U.S. v. Hinton, 00-125(JBS).

Decision Date20 December 2000
Docket NumberNo. 00-125(JBS).,00-125(JBS).
PartiesUNITED STATES of America, v. Haywood HINTON, a/k/a "Ameer Hasan," Defendant.
CourtNew Jersey Supreme Court

Robert J. Cleary, United States Attorney by Gail Zweig, Assistant U.S. Attorney, Newark, NJ, for U.S.

Edward F. Borden, Jr., Earp Cohn P.C., Westmont, NJ, for Defendant.

OPINION

SIMANDLE, District Judge:

According to the government, defendant Haywood Hinton, a/k/a "Ameer Hasan," committed one violation of 18 U.S.C. §§ 1344 and 2 when he knowingly and wilfully executed and attempted to execute a single scheme to defraud six separate financial institutions, and to obtain money, funds and assets owned by and under the control of such financial institutions, by means of materially false and fraudulent pretenses, representations, and promises. Presently before the Court are Hinton's motions to dismiss the indictment as duplicitous and also for a bill of particulars that would detail each alleged transaction, including times, dates, locations, and accomplices which the government claims were a part of defendant's overall scheme to defraud. The principal issue to be determined is whether a one-count indictment alleging that the defendant defrauded six separate financial institutions by employing similar means and measures in various times and places, employing different confederates, suffers from duplicity by alleging multiple crimes within a single count.

After careful consideration of Hinton's motions and the government's response thereto, and the Court having heard oral argument on November 16, 2000, and having received supplemental submissions thereafter, the Court finds that the Second Superseding Indictment is duplicitous and will dismiss same unless the government, within 20 days, elects a single bank fraud charge from among those in the duplicitous count or supersedes this indictment with non-duplicitous charges. The Court will dismiss without prejudice defendant's motion for a bill of particulars as premature, pending the return of a Third Superseding Indictment.

I. BACKGROUND

Defendant, Haywood Hinton, a/k/a Ameer Hasan, was first indicted for one count of executing a bank fraud scheme in violation of 18 U.S.C. §§ 1344 and 2 on March 22, 2000. The first one-count Superseding Indictment was returned on August 20, 2000.

On or about November 15, 2000, the Grand Jury returned a one-count Second Superseding Indictment against defendant, charging that from in or about December 1997 through in or about March, 1999, defendant knowingly and willfully executed and attempted to execute a single scheme and artifice to defraud six financial institutions, namely, First Union National Bank, Sovereign Bank, PNC Bank, N.A., Fleet Bank, N.A., Summit Bank, and Colonial Bank, F.S.B. (collectively, the "Banks"), and to obtain money, funds and assets owned by or under the control of the Banks. (See Second Superseding Indictment, Nov. 15, 2000.) The Second Superseding Indictment specified several means by which defendant allegedly executed that single scheme, including, providing other individuals with false documentation, causing other individuals to open accounts at the Banks under fictitious names and using false identification, causing others to negotiate checks when he knew that neither he nor the others were entitled to such funds, personally negotiating checks, the proceeds of which he knew he was not entitled to, and causing another to negotiate a check in the amount of $1,433.00 at the PNC Bank, N.A. in Cinnaminson, New Jersey. (See id.) Other than identifying the banks, and the one transaction, the Second Superseding Indictment provides no further details.

Discovery has been extensive and has revealed that the scheme is evidenced by approximately 128 transactions at six banks involving nine different confederates, with a summary chart (produced in draft on November 15, 2000) providing the information on a transaction-by-transaction basis regarding the name of the other person involved, his or her fictitious identity, the bank utilized, the location of the transaction, the account utilized, the date of the incident, the checks utilized, the check number and the check amount. By the Court's reckoning, the approximate breakdown of these transactional allegations is as follows:

