United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANT'S MOTION TO DISMISS
WILLIAM T. LAWRENCE, JUDGE
cause is before the Court on the Defendant's motion to
dismiss (Dkt. No. 57). The motion is fully briefed, and the
Court, being duly advised, GRANTS IN PART AND DENIES
IN PART the motion for the following reasons.
Zhang is charged in a 21-count Superseding Indictment with
wire fraud, identity theft, export-information violations,
alleged false statements to a government agency, and money
laundering predicated on the underlying wire fraud charges.
Specifically, the Government alleges that in his capacity as
a pharmacist, Zhang defrauded Dr. H., using false pretenses
to induce Dr. H. to write prescriptions for drugs Zhang
wanted. The Government alleges that, using prescriptions he
obtained through fraud on Dr. H., Zhang procured prescription
drugs from, among other places, companies in Canada and
Germany, and that in doing so, Zhang made more false
representations, indicating to the companies that the
prescriptions were legitimate when they were not.
Government alleges that Zhang imported the drugs from Canada
and Germany and subsequently exported them to pharmaceutical
companies in China and that the drugs never went to Dr.
H.'s patients because Zhang had fraudulently created the
patients' need for the drugs in the first place.
Throughout the relevant period, the Government alleges, Zhang
repeatedly made use of United States wires to carry out
aspects of his fraud scheme.
Superseding Indictment also alleges that Zhang used the name
and date of birth of another person, Y.Z., to carry out
separate crimes and that he engaged in such identity fraud at
least three times. Further, the Superseding Indictment
alleges that Zhang engaged in international money laundering
several times, ultimately laundering well over $100, 000.
Finally, and also in connection with his other crimes, Zhang
is alleged to have made false statements, including on
moves to dismiss various counts of the Superseding
Indictment. Each argument is addressed, in turn, below.
Wire Fraud Counts
first argues that the wire fraud counts are duplicitous
because more than one offense is charged in a single count.
As he notes, a duplicitous indictment creates the possibility
of offending the command of the Sixth Amendment that the
accused be “informed of the nature and cause of the
accusation” and of the Fifth Amendment that he not
“be twice put in jeopardy.” United States v.
Zeidman, 540 F.2d 314, 316 (7th Cir. 1976) (quotation
and citation omitted). He also points to the possible denial
of the clear concurrence of all jurors as to each offense
charged as the basis of the conviction and the danger that
the jury might find him guilty of some offenses charged in
the duplicitous count and not guilty as to others. See
Government responds that each wire fraud count charges a
single offense carried out through different means. Rather
than a count charging separate offenses, the Government
argues, the actions alleged in each count constitute a single
scheme and single course of conduct.
Court agrees that the wire fraud counts are not duplicitous.
A unitary scheme to defraud can consist of multiple
separately chargeable acts, so long as those acts share a
close enough nexus that they can be fairly characterized as
one scheme. Zeidman, 540 F.2d at 317. Because the
line between multiple distinct offenses and a single
continuing offense is often difficult to draw, the decision
must be initially left to the discretion of the prosecution.
United States v. Berardi, 675 F.2d 894, 898-99 (7th
Cir. 1982) (citations omitted).
there is an adequate nexus between the acts that the
Government alleges as a unitary scheme. The Government
explains that each act taken within an individual count was
in support of a single course of conduct for that count and
each count was a single scheme with a single goal. Each
scheme involved multiple communications. Accordingly, the
motion to dismiss on this ground is denied.
Zhang argues that the wire fraud statute has no
extraterritorial application, making it inapplicable to the
conduct in this case. The Supreme Court has laid out a
two-step framework for analyzing extraterritoriality issues.
and the Government agree with regard to the first step: the
language of 18 U.S.C. § 1343 does not appear to rebut
the presumption against extraterritoriality. ...