Opinion
5:19-CR-423-FL-5
05-17-2021
UNITED STATES OF AMERICA v. SAMUEL MANU AGYAPONG, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge.
This matter is before the court on Defendant's motion to dismiss Count Seven of the second superseding indictment or to sever the multiple conspiracies charged in Count Seven, [DE-442], and Defendant's motion to dismiss Count Twenty-Two of the second superseding indictment on statute of limitations grounds, [DE-443]. The Government responded in opposition to Defendant's motions. [DE-474, -475]. Accordingly, the matter is ripe for review. For the reasons stated below, it is recommended that Defendant's motions be denied.
I. PROCEDURAL BACKGROUND
On August 19, 2020, Defendant was named in eight counts of a twenty-nine count second superseding indictment charging him in Count Seven with conspiracy to commit marriage fraud in violation of 8 U.S.C. § 1325(c); in Count Twenty-Two with unlawful disposition of United States property in violation of 18 U.S.C. § 641; in Count Twenty-Three with obstructing, influencing, and impeding any official proceeding in violation of 18 U.S.C. § 1512(c)(2); in Count Twenty-Four with influencing, delaying, or preventing the testimony of any person in an official proceeding in violation of 18 U.S.C. § 1512(b)(1); in Count Twenty-Five with altering, destroying, or concealing an object from an official proceeding in violation of 18 U.S.C. § 1512(b)(2)(B); in Count Twenty-Six with conspiracy to commit marriage fraud in violation of 8 U.S.C. § 1325(c); in Count Twenty-Seven with marriage fraud and aiding and abetting in violation of 8 U.S.C. §§ 1325(c) and 2; in Count Twenty-Eight with fraud and misuse of visas, permits, and other documents in violation of 18 U.S.C. § 1546(a); and in Count Twenty-Nine with making a false statement in violation of 18 U.S.C. § 1001. On March 19, 2021, Defendant filed the instant motion to dismiss Count Seven or to sever the multiple conspiracies charged in Count Seven, [DE-442], and the instant motion to dismiss Count Twenty-Two on statute of limitations grounds, [DE-443], to which the Government filed responses in opposition, [DE-474, -475]. Defendant pleaded not guilty to all counts at his arraignment on March 23, 2021. [DE-446]. His trial is set for June 28, 2021. [DE-465].
II. DISCUSSION
A. Defendant's motion to dismiss Count Seven or to sever the multiple conspiracies charged in Count Seven
Defendant contends that Count Seven is duplicitous because it charges multiple conspiracies in a single count, and Defendant requests that the court dismiss Count Seven because the conspiracies were not properly joined pursuant to Fed. R. Crim. P. 8 or, alternatively, that the court order the Government to seek a reformulated indictment from the Grand Jury. [DE-442] at 5-16. The Government responds that Count Seven is not duplicitous because it charges only one conspiracy to commit several crimes, and even if it is duplicitous, dismissal is not an appropriate remedy. [DE-474] at 2-11.
1. Duplicity
"An indictment is duplicitous if it charges two offenses in one count, creating 'the risk that a jury divided on two different offenses could nonetheless convict for the improperly fused double count.'" United States v. Robinson, 855 F.3d 265, 269 (4th Cir. 2017) (quoting United States v. Robinson, 627 F.3d 941, 957 (4th Cir. 2010)). If a single count in an indictment contains two offenses, some members of a jury may convict for one offense, and others may convict for the other offense, meaning that the defendant would be found guilty of the count listed in the indictment even though a unanimous jury did not find him guilty of either offense. See Robinson, 855 F.3d at 269. Duplicitous charges therefore run afoul of the Sixth Amendment right to a unanimous jury verdict. Id.
