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United States v. Fogerson

United States District Court, C.D. Illinois, Urbana Division

May 14, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL S. FOGERSON, Defendant.

OPINION

MICHAEL P. McCUSKEY, District Judge.

This case is before the court for ruling on three motions filed by Defendant, Michael S. Fogerson. This court has carefully reviewed the motions filed and the Government's responses. Following this careful and thorough review, this court rules as follows: (1) Defendant's Motion to Dismiss Count Three of the Indictment (#14) is DENIED; (2) Defendant's Motion for Relief from Improper Joinder (#15) is DENIED; and (3) Defendant's Motion for Early Return of Trial Subpoenas (#16) is GRANTED.

BACKGROUND

On September 11, 2013, a federal grand jury in the Central District ofillinois charged Defendant by Indictment (#1) with two counts of filing a false tax return in violation of26 U.S.C. § 7206(1) (Counts 1 and 2) and one count of illegally structuring in violation of 31 U.S.C. § 5324(a)(3) and (d)(2) (Count 3). Defendant is represented by retained counsel and has been released on bond.

PENDING MOTIONS

MOTION TO DISMISS COUNT THREE

On April 10, 2014, Defendant filed a Motion to Dismiss Count Three of the Indictment(# 14). Defendant argued that Count 3, the structuring count, is insufficient as it fails to allege a necessary element of the offense. According to Defendant, the missing element is that Defendant had knowledge that financial institutions are required to report currency transactions in amounts greater than $10, 000.

On May 12, 2014, the Government filed its Response to Defendant's Motion to Dismiss (#19). The Government argued that Count 3 sufficiently tracks the structuring statute and alleges knowledge as required by the Seventh Circuit. This court agrees with the Government.

Count 3 of the Indictment states:

1. The Grand Jury re-alleges and incorporates by reference Paragraphs 1 and 2 of Count One of this Indictment as though fully set fo1ih herein.
2. From at least April of 2009 to December of 2011, FOGERSON had signatory authority over multiple bank accounts at Regions Bank, which at all times material to this indictment has been a domestic financial institution whose deposits were insured by the Federal Deposit Insurance Corporation located in Champaign County and Macon County, in the Central District of Illinois, and elsewhere.
3. Section 5313(a) of Title 31 of the United States Code and the regulations prescribed thereunder, including Title 31, Code of Federal Regulations, Section I03.22(b), require that a domestic financial institution prepare a currency transaction report (CTR) for any currency transactions in excess of $10, 000.
4. Beginning on January 10, 2011, and continuing through at least December 16, 2011, on approximately 316 occasions, FOGERSON deposited or caused to be deposited from the referenced accounts at Regions Bank sums of United States currency under the $10, 000 threshold that would generate a CTR for the purpose of avoiding the filing of a CTR and the potential detection of his failure to report all of The Smoke Shack's gross receipts ...

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