UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) Criminal No. 1:17-CR-00109-APM ) AZAM DOOST, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

After an eight-day trial, a jury returned a verdict of guilty against Defendant Azam

(“Adam”) Doost on (1) three counts of major fraud against the United States in violation of

(a); (2) eight counts of wire fraud in violation of

; (3) four counts

of making a false statement on a loan application or an extension in violation of

(n); and (4) five counts of money laundering in violation of

(a)(1)(B)(i). The jury acquitted Defendant on three counts of money laundering. Following

the jury’s verdict, Defendant’s trial counsel withdrew, and Defendant retained new counsel for the

purpose of filing post-trial motions and sentencing. With the assistance of new counsel, Defendant

now files a motion pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure, seeking

entry of a judgment of acquittal as to all counts or, in the alternative, a new trial.

For the reasons discussed below, the court denies Defendant’s motion in large part. The

only exception is Defendant’s contention that trial counsel was ineffective for failing to move to

dismiss the false statements and money laundering counts as time barred. The court defers ruling on that issue until after the parties develop a factual record concerning the performance prong of

the ineffectiveness claim and Defendant has had an opportunity to respond to arguments raised for

the first time in the government’s sur-reply.

II. BACKGROUND

A high-level summary of the trial evidence is sufficient for present purposes. These facts

are recited in the light most favorable to the government. See United States v. Kayode,

(D.C. Cir. 2001).

Defendant Adam Doost and his brother owned a company named Equity Capital Group,

LLC (“ECG”) located in Dubai, United Arab Emirates. In or around 2006, an ECG subsidiary,

Equity Capital Mining, LLC (“ECM”) secured a 10-year lease on a marble mine located in Cheshti-

i-Sharif, Afghanistan. At about the same time, the Doost brothers began to construct a marble

processing factory in Herat, Afghanistan. The factory opened in May 2011.

On or about February 19, 2010, to finance the mining operations, Defendant executed a

loan agreement between ECM and the Overseas Private Investment Corporation (“OPIC”), an

agency of the United States government. The agreement called for OPIC to loan $15.8 million to

ECM to develop, maintain, and operate the marble mine. Defendant was personally responsible

for a matching capital contribution. As part of the loan agreement, Defendant promised that, on a

quarterly basis, he would disclose “all transactions between the borrower”—ECM—“on the one

hand,” and “a Shareholder” of ECM—Defendant or his brother—or “any Affiliate of a

Shareholder, on the other hand . . .” There was testimony presented at trial that accurate disclosure

of these so-called “affiliate transactions” was a material to OPIC.

After OPIC approved the loan, Defendant and a business consultant submitted three

requests to OPIC to disburse loan funds: (1) $7 million on April 18, 2010; (2) $7 million on July

2 15, 2010; and (3) $1.8 million on November 28, 2010. OPIC did not provide these funds directly

to ECM. Rather, the loan agreement required ECM to submit purchase orders from vendors

confirming the sale price of equipment, and OPIC in turn would pay the vendor directly for the

invoiced amount.

The trial evidence showed that Defendant carried out a fraudulent scheme against OPIC in

two related ways. First, Defendant failed to disclose any affiliate transactions to OPIC, when in

truth there were many. Second, Defendant submitted invoices for equipment purchases that were

demonstrably false or exhibited badges of fraud, such as sequential numbering or the absence of

detail. The evidence showed that several of the purported vendors were owned or controlled by

Defendant, his brother, and/or another relative. A reasonable jury could have concluded that these

vendors were no more than shell companies. Financial records presented by the government

established that these purported vendors did not conduct any actual business, and that within days

of receiving a wire transfer from OPIC to pay for purported equipment, the money would be

transferred to bank accounts in Dubai, after which the money could not be traced. In another

instance, Defendant arranged to have an Italian equipment supplier submit false invoices to OPIC.

Ultimately, the OPIC loan went into default. ECM did not make any principal payments

on the loan and left unpaid nearly $2 million more in interest.

III. LEGAL STANDARD

On a motion under Rule 29, the court must consider the evidence in the light most favorable

to the government and determine whether such evidence “it is sufficient to permit a rational trier

of fact to find all of the essential elements of the crime beyond a reasonable doubt.’” Kayode,

(quoting United States v. Harrington,

(D.C. Cir. 1997)). The

court must “accord[ ] the government the benefit of all legitimate inferences.” United States v.

3 Weisz,

(D.C. Cir. 1983). Granting a motion for judgment of acquittal after a

jury verdict is appropriate only where “a reasonable juror must necessarily have had a reasonable

doubt as to the defendant[’s] guilt.”

Under Rule 33, “the court may vacate any judgment and grant a new trial if the interest of

justice so requires.” Fed. R. Crim. P. 33(a). Courts enjoy “broad discretion” in deciding whether

to grant a new trial. United States v. Wheeler,

(D.C. Cir. 2014). “A new trial

motion is warranted only in those limited circumstances where ‘a serious miscarriage of justice

may have occurred.’”

(citation omitted).

IV. ANALYSIS

Defendant offers a battery of reasons why the court must vacate the guilty verdicts and

enter judgments of acquittal or a new trial in his favor. The court takes these arguments in the

order in which they appear in Defendant’s motion.

A. The Alleged False Statement Underlying Count Fifteen is not Fundamentally Ambiguous.

Defendant begins by challenging the sufficiency of the evidence as to the false statements

charge in Count Fifteen. The false statement at issue is Defendant’s certification contained in an

email to John Aldonas of OPIC, dated December 12, 2010, stating that “[t]here is no affiliate

transaction have accurred [sic] during the quarter ending september 30th 2010.” Def.’s Mot., Ex.

13, ECF No. 105-13.1 In truth, multiple transactions took place between ECM and affiliated

1 At trial, the government admitted only the certification portion of the email chain. See Def.’s Mot., Ex. 12, ECF No. 105-12. The entire exchange is reflected below, and it is this full exchange that Defendant asserts shows the fundamentally ambiguity of the inquiry to which he responded. See Def.’s Mot., Ex. 13, ECF No. 105-13.

Doost to Aldonis, Monday, December 13, 2010, at 9:47 am

Dear John

There is no affiliate transaction have accurred during the quarter ending september 30th 2010.

4 companies during the quarter in question. Defendant nevertheless argues that, as to Count Fifteen,

he is entitled to judgment of acquittal because the exchange with Aldonis was “‘fundamentally

ambiguous’ such that a rational juror could not have found Doost guilty beyond a reasonable

doubt.” Def.’s Combined Rule 29 and 33 Mot., ECF No. 105 [hereinafter Def.’s Mot.], at 6.

Defendant’s argument is without merit.

