful discharge complaint to the Illinois Fair Employment Practices Commission. The Commission, apparently through inadvertence, scheduled the necessary conference for five days after the expiration of the statutory limitation period for claims. The Illinois Supreme Court held that Logan’s claim was thereby extinguished, but the United States Supreme Court reversed.

It is clear that Logan’s loss happened by operation of law. Logan had a state-created property interest which the state cannot destroy at will. Logan received no hearing and some form of hearing is a sine qua non before he could finally be deprived of a protected property interest. Unlike Logan, here the plaintiffs are challenging the Commissioner’s error, not the established state procedure. As the Fifth Circuit stated in Marshall v. Norwood, 741 F.2d 761, 763 (5th Cir.1984), “[i]n Parratt, the Supreme Court distinguished between ‘a challenge to an established state procedure as lacking in due process and a property damage claim arising out of the misconduct of state officers.’ 451 U.S. at 542 [101 S.Ct. at 1916].” (Emphasis added.)

Furthermore, in Parratt the Supreme Court held that when the state provides an adequate and independent tort remedy for the deprivation, even though the remedial process comes after the deprivation has occurred, the state remedy constitutes sufficient due process under the fourteenth amendment. 451 U.S. at 543-44, 101 S.Ct. at 1916-17. Louisiana law affords plaintiffs a tort cause of action against all of the defendants in this suit. Plaintiffs have conceded this by taking advantage of the available state remedies, attaching pendent state claims under La. Civil Code article 2315 et seq. The availability of this remedy provides the plaintiffs with all the process that is due, and their complaint should therefore be dismissed.

An additional argument that defendants could have made is that the same legislation which created the property entitlement to a warehouse license also created the procedure for its suspension and the opportunity for a hearing to oppose the suspension. How then can the plaintiffs expect to have any entitlement to a pre-suspension hearing? The only guarantee the state provides is a post-suspension hearing in clear and unequivocal terms. It may be said that plaintiffs could expect no more.

Plaintiffs also claim that they were deprived of a liberty interest through the alleged injury to their business reputations. The Fifth Circuit specifically outlined the requirements for establishing denial of due process for reputational injuries in Selcraig, 705 F.2d at 797, including showing publication of the charges, injury to business or employment, and denial of a name-clearing hearing. According to the court, “[publication is shown by official interviews with the press.” Id. In this case, the Commission issued press releases concerning the license revocation. Yet even assuming that plaintiffs have been “injured” by the communications, just as in Selcraig they have not shown that defendants deprived them of their right to a hearing.

In Selcraig, the plaintiff had waived his right to a due process hearing when he “settled” his dispute with defendants. 705 F.2d at 793. Similarly, in this case plaintiffs agreed in a telephone conversation on March 31 that “the hearing previously set for April 7, 1982, in accordance with LSA-R.S.. 54:257, would be set aside without date.” Thus the defendants waived their right to a name-clearing or post-deprivation hearing, the only procedural remedy afforded by statute. Moreover, Selcraig held that procedural rights for this type of violation do not need to precede publication. Id. at 798. See also Wells v. Dallas Independent School District, 576 F.Supp. 497, 510 (N.D.Tex.1983) (“a maligned employee has a right to a procedure that will afford him a right to refute unfounded-charges, i.e., a hearing, but that hearing need not precede publication.”)

In summary, plaintiffs do not contend that more exacting procedural safeguards should have been imposed by the State before the imposition of plaintiffs’ license suspension. In fact, plaintiffs concede the constitutionality of the statutes under which the state acted as well as the adequacy of the available state tort remedies. What the plaintiffs do claim is that their deprivation resulted from the faulty determination made by the state to suspend plaintiffs’ license. Whether the state’s conduct can be considered negligent or intentional, it is clear that it was not pursuant to any established state procedure but was random and unauthorized. It is also clear that predeprivation safeguards to prevent the occurrence of this type of alleged conduct are not practical or feasible. Further, the plaintiffs do not contend that they are entitled to any additional predeprivation safeguards, or even remotely suggest what they might be. It has been said that due process does not mean perfect process.

One final issue that might have been raised to support the defendants’ position is the doctrine of sovereign immunity under the eleventh amendment, barring suits against a state by its own citizens or citizens of other states. Likewise, the eleventh amendment bars suits against state officials, agencies or employees when the state is the real, substantial party in interest. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). Eleventh amendment immunity applies unless a federally created right is at issue or a state has either consented to suit in federal court or waived application of the eleventh amendment. Parden v. Terminal Railroad Co., 377 U.S. 184, 186, 84 S.Ct. 1207, 1209, 12 L.Ed.2d 233 (1964).

Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), recognizes an important exception to this general rule, holding that a suit challenging the- federal constitutionality of a'state official’s action is not one against the state. Yet the Young exception serves only to permit a federal court to grant prospective injunctive relief; federal courts remain barred under the eleventh amendment from granting legal or equitable retroactive relief. Chiz’s Motel v. Mississippi State Tax Commission, 750 F.2d 1305 (5th Cir.1985), citing Pennhurst 104 S.Ct. at 909-10. Furthermore, the need to promote the supremacy of federal law recognized in Young is absent when the plaintiff alleges that a state official has violated state law, as in this case. When a federal court instructs state officials on how to conform their conduct to state law, this conflicts directly with the principles of federalism that underlie the eleventh amendment. Pennhurst, 104 S.Ct. at 909.

In this case, the defendants are all state officials who acted within the sphere of their official responsibilities in conformance with the state guidelines for termination of warehouse licenses. The defendants had nothing to gain personally from their conduct, as in Pennhurst, although there remains a question as to whether they acted negligently or even willfully. As the court stated in Pennhurst, “a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when—as here—the relief sought and ordered has an impact directly on the State itself.” Id. 104 S.Ct. at 917. Louisiana law provides that the state shall hold harmless and indemnify all officers and employees of the state from any financial loss arising out of any claim, demand, suit or judgment in federal court brought under 42 U.S.C. §§ 1981 through 1983 in the event the officer or employee was acting in the discharge of his duties and within the scope of his employment. LSA-R.S. 13:5108.1. Therefore, any liability for defendants’ actions rests with the Department of Agriculture and on the state of Louisiana. La.Civ. Code arts. 3021, et seq. Although it could be argued that this statute constitutes a waiver of eleventh amendment immunity, Louisiana law expressly provides that “[n]o suit against the state, state agency or political subdivision shall be instituted in any court other than a Louisiana state court.” LSA-R.S. 13:5106.

