Wire fraud counts won’t be dismissed

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Where a defendant argued for dismissal of five counts of wire fraud because the superseding indictment did not plead the target of the scheme was a financial institution, her motion was denied. The indictment charged only general wire fraud, which did not require a financial institution to be impacted.

Background

Defendant was named in a 40-count superseding indictment, charging her with 34 counts of aiding and assisting in preparation of false tax returns, five counts of wire fraud and one count of bank fraud. The superseding indictment also contains a forfeiture count pertaining to the wire fraud and bank fraud counts.

On Nov. 3, 2020, the first day of defendant’s jury trial, the court heard oral argument on defendant’s motion to dismiss the wire fraud counts and the related forfeiture provision of her pending superseding indictment. The court denied the motion from the bench. This opinion memorializes the court’s reason for this decision.

Analysis

The wire fraud counts allege that, between Aug. 22 and Sept. 20, 2019, defendant devised a fraudulent scheme to wrongfully obtain small business loans by submitting materially false and fraudulent bank statements in support of her applications for such loans. Defendant argues that these counts are defective and must be dismissed because they do not allege that FORA Financial, the alleged target of defendant’s fraudulent scheme, “is a federally insured or federally licensed ‘financial institution’ pursuant to the statutory definition.”

The court initially notes that defendant’s motion was untimely. Defendant filed this motion three months after the motions’ cutoff deadline of July 8, 2020, and after the court denied defendant’s subsequent request for leave to file additional motions as they become appropriate. However, the government’s response does not argue that defendant’s motion should be dismissed as untimely. Because the government did not raise this issue, the court will proceed to address the merits of defendant’s motion.

The court finds that the wire fraud statute defines two distinct offenses: general wire fraud, punishable by a maximum 20 years of imprisonment, and wire fraud that affects a financial institution, punishable by a maximum 30 years of imprisonment. Here, defendant argues that the superseding indictment defectively charge her with wire fraud affecting a financial institution.

However, the court finds that defendant is mistaken and that the superseding indictment is clear in that defendant is charged with general wire fraud. Specifically, the court finds that Counts 35-39 the superseding indictment are expressly labeled as wire fraud and that there is no mention of defendant’s scheme impacting a financial institution. Moreover, there is no indication in Counts 35-39 of the superseding indictment that the government sought to allege that FORA Financial was a financial institution. As a result, the court finds that the superseding indictment only seeks to charge defendant with general wire fraud in Counts 35-39.

Defendant’s motion to dismiss denied.

United States v. Tull, Case No. 2:20-cr-9, Nov. 9, 2020. EDVA at Norfolk (Doumar). VLW 020-3-557. 10 pp.