Although the D.C. Circuit has recognized that “some questions . . . may be so vague as to

prohibit the government from even attempting to prove that the defendant knowingly answered

Best Regards,

Adam Doost

Aldonis to Doost, Monday, December 13, 2010, at 6:03 am

Adam,

Your attachments look like a forward looking list of 2011 affiliated transactions between ECM and your marble finishing company.

Perhaps I have confused things, but we are looking for you to certify quarterly, along with the quarterly financial statements, whatever affiliated transactions have taken place in that accounting period, and that they have taken place on an arms-length basis (with the evidence of this being the sales and volume detail along the lines you have just provided for 2011). If it is the case – since for example the marble finishing operation is not yet processing material – then you could simply certify for the quarter ending Septbmer [sic] 30, 2010, that there were no Affiliated Transactions. That said, I would ask that you carefully read the definition of Affiliated Transactions so you can consider what if any types of transactions might fit the reportable category.

...

Thanks,

John

Doost to Aldonis, Monday, December 13, 2010, at 7:48 am

Dear John

Attach is Affiliate Transaction Report

Best Regards,

Adam Doost

5 falsely,” United States v. Chapin,

(D.C. Cir. 1975), such questions will be

rare. “‘[M]ere vagueness or ambiguity in the questions is not enough to establish a defense . . .

[for] [a]lmost any question or answer can be interpreted in several ways when subjected to

ingenious scrutiny after the fact.’”

(quoting United States v. Ceccerelli,

(W.D. Pa. 1972)). Instead, the alleged false answer must be “consider[ed] [ ] in context, taking

into account the setting in which it appeared and the purpose for which it was used. This [is] a

matter for the jury.” United States v. Milton,

(D.C. Cir. 1993). It is up to the jury

“to determine how the defendant construed the question or answer and to decide, in that light,

whether the defendant knowingly gave a false answer.”

; see also Chapin,

(observing that “the possibility that a question or an answer may have a number of

interpretations does not invalidate either an indictment or a conviction after a jury charge which,

as here, requires the jury to determine that the question as the defendant understood it was falsely

answered in order to convict.”).

Applying these principles, the court cannot override the jury’s verdict on Count Fifteen.

The jury could have reasonably found, and did find beyond a reasonable doubt, that Defendant

knew he was making a false statement when he represented that there were “no affiliate

transaction[s]” for the quarter ending September 30, 2010. To start, Defendant’s exchange with

Aldonis did not occur in a vacuum. It must be read in the context of the loan agreement with

OPIC. That agreement required ECM to disclose, on a quarterly basis, “all transactions between

[ECM], on the one hand, and a Shareholder or any Affiliate of a Shareholder, on the other hand.”

Def.’s Mot., Ex. 14, ECF No. 105-14 [hereinafter Loan Agreement], at 14. The loan agreement

defined “Affiliate” to mean “with respect to any Person, (i) any other Person that is directly or

indirectly controlled by, under common control with, or controlling such Person; . . . (iii) any

6 officer or director of such Person; or (iv) any spouse or relative of such Person.” Id. at 34. The

loan agreement further defined “Person” to include an “individual, a legal entity, including a

partnership, a joint venture, a corporation, a trust, and an unincorporated organization[.]” Id. at

40. Defendant and his brother were shareholders of ECM, therefore the loan agreement required

ECM to disclose any transactions between ECM and an “Affiliate” controlled by him or his

brother. When Defendant’s answer is read together with the loan agreement and its definitions,

the jury reasonably could have concluded that Defendant knew exactly what he was being asked

when Aldonis referred to “Affiliated Transactions.”

To the extent Aldonis created any confusion, he also gave guidance on what he precisely

meant by “Affiliated Transactions.” In the last sentence of his email, Aldonis directed Defendant

to the loan agreement’s “definition of Affiliated Transactions so you can consider what if any types

of transactions might fit the reportable category.” Def.’s Mot., Ex. 13, ECF No. 105-13. The jury

could have found that this statement dispelled any ambiguity or vagueness about what Aldonis

was asking Defendant to report.

Finally, this was not the first time Defendant had certified to OPIC that there were no

transactions to disclose between the shareholders of ECM and “affiliates.” Defendant made a

similar disclosure five months earlier, on July 15, 2010, affirming that “[f]or the financial quarters

ending March 31st and June 30th 2010, there were no affiliate transactions that occurred.” Trial

Tr., Sept. 11, 2018 AM, at 391. Defendant does not contend that there was any fundamental

ambiguity about OPIC’s June 2010 “affiliate transaction” inquiry, and the jury found him guilty

of providing a knowing false response in that instance. The same jury that found Defendant guilty

of making a false certification in June 2010 reasonably could have concluded that Defendant knew

he was making a nearly identical false certification five months later.

7 Defendant makes various arguments to support his assertion of “fundamental vagueness,”

but none are convincing. He contends that “it is nearly impossible to tell what the precise question

was or to which question Defendant was responding.” Def.’s Mot. at 9. But, as discussed above,

when viewing the email in the context of all the evidence, a reasonable jury could have found

Defendant knowingly provided a false answer to the inquiry concerning affiliate transactions.

Additionally, Defendant asserts that the email exchange with Aldonis, and other referenced emails,

demonstrate his “weak proficiency in the English language,” id. at 10, which would have

exacerbated his confusion about Aldonis’s inquiry, id. at 12. Defendant’s claimed “limited

proficiency in the English language,” id., however, is nothing more than a self-serving statement

that lacks any evidentiary support. And, in any event, he was free to make such an argument to

the jury but did not. The court will not draw that conclusion now to override the jury’s verdict.

Finally, Defendant contends that the portion of his response in which he states that no affiliate

transactions “have accurred”—a clear misspelling—is ambiguous and could be construed to mean

“no affiliate transactions have accrued.” (Emphasis added.) Once more, Defendant could have

made this argument to the jury but did not, and, given the context, the jury readily could have

understood Defendant to mean that “no affiliate transactions have occurred.” Mere conjecture as

to how the jury might have understood a misspelling cannot reverse its considered judgment.

Accordingly, for the foregoing reasons, the court denies Defendant’s motion to enter a

judgment of acquittal as to Count Fifteen.

B. Ineffective Assistance of Counsel

Defendant advances multiple grounds of ineffective assistance of counsel that he insists

require the court to enter a judgment of acquittal as to all or certain counts, or to grant him a new

trial. Two of Defendant’s ineffectiveness claims concern trial counsel’s failure to move to dismiss

8 counts of the indictment. See Def.’s Mot. at 15–19 (asserting ineffectiveness for not moving to

dismiss certain counts as multiplicitous and all but two counts as time barred). The court considers

those arguments not in this section, but in the next one concerning alleged defects in the indictment

that warrant dismissal. In this section, the court addresses only those claims of ineffectiveness that

relate to alleged shortcomings in counsel’s performance at the trial itself.

