Opinion
98 Cr. 1111 (TPG)
May 4, 2000
OPINION
Defendant has moved for the following relief: (1) dismissal of Counts One and Two of the indictment as barred by the statute of limitations; (2) dismissal of Counts Three through Thirty-two of the indictment for failure to state an offense; (3) an order of severance, dividing the indictment into three parts for trial; and (4) an order providing that defendant may take videotaped foreign depositions.
Counts One and Two allege bank fraud in violation of 18 U.S.C. § 1344. The alleged criminal conduct occurred in 1992. The indictment was returned in 1998. The applicable statute of limitations for a § 1344 offense is 18 U.S.C. § 3292 (ten years), not 18 U.S.C. § 3282 (five years). The motion to dismiss Counts One and Two is denied.
Counts Three through Fourteen are substantive wire fraud counts under 18 U.S.C. § 1343, and Counts Fifteen through Thirty-Two are mail fraud counts under 18 U.S.C. § 1341. These counts allege that defendant carried out a fraudulent scheme to obtain ketamine hydrochloride ("ketaset"). One of the uses of ketaset is as an anesthetic drug for animals. The indictment alleges that Utley obtained the ketaset by falsely representing that he would provide this substance to an organization studying gorillas in Africa, known as the Morris Animal Foundation's Mountain Gorilla Veterinary Project ("MGVP"). The indictment alleges that through these fraudulent representations defendant obtained the assistance of Dr. James Foster, a veterinarian connected with MGVP, and obtained the substance from Burns Veterinary Supply, Inc., a purveyor of animal medical supplies.
The indictment alleges that wire transmissions and the mails were used in connection with the scheme.
Defendant's motion makes a number of argument as to why Counts Three through Thirty-Two do not charge crimes, including the contention that no injury was done because defendant paid for the drugs and that the wire transmissions and the items of mail did not in and of themselves constitute fraudulent conduct by defendant.
Defendant's arguments are without merit. Violations of the wire fraud and mail fraud statutes can occur even through there is no financial loss. U.S. v. Schwartz, 924 F.2d 410 (2d Cir. 1991). Moreover, it is familiar law that, although the Government must prove that wire communications or the mails have been used, the Government need not prove that these communications were themselves fraudulent or that they were transmitted or sent by the defendant. If the Government proves that there was a fraudulent scheme by the defendant within the meaning of the statute, it is sufficient to show that wire or mail communications occurred in the execution of the scheme, even though the communications were themselves innocent and were accomplished by someone else. The motion to dismiss Counts Three through Thirty-two is denied.
Defendant's motion for an order of severance would have the effect of dividing the indictment into three parts for trial, as follows: (1) Counts One and Two; (2) Counts Three through Thirty-two; and (3) Counts Thirty-three through Thirty-eight.
In response, the Government consents to the dismissal of Counts Thirty-three through Thirty-eight, because of the death of the alleged victim. The Government consents to have Counts One and Two severed from Counts Three through Thirty-two for trial.
Thus, Counts Thirty-three through Thirty-eight are dismissed. There will be two trials — one trial for Counts One and Two and a second trial for Counts Three through Thirty-two.
The application regarding foreign depositions is held in abeyance pending further submissions.
SO ORDERED.