United States v. Moses

• Decision Date: 12 January 2021
• Docket Number: 6:19-CR-06074 EAW
• Parties: UNITED STATES of America, v. George MOSES, Defendant.
• Court: U.S. District Court — Western District of New York

512 F.Supp.3d 448

UNITED STATES of America,

v.George MOSES, Defendant.

6:19-CR-06074 EAW

United States District Court, W.D. New York.

Signed January 12, 2021

Melissa M. Marangola, Richard A. Resnick, U.S. Attorney's Office, Rochester, NY, for United States of America.

Frederick P. Hafetz, Noah E. Shelanski, Hafetz & Necheles LLP, New York, NY, for Defendant George Moses.

Michael J. Tallon, Michael J. Tallon, P.C., Rochester, NY, for Defendant Janis White.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

I. INTRODUCTION

Defendant George Moses ("Moses") is charged by way of a Fifth Superseding Indictment (hereinafter the "indictment") with 32 separate counts of mail and wire fraud, conspiracy to commit the same, money laundering, federal program bribery and theft, tampering with documents, false statements, and filing false income tax returns. (Dkt. 123). Moses has filed a motion to dismiss counts one through five of the indictment on the grounds that they fail to state a crime. (Dkt. 143). For the reasons set forth below, the motion is denied.

II. FACTUAL AND PROCEDURAL BACKGROUND

Moses was originally charged with making false statements in violation of 18 U.S.C. § 1001 by way of a criminal complaint in October 2018. (Dkt. 1). The criminal case has now evolved into the 32 pending charges as alleged in the sixth indictment returned against Moses, and it also includes charges against a co-defendant, Janis White ("White").¹ (Dkt. 123). Moses’ trial has been adjourned several times at the request of his counsel due to the COVID-19 pandemic, and it is now scheduled to proceed on October 12, 2021. (Dkt. 150).

With the pending motion, Moses seeks dismissal of counts one through five of the indictment. Count one alleges conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349, related to an alleged agreement between Moses and Shirley Boone ("Boone")² to defraud the Dormitory Authority of the State of New York ("DASNY"), by obtaining a $45,000 grant reimbursement from DASNY to the North East Area Development Inc. ("NEAD"), described in the indictment as "a not-for-profit neighborhood tax-exempt organization" that Moses served as Executive Director and Boone served as Chief of Staff, reporting directly to Moses. (Indictment³ at Introduction, ¶¶ 1, 7, 13, 17; Count One, ¶¶ 2, 3). The indictment alleges that Moses and Boone falsely represented to DASNY that Freedom Community Enterprise, Inc. ("Freedom Community"), a wholly owned, for-profit subsidiary of NEAD controlled by Moses, "was hired by NEAD to provide roofing and other rehabilitation services at a cost of $45,000, when in actuality, Freedom Community was not a construction company, nor did it provide roofing or other rehabilitation services for NEAD." (Id. at Introduction, ¶ 14; Count One, ¶ 3).

The indictment details that on or about June 13, 2016, Moses applied for a $125,000 grant from DASNY on behalf of NEAD for the NEAD Project,⁴ which was approved by DASNY on August 7, 2017. (Id. at Count One, ¶¶ 4-7). Moses then executed the Grant Disbursement Agreement which indicated that "NEAD could apply for reimbursement for expenditures it had incurred and paid in connection the NEAD Project by submitting a Payment Requisition Form and Dual Certification, along with supporting documentation for such expenditures." (Id. at ¶ 8). The indictment alleges at paragraphs 9 through 16 of count one that the object of the conspiracy was accomplished through the following means and methods:

9. On or about February 23, 2018, the defendant MOSES authorized and signed a $45,000 check from NEAD to Freedom Community to make it falsely appear that Freedom Community had been paid $45,000 for construction services performed in connection with the NEAD Project. In actuality, Freedom Community did not perform any services in connection with the NEAD Project.

10. Between on or about February 28, 2018 and on or about March 5, 2018, a letter signed by the defendant MOSES, on behalf of NEAD, was sent by United States mail to DASNY along with (a) a Payment Requisition Form and Dual Certification form signed by the defendant MOSES which falsely represented that NEAD had paid $45,000 for work purportedly performed in connection with the NEAD Project, (b) a Payment Requisition Back-up Summary form which falsely represented that NEAD had paid $45,000 to Freedom Community for work purportedly performed by Freedom Community in connection with the NEAD Project, (c) a fraudulent invoice in the amount of $45,000 from Freedom Community to NEAD, and (d) a copy of the $45,000 check from NEAD to Freedom Community that made it falsely appear that Freedom Community had been paid $45,000 for construction services performed in connection with the NEAD Project.

