United States District Court, N.D. Illinois, Eastern Division
June 18, 2004.
UNITED STATES OF AMERICA, Plaintiff,
SAAD AL DHUFARI, KHALED AL HECIMI, and ALBERT SIMONIAN, Defendants.
The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
On March 4, 2004, a grand jury indicted Defendants Saad Al
Dhufari, Khaled Al Hecimi, and Albert Simonian, for mail fraud in
violation of 18 U.S.C. § 1341 and 1342. The indictment charged
Defendants with a scheme to defraud a car rental company through
a system of staged accidents, invented injuries, and fraudulent
claims. Defendants Al Dhufari and Al Hecimi moved to dismiss the
indictment against them for failure to prosecute within the
statute of limitations. Defendant Albert Simonian filed a
separate motion to dismiss on essentially the same grounds.
The indictment alleges the following facts.*fn1 Defendants
took part in a scheme to defraud National Car Rental Systems,
Inc. ("National") by staging accidents and making fraudulent claims on National's insurance coverage. As part of the alleged
scheme, Simonian rented a vehicle on September 25, 1997 from a
National rental branch in downtown Chicago and obtained the "loss
damage waiver/liability insurance coverage" offered by National.
(R. 1-1, Indictment ¶ 6.) On September 28, 1997, Defendants
allegedly staged an accident between the vehicle rented and
driven by Simonian and a vehicle driven by Saad Al Dhufari.
Khaled Al Hecimi and an unnamed person (the "Passenger") rode as
passengers in the two vehicles. On the same day, Al Dhufari and
Simonian filed accident reports with the Chicago Police
Department representing the staged event as an accidental traffic
collision. On September 30, 1997, Al Dhufari and Al Hecimi met
with an attorney using the name James L. Kent in order to obtain
money from National for property damage and personal injuries in
connection with the staged accident. Al Dhufari and Al Hecimi
provided Kent with copies of the police reports they had filed,
and signed forms purporting to retain Kent to pursue claims
against National in connection with their imaginary injuries.
Unknown to Defendants, "James L. Kent" was actually an FBI agent
working undercover to gather evidence in connection with staged
automobile accident insurance fraud activity.
Al Dhufari, Al Hecimi, and the Passenger also visited medical
clinics and doctors to complain of fake injuries resulting from
the staged accident. Al Dhufari, Al Hecimi, and the Passenger
filed claims with National for personal injuries in the amount of
$36,720 and property damage in the amount of $2,187.92. In
settlement of the putative property damage claim, National issued
a check in the amount of $2,187.92 payable to Al Dhufari on or
about December 12, 1997.
On April 8, 1999, National mailed letters to Al Dhufari, Al
Hecimi, and the Passenger requesting that they contact National if they were still pursuing
claims for their alleged injuries. On or about April 12, 1999,
National sent an additional letter to the Passenger requesting
that he contact National if he was still pursuing a claim for his
alleged injuries. On May 4, 2004, the Grand Jury indicted
Defendants for violations of 18 U.S.C. § 1341 and 1342.
I. Legal Standard
In evaluating a motion to dismiss an indictment, a court does
not test the strength of the government's case, but instead
determines whether the allegations are sufficient to charge an
offense. United States v. Sampson, 371 U.S. 75, 78-79, 83 So.
Ct. 173, 174-75, 9 L.Ed.2d 136 (1962); U.S. v. Risk,
843 F.2d 1059, 1061 (7th Cir. 1988). "To be sufficient, an indictment
must fulfill three distinct functions. First, the indictment must
state all of the elements of the crime charged; second, it must
adequately apprise the defendant of the nature of the charges so
that he may prepare a defense; and third, it must allow the
defendant to plead the judgment as a bar to any future
prosecutions for the same offense." U.S. v. Smith,
230 F.3d 300, 305 (7th Cir. 2000) (citing Fed.R.Crim.P. 7(c)(1)).
The elements of mail fraud are: "(1) the defendant's
participation in a scheme to defraud; (2) defendant's commission
of the act with intent to defraud; and (3) use of the mails in
furtherance of the fraudulent scheme." Williams v. Aztar Indiana
Gaming Corp., 351 F.3d 294, 299 (7th Cir. 2003) (citing
United States v. Walker, 9 F.3d 1245, 1249 (7th Cir.
