United States v. Abouammo

• Decision Date: 24 February 2021
• Docket Number: Case No. 19-cr-00621-EMC-1
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. AHMAD ABOUAMMO, Defendant.
• Court: U.S. District Court — Northern District of California

UNITED STATES OF AMERICA, Plaintiff, v. AHMAD ABOUAMMO, Defendant.

Case No. 19-cr-00621-EMC-1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

February 24, 2021

ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE AN OFFENSE

Docket No. 84

Pending before the Court is Defendant Ahmad Abouammo's motion to dismiss the following counts leveled against him in the superseding indictment, Docket No. 53, for failure to state an offense:

Count Four: Conspiracy to commit wire fraud and honest services fraud in violation of 18 U.S.C. § 1349;

Counts Five through Nineteen: Wire fraud and honest services fraud in violation of 18 U.S.C. §§ 1343, 1346;

Count Twenty through Twenty-Two: Money laundering in violation of 18 U.S.C. § 1956(a)(2)(B)(i).

Docket No. 84 (Mot.). For the following reasons, Mr. Abouammo's motion is DENIED.

I. BACKGROUND

On November 11, 2019, the Government arrested Ahmad Abouammo and charged him and two co-defendants with failing to notify the Attorney General that they were allegedly acting on behalf of a foreign government, in violation of 18 U.S.C. § 951. See Docket No. 1. ("Compl.").¹ The complaint also charged Mr. Abouammo with falsification of records, in violation of 18 U.S.C. § 1519. Id.

On November 19, 2019, the Grand Jury returned an indictment charging the same offenses alleged in the complaint. See Docket No. 13. On April 7, 2020, after the Grand Jury was suspended due to COVID-19, the Government filed a superseding information, charging the defendants with the same counts from the indictment, as well as one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and fifteen substantive counts of wire fraud, in violation of 18 U.SC. §§ 1343 and 1346. See Docket No. 42 ("Superseding Information"). Defendant Abouammo was also charged with three counts of international money laundering, in violation of 18 U.S.C. § 1956(a)(2)(B)(i). Id. On July 28, 2020, after the Grand Jury resumed in limited capacity, it returned a superseding indictment charging the same offenses alleged in the superseding information. See Docket No. 53 ("Superseding Indictment").

The alleged victim of the fraud charged in the superseding indictment is Mr. Abouammo's former employer, Twitter, Inc. ("Twitter" or the "Company"). Id. ¶ 12. The gravamen of the wire and honest services fraud charges is that, between approximately November 2014 and March 2016, Mr. Abouammo received cash payments, gifts, and promises of future benefits, including employment, from the Kingdom of Saudi Arabia and its Royal Family in exchange for confidential account information² of certain Twitter users who posted information critical of, or embarrassing to, the Saudi government and members of the Saudi Royal Family. Id. 8, 21, 22, 24.

On November 18, 2020, Mr. Abouammo filed a series of motions to dismiss, including the instant motion to dismiss Counts Four through Twenty-Two for failure to state an offense. See Mot.

II. LEGAL STANDARD

An indictment must contain a "plain, concise, and definite written statement of theessential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). The sufficiency of an indictment is to be measured by two main criteria: "first, whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, secondly, in case any other proceedings are taken against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." Russell v. United States, 369 U.S. 749, 763-64 (1962); see also United States v. Fernandez, 388 F.3d 1199, 1217-18 (9th Cir.2004) ("Generally, an indictment is sufficient if it sets forth the elements of the charged offense so as to ensure the right of the defendant not to be placed in double jeopardy and to be informed of the offense charged." (quoting United States v. Rodriguez, 360 F.3d 949, 958 (9th Cir. 2004)). "Because it is a drastic step, dismissing an indictment is a disfavored remedy." United States v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir.1985) (citing United States v. Blue, 384 U.S. 251, 255 (1966)).

The Ninth Circuit has repeatedly made clear that "an indictment setting forth the elements of the offense is generally sufficient" to survive a motion to dismiss. See Fernandez, 388 F.3d at 1219. In fact, "[i]n the Ninth Circuit, '[t]he use of a "bare bones" information—that is one employing the statutory language alone—is quite common and entirely permissible so long as the statute sets forth fully, directly and clearly all essential elements of the crime to be punished.'" United States v. Woodruff, 50 F.3d 673, 676 (9th Cir.1995) (quoting United States v. Crow, 824 F.2d 761, 762 (9th Cir.1987)). Moreover, the Ninth Circuit has instructed that an indictment "'should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied.'" United States v. Berger, 473 F.3d 1080, 1103 (9th Cir.2007) (quoting United States v. King, 200 F.3d 1207, 1217 (9th Cir.1999)).

