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Legal Pleadings:

Motion to Dismiss – Mortgage Fraud

COMES NOW the Defendant, by and through his undersigned counsel, pursuant to Rule 12(b), Fed. R. Crim. P., and hereby respectfully files this Motion to Dismiss, due to (1) Pre-Indictment Delay and (2) the Absence of any Allegation or Proof of Knowing or Willful Joinder in Any Unlawful Plan, and in support hereof, states as follows:

A. Introduction

1. On December 14 – over 3 ½ years ago (and one year prior to the V. trial) – the client was interviewed by an FBI Special Agent (“SA”), at his home, regarding an alleged mortgage fraud investigation.
2. On January 5 – over 3 years ago (and one year prior to the V. trial) – the client received a grand jury subpoena requesting records, for which he promptly and timely provided the records.
3. On February 14, a nine count Indictment, alleging mail, wire and bank fraud, was filed against the client. Doc. 1. This indictment was returned 38 months after the V. indictment was returned, and 26 months after Mr. V. was convicted, at trial, on December 16.

B. Pre-Indictment Delay

4. The Indictment in this case asserts conduct that occurred between November and April. Doc. 1 at 3. Hence, the conduct dates back almost seven years, and the most recent conduct is alleged to have occurred some four years before the Indictment was returned.
5. During that large lapse of time, witnesses have clearly suffered memory loss, as graphically evidenced by the government’s case agent herself not even being able to recall whether she took notes of the interview of the Defendant. See United States’ Amendment to Response to Defendant’s Motion to Produce Handwritten Notes (Doc. 34), and Client’s Response to United States’ Amendment to Response to Defendant’s Motion to Produce Handwritten Notes (Doc. 35).
6. Moreover, the only witness the government has [had] to establish any direct conversations with the client with regard to their alleged conspiracy is now deceased, having passed away on March 17 – almost two years before the February 14 Indictment. Clearly, the government was aware that the only co-conspirator named in the client’s Indictment – D. W. V. – was deceased, and lost his life, during their prosecution of him.
7. Not only is Mr. V. the only government witness who has any direct evidence with regard to the allegations against the client, but, as evidenced by Exhibit A, he was an incredibly exculpatory witness – who would have exonerated the client.
8. Indeed, the government waited almost two years (that is, 23 months) after Mr. V. expired to bring this charge – knowing he was a crucial exculpatory witness. Ex. A at ¶16.
9. Worse yet, the government knew they could not properly prosecute the client without the testimony of Mr. V. (Ex. A at ¶16), and, rather than pursuing charges against the client while Mr. V. was alive, waited until two years after his death to file charges. In other words, the government knew they could not properly prosecute the client without the testimony of Mr. V., and, knowing that testimony to be exculpatory, waited two years after his death to charge the client, thereby seeking to pretermit admission of this exculpatory testimony that would exonerate the client of their theory of prosecution.
10. This pre-indictment delay is all the more significant in light of the unique nature of the government’s theory of prosecution of the client. As will be discussed further in Part C, infra, whereas the government asserted traditional badges of mortgage fraud against V., M. R., and others, in their prior prosecutions, in reality, as to the client, the only claim of his involvement with any alleged “fraud” is his involvement in allegedly assisting with buyer’s rebates and/or down payment assistance. As noted, the allegations regarding the client relate solely to him (1) showing up at the closing, as the seller, and (2) allegedly reimbursing V. for any funds advanced “in the amount required to be paid by the buyers or on the buyers’ behalf at the closing.” Part C, ¶19. The client had no involvement with any alleged false mortgage applications. It is on this narrow issue of down payment assistance the government well-knew Mr. V. was an exculpatory witness for the client.
11. Further facts demonstrating the pre-indictment delay, and its prejudice, are recited in Part C, infra, and re incorporated in this Part by reference.

