United States District Court, D. Nevada
FINDINGS AND RECOMMENDATION RE: MOTION TO DISMISS
(ECF NO. 254)
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant Leilani Lew's
Motion to Dismiss (ECF No. 254), filed on March 23, 2018. The
Government filed its Response (ECF No. 267) on April 5, 2018,
and Defendant filed her Reply (ECF No. 272) on April 13,
2018. The Court conducted a hearing in this matter on April
Leilani Lew was initially charged in a superseding criminal
indictment filed on February 8, 2017. Superseding
Criminal Indictment (ECF no. 14). Count One of the
indictment alleged that Defendant Lew participated in a
conspiracy to commit mail fraud and wire fraud in connection
with telemarketing, in violation of 18 U.S.C. §1349,
that occurred from October 2010 to April 2012. Id.
at 1. The alleged objective of the conspiracy was to cheat
timeshare owners out of money by promising to sell timeshares
in return for the owners paying in advance half the costs
associated with the purported sales. However, there were no
buyers and the timeshare sales never occurred and were never
arranged. Id. at 2. Defendant Daniel Boyar was the
alleged leader of the conspiracy. Boyar allegedly operated a
call room in or near Orlando, Florida where he led more than
five coconspirators in the execution of the fraud scheme.
Defendant Lew allegedly participated as an administrator in
the entire fraudulent scheme and engaged in various acts in
furtherance of the conspiracy. Id. at 2-7. Defendant
Lew is charged in Counts Two and Three of the indictment with
acts of mail fraud that occurred on February 10, 2012 and
March 19, 2012, and with acts of wire fraud that occurred on
February 9, 2012 and March 19, 2012. Id. at 7-9.
These same charges are repeated in the third superseding
indictment that was filed on April 12, 2017. Third
Superseding Indictment (ECF No. 129).
Lew asserts as an “undisputed fact” that she was
employed by the business which allegedly conduct the fraud
scheme from October 16, 2010 until August 19, 2011. She
asserts that her employment and alleged participation in the
fraud scheme ended in August 2011. Motion to Dismiss
(ECF No. 254), at 5-6. She therefore argues that the charges
against her are barred by the five-year statute of
limitations set forth in 18 U.S.C. § 3282. The
Government contends, however, that because Plaintiff
participated in a conspiracy that was still ongoing within
the limitations period, the statute of limitations does not
preclude her prosecution unless she can prove that she
withdrew from the conspiracy prior to February 8, 2012. The
Government further argues that Defendant's alleged
withdrawal is a question of fact to be determined at trial.
ruling on a pre-trial motion to dismiss an indictment for
failure to state an offense, the district court is bound by
the four corners of the indictment. United States v.
Boren, 278 F.3d 911, 914 (9th Cir. 2002)
(citing United States v. Jensen, 93 F.3d 667, 669
(9th Cir. 1996)). “A motion to dismiss the
indictment cannot be used as a device for a summary trial of
the evidence . . . The Court should not consider evidence not
appearing on the face of the indictment.” Id.
(quoting Jensen, 93 F.3d at 669). See also
United States v. Lyle, 742 F.3d 434, 436 (9th
U.S.C. § 1349 provides that any person who attempts or
conspires to commit mail fraud under 18 U.S.C. § 1341 or
wire fraud under 18 U.S.C. § 1343, shall be subject to
the same penalties as those prescribed for the offense, the
commission of which was the object of the conspiracy.
Co-conspirators are criminally liable for reasonably
foreseeable overt acts committed by others in furtherance of
the conspiracy they have joined, whether they are aware of
them or not. Pinkerton v. United States, 328 U.S.
640, 647, 66 S.Ct. 1180 (1946); United States v.
Hernandez-Orellana, 539 F.3d 994, 1007 (9th
Cir. 2008); United States v. Gadson, 763 F.3d 1189,
1214-15 (9th Cir. 2014). Due process, however,
constrains the application of Pinkerton where the
relationship between the defendant and the substantive
offense is slight. Gadson, 763 F.3d at 1216.
order for the conspiracy to have occurred during the statute
of limitations period, only one overt act in furtherance of
the conspiracy must have occurred during that period.
United States v. Wilbur, 674 F.3d 1160, 1171
(9th Cir. 2012) (citing United States v.
Fuchs, 218 F.3d 957, 961 (9th Cir. 2000)).
“The general rule is that a ‘conspiracy continues
until there is affirmative evidence of abandonment,
withdrawal, disavowal or defeat of the object of the
conspiracy.'” Id. at 1176 (quoting
United States v. Recio, 371 F.3d 1093, 1096
(9th Cir. 2004)). “To withdraw from a
conspiracy, a defendant must either disavow the unlawful goal
of the conspiracy, affirmatively act to defeat the purpose of
the conspiracy, or take ‘definitive, decisive, and
positive' steps to show that the [defendant's]
disassociation from the conspiracy is sufficient.'”
United States v. Lothian, 976 F.2d 1257, 1261
(9th Cir. 1992) (quoting United States v.
Loya, 807 F.2d 1483, 1493 (9th Cir. 1987)).
See also United States v. Flores, 279 Fed.Appx. 443
(9th Cir. 2008) (unpublished decision); United
States v. Kopp, 464 Fed.Appx. 662, 663-4
(9thCir. 2012) (unpublished decision). Once the
government has proven that the defendant was a member of the
conspiracy, the burden is on the defendant to prove
withdrawal from the conspiracy by a preponderance of the
evidence. Smith v. United States, 568 U.S. 106,
109-111, 133 S.Ct. 714, 718-720 (2013). A defendant's
withdrawal from the conspiracy starts the clock running on
the time within which the defendant may be prosecuted, and
provides a complete defense when withdrawal occurs beyond the
applicable statute-of-limitations period. Id., 568
U.S. at 111, 133 S.Ct. at 719-20.
superseding indictment and third superseding indictment
allege that Defendant Lew participated in a conspiracy that
continued into April 2012. It alleges two overt acts of mail
fraud and two overt acts of wire fraud that occurred within
five years of the superseding indictment. Superseding
Indictment (ECF No. 14), at 7-9. Defendant Lew has the
burden of proving that she withdrew and when she withdrew
from the conspiracy. That is a factual issue for trial and
not a proper issue for determination on a motion to dismiss.
IS HEREBY RECOMMENDED that Defendant's Motion to