The opinion of the court was delivered by: Hon. George W. Lindberg
MEMORANDUM OPINION AND ORDER
Before the court is defendant Maryanne Koll's ("Koll") motion to dismiss the superseding information ("information"), pursuant to Federal Rules of Criminal Procedure ("Rules") 7(c)(1) and 12(b)(3)(B). The information charges Koll with one count of wire fraud in violation of Title 18, United States Code, Section 1341 ("Section 1341"). For the reasons set forth more fully below, the motion to dismiss is granted.
The information alleges that between no later than January 2003 and May 2007, Koll and her co-defendant, Robert Henry*fn1 ("Henry"), participated in a scheme to defraud and obtain property owned by the State of Illinois and the Illinois Department of Public Health ("IDPH") by means of materially false and fraudulent pretenses. Specifically, Koll is charged with fraudulently obtaining sanitation certificate exam books and other exam-related materials from the IDPH in furtherance of her venture to procure IDPH sanitation certificates from the State of Illinois for individuals who had not attended an IDPH-approved sanitation certificate course.
During all times relevant to this case, Koll was an IDPH-approved instructor for Illinois food service sanitation manager certificate courses. According to the information, she used her position as an approved instructor for her own gain by arranging to provide sanitation certificates to individuals without requiring those individuals to take, or pass the IDPH required examination. In exchange for a fee of $300 to $400, Koll allegedly made materially fraudulent representations and promises to the IDPH regarding individuals' attendance at the required certification course.
According to the information, Koll fraudulently completed sanitation examinations for individuals. Koll's co-defendant, Henry, arranged for certificate applicants to partially complete sanitation exam answer sheets with their names and other personal information, but with the answers to the exam left blank. Then, Koll completed and/or altered the exam answer sheets to insure that the individuals passed the examination and receive a sanitation certificate. The information does not allege that Koll disclosed the questions and/or answers to the sanitation examination to anyone. It also does not allege that she retained the sanitation certificate exam books or other exam-related materials for more than the 10 days allowed by the IDPH. To the contrary, the information specifically states that Koll returned the exam books and other exam-related materials, which were the exclusive property of the State of Illinois, to the IDPH.
A. Applicable Legal Standard
At this stage in the proceedings, the court takes the facts in the information as true and "view[s] all facts in the light most favorable to the government." United States v. Yashar, 166 F.3d 873, 880 (7th Cir.1999). Pursuant to Rule 7(c)(1), an information "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged."
FED.R.CRIM.P. 7(c)(1). To withstand a motion to dismiss, "an [information] must allege that the defendant performed acts which, if proven, constituted a violation of the law that he or she is charged with violating." United States v. Gimbel, 830 F.2d 621, 624 (7th Cir.1987). Koll argues that the instant information fails to meet the precepts of Rule 7(c)(1) because the facts alleged therein, even if proven, would not constitute a violation of Section 1341.
Mail fraud is a federal crime as established by Section 1341. The code section states, in relevant part, "[w]hoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, . . . for the purpose of executing such scheme . . ., places in any authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service," can be found guilty of mail fraud. 18 U.S.C. § 1341.
To prove mail fraud, the evidence must establish beyond a reasonable doubt that defendant knowingly and willfully: (1) participated in a scheme to defraud; (2) with intent to defraud; and (3) used the mail in furtherance of the scheme. United States v. Sloan, 492 F.3d 884, 890 (7th Cir. 2007). Further, the object of the alleged scheme to defraud must be a traditionally recognized property right. United States v. Stephens, 421 F.3d 503, 507 (7th Cir. 2005).
It is undisputed that the sanitation certificates do not constitute property for purposes of Section 1341. See Cleveland v. United States, 531 U.S. 12 (2000). Accordingly, the government's charging theory in this case is that Koll defrauded the State of Illinois of the exam books and other exam-related materials, not the sanitation certificates. However, paragraph 20 on page 11 of the information states that Koll "caused to be mailed or sent via commercial interstate carrier to IDPH completed but ungraded Answer Sheets, signed Attendance Lists, Class Enrollment Forms, and Exam Books, all of which contained a variety of false and fraudulent representations." According to the information, Koll returned the exam books and other exam-related materials to the state of Illinois. The information does not include any allegations that Koll kept the exam books or other exam-related ...