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U.S. v. BERAS

United States District Court, S.D. New York


June 23, 2004.

UNITED STATES OF AMERICA,
v.
ROBERTO BERAS, Defendant.

The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge

OPINION AND ORDER

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.

I. BACKGROUND

  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.

  II. DISCUSSION

  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, 463 (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.

  III. CONCLUSION

  For the reasons set forth above, Beras's motion for dismissal of the indictment based on selective prosecution is denied.

  SO ORDERED.


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