The opinion of the court was delivered by: Judge James M. Munley United States District Court
Before the court for disposition are several pretrial motions. The motions have been fully briefed and are ripe for disposition.
The United States of America (hereinafter "government") has filed a sixteen-count Second Superceding Indictment against Defendant Joseph P. Donahue (hereinafter "defendant"). The indictment contains charges of bank fraud, credit card fraud, false statements to the government and money laundering.
Several motions have been filed that we will discuss separately.
I. Defendant's Motion for Notice by the Government of its Intention to rely Upon Other Crimes, Wrongs, Acts and Misconduct Evidence
Defendant moves for notice from the government of its intention to rely upon other crimes, wrongs, acts and misconduct evidence. (Doc. 126). Under the Federal Rules of Evidence, such evidence may be admissible for certain purposes if the government provides notice that it intends to use it. Specifically, Rule 404(b) provides that evidence of other "crimes, wrongs, or acts" may be admissible to establish "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." FED. R. EVID. 404(b).
Defendant moves for such notice in the instant case. In its brief in response to the defendant's motion, the government indicates that it has already provided the defendant with such notice of other crimes, wrongs or acts. (Doc. 135, Gov't Brief at 3). The government's brief also lists the witnesses that it intends to call to establish these similar acts. (Id.). The government indicates that the evidence related to these other acts is available for inspection and copying by the defendant. (Id.). Because the government has provided the requested information, the motion will be denied as moot.*fn1
II. Defendant's Motion to Dismiss Count 2 for Failure to State a Claim
Defendant next moves to dismiss Count 2 of the indictment for failure to state a claim. (Doc. 129). Count 2 of the Indictment charges money laundering. Count 1 of the Indictment charges bank fraud. The money laundering alleged in Count 2 involves the funds obtained through the bank fraud alleged in Count 1. Defendant argues that financial transactions alleged in Count 2 are "part and parcel" of the underlying scheme to defraud. They do not amount to temporally distinct conduct as required by the criminal statutes and the Double Jeopardy Clause of the United States Constitution. The government's position is that the two counts involve separate crimes and the Double Jeopardy Clause is not violated.
To analyze this motion, we must first review the government's allegations as found in the Second Superceding Indictment.*fn2 Count 1 involves allegations of bank fraud. The government alleges that the defendant represented himself to M & T Bank as Scott Carey to apply for and obtain a $50,000.00 line of credit, which was later increased to $100,000. (Doc. 138, Superceding Indictment, Count 1, ¶ ¶ 5, 8 ). Defendant forged Scott Carey's signature and used a fraudulent driver's license to identify himself as Scott Carey to M & T Bank. (Id. at ¶ 6). On February 2, 2004, the defendant used the line of credit to obtain a bank check in the amount of $33,476.00 made payable to Select Marketing Group. (Id. at ¶ ¶ 7, 9(c)). The government charges that these allegations amount to bank fraud in violation of 18 U.S.C. § 1344.
Count 2 alleges that the defendant deposited this fraudulently obtained check into Select Marketing Group's account with Wachovia Bank. (Id. at Count 2, ¶ 5(c)). The defendant then made various transfers of funds from Select Marketing Group's account to the Wachovia account of another of his businesses, to himself and to a credit card account. (Id. ¶ 5). According to the ...