No. 88-1851.United States Court of Appeals, Third Circuit.Argued March 1, 1989.
Decided April 21, 1989.
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Michael M. Baylson, Walter S. Batty, Jr., U.S. Atty., Chief of Appeals, David M. Howard (argued), Asst. U.S. Atty., Philadelphia, Pa., for appellant.
Creed C. Black, Jr. (argued), Samuel C. Milkman, Ballard, Spahr, Andrews Ingersoll, Philadelphia, Pa., for appellee.
Appeal from the United States District Court for the Eastern District of Pennsylvania.
Before HIGGINBOTHAM, STAPLETON and COWEN, Circuit Judges.
[1] OPINION OF THE COURT
COWEN, Circuit Judge.
I.
[3] This case has been described as a “marriage fraud” case in which the government asserts that Olatunji “devised and intended to devise a scheme and artifice to defraud and to obtain student aid from the United States Department of Education by means of false and fraudulent pretenses and representations. . . .” App. at 11.
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Three in violation of 18 U.S.C. §§ 1001 and 2 (1982). App. at 15.
[6] Count Four charges Olatunji with aiding and abetting Wood in presenting to the INS a falsified “Petition to Classify Status of an Alien Relative for Issuance of Immigrant Visa” in violation of 18 U.S.C. §§ 1546 and 2 (1982). App. at 17. [7] Count Two of the indictment, which the district court dismissed and which is the subject of the appeal, charges Olatunji with mail fraud in violation of 18 U.S.C. § 1341 (1982). [8] Prior to the trial, Olatunji moved, pursuant to Fed.R.Crim.P. 12(b), to dismiss Count Two. App. at 19. Olatunji argues that the indictment fails to allege an offense under section 1341 since a mail fraud offense is alleged against the Department of Education (“D.O.E.”) “by means of false and fraudulent pretenses and representations,” however, “the only false statements pleaded were ones made to the Immigration Naturalization Service . . . in the course of Olatunji’s earlier efforts to obtain permanent resident alien status.” Brief for Appellee at 2. Olatunji claims, therefore, that Count Two is fatally defective since it does not allege that “false and fraudulent pretenses and representations” were made directly to the D.O.E. App. at 24. As a holder of a green card issued by the INS, he argues that he was eligible for student aid as a matter of law. Consequently, the government could not allege that false statements were made to the D.O.E., the ultimate victim. [9] The district court granted the motion and dismissed Count Two without prejudice to the right of the United States to seek a superseding indictment. App. at 42. The court found the indictment defective “because the government fails to allege that any false statements were made to the Department of Education in order to obtain the aid.” App. at 40. The government now appeals to this Court.II.
[10] The district court’s dismissal of an indictment raises a question of law over which we have plenary review. We have jurisdiction under 18 U.S.C. § 3731 (1982).
[12] “COUNT TWO
[13] “THE GRAND JURY FURTHER CHARGES THAT:
[19] KOYA OLATUNJI, [20] a/k/a `Femi Olatunji,’ [21] a/k/a `Olatunji Ademoluyi,’
[22] devised and intended to devise a scheme and artifice to defraud and to obtain student
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aid from the United States Department of Education by means of false and fraudulent pretenses and representations, well knowing that such pretenses and representations were false and fraudulent when made.
[23] Plan and Purpose of the Scheme and Artifice
[24] “6. It was the plan and purpose of the scheme and artifice for KOYA OLATUNJI to:
[25] thus defrauding the United States Department of Education out of $9,586.(a) marry a United States citizen for the sole and limited purpose of gaining the status of permanent resident alien;
(b) obtain a `green card’ by submitting false and fraudulent information to the INS concerning the marriage; and
(c) receive student aid to which he would not have been entitled were it not for his obtaining the status of permanent resident alien;
[26] Manner and Means of Carrying out the Scheme and Artifice
[27] “7. It was part of the scheme and artifice that defendant KOYA OLATUNJI, a citizen of Nigeria, would and did approach Sonja Wood, a United States citizen, and offer her money to induce Sonja Wood to marry KOYA OLATUNJI for the sole and limited purpose of obtaining lawful permanent resident status in the United States.
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[38] KOYA OLATUNJI
[39] did knowingly cause to be delivered by the United States Postal Service, mail matter, that is a $2,334.37 check from the PNC Education Loan Center in Pittsburgh, Pennsylvania, to Olatunji F. Ademuluti at 5060 City Line Avenue, Apartment A4, Philadelphia, Pennsylvania 19131.
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the allegation of false and misleading representations or if the language had been struck, then the issue would be squarely before us.