However, "[t]he allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for '[t]he conspiracy is the crime, and that is one, however diverse its objects.'" Braverman v. United States, 317 U.S. 49, 54 (1942) (quoting Frohwerk v. United States, 249 U.S. 204, 210 (1919)); see also United States v. Marshall, 332 F.3d 254, 262 (4th Cir. 2003); United States v. Crowley, No. 3:15-CR-20-36, 2015 WL 13449676, at *2 (N.D. W.Va. Oct. 22, 2015) ("where a count of conspiracy alleges a single conspiracy to commit two or more separate crimes, the count is not duplicitous, as the conspiracy itself is one single crime."). Accordingly, the issue here is whether Count Seven charges one conspiracy to commit multiple crimes or multiple conspiracies.
"A single conspiracy exists where there is 'one overall agreement' or 'one general business venture.' Whether there is a single conspiracy or multiple conspiracies depends upon the overlap of key actors, methods, and goals." United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988) (quoting United States v. Block, 696 F.2d 1213, 1215 (9th Cir. 1982); United States v. McGrath, 613 F.2d 361, 367 (2d Cir. 1979) and citing United States v. Crockett, 813 F.2d 1310, 1316-17 (4th Cir. 1987); United States v. Little, 753 F.2d 1420, 1448 (9th Cir. 1984)). Additionally, a single conspiracy requires interdependence, meaning that "the activities of alleged co-conspirators in one aspect of the charged scheme are necessary or advantageous to the success of the activities of co- conspirators in another aspect of the charged scheme, or the success of the venture as a whole." United States v. Stewart, 256 F.3d 231, 250 (4th Cir. 2001).
Defendant contends that Count Seven alleges five schemes that were not necessary or advantageous to one another because each sham marriage existed independently of the others. [DE-442] at 7-8. Additionally, Defendant contends that the marriages were distinct in time and membership, given that the first began in 2015 while the others began two years later and many of the participants were involved in only one scheme. Id. at 8-9. The Government responds that the scheme had a common purpose, which was to defraud the United States through sham marriages between soldiers at Fort Bragg and foreign nationals from Ghana. [DE-474] at 5. The Government further contends that the indictment alleges interdependence in that the participants mutually cooperated with one another to further the conspiracy; for example, it is alleged that Defendant prepared immigration applications and supporting documentation for others. Id. at 7-8. Finally, the Government contends that the fraudulent marriages were not distinct in nature, time, or membership because the conspiracy was a continuing scheme. Id. at 9-10.
Generally, "[w]hether the evidence in a given case shows the existence of a single or multiple conspiracies is a question of fact best left to the jury." Crowley, 2015 WL 13449676, at *2 (citing Leavis, 853 F.2d at 218 ("The question whether the evidence shows a single conspiracy or multiple conspiracies, however, is one of fact and is properly the province of the jury.")); see also United States v. Patel, 720 Fed.Appx. 698, 700 (4th Cir. 2018). "This generalization is only true, however, when the indictment as drawn 'permit[s] the government to prove a set of facts that would support a finding of one conspiracy.' When the indictment on its face presents more than one conspiracy in a single count, such a count is improper, as it is considered duplicitous." United States v. Eury, No. 1:14CR39-1, 2015 WL 1861807, at *5 (M.D. N.C. Apr. 23, 2015) (quoting United States v. Berlin, 707 F.Supp. 832, 837 (E.D. Va. 1989) and citing United States v. Jackson, 926 F.Supp.2d 691, 700-01 (E.D. N.C. 2013)).