11. On or about March 6, 2018, the defendant MOSES authorized and signed a $45,000 check from Freedom Community back to NEAD to repay NEAD for the $45,000 that the defendant MOSES had previously paid to Freedom Community as part of the scheme and artifice.

12. On or about March 8, 2018, Shirley Boone sent an email in interstate commerce to DASNY, with a copy to the defendant MOSES, that contained a copy of a bank statement showing that the $45,000 check from NEAD to Freedom Community had been deposited by Freedom Community to trick DASNY into believing that NEAD had in fact paid Freedom Community $45,000 for services performed in connection with the NEAD Project.

13. On or about March 8, 2018, Shirley Boone also sent an email in interstate commerce to DASNY, with a copy to the defendant MOSES, that contained a copy of a fraudulent Proposal signed by the defendant MOSES on behalf of NEAD, and purportedly signed by Janis White, as president of Freedom Community, which was falsely backdated to September 10, 2017, to trick DASNY into believing that Freedom Community had agreed with NEAD to perform construction services in connection with the NEAD Project.

14. On or about March 13, 2018, the defendant MOSES sent an email in interstate commerce to DASNY in which he falsely indicated that Freedom Community had in fact provided construction services to NEAD in connection with the NEAD Project, and that Freedom Community was a separate entity from and not associated with NEAD.

15. On or about June 26, 2018, Shirley Boone sent an email in interstate commerce to DASNY, with a copy to the defendant MOSES, that contained a fraudulent letter from Freedom Community addressed to the defendant MOSES at NEAD, and purportedly signed by Janis White, on behalf of Freedom Community. The purpose of the fraudulent letter was to falsely represent to DASNY that Freedom Community had in fact completed construction services worth $45,000 in connection with the NEAD Project.

16. On or about July 16, 2018, as a result of the scheme and artifice, DASNY wire transferred in interstate commerce $45,000 from its bank account to NEAD's M&T Bank ... account ending 5649, to reimburse NEAD.

(Id. at Count One, ¶¶ 9-16).

Count two alleges mail fraud in violation of 18 U.S.C. §§ 1341 and 2, in connection with the alleged mailings of documents by Moses to DASNY as part of the scheme, as detailed in paragraph 10 of count one. (Id. at 10-11). Count three alleges wire fraud in violation of 18 U.S.C. §§ 1343 and 2, in connection with the wire communications detailed in paragraphs 12 through 16 of count one. (Id. at 11-12). Count four alleges money laundering in violation of 18 U.S.C. §§ 1957(a) and 2, by the transfer of $40,000 on July 16, 2018, from NEAD's bank account in which the DASNY $45,000 was deposited (as referenced in paragraph 16 of count one) to another NEAD bank account. (Id. at 13). Count five also alleges money laundering in violation of 18 U.S.C. §§ 1957(a) and 2 by the transfer on July 18, 2018, of $15,801.67 from the NEAD bank account that received the funds referenced in count four, to an ADP Wage Pay account. (Id. ).

Moses seeks dismissal of counts one through five on the grounds that the allegations are legally insufficient to constitute the crimes alleged therein. (Dkt. 143-1). The government opposes the motion. (Dkt. 146). Moses submitted a reply in further support of his motion and in response to the government's opposition. (Dkt. 148). Oral argument was held before the undersigned on December 16, 2020, at which time the Court reserved decision and took the matter under advisement. (Dkt. 149).

III. DISCUSSION

A. The Parties’ Positions

1. Moses’ Initial Motion Papers

Moses contends that counts one through five are insufficient because the wire and mail fraud counts (and the count for conspiracy to commit the same) lack the requisite allegations of fraudulent intent, and the money laundering counts based on those counts must also necessarily fail. (Dkt. 143-1 at 4-5). Moses argues that the government has conflated intent to deceive with intent to defraud. (Id. at 7). To support his argument, Moses focuses on paragraph 3 of count one of the indictment, which states as follows:

The object of the conspiracy was for the defendant MOSES and Shirley Boone to fraudulently obtain a $45,000 grant reimbursement from DASNY for NEAD. To do so, the defendant MOSES and Shirley Boone falsely represented to DASNY that Freedom Community was hired by NEAD to provide roofing and other rehabilitation services at a cost of $45,000, when in actuality, Freedom Community was not a construction company, nor did it provide roofing or other rehabilitation services for NEAD.

(See Dkt. 143-1 at 8; see also Indictment at Count One, ¶ 3). According to Moses, "[t]he alleged deceit in this fraud scheme is that NEAD falsely represented to DASNY that NEAD hired [Freedom Community] to do roofing/rehabilitation for $45K, when in fact ... [Freedom Community] was not a construction company; and ... [Freedom Community] did not do roofing and rehabilitation for NEAD. " (Id. (emphasis in original)). Because, Moses argues, "deceit is sufficient to establish mail and wire fraud only if it has ...