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United States v. Swartzendruber

February 25, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
VERLIN D. SWARTZENDRUBER, A/K/A TC, A/K/A JOSEPH SEVERIN, DEFENDANT.



The opinion of the court was delivered by: Ralph R. Erickson, District Judge United States District Court

MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS COUNTS 7-9 AND COUNT 11 OF THE INDICTMENT

INTRODUCTION

Before the Court is Defendant's motion to dismiss Counts 7, 8, 9, and 11 of the indictment (Doc. #31). Defendant filed a memorandum of law in support of his arguments (Doc. #31). The United States filed a memorandum in opposition to the motion (Doc. #43). The Court, having considered all of the briefs and documents filed by the parties, now issues this memorandum opinion and order.

SUMMARY OF DECISION

Wire fraud, money laundering, and conspiracy to commit money laundering are distinct offenses; therefore, Defendant's motion to dismiss the money laundering counts and conspiracy to commit money laundering count is DENIED.

FACTUAL BACKGROUND

Defendant is charged by way of an indictment filed on December 6, 2006. Counts 7 through 9 allege money laundering and Count 11 alleges conspiracy to commit money laundering. Defendant contends the wire transfer alleged in Count 7 as money laundering is the act of wire fraud charged in Count 1. He also contends the wire transfer alleged in Count 8 as money laundering is the act of wire fraud charged in Count 2. Additionally, Defendant contends the wire transfer alleged in Count 9 as money laundering is the act of wire fraud charged in Count 6. Finally, he contends the conspiracy alleged in Count 11 lists the overt acts from the wire fraud transfers in Counts 1 through 6. Defendant argues there is no distinction between the three wire transfers in Counts 7 through 9 and the wire fraud acts alleged in Counts 1, 2, and 6, and in addition no separate distinct acts to support the conspiracy alleged in Count 11.

ANALYSIS

Defendant's argument is essentially that the indictment is multiplicitous because the money laundering counts and the wire fraud counts are the same.

The indictment alleges Defendant committed six individual acts of wire fraud in violation of 18 U.S.C. §1343. Section 1343 provides, in relevant part:

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, representations, or promises, transmits or causes to be transmitted by means of wire . . . in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.

Thus, the essential elements for wire fraud, which the United States must prove beyond a reasonable doubt, are: (1) a scheme to defraud; (2) the use of interstate wires incident to the scheme; and (3) an intent to cause harm. United States v. Farrington, 499 F.3d 854, 859 (8th Cir. 2007).

With regard to money laundering, the indictment alleges on three separate dates Defendant knowingly and willfully transferred and caused to be transferred funds from outside the United States to a place inside the United States "with the intent to promote the carrying on of specified unlawful activity," which is alleged to be wire fraud, in violation of 18 U.S.C. § 1956(a)(2)(A). Section 1956(a)(2)(A) provides, in relevant part:

(a) (2) Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the ...


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