The standard under Strickland v. Washington for an ineffectiveness claim is a familiar one.

To be entitled to relief, a defendant must show “both that his counsel provided deficient assistance

and that there was prejudice as a result.” Harrington v. Richter,

(2011) (citing

Strickland v. Washington,

, 688 (1984)). As to the performance prong, a court must

apply a “strong presumption” that counsel’s performance was within the “wide range” of

reasonable professional assistance.

(citation omitted). To overcome that strong presumption

and prevail, a defendant must show that “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

(citation

omitted). The standard against which to assess trial counsel’s performance is one of objective

reasonableness. See

As for the prejudice prong, the defendant must show “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the would have been different.”

(internal

quotation marks and citation omitted). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”

(internal quotation marks and citation omitted). Some

conceivable effect on the outcome is not sufficient, see

but rather, counsel’s error “must be so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable,”

(internal

quotation marks and citation omitted). Ultimately, under Strickland, the “question is whether an

attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not

9 whether it deviated from best practices or most common custom.”

at 105 (quoting Strickland,

466 U.S. at 690).

1. Failure to Present Evidence of Equipment Value

Defendant maintains that his trial counsel was ineffective for failing to present evidence to

contradict the government’s suggestion that ECM had not purchased equipment using the OPIC

loan funds, when the produced discovery contained records showing that ECM possessed

equipment valued at millions of dollars. Specifically, Defendant points to audited financial

statements showing that EMC had assets valued at over $23 million in 2010 and over $25 million

in 2011 and 2012. See Def.’s Mot. at 15 (citing Def.’s Mot., Exs. 15–17, ECF Nos. 105-15–105-

17). Defendant also identifies two records that appear to be correspondence on the letterhead of

the company that eventually acquired ECM, Greengate Group, that itemize various pieces of

equipment that Greengate received from ECM. One record, dated July 18, 2017, lists the

equipment that ECM transferred to Greengate in 2017. See Def.’s Mot., Ex. 19, ECF No. 105-19.

The other, dated November 7, 2017, “confirm[s]” that Greengate “received” certain equipment,

though it does not say from whom. See Def.’s Mot., Ex. 18, ECF No. 105-18. Although both

letters bear signatures of Greengate officials, the recipient of neither letter is identified on its face

and the circumstances under which the letters were drafted is not apparent. Finally, Defendant

proffers that his new counsel hired forensic accountants who, based on the available records, were

able to show “that most, if not all, of the equipment alleged to have never been purchased was

accounted for in the sale to Greengate.” See Def.’s Mot. at 17 (citing Def.’s Mot., Exs. 20–22,

ECF Nos. 105-20–105-22). Ultimately, Defendant posits that, had his trial counsel presented the

foregoing evidence, it would have undermined the government’s suggestion that the OPIC funds

10 were used for purposes other than to purchase equipment, and it would have “completely negated

intent.” Id.

The court holds otherwise, finding that the failure to present the foregoing evidence does

not undermine the court’s confidence in the outcome of trial. The financial records in question are

of limited probative value in multiple respects. For starters, those records in no way undermine

the government’s case that Defendant defrauded OPIC by purposely concealing affiliate

transactions and by lying about them. See Indictment, ECF No. 1, at 8 (“Doost would report to

OPIC that he did not have an affiliation with any companies [other than those he identified], . . .

when in fact he had financial relationships with several vendors from which he purported to

purchase equipment for the Marble Mine . . .”); id. (“Doost and his Business Partner would cause

. . . transfer of funds from those vendors to companies and individuals with whom Doost was

associated . . .”). The government’s proof as to that theory of prosecution, by itself, is sufficient

to sustain all but two of the convictions in this case.2 Second, neither the certified audit reports

nor the inventory lists compiled by Greengate can erase the false and misleading nature of the

invoices submitted to OPIC. The government’s proof established numerous badges of fraud

associated with the invoices submitted to OPIC, such as the sequential numbering, the absence of

detail, and the omission of VIN numbers. The evidence presented at trial further showed that

Defendant participated in preparing these invoices, requested that a vendor in Italy prepare and

transmit false invoices to OPIC, and submitted invoices to OPIC for expenses already paid by

other aid organizations. Evidence regarding equipment possessed by EMC would not diminish

the damaging nature of these facts. Finally, neither the records in question nor the proffered expert

testimony would show that ECM bought the actual equipment that Defendant represented to OPIC

2 The only exceptions are counts Twelve and Thirteen, which charge the making of false statements unrelated to the affiliate transactions.

11 was being purchased with the loan proceeds. Indeed, the experts themselves candidly

acknowledge the limitation of their opinion and the evidence upon which they relied: “[Our

services] did not include – physically observing the equipment, matching of serial numbers of the

equipment from the purchase orders, tracing funds from either OPIC or Doost entities to bank

accounts to the vendors . . .” See Def.’s Mot., Ex. 20, ECF Nos. 105-20, at 1. Thus, the mere fact

that Greengate received some equipment when it purchased ECM does not establish that these

acquired assets match the equipment that Defendant told OPIC that ECM was purchasing, or that

Defendant in fact used the specific OPIC funds to make equipment purchases at all.

In short, Defendant was not prejudiced by trial counsel’s failure to offer, at best, ambiguous

records relating to the existence and value of equipment.

2. Failure to Object to the Admission of Foreign Business Records

Part of the government’s evidence at trial included records obtained from Gaspari Menotti,

an Italian vendor of marble finishing equipment. The government gave the defense written notice

under

that it intended to offer these foreign records into evidence, and it obtained

a certification as to their authenticity, as the statute permits. See Gov’t Notice, ECF No. 21. The

government also obtained a certification that the Gaspari Menotti records met the requirements of

a “foreign record of regularly conducted activity” records, rendering them admissible

notwithstanding the rule against hearsay.

(a). The court admitted the Gaspari

Menotti records without objection from the defense. Defendant now claims that reasonable

counsel would have objected to the admissibility of the Gaspari Menotti records. He contends that

the records do not qualify as foreign business records under section 3505(a), because the evidence

showed that a Gaspari Menotti official had fabricated some of the purchase orders, thereby placing

12 them “outside of regularly conducted business activity” and rendering them inadmissible. Def.’s

Mot. at 22.

Defendant’s argument fails because the Gaspari Menotti records at issue were admissible,

irrespective of whether they qualify as business records. The records were not used to establish

the truth of the matters asserted therein. To the contrary, the government used the records to show

that they did not contain truthful information. As the Supreme Court held in Anderson v. United

States, such out-of-court statements are not hearsay if “the point of the prosecutor’s introducing

those statements was simply to prove that the statements were made so as to establish a foundation

for a later showing, through other admissible evidence, that they were false.”

