U.S. v. Sapyta, DR-04-CR-814.
| Citation | 390 F.Supp.2d 563 |
| Decision Date | 08 March 2005 |
| Docket Number | No. DR-04-CR-814.,DR-04-CR-814. |
| Parties | UNITED STATES of America v. Jeffrey J. SAPYTA |
| Court | U.S. District Court — Western District of Texas |
John A. Peralta, Assistant United States Attorney, Del Rio, TX, for Plaintiff.
Nancy B. Barohn, Kansas City, MO, Phillip Bozzo, Jr., Ronald P. Guyer, San Antonio, TX, for Defendant.
Pending before the Court in the above-styled and numbered cause are a plethora of motions filed by Jeffrey J. Sapyta ("Defendant") regarding the Superseding Indictment filed by the Government on November 17, 2004. Based on the following reasons, the Defendant's motion to dismiss Counts One and Two (Docket Entry # 58) is DENIED; Defendant's motion to quash Counts Four and Five (Docket Entry # 47) is also DENIED; Defendant's motion to dismiss Count Two (Docket Entry # 43) is GRANTED, and Count Two is QUASHED; and Defendant's motion for a bill of particulars as to Count One (Docket Entry # 45) is DENIED as MOOT.
On November 17, 2004, the Government filed a four-count superseding indictment against the Defendant in the Del Rio Division of the Western District of Texas. In Count One, the Defendant was charged with conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and (h). In Counts Two and Three, the Defendant was charged with the actual laundering of monetary instruments in violation of 18 U.S.C. § 1956(a)(1)(B)(i). In Counts Four and Five, the Defendant was charged with failure to file a Form 8300 by someone engaged in a trade or business for the receipt of an amount in excess of $10,000.00 in violation of 31 U.S.C. §§ 5322(b) and 5331. The Government also filed a notice of demand for forfeiture pursuant to 18 U.S.C. § 982(a).
A hearing was conducted on February 15, 2005, to address the Defendant's motions. The motions are as follows: (1) a motion to dismiss Count Two of the superseding indictment for duplicity and improper venue; (2) a motion to quash Counts Four and Five of the superseding indictment for improperly charging a continuing offense not authorized by Congress; and (3) a motion for a bill of particulars informing him of the identities of the "known" co-conspirators as referred to in Count One of the superseding indictment.1 Additionally, the Defendant withdrew his initial motion to dismiss Count One for failure to allege all the essential elements of the target offense and substituted it with the argument that Counts One and Two should be dismissed for a lack of fair notice of the charges brought against him.
At the hearing, the Court addressed the Defendant's motion regarding a bill of particulars and concluded that the Defendant now has actual notice as to who the co-conspirators might be, thus rendering Defendant's motion for a bill of particulars as moot. The Court, infra, will address the Defendant's remaining motions in this written order.
The Defendant's argument that Counts One and Two should be dismissed for lack of fair notice of the charges brought against him is without merit. An indictment must meet the minimum threshold of being plain, concise, and definite. See United States v. Crow, 164 F.3d 229, 234 (5th Cir.1999). The Government has met this minimum threshold in Counts One and Two. It has charged the Defendant with conspiring to launder monetary instruments and actual laundering of monetary instruments. The Government has provided the Defendant with enough facts to support its contention. The Court does not share the Defendant's state of confusion as to what claims in Counts One and Two the Government is alleging.
The Government charges the Defendant in Count Two with knowingly and intentionally using two safe deposit boxes to conduct a financial transaction to conceal or disguise the proceeds of specified unlawful activity in violation of 18 U.S.C. § 1956(a)(1)(B)(i).2 The Defendant argues that the charge of using two safe deposit boxes constitutes two separate offenses whose inclusion in Count Two renders it duplicitous.
