United States v. Rivera-Banchs

• Decision Date: 08 November 2021
• Docket Number: 20-CR-6046-EAW-MJP-3
• Parties: UNITED STATES OF AMERICA, v. EVELYN RIVERA-BANCHS, Defendant.
• Court: U.S. District Court — Western District of New York

UNITED STATES OF AMERICA, v. EVELYN RIVERA-BANCHS, Defendant.

No. 20-CR-6046-EAW-MJP-3

United States District Court, W.D. New York

November 8, 2021

REPORT AND RECOMMENDATION AND DECISION AND ORDER

For the United States:

Everardo A. Rodriguez, A.U.S.A.

United States Attorney's

For the Defendant:

Laura Anne Vanderbrook, Esq.

MARK W. PEDERSEN, UNITED STATES MAGISTRATE JUDGE.

REPORT AND RECOMMENDATION

INTRODUCTION

In a superseding indictment filed on March 25, 2021 (“Indictment”) the Grand Jury charged defendant Evelyn Banchs (“Defendant”) with money laundering in violation of Title 18, United States Code, §§ 1956(a)(1)(B)(i) and (h). (Count 10, ECF No. 119.) The Indictment also includes a forfeiture allegation against Defendant should she be convicted of the crime charged. (Id. at 8-9.) On October 28, 2021, the Honorable Elizabeth A. Wolford referred this case to the undersigned for all pre-trial matters including all pre-trial matters that a Magistrate Judge may hear and determine pursuant to 28 U.S.C. § 636(b)(1)(A), and those which a Magistrate Judge may hear and thereafter file a report and recommendation for disposition pursuant to § 636(b)(1)(B). (ECF No. 190.)

On September 14, 2021, Defendant filed her omnibus motion. (Vanderbrook Aff., Sept. 13, 2021, ECF No. 172-1.) The government filed what is titled as its “Response to Defendant's Motion for Grand Jury Records” on September 28, 2021. (Gov't Resp., ECF No. 177.)

On October 12, 2021, the undersigned heard oral argument on the omnibus motion. (ECF No. 180.) The undersigned issued a decision on a majority of the issues raised in Defendant's omnibus motion but reserved on Defendant's motion for dismissal of the Indictment based upon insufficiency, selective prosecution, and/or vindictive prosecution and suppression of tangible evidence. (ECF No. 186.) On October 15, 2021, Defendant filed an affidavit in support of her omnibus motion. (ECF No. 182.)

After hearing oral argument and reviewing all motion papers, the undersigned recommends that the District Court rule as follows:

1. Deny Defendant's motion to dismiss the Indictment based on insufficiency;

2. Deny Defendant's motion to dismiss the Indictment based on selective prosecution; 3. Deny Defendant's motion to dismiss the Indictment based on vindictive prosecution; and

4. Deny Defendant's motion for suppression of tangible evidence and for a hearing.

STANDARD OF LAW

The relevant portion of 28 U.S.C. § 636(b)(1)(A) provides that the undersigned may “conduct hearings, including evidentiary hearings, and [ ] submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A).” The exceptions in subparagraph (A) include motions to dismiss an indictment and to suppress evidence. 28 U.S.C. § 636(b)(1)(A).

DISCUSSION

Findings of Fact Regarding Defendant's Motion to Dismiss the Indictment.

Defendant contends that the Indictment should be dismissed on three separate grounds: insufficiency, selective prosecution, and vindictive prosecution. (Vanderbrook Aff. at 4.) With respect to insufficiency, Defendant argues that the evidence against Defendant is “tenuous at best, ” amounting to “innocuous bank account statements.” (Id.) Defendant further contends that there is no evidence demonstrating that she knew that the money her husband and co-defendant, John Rivera-Banchs (“Rivera-Banchs”) deposited in her account resulted from the illegal sale of drugs. (Id.)

At oral argument, the government argued that it presented supporting proof of the charge for money laundering to the grand jury and it found enough evidence to indict Defendant. The government further contends that the Indictment is valid on its face and is not subject to dismissal at this stage in the case. (Gov't Resp. at 3, ECF No. 177.) In addition, at oral argument the government argued that large amounts of money flowed into and out of Defendant's account and Defendant only made approximately $8, 000.00 a year through her employment, so it would be illogical that Defendant did not know that Rivera-Banchs was engaging in money laundering.

