United States District Court, D. Nevada
REPORT AND RECOMMENDATION (ECF NOS. 92, 98,
HOFFMAN, JR.UNITED STATES MAGISTRATE JUDGE.
the court is defendant Oana Maria Serban's Motion to
Dismiss for Failure to State a Claim under Fed. R. Crim. P.
12(b)(2)(B)(v) (ECF No. 92), filed May 24, 2018, the
government's response (ECF No. 100), filed May 25, 2018,
and Serban's reply (ECF No. 107), filed May 29, 2018.
Co-defendant Eugeniv Florian Ciuca moved for joinder to the
motion (ECF No. 98), on May 24, 2018, and to Serban's
reply (ECF No. 108) on May 29, 2018.
government states that in September 2017, defendants Ionut
Bitere (Bitere), Eugeniv-Florian Ciuca (Ciuca), and Oana
Maria Serban (Serban) traveled from Romania to the United
States to commit ATM skimming and fraudulent cash
withdrawals. They started their ATM skimming activities in
Illinois and moved their way across the United States,
arriving in Las Vegas, Nevada in November 2017. They
conducted a spree of ATM skimming and cashouts that targeted
area credit unions, but on December 5, 2017, all three were
January 3, 2018, a grand jury in the District of Nevada
indicted the three defendants with the following crimes:
Count 1 - Conspiracy to Commit Fraud and Related Activity in
Connection with Access Devices (18 U.S.C. § 1029(b)(2));
Count 2 - Possession of Access Device-Making Equipment (18
U.S.C. § 1029(a)(4)); Count 3 - Possession of Fifteen or
More Counterfeit or Unauthorized Access Devices (18 U.S.C.
§ 1029(a)(3)); Count 4 - Use or Trafficking of an
Unauthorized Access Device (18 U.S.C. § 1029(a)(2));
Counts 5-9 - Aggravated Identity Theft (18 U.S.C. §
1028A). (Indictment (ECF No. 37).) On April 25, 2018, the
Grand Jury returned a superseding indictment that added a
Count 10 - Conspiracy to Commit Money Laundering (18 U.S.C.
§ 1956(a)(2)(A) and (h)). (Superseding Indictment (ECF
moves to dismiss the indictment because it fails to allege a
predicate 18 U.S.C. § 1028A(c) enumerated felony as an
element in (1) any aggravated identity theft count and (2) in
any other count pled. She further argues that the indictment
alleges a violation of use/trafficking in unauthorized access
devices in violation of 18 U.S.C. § 1029, but that is
not an enumerated offense under 18 U.S.C. § 1028A(c).
Accordingly, she argues the indictment fails to allege an
essential element under 18 U.S.C. § 1028A(a)(1), and
should be dismissed.
government responds that Serban misreads the plain language
of 18 U.S.C. § 1028A(c)(4), which textually incorporates
all offenses contained in title 18 U.S.C. Part I, Chapter 47,
including violations of 18 U.S.C. § 1029, which are
contained in counts 1 through 4 of the indictment.
Standard of Review
Rule 12(b) of the Federal Rules of Criminal Procedure,
“[a] party may raise by pretrial motion any defense,
objection, or request that the court can determine without a
trial on the merits.” A motion to dismiss is generally
capable of determination before trial “if it involves
questions of law rather than fact.” United States
v. Yip, 248 F.Supp.2d 970, 972 (D. Haw. 2003)
(citing United States v. Shortt Accountancy Corp.,
785 F.2d 1448, 1452 (9th Cir.), cert. denied, 478
U.S. 1007 (1986)). An indictment is sufficient to withstand a
motion to dismiss if it contains the elements of the charged
offense in sufficient detail (1) to enable the defendant to
prepare his defense; (2) to ensure him that he is being
prosecuted on the basis of facts presented to the grand jury;
(3) to enable him to plead double jeopardy; and (4) to inform
the court of the alleged facts so that it can determine the
sufficiency of the charge. United States v.
Musacchio, 968 F.2d 782, 787 (9th Cir. 1991). Generally,
the court should not consider evidence appearing outside the
four corners of the indictment and “must accept the
facts alleged in that indictment as true.”
United States v. Ruiz-Castro, 125 F.Supp.2d
411, 413 (D. Haw. 2000) (citing Winslow v. United
States, 216 F.2d 912, 913 (9th Cir. 1954), cert.
denied, 349 U.S. 922 (1955)). The indictment itself
should be “(1) read as a whole; (2) read to include
facts which are necessarily implied; and (3) construed
according to common sense.” United States v.
Blinder, 10 F.3d 1468, 1471 (9th Cir. 1993) (citing
United States v. Buckley, 689 F.2d 893, 899 (9th Cir.
1982), cert. denied, 460 U.S. 1086 (1983)). The
court's inquiry must end there. Arguments directed at the
merits of the claims must be left for trial.
Predicate Offenses of Title 18 U.S.C.
5 through 9 of the indictment allege that defendants, as
principals, aiders and abettors, did knowingly possess and
use, without lawful authority, a means of identification of
another person, to wit; the credit and debit card account
number and PIN number of [another person], during and in
relation to a felony violation enumerated in 18 USC §
1028A(c), to wit: Use or Trafficking in Unauthorized Access
Device, knowing that the means of identification belonged to
another actual person, in violation of Title 18 U.S.C, §
1028(a)(1) and 2.
18 U.S.C. §1028A(a)(1) and (2) ...