Case 3:04-cr-00373-AET Document 88

Certified by the Supreme Court of New Jersey as a Criminal Trial Attorney Admitted in New Jersey and New York

Filed 03/07/05 Page 1 of 7

162 Broad Street Hightstown, NJ 08520

Isabel McGinty, P.C.

Attorney at Law

Phone: (609) 443-0650 Fax: (609)443-0749 e-mail: imcginty@att.net

March 6, 2005 Honorable Mary L. Cooper, U.S.D.J. United States District Court Clarkson S. Fisher Federal Building and U.S. Courthouse 402 E. State Street, 5th Floor Trenton, NJ 08608 Re: Dear Judge Cooper: At the hearing on the motion to dismiss on March 4, I had asked (and the Court granted) leave of Court to submit thereafter caselaw addressing the issue presented, after the United States Attorneys Office acknowledged during the hearing that it did not dispute that the corporation, Stop Huntingdon Animal Cruelty USA, Inc., was first incorporated on October 17, 2002, and that the Assistant United States Attorney who presented this case to the grand jury had on his desk a copy of the certificate of incorporation manifesting that fact at the time that he presented this case to the grand jury.1 A corporation cannot properly be indicted for alleged crimes committed before the corporation was formed, in the same way that a person cannot properly be indicted for alleged crimes committed before that person was born. See generally United States v. Leader Cheese, 353 F. Supp. 875, 876 (E.D. Wis. 1973); see also United States v. ITT Blackburn Co., 824 F.2d 628, 631-33 (8th Cir. 1987). The indictment must be dismissed where the grand jury named as a defendant a corporation not in existence during the occurrence of all of the acts attributed to it in Counts 2 through 6, and almost all of the acts set forth in Count 1. See Kjonaas Brief in Support of Motion to Dismiss, Jan. 28, 2005, at pp. 18-19 (chronological chart of events that occurred after the Oct. 17, 2002 date of incorporation). As for Count 1, because the term SHAC is used in the indictment to refer not only to the corporation, but also to an unnamed organization, it is impossible to tell which acts are attributed to the named corporate defendant, and which to the unnamed non-party. The unnamed non-party, in turn, as an unincorporated organization, cannot have been indicted at all for the acts at issue in this matter, and Stop Huntingdon Animal Cruelty USA, Inc., did not magically become legally accountable, when it incorporated on October 17, 2002, for past -- or continuing (see footnote 3 below) -- conspiratorial or criminal acts broadly attributable to the unnamed organization. See below at pp. 3-5 (relevant caselaw discussed). The charges against all of the individual defendants, in turn, arise -- according to the express language of the indictment -- out of their affiliation with SHAC. Because the
1

United States v. Stop Huntingdon Animal Cruelty USA, Inc. Crim. No. 04-373 (D.N.J)

A copy of the certificate of incorporation (3 pages) is attached to this letter.

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Letter to the Honorable Mary L. Cooper, U.S.D.J. page 2 corporate defendant did not exist before October 17, 2002, however, it follows that the individual defendants are charged on account of actions that cannot have involved the corporation itself. See Kjonaas Brief, Jan. 28, 2005, at pp. 11-12 (all of the acts attributed to the individual defendants occurred before the corporation came into existence). It appears that, when the indictment attributes to the individual defendants some involvement with SHAC, the indictment has compressed within that designation actions of the corporate defendant, as well as the unnamed nonparty organization. As a result, the indictment is impermissibly vague as to its allegations. The indictment, as to all counts against all defendants, fails the test set forth by the Supreme Court Russell v. United States, 369 U.S. 749 (1962), because it fails to give adequate notice of the charge to each defendant: in case any other proceedings are taken against [the defendant] for a similar offense[,] whether the record shows with accuracy to what extent [the defendant] may plead a formal acquittal or conviction. 369 U.S at 764. Accordingly, the indictment must be dismissed. In the present case, the U.S. Attorneys Office has acknowledged that the only nonhuman defendant named in the indictment is Stop Huntingdon Animal Cruelty USA, Inc., and that that corporation is referred to throughout the indictment as SHAC. The U.S. Attorneys Office has also acknowledged, however, that the term SHAC, as used in the indictment, also includes an otherwise unnamed (and apparently unincorporated) organization first started in the United Kingdom (Indictment, p. 2, 1b), that existed before Stop Huntingdon Animal Cruelty USA, Inc. came to be incorporated. The four corners of the indictment give no suggestion that the grand jury, when it designated the corporate defendant as SHAC, intended the term SHAC not just to refer to the corporation, but also to the unnamed organization from the United Kingdom.2 The indictment attributes to SHAC a long list of actions which form the basis for the acts charged as federal crimes in each of the counts of the indictment. The indictment never specifies whether the actions attributed to SHAC involved the unnamed organization, or the specific corporation Stop Huntingdon Animal Cruelty USA, Inc., or both (e.g., for actions which post-date the incorporation of Stop Huntingdon Animal Cruelty USA, Inc., on October 17, 2002). As a result, the indictment does not give notice to defendant Stop Huntingdon Animal Cruelty USA, Inc., of the charges being made arising out of criminal acts attributed to the corporation, as distinct from any acts attributed to the unindicted organization that came into