II. Statute of Limitations
Defendants argue that the indictment is barred by the statute
of limitations because the government has not alleged any overt
actions by Defendants within the statutory period. Thus, Defendants contend that the government has not sufficiently
alleged each element of a mail fraud offense.
The relevant statute of limitations states that "[e]xcept as
otherwise expressly provided by law, no person shall be
prosecuted, tried, or punished for any offense, not capital,
unless the indictment is found or the information is instituted
within five years next after such offense shall have been
committed." 18 U.S.C. § 3282. In this case, the grand jury
returned the indictment on March 4, 2004. The relevant date for
the statute of limitations, therefore, was five years earlier:
March 4, 1999. The Court must determine if the government has
alleged activity after March 4, 1999 that supports the claims in
Defendants correctly note that the only activities within the
statutory period alleged in the indictment are mailings dated
April 1999 from National to Defendants.*fn2 Defendants argue
that these mailings are insufficient to confer jurisdiction on
this Court because the Defendants did not send them. Rather, the
mailings were sent by the victim, National, as follow-up
communication with the claimants. Contending that such routine
mailings cannot constitute a continuing violation, Defendants
argue that "the statute of limitations will never run as long as
computers spew out periodic requests for additional
Defendants take an unnecessarily narrow view of the alleged
scheme against National. Even if no Defendant responded to the
routine communications from National inquiring about their
allegedly fraudulent claim, National continued to send such
mailings to Defendants as a direct result of Defendants' scheme.*fn4 Viewed in the light
most favorable to the government, these mailings represent
activities that occurred in furtherance of the alleged scheme:
defrauding the rental company in connection with staged accidents
and fabricated claims. This conclusion is bolstered by the
common-sense fact that Defendants knew or should have known that
their activities would spawn follow-up communication on the part
of their intended victim. U.S. v. Tadros, 310 F.3d 999, 1007 n.
4 (7th Cir. 2002) ("The government need only show that the
defendant acted with knowledge that the use of the wires or mail
could be reasonably foreseen or would follow in the ordinary
course of business.") (citing American Auto. Accessories, Inc.
v. Fishman, 175 F.3d 534, 542 (7th Cir. 1999)). "Such
communications can be said to be incident to an essential part of
the scheme. Courts must consider the full scope of the scheme
when determining the sufficiency of the mailing element." U.S.
v. Koen, 982 F.2d 1101, 1108 (7th Cir. 1992) (internal
citations and quotations omitted). At most, Defendants' argument
that one-sided communications from National to Defendants did not
further Defendants' scheme poses a question of fact. As stated
before, ruling on a motion to dismiss, the Court does not test
the strength of the government's case, but rather the sufficiency
of the allegations in the indictment. The indictment sufficiently
alleges that Defendants caused mail communications in furtherance
of a scheme to defraud National.
Defendants further argue that because they made no overt act in
furtherance of the alleged scheme within the statutory period,
the "conspiracy should be considered abandoned." (R. 39-1,
Simonian's Reply, p. 4.) This is also a question of fact not
appropriately addressed by a motion to dismiss. As the indictment stands, the government has
sufficiently alleged that Defendants caused mail communications
in furtherance of a scheme to defraud National.
Because the mailings that occurred in April 1999 were for the
purposes of this motion to dismiss in furtherance of
Defendants' scheme, the mailings are sufficient to support the
March 4, 2004 indictment. These mailings fall within the
five-year statute of limitations. Accordingly, the Court denies
the motion to dismiss brought by Defendants Al Dhufari and Al
Hecimi. Similarly, the Court denies Defendant Simonian's motion
to dismiss. CONCLUSION
Because the government has sufficiently alleged acts in
furtherance of Defendants' violation of 18 U.S.C. § 1341 and
1342 within the statutory period, Defendants' motions to dismiss