United States v. Almaleh

• Decision Date: 28 February 2022
• Docket Number: 17 Cr. 25 (ER)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ISSAK ALMALEH, a/k/a “Issak Izrael, ” and ANTOANETA IOTOVA, Defendants.
• Court: U.S. District Court — Southern District of New York

UNITED STATES OF AMERICA, Plaintiff,
v.
ISSAK ALMALEH, a/k/a “Issak Izrael, ” and ANTOANETA IOTOVA, Defendants.

No. 17 Cr. 25 (ER)

United States District Court, S.D. New York

February 28, 2022

OPINION & ORDER

EDGARDO RAMOS, U.S.D.J.

In this action, the government has alleged two types of fraudulent activity orchestrated by Issak Almaleh and Antoaneta Iotova. Superseding Indictment, Doc. 462 (“S1 Indictment”). First, from approximately March 2011 through September 2017, the defendants orchestrated a scheme through which they filed fraudulent or forged documents purporting to transfer ownership of real properties located in New York and Florida to themselves or entities over which they exercised control, and subsequently fraudulently rented or attempted to rent those properties to others. Id. at ¶¶ 4-5. Second, on approximately April 29, 2015, the defendants submitted a false application for federal deposit insurance to the Federal Deposit Insurance Corporation (“FDIC”). Id. at ¶ 6.

The government charged the defendants with four: conspiracy to commit mail fraud and wire fraud, mail fraud, wire fraud, and false statements to the FDIC pursuant to 18 U.S.C. §§ 1341 and 2. 18 U.S.C. §§ 1343 and 2. and 18 U.S.C. §§ 1007 and 2. See id.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The government filed the original indictment on January 11, 2017. Doc. 2. On August 31, 2020. the defendants filed two motions. First, they filed a motion to dismiss

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the original indictment or, in the alternative, for a bill of particulars. Doc. 423; Memorandum of Law in support of Motions to Suppress Physical Evidence, Doc. 427 (“Mot. to Suppress”). He defendants argued, in part, that the indictment is insufficient with respect to Counts One (conspiracy to commit bank fraud), Two (bank fraud), and Three (wire fraud). Memorandum of Law in support of Motion to Dismiss or, in the alternative, for Bill of Particulars, Doc. 425 (“Mot. to Dismiss”). Second, they filed a motion to suppress evidence seized pursuant to warrants. Doc. 426; Mot. to Dismiss.

On December 6, 2021, the government filed the S1 Indictment. He S1 Indictment contains new Counts One (conspiracy to commit mail fraud and wire fraud) and Two (mail fraud). On January 31, 2022, the Court directed the defendants to file supplemental briefing regarding Counts One through Three in the S1 Indictment by February 14. Doc. 470. As further described below, the defendants filed supplemental briefing on February 14. Supplemental Memorandum of Law in support of Motion to Dismiss or, in the alternative, for Bill of Particulars, Doc. 477 (“Supp. Mot. to Dismiss”).

For the reasons discussed below, the defendants' motions are DENIED.

II. MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR A BILL OF PARTICULARS

He defendants move to dismiss the S1 Indictment pursuant to Federal Rule of Criminal Procedure 12 for failure to state an offense and for lack of specificity or, in the alternative, for a bill of particulars pursuant to Federal Rule of Criminal Procedure 7(f) with respect to Counts Two and Three, and to strike prejudicial surplusage from the S1 Indictment.

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A. Legal Standards

i. Rule 12(b)(3)(B)

A defendant may move to dismiss an indictment on the ground that it is defective under Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure, including for lack of specificity and failure to state an offense. “Since federal crimes are ‘solely creatures of statute,' a federal indictment can be challenged on the ground that it fails to allege a crime within the terms of the applicable statute.” United States v. Aleynikov, 676 F.3d 71, 7576 (2d Cir. 2012) (quoting Dowling v. United States, 473 U.S. 207, 213 (1985)) (internal citation omitted). An indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged, ” and “must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.” Fed. R. Crim. P. 7(c)(1). “An indictment is sufficient if it ‘first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'” United States v. Stringer, 730 F.3d 120, 124 (2d Cir. 2013) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). In order to satisfy these requirements, “an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.” United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992) (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975)). Hus, the indictment need only allege “the ‘core of criminality' the government intend[s] to prove” at trial, and consequently, the indictment is “read . . . to include facts which are necessarily implied by the specific allegations made.” United States v. Rigas,

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490 F.3d 208, 229 (2d Cir. 2007) (citations omitted). Where the charged crime “involves making false statements, the ‘core of criminality' is not the substance of the false statements but rather that knowing falsehoods were submitted.” Id. (quoting United States v. Sindona, 636 F.2d 792, 797 (2d Cir. 1980)) (internal quotation marks omitted).

