United States v. Ologeanu

• Decision Date: 04 April 2020
• Docket Number: No. 5:18-CR-81-REW-MAS,5:18-CR-81-REW-MAS
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. BENIAMIN-FILIP OLOGEANU, ANDREI-CATALIN STOICA, LIVIU-SORIN NEDELCU, BOGDAN-STEFAN POPESCU, and VLAD-CALIN NISTOR, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

UNITED STATES OF AMERICA, Plaintiff, v. BENIAMIN-FILIP OLOGEANU, ANDREI-CATALIN STOICA, LIVIU-SORIN NEDELCU,BOGDAN-STEFAN POPESCU, and VLAD-CALIN NISTOR, Defendants.

No. 5:18-CR-81-REW-MAS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON

April 4, 2020

OPINION & ORDER*** *** *** ***

Before the Court are two dismissal motions premised on constitutional (DE 456), jurisdictional, and venue arguments (DE 459). Before turning to the pending requests, some background.

The operative indictment in this matter alleges a lengthy international RICO conspiracy. See DE 249 (Superseding Indictment) (hereinafter the "Indictment"). Specifically, the document charges that Defendants Stoica, Nedelcu, Popescu, Nistor, Ologeanu, (the "Movants") and 12 of their co-Defendants were "members and associates of a criminal organization" termed the "Alexandria Online Auction Fraud Network[.]" Id. at ¶ 1. Per the charging instrument:

[AOAF Network] leaders, members, and associates engaged in, among other things, acts of mail and wire fraud, money laundering, identity theft, and counterfeit trademark trafficking. These acts were committed in furtherance of a wide-scale online auction fraud scheme, that is, posting false advertisements for goods online, often using stolen identities and trademarks from legitimate online auction companies, with the intent to defraud United States-based victims out of money and laundering the money through channels in the United States and ultimately Eastern Europe.

Id. Under this overarching theory, the Indictment charges the Movants and 12 others with conspiring—between December 31, 2013, and December 11, 2018—to operate a criminal enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d). Id. at ¶¶ 7-29 (Count 1).¹ The Court, for current purposes, declines a full summary of the 90-page Indictment. However, as relevant to the Movants, the following additional charges pertain:

— Defendant Stoica is charged with conspiring from September 2, 2015, through December 11, 2018, to commit wire fraud, in violation of 18 U.S.C. § 1349, id. at ¶¶ 30-42 (Count 2), and four types of money laundering, all in violation of 18 U.S.C. § 1956(h), id. at ¶¶ 43-49 (Count 3); as well as two discrete—June 10 and June 25, 2016—acts of aggravated identity theft, each in violation of 18 U.S.C. § 1028A, id. at ¶¶ 50-51 (Counts 4 & 5).

— Defendant Nedelcu faces charges of conspiring, from May 2, 2015, through January 2018, to commit wire fraud, in violation of 18 U.S.C. § 1349, id. at ¶¶ 69-78 (Count 8); and conspiring, from May 2, 2015, through January 2017, to commit four types of money laundering, all in violation of 18 U.S.C. § 1956(h), id. at ¶¶ 79-85 (Count 9).

— Defendant Popescu is charged with conspiring, from December 31, 2013, through December 11, 2018, to commit wire fraud, in violation of 18 U.S.C. § 1349, id. at ¶¶ 164-72 (Count 19).

— Defendants Popescu and Nistor are charged with conspiring, from October 30, 2015, through October 2017, to commit four types of money laundering, all in violation of 18 U.S.C. § 1956(h), id. at ¶¶ 173-78 (Count 20).

— Defendant Ologeanu faces charges of conspiring, from December 13, 2013, through September of 2017, to commit wire fraud, in violation of 18 U.S.C. § 1349, id. at ¶¶ 179-89 (Count 21); and conspiring, from December 13, 2014, through September 2017, to commit four types of money laundering, all in violation of 18 U.S.C. § 1956(h), id. at ¶¶ 190-97 (Count 22).

[The conduct undergirding each charge allegedly occurred in this federal District and elsewhere. See id. at ¶¶ 8, 32, 44, 50-51, 71, 80, 165, 174, 181 & 191.] The Movants' (and 2 co-Defendants')jury trial is currently set for June 15, 2020. See DE 500. With the general case backdrop in mind, the Court turns to the pending requests.