"An indictment is duplicitous when two separate offenses are charged in a single count." United States v. Payne, 341 F.3d 393, 402 n. 3 (5th Cir.2003). Congress's intent on whether each transaction should be viewed as a separate offense was made clear in the Senate Report of the then pending money laundering statute when it stated that "[i]t should be noted that each transaction involving `dirty money' is intended to be a separate offense." United States v. Blackwell, 954 F.Supp. 944, 956 (D.N.J.1997) (quoting S. REP. No. 433, 99th Cong., 2d Sess. 13 (1986)). "Each money laundering transaction constitutes a separate violation of Section 1956(a)(1)(B)(i)." Id. (citing United States v. Martin, 933 F.2d 609, 611 (8th Cir.1991)). Use of a safe deposit box is listed by 18 U.S.C. § 1956(c)(3) as a "transaction".3 Congress amended § 1956(c)(3) in 1992 to include the "use of a safe deposit box" to the list of terms used to define a "transaction". Having established that it was Congress's intent to make each "transaction" a separate and distinct offense, the Court finds that the Government's allegations that the Defendant engaged in two separate "transactions," when he used separate safe deposit boxes, should result in the Defendant being charged separately for each "transaction."
The Defendant also argues that the Western District of Texas is not the correct venue for trial as the two "transactions" occurred in the Southern District of California. The Government cites the statute it accuses the Defendant of violating in Count Two as 18 U.S.C. §§ 1956(a)(1)(B)(i) & 2. An initial reading of the indictment as written leads one to believe that the Government is claiming violations of 18 U.S.C. § 1956(a)(1)(B)(i) and 18 U.S.C. § 1956(a)(2). Title 18 U.S.C. § 1956(a)(2) pertains to:
Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States.
After determining that § 1956(a)(2) had no pertinence to what the Government was claiming in the indictment, the Court understands the Government to be citing to the aiding and abetting provision provided for in 18 U.S.C. § 2.4 Nonetheless, it is too ambiguous and confusing to construe the Government's theory of procuring venue in the Western District of Texas for § 1956(a)(1)(B)(i) violations that occurred in the Southern District of California through the use of an aiding and abetting statute that cannot be discerned from the reading of Count Two of the indictment as presently formulated. The Court is of the opinion that Count Two should be quashed.
However, the Court wants to make it clear that it believes that the Western District of Texas is a correct venue for trial in this case based on the remaining charges brought against the Defendant in the superseding indictment. The Court's decision to quash Count Two is based on the fact that Count Two is duplicitous in its listing of two separate offenses in one count, as well as the lack of clarity on the Government's part that Count Two is charging the Defendant with aiding and abetting and not the transportation of monetary instruments or funds into or out of the United States.
The Defendant argues that the Government has charged him with violating 31 U.S.C. § 53315 in Counts Four and Five in such a manner as to give the violation of the statute the status of being a continuing offense — a status, according to the Defendant, Congress neither prescribed nor intended when it enacted the statute:
Clearly, Counts Four and Five, in alleging the § 5331 violations as continuing offenses, describe the offenses as beginning from the date of the receipt of currency in excess of $10,000, to the fifteenth day thereafter, when a Form 83006 report was to be filed with the IRS in Detroit, Michigan.
It is Congress-not the prosecution-which defines what is the allowable "unit of prosecution" under a criminal statute.
(Def.'s Mot. to Quash Counts Four and Five of the Superseding Indictment at 3.) He further argues that "[i]t is clear that Congress did not intend to criminalize the mere receipt of cash in excess of $10,000 by a trade or business but, rather, the failure to file a report each time as required by the statute, and its implementing regulations." (Id. at 5.) The Government responds that a § 5331 violation is a continuing offense that begins when a person who is required to file an 8300 Form receives currency over $10,000 and continues until the fifteen (15) days allotted to file the form expires, thus completing the offense.
"To be sufficient, an indictment must allege every element of the crime charged." United States v. Fitzgerald, 89 F.3d 218, 221 (5th Cir.1996) (citing United States v. Alford, 999 F.2d 818, 823 (5th Cir.1993)). The Government has met the burden of alleging all of the elements required for one to violate § 5331 and 31 U.S.C. § 5322(b)7, § 5331's criminal penalty provision. It has alleged that the Defendant is engaged in the trade or business of being an attorney, and during the course of that engagement he willfully failed to report the receipt of currency in excess of $ 10,000. Additionally, the Government has alleged that the Defendant willfully failed to violate the reporting requirement while violating another law of the United States or engaging in a pattern of illegal activity involving more than $100,000 during a twelve-month period.
However, both sides have misapplied the law in the instant case when it comes to the issues...
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