C. No Knowing or Willful Joinder in Any Unlawful Plan

12. As noted in our Motion to Strike and/or Motion in Limine (“Motion to Strike”), filed contemporaneously herewith (Doc. 43), the Indictment in this case is a standard form indictment, repeatedly utilized by the government in mortgage fraud cases – and specifically used in the related cases of (1) United States v. M. R., (2) United States v. D. V., and (3) United States v. M. D.
13. As also noted in our Motion to Strike, the government has incorrectly left in the client’s Indictment badges of fraud that apply only to V., R. and D. – but absolutely do not apply to the client – since he had no involvement with them whatsoever.
14. In summary, all traditional badges of fraud (with regard to the falsifying of mortgage loan applications) involve conduct for which the client was not involved, had no knowledge, and was not part of any unlawful plan to which he could have possibly agreed.
15. The client’s Indictment alleges only one person with whom the client supposedly conspired – that is, D. W. V. Indictment (Doc. 1) at Count 1, ¶B, p. 3. However, the government has also provided the defense with a Bill of Particulars, a copy of which is attached as Exhibit B, listing three other individuals as coconspirators, that is, M. R., P. G. (R.’s sister who was never indicted), and M. D.
16. Importantly, the only person with whom the client had any direct conversations with regard to the alleged payment of down payment funds on behalf of buyers was Mr. V. On information and belief, he had no such conversations with Ms. R., Ms. G. and/or Ms. D. Thus, as the government has well known for many years, the only witness that could possibly implicate the client in any alleged conspiracy was Mr. V.
17. Indeed, the government had previously reported to Mr. V.’s counsel that they would not be able to charge the client without testimony from Mr. V. – thus acknowledging their knowledge of the essential nature of any proof regarding the client. Ex. A at ¶16.
18. Nevertheless, having acknowledged the importance of Mr. V. to any prosecution of the client, the government waited until two years after Mr. V. died to indict the client – fully knowing Mr. V. would exculpate the client.
19. Of course, just as they have named Mr. V. in the client’s Indictment, the government could readily have included the client in the V. Indictment, as the “coconspirator” they claim him to be.
20. A comparison of the client and V. indictments reflects not only their startling similarity, but, in the client’s indictment, their express reliance on the conduct of V. to establish true badges of fraud – badges (that is, an agreement to commit fraud), that do not apply to the client, and for which the client was not a conspiratorial member.
21. As with their standard form indictment, the government, in Count One, Part A, Introduction, lists the steps and parties in real estate transactions. Absent differences irrelevant to their alleged conspiracy, Part A (Introduction) of both indictments is essentially the same. The dates of the alleged conduct are virtually identical (with V.’s dates starting one month later and ending three months later). The fraud charges are identical (though a 1344 object was added to the client’s indictment).
22. A review of Part C (the Manner and Means) of the client’s indictment makes it manifest the government is relying principally on the conduct of V. (and mortgage broker M. R.), to define their alleged fraud conspiracy. Indeed, the only conduct alleged against the client is that he attended the closings (¶C.13, p. 6), and provided funds to V. for the cashier’s checks (¶C.19, p. 7). All of the conduct regarding assisting the buyers in obtaining financing, filling out the Form 1003 mortgage loan application “that set forth false financial information,” gift letters, submitting “false financial information” to lenders with these Forms 1003, obtaining cashier’s checks, and presenting them to the title agency – are alleged to be conduct of V. and mortgage broker R. See Part C, ¶¶5, 6, 7, 8, 11, 12, and 13.
23. As noted, the allegations regarding the client relate solely to him (1) showing up at the closing, as the seller, and (2) allegedly reimbursing V. for any funds advanced “in the amount required to be paid by the buyers or on the buyers’ behalf at the closing.” Part C, ¶19.
24. Indeed, in the Trial Brief of the United States, filed as Doc. 52 in the V. case, the government specifically identified the fact that Mr. V. “partnered with the client.” Id. at 3. Consistent with the allegations in the client’s indictment, the government factually identified V. as the person (along with M. R.) engaged in conduct they now improperly attribute to a conspiracy with the client. Having placed those factual allegations on the record, the government is bound by them. For the convenience of the Court in ascertaining the government’s factual position as to the conduct of V., we recite from their Trial Brief, at pp. 3 – 4, as follows:
The defendant [V.], who usually acted through a corporation he formed, partnered with the client, who usually acted through a corporation he formed, to buy and sell residential real estate in lower to middle income neighborhoods on the north side of Jacksonville. The client found financing for and bought the properties. The defendant [V.] coordinated either the building of a new home or the renovation of an existing home on the property, and this construction was financed through the client.