For the foregoing reasons, the motion for summary judgment filed by defendants is hereby GRANTED.

      . Plaintiffs’ Memorandum in Opposition to Motion to Dismiss, May 27, 1983, at 3.

      . Defendants claim the two corporations were family-owned and closely interconnected both operationally and financially, as evidenced by their common officers, boards of directors and bookkeepers.

      . Defendants’ Brief and Supporting Documents in Support of Motion for Summary Judgment, October 1, 1984, at 4-5.

      . As the Fifth Circuit noted in Thibodeaux, 740 F.2d at 338 n. 9, however, "[a]s the particular liberty interest at stake increases in importance, the adequacy of a postdeprivation damages remedy may decrease." At some point the individual interest becomes so important that the impossibility of a prior hearing will not justify allowing a postdeprivation remedy to satisfy procedural due process requirements. "At such a point, procedural due process shades into substantive due process, and Parratt becomes inapplicable." Id.

      . In Thibodeaux, supra, the court made no distinction between deprivations of property and liberty interests.

      . Opposition to Motion for Summary Judgment, Nov. 14, 1984 at 16. ("It is clear that LSA R.S. 54:247 does not provide for presuspension hearings. Reserving the right to urge at a later date that the statute is defective for this reason, plaintiffs assume for purposes of argument that the statute is constitutional on its face.”)

      . The Supreme Court established a three-prong balancing test to determine the sufficiency of state-provided deprivation remedies in Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The test weighs: (1) the private interest that will be affected, (2) the risk of an erroneous deprivation of that interest by the procedures being used, and (3) the government’s interest in the matter. Id. at 335, 96 S.Ct. at 903. Although it is not necessary to apply the test in this case, the Court finds that the post-suspension hearing will adequately protect the plaintiffs’ liberty and property interests under this test. In weighing the various interests involved, ten days does not seem an unreasonable delay for such a hearing. Nor does there seem to be a high risk of erroneous deprivation from the state procedures, which are only "temporary" until the hearing is conducted. Moreover, plaintiffs have not challenged the constitutionality of the state statute or procedures.

      . The Supreme Court stated in Hudson that "an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. For intentional, as for negligent deprivations of property by state employees, the State’s action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.” 104 S.Ct. at 3203.

      . The alleged deprivation of a liberty interest ("stigma”), however, could be more complicated, see, Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), but the distinction between a property or liberty interest in this context may not be tenable.

      . Defendants’ Brief and Supporting Documents in Support of Motion for Summary Judgment, October 1, 1984, at Exhibit C.


source: Caselaw Access Project

author: TURK, Chief Judge.

license: Public Domain

text:
    Moyer Reed PLASTER, Petitioner, v. UNITED STATES of America, Respondent.
    Civ. A. No. 81-0164.
    United States District Court, W.D. Virginia, Roanoke Division.
    April 11, 1985.

      Carr L. Kinder, Jr., Bird, Kinder & Huffman, Roanoke, Va., for petitioner.
    Jean B. Weld, Asst. U.S. Atty., Roanoke, Va., for respondent.
   MEMORANDUM OPINION

TURK, Chief Judge.

This habeas corpus proceeding is before the Court pursuant to the remand of the United States Court of Appeals for the Fourth Circuit. It involves the attempt to extradite petitioner to West Germany to stand trial for a murder committed in 1965. In the initial proceedings following the murder, petitioner was granted immunity from military prosecution and was promised that he would not be extradited to West Germany for prosecution there. Pursuant to a subsequent treaty entered into force in 1980, however, the United States Attorney for the Western District of Virginia sought extradition. This court held that extradition was barred in Plaster’s case and the government appealed. The Fourth Circuit remanded the ease for a determination of whether the military officers, Colonel Hart and General Shellman, had authority to promise Moyer Plaster that he would not be returned to German authorities for trial, stating that:

Were it to be true that the State Department through its liason told Hart that a final decision had been made that Plaster would not be extradited and that Hart should continue using his best judgment to get some sort of a conviction out of the case, we would have no trouble agreeing with the district court that Hart had been delegated the authority to promise Plaster as part of the agreement in exchange for his testimony against Burt, that the United States government would not extradite him to Germany for the 1965 murder.

Plaster v. United States, 720 F.2d 340, 355 (4th Cir.1983).

The court has reviewed the evidence and arguments presented by the parties on remand and concludes that Colonel Hart did have the authority to grant Plaster immunity from extradition. The question of fact which was of concern to the Fourth Circuit was Hart’s assertion that Colonel York, pursuant to a telephone conversation, had informed him that Plaster would not be extradited and York’s subsequent denial that he made such a call. The affidavit of Colonel Hart, presented by the government, resolves this question. In his affidavit, Hart admitted that he had mistakenly named York as the person with whom he had discussed the Plaster matter. In reality, Hart stated, he spoke with Colonel A1 Rakas, Chief of International Affairs Division, USAREUR, who told him that the State and Defense Departments had decided that to then allow West Germany to recall its jurisdiction after it had failed to do so during the twenty-one day time limit set forth in the Supplementary Agreement to the SOFA treaty would set a bad precedent. Hart was also told that it was the United States Government’s policy to assert and maintain jurisdiction whenever possible in situations where both the United States and the receiving country had concurrent jurisdiction. Hart went on to state that his actions with regard to offering a grant of immunity and to promising Plaster that he would not be extradited were his response to the decision of the State and Defense Departments.

In light of the affidavit of Colonel Hart, the court finds that the State Department, through its liason, Colonel Rakas, told Hart that a final decision had been made that Plaster would not be extradited. Accordingly, the court finds that Hart had the requisite authority to promise Plaster freedom from extradition.

