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United States v. Weiner

July 1, 2009

UNITED STATES OF AMERICA
v.
IRA WEINER, D.O.



The opinion of the court was delivered by: Surrick, J.

MEMORANDUM

Presently before the Court are Defendant Ira Weiner's Motion to Dismiss Count One for Failure to Allege a Valid Conspiracy and Motion in Limine Barring the Use against Dr. Weiner of Hearsay Statements of Dr. Vorasingha and Habeeb Malik. (Doc. No. 42.) For the following reasons, the Motions will be denied.

I. BACKGROUND*fn1

Ira Weiner, D.O. ("Defendant"), is an osteopathic physician and surgeon who has been indicted on charges of naturalization fraud and conspiracy to commit naturalization fraud. (See Indictment, Doc. No. 1.) The charges arose out of an alleged scheme with co-Defendants Habeeb Malik ("Malik"), a businessman, and Thongchai Vorasingha ("Vorasingha"), a physician. The Indictment alleges that from 2000 through 2005, Malik operated a business out of his basement known as the Foundation of Human Services ("the Foundation"). The purpose of the Foundation was to assist foreign individuals in obtaining United States citizenship. The foreign individuals who sought the Foundation's services had difficulty reading and writing English. (Id. ¶ 8.) Foreign individuals must be able to speak, read, and write basic English to be eligible for United States citizenship. (Id. ¶ 5.) Those who are unable to meet this requirement because of a physical or mental impairment can apply for a waiver. (Id.)

For a $2,000 fee, Malik sent the foreign individuals to Defendant and Vorasingha for "examinations" to determine if they qualified for a waiver. (Id. ¶ 9.) It is alleged that Defendant's "examination" consisted of talking with the foreign individuals for approximately three minutes and talking privately with Malik for approximately ten minutes. (Id. ¶ 10.) Similarly, Vorasingha's "examination" consisted of drafting a written questionnaire that asked "if the applicant would agree if . . . Vorasingha diagnosed him or her with mild retardation." (Id. ¶ 11.) Vorasingha diagnosed the applicant based on the written answers. (Id.) Malik paid Defendant and Vorasingha $120 for each "examination." (Id. ¶ 9.)

After the examinations, Defendant and Vorasingha completed waiver forms stating that the individuals suffered from various maladies that included learning disorders, depression, anxiety, post traumatic stress disorder resulting from the hostilities overseas, and mental retardation that impaired their ability to learn English. (Id. ¶ 12.) The individuals did not actually suffer from these maladies. (Id.) Nevertheless, the individuals applied for United States citizenship through this waiver for which they did not really qualify. (Id. ¶ 13.)

Count One of the Indictment alleges a single conspiracy among the three Defendants as follows:

From in or about a date unknown to the grand jury, beginning at least in or about 2000 through in or about July 2005, in the Eastern District of Pennsylvania, and elsewhere, defendants HABEEB MALIK, IRA WEINER, and THONGCHAI VORASINGHA conspired and agreed, together and with others known and unknown to the grand jury, to commit an offense against the United States, that is, to procure and obtain, contrary to law, naturalization as a United States citizen for foreign individuals by making false statements on the Form N-648, including statements that the applicants suffered from various impairments that made it impossible for them to learn and understand the English language, in an effort to obtain waivers of the language requirement on the Form N-400 for the foreign applicants, in violation of Title 18, United States Code, Section 1425. (Id. ¶ 7.)

The Indictment recites overt acts that underlie the alleged conspiracy that include the Defendant signing waivers on nine occasions in 2002 and 2003 that falsely stated the grounds for a medical waiver of the English requirement. (Id. ¶¶ 1-18.) In 2005, Vorasingha signed such waivers on two occasions. (Id. ¶¶ 19-22.) Defendant and Vorasingha are charged in separate, individual counts for each substantive violation of naturalization fraud. The Indictment includes a single conspiracy charge against Malik, Defendant, and Vorasingha.

Defendant has filed the instant Motion seeking dismissal of the single conspiracy charge in Count One based upon Kotteakos v. United States, 328 U.S. 750, 755 (1946). (See Doc. No. 42 at 2.) Defendant has also filed a related motion in limine seeking to exclude from evidence certain statements of Vorasingha and Malik.

II. LEGAL STANDARD

"An indictment is an accusation only, and its purpose is to identify the defendant's alleged offense . . . and fully inform the accused of the nature of the charges so as to enable him to prepare any defense he might have." United States v. Stanfield, 171 F.3d 806, 812 (3d Cir. 1999) (quotations and citations omitted). An indictment need include only "a plain, concise, and definite written statement of the essential facts constituting the offense charged" and "the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated." Fed. R. Crim. P. 7(c)(1). Federal Rule of Criminal Procedure 12(b)(3) permits a defendant to assert any "defect in the indictment" prior to trial. Fed. R. Crim. P. 12(b)(3)(B). The Third Circuit has summarized the standard for evaluating the sufficiency of an indictment as follows:

We deem an indictment sufficient so long as it "(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution." Moreover, "no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution."

United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007) (citations omitted), cert denied, -- U.S. -- , 128 S.Ct. 1329 (2008). Dismissal under Rule 12(b)(3) "may not be predicated upon the insufficiency of the evidence to prove the indictment's charges." United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir. 2000). The court must assume that the allegations in the indictment are true. Besmajian, 910 F.2d at 1154; see also United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994) (noting that the indictment "is to be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true"); accord United States v. Caicedo, 47 F.3d 370, 371 (9th Cir. 1995); United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir. 1978), cert. denied, 437 U.S. 903 (1978). The court must review the indictment "using a common sense construction," United States v. Hodge, 211 F.3d 74, 76 (3d Cir. 2000), "examine the [statutes at issue] as applied to the facts as alleged in the indictment, and determine whether the defendant's conduct, as charged, 'reflect[s] a proper interpretation of criminal activity under the relevant criminal statute[s],'" United States v. Shenandoah, 572 F. Supp. 2d 566, 571 (M.D. Pa. 2008) (citing United States v. ...


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