The opinion of the court was delivered by: Joan Humphrey Lefkow, United States District Judge.
Defendant Nabil Smairat ("Smairat") is charged in an eight-count indictment with seven counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of money laundering, in violation of 18 U.S.C. § 1957. The indictment also includes a forfeiture allegation. Presently before the court are various pretrial motions of the United States of America (the "government") and Smairat. The court will address each motion in turn.
I. Motion by Nabil Smairat to Dismiss Counts One Through Seven of the Indictment as Duplicitous *fn1
Smairat moves the court to enter an order dismissing counts one through seven of the indictment, which charge Smairat with wire fraud in violation of 18 U.S.C. § 1343, as duplicitous because each count alleges more than one scheme: a scheme to defraud the U.S. Department of Agriculture and a scheme to obtain money and property by means of false and fraudulent pretenses. The indictment alleges that Smairat, the owner of a grocery store, illegally paid his customers cash for their LINK (food stamp) benefits in an amount below the face value of the benefits. Specifically, counts one through seven allege that Smairat ". . . knowingly devised, intended to devise, and participated in a scheme to defraud and to obtain money and property from the USDA by means of materially false and fraudulent pretenses, representations and promises. . . ."
Duplicity is the joinder of two or more distinct offenses in the same count of an indictment. United States v. Orzechowski, 547 F.2d 978, 986 (7th Cir. 1977). And Rule 8(a), Fed. R. Crim. P., requires that indictments charging multiple offenses state each offense in a separateácount. In the context of bank fraud, 18 U.S.C. § 1344, the Seventh Circuit has explained that "a scheme to defraud and a scheme to obtain money by false or fraudulent pretenses are defined in the disjunctive, and thus are separate offenses." United States v. LeDonne, 21 F.3d 1418, 1425 (7th Cir. 1994), citing United States v. Doherty, 969 F.2d 425, 427 (7th Cir.), cert. denied, 506 U.S. 1002, 113 S. Ct. 607, 121 L. Ed. 2d 542 (1992). Similarly, the Tenth Circuit has held that "18 U.S.C. § 1341 identifies two interrelated but separate offenses: (1) engaging in a scheme or artifice to defraud, or (2) engaging in a scheme to obtain money or property by false or fraudulent pretenses." United States v. Haber, 251 F.3d 881, 888 (10th Cir. 2001), citing United States v. Cronic, 900 F.2d 1511, 1513 (10th Cir. 1990). Recognizing that 18 U.S.C. § 1341, the mail fraud statute, and 18 U.S.C. § 1343, the wire fraud statute, contain the same two-part language, the Tenth Circuit explained that the separate offense analysisáapplies equally to both the mail fraud and the wire fraud statutes. Haber, 251 F.3d at 888 n.4, citing United States v. Trammell, 133 F.3d 1343, 1354 n.2 (10th Cir. 1998).
Nevertheless, "where a statute defines two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count in order to adequately apprise the defendant of the government's intention to charge him under either prong of the statute." LeDonne, 21 F.3d at 1427 (defendant charged in the conjunctive with violations of 18 U.S.C. § 1344(1) and (2)) (citation omitted). In this case, the indictment charges Smairat in the conjunctive with the two ways in which he allegedly committed the offense of wire fraud. Accordingly, that two schemes are alleged does not render counts one through seven fatally duplicitous.
The primary problem raised by a duplicitous count in an indictment is that it may allow for an invalid, non-unanimous jury verdict on each separate offense. United States v. Buchmeier, 255 F.3d 415, 425 (7th Cir. 2001). Duplicity also can result in "improper notice of the charges againstá[the defendant], prejudice in the shaping of evidentiary rulings, in sentencing, in limiting review on appeal, [and] in exposure to double jeopardy." United States v. Marshall, 75 F.3d 1097, 1111 (7th Cir. 1996). Smairat, however, makes no argument that he would be prejudiced by the duplicitous counts in the indictment; rather, the indictment is clear and straightforward. Each of the wire fraud counts identifies a single wire communication executed in furtherance of Smairat's alleged schemes and gives Smairat adequate notice of the nature of the charges against him such that he is able to prepare a defense. Any danger of a non-unanimous jury verdict can be cured by instructing the jury that they must unanimously agree upon which of the different offenses alleged within § 1343 the defendant committed. See United States v. Cherif, 943 F.2d 692, 701 (7th Cir. 1991) (Defendant could not complain on appeal that indictment for false statement was duplicitous, permitting a conviction even though the jury did not unanimously agree on what false statement he made, because the problem could easily have been cured by an instruction telling the jury thatáit could convict on the false statement count only if it unanimously agreed on the false statement he made.) Thus, the court denies Smairat's motion to strike counts one through seven of the indictment as duplicitous.
II. Motion by Nabil Smairat to Strike Surplusage from the Indictment
Smairat moves pursuant to Rule 7(d). Fed. R. Crim. P., to strike as surplusage all references to acts in furtherance of the alleged wire fraud scheme that occurred prior to February 17, 2000. 18 U.S.C. § 3282 requires that an indictment for a non-capital offense be brought within five years "after such offense shall have been committed." The indictment returned by the grand jury on February 17, 2005 alleges specific acts in furtherance of a scheme to defraud the United States Department of Agriculture's LINK program that occurred more than five years before the date of the return of the indictment Smairat argues that the allegations in the indictment concerning acts that occurred between June 1, 1999 and February 17, 2000 are outside the statute of limitations and not chargeable as a continuing offense and, therefore, the inclusion of these allegations in the indictmentáis immaterial, irrelevant, and prejudicial.
