United States District Court, N.D. Georgia, Atlanta Division
NON-FINAL REPORT AND RECOMMENDATION
K. LARKINS III UNITED STATES MAGISTRATE JUDGE.
criminal case is before the Court on Defendant Lena F.
Awad's Motion to Dismiss Indictment. [Doc. 79.] For the
following reasons, I RECOMMEND that the
motion be DENIED.
charges in this case out of an alleged scheme whereby Awad
and her husband, co-defendant Fernando Crawford, embezzled
funds from Ms. Awad's former employer, Flood Brothers,
Inc. [See Doc. 1 (Indictment).] According to the
indictment, Awad formerly worked at Flood Brothers as a
payroll and human resources specialist, handling payroll for
the company. [Id. ¶¶ 2-4.] Allegedly,
beginning in January 2012 and continuing through December
2015, each week Awad covertly added Crawford to the company
payroll records just before sending the records to Flood
Brothers's payroll service vendor for processing, which
resulted in Crawford receiving a paycheck, even though he was
never employed by the company. [Id. ¶¶
7-9.] The indictment identifies nine specific dates from
March 2014 to December 2015 on which Awad allegedly emailed
false payroll information to the payroll vendor and, for each
instance, the corresponding gross payment to Crawford.
[Id. ¶ 12.] The scheme allegedly caused a total
loss to Flood Brothers of over a million dollars.
[Id. ¶¶ 1, 9.]
indictment further alleges that on or about August 3, 2014,
Awad completed an Application to Register Permanent Residence
or Adjust Status, Form I-485, and represented, under penalty
of perjury, that she had not “committed any crime of
moral turpitude . . . for which [she had] not been arrested.
[Doc. 1 ¶ 14.] According to the indictment, Awad knew
her statement was false, in that she had in fact committed a
crime of moral turpitude for which she had not been arrested-
i.e., the embezzlement scheme against Flood
August 16, 2018, Awad was indicted on one count of conspiracy
to commit wire fraud, 18 U.S.C. § 1349 (Count 1); nine
substantive counts of wire fraud, 18 U.S.C. § 1343
(Counts 2-10); and a single count of false swearing in an
immigration matter, 18 U.S.C. § 1546(a) (Count
On March 9, 2019, Awad moved to dismiss the indictment on the
grounds that it fails to charge an offense against the United
States. [Doc. 79.] With respect to Count 11, Awad argues that
the indictment fails to state an offense because wire fraud
is not a crime of moral turpitude. [Id. at
As to the conspiracy and substantive wire fraud counts, she
argues that they should all be dismissed as
“multiplicitous.” [Doc. 79 at 4-5.] The
government has filed a response. [Doc. 81.] Awad did not file
a reply as directed by the Court, [see Doc. 80];
thus the motion is ripe for adjudication.
address Awad's arguments in the order in which she raised
them, starting with her motion to dismiss Count 11 of the
indictment, followed by her motion to dismiss Counts 1
7(c)(1) of the Federal Rules of Criminal Procedure requires
the indictment “be a plain, concise, and definite
written statement of the essential facts constituting the
offense charged . . . .” An indictment is legally
sufficient if it “‘(1) presents the essential
elements of the charged offense, (2) notifies the accused of
the charges to be defended against, and (3) enables the
accused to rely upon a judgment under the indictment as a bar
against double jeopardy for any subsequent prosecution for
the same offense.'” United States v.
Masino, 869 F.3d 1301, 1306 (11th Cir. 2017) (quoting
United States v. Lang, 732 F.3d 1246, 1247 (11th
Cir. 2013)). “It is well established in this Circuit
that an indictment is sufficient if it tracks the language of
the statute and provides a statement of facts that gives
notice of the offense to the accused.” United
States v. McNair, 605 F.3d 1152, 1186 (11th Cir. 2010).
On a motion to dismiss, the Court is limited “to
reviewing the face of the indictment and, more specifically,
the language used to charge the crimes”; the Court
“may not dismiss an indictment . . . on a determination
of facts that should have been developed at trial.”
United States v. Sharpe, 438 F.3d 1257, 1263 (11th
Cir. 2006) (alteration in original) (quotation omitted).
Count 11 tracks the language of the statute, 18 U.S.C. §
1546(a), which provides:
Whoever knowingly makes under oath, or as permitted under
penalty of perjury under section 1746 of title 28, United
States Code, knowingly subscribes as true, any false
statement with respect to a material fact in any application
. . . required by the immigration laws or regulations
prescribed thereunder, or knowingly presents any such
application . . . which contains any such false statement or
which fails to contain any reasonable basis in law or fact .
. . [s]hall be fined under this title or imprisoned . . . .
18 U.S.C. § 1546(a). Count 11 reads as follows:
On or about August 3, 2014, in the Northern District of
Georgia, the defendant, LEENA F. AWAD, did knowingly
subscribe as true under penalty of perjury under 28 U.S.C.
§ 1746 a false statement with respect to a material fact
in an application required by the immigration laws and
regulations; that is, in an Application to Register Permanent
Residence or Adjust Status, Form I-485, LEENA F. AWAD stated
that she had not “committed any crime of moral
turpitude . . . for which [she had] not been arrested”
which statement the defendant then and there knew was false,
in that the defendant had in fact committed a crime of moral
turpitude for which she had not ...