[43] With regard to the sufficiency of indictments in general, this Court has recently stated that “[a]n indictment is generally deemed sufficient if it: 1) `contains the elements of the offense intended to be charged,’ 2) `sufficiently apprises the defendant of what he must be prepared to meet,’ and 3) allows the defendant to `show with accuracy to what extent he may plead a former acquittal or conviction’ in the event of a subsequent prosecution.” United States v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989) (citations omitted). We stated further that “[i]t is equally well established that no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.” Rankin, at 112 (citations omitted). [44] As a further criterion of sufficiency, this Court has recognized that each count of an indictment is separate and must stand on its own. See United States v. Zauber, 857 F.2d 137, 143-44 (3d Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1340, 103 L.Ed.2d 810 (1989); United States v. Markus, 721 F.2d 442, 444 (3d Cir. 1983), cert. denied, 476 U.S. 1144, 106 S.Ct. 2256, 90 L.Ed.2d 701 (1986); see also United States v. Fulcher, 626 F.2d 985, 988 (D.C.Cir.) (“Each count must stand on its own, and cannot depend for its validity on the allegations of any other count not specifically incorporated.”) (citations omitted) cert. denied, 449 U.S. 839, 101 S.Ct. 116, 66 L.Ed.2d 46 (1980). [45] As the government has elected not to obtain a superseding indictment, we must address the sufficiency of Count Two of the indictment as it is presently worded. Count Two purports to charge a violation of 18 U.S.C. § 1341, which provides: [46] § 1341. Frauds and swindles[47] 28 U.S.C. § 1341 (1982). [48] In United States v. Pearlstein, we stated that the elements of a section 1341 offense are “1) the existence of a scheme to defraud; 2) the use of the mails in furtherance of the fraudulent scheme; and 3) culpable participation by the defendant.” 576 F.2d at 534. See also United States v. Beecroft, 608 F.2d 753, 757 (9th Cir. 1979) (“[u]nder 18 U.S.C. § 1341, the essential elements of mail fraud are: (1) a scheme to defraud, and (2) a knowing use of the mail to execute the scheme”). In construing section 1341, we recognized in United States v. Boffa, 688 F.2d 919, 925 (3d Cir. 1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 494 (1983), that “[g]enerally, [the mail fraud statute] has been expansively construed to prohibit all schemes to defraud by any means of misrepresentation that in some way involve the use of the postal system.” However, in construing an indictment alleging mail fraud, we will not strain to interpret a defective indictment to be in conformity with section 1341. See United States v. Zauber, 857 F.2d 137, 143 (3d Cir. 1988). We conclude that, when read as a whole, Count Two is sufficient.Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.
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[49] We must determine whether the allegations contained in Count Two constitute an offense under section 1341. Significantly, Count Two does allege that fraudulent representations were mad both to the INS and to the D.O.E. Paragraph Five, for example, alleges that Olatunji “devised and intended to devise a scheme and artifice to defraud and to obtain student aid from the United States Department of Education by means of false and fraudulent pretenses and representations, well knowing that such pretenses and representations were false and fraudulent when made.” App. at 11. Paragraph Fifteen goes on to allege that it was “part of the scheme and artifice that defendant Koya Olatunji would and did state in applications for student aid that he possessed a citizenship status which made him eligible to receive such aid.” App. at 13. It is clear from the remainder of Count II that the grand jury found probable cause to believe Olatunji could not truthfully represent that he possessed a citizenship status of a kind which qualified him for student aid. We agree that “fraudulent representations, as the term is used in [section] 1341, may be effected by deceitful statements of half-truths or the concealment of material facts and the devising of a scheme for obtaining money or property by such statements or concealments. . . .” United States v. Allen, 554 F.2d 398, 410 (10th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977); see also Lustiger v. United States, 386 F.2d 132, 138 (9th Cir. 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1042, 19 L.Ed.2d 1142 (1968); United States v. Perkins, 748 F.2d 1519, 1524 (11th Cir. 1984) (“the validity of an indictment is determined `from reading the indictment as a whole and . . . by practical, not technical considerations'”) (quoting United States v. Markham, 537 F.2d 187, 192 (5th Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977)). Only by concealing from the D.O.E. that he obtained his green card by means of false statements was Olatunji able to obtain financial aid. The statements concealed from the D.O.E. were certainly significant with respect to ascertaining Olatunji’s eligibility.[4] [50] The government acknowledged during oral argument that it would have to prove at trial that Olatunji married for the purpose of obtaining student aid from the D.O.E. The government’s theory was that this was a unitary scheme.[5] OlatunjiPage 1168
should not be shielded from criminal liability under an overly narrow reading of section 1341 simply because the scheme he allegedly created is an elaborate one.
