United States v. Benjamin
| Decision Date | 05 October 2019 |
| Docket Number | Criminal Action No. 2016-0021 |
| Parties | UNITED STATES OF AMERICA v. JOANNE BENJAMIN, et al., Defendants. |
| Court | U.S. District Court — Virgin Islands |
Attorneys:
St. Croix, U.S.V.I.
Meredith Jean Edwards, Esq.,
St. Thomas, U.S.V.I.
For the United States
Kye Walker, Esq.,
St. Croix, U.S.V.I.
For Defendant Joanne Benjamin
Edward L. Barry, Esq.,
St. Croix, U.S.V.I.
St. Croix, U.S.V.I.
For Defendant Lynell Hughes
Yohana M. Manning, Esq.,
St. Croix, U.S.V.I.
For Defendant Thema Liverpool
Renee D. Dowling, Esq.,
St. Croix, U.S.V.I.
San Juan, Puerto Rico
For Defendant Indica Greenidge
Mark L. Milligan, Esq.,
St. Croix, U.S.V.I.
For Defendant Nisha Brathwaite
St. Croix, U.S.V.I.
For Defendant Darleen Thompson
John K. Dema, Esq.,
St. Croix, U.S.V.I.
For Defendant Nicolette Alexander
Anthony R. Kiture, Esq.,
St. Croix, U.S.V.I.
THIS MATTER comes before the Court on the following Motions:
For the purposes of this omnibus opinion, the Court will treat Defendants J. Benjamin's and Alexander's Motions to Dismiss the Original and Superseding Indictments collectively ("Motions to Dismiss") and will deny them for the reasons discussed below. Further, the Court will also deny Alexander's Motion to Compel, as well as Defendant J. Benjamin's request for discovery of grand jury materials.
On September 15, 2016, the Government filed a 119-count Indictment against J. Benjamin, Alexander and eight Co-Defendants charging them with Conspiracy to Defraud the United Statesin violation of 18 U.S.C. § 286, and Theft of Government Property in violation of 18 U.S.C. § 641 ("Original Indictment").7 Nine of the ten Defendants—including J. Benjamin and Alexander—were also charged with Aggravated Identity Theft in violation of 18 U.S.C. § 1028A(a)(1). (Dkt. No. 1). The Government filed a Superseding Indictment on October 5, 2018 ("Superseding Indictment"). (Dkt. No. 477).
According to the Affidavit of Special Agent Stephen E. Wagner ("Agent Wagner") of the United States Treasury Department, Internal Revenue Service ("IRS") Criminal Investigation, which was submitted in support of the Complaint, this case arises from an investigation conducted by the IRS into Defendants' roles in the alleged filing of fraudulent income tax returns with the United States and their alleged receipt of stolen funds as a result of those filings. (Criminal Action No. 16-mj-00024, Dkt. No. 1-1 at ¶ 4). Agent Wagner stated that on or about July 12, 2012, a Source of Information reported that "a group of individuals were involved in a scheme to file false tax returns with the IRS using stolen identities." Id. at ¶ 5. Some of these individuals were identified as participants in the scheme through the refunds that were deposited into their bank accounts. Id. at ¶ 6.
The Superseding Indictment describes the alleged mechanics of the scheme. All Defendants were known to each other as friends or associates and all resided in the U.S. Virgin Islands. (Dkt. No. 477 at 1). The scheme allegedly involved: (1) the acquisition of Personal Identifying Information ("PII") of individuals (i.e. name, social security number and date of birth); (2) the acquisition of bank accounts and prepaid debit card numbers for the deposit of falselyclaimed refunds; (3) the filing of tax returns with a designation of refunds to the acquired bank accounts or debit cards; and (4) the withdrawal of illegal refund deposits. Id. at 3. Each Defendant allegedly participated in one or more of these phases. Id. It is alleged that, in furtherance of the scheme, Defendants acquired PII for numerous individuals—some without the individuals' knowledge or consent; caused tax returns from 2010 and 2011 to be electronically filed with the IRS using the other individuals' personal information; falsified information on the tax returns concerning the income earned, tax withholding amount, credits, address, employer, occupation, and other information; and used the same information on multiple tax returns. Id. at 4. Defendants then allegedly designated bank accounts or prepaid debit cards for receipt of the refunds. Id. Once the refunds were deposited, Defendants allegedly withdrew that amount and spent it using debit cards, or transferred it to other accounts for personal use. Id. As a result of the scheme, Defendants allegedly received hundreds of thousands of dollars in illegal tax refunds. Id.
