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United States of America v. George J. Dilworth

December 12, 2011

UNITED STATES OF AMERICA
v.
GEORGE J. DILWORTH, DEFENDANT.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

SIMANDLE, District Judge:

OPINION

I. INTRODUCTION

This matter is before the Court on Defendant's omnibus motion seeking to dismiss the indictment, suppress evidence and compel production of discovery.*fn1 [Docket Item 10.] The court heard oral argument on August 2, 2011. For the reasons discussed below, the court will grant in part and deny in part defendant's motion.

II. BACKGROUND

Defendant George Dilworth is presently indicted on three separate charges. Count I of the Indictment charges the defendant with conspiracy to evade taxes in violation of 18 U.S.C. § 371. Specifically, Count I alleges defendant, along with co-conspirators Luciano Di Salvatore, Michael Schaffer and Anthony Sentore, conspired to conceal taxable income from the IRS by false and fraudulently characterizing as "loans" payments from defendant and Di Salvatore to Sentore and Schaffer for Sentore and Schaffer's business interest in Municipal Code Inspections, Inc. (hereinafter "MCI"), which constituted taxable income to Sentore and Schaffer.

Count II and III of the Indictment charge the defendant with making false statements in violation of 18 U.S.C. § 1001. Count II of the Indictment alleges defendant falsely claimed that the payments to co-conspirators Anthony Sentore and Michael Schaffer were loans from MCI and produced a false and fraudulent loan agreement between MCI and Michael Schaffer on November 30, 2006. Count III of the Indictment alleges defendant falsely claimed that the payments to co-conspirators Anthony Sentore and Michael Schaffer were loans from MCI on March 7, 2009.*fn2

The Defendant moves to dismiss Count I and Count II of the indictment as unconstitutionally duplicitous and Counts II and III as unconstitutionally multiplicitous. In addition, the Defendant moves to suppress evidence gathered during the IRS' November 30, 2006 interview of the Defendant as the product of an unconstitutional search.

III. DISCUSSION

A. MOTION TO DISMISS THE INDICTMENT

The Defendant challenges Counts I and II of the Indictment. The Defendant argues that Count I is unconstitutionally duplicitous because it charges two offenses of conspiracy in one count. Similarly, the Defendant argues that Count II is unconstitutionally duplicitous because it charges two separate offenses, specifically that Defendant made a false statement and the Defendant falsely produced a document, in one count.

In addition the Defendant moves to dismiss Counts II and III of the Indictment and argues these counts are unconstitutionally multiplicitous. The Defendant maintains that Count II alleges a false statement by the Defendant and Count III alleges a repetition of that same false statement by the Defendant.

Consequently, the Defendant argues that Counts II and III charge the Defendant with ...


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