In addition to being in charge of the construction, the defendant [V.] also sought potential buyers, showed them homes that he had for sale, negotiated the terms of the Purchase and Sale Agreement, and, in most cases, signed the agreement as the seller. After the agreement was signed, the defendant [V.] helped the buyer obtain a mortgage loan. For most of the transactions alleged in the indictment, the defendant [V.] worked though [sic] a licensed mortgage broker, M. R., who owned and operated a mortgage brokerage. However, for a few of the later transactions, the defendant [V.] arranged the buyer’s financing himself through a loan officer at a bank, a federally insured financial institution. The closings for most of the transactions alleged in the indictment took place at a Jacksonville title company. After the transactions closed, the defendant and the client split the proceeds of the sale – net of acquisition, construction, and other expenses – according to their agreement with each other.

(emphasis added; footnotes omitted).
25. As can be seen from the government’s Trial Brief in the V. case, they have always asserted the client to be a partner with V. in what they fashion to be a conspiracy. More importantly, their factual description of that partnership is void of any of the traditional badges of fraud applying to the client. Rather, they all apply, if at all, to V. and R. Their factual description clearly, and correctly, asserts that V. helped the buyer obtain a mortgage loan and V. arranged the buyer’s financing himself – not the client – who had no such involvement, participation or knowledge.
26. Moreover, the government specifically addressed, at Part V of their Trial Brief, the status of the client (id. at 22-24), and specifically noted the representations of counsel that “the client has not committed any crime.”
27. As further evidence of this prejudicial delay, as the Court knows, having presided over both cases, M. R. testified in the V. trial. She was charged, by way of information (not indictment), on October 30 – three months prior to the FBI interview of the client, and some 39 months prior to the client’s indictment. The filing of a single count information clearly reflects she was cooperating with the government, as confirmed by her April 19 waiver of indictment and cooperation plea agreement – all of which was known by and acknowledged by the government. V. Trial Brief of the United States (Doc. 52), at 4, n. 4. She was identified as a “coconspirator” in the V. case – just as she has been in this case. As a cooperating witness, the government could readily have used her testimony to indict the client, along with V. (or even in a separate indictment). Instead, they waited 39 months to indict the client – after the demise of Mr. V.
28. As further evidence of this prejudicial delay, as the Court knows, having presided over the case of M. D. as well, Ms. D. – who is alleged to be a coconspirator with the client – had her indictment filed on June 15 (Doc. 1), and her cooperation plea agreement filed on March 19 (Doc. 35) – roughly two years and one year, respectfully, prior to the client’s indictment. Thus, the government waited an additional year, after her cooperation agreement, to file charges on the client. As we just observed in ¶27, n. 7 regarding the client, and for all the reasons set forth herein, and in our contemporaneously filed Motion to Strike, the government knows V. is the only witness to have any direct conversations with the client – and was the only witness who could have established the existence of an unlawful agreement to defraud lenders as to down payment assistance. However, Mr. V., in conjunction with Ms. R., believed the assistance by sellers with the buyer’s down payment was perfectly lawful, and could thus not have been part of an unlawful agreement to defraud lenders as to down payment assistance. In other words, adding Ms. D. as a named “coconspirator” is disingenuous, in that the government well knows she cannot establish the existence of any such conspiracy with the client – thus making their delay in indictment, long after the passing of Mr. V., all the more prejudicial.
29. Thus, although the government could readily have indicted the client at the same time as Mr. V. – as evidenced by their own pleadings and representations to the Court – they elected not to do so, but rather waited two years until after Mr. V. expired. Worse yet, as noted, the client’s indictment relies on the conduct of V. – to attempt to convict the client – conduct the government knew Mr. V. would disavow being any part of an alleged “conspiracy” with the client – yet they waited until his demise, to seek to use such irrelevant conduct to convict the client.
30. Regarding the testimony of Mr. V., a review of Exhibit A demonstrates how incredibly exculpatory Mr. V. would have been to the client.
31. Specifically, the following paragraphs are particularly relevant:
