United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
filed a motion to dismiss for failure to state a claim under
(“Motion”). (ECF No. 92.) The Magistrate Judge
issued the Report and Recommendation (“R&R”)
recommending denial of the Motion. (ECF No. 137.) Serban
objects to the R&R. (ECF No. 138.) The government filed a
response (ECF No. 139), and Serban filed a reply (ECF No.
141). For the reasons discussed below, the Court
overrules Serban's objection, adopts the R&R, and
will deny the Motion.
grand jury indicted Defendant Oana Maria Serban and two
co-defendants on ten counts-Conspiracy to Commit Fraud and
Related Activity in Connection with Access Devices, 18 U.S.C.
§ 1029(b)(2) (Count 1); Possession of Access
Device-Making Equipment, 18 U.S.C. § 1029(a)(4) (Count
2); Possession of Fifteen or More Counterfeit or Unauthorized
Access Devices, 18 U.S.C. § 1029(a)(3) (Count 3); Use or
of an Unauthorized Access Device, 18 U.S.C. § 1029(a)(2)
(Count 4); Aggravated Identity Theft, 18 U.S.C. § 1028A
(Counts 5-9); and Conspiracy to Commit Money Laundering, 18
U.S.C. § 1956(a)(2)(A) & (h) (Count 10). (ECF No.
81.) These charges stem from the government's allegations
that defendants engaged in ATM skimming activities to obtain
money between August and December 2017. (Id.)
seeks dismissal under Fed. R. Crim. P. 12(b)(3)(B)(v) for
failure to state an offense. In considering a dismissal under
Rule 12(b)(3)(B)(v), the district court “must accept
the truth of the allegations in the indictment in analyzing
whether a cognizable offense has been charged.”
United States v. Boren, 278 F.3d 911, 914 (9th Cir.
2002). The government is not required to state its theory of
the case or allege supporting evidence in an indictment;
rather, the government need only allege the “essential
facts necessary to apprise a defendant of the crime
charged.” United States v. Buckley, 689 F.2d
893, 897 (9th Cir. 1982) (quoting United States v.
Markee, 425 F.2d 1043, 1047-48 (9th Cir. 1970),
cert. denied, 400 U.S. 847 (1970)).
district court may refer pretrial matters, such as motions to
dismiss, to the magistrate judge to make findings and
recommendations. 28 U.S.C. § 636(b)(1)(B); LR IB 1-4.
Objections to such findings and recommendations are reviewed
de novo. 28 U.S.C. § 636(b)(1)(C); LR IB 3-2(a).
seeks dismissal of the five identity theft counts (Counts
5-9) on two grounds: (1) the indictment fails to plead the
predicate felonies enumerated in 18 U.S.C. § 1028A(c) as
an element of the aggravated identity theft counts; and (2)
the indictment fails to plead any elements of terrorism to
support a charge of terrorism offense in violation of 18
U.S.C. § 1028A(a)(2). (ECF No. 92.) The Court will
address each ground in turn.
argues that the indictment alleges a violation of use and
trafficking in unauthorized access devices in violation of 18
U.S.C. § 1029 but that this section is not an offense
enumerated in 18 U.S.C. § 1028A(c). (ECF No. 92 at 5.)
The Magistrate Judge found that 18 U.S.C. § 1028A(c)(4)
covers as predicate felonies for a § 1028A charge the
offenses identified in Title 18, United States Code, Part I,
Chapter 47 (“Chapter 47”). (ECF No. 137 at 3.)
The Court agrees.
1028A(c) states, in pertinent part, that “the term
‘felony violation enumerated in subsection (c)'
means any offense that is a felony violation of -- . . . (4)
any provision contained in this chapter (relating to fraud
and false statements), other than this section or section
1028(a)(7).” 18 U.S.C. § 1028A(c)(4). “This
chapter” refers to Chapter 47. Id. Felony
offenses committed in violation of § 1029 are contained
within Chapter 47 and are predicate enumerated offenses for a
§ 1028A charge. See, e.g., United States v.
Febles, No. 2:16-cr-141-NT, 2017 WL 976927, at *1 (D.
Me. Mar. 13, 2017). Here, the indictment charges violations
of § 1029 in Counts 1 through 4, which serve as
predicate felony offenses for the charges of violations of
§ 1028A(1)(a) in Counts 5 through 9.
relies on United States v. Bonilla, 579 F.3d 1233
(11th Cir. 2009), to argue that “[f]ederal appellate
authority holds otherwise” and suggests double
jeopardy would result if § 1029 offenses (which are
covered under Chapter 47) are predicate offenses for a §
1028A charge. However, Bonilla does not support
either argument. To the contrary, the court in
Bonilla found that § 1029(a)(2) is a predicate
felony offense for conviction under § 1028A(a)(1). 579
F.3d at 1242. The court went on to reject the argument that
convictions under both § 1029(a)(2) and §
1028A(a)(1) violate the double jeopardy clause, reasoning
that “the legislature specifically authorized
cumulative punishment.” Bonilla, 579 F.3d at
the second ground for dismissal, the Magistrate Judge
recommends denying the Motion because the indictment does not
contain any allegation of terrorism as Serban argues. (ECF
No. 137 at 4.) In the government's response to
Serban's objection, the government asserts that the
indictment does not plead or even reference §
1028A(a)(2), which Serban relies on to infer charges of
terrorism. In light of such clarification and the