The government has advanced another argument which, if correct, would necessitate a denial of relief to Plaster. According to the United States Attorney, the case of Mabry v. Johnson, — U.S. -, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), decided subsequent to the Fourth Circuit’s decision in this case, controls and mandates a finding that, even assuming Hart had authority to promise immunity from extradition, Plaster’s constitutional rights were not violated. This court does not agree. Mabry involved two separate plea negotiations, and the defendant’s guilty plea based on a full knowledge of the surrounding facts. In Mabry, a deputy prosecutor proposed that, in exchange for a plea of guilty, he would recommend a twenty-one year sentence to be served' concurrently with the burglary and assault charges the defendant was then serving. The offer was communicated through counsel to Johnson, who agreed to accept it. However, when Johnson’s counsel communicated his client’s acceptance of the offer to the prosecutor, he was informed that a mistake had been made and that the offer had been withdrawn. Instead, the prosecutor proposed that, in exchange for Johnson’s guilty plea, he would recommend a twenty-one year sentence to be served consecutively to the defendant’s other sentences. Johnson rejected the new offer and elected to stand trial. After a mistrial, however, he elected to accept the prosecutor’s new offer. Pursuant to the new agreement, Johnson was sentenced to a twenty-one year term to be served consecutive to his other convictions. Johnson then sought relief from the conviction through a writ of habeas corpus, alleging that the prosecution’s first proposed plea bargain should have been enforced. The Supreme Court denied relief, holding that, in order to have violated a constitutionally protected interest, the plea bargain must have been executed. In Johnson’s case, that meant that he must have plead guilty; “[o]nly after [Johnson] pleaded guilty was he convicted, and it is that conviction which gave rise to the [constitutional] deprivation....” Mabry v. Johnson, 104 S.Ct. at 2546-47.

Applying Mabry to the present case does not necessitate a finding that petitioner’s rights have not been violated. Initially, the court notes that a grant of immunity is different from a plea bargain in that it can never be formalized by a plea of guilty. On the contrary, the very nature of the agreement is the promise on the part of the government to do nothing. In addition, a grant of immunity differs from a plea agreement in that it in no way involves court approval. In the case of a plea agreement, the court in essence executes the agreement by accepting the plea of guilty. In the case of a grant of immunity, however, only two parties are involved. The government alone makes a decision not to prosecute in exchange for testimony which will, hopefully, lead to a greater number of indictments or convictions. The most that one granted immunity can do is to agree to testify and then await the call of the government. The fact that the government has never called upon Plaster to testify does not now entitle the government to breach its part of the bargain.

In addition, despite the arguments of the government, the Plaster agreement is not unenforceable for lack of consideration. Plaster, in serving his sentence in Wisconsin and in setting up a life over a period of fifteen years clearly relied on the promise that he would not be extradited to Germany. His failure to testify against Burt cannot be held against Plaster since he has never been asked to do so and has never refused to do so. It was through the sole fault of the government in losing the immunity agreement mailed from Rarick to Hart, and in, incredibly, not having any further communication between Rarick and Hart, that Plaster was never asked to fulfill his part of the bargain. Thus, the immunity agreement was, indeed, enforceable, and the failure of the government to fulfill its part of the bargain was a violation of Plaster’s constitutional rights.

Furthermore, the decision in Mabry does not, as the government contends, stand for the proposition that “fairness” has no place in the consideration of such agreements. The Court, instead, based its decision on the fact that Johnson’s agreement to the second bargain was enforceable as voluntary and intelligent and “in no sense [was] the product of governmental deception.” Mabry, 104 S.Ct. at 2548. The Court found it unnecessary to consider the fairness of the executory agreement, but did look to the fairness of the second, executed, plea bargain. In this case, by agreeing to testify against his codefendant, Plaster executed the immunity agreement. Therefore, the court may consider the conduct of the parties. The court concludes that it would be fundamentally unfair to allow the government to repudiate its grant of immunity after fifteen years of reliance by Plaster. Indeed, to allow conduct of this sort would be tantamount to sanctioning “governmental deception.”

Finally, the government argues that there was no jeopardy to Plaster regarding prosecution in Germany, because it was questionable whether the United States was even authorized to return Plaster to Germany. According to the government, if the State and Defense Departments were under the impression that they could not return Plaster to Germany, any promise that Plaster would not be extradicted was not a benefit bestowed by Hart, but was rather merely a statement of law. ' The court does not find this argument to be convincing. First, the government has not shown that the State and Defense Departments indeed believed they could not extradite Plaster. Even assuming they did hold such a belief, however, any “promise” based on that belief could not be construed as a statement of law and would, in fact, confer a benefit to Plaster. Moreover, if the government’s statements that they could not extradite Plaster were true, this would confirm the court’s opinion that the understanding of the parties was that Plaster would not be returned to Germany. In addition, the court finds that this understanding was an integral part of the immunity agreement and must be enforced.

In view of the decision of this court that Hart had authority to promise freedom from extradition to Germany and that Plaster is therefore entitled to habeas corpus relief, the court does not find it necessary to consider the issue of whether petitioner was placed in double jeopardy.

Accordingly, this court finds that Colonel Hart and General Shellman had the authority to grant Plaster immunity from extradition; that they did, in fact, grant such immunity; that the agreement was enforceable; and that, as a result, Plaster may not now be extradited to Germany. The writ of habeas corpus shall, therefore, be granted in the Order accompanying this opinion.


author: CAFFREY, Chief Judge.

