United States v. Fishbein
| Decision Date | 21 April 2022 |
| Docket Number | 21-cr-296 (PAC) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. PAUL FISHBEIN, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Defendant Paul Fishbein moves to dismiss two counts of wire and mail fraud from an indictment returned against him. He also seeks to inspect the grand jury transcripts related to that indictment. For the reasons stated below, Fishbein's motions are DENIED.
Fishbein was initially charged in a four-count Complaint in April 2021. See ECF No. 1 (the “Complaint”). One month after the Complaint, in May 2021, a federal grand jury returned an indictment against Fishbein. See ECF No. 11 (the “Indictment”). The Indictment contains the same four counts as the Complaint. Count One of the Indictment alleges wire fraud in violation of 18 U.S.C §§ 1343 and 2; Count Two alleges mail fraud in violation of 18 U.S.C. §§ 1341 and 2; Count Three alleges theft of government funds in violation of 18 U.S.C § 641; and Count Four alleges Medicaid fraud in violation of 18 U.S.C. § 1347.
Factually the Indictment claims that Fishbein engaged in two related schemes to defraud the government. First, Fishbein is alleged to have posed as “the landlord and owner of approximately 19” residential properties in order to receive payments from several New York City administrative agencies (the “Agencies”), including the Human Resources Administration (“NYCHRA”), Housing Preservation & Development (“NYCHPD”), and the Housing Authority (“NYCHA”). Indictment at ¶¶ 1-2. Despite not being the landlord or owner of the properties, Fishbein allegedly rented them out to “homeless and in-need families under the auspices of the Agencies' rental assistance programs” and collected rental subsidy payments in the process. Id.
To participate in these programs, Fishbein allegedly used interstate electronic mail and completed packages of paperwork. See id. He received over $1.5 million dollars (including hundreds of thousands of dollars in federal funds) over the course of the scheme. See ECF No. 1 (the “Complaint”) at ¶ 13. This rental assistance scheme allegedly occurred for around eight years, from at least in or about 2013 until the Indictment was filed. See Indictment at ¶¶ 1-2.
Second, Fishbein is alleged to have falsely claimed eligibility for federal Medicaid benefits. See id. at ¶ 4. Fishbein allegedly told NYCHRA that he made only around $7, 200 a year, despite making hundreds of thousands of dollars a year from the rental assistance scheme. See Complaint at ¶¶ 37-42. He allegedly received “more than $47, 000 in Medicaid benefits to which he was not entitled.” Indictment at ¶ 4. Similar to the rental assistance scheme, Fishbein allegedly committed Medicaid fraud over several years, from at least 2014 to in or about April 2021. See id.
Fishbein challenges Counts One and Two of the Indictment, which allege he committed wire and mail fraud. He does not challenge the remaining counts.
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)).
“To satisfy these requirements, an indictment need do little more than... track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.” United States v. Dawkins, 999 F.3d 767, 779 (2d Cir. 2021) (quotation marks omitted). 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, 490 F.3d 208, 229 (2d Cir. 2007) (citation 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. (citation and quotation marks omitted).
When evaluating the sufficiency of an indictment, the Court considers the allegations 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). Thus, “[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” like the counts that Fishbein challenges here. United States v. Almaleh, No. 17 Cr. 25 (ER), 2022 WL 602069, at *2 (S.D.N.Y. Feb. 28, 2022); see also, e.g., United States v. Gatto, 295 F.Supp.3d 336, 341 (S.D.N.Y. 2018) (denying motion to dismiss a wire fraud conspiracy indictment that “track[ed] the language of [the federal wire fraud statute], ” and reasoning that “extensive factual allegations as to when, how and with whom the alleged scheme was undertaken” were “more than sufficient to inform defendants” of the charge against them).
Counts One and Two of the Indictment meet-and exceed-the minimal thresholds needed to survive Fishbein's motion to dismiss. The Indictment cites to the wire and mail fraud statutes and essentially tracks their language verbatim.[1] Counts One and Two both allege Fishbein “willfully and knowingly, having devised and intending to devise a scheme and artifice to defraud, and for obtaining money and property by means of false and fraudulent pretenses, representations, and promises, did transmit and cause to be transmitted by means of' wire and mail “for the purpose of executing such scheme and artifice .. .Indictment at ¶¶ 1-2.
The Indictment also “state[s] the time and place (in approximate terms) of the alleged crime[s].” Dawkins, 999 F.3d at 779. It provides the estimated date ranges of Fishbein's schemes: the rental assistance scheme is alleged to have taken place from around 2013 to 2021, and the Medicaid scheme is alleged to have taken place from around 2014 to April 2021. It further describes the government Agencies that Fishbein allegedly defrauded, as well as the means by which he defrauded them-identifying properties in New York City that he (falsely) purported to own for rental assistance purposes and the income that he (falsely) purported to receive for Medicaid purposes. Further specificity about the time and place of Fishbein's alleged crimes is not required. See Daugerdas v. United States, No. 09 Cr. 581, 2021 WL 603068, at *7 (S.D.N.Y. Feb. 16, 2021) (“[C]ourts in this District have held that an indictment for mail fraud need not identify the victim, the exact mailing dates, or which materials are alleged to be fraudulent.”) (citation and quotation marks omitted).
Fishbein nevertheless maintains that the Indictment fails to allege that he “intended to harm the government agencies.” ECF No. 35 (Def.'s Mem. Supp. Mot Dismiss) at 7. In essence, he contends that he cannot be prosecuted for falsely claiming to own the properties so long as the Agencies still received their end of the bargain-after all, he argues, the properties were still rented i to the tenants regardless of their actual owner. Fishbein's theory is premature at this stage. It is true that a scheme to defraud ultimately requires the government to prove that Fishbein “contemplated some actual harm or injury to [his] victims.” United States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987) (emphasis removed). But while Fishbein may challenge this aspect of the government's proof later at trial, [2] the Indictment need not allege Fishbein had an intent to harm the Agencies. As discussed above, the Indictment tracks the language of the wire and mail fraud statutes almost verbatim and adequately alleges the essential elements of those statutes, which is all that is required to survive a motion to dismiss. See United States v. Wey, No. 15 Cr. 611 (AJN), 2017 WL 237651, at *9 (S.D.N.Y. Jan. 18, 2017) () (emphasis in original); United States v. Riccio, 43 F.Supp.3d 301, 308 (S.D.N.Y. 2014) (); United States v. Ferguson, 478 F.Supp.2d 220, 231 (D. Conn. 2007) (); United States v. Martin, 411 F.Supp.2d 370, 373 (S.D.N.Y. 2006) (...
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