United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief District Judge.
Before the Court is the Report and Recommendation (R&R) issued by the magistrate judge (ECF No. 55) addressing the Defendant's Motion to Dismiss (ECF No. 29). The Government filed a timely Response (ECF No. 37) to the Defendant's motion and the Defendant filed a Reply (ECF No. 38). The magistrate judge held a hearing (ECF No. 53) and took the matter under submission before issuing its written R&R. The Defendant filed a timely Objection to the R&R (ECF No. 56) and the Government filed its Response (ECF No. 58).
In its Objection to the R&R (ECF No. 56), the Defendant maintains that the Government did not adequately plead materiality of the "scheme or artifice" and that Defendant made material misrepresentations in furtherance of a fraudulent purpose. Defendant also objects that the R&R failed to address Defendant's claims that due process and the Rule of Lenity require dismissal.
I. STANDARD OF REVIEW
A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo determination of those portions of the Report to which objections are made. Id. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. IB 3-2(b).
The Defendant is charged with Bank Fraud in violation of 18 U.S.C. § 1344. The elements required to be proven are as follows, (1) the defendant knowingly carried out a scheme or plan, to obtain money or property, from Wells Fargo by making false statements or promises; (2) the defendant knew that the statements or promises were false; (3) the statements or promises were material; that is, they had a natural tendency to influence, or were capable of influencing, a financial institution to part with money or property; (4) the defendant acted with the intent to defraud; and (5) Wells Fargo was federally insured. See 9th Cir. Crim. Jury Instr. 8.127 (2010).
The Defendant challenges the third element, "materiality, " and claims that "the Indictment does not contain any factual allegations to support the purported capacity of the Defendant's signature to influence Wells Fargo during a foreclosure crisis in Nevada." (Def.'s Objection 3:22-24, ECF No. 56.)
The Indictment in this case specifically alleges that Defendant Hossain "did execute a scheme and artifice (a) to defraud Wells Fargo Bank, a financial institution insured by the Federal Deposit Insurance Corporation (FDIC) and (b) to obtain moneys, funds, credits, assets, securities, or other property owned by or under the control of Wells Fargo Bank, by means of materially false or fraudulent pretenses, representations, or promises." (Indictment ¶ 4, ECF No. 1.) The indictment further alleges that:
I. Defendant solicited MR, a business associate, and BSA, a relative, to be straw buyers for the residence.
II. On or about November 9, 2009, defendant Hossain and MR made the following material misrepresentations in the Short Sale Contract Addendum for the residence:
(1.) The short sale would be an "Arm's Length Transaction;"
(2.) The short sale would "be between two unrelated parties" and that "[n]o party to [the] contract is a family member, business associate, or shares a business interest with the mortgagor (Sellers);
(3.) There were no "agreements written or implied that will allow the Seller to remain in the property as renters or regain ownership of said property at any time after the ...