text:
    CASS COUNTY MUSIC COMPANY, et al., Plaintiffs, v. VINEYARD COUNTRY GOLF CORP., Defendant.
    Civ. A. No. 82-3327-C.
    United States District Court, D. Massachusetts.
    April 11, 1985.
    Stephen S. Young, Sherburne, Powers & Needham, James D. Smeallie, Boston, Mass., for plaintiffs.
    Carmen L. Durso, Marullo and Barnes, Boston, Mass., for defendant.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a civil action for copyright infringement brought under 17 U.S.C. § 501 et seq. The plaintiffs’ complaint alleges six causes of action for copyright infringement based on the public performance of copyrighted musical compositions at the lounge of the Colonial Inn in Edgartown, Massachusetts. Each of the six plaintiffs allege that it is the owner of an identified and copyrighted musical composition as listed in Exhibit A to plaintiffs’ complaint. Defendant in its answer has admitted that the Vineyard Country Golf Corp. at all times owned, controlled, managed and operated the Colonial Inn as a place of business for public entertainment, accommodation, amusement and refreshment. Defendant has also admitted that musical compositions were publically performed as part of the entertainment provided at the Colonial Inn. The matter is now before the Court on plaintiffs’ motion for summary judgment which motion is supported in part by defendant’s answer, defendant’s answers to a request for admissions, defendant’s answers to plaintiffs’ interrogatories and the affidavits of B. Robert Gendreau, Dawn Steele, Daniel Schrager, and James D. Smeallie, Esq. The motion also relies on photostatic copies of the copyright registration certificates for the musical compositions. The motion is opposed by the affidavit of Peter M. Martell, president and treasurer of Vineyard Country Golf Corp.

After a hearing, the parties have filed memoranda of law with reference to the motion.

On the record, as a whole, I rule that there is no issue of material fact herein and that plaintiffs have established their ownership and the registration in their names of the six copyrighted musical compositions in issue. Plaintiffs have proved by the uncontradicted affidavit of B. Robert Gendreau that defendant has never held a license agreement with ASCAP authorizing the public performance of the musical compositions in issue. Plaintiffs also have established, through the affidavits of Dawn Steele and Daniel Schrager, that the compositions were in fact played at the Colonial Inn by a guitarist on the evening of June 26,1981. The affidavit of Peter M. Martell does not create an issue of material fact as to any of the foregoing matters but rather seeks to raise a defense consisting of a claim that the guitarist was not paid to perform by defendant and, a second defense, a claim that plaintiffs, through a representative of ASCAP, failed to honor a request by defendant to send defendant a copy of all copyrighted musical compositions.

I rule that neither of these defenses is of any legal validity because plaintiffs do not have the burden of proving that the copyrighted compositions were played by an employee of defendant but merely have the burden of proving that the copyrighted compositions were played at a place open to the public, operated for profit, and under the control and management of defendant. I rule the fact that the guitarist was not employed by defendant is legally irrelevant. See Gershwin Publishing Corp. v. Columbia Artists Man., Inc., 443 F.2d 1159, 1161 (2d Cir.1971); Herbert v. Shanley Co., 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 511 (1917); and M. Witmark & Sons v. Tremont Social and Athletic Club, 188 F.Supp. 787 (D.Mass.1960).

I further rule that defendant’s second attempted defense, the alleged failure of plaintiffs or their agent ASCAP to respond to oral requests for a list of all copyrighted musical compositions, is equally meritless. In Famous Music Corp. v. Bay State Harness Horse Racing and Breeding Association, Inc., 554 F.2d 1213, 1215 (1st Cir.1977), the Court of Appeals for this Circuit ruled that there is no obligation for the owner of a copyright to furnish a complete or even an edited list of the millions of compositions in its repertory and the Court of Appeals further indicated that the obligation of the copyright owner is merely to respond to a written request asking whether certain specifically named compositions are in the ASCAP repertory. There is no allegation by defendant that such a request was ever submitted to plaintiffs or ever ignored by plaintiffs. Consequently, plaintiffs failure to supply a complete list of all copyrighted compositions is of no legal consequence. In a case captioned United States v. ASCAP, 1950 Trade Cases, ¶ 62595 p. 6370 (E.D.N.Y. Mar. 14, 1950), a consent decree was entered which provided, in pertinent part, in paragraph XIV:

“Immediately following entry of this Judgment, defendant ASCAP shall upon written request from any prospective user inform such user whether any compositions specified in such request are in the ASCAP repertory, and make available for public inspection such information as to the ASCAP repertory as it has.”

The Court of Appeals for the First Circuit construed that clause, in its opinion in Famous Music Corp. v. Bay State Harness Horse Racing and Breeding Association, Inc., supra at 1215, to mean “the procedure prescribed is simple—á written request asking whether certain compositions are in the ASCAP repertory. Bay State did not make that request.” In the instant case Vineyard Country did not make that request and accordingly, I rule that it is just as liable for copyright infringement as the Court of Appeals ruled was the case in Bay State Harness.

17 U.S.C. § 504 gives the copyright owner the option to seek, either recovery of “the actual damages suffered by him or her as a result of the infringement plus any of the infringer’s profits that are attributable to the infringement...” or “... to recover instead of actual damages ... an award of statutory damages ... in a sum of not less than $250 or more than $10,000 as the Court considers just.”

Plaintiffs herein have elected to seek statutory damages and I find that, on the record of this case, the plaintiffs should be awarded statutory damages of $1,500 for each of the six violations claimed and I further find, on the basis of the uncontradicted affidavit of Mr. Smeallie, that plaintiffs should recover a reasonable attorney fee in the amount of $700.

Order accordingly.

JUDGMENT

In accordance with memorandum filed this date, it is ORDERED:

1. That the plaintiffs recover of the defendant the sum of Fifteen Hundred Dollars ($1,500.00) on each of the six counts of the complaint, for a total of $9,000.00, plus reasonable attorneys’ fees in the amount of Seven Hundred Dollars ($700.00), for a total recovery of $9,700.00, plus costs and interest.

2. That the defendant and all persons acting under the direction, control, permission or authority of the defendant are hereby enjoined and restrained permanently from publicly performing, or causing or permitting the public performance, of the musical compositions “Lyin’ Eyes,” “Ventura Highway,” “Blowin’ In The Wind,” “Anticipation,” “Bad, Bad Leroy Brown” and “Danny’s Song” in defendant’s premises known as the Colonial Inn, or in any other premises owned, controlled or conducted by the defendant, and from aiding or abetting the public performance of said compositions.


author: EDELSTEIN, District Judge:

text:
    UNITED STATES of America, v. John DeFABRITUS, Defendant.
    No. 85 Cr. 144 (DNE).
    United States District Court, S.D. New York.
    April 11, 1985.

      Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City (Raymond A. Levites, New York City, of counsel), for U.S.
    Stillman, Friedman & Shaw, P.C., New York City (Charles A. Stillman and Peter A. Chavkin, New York City, of counsel), for defendant John DeFabritus.
   OPINION AND ORDER

EDELSTEIN, District Judge:

In an Indictment filed February 26, 1985, defendant, John DeFabritus (“DeFabritus”), is charged with conspiracy to defraud the United States and with numerous substantive violations of the federal income tax laws. DeFabritus has moved to dismiss the indictment on a number of grounds and to compel the government to provide him with a bill of particulars.

The indictment contains ten counts. Count One charges DeFabritus with conspiring to defraud the United States and to commit violations of the Federal income tax laws, in violation of 18 U.S.C. § 371. In substance, this count alleges that DeFabritus, the senior vice-president of ARC Electrical Construction Company (“ARC”) and William Callahan, formerly executive president and treasurer of ARC and now deceased, together with other employees and third party vendors of ARC, conspired to interfere with the proper operation of the Internal Revenue Service (“IRS”) by depriving it of accurate information necessary to compute and assess the individual tax liability of DeFabritus and other key ARC executives for the years 1978 through 1980, and the corporate tax liability of ARC for the same time period.

The remaining nine counts charge DeFabritus with violations of the tax laws flowing from his participation in the alleged conspiracy. Counts Two through Four charge DeFabritus with evasion of his individual income taxes, amounting to approximately $149,039.00 for the years 1978 through 1980, in violation of 26 U.S.C. § 7201. Counts Five through Seven charge DeFabritus with falsely subscribing to his individual income tax returns for the same years, in violation of 26 U.S.C. § 7206(1). Counts Eight through Ten charge DeFabritus with aiding, abetting and assisting in the preparation and filing of falsified and intentionally misleading corporate tax returns for ARC for the calendar years 1978 through 1980, in violation of 26 U.S.C. § 7206(2).

I. Motion to Strike “Legally Unsupportable Allegations”.

DeFabritus moves to strike allegations in the indictment that relate to his failure to declare as income the value of a house he now owns that was allegedly built for him by his employer, ARC. DeFabritus contends that he purchased the home at its appraised value and that the money and services provided by ARC to build the house were interest free loans. In support of this contention, DeFabritus cites a loan agreement with ARC, which was executed on August 17, 1981, three years after construction of the house had begun and eight months after the issuance by the Town of East Hampton of the house’s certificate of occupancy. Under the loan agreement De-Fabritus acknowledged a debt to ARC in the amount of $265,000.00, the appraised value of the house, for construction of the house. The agreement also provided that in consideration of DeFabritus’s continued service for ARC, ARC would allow DeFabritus additional time to repay the “loan.” DeFabritus also cites a written agreement entered into October 15, 1981, in which DeFabritus acknowledged an indebtedness of $165,000.00 to ARC’s Pension Trust. DeFabritus states that the “facts are essentially undisputed between the parties” and that as a matter of law the acts as alleged in the indictment are not unlawful.

The government, however, presents a somewhat different factual background than that of the defendant. The government contends that the house, furniture and garden constitute concealed compensation to DeFabritus for which there was no intention to “repay” prior to the commencement of the investigation by the IRS into the financial affairs of ARC and its senior employees in the summer of 1980. The government contends that the 1981 “loan” agreements between ARC and DeFabritus were drafted after and in response to the commencement of the criminal investigation, and that prior to the execution of these agreements there is no evidence of any intention by DeFabritus to repay ARC for the construction of the house. Moreover, the government contends that the house did not take three years to complete, but was substantially completed and in periodic use by the defendant during the summer of 1979.

There is sufficient probable cause of criminal liability under the government’s version of what the defendant characterizes as a loan. Therefore, the court cannot strike these allegations from the indictment; it is jury’s role, not the court’s, to determine if the facts, as they find them, support the charges in the indictment.

II. Dismissal of the Indictment based on erroneous admission of evidence to the Grand Jury.

DeFabritus moves to dismiss the indictment based on the admission of erroneous evidence to the Grand Jury, specifically, the evidence regarding the home discussed above. Aside from the more than $270,-000.00 of income attributable to the house, the indictment further charges that DeFabritus failed to declare approximately $25,-000.00 of taxable income which he obtained over a three year period. DeFabritus contends that because, as a matter of law, he had no tax liability with respect to the home, the “erroneous” introduction before the Grand Jury of this $270,000.00 worth of undeclared taxable income irremediably prejudiced the Grand Jury. This motion is denied.

A facially valid indictment cannot be attacked based on the sufficiency of the evidence presented to the Grand Jury in the absence of gross abuse or purposeful deception by the prosecutor. Costello v. United States, 350 U.S. 359, 363-64, 76 S.Ct. 406, 408-09, 100 L.Ed. 397 (1956); see United States v. Hogan, 712 F.2d 757 (2d Cir.1983) (dismissal of indictment because of prosecutorial misconduct). There has been no such showing in this case. In United States v. Bari, 750 F.2d 1169 (2d Cir.1984), the court stated that “[t]he admission of evidence within the realm of colorable relevance is not misconduct calling for the extreme remedy of dismissal of the indictment even if the prejudicial effect of such evidence outweighs its probative value.” Id. at 1177.

The evidence regarding the home was clearly relevant and does not provide a basis to dismiss the indictment. Further, it is not clear that the admission of the evidence was “erroneous.” The characterization of the admission of this evidence as “erroneous” is based on the motion to strike the allegations pertaining to the home transaction as “legally unsupportable.” This motion is denied for the reasons stated above. There is sufficient “probable cause” to support the government’s contentions regarding the house to uphold the indictment.

Finally, the defendant assumes that the indictment must be dismissed if the court agrees with his version of the home transaction. The court, however, cannot assume that if the Grand Jury had not heard the evidence regarding the house, it still would not have indicted DeFabritus for not declaring approximately $25,000.00 of taxable income over a three year period, which saved DeFabritus $9,800.00 in taxes that would have been due and owing.

III. Motion to dismiss based on improper venue.

DeFabritus moves to dismiss various counts of the indictment based on improper venue. The government does not oppose the motion with regard to Counts Five and Six. Therefore, Counts Five and Six of the indictment are dismissed without prejudice to seeking an indictment in the proper venue.