[51] The defendant also urges, as a matter of law, that an indictment alleging “false and fraudulent pretenses and representations” under 18 U.S.C. § 1341 must specifically allege that such false statements and representations were mad directly to the ultimate victim, i.e., the D.O.E. In Rankinwe cited United States v. Perkins, 748 F.2d 1519 (11th Cir. 1984), with approval and for the proposition that an indictment which “tracks” the language of the statute is sufficient. As in Rankin, where the defendants invited this Court to construct a special pleading rule for obstruction of justice cases under 18 U.S.C. § 1503 (1982), the defendant here, in essence, is seeking a special pleading rule for indictments under section 1341. We similarly decline the defendant’s invitation here. [52] The prevailing test for determining the sufficiency of an indictment was articulated by the United States Supreme Court i Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974), where the Supreme Court stated that, “an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” See also United States v. French, 683 F.2d 1189, 1194 (8th Cir.), cert. denied, 459 U.S. 972, 103 S.Ct. 304, 74 L.Ed.2d 284 (1982) (same). In quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882), the Court in Hamling stated that the sufficiency of basic “tracking” depends on the language of the statute itself:
[53] 418 U.S. at 117, 94 S.Ct. at 2907. [54] The language under which Olatunji was indicted meets the requirements of clarity and specificity set forth above. The indictment’s tracking language supplemented by specific allegations of the criminal activity appear entirely sufficient See United States v. Ramos, 666 F.2d 469, 474 (11th Cir. 1982) (collecting cases involving challenges to indictments “tracking” the language of other criminal statutes). While Paragraph Five tracks the language of the statute, Paragraph Six describes the specific nature of the criminal activity. See Indictment supra ¶¶ 5, 6. Paragraph Fifteen further charges that after fraudulently obtaining a green card, Olatunji “did state in applications for student aid that he possessed a citizenship status which made him eligible to receive such aid.” App. at 13. The “test is not whether the indictment could have been framed in a more satisfactory manner but whether it conforms to minimal constitutional standards.” Perkins, 748 F.2d at 1524 (citin United States v. Haas, 583 F.2d 216, 219 (5th Cir. 1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1788, 60 L.Ed.2d 240 (1979)). We hold that Olatunji has been adequately informed of the charges against him as required by the sixth amendment and Fed.R.Crim.P. 7(c).[6]It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as `those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.’
III.
[55] Based on the foregoing, we will reverse the district court and remand with instructions that Count Two of the indictment be reinstated.
Congress has since amended the mail fraud statute by adding, “the term `scheme or artifice to defraud’ includes the scheme or artifice to deprive another of the intangible right of honest services.” Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, § 7603, 102 Stat. 4181, 4058 (1988) (now codified in section 1346 of Title 18, see 18 U.S.C.A. § 1346 (West Supp. 1989)).
721 F.2d at 922 (Sloviter, J., concurring) (“failure to limit or define `schemes to defraud’ may leave open the construction that even a deceitful omission is not required. This court may ultimately adopt such a broad construction of the statute. But that should be only after plenary consideration in an adversary context.”).
In order to receive any grant, loan, or work assistance under this subchapter . . . a student must —
. . . .
(5) be a citizen or national of the United States, a permanent resident of the United States, in the United States for other than a temporary purpose and able to provide evidence from the Immigration and Naturalization Service of his or her intent to become a permanent resident. . . .
20 U.S.C.A. § 1091(a)(5) (West Supp. 1989). A recent amendment provides that:
(h) Immigration status verification required The following conditions apply with receipt to an individual’s receipt of any grant, loan, or work assistance under this subchapter and part C of subchapter I of chapter 34 of Title 42 as a student at an institution of higher education:
(1)(A) There must be a declaration in writing to the institution by the student, under penalty of perjury, stating whether or not the student is a citizen or national of the United States, and, if the student is not a citizen or national of the United States, that the individual is in a satisfactory immigration status.
20 U.S.C.A. § 1091(h) (West Supp. 1989) (Pub.L. 99-603, Title I, § 121(a)(3), (c)(3), 100 Stat. 3388, 3390 (effective October 1, 1988)). We recognize that this was added after Olatunji allegedly defrauded the D.O.E. We merely note the continued importance of proper immigration status to the D.O.E.
(a) General classes
Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who —
. . . .
(4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more, or who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial. . . .
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