LINDA R. READE, District Judge.
The matters before the court are Defendant William B. Aossey, Jr.'s Motion to Dismiss Count I
On December 5, 2014, a grand jury returned a nineteen-count Superseding Indictment ("Indictment") (docket no. 15). Count I of the Indictment charges Defendant with conspiring to make and use materially false statements and documents; sell misbranded meat; and commit mail and wire fraud in violation of 18 U.S.C. § 371. Counts II through VIII of the Indictment charge Defendant with seven counts of making a false statement on an official export certificate provided for in regulations prescribed by the Secretary of Agriculture in violation of 21 U.S.C. § 611. Counts IX through XV of the Indictment charge Defendant with seven counts of wire fraud in violation of 18 U.S.C. § 1343. Counts XVI through XVIII charge Defendant with three counts of money laundering in violation of 18 U.S.C. § 1957(a). Count XIX charges Defendant with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1956(h). Counts I and IX-XVIII contain forfeiture allegations.
On June 9, 2015, Defendant filed the Motion to Dismiss Count I. On June 10, 2015, Defendant filed the Motion to Dismiss Counts IX through XIX. On June 15, 2015, the government filed a Resistance to the Motion to Dismiss Count I (docket no. 49). On June 18, 2015, the government filed a Resistance to the Motion to Dismiss Counts IX through XIX (docket no. 57). Defendant asked for oral argument. The court determined that oral argument was unnecessary, however the court gave Defendant time to argue the Motions at the Final Pretrial Conference.
Federal Rule of Criminal Procedure 12(b) provides that a defendant may move before trial to allege "a defect in the indictment." Fed. R. Crim. P. 12(b)(3)(B). "[T]o be valid, an indictment must allege that the defendant performed acts which, if proven, constitute the violation of law for which he [or she] is charged. If the acts alleged in the indictment do not constitute a violation of law, the indictment is properly dismissed." United States v. Polychron, 841 F.2d 833, 834 (8th Cir. 1988).
Defendant makes two arguments in support of the Motions. First, Defendant argues that "he cannot be held criminally liable for the misbranding allegations in [the Indictment] . . . [p]ursuant to [21 U.S.C. §] 381(e)(1)." Motion to Dismiss Count I at 1. Next, Defendant argues that "the government's allegations that Defendant intentionally mislabeled the slaughterhouse of origin and/or made false statements on export and letterhead certificates sent to the USDA to obtain an export license do not constitute a basis for mail or wire fraud." Motion to Dismiss Counts IX through XIX at 1. The government resists the Motions because they were not timely filed and because the Motions otherwise have no merit.
The government argues that the Motions are untimely. The court agrees. Pursuant to the Trial Management Order (docket no. 26), "[a]ll motions . . ., including motions . . . to dismiss indictment, must be served and filed within 30 days after the date of the first arraignment." Trial Management Order at 2 (emphasis omitted). Moreover, the court ordered that trial-related motions "must be served and filed as soon as practicable, but at least 30 days before the commencement of trial." Id.
Defendant waived personal appearance on the Superseding Indictment on December 10, 2014. Defendant did not request and did not receive extensions for nontrial-related motions and, therefore, the deadline to file a motion to dismiss was January 9, 2015. Defendant did not file the Motions until June 9, 2015 five months after the deadline to file such motions. In addition, the deadline to file trial-related motions was June 8, 2015. Defendant filed the Motions after the deadline for filing trial-related motions. Because Defendant did not timely file the Motions, the court shall deny the Motions. Despite the court's ruling, the court shall nonetheless address the merits of Defendant's arguments.
Defendant argues that, "[p]ursuant to 21 U.S.C. § 381(e)(1)" "he cannot be held criminally liable for the misbranding allegations in his indictment." Motion to Dismiss Count I at 1. The government argues that the court should deny the Motion to Dismiss Count I because "the Motion clearly misapplies [Federal Rule of Criminal Procedure] 12" and "the Motion clearly fails because the entire basis for the Motion 21 U.S.C. § 381(e) has no application whatsoever to this case." Resistance to the Motion to Dismiss Count I at 5.
The court agrees with both of the government's arguments. Federal Rule of Criminal Procedure 12 provides that a defendant may challenge the sufficiency of an indictment by pretrial motion. See Fed. R. Crim. P. 12(b)(3)(B).
United States v. Carter, 270 F.3d 731, 736 (8th Cir. 2001). "In reviewing the sufficiency of an indictment, [courts] accept the government's allegations as true, without reference to allegations outside the indicting document." United States v. Steffen, 687 F.3d 1104, 1107 n.2 (8th Cir. 2012) (quoting United States v. Farm & Home Sav. Ass'n, 932 F.2d 1256, 1259 n.3 (8th Cir. 1991)) (internal quotation marks omitted). Here, even if 21 U.S.C. § 381(e)(1) provided a defense to the Indictment, which it does not, the Indictment is nonetheless sufficient and such evidence would properly presented to the jury because it adequately charges Defendant with the elements of the crime.
In addition, 21 U.S.C. § 381(e)(1) is wholly inapplicable to the charged offenses in the Indictment. 21 U.S.C. § 381(e)(1) provides that
21 U.S.C. § 381(e)(1) (emphasis added). The Indictment charges Defendant with conspiracy and that the object of the conspiracy was, among other things, to sell in commerce articles that had been misbranded in violation of 21 U.S.C. § 610. 21 U.S.C. § 610 is contained in Chapter 12 of Title 21. 21 U.S.C. § 381, by contrast, is contained in Chapter 9 of Title 21. Because 21 U.S.C. § 381(e)(1) applies only to provisions of Chapter 9, such statute is wholly inapplicable to the Indictment. Accordingly, for this additional reason, the court shall deny the Motion to Dismiss Count I.
