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United States v. Berger

October 21, 2010

UNITED STATES OF AMERICA,
v.
VASILIA BERGER, DEFENDANT



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION AND ORDER

I. Introduction

Pending before the court are motions to dismiss (the "Motions") filed within omnibus pretrial motions (ECF No. 10), and a brief in support (ECF No. 11), by defendant Vasilia Berger (Adefendant@ or ABerger@). The government filed a response. (ECF No. 12.) On August 13, 2010, the court held a hearing with respect to the Motions. At the hearing the parties rested on their oral arguments and submissions to the court. At the end of the hearing, defendant notified the court about six additional decisions for the court‟s review in support of her arguments. The government notified the court about four additional decisions for the court‟s review.

II. Background

Defendant is charged in a two-count indictment at criminal number 09-308 arising from an alleged scheme involving home mortgage loans. Count I charges defendant with attempt and conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349. Defendant seeks dismissal of count I of the indictment on the basis that the indictment is deficient because it fails to allege an essential element of the offense, i.e., an overt act. Count II charges defendant with conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956 (a)(1)(A)(i), 1956(h). Defendant seeks dismissal of count II of the indictment on the basis that the indictment fails to allege a violation of the money laundering statute, as interpreted by the United States Supreme Court in United States v. Santos, 553 U.S. 507 (2008).

III. Standard of Review

In ruling on a pretrial motion to dismiss an indictment, the court should grant the motion only where the allegations in the indictment are insufficient to sustain a conviction for the offense charged and should not consider the sufficiency of the government‟s evidence. United States v. Hedaithy, 392 F.3d 580, 589 (3d Cir. 2004).

IV. Discussion

A. General

""An indictment is generally deemed sufficient if 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.‟" United States v. Yusuf, 536 F.3d 178, 184 (3d Cir. 2008) (quoting United States v. Rankin, 870 F2d 109, 112 (3d Cir. 1989)); see United States v. Whited, 311 F.3d 259, 262 (3d Cir. 2002) (An indictment is sufficient when "considered in its entirety, it adequately informs the defendant of the charges against her such that she may prepare a defense and invoke the double jeopardy clause when appropriate."). An indictment fails to state an offense sufficiently if the specific facts alleged in it ""fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation.‟" Yusuf, 536 F.3d at 184 (quoting United States v. Panarella, 227 F3d 678, 685 (3d Cir. 2002 ).

The United States Supreme Court addressed the sufficiency of an indictment that relies upon the words of the statute itself, instructing:

It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ""those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.‟‟ United States v. Carll, 105 U.S. 611, 612...(1882). ""Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.‟‟ United States v. Hess, 124 U.S. 483, 487... (1888). Hamling v. United States, 418 U.S. 87, 117-18 (1974).

B. Count I - 18 U.S.C. § 1349

Count I of the indictment charges defendant with attempt and conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349. The statute provides in relevant part:

1349. Attempt and conspiracy

Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

18 U.S.C. § 1349.*fn1

Under the caption titled "THE CONSPIRACY AND ITS OBJECTS," the indictment provides:

From in and around August 2002, and continuing thereafter until in and around January 2006, in the Western District of Pennsylvania and elsewhere, the defendant,... knowingly and willfully did conspire,... and agree with other persons known... to commit an offense against the United States, that is, Wire Fraud, in violation of Title 18, United States Code, Section 1343. (Indictment ¶ 2.)

Under the caption titled "MANNER AND MEANS OF THE CONSPIRACY," the indictment provides:

3. It was a part of the conspiracy that the defendant,... submitted loan applications to lenders that, as the defendant,... then well knew, contained material misrepresentations about the borrowers‟ financial condition.

4. It was further a part of the conspiracy that the defendant,... submitted false documents in connection with the loan applications, including but not limited to, appraisals that inflated the true value of the properties, appraisals that represented that they were prepared by licensed appraisers when they were really prepared by unlicensed appraisers.......

7. It was further a part of the conspiracy that the defendant,... caused wire transfers from the accounts of the lending institutions located outside the Commonwealth of Pennsylvania, to the account of the closing agent located in the ...


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