We had previously set forth for the Court how the indictment does not sufficiently inform the individual defendants as to when and how they are alleged to have chosen and coordinated at various times the activities of SHAC and the SHAC Website. (Indictment, p. 3, 1b). The United States Attorneys Office has taken the position that the indictments lead-in words -- [a]t times relevant to this Indictment -- give sufficient notice that the events occurred within the time-frame of the specified Counts. But that position is completely rebutted where the U.S. Attorneys Office knew that, at times relevant to the acts alleged in the indictment, the defendant corporation had not yet come into existence, and it could not have had any role in the operation of the SHAC Website until after that incorporation occurred on October 17, 2002.

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Letter to the Honorable Mary L. Cooper, U.S.D.J. page 3 existence at an unspecified earlier date, and which continued in existence, it appears, even after the separate corporation came to be formed.3 Further, the indictment is drafted throughout to attribute to the individual defendants derivative liability -- guilt flowing directly from and as the result of their affiliation with SHAC. As a result, the indictment does not give notice to any of the individual defendants who are alleged to have conspired with defendant Stop Huntingdon Animal Cruelty USA, Inc., whether the indictment has charged them with having conspired with that corporation, or with some otherwise unnamed entity that might be designated at trial as within the general concept of SHAC -- as that term might be construed hereafter to mean, and not as the grand jury defined it in the indictment at paragraph 1b. In United States v. ITT Blackburn Co., 824 F.2d 628 (8th Cir. 1987), the Court of Appeals held that an indictment speaks for itself as to the designation of the specific defendant, In Counts 2 to 6, every act attributed to SHAC or the SHAC Website predated the formation of the corporation, and there are no acts attributed to SHAC or the SHAC Website after October 17, 2002. While Counts 2 to 5 have end dates of December 2002, all allegations relating to the stalking refer to events predating October 2002. See Kjonaas Brief, Jan. 28, 2005, at p. 58 (timetable of stalking allegations). Similarly, in Count 6, all of the acts attributed to SHAC or the SHAC Website predate October 2002, even though the Count is broadly drafted to include time ending through February, 2004. See Indictment, p. 28. The indictment does not allege that the corporation, Stop Huntingdon Animal Cruelty USA, Inc., replaced the unnamed organization, or that the corporation took over from the unnamed organization such functions as that organization (according to the indictment) had already been performing. For example, when the indictment states that SHAC . . . operated a series of websites (Ind., p. 2, 1b), the indictment must attribute such actions to the unnamed organization for the period predating October 17, 2002. But the indictment provides no basis for inferring that the unnamed organization ever ceased to exist, or that it stopped performing such functions as operat[ing] a series of websites, or transferred that function to the corporation after October 17, 2002. It follows, then, that when the indictment attributes actions to SHAC or the SHAC Website after October 17, 2002, there is no basis for concluding that the indictment has now begun to attribute those actions to the corporation, rather than to the unnamed organization. Rather, a consistent reading of the plain language of the indictment requires us to understand that the indictment refers to the unnamed organization, rather than to the corporation, every time that it attributes actions to SHAC or the SHAC Website, for the period of time before October 17, 2002, as well as thereafter. The indictment does not attribute to the corporation any action (particularly, any unlawful conduct at all) for the period of time after the corporation came into existence on October 17, 2002. It follows then that, even as to Count 1, the indictment does not set forth any charge against the corporate defendant for which the defendant Stop Huntingdon Animal Cruelty, Inc. can be held accountable within the terms of each of the Counts of the indictment.
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Letter to the Honorable Mary L. Cooper, U.S.D.J. page 4 and that only the defendant specifically named by the grand jury in the indictment may be compelled to stand trial. 824 F.2d at 633. The case involved a criminal prosecution of the Blackburn division of ITT Corp. (ITT). At the time the case went to trial, Blackburn was an unincorporated division of ITT; ITT, in turn, was a multinational corporation incorporated in Delaware. The criminal indictment of the corporate defendant and two officers of Blackburn had related to alleged violations of the trade embargo on Iran in the early 1980s, during the hostage crisis. ITT had moved pretrial for the dismissal of the indictment, which had identified the corporate defendant as ITT Blackburn Company, a Division of ITT Corp. 824 F.2d at 630. The district court denied the motion, holding that ITT had been properly charged in the indictment. At the end of the trial, the jury was given a verdict form that asked the jury to determine whether Blackburn, rather than ITT, was guilty. The jury returned a verdict of guilty against Blackburn (only) on all counts. ITT argued on appeal that it had been improperly forced to defend at a trial conducted on an indictment naming Blackburn rather than ITT. 824 F.2d at 630. The appellate court reversed the judgment of the district court, and held that ITT, which had not properly been named as a defendant in the indictment, should not have been forced to endure trial on the indictment at issue. 824 F.2d at 633. The ITT Court held that neither Blackburn nor ITT could have properly been named as a defendant in the case (even though there appeared to be no dispute that the grand jury had been presented with sufficient evidence upon which to find that probable cause existed that the Iran trade embargo had been violated as alleged by the Government at the time of the transactions at issue). 824 F.2d at 631. The actions of the division should not have been attributed to the parent company, ITT, on the facts presented, according to the ITT Court. But the Court also found that the Blackburn division, in turn, could not properly have been named as a defendant in the indictment, because, as an unincorporated division, it cannot be sued or indicted, as it is not a legal entity. 824 F.2d at 631 (emphasis added); see Spearing v. National Iron Co., 770 F.2d 87, 88-89 (7th Cir. 1985) (an unincorporated division . . . is not suable in its own right); United States v. BCCI Holdings (Luxembourg), S.A., 833 F. Supp. 32, 37-38 (D.D.C. 1993) (citing and discussing cases holding that unincorporated divisions of a parent corporation cannot be indicted or sued), affd, 46 F.3d 1185 (D.C. Cir.), cert. denied sub nom Chawla v. United States, 515 U.S. 1160 (1995). In the SHAC case, defendant Stop Huntingdon Animal Cruelty USA, Inc., is being forced to defend itself against charges predating its coming into being on October 17, 2002. Although the Government does not dispute that the corporation did not even exist at the time of most of the events attributed in the indictment to SHAC and the SHAC Website, the Government has nonetheless sought and obtained from the grand jury an indictment that charges defendant Stop Huntingdon Animal Cruelty USA, Inc., with having committed these acts as a principal and/or a conspirator, and that all of the individual defendants conspired or acted with the corporation at the times that the various acts were committed by the corporation. The allegations have no basis in fact since, as the Government must concede, the corporation did not exist at the time the events are alleged to have occurred.

