US v. Elie et. al.

Motion to Dismiss Indictment Count 8

by Ian Imrich
Contact

Count EIGHT of the Superseding Indictment (“Indictment”) purports to charge defendant Chad Elie (along with defendants Scheinberg, Bitar, Beckley, Burtnick, Tate, Lang, Franzen, and Rubin, but not defendants Campos and Tom), with conspiracy to commit bank and wire fraud. It alleges that defendants participated in a conspiracy to deceive United States banks and financial

institutions into processing transactions for three online poker companies by disguising the transactions as unrelated to online poker. Significantly, the Indictment does not charge any substantive wire or bank fraud offense against any defendant, and the purported bank/wire fraud conspiracy charged in Count EIGHT

does not allege that any defendant sought to cause economic injury to any bank or that any bank suffered any actual harm. To the contrary, the Indictment alleges that the defendants made a

concerted effort to avoid “jeopardiz[ing] the relationship with the processor and their banks,” and as a matter of fact, banks profited from the transactions in question. Ind. ¶ 25(e). In addition, the Indictment alleges that certain banks were fully aware that they were processing poker transactions. Id. ¶¶ 28-29.

The theory alleged in Count EIGHT is legally insufficient to charge a cognizable bank or wire fraud conspiracy. Under well-established Second Circuit precedent, an indictment must

allege more than that a bank was deceived into entering into a transaction it would otherwise not have entered into. A “scheme[] that do[es] no more than cause [an alleged victim] to enter into

transactions [it] would otherwise avoid . . . do[es] not violate the mail or wire fraud statutes.” United States v. Shellef, 507 F.3d 82, 108 (2d Cir. 2007). To charge conspiracy to commit wire fraud, an indictment must allege that the defendant

intended through deception, to cause “actual harm,” id. at 107, to a bank. Similarly, to charge conspiracy to commit bank fraud, an indictment must allege that defendants sought to expose a

bank “to actual or potential loss.” United States v. Barrett, 178 F.3d 643, 647-48 (2d Cir. 1999). Count EIGHT fails to allege that defendants conspired to cause actual harm to a bank or to

expose a bank to a loss. Instead, the facts alleged in the Indictment suggest that the defendants intended that banks would profit from processing merchant transactions. Accordingly, Count

EIGHT fails to allege a cognizable conspiracy to commit wire or bank fraud and must be dismissed.

LOADING PDF: If there are any problems, click here to download the file.

Reference Info: Legal Memoranda: Motion Addressed to Pleadings | Federal, 2nd Circuit, New York | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ian Imrich, Law Offices of Ian J. Imrich, APC | Attorney Advertising

Written by:

Ian Imrich
Contact
more
less

Law Offices of Ian J. Imrich, APC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.