United States District Court, S.D. Florida
REPORT AND RECOMMENDATION ON MOTION TO DISMISS
INDICTMENT [DE 27]
REINHART, UNITED STATES MAGISTRATE JUDGE
the Court is Defendant Scott Woolley's Motion to Dismiss
Indictment. This matter was referred to the undersigned by
the Hon. Robin L. Rosenberg. DE 28. Having considered the
Motion and the Government's Response, and otherwise being
fully advised, I recommend that the Motion be DENIED.
Woolley was indicted on June 11, 2019, for nine counts of
committing bank fraud in violation of 18 U.S.C. § 1344.
DE 10. He moved to dismiss the Indictment on September 6,
2019, alleging that “[e]ven assuming the truth of the
factual allegations in the Indictment, the offense of Bank
Fraud pursuant to Section 1344 cannot be established.”
DE 27 at 11. On September 17, 2019, the United States filed a
Superseding Information that charged the same nine counts of
bank fraud, plus three counts of wire fraud in violation of
18 U.S.C. § 1343. DE 29-1. Counts 4-12 of the
Superseding Indictment are materially identical to Counts 1-9
of the original Indictment. Mr. Woolley has indicated that he
would like his Motion considered as a Motion to Dismiss
Counts 4-12 of the Superseding Indictment. DE 37.
indictment to be sufficient, it must: (1) present the
essential elements of the charged offense; (2) provide the
accused notice of the charge he must defend against; and (3)
enable the accused to rely upon any judgment under the
indictment for double jeopardy purposes. United States v.
Woodruff, 296 F.3d 1041, 1046 (11th Cir.2002). “An
indictment satisfies these requirements as long as the
language therein sets forth the essential elements of the
crime.” United States v. Cole, 755 F.2d 748,
759 (11th Cir. 1985). “Moreover, ‘[a] defendant
may not properly challenge an indictment, sufficient on its
face, on the ground that the allegations are not supported by
adequate evidence, for an indictment returned by a legally
constituted and unbiased grand jury, if valid on its face, is
enough to call for trial of the charge on the
merits.'” United States v. Mann, 517 F.2d
259, 267 (5th Cir.1975) cited in United States v. Florez
Velez, 05-20770-CR, 2008 WL 5412909, at *8 (S.D. Fla.
Dec. 30, 2008) (J. Cooke). The Federal Rules of Criminal
Procedure do not authorize a motion to dismiss an indictment
on the grounds that the factual allegations, even if true,
fail to prove the crime alleged. United States v.
Critzer, 951 F.2d 306, 307 (11th Cir. 1992)
(“There is no summary judgment procedure in criminal
cases. Nor do the rules provide for a pre-trial determination
of sufficiency of the evidence. Moreover, this court is
constitutionally barred from ruling on a hypothetical
question. The sufficiency of a criminal indictment is
determined from its face.”).
Counts 4-12 of the Superseding Indictment are legally
sufficient. They allege the essential elements of bank fraud,
(1) the Defendant knowingly carried out or attempted to carry
out a scheme to defraud a financial institution by using
false or fraudulent pretenses, representations, or promises
about a material fact;
(2) the false or fraudulent pretenses, representations, or
promises were material;
(3) the Defendant intended to defraud the financial
(4) the financial institution was federally insured.
Circuit Pattern Jury Instruction (Criminal) 052 (2019). The
Superseding Indictment recites each of these elements. DE 29
at 5 (¶2). It also provides adequate notice of the
charge. It describes the object and purpose of the alleged
scheme and the manner and means of the scheme. DE 29 at 3-6.
It also identifies the financial institution involved, the
victim company, and the dates, amounts, and parties for each
act in execution of the alleged scheme. DE 29 at 6-7. There
is sufficient detail for Mr. Woolley to plead double jeopardy
in the event of a future prosecution. See United States
v. Dixon, 509 U.S. 688, 696 (1993) (double jeopardy
arising from successive prosecution is determined by
comparing the elements of the two offenses). There is no
legal basis to dismiss Counts 4-12.
it is RECOMMENDED that the Motion to Dismiss Indictment be
OF RIGHT TO OBJECT
shall serve and file written objections, if any, to this
Report and Recommendation with the Honorable Robin L.
Rosenberg United States District Court Judge for the Southern
District of Florida, within FOURTEEN (14)
DAYS of being served with a copy of this Report and
Recommendation. Failure to timely file objections shall
constitute a waiver of a party's "right to challenge
on appeal the ...