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Letter to the Honorable Mary L. Cooper, U.S.D.J. page 5

Indeed, all of the actions attributed to SHAC, as to Counts 2 through 6, predate the date of incorporation. When the indictment attributes the actions to SHAC, then, the actions must refer to the actions of some entity other than Stop Huntingdon Animal Cruelty USA, Inc., and the corporation Stop Huntingdon Animal Cruelty USA, Inc. cannot be convicted of having committed the acts, or having conspired with others in connection with the offenses charged. See United States v. Sherpix, Inc., 512 F.2d 1361, 1367 (D.C. Cir. 1975) (It is fundamental that the indictment must inform an accused of the nature of the charges against him, and it is a necessary corollary that the indictment must also give the accused notice that he is in fact being accused.). Further, the unnamed separate organization cannot be charged in the indictment as a defendant, because that organization from the United Kingdom is not a corporation (Indictment, p. 2, 1b). That unnamed organization is not comparable to a division of Stop Huntingdon Animal Cruelty USA, Inc., because the organization existed before the corporation ever came into being. See United States v. Sherpix, Inc., 512 F.2d at 1367 n. 7 ([A] necessary prerequisite to conviction of the corporation is that it be designated as a defendant and charged as a conspirator by appropriate factual allegations.). The Government cannot simply claim that the term SHAC is to be construed with sufficient breadth to sweep within the scope of the indictment both the corporation, and the unnamed organization that predated it, and that the defendant named in the indictment as Stop Huntingdon Animal Cruelty USA, Inc., should be construed as loosely and generally encompassing both of those entities. Federal courts have required that the indictment must accurately set forth the name of the incorporated defendant. For example, in United States v. Leader Cheese Co., 353 F. Supp. 875 (E.D. Wis. 1973), the Government sought to prosecute a cheese company for polluting a creek in violation of federal criminal laws. The indictment named the Leader Cheese Co. as a defendant. The president of the Heim Cheese Company, who had been served with the indictment, moved to dismiss on the ground that there was no person or entity in existence by the name of Leader Cheese Co. The Government opposed the motion on the ground that the two company names -- Heim Cheese and Leader Cheese -- were used interchangeably. The Government did not dispute that the Leader Cheese Company had forfeited its corporate charter prior to 1971, although the indictment in which it was the named defendant was set to commence trial on January 22, 1973. 353 F. Supp. at 876. The district court dismissed the indictment, holding that it failed to meet the test, cited above (in the first paragraph on page 2), which had been set by the Supreme Court in Russell v. United States. See Leader Cheese, 353 F. Supp. at 876 (quoting Russell v. United States, 369 U.S. at 764). The Leader Cheese Court held: It may be true, as the government asserts, that the name Leader Cheese Company is used interchangeably with Heim Cheese Co., Inc.; it may also