Here, the indictment as drawn permits the Government to prove a set of facts supporting one conspiracy. See Id. Count Seven alleges that the conspiracy began in or around January 2015 and continued through the date of the indictment, so it alleges that the conspiracy was continuing in nature and unified in time. [DE-240] at 15. The indictment further alleges that the purpose of the conspiracy was to "induce United States citizens to enter into sham marriages with foreign-born nationals for the purpose of evading United States immigration laws and obtaining lawful permanent residence status for otherwise inadmissible foreign-born nationals," and that purpose is common to each of the five marriages. Id. Count Seven states that Defendant and his co-defendant Asane were best friends, knew one another through the military, and were both from Ghana. Id. at 16. Asane is alleged to have been involved in each of the schemes except for Defendant's marriage, Defendant is alleged to have been involved in two out of the five schemes, and his co-defendant Ballard is alleged to have been involved in a different two out of the five schemes. Id. at 18-23. Accordingly, the indictment as drawn permits the Government to prove an overlap of key actors, as either Asane or Defendant, who were best friends, are alleged to have been involved in each of the marriages. The methods employed are also common to each of the marriages as alleged in Count Seven; in each scheme, a soldier at Fort Bragg entered into a sham marriage with a foreign national from Ghana, the soldier received Basic Allowance for Housing ("BAH") and other monetary benefits from the United States Army, and the co-conspirators completed immigration applications on behalf of the foreign nationals. Id. at 16-17. As for interdependence, the indictment as drawn would permit the Government to prove a set of facts showing that the success of each of the marriages contributed to the success of others. In Count One, which alleges a similar conspiracy, the indictment alleges that Asane boasted that he had a one-hundred percent success rate arranging marriages. Id. at 9. Because Asane is alleged to have arranged four out of the five schemes alleged in Count Seven, the indictment as drawn permits the Government to show that Asane's reputation for his one-hundred percent success rate contributed to his ability to arrange additional marriages, and thus, the success or failure of one marriage would affect Asane's ability to continue the conspiracy.
In summary, the question of whether Count Seven alleges one conspiracy to enter into multiple sham marriages or multiple conspiracies is heavily fact-driven, and the indictment as drawn would permit the Government to prove a set of facts showing that Count Seven alleges one conspiracy. Accordingly, it is a question best left for the jury. In United States v. Blankenship, the court denied a similar motion to dismiss an indictment on duplicity grounds because it was not evident that the indictment charged a single conspiracy to commit multiple acts or multiple conspiracies. No. 5:14-CR-00244, 2015 WL 3507076, at *4 (S.D. W.Va. June 3, 2015). The court held, "[i]n light of the principle that this Court cannot grant a motion to dismiss when the 'legal contentions are inextricably bound up with the facts of the case,' dismissal is inappropriate at this point." Id. (quoting United States v. Shabbir, 64 F.Supp.2d 479, 481 (D. Md. 1999)). Likewise, dismissal of Count Seven on grounds of duplicity is inappropriate here.
If evidence of multiple conspiracies is shown at trial, the court may instruct the jury accordingly. See United States v. Eccleston, 615 Fed.Appx. 767, 789 (4th Cir. 2015); Robinson, 627 F.3d at 958 ("It is black letter law that duplicitous indictments can be cured through appropriate jury instructions."); United States v. Urrunaga, 7 F.3d 228 (4th Cir. 1993) (holding that the district court did not err when "the jury was charged on the issue of single or multiple conspiracies," "the jury decided that a single conspiracy existed," and "the evidence adduced at trial would clearly permit a reasonable jury to conclude that the single conspiracy existed."); United States v. Urbanik, 801 F.2d 692, 695-96 (4th Cir. 1986) ("Although it is improper to charge a single conspiracy when multiple conspiracies exist, the question whether the evidence shows a single or multiple conspiracies is for the jury. If the jury is properly instructed, the finding of a single conspiracy must stand unless the evidence, taken in the light most favorable to the government, would not allow a reasonable jury so to find.") (citations omitted). Because the issue is heavily dependent upon the facts in this case, it is therefore more appropriately addressed in jury instructions, and it is recommended that Defendant's motion to dismiss Count Seven be denied.
2. Misjoinder
Defendant alternatively contends that dismissal of Count Seven is warranted because the defendants charged in Count Seven were improperly joined in violation of Fed. R. Crim. P. 8(b). [DE-442] at 12-16. Rule 8(b) provides that an indictment "may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R. Crim. P. 8(b). As discussed above, if Count Seven charges one conspiracy, it charges one offense, for the conspiracy itself is the offense. Braverman, 317 U.S. at 54. However, even if Count Seven charges multiple conspiracies, misjoinder of defendants in the indictment is another issue, and the question under Rule 8(b) is whether the defendants are alleged to have participated in a series of acts or transactions constituting an offense or offenses.
