The opinion of the court was delivered by: Simandle, District Judge
HONORABLE JEROME B. SIMANDLE
According to the government, defendant Haywood Hinton, a/k/a "Ameer Hasan," committed one violation of 18 U.S.C. §§ 1344 and 2 when he knowingly and wilfully executed and attempted to execute a single scheme to defraud six separate financial institutions, and to obtain money, funds and assets owned by and under the control of such financial institutions, by means of materially false and fraudulent pretenses, representations, and promises. Presently before the Court are Hinton's motions to dismiss the indictment as duplicitous and also for a bill of particulars that would detail each alleged transaction, including times, dates, locations, and accomplices which the government claims were a part of defendant's overall scheme to defraud. The principal issue to be determined is whether a one-count indictment alleging that the defendant defrauded six separate financial institutions by employing similar means and measures in various times and places, employing different confederates, suffers from duplicity by alleging multiple crimes within a single count.
After careful consideration of Hinton's motions and the government's response thereto, and the Court having heard oral argument on November 16, 2000, and having received supplemental submissions thereafter, the Court finds that the Second Superseding Indictment is duplicitous and will dismiss same unless the government, within 20 days, elects a single bank fraud charge from among those in the duplicitous count or supersedes this indictment with non-duplicitous charges. The Court will dismiss without prejudice defendant's motion for a bill of particulars as premature, pending the return of a Third Superseding Indictment.
Defendant, Haywood Hinton, a/k/a Ameer Hasan, was first indicted for one count of executing a bank fraud scheme in violation of 18 U.S.C. §§ 1344 and 2 on March 22, 2000. The first one-count Superseding Indictment was returned on August 20, 2000.
On or about November 15, 2000, the Grand Jury returned a one-count Second Superseding Indictment against defendant, charging that from in or about December, 1997 through in or about March, 1999, defendant knowingly and willfully executed and attempted to execute a single scheme and artifice to defraud six financial institutions, namely, First Union National Bank, Sovereign Bank, PNC Bank, N.A., Fleet Bank, N.A., Summit Bank, and Colonial Bank, F.S.B. (collectively, the "Banks"), and to obtain money, funds and assets owned by or under the control of the Banks. (See Second Superseding Indictment, Nov. 15, 2000.) The Second Superseding Indictment specified several means by which defendant allegedly executed that single scheme, including, providing other individuals with false documentation, causing other individuals to open accounts at the Banks under fictitious names and using false identification, causing others to negotiate checks when he knew that neither he nor the others were entitled to such funds, personally negotiating checks, the proceeds of which he knew he was not entitled to, and causing another to negotiate a check in the amount of $1,433.00 at the PNC Bank, N.A. in Cinnaminson, New Jersey. (See id.) Other than identifying the banks, and the one transaction, the Second Superseding Indictment provides no further details.
Discovery has been extensive and has revealed that the scheme is evidenced by approximately 128 transactions at six banks involving nine different confederates, with a summary chart (produced in draft on November 15, 2000) providing the information on a transaction-by-transaction basis regarding the name of the other person involved, his or her fictitious identity, the bank utilized, the location of the transaction, the account utilized, the date of the incident, the checks utilized, the check number and the check amount. By the Court's reckoning, the approximate breakdown of these transactional allegations is as follows:
Financial Institution Earliest and Latest Dates Number of Persons Used *fn1 Number of Accounts Used Number of Transactions
PNC Bank, NA 05/08/981 2 6
Colonial Bank, FSB 05/07/981 2 4
First Union National Bank 01/07/983 through 05/06/98 5 11
Sovereign Bank 12/01/974 through 03/16/99 11 89
Fleet Bank 12/17/971 through 12/30/97 2 9
Summit Bank 12/29/971 through 12/31/97 2 9
This motion, attacking the manner in which this single-count indictment is framed, does not call upon the court to weigh or determine the sufficiency of any evidence, but this summary of transactional evidence is necessary to understand the contour of the crime or crimes charged as the Court next evaluates the parties' positions.
For purposes of these motions, the Court examines the Second Superseding Indictment (filed November 15, 2000), as defendant's motion was initially directed at the First Superseding Indictment, which was itself superseded before oral argument herein. Defense counsel orally renewed the motions as to the Second Superseding Indictment, arguing that it had not cured the impairments of the earlier charge. Accordingly, ...