United States District Court, W.D. North Carolina, Charlotte Division
GRAHAM C. MULLEN, District Judge.
THIS MATTER is before the Court on Defendant's Motion to Dismiss the Indictment (Doc. No. 502), the United States' Memorandum in Opposition (Doc. No. 522), and Defendant's Reply (Doc. No. 524). For the reasons stated below, Defendant's Motion is DENIED.
On July 26, 2012, a Grand Jury charged Defendant Steven Jones and a number of co-conspirators in a seventy-five page Bill of Indictment. Defendant Jones was charged with one count of securities fraud in violation of 15 U.S.C. § 78j(b) and 78ff (Count Two), one count of wire fraud scheme to defraud investors in violation of 18 U.S.C. § 1343 (Count Four), and one count of money laundering conspiracy in violation of 18 U.S.C. § 1956(h) (Count Five).
On April 18, 2013, the Grand Jury returned a Superseding Indictment, charging Defendant Jones with one count of racketeering conspiracy in violation of Title 18 U.S.C. § 1962(d) (Count One) in addition to Counts Two, Four, and Five. The Superseding Indictment, now eighty-four pages long, describes the nature of an alleged $75 million RICO Enterprise that operated from 2005 until 2012. Included in the Indictment are numerous examples of securities fraud, bank fraud, mortgage fraud, and money laundering. The Superseding Indictment specifically identifies Jones as a promoter for the Enterprise's investment fraud operations and offers an example of his alleged fraudulent conduct, which included inducing a victim to invest millions of dollars in a fraudulent account, promising outrageous returns, misappropriating the money from the account, and fraudulently misrepresenting the amount of money in the account.
In his Motion to Dismiss, Defendant argues (1) that the Government has failed to adequately allege a single racketeering enterprise or conspiracy in Count One; (2) that Count One is unconstitutionally vague and overbroad; (3) that Counts Two and Four are unconstitutionally vague and overbroad; (4) that Counts Two and Four are duplicitous; (5) that Count Five violates the Ex Post Facto Clause; (6) that Count Five is unconstitutionally vague and overbroad; (7) that the money laundering offense in Count Five merges with the securities and wire fraud counts; and (8) that Count Five is duplicitous. The Court addresses each of the arguments in turn.
A. Count One
Defendant asserts that Count One, which alleges a racketeering conspiracy, fails to adequately allege a single and continuous enterprise that was involved in a pattern of racketeering activity, or that Defendant was implicated in such a pattern of racketeering activity.
As a preliminary matter, the Supreme Court has held that an indictment is sufficient if it "contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet." Russel v. United States, 369 U.S. 749, 763-64 (1962) (internal quotations omitted). Thus, the indictment must "set forth the essential elements of the offense." United States v. Izuogu, No. 90-5778, 1991 WL 21653, at *3 (4th Cir. 1991). On a motion to dismiss the indictment, the Court is not to weigh the sufficiency of the evidence. See United States v. Todd, 446 F.3d 1062, 1068 (10th Cir. 2006). Rather, the question before the Court is "solely whether the allegations in the indictment, if true, are sufficient to establish a violation of the charged offense." Id.
The elements of a criminal conspiracy violation under 18 U.S.C. § 1962(d) are (1) the existence of an enterprise; (2) that the enterprise was engaged in or its activities affected interstate commerce; and (3) that each defendant knowingly agreed that a conspirator would commit a violation of 18 U.S.C. § 1962(c). See United States v. Salinas, 522 U.S. 52, 62-65 (1997). The elements of a substantive RICO offense under U.S.C. § 1962(c) are "(1) the conduct (2) of an enterprise (3) through a pattern of racketeering activity." Id. at 62. A "pattern of racketeering activity" requires at least two acts of racketeering activity. See id. However, the defendant need not himself commit or agree to commit the predicate acts-rather, he need only agree to advance a RICO undertaking. See id. at 65 ("A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor.").
The Indictment alleges at least that much. Sections One and Two of the Indictment lay out the general function and purpose of the alleged Enterprise. Section Three identifies the roles of particular members of the alleged enterprise, including this Defendant. Section Five details the specific objectives of the Enterprise. Count One specifically alleges that those named, including Defendant Jones:
knowingly and intentionally conspired to violate 18 U.S.C. § 1962(c), that is, to conduct and participate, directly or indirectly, in the conduct of the affairs of the Enterprise, ...