Summary
rejecting motion to strike reference to 18 U.S.C. § 2 in the indictment
Summary of this case from Ray v. U.S.Opinion
Case No. 99 CR 689.
December 22, 2000
MEMORANDUM OPINION AND ORDER
Defendant Geok Soo Lim has moved to dismiss Counts 2, 3, 4, and 5 the superseding indictment on grounds of multiplicity, to strike the references to 18 U.S.C. § 2 in Counts 1 through 5, and to strike paragraph 9 of Count 1. In response to the first of these motions, the government has already dismissed Count 4 on the grounds that it is multiplicitous of Count 3. For the reasons stated below, the Court denies Lim's motions.
1. The indictment
The indictment alleges that Lim was an authorized signatory on two accounts at Citibank Singapore, one of which was closed in April 1994 and the other of which was open but had a balance of less than $15,000. Lim was also a signatory on a checking account at Citibank FSB in Chicago, and his daughter, defendant Lily Ling Lim, was a signatory on a savings account at Citibank FSB. According to the indictment, between August 30 and September 8, 1999, Lim engaged in a scheme to defraud Citibank in violation of 18 U.S.C. § 1344. The indictment alleges that Lim deposited and caused his daughter to deposit into the Citibank FSB accounts $2.9 million in checks drawn on the Citibank Singapore accounts despite the fact that he knew that the latter accounts did not contain the funds to cover the checks. The indictment further alleges that Lim made and caused his daughter to make a total of $1.8 million in withdrawals from the Citibank FSB accounts, before the bank discovered that the balances in those accounts had been fraudulently inflated by the bad checks drawn on the Citibank Singapore accounts.
Count 1 alleges that on September 2, 1999, Lim deposited into one of the Chicago accounts a check for $36,500 Singapore dollars ($20,983 U.S. dollars). Count 2 alleges that on September 3, Lim withdrew $40,000 from one of the Chicago accounts. Count 3 alleges that on September 8, Lim deposited into one of the Chicago accounts a check for $750,000 Singapore dollars ($427,293 U.S. dollars). Count 4 alleges that also on September 8, Lim withdrew $350,000 from one of the Chicago accounts. Count 5 alleges that on September 8, Lim deposited checks totaling $1,955,000 Singapore dollars ($1,066,995 U.S. dollars) into the Chicago accounts. Each of these counts charges only Lim, and not his daughter, as a defendant, and each alleges that Lim acted "[i]n violation of Title 18, United States Code, Sections 1344 and 2."
2. Multiplicity
Multiplicity consists of charging a single offense in multiple counts. See, e.g., United States v. Hong, 934 F.2d 105, 108 (7th Cir. 1991). This is improper because it exposes the defendant to the possibility of multiple punishment for a single offense, id., and also because it indicates to the jury that the defendant committed not one but several crimes and thus may suggest that the alleged criminal activity is of greater scope and gravity than it actually is. See, e.g., United States v. Street, 66 F.3d 969, 975 (8th Cir. 1995).
To determine whether conduct charged in different counts constitutes a single offense, it is necessary to identify the "unit of prosecution" of the offense charged. Hong, 934 F.2d at 108, citing Sanabria v. United States, 437 U.S. 54, 67-70 (1978). Under 18 U.S.C. § 1344, the unit of prosecution consists not of each act in furtherance of the alleged scheme, but rather each "execution" of the scheme. United States v. Longfellow, 43 F.3d 318, 323 (7th Cir. 1994); United States v. Molinaro, 11 F.3d 853, 859 (9th Cir. 1993); United States v. Hord, 6 F.3d 276, 281 (5th Cir. 1993). Because of the multifarious ways in which banks can be defrauded, it is difficult to provides a precise definition of what constitutes an "execution" of a bank fraud scheme. It is well established, however, that a single scheme can be "executed" a number of times. Longfellow, 43 F.3d at 323. In determining whether two particular charges are multiplicitous, we must examine whether the acts charged in separate counts are "`chronologically and substantively independent[,] [n]one depended on the others for its existence, [and] [e]ach had its own functions and purpose — they were interrelated only because they `involved the same overall scheme.'" Longfellow, 43 F.3d at 323 (quoting Molinaro, 11 F.3d at 860). If so, the charges are not multiplicitous.