Although the government is unable to indict Smairat separately on those acts that occurred prior February 17, 2000, Smairat fails to argue that those acts were not in furtherance of the alleged scheme to defraud the LINK program. As recognized by the government, the alleged wires constituting the offenses are all within the statute of limitations. And the allegations relating to the acts in furtherance of the alleged scheme, even if they occurred prior to February 17, 2000, are relevant to establish a scheme to defraud and Smairat's intent. See United States v. Tadros, 310 F.3d 999, 1006 (7th Cir. 2002); United States v. Eckhardt, 843 F.2d 989, 993-94 (7th Cir. 1988). Moreover, Smairat has not identified how he is unfairly prejudiced by the inclusion of these allegations in the indictment. The court, therefore, denies Smairat's motion to strike.
III. Motion by Nabil Smairat to Suppress Evidence
Smairat moves to suppress the evidence seized from his house on April 15, 2003. Smairat argues that the consent obtained by federal agents from Smairat's brother, Michil Smairat, and wife, Barbara Smairat, was unlawful, invalid, or otherwise insufficient. Both parties agree that an evidentiary hearing is necessary to determine whether the consent given by Michil Smairat to search the house of Nabil and Barbara Smairat was valid and whether Michil Smairat had actual or apparent authority to consent to a search of containers within the house.
The government argues, however, that no hearing is required to determine the voluntariness of Mrs. Smairat's consent because any alleged force used against Michil Smairat could not have tainted Mrs. Smairat's consent, as there are no allegations that Mrs. Smairat had knowledge of the alleged force used against Michil Smairat or that it affected her decision to consent. The government further contends that even if Michil Smairat's consent was involuntary or inadequate to justify search of containers within the Smairat's home, the search of these containers that occurred before Mrs. Smairat consented to the search may be justified under the inevitable discovery doctrine.
The "'inevitable discovery' doctrine is a means for the government to avoid suppression of evidence obtained as the result of unlawful conduct by the police,. . . and for the doctrineáto apply the government must prove by a preponderance of the evidence that authorities 'would have found the challenged evidence through lawful means.'" United States v. Cherry, 436 F.3d 769 at 771 (7th Cir. 2006) (citations omitted) (emphasis in original). The government states that the agents had probable cause to believe that the financial and business records and $260,000 located in Smairat's home and in the containers were evidence of money laundering and food-stamp fraud, and the agents could have lawfully seized the containers even if Michil Smairat's consent was insufficient to allow them to open them. Absent from this statement is evidence supporting the government's assertion of probable cause. As a result, the court will require the government to prove by a preponderance of the evidence at an evidentiary hearing that the authorities would have found this evidence through lawful means.
Additionally, Mrs. Smairat avers in an unsworn declaration that upon her arrival home, she observed individuals wearing shirts or jackets bearing logos of "police," "DEA" and "FBI" outside the house. She also observed that these agents were carrying cardboard boxes outáof the house and placing them in the cars parked in the vicinity. Upon parking her car, she was met by a DEA agent who escorted her into her house where she observed numerous agents in the process of removing boxes from the basement. After being informed that her husband was involved in importing illegal drugs from Canada, she was escorted to the basement where agents displayed clear plastic bags containing U.S. currency. She was escorted back upstairs where two agents informed her that they had been searching the house. The agents also informed her that they had the authority to conduct the search because Michil Smairat had authorized it. An agent also asked her about the existence of additional cash in the house and informed her that they were prepared to "tear the house apart." The agents then informed Mrs. Smairat that it would be in her interest to sign a consent to search form, which she did.
Although Smairat has not averred that any force or threats of force were used against Mrs. Smairat, these allegations raise a question as to whether Mrs. Smairat gave her consent voluntarily or whether her consent was tainted by the presence of the agents at her home and the allegedly unlawfulásearch of the Smairat home that resulted from the consent of Michil Smairat. "The burden is on the government to prove, by a preponderance of the evidence, 'that someone who consents to a search does so freely and voluntarily.'" United States v. Villegas, 388 F.3d 317 at 325 (7th Cir. 2004), quoting United States v. Saadeh, 61 F.3d 510, 518 (7th Cir. 1995). If Michil Smairat's consent was invalid and if the agents then used this consent as leverage to persuade Mrs. Smairat to give her consent, it is also arguable that the evidence obtained following Mrs. Smairat's consent was the result of the exploitation of Michil Smairat's consent and the subsequent illegal search. See, e.g., United States v. Gillespie, 650 F.2d 127, 129 (7th Cir. 1981) (holding that evidence initially obtained during illegal search of defendant's home must be suppressed when seized during later search to which defendant consented). Additionally, Mrs. Smairat may have given her consent to the search under the belief that there was no reason to withhold her consent since the search of her home by government agents was already underway. At the same time, Mrs. Smairat'sáá consent may have been '"so attenuated as to dissipate the taint'" of the allegedly illegal action. Segura v. United States, 468 U.S. 796, 805, 104 S. Ct. 3380, 3385, 82 L. Ed. 2d 599 (1984), quoting Nardone v. United States, 308 U.S. 338, 341, ...