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United States v. Valenzuela

United States District Court, D. Nebraska

July 30, 2019

UNITED STATES OF AMERICA, Plaintiffs,
v.
MELISSA CARMONA VALENZUELA, Defendants.

          FINDINGS AND RECOMMENDATION

          CHERYL R. ZWART UNITED STATES MAGISTRATE JUDGE.

         Defendant Valenzuela has moved to dismiss Counts II and III of the Indictment, (Filing No. 73), and Counts V and VI of the Indictment, (Filing No. 75). For the reasons stated below, Defendant's motions to dismiss should be denied.

         Motion to Dismiss (Filing No. 73)

         Counts II and III of the initial indictment allege Defendant committed wire fraud in violation of 18 U.S.C. § 1343 as follows:

8. On or about the dates set below, in the District of Nebraska, defendant MELISSA CARMONA VALENZUELA, having devised and intending to devise a scheme and artifice to defraud, and to obtain property by means of materially false and fraudulent pretenses, representations, promises, and omissions described above, did knowingly transmit and cause to be transmitted by means of wire communication in interstate commerce the direct deposits described below, each transmission constituting a separate count:

Count

Date

Description of Wire

II

February 27, 2019

Electronic Message through the Whatsapp telephone application from phone number (201)736-9713 to Defendant MELISSA

CARMONA VALENZUELA'S phone number. Said electronic message containing the PII for L.A.

III

February 27, 2019

Electronic Message through the Whatsapp telephone application from phone number (201)736-9713 to Defendant MELISSA CARMONA VALENZUELA'S phone number. Said electronic message containing the PII for R.A.

(Filing No. 44, at CM/ECF pp. 2-3). Defendant argues these counts must be dismissed because they are “devoid of any description or mention of any ‘direct deposits, '” and are therefore “uncertain and ambiguous.” (Filing No. 74, at CM/ECF p. 2).

         A superseding indictment has now been filed which corrects the initial indictment, with the reference to “direct deposits” eliminated and replaced by a reference to “electronic communications.” (Filing No. 80, at CM/ECF p. 2). The superseding indictment now alleges Defendant “did knowingly transmit and cause to be transmitted by means of wire communication in interstate commerce the electronic communications described” in Counts II and III. (Filing No. 80, at CM/ECF p. 2). The allegations of Counts II and III describe electronic communications. (Filing No. 80, at CM/ECF p. 2-3). Even assuming the counts II and III of the initial indictment were ambiguous, the superseding indictment has fixed that ambiguity. Defendant's motion to dismiss counts II and III, (Filing No. 73), was therefore rendered moot by the filing of the superseding indictment and it should be denied.

         Motion to Dismiss (Filing No. 75)

         Defendant moves to dismiss Counts V and VI, arguing these counts “are an attempt to impose multiple punishments for the same offense, which is charged in Count IV, in violation of the Double Jeopardy Clause of the Fifth Amendment.” (Filing No. 75). Citing Blockburger v. United States, 284 U.S. 299, 304 (1932), Defendant argues Counts V and VI represent an impermissible attempt by the government to divide the single crime alleged in Count IV into the “series of temporal or spatial units” alleged in Counts V and VI. (Filing No. 76, at CM/ECF p. 2).

         Count IV of the superseding indictment alleges:

9. From on or about February 14, 2019 to February 27, 2019, in the District of Nebraska and elsewhere, the Defendant MELISSA CARMONA VALENZUELA, knowingly and with intent to defraud, used, a counterfeit access device, as defined in 18 U.S.C. § 1029(e)(2), to wit: a fake Citi Visa debit card number XXXXXXXXXXX3237, said use affecting interstate commerce.
In violation of 18 U.S.C. ยง ...

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