The following facts are derived from the representations on behalf of the Government in the Declaration of Assistant United States Attorney ("AUSA") Alphonso G. Andrews (Dkt. No. 635), and the Court's in camera review of relevant grand jury materials.8
The first Grand Jury to examine this matter, which was composed of 19 members, returned the Original Indictment in September 2016. Sometime between January 2017 and July 2017, the Government allegedly became aware that one of those 19 jurors was an alleged victim of the tax fraud scheme charged in the Original Indictment. The juror's full name was listed in the Original Indictment as a victim of Defendant Thema Liverpool ("Liverpool"). Further, one exhibit that the Government presented during the Grand Jury proceedings contained the name of the alleged victim. In addition, the alleged victim was interviewed by Agent Wagner—who was a witness for the Government during the Grand Jury proceedings—approximately eight months earlier. The record shows that at the beginning of the Grand Jury proceedings, the Government identified Defendant Liverpool, along with the other Defendants, as being involved in the case and asked the jurors whether they were related to or knew any of those individuals.9 The record reflects that there was no positive response. The record further shows that the alleged victim participated in the Grand Jury's deliberations regarding the instant matter. The Court's review of the Grand Jury materials revealed that all 19 jurors concurred in the vote for a True Bill.
According to the Government, its discovery of the alleged victim's inclusion in the Grand Jury—which occurred several months after the Original Indictment was issued—resulted in protracted "interoffice and interdepartmental discussions regarding how to address the matter," as the Government "weighed considerations of grand jury secrecy versus disclosure obligations." (Dkt. No. 635-1 at 1). In late September 2018, the Government, "out of an abundance of caution," decided to file a Superseding Indictment that was returned by a newly constituted Grand Jury. (Id.;Dkt. No. 477). The Superseding Indictment did not alter the Original Indictment, except that the full names of victims were removed and replaced with their initials only, and minor alterations were added to the "to wit" clauses in certain counts. The Government also disclosed the grand juror issue to three Defendants who had already entered guilty pleas under the Original Indictment.10 The Government informed these Defendants that it intended to file a Superseding Indictment, and requested that they execute waivers of any challenge to the Original Indictment to which they had pleaded guilty. The Government further informed these Defendants that if they chose not to waive, they would be included in the Superseding Indictment.
As noted above, on September 15, 2016, the Government filed an Indictment against Defendants. (Dkt. No. 1). On April 16, 2018, the Court entered a Scheduling Order which scheduled the trial in this matter for November 5, 2018. (Dkt. No. 378). This was followed by a Trial Management Order ("TMO") entered on October 6, 2018 (Dkt. No. 472), which scheduled a pretrial conference for October 25, 2018 and set other trial-related deadlines. Id. at 2. On October 5, 2018, the Government filed a Superseding Indictment (Dkt. No. 477) which was returned by a different Grand Jury than the Original Indictment. After presentation of the evidence, the new Grand Jury returned the same charges as in the Original Indictment.
On October 12, 2018, in the midst of the parties' pretrial deadlines, J. Benjamin filed an Emergency Motion to Dismiss (Dkt. No. 491), wherein her counsel reported learning the nightbefore that the Original Indictment was issued by a Grand Jury which included an alleged victim of the tax fraud scheme. Consequently, J. Benjamin requested that all proceedings in this action, including trial, be stayed pending resolution of her Emergency Motion to Dismiss, id. at 2, and that she be permitted access to discovery related to the Grand Jury proceedings from which the Original...
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