72 This repeated failure to specify how the messages were conveyed is important. Beyond failing to satisfy the requirements of Rule 9(b), Plaintiffs fail to give defendants notice of which statute they allegedly violated—mail fraud, 18 U.S.C. § 1341, or wire fraud, 18 U.S.C. § 1343. The distinction is critical, because intrastate wire communications are beyond the reach of the wire-fraud statute.

(Proposed Amended Complaints (“AC”): Gabrys ¶¶ 3 and 149, Freire ¶¶ 3 and 145, Tuhin ¶¶ 3 and 87, Dong ¶¶ 3 and 141, Chowdhury ¶¶ 3 and 151.) Plaintiffs further allege that in order to achieve the fraudulent purpose of this enterprise—obtaining larger payments than legally permissible—each of the participating defendants committed at least two predicate acts: the use of wire and mail communications in interstate commerce in violation of 18 U.S.C §§ 1341 and 1343. (AC: Gabrys ¶ 151, Freire ¶ 147, Tuhin ¶ 109, Dong ¶ 142, Chowdhury ¶ 152.)

(Proposed Amended Complaints (“AC”): Gabrys ¶¶ 3 and 149, Freire ¶¶ 3 and 145, Tuhin ¶¶ 3 and 87, Dong ¶¶ 3 and 141, Chowdhury ¶¶ 3 and 151.) Plaintiffs further allege that in order to achieve the fraudulent purpose of this enterprise—obtaining larger payments than legally permissible—each of the participating defendants committed at least two predicate acts: the use of wire and mail communications in interstate commerce in violation of 18 U.S.C §§ 1341 and 1343. (AC: Gabrys ¶ 151, Freire ¶ 147, Tuhin ¶ 109, Dong ¶ 142, Chowdhury ¶ 152.)

24. WHEREFORE, the United States requests, pursuant to 18 U.S.C. § 1345, that the Court issue a temporary restraining order and an injunction, restraining defendant, pending the hearing on plaintiff's motion for a preliminarily injunction, from further violating 18 U.S.C.§ 1341 (Mail Fraud), 18 U.S.C. § 1343 (Wire Fraud), and 18 U.S.C. § 1344 (Bank Fraud) through the use of Registered Bonded Promissory Notes and other related documents as more fully described in the Proposed Temporary Restraining Order. Dated this 13th day ofMay, 2010.

18 U.S.C. §§1341, 1343. The mail and wire fraud statutes, 18 U.S.C. §1341 and §1343, define “a fraudulent scheme, rather than a particular false statement, as the crime.” Phoenix Bond, 477 F.3d at 932.

3. 18 U.S.C. §§ 1341 and 1343: Plaintiff’s claims of mail and wire fraud echo his claims for immigration fraud, and violations of the FLSA and TVPA. (See Am. Cplt., ¶¶ 149- 153).

The Mail and Wire Fraud and Conspiracy Charges Should Be Dismissed Because the Alleged Misrepresentations Do Not Violate 18 U.S.C. §§ 1341 and 1343 As A Matter of Law. The Indictment should be dismissed because the facts alleged, and accepted as true, do not constitute the crimes of mail or wire fraud under 18 U.S.C. §§ 1341 and 1343. Rule 12(b) of the Federal Rules of Criminal Procedure provides that a motion to dismiss may raise “any defense, objection, or request which is capable of determination without a trial of the general issue.”

The United States is entitled to a permanent injunction under 18 U.S.C. § 1345. A violation of 18 U.S.C. §§ 1341, 1343, or 1344, federal fraud offenses, are enumerated predicate offenses to the application of the Fraud Injunction Statute. The Fraud Injunction Statute provides as follows: (a)(1) If a person is– . . . (A) violating or about to violate this chapter . . . (B) committing or about to commit a banking law violation (as defined in section 3322(d) of this title); . . . the Attorney General may commence a civil action in any Federal court to enjoin such violation. . . . (3) A permanent or temporary injunction or restraining order shall be granted without bond.

Defendants conspired within the meaning of 18 U.S.C. § 1962(d) to violate 18 U.S.C. §§ 1962(c). In particular, Defendants conspired to conduct or participate, directly or indirectly, in the conduct of the enterprise’s affairs through a pattern of racketeering activity within the meaning of 18 U.S.C. §§ 1961(1) and 1961(5) and § 1962(c), to wit: (a) Multiple instances of mail fraud in violation of 18 U.S.C. § 1341; and (b) Multiple instances of wire fraud in violation of 18 U.S.C. § 1343. 33 Case 1:07-cv-03494-DLC Document 54 Filed 08/24/2007 Page 49 of 56 106.

nts of wire fraud, in violation of 18 U.S.C. §1343 (Counts 29-37); six counts of honest services wire fraud, in violation of 18 U.S.C. §§1343, 1346 (Counts 38-43); two counts of honest services mail fraud, in violation of 18 U.S.C. §§1341, 1346 (Counts 44-45); three counts of Travel Act bribery, in violation of 18 U.S.C. §1952 (Counts 46-48); and seven counts of material false statements to the FBI, in violation of 18 U.S.C. §1001 (Counts 49-55). Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 3 of 13 b. James Hickey with conspiracy to commit mail fraud, wire fraud, and honest services fraud, in violation of 18 U.S.C. §371 (Count One); two counts of mail fraud, in violation of 18 U.S.C. §1341 (Counts 27 and 28); four counts of wire fraud, in violation of 18 U.S.C. §1343 (Counts 34 through 37); four counts of honest services wire fraud, in violation of 18 U.S.C. §§1343, 1346 (Counts 40 through 43); and two counts of honest services mail fraud, in violation of 18 U.S.C. §§1341, 1346 (Counts 44 and 45). c. Scott Allinson with conspiracy to commit federal program bribery, in violation of 18 U.S.C.§ 371 (Count One); and attempted federal program bribery-offering, in violation of 18 U.S.C.§ 666(a)(2) (Count 19). 2. At trial in this matter, the government intends to offer into evidence: a. audio recordings of telephone conversations of the above defendants, captured during court-authorized Title III wiretaps from approximately November 2014 to June 2014. b. audio and video recordings of consensual telephone conversations and meetings between the defendants and cooperating government witnesses, made from approximately June 2014 to July 2015. 3. At the time the audio recordings are played aloud, the Government will move to distribute transcripts of the conversations to the jury, which can be admitted as an aid to the jury to be used at the time the recordings are played in court.