United States District Court, W.D. Missouri, Western Division
REPORT AND RECOMMENDATION
SARAH W. HAYS, Magistrate Judge.
This matter is currently before the Court on the Motion to Dismiss All Counts of the Indictment for Insufficiency as to T. Cameron Jones (doc #240). For the reasons set forth below, it is recommended that defendant Jones' Motion to Dismiss be denied.
On August 13, 2013, defendant T. Cameron Jones, along with seventeen others, was charged by indictment. On September 10, 2013, the government was granted leave to amend the indictment. Defendant Jones is charged in forty-one counts of this forty-four count indictment-Count 1 (conspiracy to commit wire fraud and contraband cigarette trafficking); Counts 2 through 15 (trafficking in contraband cigarettes); and Counts 16 through 36 and 39 through 43 (wire fraud).
The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be informed of the nature and cause of the accusation...." This Constitutional requirement is implemented by Rule 7(c)(1) of the Federal Rules of Criminal Procedure which specifies that "[t]he indictment... must be a plain, concise, and definite written statement of the essential facts constituting the offense charged...." An indictment is sufficient if it: (1) contains the essential elements of the offenses charged; (2) fairly informs the defendant of the charges against which he must defend; and (3) enables the defendant to plead an acquittal or conviction in bar of future prosecution for the same offenses. See Hamling v. United States, 418 U.S. 87, 117 (1974); United States v. O'Hagan, 139 F.3d 641, 651 (8th Cir. 1998); United States v. Wessels, 12 F.3d 746, 750 (8th Cir. 1993), cert. denied, 513 U.S. 831 (1994). The sufficiency of a criminal indictment is determined from its face. There is no summary judgment procedure in criminal cases nor do the rules provide for a pre-trial determination of the sufficiency of the evidence. See United States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995); United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992). Indictments are normally sufficient unless no reasonable construction can be said to charge the offense. See O'Hagan, 139 F.3d at 651; United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993).
As set forth above, defendant Jones is charged in forty-one counts of the forty-four count indictment. The indictment provides in part:
From on or about July 2010, and continuing until on or about January 26, 2012, said dates being approximate, in the Western District of Missouri and elsewhere, [all defendants] did knowingly and intentionally combine, conspire, confederate and agree with others both known and unknown, to commit offenses against the United States, that is, wire fraud, in violation of Title 18, United States Code, Section 1343; contraband cigarette trafficking, in violation of Title 18, United States Code, Sections 2341 through 2346.
Background and General Allegations
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4. During all times relevant to this conspiracy, T. CAMERON JONES owned and operated Manufacturer's Production Exchange (MPX) in Quilcene, Washington.
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14. During the course of this conspiracy, T. CAMERON JONES received approximately $154, 000 for his "brokerage fees."
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16. New York State, through the Department of Taxation and Finance, pre-collects an excise tax of $4.35 per pack of cigarettes from wholesalers for sales to Indian nations and tribes, as a result of Chapter 134 of the New York State Laws of 2010. This taxing scheme was upheld by the United States Court of Appeals for the Second Circuit in Oneida Nation of New York v. Cuomo, 645 F.3d 154 (2d Cir. 2011)(hereinafter the Oneida decision). The New York State taxing scheme for cigarettes was enforced shortly after the Oneida decision was issued. Thereafter, all cigarettes being brought into the State of New York were required to prepay an excise tax of $4.35 per pack of cigarettes ($43.50 per carton).
17. Federal and New York State law requires that tax stamps be affixed to cigarette packages - prior to their sale to consumers - reflecting that the required state taxes have been paid. Cigarette packages without the appropriate stamps are considered to be "unstamped" and a quantity in excess of $10, 000 unstamped cigarettes are "contraband cigarettes" as defined in 18 U.S.C. § 2341(2)....
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Manner and Means
23. It was part of the conspiracy that UCC 1 [unindicted co-conspirator 1], CRAIG SHEFFLER, and TADAIYON would make regular purchases in Kansas City, Missouri, of contraband cigarettes from undercover agents (UCAs) of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in exchange for U.S. currency.
24. It was part of the conspiracy that T. CAMERON JONES and DAVID BISHOP would coordinate the orders between UCC 1, CRAIG SHEFFLER and TADAIYON. TADAIYON and GERALD E. BARBER would coordinate the cigarette orders from the vendors in New York State - including WILLIAM F. PARRY, TARA SUNDOWN, AJ's and HCID in Nebraska.
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30. At no point during the conspiracy timeframe was the New York State excise tax paid on these cigarette transactions. From the post- Oneida date, June, 2011, through the end of the conspiracy, the total state excise tax lost to New York State was approximately $8, 148, 420.
31. In furtherance of the conspiracy and to effect the objects of the conspiracy, the following overt acts, among others, were committed in the Western District of Missouri and elsewhere:
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(k) On August 4, 2011, CRAIG SHEFFLER paid the ATF undercover agent $541, 725 in cash for 132 cases (7, 920 cartons) of Marlboro cigarettes, and other cigarettes. The following acts were taken by the co-conspirators in this transaction:
(1) On July 20, 2011, DAVID BISHOP sent an e-mail to JONES and CRIAG SHEFFLER with an order of 264 cases of contraband cigarettes;
(2) On August 2, 2011, CRAIG SHEFFLER e-mailed JONES and DAVID BISHOP an invoice to BNC for 7, 920 cartons of Marlboro cigarettes in the amount of $249, 480;
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(l) On August 18, 2011, SHEFFLER paid the ATF undercover agent $551, 220 cash for 132 cases (7, 920 cartons) of Marlboro cigarettes and other cigarettes. The following acts were taken by the co-conspirators in this transaction:
(1) On August 8, 2011, DAVID BISHOP sent an e-mail to JONES and CRAIG SHEFFLER for the next order to be delivered on August 18, 2011;
(2) On August 16, 2011, CRAIG SHEFFLER sent by e-mail to JONES and DAVID BISHOP an invoice for 7, 920 cartons of untaxed Marlboro cigarettes in the amount of $257, 400;
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(m) On September 15, 2011, CRAIG SHEFFLER purchased 15, 480 cartons (258 cases) of untaxed Marlboro cigarettes and 5, 760 (96 cases) cartons of untaxed Newport cigarettes from the ATF undercover agents for $613, 080. CRAIG SHEFFLER paid $490, 000 of this amount in cash. The following acts were taken by the co-conspirators in this transaction:
(1) On September 13, 2011, CRAIG SHEFFLER sent an e-mail to JONES and DAVID BISHOP concerning the amount of premium cigarettes available;
(2) On September 14, 2011, DAVID BISHOP sent an e-mail to CRAIG SHEFFLER and directed CRAIG SHEFFLER to invoice BNC for the cigarettes and to pay JONES and DAVID BISHOP $.50 a carton for the Marlboro cigarettes and $1.00 per carton for the Newports;
(3) On September 14, 2011, CRAIG SHEFFLER sent an e-mail to DAVID BISHOP and JONES an invoice for BNC for 5, 400 cartons (90 cases) of Marlboro cigarettes and 2, 880 ...