The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER OF COURT
Presently before the Court is the MOTION TO DISMISS INDICTMENT and the BRIEF in support filed by Defendant Roman Litt (Document Nos. 104 and 126), the MOTION TO DISMISS INDICTMENT and the RESPONSE AND BRIEF in support filed by Defendant Alexander Litt (Document Nos. 117, 127, and 128), and the omnibus RESPONSE filed by the government (Document No. 113). On July 28, 2009, the Court conducted an evidentiary hearing on the motions to dismiss the indictment at which all parties were represented by counsel who presented and argued the issues skillfully and effectively. Immigration and Customs Enforcement Special Agent Michael Opferman and Internal Revenue Service Special Agent Kevin Petrulak testified on behalf of the government.
At the conclusion of the evidentiary hearing, both Defendants moved to file additional post-hearing brief(s) within thirty (30) days of the filing of the transcript, and the government requested an additional ten (10) days in which to file a reply brief. The Court ordered that a transcript of the proceedings be prepared and granted the time to file additional briefs. The post-hearing briefs were timely filed and the matter is now ripe for disposition.
Based on the testimony and evidence presented at the evidentiary hearing, the applicable law, and the written submissions of the parties, the Motions to Dismiss the Indictment will be denied.
FACTS AND PROCEDURAL HISTORY
Defendants Alexander Litt and Roman Litt (collectively "Defendants") are two of six named defendants in a thirty-seven (37) count Indictment which was returned by a Federal Grand Jury on November 19, 2008. Both Defendants are charged only in Counts One and Three of the Indictment. Count One of the Indictment charges Defendants with conspiracy to harbor aliens for the purpose of commercial advantage and private financial gain, in violation of Title 18, United States Code, § 371 and Count Three of the Indictment charges Defendants with conspiracy to launder money instruments in violation of Title 18, United States Code, § 1956(h).
According to the Indictment, Defendants created and controlled ARRA, Inc., an Ohio corporation with its principal office in Sharonville, Hamilton County, Ohio. ARRA Inc., as well as other similar corporations owned by co-defendants and located throughout Ohio and western Pennsylvania, was an "employee leasing" company, engaged in the business of supplying employees to other businesses (generally as hotel workers or other service employees). The Government alleges, inter alia, that as part of the conspiracy the Defendants through their employee leasing companies agreed to provide documented workers who were permitted to be in the United States to client businesses in the United States. However, the Defendants knew that the workers were neither authorized to remain and/or to work in the United States.
Defendants are alleged to have created bank accounts in which corporate checks made payable to ARRA, Inc., were deposited or cashed. These checks represented a percentage of the hourly wages earned by over 100 out-of-status ("illegal") alien workers employed by the employee leasing companies. Other defendants named in the Indictment are charged with using their companies to lease apartments for the illegal aliens and to transport the illegal aliens to and from their places of employment.
In 2002, an investigation was commenced by the Immigration and Customs Enforcement Agency ("ICE") into possible alien harboring activity by Citiwide Management Group ("CMG"), an employee leasing company allegedly controlled by Yaroslav Rochniak and Gregory Kucher, two of the named defendants in this case. (Tr. at 11). At the outset of the investigation, ICE agents were not aware of the full scope of the alleged conspiracy, but they found that the investigation continued to grow steadily between 2002 and 2008. According to testimony from ICE Special Agent Michael Opferman ("Agent Opferman"), only eight or nine illegal aliens with ties to the employee leasing companies were discovered by government agents prior to the fall of 2005. (Tr. at 27). Some of these aliens were detained and released pending immigration hearings, while others were "turned around" by Customs and Border Protection agents after the aliens had left the United States and were attempting to re-enter the country. (Tr. at 27-29).
The Government concedes that none of the aliens discovered by investigators prior to the fall of 2005 mentioned either Defendant Alexander Litt or Defendant Roman Litt to investigators. (Document No. 113 at 3). Further testimony affirmatively established that ICE investigators only instituted deportation proceedings against one alien prior to September 2005, and that alien was not, in fact, deported. (Tr. at 30-31). Additionally, Agent Opferman testified that prior to August 2005, neither Defendant Alexander Litt nor Defendant Roman Litt was known to investigators and neither was the subject of the ICE investigation. (Tr. at 36).
On September 8, 2005, approximately twenty-nine (29) search warrants were executed in the Pittsburgh and Cleveland metropolitan areas as part of the ongoing ICE investigation. (Tr. at 42-44). At that time, approximately forty-three (43) illegal aliens were arrested in the Pittsburgh area and approximately twelve (12) illegal aliens were arrested in Cleveland, Ohio, all of whom were interviewed to varying degrees by government agents following their arrest. (Tr. at 53); (Document No. 113 at 4). Following the execution of the search warrants, one of the arrested illegal aliens was shown a picture of Defendant Alexander Litt but the alien was unable to identify him, (Tr. at 55), and none of the other arrested illegal aliens provided any information about either Defendant. (Tr. at 63). Testimony at the hearing revealed that following the execution of the search warrants, most of the illegal aliens that the ICE investigators detained were field interviewed, and the results of that questioning were recorded on a form I-213, a Record of Deportable Alien. (Tr. at 50). Most of the aliens found to be in the country illegally were arrested, told to report for an immigration hearing, and released by the end of the day on September 8, 2005. (Tr. at 53).
As a result of the execution of the September 2005 search warrants, investigators recovered "boxes and boxes" of financial records, documents, computers, and cash, which had to be analyzed as part of the investigation. (Tr. at 45-46). Thereafter, in October 2005, subpoenas for additional information regarding financial information and account records were issued.
Agent Opferman testified that the investigation did not start focusing on Alexander Litt and/or Roman Litt until late 2006 or early 2007. (Tr. at 70). Questions regarding the Litts were first raised in interviews conducted with hotel managers and financial institutions. (Tr. at 70).
Testimony at the hearing from Internal Revenue Service Special Agent Kevin Petrulak ("Agent Petrulak") confirmed the sheer volume of evidence associated with the investigation, as well as the pain-staking work of sifting through such material. (Tr. at 82-109). Agent Petrulak testified that he was assigned to review and analyze the financial records from the employee leasing companies, which consisted of over 60,000 pages of financial records and was assembled piecemeal from several banks over a number of years. (Tr. at 102-05). According to Agent Petrulak, the Indictment was brought before the grand jury as quickly as possible given the scope of the investigation and the delays associated with getting approval for such an indictment. (Tr. at 105-07).
Testimony at the hearing failed to produce an accurate number of aliens that were either deported from the United States or "turned away" at the border during the course of the entire investigation. Agent Opferman testified that ICE instituted deportation proceedings against only one person prior to the September 2005 search warrants, although some aliens had left the United States voluntarily and some were turned away while trying to re-enter the United States. (Tr. at 28-31). Other aliens initially detained during the execution of the search warrants were found to be green card holders legally living in the United States. (Tr. at 50). Additionally, some of the aliens discovered during the investigation still remain in the United States. (Document No. 113 at 5); (Tr. at 33-34). Nevertheless, the testimony indicates that of all the illegal aliens with ties to the investigation discovered by government agents, very few were actually deported as a result of the actions undertaken by the ICE investigators.
The Government has repeatedly conceded that none of the aliens who were discovered in connection with the September 2005 search ...