"Separate acts constituting separate offenses are sufficiently related to be within the same series if they arise out of a common plan or scheme. There must be a series of acts unified by some substantial identity of facts or participants." United States v. Porter, 821 F.2d 968, 972 (4th Cir. 1987) (citing United States v. Guerrero, 756 F.2d 1342, 1345 (9th Cir. 1984); United States v. Dennis, 645 F.2d 517, 520 (5th Cir. 1981)); see also United States v. Chinchic, 655 F.2d 547, 550-51 (4th Cir. 1981) ("our determination rests on whether the two burglaries were part of the same series of acts or transactions, that is, whether they were connected or constituted a common plan or enterprise. If so, then it is unnecessary for [the defendants] both to have been involved in or connected with each burglary."). Here, there is a substantial identity of facts among the five schemes because they are each alleged to be a fraudulent marriage between a soldier and a Ghana national for the purpose of receiving BAH and submitting fraudulent immigration applications. See United States v. Lazo, 816 Fed.Appx. 752, 759 (4th Cir. 2020) (holding that joinder was appropriate where the defendants were "members and associates" of a particular gang clique and the crimes alleged in the indictment arose from a common scheme to promote the gang); United States v. Gee, No. CRIM 3:07CR211, 2009 WL 412964, at *4 (W.D. N.C. Feb. 18, 2009) (finding a substantial identity of facts among three conspiracies where "although each alleged conspiracy used a different 'scam' (the decorator allowance, the flip and the false primary residence document), to carry out the fraud, each used materially false mortgage documents to obtain money from lending institutions and thus, defrauded those institutions."); United States v. Haney, 914 F.2d 602, 606 (4th Cir. 1990) (finding that joinder was proper where "the two robberies were substantially similar" in that they each involved an exploratory mission, an alibi, a getaway car, a pistol, and a police scanner, and "there was also a commonality of participants"). Additionally, because Asane is alleged to have arranged four out of the five marriages, with the exception of Defendant's marriage, and because Defendant and another co-defendant are each alleged to have been involved in two out of the five marriages, there is a substantial identity of participants. See Porter, 821 F.2d at 972 ("All those indicted were alleged to have participated in a drug importation and distribution scheme run by Porter. Because the indictment charged Porter with engaging in a continuing enterprise based on a series of crimes, including those involving the other appellants, joinder was proper under Rule 8(b).")- Accordingly, even if Count Seven charges multiple conspiracies and therefore multiple offenses, the defendants are not misjoined because there is a substantial identity of facts and participants connecting the five marriages. It is recommended that Defendant's motion to dismiss Count Seven on the basis of misjoinder be denied.
B. Defendant's motion to dismiss Count Twenty-Two on statute of limitations grounds
Defendant contends that Count Twenty-Two is barred in part by the statute of limitations. [DE-443]. Count Twenty-Two charges:
Beginning in or around January 2015 and continuing through January 2020, in the Eastern District of North Carolina and elsewhere, the defendant SAMUEL MANU AGYAPONG, a/k/a/ "Sammy Tuga" and "A.G.," willfully and knowingly did embezzle, steal, purloin, and convert to defendant's use money, of a value exceeding $1,000, property of the United States, in violation of Title 18, United States Code, Section 641.[DE-240] at 29. The statute of limitations for a violation of 18 U.S.C. § 641 is five years. 18 U.S.C. § 3282(a). Because the indictment was returned on April 21, 2020, [DE-122], Defendant contends that theft of government property occurring before April 21, 2015 is time barred. [DE-443] at \-A. The Government responds that Count Twenty-Two is a continuing offense, so the statute of limitations is tolled. [DE-475] at 1-3.
