Opinion
06 Mag. 770 (GWG).
June 19, 2006
OPINION AND ORDER
The Government has brought a criminal complaint against defendants Manauri Tejada, a/k/a "Joelito," Gustavo Salbador, and Paul Ramos, charging them with conspiracy to commit an offense against the United States, 18 U.S.C. § 371: specifically, theft of government funds in violation of 18 U.S.C. § 641. Defendant Ramos now moves to dismiss the complaint for what he terms "lack of federal jurisdiction" but which the Court views as an argument that the facts as alleged in the complaint fail to charge an offense. See Fed.R.Crim.P. 3 ("complaint is a written statement of the essential facts constituting the offense charged"). If the complaint fails to charge an offense, it would have to be dismissed inasmuch as there would be no probable cause to believe a crime has been committed. See generally Giordenello v. United States, 357 U.S. 480, 486 (1958) (a criminal complaint "does not pass muster" where it "does not provide any basis for [a] determination under Rule 4 that probable cause existed"); see also Fed.R.Crim.P. 4 (arrest warrant may be issued where complaint establishes "probable cause to believe that an offense has been committed and that the defendant committed it"); United States v. Jimenez, 421 F. Supp. 2d 1008, 1010-11 (W.D. Tex. 2006) (motion to dismiss criminal complaint decided based on whether the facts of the complaint showed probable cause).
The Complaint
The complaint alleges that Ramos and others made an arrangement with an individual to sell him at least five kilograms of crack-cocaine in exchange for $110,000. See Complaint, filed May 24, 2006 (Docket #1) ("Compl."), ¶ 5(a)-(c). Unbeknownst to Ramos and the others, the buyer was a confidential informant working with the Drug Enforcement Administration. Id. ¶¶ 5, 6. When the transaction took place, the sellers provided the buyer with soap and an unidentified powdery substance, which tested negative for any narcotics. Id. ¶ 5(f). The defendants were arrested before the CI provided them with any money. Id.
The complaint charges Ramos and his co-defendants with a violation of 18 U.S.C. § 371, the federal conspiracy statute. It charges that the object of the conspiracy was to commit a violation of 18 U.S.C. § 641, a statute that makes it a felony to steal property from the United States or any department or agency thereof.
Applicable Law 18 U.S.C. § 371 provides:
[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
"Section 371 thus defines two ways in which its provisions are violated: (1) conspiring to commit `offenses' that are specifically defined in other federal statutes, and (2) conspiring to `defraud the United States.'" United States v. Helmsley, 941 F.2d 71, 90 (2d Cir. 1991).
Here, the complaint relies on the "commit any offense" provision of the statute rather than the "defraud the United States" provision. Compl. ¶¶ 1-2. The specific offense that defendants are alleged to have conspired to commit is 18 U.S.C. § 641. That statute makes it unlawful to
embezzle, steal, purloin, or knowingly convert to his use or the use of another . . . money, or thing of value of the United States or of any department or agency thereof.
It has long been held that it is unnecessary under this statute for the prosecution to prove "knowledge on the part of the defendant that the property he has stolen was in fact Government property." United States v. Jermendy, 544 F.2d 640, 641 (2d Cir. 1976). Rather, "the statutory requirement that the stolen property in fact belong[s] to the Government . . . [is] the basis for federal jurisdiction and . . . the defendant's knowledge of the jurisdictional fact is irrelevant." Id. Discussion
Ramos argues that the complaint against him must be dismissed because Ramos did not know that he was stealing from the Government. He concedes, as he must given the holding inJermendy, "that a violation of § 641, as a substantive offense, does not require knowledge that the money converted be the property of the United States." Letter from James B. LeBow to Judge Gorenstein, dated June 5, 2006, at 2. He contends nonetheless that "in order to satisfy the conspiracy charges under § 371," the target of the conspiracy must be an agency or department of the United States or the United States itself.Id. In this case, Ramos argues, the target of the alleged conspiracy — the CI — was only an "intermediary of the United States." Id. He relies on Tanner v. U.S., 483 U.S. 107, 129 (1987) to argue that the target of a conspiracy under § 371 must be the United States or an agency or department thereof.
The problem with Ramos's argument is that Tanner interpreted the "defraud the United States" clause of section 371 — not the conspiracy to "commit any offense against the United States" clause. While Tanner held that the United States must be the target of the fraud for purposes of the "defraud the United States" clause, that clause is irrelevant to the interpretation of the clause relied upon by the Government here.
Ramos points to one case, United States v. Hope, 901 F.2d 1013 (11th Cir. 1990), which notes a prior Eleventh Circuit case holding that the "commit any offense" clause of section 371 requires that the United States must be the target in the same manner as the "defraud" clause. Id. at 1018. This holding, however, finds no basis in the statutory language and was explicitly overruled by the Eleventh Circuit in United States v. Falcone, 960 F.2d 988, 990 (11th Cir. 1992) ("in establishing a conspiracy `to commit any offense against the United States,' the government need not allege or prove that the United States or an agency thereof was an intended victim of the conspiracy"). Thus, courts have routinely rejected the very argument that Ramos makes here. See, e.g., United States v. Brandon, 17 F.3d 409, 422 (1st Cir. 1994); United States v. Loney, 959 F.2d 1332, 1340 (5th Cir. 1992); Bohanan v. United States, 821 F. Supp. 902, 903 n. 1 (S.D.N.Y. 1993).
In sum, the complaint is not insufficient for its failure to allege that Ramos and his co-conspirators knowingly targeted the United States or an agency or department thereof.
Conclusion
Ramos's motion to dismiss the complaint is denied.
SO ORDERED.