I. OLOGEANU'S MOTION

Defendant Ologeanu (joined by Defendants Stoica, Nedelcu, and Popescu)² seeks dismissal, per criminal Rule 12(b)(1),³ on due process and Sixth Amendment grounds. See DE 456-1. Movant contends that witness testimony and documentary proof necessary for him to present a constitutionally complete defense are unavailable to him and beyond the Court's subpoena powers. See id. The motion—fully briefed, see DE 523 (Response), DE 541 (Reply)—stands ripe for review. The Court, for the following reasons, finds that Defendant fails to substantiate any constitutional infirmity and thus DENIES DE 456.

Compulsory Process & Complete Defense

Ologeanu's theory centers on his undoubted constitutional right to "a meaningful opportunity to present a complete defense." California v. Trombetta, 104 S. Ct. 2528, 2532 (1984); cf. Strickland v. Washington, 104 S. Ct. 2052, 2063 (1984) ("The Constitution guarantees a fairtrial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment[.]"). To protect that right, the Supreme Court has developed jurisprudence "in what might loosely be called the area of constitutionally guaranteed access to evidence[.]" United States v. Valenzuela-Bernal, 102 S. Ct. 3440, 3446 (1982). One such guarantee is an accused's right "to have compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI.

The Right is Not Boundless

Broadly, Defendant's theory is that this Court lacks the authority to subpoena needful evidence (primarily foreign witness testimony but also documents abroad) for his defense, and that a trial absent such overseas proof would be constitutionally infirm. It is true that neither the relevant criminal rules or statute permits this Court to secure the at-issue witnesses or the subject proof. See 28 U.S.C. § 1783 (limiting extraterritorial subpoena power, in relevant part, to "a national or resident of the United States who is in a foreign country"); Fed. R. Crim. P. 17(e); cf. United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir. 1984) ("In the first place, being Swiss nationals in Switzerland, they were not amenable to service of United States process, either by statute or treaty."). However, Movant incorrectly concludes that the described inaccessibility implicates his compulsory process or due process rights.

Per the Supreme Court, "more than the mere absence of testimony is necessary to establish a violation of the" Sixth Amendment's "compulsory process" guarantee. Valenzuela-Bernal, 102 S. Ct. at 3446. "[A] defendant is only entitled to compulsory process when it is within the powerof the government to provide such process." United States v. Epskamp, No. 15-2028-CR, 2016 WL 4191126, at *2 (2d Cir. Aug. 5, 2016).⁴ As the Fourth Circuit ably explained:

A criminal defendant's right to compulsory process is not unlimited. Few rights, to be sure, are more fundamental than that of an accused to present witnesses in his own defense, and the right to compulsory process is imperative to the function of courts in our adversary system. But the right to compulsory process does not scorn practicality. Crucially, the Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses. In concrete terms, the right to compulsory process is circumscribed by the ability of the district court to obtain the presence of a witness through service of process.

United States v. Beyle, 782 F.3d 159, 170 (4th Cir. 2015) (citations, quotation marks, and alterations omitted). In short, the defense accurately observes that this Court likely lacks authority to compel production of the at-issue proof; but, that argument illustrates a boundary, rather than a violation of the compulsory process right on which Defendant relies. See id. at 170 ("A convictiondoes not become unconstitutional simply because the federal courts lack power to secure the appearance of a foreign national located outside the United States."); cf. United States v. Bryan, 70 S. Ct. 724, 730 (1950) ("[P]ersons summoned as witnesses by competent authority have certain minimum duties and obligations[,] . . . which every person within the jurisdiction of the Government is bound to perform when properly summoned." (emphasis added)).

Critically, Defendant does not allege that any Government misfeasance or nonfeasance denies him the proof he seeks. Governmental action or inaction causally linked to the alleged deprivation is an axiomatic predicate for a cognizable constitutional claim. See, e.g., Valenzuela-Bernal, 102 S. Ct. at 3447-48 ("[I]nterests protected by the Sixth Amendment look to the degree of prejudice incurred by a defendant as a result of governmental action or inaction." (emphasis added)); United States v. Marion, 92 S. Ct. 455, 466 (1971) ("Nor have appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause. No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them." (emphasis added)); Brady v. Maryland, 83 S. Ct. 1194, 1196-97 (1963) (holding that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment" (emphasis added)). Because Ologeanu fails to show "that the government holds some degree of power over the foreign [proof's] availability," Movant's argument fails from the jump. See Skaggs, 327 F.R.D. at 171.

Bad Faith is Required When the Right Applies

Moreover, a Government act or omission that contributes to a witness's (or other proof's) placement beyond a court's power—i.e., a circumstance (not present here) in which a court could,absent executive-branch hurdles, have compelled the witness's appearance⁵—is not ipso facto a constitutional infringement. Rather, a defendant claiming a violation of "his right of compulsory process . . . must first make an initial...