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United States v. Spirito

United States District Court, E.D. Virginia, Newport News Division

January 13, 2020

UNITED STATES OF AMERICA
v.
KENNETH R. SPIRITO, Defendant.

          MEMORANDUM OPINION AND ORDER

          Raymond A. Jackson United States District Judge.

         Before the Court arc Kenneth R. Spirito's ("Defendant") Motions to Dismiss Counts 1-17 (ECF Nos. 26, 27) and Count 19 (ECF No. 41) of the Superseding Indictment (ECF No. 29). The Court has evaluated the relevant documents and the filings of the parties and determined that it is appropriate to rule on the Defendant's pending Motions to Dismiss in this Order. Defendant's Motions to Dismiss arc DENIED.

         I. FACTUAL AND PROCEDURAL HISTORY

         At the time of the allegations levied against the Defendant, he was the Executive Director of the Peninsula Airport Commission ("PAC"). Defendant was named in an eighteen-count Indictment on May 13, 2019 ('Indictment 1"). ECF No. 3. Indictment 1 charged Defendant with Counts 1-11, Conversion and Misapplication of Property from an Organization Receiving Federal Funds, in violation of 18 U.S.C. §§ 666(a)(1)(A) and 2 ("the Misapplication Counts"); Counts 12-17, Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity, in violation of 18 U.S.C. §§ 1957 and 2 ("the Money Laundering Counts"); and Count 18, Falsification of Records in Federal Investigations, in violation of 18 U.S.C. § 1519.

         On August 27, 2019, Defendant filed a Motion to Dismiss on Counts 1-17 of Indictment 1 ("Motion to Dismiss I"). ECF No. 26. On September 9, 2019, the Government obtained a twenty- four-count superseding indictment ('indictment 2"). ECF No. 29. Indictment 2 maintains Counts 1-18 of Indictment 1, but adds Count 19, an additional Misapplication Count, in violation of 18 U.S.C. §§ 666(a)(1)(A) and 2; Counts 20-23, Perjury, in violation of 18 U.S.C. § 1623(a); and Count 24, Obstruction of Justice, in violation of 18 U.S.C. § 1503. ECF No. 29.

         On September 19, 2019, the Government responded to Defendant's Motion to Dismiss 1 after obtaining Indictment 2. ECF No. 35. On November 25, 2019, Defendant filed a Motion to Dismiss on Count 19 of Indictment 2 ("Motion to Dismiss 2"). ECF No. 41. The Government Filed its response to Defendant's Motion to Dismiss 2 on December 10, 2019. Given the similarities between Counts 1-17 of Indictment 1 and Indictment 2, as well as the Government's response to Motion to Dismiss 1 after obtaining Indictment 2, the Court will not treat Motion to Dismiss I as mooted by Indictment 2. Additionally, the Court concludes that the issues raised by Defendant's Motions to Dismiss are identical, such that Motion to Dismiss 1 and Motion to Dismiss 2 may be resolved in the same Order. In total, Defendant challenges the Misapplication Counts found in Counts 1-11 and 19, as well as the Money Laundering Counts found in Counts 12-17, while Counts 18 and 20- 24 remain unchallenged.

         II. LEGAL STANDARDS

         A. Sufficiency of a Criminal Indictment

         United Slates v. Perry comprehensively outlines the standard for considering a defendant's motion to dismiss prior to the verdict. 757 F.3d 166, 171 (4th Cir. 2014). The indictment at issue must contain every essential clement of the offenses charged, fairly inform a defendant of the charges, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offenses, Id. citing United Slates v. Kingrea, 573 F.3d 186, 191 (4th Cir. 2009). While it is generally sufficient that an indictment set forth the offenses in the words of the statutes themselves, a general description of the offenses charged using statutory language must be accompanied by a statement of facts so as to inform the defendant of the specific allegations covered by the statutory language. Perry, 757 F.3d at 171 citing Hamling v. United States, 418 U.S. 87, 117-18 (1974). Thus, an indictment must contain (1) the elements necessary to constitute the offenses charged; and (2) a statement of the essential facts constituting the offenses charged. Perry, 757 F.3d at 171 citing United States v. Quinn, 359 F.3d 666, 673 (4th Cir. 2004).

         A court's consideration of motions challenging the sufficiency of an indictment is limited to the allegations contained in that indictment. United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012). Courts lack the authority to review the sufficiency of evidence supporting an indictment and may not dismiss on a determination of facts that should have been developed at trial. Id. quoting United States v. Snipes, 611 F.3d 855, 866 (11th Cir. 2010); United States v. Wills, 346 F.3d 476, 488 (4th Cir. 2003). Without the absence of the elements of the offenses charged or a statement of the essential facts, a defendant is required to demonstrate the allegations within an indictment do not establish violations of the relevant statutes. Engle, 676 F.3d at 415.

         B. Elements of the Misapplication Counts (18 U.S.C. § 666)

         In order to make proper charges on the Misapplication Counts, Indictment 2 must allege the following elements and accompanying essential facts:

(1) At the time alleged in the indictment, the Defendant was an agent of an organization, government, or agency;
(2) In a one-year period, the organization, government, or agency received federal benefits ...

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