Defendant asserts that the Southern District of New York is the improper venue for all but two of the remaining counts of the indictment. Counts Two, Three and Four allege income tax evasion in violation of 26 U.S.C. § 7201. DeFabritus contends that on a charge of attempted evasion, venue lies where the tax return was prepared, signed or filed. Because the returns charged in Counts Two and Three were neither signed, prepared or filed in the Southern District, DeFabritus contends that venue in this district is improper. The act of attempted evasion, however, consists not only of the preparation and filing of the return, but the preparation of the underlying documents supporting the return. Venue is proper “wherever the attempt to evade taxes was begun, continued, or completed.” United States v. Slutsky, 487 F.2d 832, 839 (2d Cir.1973), cert. denied, 416 U.S. 937, 94 S.Ct. 1937, 40 L.Ed.2d 287 (1974). The alleged acts regarding the false petty cash vouchers which are part of the attempted evasion alleged are therefore part of the attempt charged. Where the evasion charge is based on the making of false records, proper venue for an evasion charge includes the district in which the corporation maintaining those records has its principle place of business. Beaty v. United States, 213 F.2d 712 (4th Cir.1954), vacated mem., 348 U.S. 905, 75 S.Ct. 312, 99 L.Ed. 710 (1955) (vacated for re-examination in light of “net worth decisions” in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), Friedberg v. United States, 348 U.S. 142, 75 S.Ct. 138, 99 L.Ed. 188 (1954), Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954), and United States v. Calderon, 348 U.S. 160, 75 S.Ct. 186, 99 L.Ed. 202 (1954)). These acts concerning the petty cash vouchers, which are alleged to have occurred in this district, establish a sufficient basis for venue in this court for the charges of attempted evasion of income tax.

Defendant contends that under the provisions of 18 U.S.C. § 3237(b), he may elect to be tried in the district where he resides, in this case, the Eastern District of New York. Section 3237(b), however, applies only to offenses involving “use of the mails.” The allegations in Counts Two, Three and Four, the evasion counts, do not involve “use of the mails” within the meaning of Section 3237(b). In In re United States (Clemente), 608 F.2d 76 (2d Cir.1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1834, 64 L.Ed.2d 260 (1980), the court held that Section 3237(b) applies “at most, to tax prosecutions that involve the use of the mails in the sense that a mailing, whether or not alleged in the indictment, is the basis on which the prosecution seeks to establish venue in a district other than the taxpayer’s district of residence.” Id. at 81. In this case, as in Clemente, “the Government does not rely on the mailing of any item to establish venue in a district other than the taxpayer’s district of residence,” id. at 81 n. 7. Accordingly, because the government will attempt to show at trial that DeFabritus attempted to evade taxes in the Southern District of New York, venue is proper.

Defendant “recognize[s] that the law in this circuit is not consonant with [his] position,” however he asks the court to depart from the holding in Clemente because it was “based on an erroneous reading of the plain terms of § 3237 and its legislative history and because it has been roundly criticized by commentators and rejected by every other court.” Memorandum in Support of Motion at 17 n. *. This court, however, is bound by the law in this circuit. United States v. Posner, 549 F.Supp. 475, 476-77 n. 1 (S.D.N.Y.1982) (following Clemente rule). Moreover, the defendant’s assertions regarding the criticism of Clemente are not accurate. Although it is a minority view, the holding in Clemente has been adopted by the Fourth Circuit, see In re United States (Nardone), 706 F.2d 494, 496 (4th Cir.), cert. denied, — U.S. -, 104 S.Ct. 496, 78 L.Ed.2d 689 (1983); United States v. Dorison, 573 F.Supp. 809, 811 (S.D.W.Va.1983), cert. denied, — U.S. -, 104 S.Ct. 2346, 80 L.Ed.2d 819 (1984), and supported by at least one commentator, Note, Transfer of Venue in Income Tax Prosecutions: 18 U.S.C. § 3237(b)’s Use of the Mails Requirement, 53 Fordham L.Rev. 937 (1985). The court agrees with the reasoning in Clemente, in that it “is faithful to the result intended by Congress, but avoids the judicial inefficiency and duplicative proceedings that would be the inevitable result of a broader interpretation” of Section 8237(b), Nardone, supra, 706 F.2d at 496.

Counts Eight, Nine and Ten allege that DeFabritus aided and assisted in the filing of false corporate tax returns, in violation of 26 U.S.C. § 7206(2). Venue for the charge of aiding and assisting in the preparation and presentation of fraudulent income tax returns is the same as for the predicate charge of preparation and presentation of the return. United States v. Kelley, 105 F.2d 912 (2d Cir.1939). The alleged acts of aiding and assisting which consist of the payment of petty cash from ARC took place in the corporate offices of ARC in Manhattan. These acts are sufficient to place venue in this district.

IV. Multiplicity.

DeFabritus contends that Counts Five through Seven, charging filing of a false return for a particular year and Counts Two through Four, charging attempted evasion of income tax for that same year are multiplicitous and therefore must be dismissed. A defendant may be charged with two crimes even though both arise from the same facts. See United States v. Lodwick, 410 F.2d 1202 (8th Cir.), cert. denied, 396 U.S. 841, 90 S.Ct. 105, 24 L.Ed.2d 92 (1969). Even though both offenses may arise from the same occurrence, the elements necessary to prove the two crimes differ. The lesser included offense, however, will be dismissed “[i]f there is no factual dispute concerning an element which distinguishes the offenses.” United States v. Harary, 457 F.2d 471, 478 (2d Cir.1972). The court, therefore, will consider dismissing the lesser included offense only if the defendant enters into a stipulation with the government regarding the elements that distinguish the two offenses. This is the only way the court can be assured that there is no factual dispute as required by Harary. In the absence of a stipulation, the court cannot make a determination regarding the facts of this case until evidence has been presented at trial. Only at that time can a decision be made regarding the dismissal of any of the counts based on multiplicity. See United States v. Klein, 474 F.Supp. 1243, 1246 n. 6 (S.D.N.Y.), aff’d mem., 614 F.2d 1292 (2d Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 853 (1980).