                -------------------------------------------------------------------
                Financial          Earliest    Number of   Number of  Number of
                Institution        and Latest  Persons     Accounts   Transactions
                                   Dates       Used1  Used
                -------------------------------------------------------------------
                PNC                05/08/98        1           2           6
                Bank, NA
                -------------------------------------------------------------------
                Colonial           05/07/98        1           2           4
                Bank, FSB
                -------------------------------------------------------------------
                First Union        01/07/98        3           5           11
                National           through
                Bank               05/06/98
                -------------------------------------------------------------------
                Sovereign          12/01/97l       4           11          89
                Bank               through
                                   03/16/99
                -------------------------------------------------------------------
                Fleet Bank         12/17/97        1            2           9
                                   through
                                   12/30/97
                -------------------------------------------------------------------
                Summit Bank        12/29/97        1            2           9
                                   through
                                   12/31/97
                -------------------------------------------------------------------
                

This motion, attacking the manner in which this single-count indictment is framed, does not call upon the court to weigh or determine the sufficiency of any evidence, but this summary of transactional evidence is necessary to understand the contour of the crime or crimes charged as the Court next evaluates the parties' positions.

II. DISCUSSION

For purposes of these motions, the Court examines the Second Superseding Indictment (filed November 15, 2000), as defendant's motion was initially directed at the First Superseding Indictment, which was itself superseded before oral argument herein. Defense counsel orally renewed the motions as to the Second Superseding Indictment, arguing that it had not cured the impairments of the earlier charge. Accordingly, this Opinion will refer to the Second Superseding Indictment, or simply "the indictment," interchangeably.

A. The Second Superseding Indictment

Defendant seeks to have the Second Superseding Indictment dismissed as duplicitous. The Second Superseding Indictment charges, in a single count, that:

From at least as early as December, 1997 through in or about March, 1999, in Burlington County, in the District of New Jersey and elsewhere, defendant Haywood Hinton, a/k/a/ "Ameer Hasan" did knowingly and wilfully execute and attempt to execute a scheme and artifice to defraud various financial institutions, including the Banks, and to obtain money, funds and assets owned by and under the custody and control of such financial institutions, by means of materially false and fraudulent pretenses, representations and promises, as more fully set forth below.

(Second Superseding Indictment, para. 2, Nov. 15, 2000)(emphasis added). The indictment goes on to charge several means and methods by which defendant allegedly perpetrated this bank fraud scheme. Defendant argues that because the government cannot and will not prove that any single transaction or scheme execution occurred, it is improperly charging multiple transactions and scheme executions in a single count indictment in an attempt to win a conviction. This type of indictment, argues defendant, is duplicitous and must be dismissed.

The government does not dispute the impropriety of a duplicitous indictment. It argues, however, that the present indictment is not duplicitous because it charges only a single scheme to defraud six financial institutions in violation of 18 U.S.C. §§ 1344 and 2.

The bank fraud statute reads as follows:

Whoever knowingly executes, or attempts to execute, a scheme or artifice —

(1) to defraud a financial institution; or

(2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises;

shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

18 U.S.C. § 1344. The fact that the indictment charges defendant under both prongs of Section 1344, in and of itself, does not make the indictment duplicitous.2

B. The Arguments of the Parties

Defendant seeks the dismissal of the Second Superseding Indictment because, he argues, it charges multiple executions of bank fraud schemes and that it therefore would be difficult for a jury to render a finding about each transaction, and would also be essentially impossible for the court to determine whether a conviction rested on one or more executions of any bank fraud scheme. Defendant asserts that the government's decision to charge him in a one count Second Superseding Indictment for bank fraud was based on their inability to prove any of the underlying transactions as separate offenses. The defendant charged that the government was doing little more than "fling[ing] a great deal of spaghetti at the wall, hoping that enough [would] stick[] to convict the defendant of a single 30-year count." (Defs.' Br. at 2.)

The Second Superseding Indictment in this case charges defendant with one count of bank fraud against six separate financial institutions in violation of 18 U.S.C. §§ 1344 and 2. Defendant distinguishes the cases involving mail fraud cited by the government by emphasizing the crucial difference between mail fraud and bank fraud cases — that is, while mail fraud turns...

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