MALACHY E. MANNION, District Judge.
Before the court are defendant Thung Van Huynh's counseled Motion to Dismiss Count One as Duplicitous, (Doc.
By way of relevant background, on November 12, 2015, defendant Huynh along with three others were indicted and charged in a Superseding Indictment with conspiracy to commit wire and bank fraud in violation of 18 U.S.C. § 1349, (Count One), wire fraud in violation of 18 U.S.C. § 1343, (Counts Two and Three), conspiracy to commit fraud in connection with identification documents in violation of 18 U.S.C. § 1028(f), (Count Four), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1), (Count Five). (Doc.
On March 23, 2016, defendant Huynh was arraigned and pled not guilty to all counts of the Superseding Indictment. (Doc.
On October 21, 2016, defendant Huynh filed a Motion to Dismiss Count One of the Superseding Indictment as Duplicitous, (Doc.
After being granted an extension of time, the government filed its briefs in opposition to defendant Huynh's motions on December 1, 5 and 7, 2016. (Doc.
On December 15, 2016, Huynh filed a reply brief regarding his Motion to Change Venue. (Doc.
The court will first address defendant Huynh's Motion to Dismiss Count One of the Superseding Indictment as Duplicitous. (Doc.
Rule 8(a) provides that "[t]he indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged ___ [] ___ are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan."
In U.S. v. Rigas, 605 F.3d 194, 210 (3d Cir. 2010), the Third Circuit stated:
See also U.S. v. Sourlis, 953 F.Supp. 568, 572 (D.N.J. 1996)(quoting U.S. v. Starks, 515 F.2d 112, 116 (3d Cir. 1975)) ("Duplicity is the joining in a single count of two or more distinct and separate offenses.").
"An indictment is not duplicitous in cases where the indictment does not charge different offenses in the same count, but instead charges different methods of completing the same offense." Sourlis, 953 F.Supp. at 572. In fact, Fed.R.Crim.P. 7(c)(1) "authorize[s] charging two different methods of committing a crime in a single count." Id. Further, the court in Sourlis, 953 F.Supp. at 572, stated:
"In deciding a motion to dismiss, [the court] must accept factual allegations [in the Indictment as true] and disregard legal conclusions to determine whether the alleged facts constitute a crime." U.S. v. Harder, 168 F.Supp.3d 732, 737 (E.D.Pa. 2016)(citing U.S. v. Zauber, 857 F.2d 137, 144 (3d Cir. 1988)). Also, the court "must dismiss counts based on a statutory misinterpretation." Id. at 738 (citing U.S. v. Enmons, 410 U.S. 396, 93 S.Ct. 1007 (1973) ("dismissing indictment when statute does not proscribe the conduct charged"); U.S. v. Ferriero, 2015 WL 225806, *5 (D.N.J. Jan. 15, 2015)("a district court must find that `a charging document fails to state an offense if the specific facts alleged in the charging document fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation.'")(citations omitted). "A motion to dismiss is `not a permissible vehicle for addressing the sufficiency of the government's evidence.'" Id. (quoting U.S. v. DeLaurentis, 230 F.3d 659, 660 (3d Cir. 2000)).
Defendant Huynh claims that Count One of the Superseding Indictment against him should be dismissed because it charges two separate offenses, i.e., wire fraud and bank fraud, in the same count under § 1349. Huynh contends that Count One violates the prohibition against duplicitous pleading as well as the joinder rule found in Rule 8. He states that Count One alleges two distinct and separate conspiracy charges and that these charges have different statutory elements. He also states that the description in Count One alleges different facts to support bank fraud and wire fraud. He further states that the government did not clearly specify what bank fraud offense it was proceeding under rendering Count One insufficient.
The government states that "§ 1349 makes it a crime to conspire to commit any of the offense[s] under Chapter 63 of Title 18 of the Untied States Code — which includes both wire and bank [fraud] in violation of sections 1343 and 1344 of that chapter." (Doc.