(1974); see also United States v. Tann,

(D.C. Cir. 2008) (holding that forged

checks were admissible as not hearsay). That is precisely how the prosecution used the Gaspari

Menoitti records here. As these records were admissible as non-hearsay, Defendant suffered no

prejudice from his counsel’s failure to object to them on the basis that they did not qualify as

business records.

3. The Failure to Call Certain Witnesses

Next, Defendant contends that his counsel’s performance was deficient because he failed

to call certain “imperative” witnesses to testify. Def.’s Mot. at 22. Namely, he argues that

competent trial counsel would have called (1) Samiullah Dawoody, the Chief Financial Officer of

ECM from February 2012 until December 2013; (2) Colonel Thomas H. Brittain, who served as

the Deputy Commander for International Security Assistance Force, Regional Command West,

from July 2014 to August 2014; and (3) Thomas Reott, who served as the Head of the Political

Section of the U.S. Consulate in Herat, Afghanistan, from July 2011 to July 2012. See

at 22–

28. The failure to call these witnesses did not prejudice the defense.

13 Defendant’s assertions with respect to Dawoody rest on pure speculation. He contends

that, if called to testify, Dawoody would have established “that most, if not all, of the equipment

the Government alleged was never purchased was actually present and accounted for either at the

Marble Mine and Marble Factory.” Id. at 23. When combined with the audits, he posits,

Dawoody’s testimony “would have seriously called into doubt the Government’s theory of the

case.” Id. The fundamental problem with these contentions is that Defendant has produced

nothing, except a single, unilluminating email, see Def.’s Mot., Ex. 33, ECF No. 105-33 (under

seal), to establish what Dawoody would have said if called to testify. Defendant instead assumes

that Dawoody would have testified favorably regarding ECM’s equipment assets based on his

position as CFO at ECM and his presumed familiarity with ECM’s audited financial statements.

See Def.’s Mot. at 23. Defendant cannot manufacture prejudice based on how a witness might

testify.

Defendant fares no better as to Colonel Brittain. Although Defendant at least submits an

interview summary to support what Colonel Brittain would have said, see id., Ex. 34, ECF No.

105-34, the facts Defendant claims Colonel Brittain would have established were already supplied

by other witnesses and evidence. Specifically, there was ample proof presented about the “security

threats posed directly to the Doost operations” and the “positive influence that the Doost operations

provided the specific region of Herat, Afghanistan such as economic and safety stability,” Def.’s

Mot. at 25–26. See, e.g., Trial Tr., Sept. 11, 2018 PM, at 455–59 (testimony of Cindy Shepard);

Sept. 12, 2018 AM, at 587–89, 590–95, 597–98 (testimony of Quinton Collier); Sept. 13, 2018

AM, at 684–87 (testimony of Jeffrey Constantz); Sept. 14, 2018 PM, at 964 (testimony of Carleen

Watts); Sept. 18, 2018 AM, at 1027–33, 1038 (testimony of Paul Lamoureux); Sept. 19, at 1252–

53 (reading from Def. Ex. 91). And, contrary to Defendant’s contention, see Def.’s Mot. at 26–

14 27, this evidence came in through witnesses other than Paul Lamoureaux, the sole witness

Defendant called at trial, who Defendant now maintains was vulnerable to cross examination for

bias. See United States v. Mitchell,

, 1131 n. 2 (D.C. Cir. 2000) (finding no prejudice

where witness’s testimony would have been cumulative).

Finally, Reott’s testimony would not have significantly moved the dial. Evidently, Reott

visited the marble mine and the marble factory in 2012. He would have testified to observing an

“impressive,” “fully functional” marble factory, and would have spoken to the security issues of

transporting unfinished marble from the mine to the factory. See

Ex. 36, ECF No. 105-36, at

1–2. According to Defendant, this unbiased “testimony would have demonstrated to the jury the

legitimacy of Doost’s operations.” Def.’s Mot. at 27. In reality, Reott’s testimony would have

added little to what the jury already knew. As discussed, the jury heard ample evidence about the

security difficulties with the marble operations. See supra. Additionally, Jeffrey Constantz, an

employee of OPIC who monitored the loan to ECM, provided evidence of the factory’s actual

operations. Constantz testified that he had visited the marble factory for a ribbon cutting ceremony

and communicated frequently with others who monitored operations. On cross-examination,

Constantz admitted that the he had observed equipment at the factory and that he had received

reports that the factory was producing marble. See Trial Tr., Sept. 13, 2018 AM, at 697–707.3 The

defense also admitted photographic evidence of factory operations through Constantz. See id.

Additionally, Defendant conveniently omits unfavorable testimony that Reott likely would have

provided. Although he observed operations at the factory, Reott also visited the marble mine and

described it as “primitive” and lacking state-of-the-art equipment. If asked, and allowed to testify,

Reott would have commented that “they must have used the majority of funds on the factory”—

3 The government did not object to Constantz’s testimony regarding what others told him about the marble factory’s operations, so the court did not exclude such testimony as hearsay.

15 an unfavorable bit of testimony, as OPIC loaned funds to support the mining operations, not the

factory. See Def.’s Mot., Ex. 36 at 2. Simply put, Reott’s testimony could have done as much

harm as good. Therefore, counsel’s failure to call Reott therefore did not prejudice Defendant.

4. Counsel’s Failure to Admit the Entire Email Exchange with Aldonis

Defendant further criticizes trial counsel for allowing the prosecution to admit only

Defendant’s email response to Aldonis confirming the absence of any affiliate transactions from

the December 13, 2010, email exchange with Aldonis, instead of the entire exchange. Compare

Def.’s Mot., Ex. 12 with id., Ex. 13; see note 1 supra. Defendant contends that the full exchange

is “exculpatory” and “had counsel proffered the entire alleged false statement, within its natural

context, the jury would have seen the fundamentally ambiguous nature of the exchange.” Def.’s

Mot. at 29. The court agrees that it would have been better for trial counsel to have demanded

admission of the full email. But, for the reasons already discussed, trial counsel’s failure to do so

did not prejudice Defendant. Even with the benefit of the whole exchange, a reasonable jury would

not have found the exchange with Aldonis to be “fundamentally ambiguous.” See supra.

5. Failure to Object to Verdict Forms

Defendant’s final trial-related claim of ineffectiveness is that the jury verdict form did not

pair each false statements count (Counts Twelve through Fifteen) with the alleged false statement

itself, thereby risking jury confusion, and trial counsel was neglectful in not addressing this defect.

See Def.’s Mot. at 29–30; Verdict Form, ECF No. 53, at 3–4. But the claimed deficiency in the

jury form was addressed by the jury instructions. For each false statements count, the instructions

identified the alleged false statement associated with that particular count. See Final Jury

Instructions, ECF No. 58, at 17, 20–21. The instructions therefore made clear to the jury precisely

which false statement was associated with which false statements count. Accordingly, trial counsel

16 committed no error by not insisting that verdict form also pair the counts and alleged false

statements.

