The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge
Pro se defendant, Roberto Beras, was originally convicted after
trial by jury of 82 counts of money laundering and structuring
transactions to evade reporting requirements in violation of
18 U.S.C. § 1956 and 31 U.S.C. § 5324. He now moves this Court,
pursuant to Rules 12(b)(3)(A) and 12(e) of the Federal Rules of
Criminal Procedure, for dismissal of the indictment because there
was an alleged defect in instituting the prosecution.
Specifically, he claims his Equal Protection rights were violated
due to the fact that he was a victim of selective prosecution.
For the reasons set forth below, Beras's motion is denied.
On December 4, 2000, Beras was convicted by a jury of one count
of conspiracy to commit money laundering, in violation of
18 U.S.C. § 1956(h); one count of conspiracy to evade currency
reporting requirements, in violation of 18 U.S.C. § 371; 33 counts of international money laundering, in violation of
18 U.S.C. § 2 and 1956(a)(2)(B); seven counts of money laundering,
in violation of 18 U.S.C. § 2 and 1956(a)(3); 33 counts of
evading currency reporting requirements by structuring financial
transactions, in violation of 18 U.S.C. § 2 and
31 U.S.C. § 5324(a)(3); and seven counts of evading currency reporting
requirements by causing a domestic financial institution to fail
to file a currency transaction report, in violation of
18 U.S.C. § 2 and 31 U.S.C. § 5324(a)(1).*fn1 On November 21, 2001, he
was sentenced to a total of 292 months imprisonment, 3 years
supervised release, a $4,100.00 special assessment, and was
additionally subject to an order of forfeiture in the amount of
$10 million. The Second Circuit affirmed Beras's conviction on December 20,
2002. However, on February 21, 2003, the Second Circuit granted
Beras's motion to recall the mandate to allow Beras to request an
en banc hearing out of time. The motion for an en banc
hearing is still pending, and the mandate has not yet reissued
from the Second Circuit. Beras filed the instant motion on
December 5, 2003.
The United States Supreme Court has stated: "A
selective-prosecution claim is not a defense on the merits to the
criminal charge itself, but an independent assertion that the
prosecutor has brought the charge for reasons forbidden by the
Constitution." United States v. Armstrong, 517 U.S. 456
(1996). The requisite elements for a selective-prosecution claim
derive from ordinary equal protection standards. The claimant
must show "the federal prosecutorial policy had a discriminatory
effect and that it was motivated by a discriminatory purpose."
Id. at 465 (internal quotations and citations omitted). The
Armstrong Court explained that to demonstrate discriminatory
effect, the defendant must "produce some evidence that similarly
situated defendants of other races could have been prosecuted,
but were not, and this requirement is consistent with our equal
protection case law." Id. at 469. The Second Circuit has also
stated that to prevail on a selective-prosecution claim the claimant must make at least a
prima facie showing that:
(1) while others similarly situated have not
generally been proceeded against because of conduct
of the type forming the basis of the charge against
the defendant, he has been singled out for
prosecution, and (2) that the government's
discriminatory selection of the defendant for
prosecution has been invidious or in bad faith,
i.e., based upon such impermissible considerations
as race, religion, or the desire to prevent his
exercise of constitutional rights.
United States v. Fares, 978 F.2d 52
, 59 (2d Cir. 1992)
(internal quotations and citations omitted).
A. Beras's Selective-Prosecution Claim Is Meritless.*fn2 Beras states that the New York State Banking Commission issued
licenses to 54 non-banking institutions. Beras's Motion to
Dismiss the Indictment Under Rule of Criminal Procedure 12(e) at
11. He claims that Dinero Express, Inc. and other money remitters
serving the Colombian and Dominican markets were "slated for
investigation," but Western Union, Money-Gram, Chase Manhattan
Bank, Citibank, Banco Popular, Apple Bank, and another 30
licensed money remitter companies situated in the same
neighborhood as Dinero Express, Inc. were not investigated. Id.
at 11-12. Beras contends these facts lead to the conclusion that
Dinero Express, Inc. and its employees were victims of selective
prosecution. Beras is incorrect.
Beras has made no showing that the prosecution had a
discriminatory effect. Beras has not presented any evidence that
similarly situated defendants of other races could have been
prosecuted for the same illegal activity that Dinero Express,
Inc. and Beras were charged with, namely laundering funds derived
from narcotics activities and other illegal activity, but were
not. Accordingly, Beras has not satisfied the discriminatory
effect prong of the selective-prosecution test.
Additionally, Beras does not demonstrate that the prosecution
was motivated by a discriminatory purpose. Beras does not offer any evidence indicating that the Government
prosecuted him because of race, religion, or the desire to
prevent his exercise of constitutional rights rather than because
it had probable cause to believe that Dinero Express, Inc., Beras
and other co-conspirators were engaged in money laundering.
For the reasons set forth above, Beras's motion for dismissal
of the indictment based on selective prosecution is denied.