United States District Court, W.D. North Carolina, Charlotte Division
COGBURN JRUNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant Donald
Dodt's Motion to Dismiss Counts Two through Sixteen of
the Indictment. Having considered Defendant Donald Dodt's
motion and reviewed the pleadings, the Court enters the
moves to dismiss the substantive mail and wire fraud charges,
Counts Two through Sixteen, arguing that the allegations in
the Indictment are insufficient because the Indictment does
not allege that Dodt made any material misrepresentations in
connection with these Counts and it otherwise fails to allege
essential facts underlying the charges.
considering a Motion to Dismiss a count of an indictment,
Rule 7(c)(1), Federal Rules of Criminal Procedure, provides,
that an indictment need only contain “a plain, concise,
and definite written statement of the essential facts
constituting the offense charged.” Fed.R.Crim.P.
7(c)(1). It is defendant's burden to show that “the
allegations therein, even if true, would not state an
offense.” United States v. Thomas, 367 F.3d
194, 187 (4th Cir. 2004). 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.'' United
States v. Hooker, 841 F.2d 1225, 1227 (4th Cir. 1988)
(quoting Russell v. United States, 369 U.S. 749
Fourth Circuit's test for sufficiency is whether the
indictment sets forth the essential elements of the offense
and sufficiently apprises the appellant of the charge so that
the appellant may be able to prepare a defense and may be
able to plead a former conviction or acquittal in the event
of a subsequent charge for a similar offense. United
States v. Izuogu, No. 90-5778, 1991 WL 21653, at *3 (4th
Cir. June 3, 1991). Important here, sufficiency of the
evidence is not to be conflated with sufficiency of the
indictment. United States v. Ring, 628 F.Supp.2d
195, 223 (D.D.C. 2009). On a motion to dismiss an indictment,
the question is not whether the government has presented
sufficient evidence to support the charge, but solely whether
the allegations in the indictment, if true, are sufficient to
establish a violation of the charged offense. For the most
part, this does not involve any examination of the evidence.
United States v. Todd, 446 F.3d 1062, 1068 (10th
Cir. 2006) (internal citations omitted).
of the Indictment reveals that the essential facts and all of
the elements of the charges of mail and wire fraud have been
alleged. As such, the Indictment provides Defendant Dodt with
adequate notice of the charges against him, which will allow
him to defend himself at trial and avoid any risk of double
jeopardy. Defendant Dodt argues that the Indictment is not
insufficient because it does not identify that he
made specific material misrepresentations or omissions or
identify specific material misrepresentations that induced
the payments sent via mail or wire transfer identified in
Counts Two through Sixteen. He is charged and may be found
guilty for these substantive offenses as a co-conspirator or
by aiding and abetting their commission. As a matter of law,
members of a conspiracy are responsible for any substantive
acts that he or any of his co-conspirators committed. See
United States v. Singh, 518 F.3d 236, 253 (4th Cir.
2008). In addition, a person who aids and abets a crime of
mail or wire fraud may also be found guilty of the
substantive offense. 18 U.S.C. § 2; United States v.
Elbaz, 332 F.Supp.3d 960 (2018). Thus, there is no legal
requirement that the Indictment necessarily allege that
Defendant Dodt directly made a material misrepresentation or
omission to be culpable for the offenses charged. Here, that
burden is satisfied by alleging that Defendant Dodt was a
co-conspirator, that he “caused, ” or aided and
abetted the mail or wire transmission. The Indictment alleges
that he did so by providing and maintaining the VoIP services
through which the conspirators made calls, including
identifying and assigning United States phone numbers, such
as phone numbers associated with Washington, D.C., to
facilitate concealment of the conspirators' identities
and location from which the call actually originated.
the Court concludes that the Indictment states the essential
facts and elements to put Defendant Dodt on notice sufficient
to defend against the charges alleged in Counts Two through
Sixteen and avoid risk of double jeopardy.
IT IS, THEREFORE, ORDERED that Defendant Donald
Dodt's Motion to Dismiss Counts Two through Sixteen ...