a. ¶10 – If there were any errors, omissions or improper and/or false entries on these mortgage loan applications (including Forms 1003), that would have occurred without the knowledge, participation, approval and/or acquiescence of the client. To the extent the government has asserted and/or still asserts the existence of an unlawful plan with regard to the preparation and/or submission of these mortgage loan applications, the client had no knowledge, participation, approval and/or acquiescence in such a plan, and never joined in any such plan.
b. ¶11 – Mr. V. believed that providing buyers’ rebates or down payment assistance to buyers was lawful. His belief in that regard was based on a number of factors, including his past experience in the construction and housing industry, and, most importantly, the fact that M. R., who was the mortgage broker with whom he mostly dealt, assured him it was lawful. Indeed, Mr. V.’s belief in that regard was reinforced by her sworn testimony, provided during his trial, in which she repeatedly testified she believed providing such down payment assistance was lawful.
c. ¶12 – As the mortgage broker responsible for implementing loan requirements of the lender, Mr. V. absolutely believed he could rely on Ms. R.’s understanding and representation that such buyers’ rebates or down payment assistance was lawful.
d. ¶13 – Because of his belief in the lawfulness of buyers’ rebates or down payment assistance, as reinforced by the representations made to him by mortgage broker R., Mr. V. could never have believed that any assistance with regard to reimbursement of down payments, by the client, could have been unlawful. Thus, to the extent the government wishes to assert that the client participated in an unlawful plan with Mr. V. to provide down payment assistance to buyers, Mr. V. would testify it was impossible for them to have an “unlawful plan” with regard to any assistance with down payments for buyers, because he and M. R. believed it to be lawful.
32. As noted above, to the best of Mr. V.’s understanding, he was the only person with whom the client would have had any direct conversations with regard to down payments to buyers. Ex. A at ¶14.
33. Similarly, M. R., as the mortgage broker, and the gatekeeper for the lenders, testified, under oath, in the V. trial, she thought providing assistance to buyers, by helping them and/or providing them the down payment, was perfectly lawful. A copy of her transcript is attached hereto as Exhibit C. Extracts of her testimony in that regard including the following quotes:
a. Q: Yesterday you said at the close of your testimony that you really didn’t think you were doing anything wrong. Did you?
A: Not at the time I didn’t.
Q: Okay. You weren’t purposely trying to disobey the law, were you?
A: No sir.
Q: And you didn’t think you were acting with bad purpose to disobey or disregard the law, did you?
A: No.
Q: Okay. And this was just the way business was being done, correct?
A: Yes
Q: And it was – you thought you were actually helping people who normally couldn’t buy a house take advantage of the market and take advantage of some of these programs that existed to get them in a home, correct?
A: Yes.
Doc. 86, pp. 10-11.
b. Q: … you really didn’t think you had been doing anything wrong and there wasn’t anything in your mind telling you, you had done something wrong until you ran into the FBI; is that right?
A: Yes.
Id. at 18.
c. Q: Okay. You didn’t think it made any difference who provided the gift, as long as it really was a gift and didn’t have to be repaid, right?
A: Yes.
Q: Is that correct?
A: Correct.
Q: That’s why you didn’t even think you were committing a crime, right?
A. Yes.
Q: Or doing anything wrong, right?
A: Yes.
Id. at 22.
34. Moreover, as noted above, Ms. R. never had any direct discussions with the client with regard this down payment assistance issue – let alone having any discussions with him with regard to what she and/or V. may have done with regard to mortgage applications – thus further verifying that Mr. V. was the only person who could possibly provide any testimony that would implicate the client in any knowing and willful plan to do that which was unlawful.
35. With regard to each of these allegations in ¶C.6, C.7, and C.8, the government asserts it was Mr. “V. and other conspirators” who did so. Nowhere did they allege – nor could they – that the client had any involvement or complicity in that conduct. He did not. The client had nothing to do with these applications, and was not aware of any conduct involving them. He read about it for the first time in his Indictment.
36. In anticipation of filing this motion, counsel conferred with counsel for the government, and made the observations noted herein to him. Government counsel advised the government was unwilling to delete these paragraphs, based on their belief they needed to show this conduct as “part of the conspiracy.”
37. Respectfully, this conduct is not part of the alleged client’s conspiracy. Rather, this was solely the conduct of V., done in conjunction with mortgage broker M. R. (and/or her employees). They were the persons qualifying the prospective buyers, communicating with the lenders, and transmitting what the government alleges to be false information.