6. Cumulative Effect of Trial Errors

Although Defendant does not say so expressly, his papers suggest that he believes that,

even if any single error by trial counsel was not prejudicial, the cumulative effect of multiple errors

did result in prejudice. See Def.’s Mot. at 29 (“This failure to investigate is just another piece in

the puzzle but exemplifies the ineffective assistance Doost received as a whole.”); see also United

States v. Weaks,

(D.D.C. 2012) (stating that “a court must consider the

cumulative effect of counsel’s errors”). The court cannot agree. In this case, the individual parts

do equal the whole. None of the claimed trial errors, even considered together, deprived “the

defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.

C. Challenges to the Indictment

The indictment in this case charged Defendant with 23 individual counts. Trial counsel

did not file a pre-trial motion to dismiss any of them. Although motions that challenge the

indictment ordinarily must be filed before trial, see Fed. R. Crim. P. 12(b)(3)(B), the court may

review an untimely claim where a defendant shows “‘good cause’ for failure to raise a claim by

the deadline,” id. (advisory committee note to 2014 amendments). Here, Defendant asserts as

“good cause” trial counsel’s ineffectiveness in failing to attack the flawed indictment. See Def.’s

Mot. at 30–32 (citing cases); see also United States v. Weathers (Weathers I),

,

958–59 (D.C. Cir. 1999) (remanding for hearing where ineffectiveness identified as “cause” for

the non-filing of a multiplicity challenge).

A “good cause” showing based on ineffectiveness, however, requires more than just

succeeding in establishing a defect in the indictment. In this context, “[t]he crux of an ineffective

17 assistance claim is not simply whether trial counsel neglected to press a viable legal argument, but

whether counsel’s failure to do so was objectively unreasonable under the circumstances.” United

States v. Weathers,

(D.C. Cir. 2007). Thus, for the court to consider an untimely

challenge to the indictment, the defendant must show that trial counsel’s failure to file a timely

pre-trial motion fell below the objective standard of reasonableness and that defendant would have

prevailed on such motion. See

.

In this case, Defendant presumes the unreasonableness of trial counsel’s failure to

challenge the indictment. Indeed, he offers not an iota of evidence that would show either that his

counsel completely neglected to consider a particular legal argument or that his counsel did not

make a reasonable tactical judgment in not making a challenge. To be fair, it is hard to conceive

of a strategic reason for counsel not to have raised at least some of the arguments Defendant now

advances, such as that many of the counts are time barred. See United States v. Palomba,

(9th Cir. 1994) (“With regard to Strickland’s deficient performance prong, no apparent

or plausible tactical decision could explain counsel’s failure to move for dismissal, potentially with

prejudice, of an untimely charge . . .”). Nevertheless, the court is not prepared at this time to find

trial counsel was ineffective absent some evidentiary showing that their inactivity on pre-trial

motions was not a strategic decision. See Weathers I,

.

That said, as discussed below, the court finds that certain attacks on the indictment would

not have succeeded, even if trial counsel had raised them. In other words, these are arguments as

to which the court finds that Defendant cannot show prejudice.

1. Multiplicitous Counts: One Through Three

Defendant starts with the assertion that Counts One through Three were multiplicitous.

See Def.’s Mot. at 32–35. Multiplicitous counts are those that improperly charge a single offense

18 in more than one count. See United States v. Cooper,

(D.C. Cir. 2018)

(“Charging the same offense in more than one count—a problem known as multiplicity—is a

defect in the indictment.”) (cleaned up). Counts One through Three accused Defendant of major

fraud against the United States in violation of

(a), with each count corresponding

to a loan disbursement request submitted by Defendant to OPIC. Defendant insists that Counts

One through Three should have been presented to the jury as a single count, because, under section

1031(a), the unit of prosecution is an “execution” of a scheme to defraud and, in this case, “once

approved for the preconceived $15.8 million loan and the singular loan agreement was signed . . . ,

the alleged scheme was executed.” Def.’s Mot. at 33. Stated differently, Defendant argues that,

the alleged scheme was “executed” once OPIC approved the loan, making that transaction the

single unit of prosecution and the individual loan disbursements mere acts in furtherance of the

scheme but not separate “executions.”

In United States v. Bruce, the D.C. Circuit faced a question like the one presented here but

under the similarly worded bank fraud statute,

. See

(D.C. Cir. 1996).

There, the question was one of duplicity (not multiplicity) of an indictment that charged the

submission of four separate fraudulent loan applications over three months in a single count. See

. The defendant argued that the one count should have been separated into four, because

each loan application was a separate “execution.” See

. Like the major fraud statute, the

bank fraud statute “makes each ‘execution’ of a fraudulent scheme punishable as a separate count.”

. But not every act in furtherance of the scheme constitutes a separate violation. As the

court explained: “It is settled law that acts in furtherance of the scheme cannot be charged as

separate counts unless they constitute separate executions of the scheme, and that acts which do

constitute individual executions may be charged separately.”

(citation omitted). The difficulty,

19 the court recognized, was in discerning between the two: “[T]he actions that tend to prove the

existence of the scheme will often be the actions actually taken to execute the scheme.”

at 889–

90 (quoting United States v. Hammen,

(7th Cir. 1992)). To decide whether the

count in question was duplicitous, the court looked to the manner in which the indictment was

written and held that, because the indictment carefully charged only one execution of the scheme,

the sole count incorporating the four fraudulent loan applications was properly charged as a single

count. See id. at 890.

Bruce is instructive insofar as it recognizes the difficulty in differentiating between a

chargeable execution and a non-chargeable act in furtherance of the scheme. But Bruce does not

answer how a court should distinguish between the two concepts, and neither the parties nor the

court has identified a case from the D.C. Circuit that does so. Cf. United States v. Pless,

(D.C. Cir. 1996) (confirming in a bank fraud case that the “unit of prosecution is not

the scheme but the execution” but providing no further guidance on distinguishing between the

two). To that end, the court finds helpful the Tenth Circuit’s discussion in United States v. Gallant,

(10th Cir. 2008). A case involving bank fraud, the court in Gallant observed that,

when determining whether a single or multiple executions of bank fraud have taken place, “the

question is heavily fact-dependent,”

, and involves a number of factors, including “the

number of banks, the number of transactions, and the number of movements of money involved in

the scheme,”

(quoting United States v. Brandon,

(1st Cir. 1994)). The court

accepted as a general proposition, however, that “[e]ach time an identifiable sum of money is

obtained by a specific fraudulent transaction, there is likely to be a separate execution of the

scheme to defraud.”