V. Preindictment Delay.

DeFabritus moves to dismiss the indictment based on. a violation of his constitutional right to due process caused by the delay in seeking an indictment. The indictment concerns violations of the tax laws for returns for the years 1978, 1979 and 1980. The indictment was filed on February 26, 1985.

Defendant admits that he has a “large burden” in moving to dismiss the indictment based on preindictment delay. Memorandum in Support of Motion at 21. In attempting to satisfy this burden, the defendant contends that he will suffer extreme prejudice in the preparation of his case because of the length of the delay in seeking an indictment. While “proof of prejudice is generally necessary” to a due process claim, a due process inquiry must also consider the reasons for delay. United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). The question is “whether the action complained of ... violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions,’ and which define ‘the community's sense of fair play and decency Id. (quoting Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935) and Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952)).

The government contends that in order to gain a dismissal of the indictment, the defendant must demonstrate that the delay was intended “to gain tactical advantage over the accused,” United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). The defendant, on the other hand, contends that a delay brought about by negligence on the part of the prosecutor is sufficient to warrant dismissal.

It is unclear whether prosecutorial negligence is sufficient to require dismissal of an indictment. In United States v. Birney, 686 F.2d 102 (2d Cir.1982), the court specifically declined to express an opinion on this issue. Id. at 105 n. 1. Other than this reference, this court has not found a single case which bases a decision to dismiss an indictment on mere prosecutorial negligence. While at least one court has considered prosecutorial negligence in its decision to dismiss an indictment, United States v. Townley, 665 F.2d 579, 586 (5th Cir.) (prosecutorial overload and insufficient personnel, if coupled with substantial prejudice, may be entitled to slight weight in finding a deprivation of due process), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982), this is certainly a minority view. This court will not join this minority and would require a showing of improper motive to dismiss the indictment. The defendant has not offered any evidence of such motive. Under these circumstances, the court does not find that the fundamental conceptions of justice which define the community’s sense of fair play and decency have been violated. The motion to dismiss the indictment based on due process considerations is denied.

VI. Striking Certain Language from the Indictment.

Defendant moves to strike a number of terms from the indictment. In order to grant a motion to strike surplusage from an indictment, it must be clear that the allegations are not relevant to the charge and are inflammatory and prejudicial. United States v. Kemper, 503 F.2d 327, 329 (6th Cir.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 824 (1975); United States v. Pilnick, 267 F.Supp. 791, 802 (S.D.N.Y.1967). The standard is exacting. United States v. DePalma, 461 F.Supp. 778, 797 (S.D.N.Y.1978). Each statement that the defendant claims is surplusage will be addressed individually with regard to this standard.

The indictment contains the phrase “slush fund.” Specifically, the indictment states: “It was a further object of this conspiracy for Arc to maintain false books and records to create a “slush fund” for the benefit of William Callahan (now deceased), and to be otherwise made use of as certain executives saw fit.” Indictment ¶ 17. The indictment may properly include any allegation that is “relevant to the case and will constitute part of the government’s proof at trial.” United States v. Esposito, 423 F.Supp. 908, 911 (S.D.N.Y.1976). The evidence regarding the secretive accumulation of cash would be probative of a scheme to avoid the payment of taxes and is thus properly included in the indictment. While there are words less prejudicial than “slush fund” that may be used to characterize the alleged accumulation of cash, the court does not have broad powers to amend an indictment by changing the wording of the indictment, Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). The words “slush fund,” therefore, will not be striken from the indictment.

The defendant objects to the use of the words “among other things” and “at least” in the indictment. The words “among others” have been stricken from an indictment where they serve no useful purpose and allow the jury to draw the inference that the defendant is accused of crimes not charged in the indictment. United States v. Brighton Building & Maintenance Co., 435 F.Supp. 222, 230 (N.D.Ill.1977), aff’d, 598 F.2d 1101 (7th Cir.1979); see also United States v. Freeman, 619 F.2d 1112, 1118 (5th Cir.1980) (reference in indictment to particular events that “included, but were not limited to, the following” should have been treated as surplusage), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981).

These cases are pursuasive with regard to the words “among other things” in paragraphs 18(a) and 18(e) of the indictment. This language does not add anything to the charges in the indictment and would lead the jury to draw improper inferences regarding other crimes not charged in the indictment. The words “among other things” are therefore to be stricken from paragraphs 18(a) and 18(e) of the indictment. By striking this language, the court in no way forecloses the government from presenting any proof relevant to the charges at trial. See United States v. Pope, 189 F.Supp. 12, 26 (S.D.N.Y.1960).

Defendant also moves the court to strike the term “Executive” in Count One, paragraph one, because DeFabritus is only a vice-president of the corporation. The court finds nothing inherently prejudicial, inflammatory or misleading in the term “Executive,” as applied to the charges in the indictment and will therefore not strike this term from the indictment.

Defendant also objects to the government’s repeated use of the term “now deceased” in referring to William Callahan. Mr. Callahan was murdered in 1981 and his death remains unsolved. Defendant contends that the repeated use of the term “now deceased” “is bound to suggest to the jury that there is something in his death which is relevant to the defendant’s guilt in this case.” Memorandum in Support of Motion at 28. The court does not agree. Defendant does not dispute the government’s right to refer once to the fact that Callahan is dead. Id. For clarity’s sake it is appropriate that his death be referred to whenever his name is mentioned in the indictment. Moreover, the government has stated its believe that defendant was in no way responsible for Callahan’s death and that it would not object to the court so instructing the jury. Government’s Memorandum at 24, n. *.