38. As to the client, the government alleges that the client assisted buyers with the down payment, at the time of closing, and he did so, not directly, but indirectly, by providing funds to V., who purchased down payment cashier’s checks for the buyers, at the time of the closing, and V. took those checks to the title agency and presented them “to the title agency.” Manner and Means, ¶C.11 and C.12, Indictment at 6.
39. The Court, from its previous proceedings in these cases, as well as from the government’s allegations, is aware the government alleged that M. R., D. V., and M. D. (who worked for R. and herself was a mortgage broker), were engaged in preparing false and fraudulent mortgage loan applications (Forms 1003) to submit to their lenders. As the Court is also aware, the mortgage brokers act as agents for and on behalf of the mortgage lenders, in processing the loan applications. The client had absolutely no involvement whatsoever with the preparation of loan applications, and/or the qualifying of the borrowers with the lender.
40. Specifically, the Information of Russell, and indictments of V. and D., charge this type of conspiratorial conduct, that is, the falsifying of loan application by mortgage brokers. The components of their respective information and/or indictments that so allege are as follows:
a. M. R. – Manner and Means, ¶C.2-4;
b. D. V. – Manner and Means, ¶C.2-4 (which are identical to the allegations in the R. Indictment); and
c. M. D. – Manner and Means, ¶C.2-3.
41. Both R. and D. entered guilty pleas. In the R. plea agreement, the Factual Basis specifically stated that she engaged in Form 1003 fraud by falsifying applications. Moreover, nowhere in the Factual Basis does the government reference to the client (nor could they), and the property identified as part of the fraud has no relation to any of the properties alleged with regard to the client.
42. The Plea Agreement in M. D. likewise specifies, in her Factual Basis, Form 1003 mortgage loan application fraud (p. 3), including falsifying account balances for the borrowers (p. 6). Moreover, nowhere in the Factual Basis does the government reference to the client (nor could they), and a review of the nine properties to which Ms. D. pled reveals that none of them involve the properties charged with regard to the client.
43. Thus, it cannot be gainsaid that the conspiracy involving R., D. and/or V., with regard to falsification of mortgage loan applications, was not a conspiracy in which the client was involved.
44. The 11th Cir. Pattern Jury Instruction on conspiracy (Offense Instruction 13.1), requires that a conspirator must be a person who “knew the unlawful purpose of the plan and willfully joined it.” Offense Instruction 13.1, Element 2.
45. Here, clearly the client had absolutely no knowledge of and/or involvement in that separate conspiracy, in which R., V. and others are alleged to have engaged. Thus, it is improper to seek to convict the client – with the objects of a conspiracy in which (1) he did not join, that were objects (2) not agreed to by him, and were indeed (3) unknown to him, and were only part of a (4) separate conspiracy between R. and V.
46. This effort by the government to put in this evidence to “prove the conspiracy” misses the mark. Yes – they do have to prove the conspiracy in which the client was a member – but not some separate conspiracy engaged in by persons completely without his knowledge, consent or support.
47. Inclusion of this separate conspiratorial action is particularly prejudicial and harmful to the client, for obvious reasons. Everyone knows that falsifying a loan application to the lender, and misstating, among other things, the financial information for the borrower, in order to get approval from the lender for the loan, is a commonly accepted badge of fraud. Conversely, merely helping a borrower with the down payment is not inherently fraudulently at all. Indeed, it is a beneficial thing for borrowers to be able to achieve the American dream of home ownership. On its face, there is nothing fraudulent about it at all. Indeed, it was entirely consistent with and analogous to perfectly lawful mortgage loan programs. In this case – the only evidence for which the government seeks to convict the client is that he assisted with down payments for certain buyers – an inherently lawful practice.
48. Thus, allowing introduction of well-recognized badges of fraud with what may be viewed by many others (including the government’s own star witness) as badges of innocence would create huge prejudice to the client. Rule 403, FRE.
49. In summary, the government cannot properly assert the existence of a conspiratorial “agreement” – as to the down payment assistance – when the only two persons with whom the client dealt believed what they were doing was lawful. He could not possibly have any willful intent to defraud when there was no intent by the two persons who the government characterizes as his primary coconspirators. Nor could any of the three harbor the requisite intent and knowledge of an “unlawful plan” – since they all thought the plan was lawful. Nor could their exist the requisite unlawful agreement between two or more persons – since the only two with whom he dealt believed their conduct to be lawful.