In evaluating Mr. Abouammo's motion to dismiss, this Court is "bound by the four corners of the indictment in analyzing whether a cognizable offense has been charged." United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). Consequently, it is well settled that "a bill of particulars cannot save an invalid indictment." Russell, 369 U.S. at 770; see also United States v. Cecil, 608 F.2d 1294, 1296 (9th Cir.1979) ("We begin our analysis stating the established rule that a bill of particulars cannot save an invalid indictment."). This is because "the purpose of a bill ofparticulars is to clarify ambiguities in an indictment," United States v. Ablett, No. C 09-749 RS, 2010 WL 3063145, at *3 (N.D. Cal. Aug. 3, 2010) (emphasis added), so as to "inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable him to plead his acquittal or conviction in bar of another prosecution for the same offense when the indictment itself is too vague, and indefinite for such purposes," United States v. Giese, 597 F.2d 1170, 1180 (9th Cir.1979) (quoting United States v. Brimely, 529 F.2d 103, 108 (6th Cir. 1976)).

Where an indictment is not "ambiguous," but rather is simply devoid of sufficient allegations to meet the standard of Rule 7, the proper remedy is dismissal of the indictment, not preparation of a bill of particulars. See Cecil, 608 F.2d at 1296 ("If a bill of particulars were allowed to save an insufficient indictment, the role of the grand jury as intervenor would be circumvented."). The converse is also true: where an indictment satisfies the fairly forgiving standard of Rule 7, but the defendant nevertheless legitimately needs to know more about the precise criminal conduct alleged in order to prepare for trial, the proper remedy is preparation of a bill of particulars, not dismissal of the charges. See, e.g., Ablett, 2010 WL 3063145, at *6 (denying defendant's motion to dismiss the indictment, but granting defendant's alternative request for a bill of particulars); United States v. Martinez, No. CR 13-794-WHA, 2014 WL 998183, at *1 (N.D. Cal. Mar. 12, 2014) (same).

III. WIRE FRAUD

To state an offense for wire fraud under § 1343, the Government must allege "(1) the existence of a scheme to defraud; (2) the use of [a] wire . . . to further the scheme; and (3) a specific intent to defraud." United States v. Lindsey, 850 F.3d 1009, 1013 (9th Cir. 2017). The Ninth Circuit recently held that "the crime of wire fraud requires the specific intent to utilize deception to deprive the victim of money or property, i.e., to cheat the victim." United States v. Miller, 953 F.3d 1095, 1099 (9th Cir. 2020) (emphasis added). Mr. Abouammo argues that the Government has failed to allege (1) that he made a material misrepresentation or omission in furtherance of the alleged fraudulent scheme and (2) that he deprived Twitter of its "property." The Court will address these arguments in turn.

A. The Superseding Indictment Alleges That Mr. Abouammo Made Several Material Misrepresentations and Omissions

Wire fraud consists of using wires in "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." 18 U.S.C. § 1343. To state an offense of this wire fraud statute, courts in this circuit require the Government to allege "some affirmative act of deception." United States v. Keuylian, 23 F. Supp. 3d 1126 (C.D. Cal. 2014). In other words, the superseding indictment must contain "enough facts to apprise a defendant of what defense should be prepared for trial." United States v. Holmes, No. 15-cr-00258-EJD, 2020 WL 666563, at *6 (N.D. Cal. Feb. 11, 2020). "Hence, the Government need not allege specific misstatements to meet the 'fair notice' requirement." Id.; see also United States v. Buckley, 689 F.2d 893 (9th Cir. 1982) (""[A]n indictment should be: (1) read as a whole; (2) read to include facts which are necessarily implied; and (3) construed according to common sense."); Cecil, 608 F.2d 1at 1296 ("[T]he indictment must set forth the elements of the offense charged and contain a statement of the facts and circumstances that will inform the accused of the specific offense with which he is charged." (citing Hamling v. United States, 418 U.S. 87, 117-18 (1974)); United States v. Curtis, 506 F.2d 985, 990 (10th Cir. 1974) ("While the particulars of the scheme . . . must be described with a degree of certainty sufficient to . . . fairly acquaint the defendant will [sic] the particular fraudulent scheme charged against him, still the scheme itself need not be pleaded with all the certainty in respect of time, place, and circumstance.").

Mr. Abouammo argues that the superseding indictment here...