In
As the government explains, "Count One charges a single conspiracy to defraud three separate layers of victims — jewelers by fraudulently obtaining watches, individuals whose identification information was used to obtain the watches, and banks from whom the conspirators fraudulently attempted to obtain, and actually obtained, loans to pay for the watches using the fraudulent identification information." The government states that Count One also alleges that "in agreeing to commit both wire and the bank fraud offenses, Huynh and his conspirators agreed to engage in conduct that caused the transmission via interstate wire facilities of false information related to the fraudulent bank loan applications and watch purchases." Further, the government indicates that "Count One alleges that Huynh and his conspirators agreed to engage in a scheme both to defraud the banks and to obtain money or property in the form of bank loan proceeds by false statements." (Id. at 2-3)(emphasis original). The court concurs with the government and finds that the Indictment charges only one conspiracy with several objectives. Indeed, Huynh concedes that "there is no doubt that a single conspiracy can have multiple objectives without violating duplicity rules." (Doc.
Additionally, Huynh could properly be charged with both provisions of § 1344, i.e., § 1344(1) and (2), as objects of the conspiracy. See U.S. v. Monostra, 125 F.3d 183 (3d Cir. 1997). The government, (Id. at 4), concludes:
The court finds that Count One is not duplicitous since the Indictment does not charge different offenses in this count, rather it "charges different methods of completing the same offense", i.e., a single conspiracy having multiple objectives. See U.S. v. Reyes, 930 F.2d 310 (3d Cir. 1991). "The Federal Rules of Criminal Procedure specifically authorize charging two different methods of committing a crime in a single count." Sourlis, 953 F.Supp. at 572 (citing Fed.R.Crim.P. 7(c)(1) ("It may be alleged in a single count that the means by which the defendant committed the offense are unknown or the defendant committed it by one or more specified means.")).
Thus, the court finds that Count One alleges that Huynh and his conspirators were involved in a single conspiracy to commit both wire fraud and bank fraud. As the court in Sourlis, 953 F.Supp. at 573, explained:
The court will charge the jury under the model federal jury instructions that their verdict must be unanimous as to which of the objects of the conspiracy alleged in Count One they find Huynh agreed to pursue. Since the court finds that Count One is not duplicitous, this jury instruction will minimize any risk of prejudice to Huynh. This instruction will also avoid one of the concerns raised by Huynh and identified by the Third Circuit in Starks, 515 F.2d at 117, i.e., "in a general verdict based upon two or more separate offenses joined in a single count, there is no way of knowing whether the jury was unanimous with respect to any of the offenses." Sourlis, 953 F.Supp. at 572.
Thus, defendant Huynh's motion to dismiss Count One of the Superseding Indictment, (Doc.
Defendant Huynh filed a motion seeking to transfer his case to the Central District of California pursuant to Fed.R.Civ.P.21(b), (Doc.
The Third Circuit applies the Platt ten-part test regarding an individual natural person defendant's motion to transfer. In re United States, 273 F.3d at 387-88. The Third Circuit identified the ten Platt factors a court should consider in deciding whether to transfer a case as follows:
Id.
Thus, Huynh must show that the balancing of the above interests weigh in favor of transferring his case to the Central District of California. Id. "No one of the Platt factors is dispositive, and a balance should be struck in determining which are of the greatest importance in the case before the court." Hbaiu, 2013 WL 4698286, *5. Further, "[t]he defendant must support a motion to transfer with `affidavits, depositions, stipulations, or other documents tending to establish the necessary elements for a transfer.'" Hbaiu, 2013 WL 4698286, *5 (citing In re United States, 273 F.3d at 386).
Huynh states that he and his three co-defendants are residents of California, that he resided there since 1981, that he has no ties to Central Pennsylvania and, that he had his initial appearance in this case in the Central District of California. However, he was subsequently arraigned in the Middle District of Pennsylvania on March 23, 2016. Huynh states that the alleged offenses occurred in 41 jewelry stores all over the country and only two of the stores were located in this district. Huynh also points out that the allegedly identified theft victims were all California residents and that the alleged conspiracy was initiated in California. He states that California was "ground zero" for the alleged conspiracy and that it is alleged to have been completely orchestrated there. He also states that the all of the alleged planning, preparation, and resale of the jewelry occurred in California.