MEMORANDUM OF LAW

A. Rule 12(b) Motions to Dismiss an Indictment – Generally

The purpose of a Rule 12(b) motion to dismiss an indictment is to conserve judicial resources by facilitating the disposition of cases without trial. United States v. Smith, 866 F.2d 1092, 1097 (9th Cir. 1989). In reviewing a motion to dismiss a criminal indictment pursuant to Fed.R.Crim.P. 12(b), the Court must determine whether the motion is capable of determination without trial of the general issue. United States v. Adkinson, 135 F.3d 1363, 1369 n.11 (11th Cir. 1998); Fed.R.Crim.P. 12(e).
Ordinarily, the Court may not look beyond the facts as alleged in the indictment in determining whether the charge is legally supportable. United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992). However, if there is an “infirmity of law in the prosecution,” dismissal is appropriate. United States v. Belcher, 927 F.2d 1182, 1185 (11th Cir. 1991); United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987); United States v. Korn, 557 F.2d 1089, 1090 (5th Cir. 1977). Moreover, where the parties do not disagree on the operative facts, or stipulate to them, a motion to dismiss the indictment may be capable of determination without a trial of the general issue. United States v. James-Robinson, 515 F.Supp. 1340, 1342 (S.D.Fla. 1981).
In reaching such determinations, courts will look beyond the face of the charging document itself. Moreover, courts may rely on extrinsic evidence to grant such motions. Indeed, the court may conduct an evidentiary hearing on the motion.
The Tenth Circuit has upheld a pretrial dismissal under Rule 12(b) based on the insufficiency of the evidence where the underlying facts were essentially undisputed. See Brown, 925 F.2d at 1304.
Counsel reasonably assumes the government does not dispute the operative facts that form the basis of this motion. Indeed, as noted above, they are on record, repeatedly, agreeing with these facts. Thus, because the dispute involves a legal rather than factual analysis, the issues before the Court are “capable of determination without the trial of the general issues.” United States v. Adkinson, 135 F.3d at 1369 n.11.