Defendant also asserted that the government's decision to indict her and not others, such as confidential informants or other unindicted co-conspirators, demonstrates selective and/or vindictive prosecution. (Vanderbrook Aff. at 4.) Defendant argued that the government only indicted her after Rivera-Banchs refused to cooperate, which she alleges is demonstrated by the year-long delay in indicting Defendant. (Id.) At oral argument, Defendant reiterated that if Rivera-Banchs had cooperated, the government would not have indicted Defendant because there is no evidence demonstrating that she knew the money flowing through her account constituted drug proceeds, and knowledge is a required element of money laundering.

Legal Conclusions Regarding Defendant's Motion to Dismiss the Indictment.

a. Insufficiency.

“A motion to dismiss an indictment must meet a high standard.” United States v. McClain, No. 19-CR-40A, 2019 WL 8955241, at *2 (W.D.N.Y. Dec. 9, 2019), report and recommendation adopted, No. 19-CR-40-A, 2020 WL 1503227 (W.D.N.Y. Mar. 30, 2020) (citation omitted). As a general rule, “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.” Hamling v. United States, 418 U.S. 87, 117 (1974); accord United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998); United States v. King, No. 98-CR-91A, 2000 WL 362026, at *8 (W.D.N.Y. Mar. 24, 2000); United States v. Pirk, 267 F.Supp.3d 406, 415 (W.D.N.Y. 2017).

To meet this sufficiency standard, 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. Walsh, 194 F.3d 37, 44 (2d Cir. 1999) (citations omitted). “Generally, the indictment does not have to specify evidence or details of how the offense was committed.” United States v. Moses, 512 F.Supp.3d 448, 455-56 (W.D.N.Y. 2021) (citation omitted). This is because “the validity of an indictment is tested by its allegations, not by whether the Government can prove its case.” Id. at 456. “[A]n indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.” United States v. Calandra, 414 U.S. 338, 345 (1974).

Additionally, “[i]t is axiomatic that, in a criminal case, a defendant may not challenge a facially valid indictment prior to trial for insufficient evidence. Instead, a defendant must await a Rule 29 proceeding or the jury's verdict before he may argue evidentiary sufficiency.” United States v. Gambino, 809 F.Supp. 1061, 1079 (S.D.N.Y. 1992); United States v. Francis, No. 08-CR-6098L, 2008 WL 4426580, at *3 (W.D.N.Y. Sept. 25, 2008) (finding defendant's motion to dismiss the indictment premature and stating that “[i]t is well-established that an indictment that is valid on its face, as is the case here, cannot be dismissed on the grounds that it is based on inadequate or insufficient evidence.”)

For these reasons, when considering a motion to dismiss an indictment, the Court must not conflate or confuse permissible claims based on sufficiency of the government's allegations with impermissible claims based on sufficiency of the government's evidence. See, e.g., United States v. Elson, 968 F.Supp. 900, 905 (S.D.N.Y. 1997). “[I]t would run counter to the whole history of the grand jury institution to permit an indictment to be challenged ‘on the grounds that there was inadequate or incompetent evidence before the grand jury.'” United States v. Williams, 504 U.S. 36, n. 11 (1992) (quoting Costello v. United States, 350 U.S. 359, 364 (1956)). Thus, “[a]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.” United States v. Mullen, 451 F.Supp.2d 509, 550 (W.D.N.Y. 2006) (quoting Costello, 350 U.S. at 363).

To the extent Defendant challenges the sufficiency of the government's evidence, Defendant's motion is premature. Even if this were not the case, standing alone, Defendant's bare conclusory allegation that the grand jury may not have heard her defense that she believed the funds flowing into and out of her bank account were from Rivera-Banchs' legitimate businesses, does not justify dismissal. Since the Indictment contains the elements of the offenses charged (Count 10), tracks the language of 18 U.S.C. § 1956(a)(1)(B)(i), and states the general time and place where the alleged crimes occurred, it is not facially insufficient as claimed by Defendant. Further, there has been no suggestion that the matter was not presented to a legally constituted, unbiased grand jury. Accordingly, the undersigned recommends that Defendant's motion to dismiss the Indictment for insufficiency be denied.

b. Selective Prosecution

The Second Circuit has provided that the standard required for dismissal of an indictment on the basis of selective prosecution is high. United States v. Bout, 731 F.3d 233, 238-39 (2d Cir. 2013). To be successful on a claim for selective prosecution, a defendant must establish that she was “treated differently from other similarly situated individuals and that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights or malicious...