The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
Pending before the Court is a MOTION TO DISMISS (Document No. 31), with brief in support (Document No. 35), filed by counsel for Defendant Michael McFerron Pope. The government has filed a response (Document No. 36) and the motion is ripe for disposition.
Defendant is charged in a three-count indictment with conspiracy and money laundering arising from an alleged scheme involving home mortgage loans. On June 2, 2008, the United States Supreme Court issued its opinion in United States v. Santos, 128 S.Ct. 2020 (2008), which involved a charge of money laundering pursuant to 18 U.S.C. § 1956(a)(1) arising from the operation of an illegal lottery. The plurality opinion of the Court applied the rule of lenity to determine that the statutory term "proceeds" would be construed to mean "profits" rather than "receipts."
Defendant contends that Counts 2 and 3 of the instant indictment allege activities in support of money laundering that do not explicitly refer to profits but merely allege the deposit of funds into an account. Therefore, Counts 2 and 3 of the indictment fail to specifically allege "profits," which specific language Pope argues is now required for establishment of a money laundering charge. The government argues that the indictment is valid as currently constituted regardless of Santos, because the indictment tracks the language of the money laundering statute and lists all the essential elements of the offense.*fn1
The Court agrees with the government. An indictment is deemed sufficient if it: (1) contains the elements of the offense intended to be charged; (2) sufficiently apprises the defendant of the charges to enable him to prepare a defense; and (3) allows the defendant to invoke double jeopardy protection if appropriate. United States v. Whited, 311 F.3d 259, 262 (3d Cir. 2002). In ruling on a pretrial motion to dismiss, the Court should not consider the sufficiency of the government's evidence but should grant the motion only where the allegations in the indictment are insufficient to sustain a conviction for the offense(s) charged. United States v. Hedaithy, 392 F.3d 580, 589 (3d Cir. 2004). The Pope indictment does not refer to "profits" or "receipts," but instead employs the statutory term "proceeds." Thus, regardless of the refinement of that term as set forth in Santos, the indictment sufficiently reflects the statutory elements of the offense and apprises Pope of the charges against him.
The Court need not decide whether "profits" is an essential element of the money laundering charges in this case.*fn2 The government has responded that it can and will prove that "the money involved in the transactions referred to in counts two and three of the Indictment" did constitute "profits." Defendant Pope will have ample opportunity to challenge the sufficiency of the government's evidence in that and every regard at the trial of this matter.
In accordance with the foregoing, Defendant Michael McFerron Pope's MOTION TO DISMISS (Document No. 31) is DENIED.
The Court will conduct a telephonic status conference with counsel on Tuesday, December 23, 2008 at 8:45 a.m.
SO ORDERED this 19th day of ...