"The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time ... to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past." Toussie v. United States, 397 U.S. 112, 114-15 (1970); United States v. Smith, 373 F.3d 561, 563 (4th Cir. 2004). Accordingly, "the doctrine of continuing offenses should be applied in only limited circumstances," namely, when "the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." Toussie, 397 U.S. at 115.
Some courts have found that the nature of a violation of 18 U.S.C. § 641 is such that Congress did not intend for it to be treated as a continuing offense. See, e.g., United States v. Henrikson, 191 F.Supp.3d 999, 1004 (D.S.D. 2016); United States v. Powell, 99 F.Supp.3d 262, 267 (D.R.I. 2015); United States v. Pease, No. CR-07-757-PHX-DGC, 2008 WL 808683, at *3 (D. Ariz. Mar. 24, 2008). However, the Fourth Circuit has held that a violation of 18 U.S.C. § 641 may be a discrete act or a continuing offense depending upon the facts of each case. Smith, 373 F.3d at 567-68. The court held in Smith, "[a]t least in those cases where the defendant created a recurring, automatic scheme of embezzlement under section 641 by conversion of funds voluntarily placed in the defendant's possession by the government, and maintained that scheme without need for affirmative acts linked to any particular receipt of funds ... we think that Congress must have intended that such be considered a continuing offense for purposes of the statute of limitations." Id. If the facts show that a defendant "set into place and maintained an automatically recurring scheme whereby funds were electronically deposited in his account and retained for his own use without need for any specific action on his part," then the violation of § 641 "is more properly characterized as a continuing offense rather than a series of separate acts." Id. at 568.
The general allegations of the indictment explain that married "soldiers receive a Basic Allowance for Housing (BAH) stipend typically in the form of $1000.00 (or higher depending on location) a month so that the soldier can live off post as opposed to living in their assigned barracks room. Married Soldiers also receive additional pay based on deployments to include Family Separation Pay." [DE-240] at 4. The Government contends that the facts supporting Count Twenty-Two would show that Defendant received BAH on a monthly basis because of his sham marriage. [DE-475]at3.
If the facts shown at trial establish what the Government alleges-that Defendant applied for BAH or other benefits and continued to receive the money from the government on a monthly basis automatically-then the scheme is a continuing offense like the one described in Smith. As in Smith, the allegations here are that Defendant "set into place and maintained an automatically recurring scheme whereby funds were electronically deposited in his account and retained for his own use without need for any specific action on his part." Smith, 373 F.3d at 568. Accordingly, the statute of limitations was tolled. See United States v. Paulsen, 684 Fed.Appx. 342, 344 (4th Cir. 2017) (holding that "knowingly and willfully stealing money from the Department of Veterans Affairs and the Social Security Administration by accepting payments to which [the defendant] knew he had no entitlement" was a recurring, automatic scheme that tolled the statute of limitations, so "the statute of limitations does not bar any part of the scheme"); United States v. Thompkins, Criminal No. 1:08CR65, 2008 WL 3200629, at *2 (W.D. N.C. Aug. 5, 2008) (holding that "a continuous course of deliberative conduct or scheme to steal SSA benefit checks" in violation of 18 U.S.C. § 641 was not barred by the statute of limitations); United States v. Treacy, No. 5:13CR00018, 2014 WL 12698499, at *7 (W.D. Va. Jan. 28, 2014); United States v. Daley, No. 19-10099-NMG, 2021 WL 1821359 (D. Mass. May 6, 2021) (collecting cases and holding that submitting a fraudulent application for Social Security benefits in violation of 18 U.S.C. § 641 was a continuing scheme that tolled the statute of limitations because "[e]ach payment she received was part of the same, uninterrupted scheme to obtain government funds," and the scheme "resulted in the continuous conversion of government funds ... which persisted until the payments stopped in December, 2017, well into the statute of limitations period.")- It is therefore recommended that Defendant's motion to dismiss Count Twenty-Two be denied.
III. CONCLUSION
For the reasons stated herein, it is RECOMMENDED that the Defendant's motions to dismiss the indictment [DE-442, -443] be DENIED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until May 31, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b). Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).