It is of no moment that Huynh is from California. The Third Circuit has stated that "[i]t is important not to overlook the Supreme Court's statement in Platt that a defendant is not entitled to defend his case in his or her home district." In re United States, 273 F.3d at 388 (citing Platt, 376 U.S. at 245-46). Also, there is no dispute that portions of the alleged conspiracy were enacted in this district.
Next, Huynh states that most of the witnesses, including possible defense witnesses, as well as his co-defendants live in or near California. He also states that it is alleged 25 residents of California had their personal information and identities stolen from a car dealership in California and this "formed the foundation in the commission of the offenses." He points out that since the alleged victim jewelry stores and banks are scattered across the United States, it is easier for witnesses from these alleged victims to travel by air to California than to "rural central Pennsylvania." Hunyh also contends that it would cause an extreme hardship to require both defense witnesses and prosecution witnesses to travel from California to Pennsylvania for trial.
Additionally, Huynh states that it will create a financial hardship to his family and witnesses to attend trial in this district and since he is indigent the taxpayers will have to pay this expense. Huynh has not provided proof as to the location of his family and witnesses. Nonetheless, the government has not objected to the cost to transport Huynh's family who will testify and his witnesses.
Initially, it cannot be ignored that Huynh's alleged three conspirators have all pled guilty in this district are awaiting sentence in prison here. Also, Huynh is in prison here awaiting his trial. As the government states, since the three co-defendants are expected to testify at Huynh's trial as prosecution witnesses it would be unduly burdensome and extremely costly for the government to transport them along with Huynh some 3000 miles to appear at trial in California. Nor can it be ignored that the defense counsel for all four defendants involved in the alleged conspiracy as well as the government's counsel are located in this district which undoubtedly would cause needless expense, burden and inconvenience for counsel. Huynh's contention that both he and the government can switch to California counsel would certainly dely the upcoming trial and needlessly cost the taxpayers considerably more money.
Additionally, even though the alleged conspiracy began in California, it was undisputedly wide spread throughout the country, including this district as well as several states identified by the government, (Doc.
In his reply brief, (Doc.
Thus, based on the Platt factors, defendant Huynh's motion to transfer venue, (Doc.
Huynh's final motion seeks to preclude any reference to any party or witness as a "victim." He states that such a preclusion is necessary to ensure his Fifth Amendment right to a fair trial and that a reference by the government to any individual or entity as a victim during his trial is highly prejudicial. He also states that use of the term "victim" at trial by the government will violate his presumption of innocence since it will appear to the jury that the particular individual or party called a victim was injured by him and that a crime was in fact committed. Huynh further contends that if the government refers to any witness as a victim, it will imply that it is expressing its belief about that witness's credibility and that this witness's testimony should be afforded more weight which is prohibited.
Additionally, Huynh states that F.R.E. 403 should preclude the government from referring to any witness or party as victim since "[t]he prosecution's conclusion, judgment and assessment exhibited by the word `victim' have no probative value." (Doc.
Finally, Huynh argues that referring to any witness or party as a victim usurps the jury's role as the trier of the facts which includes whether there is a victim in the case. He concludes that "[t]here cannot be a victim unless the jury determines that there was a crime or wrong committed." (Id.).
In response, the government points out that its references to witnesses as victims at trial will not evoke sympathy and will not be prejudicial to Huynh since this case involves fraud and identity theft crimes in which the alleged losses are mainly financial and since most of the victims are businesses and banks. The government explains, (Doc.
Finally, the government states that any potential prejudice will be dissipated during voire dire when the jury is selected and by the court's use of the standard jury instructions that the indictment represents only allegations and not evidence. Indeed, the court will utilize the model federal jury instruction as follows:
Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and if "the fact is of consequence in determining the action."
Assuming, arguendo, that referring to a witness or party as a victim may be prejudicial to Huynh, nonetheless, the court finds under FRE 403 that the probative value of using the term "victim" as detailed by the government above outweighs the risk of any unfair prejudice to Huynh. Simply because a person or entity involved in this case is accurately referred to as a "victim," in no way furthers the governments burden to prove beyond a reasonable doubt that Huynh is, in fact, guilty of a crime. Therefore, the court will
For the foregoing reasons, the court will