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Letter to the Honorable Mary L. Cooper, U.S.D.J. page 6 be true that Heim Cheese Co., Inc. is the only cheese manufacturer in the vicinity of Lau Creek [site of the alleged pollution]. The government urges that Heim Cheese., Inc. has suffered no prejudice as a result of the misnomer, but such information is not readily apparent from the record before this court nor is it to be found within the four corners of the indictment. Accordingly, the indictment must be dismissed. [353 F. Supp. at 876]. It is undisputed in this case that the grand jury has indicted a corporation that did not exist until October 17, 2002, and that the U.S. Attorneys Office knew that fact when it sought and obtained from the grand jury the indictment under which all of the defendants have been charged. Here, where the U.S. Attorneys Office knew that the defendant named Stop Huntingdon Animal Cruelty USA, Inc., did not even exist for most of the time during which it is alleged in the indictment to have been involved in the criminal activity attributed to it therein, an issue of basic fairness looms large. See generally United States v. Serubo, 604 F.2d 807, 817 (3d Cir. 1979) ([W]hile in theory a trial provides the defendant with a full opportunity to contest and disprove the charges against him, in practice, the handing up of an indictment will often have a devastating personal and professional impact that a later dismissal or acquittal can never undo. Where the potential for abuse is so great, and the consequences of a mistaken indictment so serious, the ethical responsibilities of the prosecutor, and the obligation of the judiciary to protect against even the appearance of unfairness, are correspondingly heightened.). It is, at the very least, surprising that the U.S. Attorneys Office presented a case in which it knew that the corporation it sought to have named as the lead defendant in the case did not exist for most of the period during which the U.S Attorneys Office attributed to it criminal acts. The non-existence of the corporation was a key fact; it directly negated the guilt of the corporation. It should have been disclosed to the grand jury. Had the grand jury properly been informed of that undisputed fact, as well as the relevant law, it surely would not have indicted the corporation in the manner reflected in the indictment, and it surely would not have indicted the individual defendants for having conspired during the same period with a corporation that had not yet even come into existence. See United States Attorneys Manual 9-11.233, Presentation of Exculpatory Evidence (Aug. 2002; available Mar. 6, 2005 at http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/11mcrm.htm#9-11.254) (It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person.). The corporation did not exist on the dates of most of the events at issue (e.g, all events attributed to the corporate defendant for Counts 2 to 6). It is impossible that the corporate defendant committed any criminal acts relating to those events. It follows inexorably that no probable cause existed at all on which to have sought from the grand jury an indictment as to those counts (as well as most of Count 1).

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Letter to the Honorable Mary L. Cooper, U.S.D.J. page 7 The Supreme Court, in United States v. Williams, 504 U.S. 36 (1992), addressing the history and function of the grand jury, stated that [i]n fact the whole theory of its function is that it . . . serv[es] as a kind of buffer or referee between the Government and the people. 504 U.S. at 47. The Williams Court, in [r]ecognizing this tradition of independence, then reaffirmed that the Fifth Amendments constitutional guarantee presupposes an investigative body acting independently of either prosecuting attorney or judge . . . . 504 U.S. at 49 (internal citations omitted; emphasis added); see Wood v. Georgia, 370 U.S. 375, 390 (1962) ("Historically, this body [the grand jury] has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.). That tradition of independence broke down in this case. See United States v. Serubo, 604 F.2d at 816 (the right to indictment by an unbiased grand jury is guaranteed by the fifth amendment [emphasis added; citing Costello v. United States, 350 U.S. 359 (1956)]). For this additional reason, the indictment should be dismissed as to all counts against all defendants. Respectfully submitted,

Isabel McGinty Attachment: Certificate of Incorporation, Oct. 17, 2002 (3 pages) cc. AUSA Charles McKenna AUSA Ricardo Solano Andrew Erba, Esq. (for SHAC) H. Louis Sirkin, Esq. (for Lauren Gazzola) Hal Haveson, Esq. (for Jacob Conroy) James R. Murphy, Esq. (for Joshua Harper) Jerome A. Ballarotto, Esq. (for Andrew Stepanian) Robert Obler, Esq. (for Darius Fullmer) Joshua Markowitz, Esq. (for John McGee)