The opinion of the court was delivered by: Hon. George W. Lindberg
MEMORANDUM OPINION AND ORDER
Before the Court is Maryanne Koll's ("Koll" or "defendant") motion to dismiss the second superseding information ("information"), pursuant to Federal Rules of Criminal Procedure ("Rules") 7(c)(1) and 12(b)(2). For the reasons set forth more fully below, the motion to dismiss is granted.
This case has a slightly complicated history. On June 5, 2007, agents for the Federal Bureau of Investigation arrested Koll based on a complaint that alleged a violation of the mail fraud statute, 18 U.S.C. § 1341. Almost six month later, the government filed an information charging Koll and a co-defendant, Robert Henry, with mail fraud in violation of 18 U.S.C. § 1341. On December 4, 2007, the government filed a superseding information, again charging Koll and her co-defendant with a single count of mail fraud.
In the superseding information, the government alleged that between January 2003 and May 2007, Koll and her co-defendant 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. Koll was 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. In exchange for a fee of $300 to $400, Koll allegedly arranged to provide sanitation certificates to individuals without requiring those individuals to take, or pass the IDPH required examination. The government's charging theory was that Koll defrauded the State of Illinois of the exam books and other exam-related materials.
Koll moved to dismiss the superseding information, arguing that the facts therein contradicted the government's charging theory. Specifically, the superseding information included explicit allegations that Koll returned the exam books and other exam-related documents to the State of Illinois. On February 21, 2008, this Court granted the motion to dismiss, finding that the government failed to allege a violation of Section 1341 because it did not plead the requisite deprivation of a property right.
Between February and August of 2008, the government asked for repeated continuances in the case. After more than six months of inaction on the part of the government, on August 27, 2008, the Court ordered the government to either abandon the case or file a second superseding indictment or information by October 1, 2008. After a morning status hearing before the Court, the government filed a second superseding information in the afternoon of October 1, 2008. The second superseding information named Koll as the sole defendant and charged her with five counts of bribery in violation of 18 U.S.C. § 666(a)(1)(B) ("Section 666").
The relevant facts in the second superseding information are similar to the facts in the first superseding information. Count I of the second superseding information charges Koll with being an agent of the IDPH and allegedly accepting a $700 bribe from Individual A to be influenced and rewarded in connection with "any thing of value of $5000 or more, namely, the passage of two individuals on Sanitation Certificate examinations causing the issuance of State of Illinois Food Service Sanitation Manager Certificates to these two individuals." Count II details that Koll allegedly accepted a $385 bribe from Individual B intending to be influenced and rewarded in connection with "any thing of value of $5000 or more, namely, the passage of Individual C on a Sanitation Certificate examination causing the issuance of a State of Illinois Food Service Sanitation Manager Certificates [sic] to Individual C." Count III charges Koll with accepting $600 from Individual D to secure the passage of Individuals E and F on the Sanitation Certificate examination and the issuance of State of Illinois Food Service Sanitation Manager Certificates to them. Count IV charges Koll with accepting $275 from Individual G to secure Individual G's passage on the Sanitation Certificate examination. Count IV does not include an allegation that Koll secured the issuance of a State of Illinois Food Service Sanitation Manager Certificate for Individual G. Similar to Count IV, Count V charges Koll with accepting $275 from Individual H to secure Individual H's passage on the Sanitation Certificate examination and does not reference the issuance of a Sanitation Manager Certificate.
Koll moves to dismiss the information, arguing that it fails to state a charge. Koll argues that the information does not adequately allege that (1) she was an agent of the State of Illinois when she allegedly solicited bribes from those seeking to pass the Sanitation Certificate examination and obtain sanitation certificates, or (2) that the property at issue had a value of $5,000 or more.
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 666.
First, the Court turns to Koll's argument that she was not an agent of the IDPH or the State of Illinois for purposes of Section 666. As stated above, at this stage in the proceedings, the Court takes the facts in the second superseding information as true and construes all facts in the light most favorable to the government. In each of the five counts in the second superseding information, the government alleges that Koll was an agent of the IDPH, which is an agency of the State of Illinois. As the case law Koll cited in her written submissions demonstrates, whether Koll was in fact an agent of the IDPH for purposes of Section 666 is a factual question that ...