B. Pre-Indictment Delay

A number of cases establish dismissal as the appropriate remedy for pre-indictment delay, where an intentional delay and/or inaction can be demonstrated, and actual prejudice resulted. A sampling of that case law follows.
1. United States v. Gouveia, 467 U.S. 180, 192 (1984) (claim that preindictment delay violated due process valid if defendant proves government intentionally delayed for tactical advantage and actual prejudice resulted).
2. United States v. Marion, 404 U.S. 307, 324-25 (1971) (no due process violation because defendant failed to prove government intentionally created delay for tactical advantage or to harass defendant).
3. United States v. Marion, 404 U.S. 307, 324 (1971) (to succeed on claim of preindictment delay, petitioner must show actual prejudice and that delay was due to intentional government inaction).
4. United States v. Mmahat, 106 F.3d 90, 94 (5th Cir. 1997) (claim that death of witness during 9-year delay prejudiced defendant insufficient because witness’s testimony preserved in transcripts of prior civil action for same conduct), overruled in part on other grounds by U.S. v. Estate of Parson, 367 F.3d 409, 418 (5th Cir. 2004).
5. United States v. Brown, 498 F.3d 523, 528 (6th Cir. 2007) (claim that delay caused actual prejudice insufficient because defendant unable to show that lost testimony would have significantly aided defense).
6. United States v. Henderson, 337 F.3d 914, 920 (7th Cir. 2003) (claim that 5-year delay caused actual prejudice insufficient because defendant did not show that deceased witness’s testimony would have aided him).
7. United States v. Henderson, 337 F.3d 914, 920 (7th Cir. 2003) (denial of motion to dismiss proper despite preindictment delay of 3 years because no showing of actual prejudice and unclear how witnesses would have helped defense).
8. United States v. Young, 906 F.2d 615, 620 (11th Cir. 1990) (denial of motion to dismiss proper despite preindictment delay of almost 3 years because no showing of actual prejudice).
Here, it cannot be gainsaid that the lost testimony of Mr. V. is incredibly harmful to the client – and thus the “actual prejudice” is manifest – unlike the circumstances in the cases cited above.
Moreover, as noted, this loss occurred long after the government was well-aware of the importance of that testimony to the client, and that it was the antithesis of their prosecution theory. As also noted, the government had earlier acknowledged they could not prosecute the client without the testimony of Mr. V. However, it is clear their strategy is to take advantage of the death of Mr. V., in their belated zeal to prosecute the client.

C. No Knowing or Willful Joinder in Any Unlawful Plan

As noted above, as to the client, the only “scheme” of which he could possibly have been a member was the agreement to provide down payment assistance to buyers. It is incumbent on the government to establish he knowingly and willfully joined a scheme to engage in an unlawful plan to do so. 11th Cir. Pattern Jury Instruction on conspiracy (Offense Instruction 13.1).
As with any conspiracy, or fraud scheme, there always exists a mens rea element. It is not sufficient for the government to simply prove that down payment assistance was provided. They must prove it was provided as part of a knowing and willful scheme and conspiracy to participate in an unlawful plan to do so.
To prove that, the government must rely, as they do, on the alleged coconspirators of the client. Of those, only one (V.) had any direct conversations with the client, and the other key alleged coconspirator was M. R. Both believed the conduct of sellers assisting with down payment assistance was lawful. For that reason, and based on the authorities cited in paragraph 49, supra, no conspiracy and no scheme to defraud can exist. However, and regretfully, the government had one alleged coconspirator plead to that which she did not even believe was a crime and the stress of prosecution for the other led to the loss of his life.
In any event, the record is clear, and undisputed, that no evidence exists to establish that the client had any mens rea – let alone with the only two alleged coconspirators with whom he is alleged to have conspired.
Hence, the government’s proof, as already established by the record before this Court, must fail, and this motion is capable of determination without trial of the general issue, thereby creating a dramatic savings in judicial economy, and accomplishing a just end to a lengthy and traumatic road for the client and his family.
WHEREFORE, Defendant respectfully requests the Court to grant the relief requested herein.