When evaluating the sufficiency of an indictment, the court considers all allegations in the indictment to be true and does not consider any contrary assertions of fact by the defendant. See United States v. Goldberg, 756 F.2d 949, 950 (2d Cir. 1985); see also United States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998) (opining that a court focuses on the legal sufficiency of the indictment itself, without ruling on the legal sufficiency of the evidence). Therefore, “[a] defendant challenging the sufficiency of an indictment on a motion to dismiss faces a high hurdle.” United States v. Percoco, No. 16 Cr. 776 (VEC), 2017 WL 6314146, at *2 (S.D.N.Y. Dec. 11, 2017).

Courts have generally applied these standards to indictments containing counts of mail and wire fraud and conspiracy to commit such fraud. See, e.g., United States v. Kozel, No. 19 Cr. 460 (KMW), 2020 WL 4751498, at *2 (S.D.N.Y. Aug. 17, 2020) (denying motion to dismiss indictment, because “[e]ach count of the Indictment . . . sets forth the elements of the offenses alleged, and states the approximate time period during which the violation is alleged to have occurred, ” and finding that “by providing Defendant with a narrative of the manner in which Defendant is alleged to have committed the charged offenses, the Indictment provides Defendant with more detail than is strictly necessary”); United States v. Gatto, 295 F.Supp.3d 336, 341 (S.D.N.Y. 2018) (denying motion to dismiss indictment containing conspiracy to commit wire fraud where it “track[ed] the language of [the federal wire fraud statute], ” and opining that “extensive

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factual allegations as to when, how and with whom the alleged scheme was undertaken . . . [were] more than sufficient to inform defendants of the particulars of the alleged conspiracy in which they are charged with having participated”).

ii. Rule 7(f)

“Rule 7(f) of the Federal Rules of Criminal Procedure permits a defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling [the] defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense.” United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). “A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.” United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y. 1987) (citations omitted), aff'd, 875 F.2d 857 (2d Cir. 1989). “It is not enough that the information would be useful to the defendant; if the defendant has been given adequate notice of the charges against him, the government is not required to disclose additional details about its case. He court must be cognizant of the fact that a bill of particulars confines the government's evidence at trial to the particulars furnished.” United States v. Payden, 613 F.Supp. 800, 816 (S.D.N.Y. 1985). “Therefore, the proper test in deciding whether a bill of particulars should be required of the Government is whether the bill of particulars is necessary for the defense, not whether it would aid the defendant in his preparation.” United States v. Trippe, 171 F.Supp.2d 230, 240 (S.D.N.Y. 2001) (emphasis added) (citations omitted).

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“Whether to grant a bill of particulars rests within the sound discretion of the district court, ” United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984) (citation omitted), after considering “the totality of the information available to the defendant- through the indictment, affirmations, and general pre-trial discovery.” United States v. Thompson, No. 13 Cr. 378 (AJN), 2013 WL 6246489, at *7 (S.D.N.Y. Dec. 3, 2013) (citation omitted); see United States v. Binday, 908 F.Supp.2d 485, 497 (S.D.N.Y. 2012) (“If the information the defendant seeks ‘is provided in the indictment or in some acceptable alternate form,' such as discovery or other correspondence, no bill of particulars is required.” (quoting Bortnovsky, 820 F.2d at 572)).

B. Discussion

i. Motion to Dismiss

The defendants initially moved to dismiss the original indictment pursuant to Rule 12(b)(3)(B) for failure to state an offense and for lack of specificity. Mot. to Dismiss at 3-17. Following the filing of the S1 Indictment, the defendants maintain the motion to dismiss on these grounds, ^[1] and further allege that the S1 Indictment should be dismissed on...