(quoting Brandon,

). Ultimately, the court explained, “[t]he

central question for determining multiplicity is whether a jury could plausibly find that the actions

20 described in the disputed counts of the indictment, objectively viewed, constituted separate

executions of the bank fraud scheme.”

(internal quotation marks and citation omitted). In

Gallant, the court found that thirteen separate transfers of money were each a separate execution

of the scheme. See

Applying the principles of Gallant here, the court finds that the jury in this case plausibly

could have found that each of the three loan disbursements by OPIC comprised a separate

execution. Though the scheme here involved a single entity—OPIC—and a single loan agreement,

the loan’s terms permitted ECM to secure funds only through quarterly disbursements of not less

than $500,000 and no greater than $7,000,000. Trial Tr. Sept. 11, 2018 AM at 354. Each

disbursement request required Defendant to submit supporting purchase orders or invoices equal

to the amount sought to be disbursed. Defendant undertook to do just that, using a different set of

false or fraudulent records for each of the three disbursement requests: (1) April 18, 2010, for

$7 million; (2) July 16, 2010, for $7 million; and (3) November 28, 2010, for $1.8 million. The

jury could have viewed each of these disbursement requests as a separate “execution” of the fraud

scheme. See Gallant,

; see also United States v. Mancuso,

(4th

Cir. 1994) (finding that “each separate check diverted from [the bank] properly can be deemed a

separate execution of a scheme to defraud the bank”); United States v. Allender,

(7th Cir. 1995) (holding “the four loans challenged in this case are separate executions”).

The court is unpersuaded by Defendant’s contention that, because the three loan

disbursements are “integrally related,” they together constitute a single charge. See Def.’s Mot. at

33 (citing United States v. Heath,

(5th Cir. 1992)). To be sure, each loan

disbursement is rooted in the same loan agreement. But the disbursements are not “integrally

related” in the sense that “one could not have succeeded without the other.” Heath,

1402. Rather, Defendant submitted each disbursement request on its own terms, with each

individual request directed to different equipment purchases for the marble mine’s operations. See

Def.’s Mot., Ex. 21 (Defendant’s expert schedule summarizing equipment associated with each

disbursement request). The government therefore properly charged Counts One through Three as

separate counts.4

2. Multiplicitous Counts: Counts Twelve and Thirteen

Defendant also asserts that his counsel was ineffective for not moving to dismiss as

multiplicitous Counts Twelve and Thirteen. See Def.’s Mot. at 35–36. Those counts charged

Defendant with making false statements in connection with the first loan disbursement. Count

Twelve charged Defendant with falsely stating that a $596,000 Blockcutter from Gaspari Menotti

was a “project cost” of the marble mine, when in truth ECM did not purchase a Blockcutter from

Gaspari Menotti. Count Thirteen charged Defendant with falsely stating that two Faudi chainsaws

were a “project cost” of the marble mine, when in fact another development organization already

had paid for the chainsaws. Relying on the D.C. Circuit’s statement in United States v. Mangieri

that “the making of a number of a false statements to a lending institution in a single document

constitutes only one criminal violation under

,” Defendant argues that the

government should have brought Counts Twelve and Thirteen in a single count, because the two

alleged false statements were made in the same disbursement request. See Def.’s Mot. at 35

4 The court notes that the typical remedy for a multiplicitous indictment—election of counts—would make little sense here. Such a remedy would mean the Defendant would then stand convicted of defrauding the United States of less than $15.8 million, a result contrary to the jury’s verdict. The more sensible remedy would be merger of counts at sentencing, so that Defendant would be held responsible for the entire amount of the fraud, as the jury found. See Wright, Leipod et al., 1A Fed. Prac. & Proc. Crim. § 145 (4th ed.). Relatedly, it is possible that trial counsel decided not to challenge Counts One through Three as multiplicitous because the remedy would have been merger, not election, of counts. Alternatively, counsel might have determined such challenge to be a hollow endeavor, because the government then could have brought a superseding indictment with a single count of major fraud. Cf. Weathers,

.

22 (quoting U.S. v. Mangieri,

(D.C. Cir. 1982) (quoting United States v. Sue,

(8th Cir. 1978) (per curiam)).

Defendant accurately quotes from Mangieri, but the Circuit in that case also allowed that

“we do not foreclose the possibility that under some circumstances multiple misrepresentations

might justify separate offenses . . .” Mangieri,

. This case qualifies for such

exception. The false statements statute in this case,

(n), is patterned on the one

at issue in Mangieri,

, which criminalizes the making of a false statement to a

lending institution. Mangieri is therefore instructive. The court there observed that “18 U.S.C.

§ 1014 is targeted at fraudulent loan transactions, rather than the particular falsehoods used to

achieve the illegal transaction.” Mangieri,

(emphasis in original). For that

proposition, the court cited United States v. O’Neill,

(E.D. Pa. 1979), a case in

which the court observed that section 1014 “seeks to prevent losses to federally insured banks

resulting from fraudulent transactions . . . . [I]t is the attempt to induce a fraudulent transaction,

and the losses to federally insured banks resulting therefrom, rather than simply the falsehoods,

which Congress was seeking to prevent,”

at 1203–04 (citation omitted). It follows from

Mangieri and O’Neill that, just as the unit of prosecution for a violation of section 1014 is the

induced illegal transaction, not the made falsehood, the same holds true for section 2197(n).

Viewed in this way, Counts Twelve and Thirteen are appropriately charged as separate

counts because each false statement “induce[d] a [different] fraudulent transaction” and resulted

in a separate loss for OPIC. O’Neill,

. Each false statement triggered an

individualized transmittal of OPIC funds to a different purported vendor. The false statement

charged in Count Twelve caused OPIC to wire $596,000 to Gaspari Menotti, and the false

statement charged in Count Thirteen caused OPIC to wire $821,742 to Afghan Stone Ltd. As the

23 government succinctly states, “[t]hese were two separate disbursements for distinct pieces of

equipment to two separate companies in two different countries.” Gov’t’s Opp’n to Def’s Mot.,

ECF 106, at 18. Indeed, it is pure happenstance that Defendant put both false statements into the

first disbursement request. Each easily could have been in a separate request, and thus given rise

to separate counts. This is not a case like Mangieri where the defendant made over a dozen

material omissions to secure a single loan (though he repeated such conduct on nine different loan

applications and consequently was charged with nine counts of making false statements). Because

the unit of prosecution under section 2197(n) is the “fraudulent . . . transaction,” Mangieri,

, and each false statement charged here precipitated its own separate illegal

transaction, Counts Twelve and Thirteen are not multiplicitous. Accordingly, Defendant cannot

show prejudice arising from his counsel’s failure to make such argument.