Defendant argues that the Indictment fails "to state an offense within this court's jurisdiction on any theory of liability" for the mail and wire fraud charges because "there is no allegation that the United States or the foreign governments were deprived of funds." Brief in Support of the Motion to Dismiss Counts IX through XIX (docket no. 45-1) at 6, 8. The government argues that the court should deny the Motion to Dismiss Counts IX through XIX because the Indictment sufficiently alleges the elements of wire fraud.
Defendant, despite not citing to the applicable Federal Rule of Criminal Procedure, appears to challenge the sufficiency of the Indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3), which provides that a defendant may move the court, prior to trial, for the failure of an indictment to state an offense. See Fed. R. Crim. P. 12(b)(3)(B)(v).
United States v. Beasley, 688 F.3d 523, 532 (8th Cir. 2012) (quoting United States v. Hayes, 574 F.3d 460, 472 (8th Cir. 2009)). To be sufficient, "[a]n indictment need not use the specific words of the statute, so long as by fair implication it alleges an offense recognized by law." United States v. Villarreal, 707 F.3d 942, 957 (8th Cir. 2013) (quoting United States v. Pennington, 168 F.3d 1060, 1065 (8th Cir. 1999)) (internal quotation marks omitted). "[F]ederal criminal procedure does not `provide for a pre-trial determination of sufficiency of the evidence.'" United States v. Ferro, 252 F.3d 964, 968 (8th Cir. 2001) (quoting United States v. Critzer, 951 F.2d 306, 307-08 (11th Cir. 1992)).
To state an offense for wire fraud, the government must show the following elements:
Eighth Circuit Model Criminal Jury Instruction 6.18.1343 (modified in part). Here, the government alleges that Defendant "caused employees of Midamar and ISA to change labels on . . . beef product shipments for the purpose of making it appear, falsely, that the products originated from a designated approved slaughter facility. The scheme . . . was executed with the intent to result in payment of money to Midamar." Indictment at 18. The Indictment further alleges that Defendant "knowingly caused . . . [a transmission] by means of wire communication in interstate commerce, of monetary payments to Midamar's bank account." Id. at 19. These allegations "contain all of the essential elements of the offense[s] charged, fairly inform [Defendant] of the charges against which he must defend, and allege sufficient information to allow [Defendant] to plead a conviction or acquittal as a bar to a subsequent prosecution." Beasley, 688 F.3d at 532 (quoting Hayes, 574 F.3d at 472). Accordingly, the court shall deny the Motion to Dismiss Counts IX through XIX.
Finally, the court finds unpersuasive Defendant's argument that the Indictment is deficient because "there is no allegation that the United States or the foreign governments were deprived of funds." Brief in Support of the Motion to Dismiss Counts IX through XIX at 6, 8. Defendant relies on Cleveland v. United States, 531 U.S. 12 (2000), in which the Court held that a state license to operate video poker machines did not constitute "property" pursuant to 18 U.S.C. § 1341. Cleveland, 531 U.S. at 15. The question in Cleveland was whether issuance of a license was "property." Here, by contrast, the government alleges that Defendant executed the scheme to defraud "with the intent to result in payment of money to Midamar." Indictment at 18-19 (emphasis added). An intent to obtain money is explicitly contemplated by the statute. See 18 U.S.C. § 1343 ("Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses . . . transmits or causes to be transmitted by means of wire . . . communication . . . shall be fined under this title or imprisoned not more than 20 years, or both." (emphasis added)). Cleveland is therefore inapposite, and the Indictment sufficiently alleges a violation of 18 U.S.C. § 1343.
Moreover, the government need not allege any actual harm stemming from the fraud. See United States v. Louper-Morris, 672 F.3d 539, 556 (8th Cir. 2012) ("[T]he United States is not required to show actual loss or harm to the victims of the fraud in order to prove wire fraud or mail fraud."). Rather, the government need only "show that the accused intended to defraud his victim and that his or her communications were reasonably calculated to deceive persons of ordinary prudence and comprehension." Id. (quoting United States v. Williams, 527 F.3d 1235, 1245 (11th Cir. 2008)) (internal quotation marks omitted). The Indictment charges Defendant with falsely representing the qualities of meat sold to foreign customers by means of an interstate wire communication. This allegation is sufficient to charge Defendant with a violation of 18 U.S.C. § 1343.
Even if the court were to construe the Indictment as alleging that Defendant intended only to defraud the government and not to defraud the foreign purchasers of the meat, the Indictment is still sufficient. It does not matter if "the entity deceived was not the ultimate victim of the scheme that was deprived of money or property." United States v. Seidling, 737 F.3d 1155, 1161 (7th Cir. 2013); see also United States v. Blumeyer, 114 F.3d 758, 767-68 (8th Cir. 1997) (holding that "a defendant may be convicted of . . . wire fraud for making false representations only to persons other than the intended victims"). That is, even were the government's theory that Defendant made misrepresentations only to the government and did not intend to deprive the government of money or property, the Indictment is still sufficient. Accordingly, the court shall deny the Motion to Dismiss Counts IX through XIX.
In light of the foregoing, Defendant William B. Aossey, Jr.'s Motion to Dismiss Count I (docket no. 43) and Motion to Dismiss Counts IX through XIX (docket no. 45) are