United States District Court, M.D. Louisiana
RULING AND ORDER
A JACKSON UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion to Dismiss (Doc.
26). Plaintiff filed an Opposition to the Motion to
Dismiss. (Doc. 28). Oral argument is not necessary. For the
following reasons, the Motion to Dismiss (Doc. 26) is
Wallace Byers is alleged to have fraudulently induced various
victims to invest in WBI Associates, LLC, ("WBI") a
company purportedly created to invest in high-yield
investments on behalf of its clients. (Doc. 1 at par. 2).
Defendant allegedly made false promises to investors for the
purposes of tricking them into giving WBI money to be
invested in certain securities. Instead of investing the
money, he transferred that money into his personal account.
(Id. at ¶¶ 1-16). Defendant is alleged to
have transferred $3, 000, 000 from WBFs bank account in the
United states to the bank account of an entity known as Byers
Investment at UBS Swiss Financial Advisers AG in Zurich,
Switzerland on or about July 24, 2018. (Id. at
¶ 17). On March 20, 2019, a federal grand jury returned
a four-count indictment against Defendant, charging him with
wire fraud and international money
now moves to dismiss Count 4 of the indictment involving the
transfer of $3, 000, 000 from the United States to
Switzerland. The Government opposes the motion.
indictment is sufficient if it contains the elements of the
charged offense, fairly informs the defendant of the charges
against him, and ensures that there is no risk of future
prosecutions of the same offense. United States v.
Cavalier, 17 F.3d 90, 92 (5th Cir. 1994). Fed. R. Crim.
P. 7(c) provides that an indictment shall be a "plain,
concise, and definite written statement of the essential
facts constituting the offense charged." An indictment
is properly pleaded if it informs the accused of the offense
with "sufficient specificity to enable him to prepare
his defense." James v. United States, 416 F.2d
467, 472 (5th Cir. 1969).
establish international money laundering, the Government must
establish: (1) that the defendant transported, transmitted,
or transferred a monetary instrument or funds from a place in
the United States to or through a place outside the United
States; (2) that the defendant knew that the monetary
instrument or funds involved in the transportation,
transmission, or transfer represented the proceeds of some
form of unlawful activity; and (3) that the defendant knew
that such transportation, transmission, or transfer was
designed in whole or in part to conceal or disguise the
nature, location, source, ownership, or control of the
proceeds of specified unlawful activity. See 18
U.S.C. § l956(a)(2)(B)(i); COMMITTEE ON PATTERN Jury
Instructions, District Judges Association, 5th Circuit,
Pattern Jury Instructions (Criminal Cases) 356 (2015);
Cuellar v. United States, 128 S.Ct. 1994, 2002
concedes that the funds in question were properly deemed
proceeds of illicit activity for the purposes of the
indictment, and that the Government properly pleaded that
Defendant was aware of that fact. (Doc. 26-1 at pp. 1-2).
Further, Defendant does not challenge the fact that $3, 000,
000 was transferred from the United States to Switzerland.
Defendant does, however, contest the Government's
characterization of the purpose of such transfer: to disguise
the "nature, location, source, ownership, or
control" of the funds. (Id. at p. 2). Defendant
claims that to open a Swiss bank account, he had to provide
his passport and complete an IRS W-9 form. (Id.).
Defendant argues that the Government has not alleged enough
facts to establish the requisite intent to conceal or
disguise the origin of the money when both bank accounts were
obviously owned by and named after Defendant. (Id.
at p. 6).
Court disagrees. Defendant essentially argues that his
association with the Swiss bank account is too obvious for
there to have been a reasonable allegation that moving funds
into that account was an attempt to conceal the funds.
However, whether the attempt to conceal was successful or not
is immaterial to the issue of whether there was subjective
intent to deceive. The only question that matters is
whether Defendant acted with the intent to deceive, even if
it appears as though the method of deception was obvious.
cites Cuellar v. United States, 553 U.S. 550 (2008)
where the Supreme Court of the United States found that the
subjective reasons why money was moved in a
particular way is the key factor in determining whether there
was intent to deceive in an international money laundering
case. The Court agrees that the reasons the funds were
transferred to Switzerland is central to a determination of
whether Defendant intended to deceive anyone by transferring
the funds. However at this stage, the Government is required
only to make allegations that give Defendant notice of the
Government's charges, and that accurately relate the
elements of the charged offense. The Indictment provides:
On or about July 24, 2018 . . . Wallace Byers did transfer .
. . $3, 000, 000 from WBI's bank account ********4004 at
a TD Bank branch in Miami, Florida, to Byers Investments'
bank account ********200l a UBS Swiss Financial
Advisers AG in Zurich, Switzerland, knowing that such . . .
transfer was designed in whole and in part to conceal and
disguise the nature, location, source, ownership, and control
of the specified unlawful activity, i.e. wire fraud in
violation of 18 U.S.C. § 1343. (Doc. 1 at ¶ 17).
Government further alleges that part of Defendant's
scheme was to falsely inform his victims that the money they
paid to him was already invested "overseas" and
that he no longer had control of it. (Id. at ¶
15). Whether the requisite intent to deceive was present is
not a matter that can be definitively determined at this
stage, and must be determined by the trier of fact at trial.
Regardless, the Indictment sufficiently informs the Defendant
of the nature of the overall scheme to defraud potential
investors, and that Defendant is alleged to have transferred
money from the United States ...