3. All Counts but Count Two and Three are Time Barred

Defendant makes the startling assertion that each count of the indictment but two—Counts

Two and Three—is time barred, and Defendant’s counsel was ineffective for moving to dismiss

on that ground. See Def.’s Mot. at 36–38. The grand jury returned the indictment on June 7, 2017.

See Indictment (docketed on June 7, 2017). Thus, to be timely, the “executions” of the major fraud

had to have occurred on or after June 7, 2010, see

(f) (establishing seven-year

limitations period), and all other charged conduct had to have occurred on or after June 7, 2012,

see

(a) (setting general five-year limitations period for federal crimes). The

“execution” alleged in Count One—the first disbursement request—occurred before June 7, 2010,

on April 18, 2010, making that count untimely, Defendant asserts. See Indictment at 9. The

“executions” in Counts Two and Three—the second and third disbursement requests—are alleged

to have happened after June 7, 2010, on July 16, 2010, and November 28, 2010, respectively,

24 rendering those counts timely. But as to all other offense conduct, the latest-in-time charged crime

appears in Count Twenty-Three, a money laundering offense alleged to have occurred before June

7, 2012, on August 31, 2011. See

at 9–14. Thus, Defendant contends, Counts Four through

Twenty-Three are time barred under the applicable five-year limitations period.

If the question of the indictment’s timeliness were as straightforward as Defendant makes

it seem, he would be justified in accusing his trial counsel of ineffectiveness, and likely would

prevail. But, not surprisingly, the limitations analysis is not so simple. The government responds

that the Wartime Suspension of Limitations Act (“WSLA” or “the Act”),

, applies

in this case and extends the applicable limitations period. By the Act’s operation, the government

contends, the limitations period has not expired as to any count of the indictment. See Gov’t Opp’n

at 16, 28–33.

The WSLA provides as follows:

When the United States is at war or Congress has enacted a specific authorization for the use of the Armed Forces, as described in section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)), the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not, or (2) committed in connection with the acquisition, care, handling, custody, control or disposition of any real or personal property of the United States, or (3) committed in connection with the negotiation, procurement, award, performance, payment for, interim financing, cancelation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war or directly connected with or related to the authorized use of the Armed Forces, or with any disposition of termination inventory by any war contractor or Government agency, shall be suspended until 5 years after the termination of hostilities as proclaimed by a Presidential proclamation, with notice to Congress, or by a concurrent resolution of Congress.

25

. The government’s invocation of the WSLA gives rise to several contested

issues, which the court takes one at a time.

a. Does the WSLA apply?

The parties agree that Congress’s authorization of the use of force in the aftermath of

September 11, 2001, triggers the WSLA for purposes of this case. See Authorization for Use of

Military Force, Pub. L. No. 107–40,

(2001); United States v. Frediani,

(11th Cir. 2015). They disagree, however, as to whether hostilities have “terminated,”

such that the applicable limitations period would have started to accrue from the date of

“termination.”

Defendant relies on a single district court decision, United States v. Prosperi, see Def.’s

Reply in Support of Def’s Mot., ECF No. 115 [hereinafter Def.’s Reply], at 14, for the proposition

that hostilities in Afghanistan have terminated. There, the court held that hostilities in Afghanistan

expired on December 22, 2004, when “the United States formally recognized and extended full

diplomatic relations to the new government of Hamid Karzai.” United States v. Prosperi,

(D. Mass. 2008). But Prosperi’s holding has been uniformly rejected.

At least three circuit courts have explained that the Prosperi court failed to account for the plain

textual requirement of the WSLA that a declaration of the end of hostilities must be made either

“by a Presidential proclamation, with notice to Congress, or by a concurrent resolution of

Congress,” neither of which has occurred with respect to the use of force in Afghanistan.

See Frediani, 790 F.3d at 1200–01 (concurring with decisions from the Fourth and Fifth Circuits).

This court agrees with this critique of Prosperi. “Hostilities” thus have not “terminated” for

purposes of the WSLA.

26 b. What sub-clause of the WSLA applies?

The WSLA does not reach all federal crimes. Rather, as relevant here, the statute sets forth

three categories of offenses to which it applies: (1) any offense “involving fraud or attempted

fraud against the United States or any agency thereof in any manner, whether by conspiracy or

not”; (2) any offense “committed in connection with the acquisition, care, handling, custody,

control or disposition of any real or personal property of the United States”; and (3) any offense

“committed in connection with . . . any contract, subcontract, or purchase order which is connected

with or related to the prosecution of the war or directly connected with or related to the authorized

use of the Armed Forces . . . ”

. The Supreme Court has directed that these

clauses must be “narrowly construed,” because they are exceptions to the general policy in favor

of repose. Bridges v. United States,

(1953) (quoting United States v. McElvain,

(1926)).

In this case, the government has shifted positions as to which of the WSLA’s three sub-

clauses operates to suspend the limitations period. When it initially responded to Defendant’s

motion, the government invoked only the first clause covering offenses of fraud or attempted fraud

against the United States. Gov’t Opp’n at 29–32. But after the court granted the government leave

to file a sur-reply, it expanded its view and now maintains that all three clauses are applicable.

See United States’ Reply to Def’s Reply, ECF No. 125 [hereinafter Gov’t Sur-Reply], at 7–14.

For reasons the court will explain later, it does not at this time resolve whether sub-clauses

(2) and (3) apply in this case. The court eventually may have to answer that question, but for

present purposes it will address the applicability of sub-clause (1) only. The court now turns to

that issue.

27 c. To which counts does sub-clause (1) apply?

The Supreme Court has held, with respect to sub-clause (1) of the WSLA, that “the wartime

suspension of limitations authorized by Congress is limited strictly to offenses in which defrauding

or attempting to defraud the United States is an essential ingredient of the offense charged.” United

States v. Bridges,

(1953); United States v. Grainger,

(1953)

(stating that offenses covered by sub-clause (1) “are limited to those which include fraud as an

essential ingredient”). In Bridges, the Court held that the WSLA did not apply to offenses charging

making a false statement under oath in naturalization proceedings, because the offenses did not

“involve [] defrauding [] the United States in any pecuniary manner or in a manner concerning

property.” 346 U.S. at 221.

In a companion case to Bridges, United States v. Grainger, the Court held that the WSLA

applies to charges brought under the criminal false claims clause of the False Claims Act,

;

, 242–43 (1953). The Court explained: The “substantive offenses [ ] charged

include the making of claims upon the Government for payments induced by knowingly false

representations . . . . The statement of the offenses here carries with it the charge of inducing or

attempting to induce the payment of a claim for money or property involving the element of deceit

that is the earmark of fraud.”

(emphasis added). By contrast, the court observed, the WSLA

did not apply to the criminal false statements clause of the False Claims Act,

,

because that offense “contains no such ingredient.”

.