In this case the alleged executions consist of both deposits into the Chicago accounts (Counts 1, 3, and 5) and withdrawals from those accounts (Counts 2 and 4). We agree with Lim that an indictment that charges in separate counts that a defendant deposited a bad check into an account and then withdrew the funds thus deposited is multiplicitous. See Hord, 6 F.3d at 281. In that situation, "[i]t is the deposits, not [the] withdrawal attempts, that constitute executions of the scheme. The attempted withdrawals were integrally related to the deposits, and could not have succeeded without them." Id. Looking at it from a different perspective, the financial institution is not subjected to any greater or different risk by virtue of the withdrawal than it already had by virtue of the deposit.
In this case, because the indictment does not identify which of the two Citibank FSB accounts were the subjects of the deposits and withdrawals, it is not multiplicitous on its face. Lim did not seek a bill of particulars to specify the particular account involved in each charge. However, in response to Lim's motion, the government provided an affidavit from Jennifer French, the investigating FBI agent, in which she identifies the accounts involved in each count:
Count Date Nature of Transaction Amount (U.S. $) Account
1 9/2/99 deposit $20,983 savings 2 9/3/99 withdrawal $40,000 checking 3 9/8/99 deposit $427,293 checking 4 9/8/99 withdrawal $350,000 checking 5 9/8/99 deposit $1,066,995 checking If what French says is correct, Count 5 is not multiplicitous of any of the other charges. Count 4, however, involved the withdrawal of funds deposited as part of the deposit alleged in Count 3. As we have noted, the government has dismissed Count 4, presumably because it recognizes that that charge is multiplicitous of Count 3.Lim argues that Count 2 is multiplicitous of Count 1. Even though the two charges involve different accounts, if the funds withdrawn from the checking account in Count 2 had come from the savings deposit alleged in Count 1 — via a transfer from the savings account to the checking account between the time of the Count 1 deposit and the Count 2 withdrawal — we would agree with Lim that the charges are multiplicitous, for in that situation the withdrawal would have depended on the deposit, and Citibank would not have been subjected to any new or different risk. But according to Agent French, between the time of the savings deposit alleged in Count 1 and the checking withdrawal alleged in Count 2, the checking account received a number of deposits, none of which could have originated from the savings account. For these reasons, the Court cannot conclude that Count 2 is multiplicitous of Count 1. Lim is free to renew his motion to dismiss Count 2 at trial, however, in the event that the evidence does not come out the way Agent French predicts.
For these reasons, the Court denies Lim's motion to dismiss.
Lim challenges the indictment's reference to 18 U.S.C. § 2 in Counts 1 through 5. In response to Lim's motion, the government has indicated that the reference to § 2 is actually a reference to § 2(b). Section 2(b) provides that "[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."
The government has stated that the indictment's use of § 2(b) concerns the allegation that Lim caused his daughter to carry out various executions of the scheme. Lim points out that his daughter is not charged with bank fraud; he argues that it is inappropriate to charge him with aiding and abetting someone who is not claimed to have committed a crime. However, a person who causes an innocent third party to carry out an offense may be prosecuted as a principal under § 2(b). See, e.g., United States v. Tashjian, 660 F.2d 829, 842 n. 26 (1st Cir. 1981); United States v. Gleason, 616 F.2d 2, 20 (2d Cir. 1979); United States v. Levine, 457 F.2d 1186, 1189 (10th Cir. 1972); United States v. Tauro, 362 F. Supp. 688, 692 (D.N.J. 1973). For these reasons, the Court denies Lim's motion to strike and dismiss the references to 18 U.S.C. § 2.
3. Paragraph 9
Lim has moved to strike paragraph 9 of Count 1 (also incorporated into Counts 2 through 5), which alleges that he used the proceeds of the alleged fraud for his own benefit, by opening accounts at other financial institutions and giving $130,000 to an acquaintance. Though the manner in which a defendant uses proceeds may not be part of the scheme, see United States v. Anderson, 188 F.3d 886, 890 (7th Cir. 1999), the Court agrees with the government that the matters alleged in paragraph 9 may be relevant to show Lim's motive and intent. If the government does not offer such evidence at trial, or if the evidence is excluded, the allegation can be stricken before the indictment is sent to the jury for its use during deliberations.
Conclusion
For the foregoing reasons, the Court denies defendant's motion to dismiss on grounds of multiplicity [Item 61-1]; his motion to strike and dismiss the references to 18 U.S.C. § 2 [62-1, 62-2]; and his motion to strike paragraph 9 [71-1]. Defendant's motion for expert witness discovery [63-1] is granted; case in chief expert disclosures are due four weeks prior to trial, and rebuttal expert disclosures are due one week prior to trial.