VII. Bill of Particulars.

The government has responded to all but three of the defendants Bill of Particulars. It is within the discretion of the trial judge to determine whether a bill of particulars must be filed and its scope. United States v. Cohen, 518 F.2d 727 (2d Cir.), cert. denied, 423 U.S. 926, 96 S.Ct. 270, 46 L.Ed.2d 252 (1975). That discretion must be informed, however, by certain well established considerations: whether the requested particularization is necessary to a defendant’s preparation for trial and the avoidance of unfair surprise at trial. United States v. Kendall, 665 F.2d 126 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 140 (1982). It is not enough that the information would be useful to the defendant; if the defendant has been given adequate notice of the charges against him, the government need not be required to disclose additional details about its case. The court must be cognizant of the fact that a bill of particulars confines the government’s evidence at trial to the particulars furnished. United States v. Boffa, 513 F.Supp. 444, 484-85 (D.Del.1980). “Thus, the court is required to balance restricting the Government’s proof against protecting defendants from suprise.” Id. at 485. Based on these considerations, the outstanding requests for particulars are denied.

The defendant seeks a list of the petty cash vouchers which the government will claim DeFabritus did not report as income. The government has asserted that the defendant has been provided with access to all vouchers that will be offered at trial pursuant to Rule 16 of the Federal Rules of Criminal Procedure. This disclosure is sufficient to permit the defendant to prepare for trial and the request is therefore denied.

The defendant also seeks a list of all overt acts not listed in the indictment. A defendant does not ordinarily “need” detailed evidence of the conspiracy to prepare for trial. United States v. Wilson, 565 F.Supp. 1416 (S.D.N.Y.1983). The indictment lists twenty-six overt acts; this information will surely permit the defendant to prepare adequately for trial. This request clearly constitutes an attempt to discover the government’s case at trial and will not be permitted. See United States v. Hilliard, 436 F.Supp. 66, 76 (S.D.N.Y.1977).

Finally, the defendant seeks disclosure of “any statement by any coconspirator which the government intends to offer at trial as a coconspiratorial admission by the defendant under Fed.R.Evid. 801(d).” Memorandum in Support of Motion at 30. This request is denied. Certain statements of co-conspirators made during the course of the conspiracy are discoverable under Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure. United States v. Turkish, 458 F.Supp. 874 (S.D.N.Y.1978), aff’d, 623 F.2d 769 (2d Cir.1980). The court will not impose disclosure beyond that required by Rule 16. The indictment and the discovery made to the defendant thus far adequately apprise the defendant of the charges against him so that he can prepare his defense.

CONCLUSION

The defendant’s motion to dismiss the indictment based on legally unsupportable allegations, Grand Jury prejudice, preindictment delay and multiplicity are denied. The motion for a bill of particulars is denied in all respects. The defendant’s motions to strike surplusage from the indictment and to dismiss counts based on improper venue are granted in part and denied in part. Counts Five and Six are hereby dismissed without prejudice.

      . This motion affects the substantive counts, Two through Seven, and portions of Count One, the conspiracy count.

      . DeFabritus contends that the house did not constitute income to him until January of 1981 when the Town of East Hampton issued the certificate of occupancy. The issue of when DeFabritus had dominion over the property alleged in the indictment, sufficient for the property to constitute income within the meaning of the income tax laws, is properly a jury question. United States v. Dixon, 698 F.2d 445, 446 (11th Cir.1983).

      . In examining the evidence presented to a grand jury, the court is not bound by the same rules that apply to the introduction of evidence at trial. For example, the court in Bari, held that Rule 403 of the Federal Rules of Evidence which permits a court to exclude evidence if the probative value is substantially outweighed by the danger of unfair prejudice does not apply to grand jury proceedings. 750 F.2d at 1177.

      . Defendant concedes that venue is proper for the counts relating to the 1980 tax return. Memorandum of Law in Support of Motion at 15. Counts Four and Seven involve the 1980 return.

      . Venue is proper with respect to Count Seven because the return was prepared in the Southern District of New York.

      . The commentator advocates adoption of the Clemente view, provided the defendant has some "minimum contact” with the government's chosen forum. Although this is not the law of this circuit, even under this approach the government has alleged sufficient contacts with the Southern District of New York to meet the "minimum contacts” test. The government alleges that "[a]mong other things, DeFabritus’ false petty cash vouchers in each of the three years were made and submitted at Arc’s offices in New York.” Government’s Memorandum at 14-15. Defendant's contacts with the Southern District of New York are certainly “more than negligible.”

      . The defendant has moved to dismiss Count One, the conspiracy count, based on improper venue. The defendant fails, however, to address Count One in his memorandum. Based on the above analysis, the Southern District of New York is the proper venue for the conspiracy charge.

      . As noted above, Counts Five and Six are dismissed. Therefore, defendant’s motion with respect to the multiplicity of these counts is moot. Count Seven is arguably duplicitous only with Count Four.

      . The statute of limitations for tax violations is six years from the filing of the return. The indictment was filed within this period.

      . Were the court to adopt the negligence standard, the outcome would not be altered. The defendant has not demonstrated actual prejudice resulting from the delay in seeking the indictment. DeFabritus contends that the only person other than he who was involved in any discussion relating to the purchase of the house was William Callahan, Sr., who died in 1981. Any prejudice resulting from the loss of this witness, however, is not due to the government’s delay. Even if the government had indicted defendant three years ago, Callahan would not have been alive to testify in this matter. Moreover, defendant’s contention that he will have difficulty remembering the events reflected in cash vouchers signed in 1973 and 1974 is equally unavailing. He would have had the same difficulty in remembering such facts even if the indictment had been filed in 1982, a time when even defendant would have to concede that there was no wrongful pre-indictment delay. See United States v. Carruth, 699 F.2d 1017, 1019-20 (9th Cir.), cert. denied sub nom., Reed v. United States, — U.S. -, 104 S.Ct. 698, 79 L.Ed.2d 164 (1983).

      . The indictment states:
      Rather, the corporate monies were used, among other things, for the construction and improvement of personal residences and for the benefit of themselves and others.
      Indictment ¶ 18(a).
      [T]he defendant and his co-conspirators thus concealed, among other things, the true nature of the payments and their own tax liability for the monies they received by aiding and assisting in the preparation of false corporate tax returns.
      Indictment ¶ 18(e).
      The bogus petty cash vouchers prepared and submitted by the defendant ... total at least $25,000.
      Indictment ¶ 18(d).

      . Rule 16 requires discovery only if the statements are written or recorded or if the statements are made in response to interrogation by a person known by the declarant to be a government agent and the government intends to offer the statement in evidence at trial.