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United States v. Awad

United States District Court, N.D. Georgia, Atlanta Division

April 12, 2019

UNITED STATES OF AMERICA
v.
LEENA F. AWAD

          NON-FINAL REPORT AND RECOMMENDATION

          JOHN K. LARKINS III UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. Background

         The 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.]

         The 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 Brothers. [Id.]

         On 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 11).[1] 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 1-4.[2] 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.

         II. Analysis

         I 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 through 10.

         A. Count 11

         Rule 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).

         Here, 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 ...

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