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UNITED STATES v. YASHAR
March 30, 1998
UNITED STATES OF AMERICA, Plaintiff,
MICHAEL A. YASHAR, Defendant.
The opinion of the court was delivered by: SHADUR
MEMORANDUM OPINION AND ORDER
Defendant Michael Yashar ("Yashar") has moved under Fed. R. Crim. P. 12(b) for dismissal of the one-count indictment that charges him with having been a ghost payroller during the period from September 1, 1991 to September 1, 1992, in violation of 18 U.S.C. § 666 ("Section 666"). Here are the portions of that statute (apart from the definitions contained in Section 666(d)) that are relevant for current purposes:
(a) Whoever, if the circumstance described in subsection (b) of this section exists--
(1) being an agent...of a...local...government, or any agency thereof--
(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that--
(i) is valued at $ 5,000 or more, and
(ii) is owned by, or is under the care, custody, or control of such... government, or agency; or
shall be fined under this title, imprisoned not more than 10 years, or both.
(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $ 10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
(c) This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.
Because only one of the now-fully-briefed contentions advanced by Yashar needs discussion to resolve his motion, this opinion will focus on that argument alone.
To begin with, there is no question that the City of Chicago met the "circumstance" described in Section 666(b) during the period in question. Although that may perhaps not have been true if the statutory focus were instead limited to the City Council's Committee on Finance (where Yashar was a payroller), the United States is entirely correct in urging that the City itself--and not the City Council or its committee--is the relevant "government" for statutory purposes.
As another preliminary matter, the United States is also correct in asserting that the determination of a motion to dismiss an indictment (just as with the equivalent motion to dismiss a civil complaint for failure to state a claim, brought under Fed. R. Civ. P. 12(b)(6)) does not permit the court to go behind the charge to examine whether its factual allegations are true or false. In those terms the indictment is impeccable, containing as it does the allegations that the City received the requisite amount of benefits during the already-described 12-month period and that during the same time frame Yashar "knowingly and intentionally obtained by fraud, and knowingly and intentionally embezzled, stole, obtained by fraud, and without authority misapplied and caused to be misapplied property that was valued at $ 5,000 or more and which was owned and under the care, custody and control of the City of Chicago...." But having made the point that the allegations of the indictment must be credited as gospel on the current motion, the United States still does not contest Yashar's statement that less than $ 5,000 was paid to him during the only portion of the time frame in question as to which he had waived the statute of limitations (as discussed hereafter). This opinion will therefore proceed on that predicate.
For present purposes, then, the factual matrix to be tested under the applicable legal standards is one in which Yashar had signed a limited waiver of the statute of limitations that excluded any criminal charges that were time-barred as of August 13, 1997--so that Yashar's only conduct that remains criminally actionable is conduct between August 13, 1992 and the September 1, 1992 date when he was terminated as a Finance Committee employee. And there is no question that the monies that he received from his allegedly fraudulent scheme during that short window period were far below the $ 5,000 value specified in Section 666(a)(1)(A), although comparable ...
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