Bridges and Grainger lead to the inescapable conclusion that the WSLA covers Count One

charging Defendant with major fraud against the United States. See United States v. Merkel,

(D. Or. 2019) (applying the WSLA to a prosecution for major fraud

against the United States); United States v. Verclas, Case No.: GJH-18-160,

, at

28 *7–8 (D. Md. Jan. 3, 2019) (same); United States v. Whyte,

, 491–95

(W.D. Va. 2017) (same). An “essential ingredient” of that offense is defrauding the United States.

The statute of limitations therefore has not run on Count One, and Defendant was not prejudiced

by trial counsel’s failure to challenge its timeliness. Defendant does not contend otherwise.

See Def.’s Reply at 15 (arguing only that Counts Twelve through Twenty-Three remain time

barred even if the WSLA applies).5

The more interesting question is whether the WSLA reaches the false statements charges

arising under

(n)—Counts Twelve through Fourteen—and the money laundering

offenses arising under

(a)(1)(B)(i)—Counts Sixteen through Twenty-Three.

The answer turns on the question whether the Supreme Court in Bridges and Grainger understood

the WSLA to cover only those offenses that contain “fraud . . . against the United States” as an

element of the offense, or whether the Act extends to charged offenses supported with evidence

of fraudulent intent but that do not necessarily require fraudulent intent as an element of proof.

Defendant takes the former position; the government takes the latter. Defendant has the better

argument.

Bridges makes clear that, when deciding whether the WSLA applies to an offense, a court

must look to the elements of the offense, not the manner of indictment or the proof at trial. In that

case, the defendants were charged with making a false statement in a naturalization proceeding.

Finding that such offense fell outside the WSLA, the Court reasoned that, “[i]n that offense, as in

the comparable offense of perjury, fraud is not an essential ingredient. The offense is complete

5 Defendant does not argue that the wire fraud offenses in Counts Four through Eleven fall outside the WSLA’s coverage. See generally Def.’s Reply. The court therefore does not consider whether those counts are subject to the WSLA.

29 without proof of fraud, although fraud often accompanies it.” 346 U.S. at 222. The Court reached

the same conclusion as to the charge of aiding and abetting the false statements offense.

If, as here, the main offense is complete with the proof of perjury, the suspension does not apply to the charge of aiding in the commission of that offense. The insertion in the indictment of the words “procured by fraud” does not change the offense charged. The embellishment of the indictment does not lengthen the time for prosecution. It is the statutory definition of the offense that determines whether or not the statute of limitations comes within the Suspension Act.

Id. 222–23 (emphasis added). These passages from Bridges establish that the focus of the coverage

question under the WSLA are the statutory elements of the charged offense, not the framing of the

indictment or the proof presented at trial. See United States v. DeLia,

(10th

Cir. 2018) (“To determine whether the Suspension Act applies, we must evaluate the elements of

the charged offense.”) (citing Bridges, 346 U.S. at 222–23). If the “statutory definition of the

offense” lacks fraud as an element, the ordinary limitations period applies.

Here, neither the false statements charges nor the money laundering charges required proof

of fraud to secure a conviction. Section 2197(n) demands the government prove only that the

defendant made the false statement or report “for the purpose of influencing in any way” an action

of OPIC.

(n). It does not require an intent to deceive or defraud. Although no

court appears to have addressed this question directly under section 2197(n), courts have held that

the comparable “for the purpose of influencing” element under the false-statement-to-a-financial-

institution statute,

, does not require proof of an intent to defraud. See United

States v. Sparks,

(4th Cir. 1995) (holding “that an intent to deceive is simply

irrelevant to the defendant’s guilt” under section 1014); United States v. Blumenthal,

(9th Cir. 1991) (holding that intent to deceive is not a necessary element of section 1014);

United States v. Sabatino,

, 544–45 (2d Cir. 1973) (“Proof that an applicant did not

30 intend to defraud the bank is irrelevant to whether he intended to influence the bank by false

statements.”); cf. United States v. Wells,

(1997) (holding that materiality is

not an element of the offense under section 1014). Thus, the absence of an element of fraud takes

section 2197(n) outside the WSLA.

The same holds true of the money laundering charges under section 1956. By definition,

that offense does not require fraud as an essential element. Indeed, the crime can be predicated

upon a whole variety of offenses not involving fraud. See

(c)(7) (defining

“specified unlawful activity”). And the government need not even prove that the defendant knew

the precise underlying crime committed. See

§ 1956(c)(1) (defining the element “knowing that

the property involved in a financial transaction represents the proceeds of some form of unlawful

activity” to mean “that the person knew the property involved in the transaction represented

proceeds from some form, though not necessarily which form, of activity that constitutes a felony

under State, Federal, or foreign law”). Accordingly, the money laundering offenses are beyond

the reach of the WSLA.

d. How to proceed from here?

Having determined that sub-clause (1) under the WSLA does not save the false statements

and money laundering offenses from the five-year time bar, the question becomes how to proceed

from here. As discussed, because Defendant challenges these counts for the first time post-trial,

he must show “good cause” for the late challenge based on ineffective assistance of counsel. The

above discussion establishes that Defendant possibly suffered prejudice from his counsel’s failure

to move to dismiss the false statements and money laundering charges. But the court cannot yet

31 conclude Defendant received ineffective assistance, because two open questions remain, one

factual and one legal.

The factual question concerns the performance prong of Strickland: Why did trial counsel

not challenge the false statements and money laundering charges on limitations grounds? The

present record does not even attempt to answer this question. There may be no reasonable tactical

grounds for counsel’s failure to advance that challenge, but the court is not prepared to presume

as much. As for the legal question, it concerns whether either sub-clause (2) or (3) of the WSLA

suspended the limitations period for the offenses in question. The government invoked these two

sub-clauses for the first time in its sur-reply brief, meaning Defendant has not had an opportunity

to respond. The court is not prepared to rule on the applicability of sub-clauses (2) and (3) to the

false statements and money laundering counts without the benefit of briefing from Defendant.

The court therefore will proceed as follows. The parties may supplement the record by

May 1, 2019. Both parties may submit evidence bearing on the issue of trial counsel’s failure to

challenge the timeliness of the false statements and money laundering counts. Additionally,

Defendant may respond to the government’s argument regarding the applicability of sub-clauses

(2) and (3) of the WSLA. The court already has received substantial briefing from the parties, so

32 any supplemental filing shall be limited to ten pages, excluding exhibits. Based on the new

submissions, the court will decide whether a second hearing is necessary.

IV. CONCLUSION AND ORDER

For the foregoing reasons, Defendant’s Combined Rule 29 and 33 Motion is denied in part

and deferred in part. The parties may make supplemental submissions consistent with this

Memorandum Opinion by May 1, 2019.

Dated: April 10, 2019 Amit P. Mehta United States District Judge

33