The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
Defendant Ronald H. Fanta, a/k/a "Herbert Ganta," moves under
Federal Rule of Criminal Procedure ("F.R.Cr.P.") 12 to dismiss
the indictment against him. The Government opposes the motion.
On or about May 21, 2004, the defendant was charged in a
criminal complaint ("the Complaint") with making false statements
in violation of Title 18, United States Code, Section 1001(a)(2).
The defendant was charged with filing attorney notices of
appearance with the Department of Labor ("DOL") and the
Immigration and Naturalization Service ("INS") (now the Bureau of
Immigration and Customs Enforcement ("BICE")) that included false
statements concerning his status as an attorney. The notices of
appearance forms asked Fanta whether he was "a member in good
standing" of the bar of the United States Supreme Court or of the
highest court of a "State, territory, insular possession, or
District of Columbia" and provided a space for Fanta to identify
the bar of which he was a member in good standing. Fanta
allegedly completed hundreds of these forms stating that he was a
member of the bar of "the U.S. Board of Immigration Appeals." There is no "bar" affiliated with the United States Board of
Immigration Appeals ("USBIA") and defendant has never appeared
before it. (Compl. ¶ 5). The forms also asked the defendant to
certify that he was "not under a court order or administrative
agency order suspending, enjoining, restraining, disbarring, or
otherwise restricting [him] in practicing law." The Complaint
also alleges Fanta filed hundred of these notices after he was
barred from the practice of law in the State of New York in 1998.
He allegedly signed many of the notices under the alias "Herbert
Ganta." Fanta had been disbarred in New York on June 4, 1998 and
was not reinstated.
On or about November 24, 2004, a Southern District of New York
Grand Jury returned a two-count indictment ("Indictment") against
the defendant charging him with making false statements in
violation of Title 18, United States Code, Section 1001(a)(2).
The alleged misstatements were the same as those alleged in the
The defense urges dismissal of the indictment on the ground
that some of the statements alleged to be false in the Indictment
were not, in fact, false. The essential argument is that
defendant's actions do not constitute crimes by raising a dispute
about facts to be proven at trial. This is not the stuff of which
F.R.Cr.P. 12 dismissals are made.
F.R.Cr.P. 7(c) sets forth the "notice" pleading standards that
apply to indictments. Rule 7(c) (1) states that an indictment
contain a "plain, concise, and definite written statement of the
essential facts constituting the offense charged. . . ." "[A]n
indictment is sufficient if it, first, contains the elements of
the offense charged and fairly informs a defendant of the charge
against which he must defend, and, second, enables him to plead
an acquittal or conviction in bar of future prosecutions for the
same offense." United States v. Alfonso, 143 F.3d 772, 776 (2d
Cir. 1998) (quoting Hamling v. United States, 418 U.S. 87, 117
(1974)). Put in other words, the Second Circuit has held that an
indictment must "charge a crime with sufficient precision to
inform the defendant of the charges he must meet and with enough
detail that he may plead double jeopardy in a future prosecution based on the
same set of events." United States v. Stavroulakis,
952 F.2d 686, 693 (2d Cir. 1992). "[A]n indictment need do little more
than to track the language of the statute charged and state the
time and place (in approximate terms) of the alleged crime."
Id. (internal quotation marks omitted); accord United States
v. LaSpina, 299 F.3d 165, 177 (2d Cir. 2002); United States v.
Eichman, 756 F. Supp. 143, 145-46 (S.D.N.Y. 1991).
Defendant does not maintain that the Indictment fails to meet
these basic pleading requirements. The Indictment here accurately
sets forth the elements of the offenses charged and the
approximate time and place that they occurred. Defendant has been
provided enough detail to allow him to prepare a defense and to
invoke the protection of the Double Jeopardy Clause of the Fifth
Amendment against any subsequent prosecution for the same
offenses. The Indictment tracks the statute and is valid on its
A pretrial motion to dismiss an indictment under F.R.Cr.P. 12
is not a permissible vehicle for addressing the sufficiency of
the Government's evidence. See United States v. Knox, 396 U.S. 77, 83 n. 7,
90 S.Ct. 363, 24 L.Ed.2d 275 (1969).
Cases upon which the defendant principally relies are not to
the contrary. Both United States v. Bronston, 409 U.S. 352
(1973) and United States v. Mandanici, 729 F.2d 914 (2d Cir.
1984), were decisions reviewing post-conviction applications
for dismissal. United States v. Good, 326 F.3d 589 (4th Cir.
2003) is not the law of this Circuit.
Even if Good was the law and defendant's motion was proper,
there appears to be insufficient factual basis for dismissal of
the indictment. Defendant argues that his entries on the notices
of appearance that he was a member in good standing of the bar of
the United States Board of Immigration Appeals, were literally
true and, therefore, he cannot be convicted of violating Section
1001(a) (2). The Government maintains that this statement was, in
The Government argues that defendant's assertion that he was
truly a member of the bar of the United States Board of
Immigration Appeals takes into account only half of the
misstatements the defendant is charged in the Indictment to have made. He allegedly also
represented that he was "not under a court or administrative
order suspending, enjoining, restraining, disbarring, or
otherwise restricting [him] in the practice of law." That
statement is false because of his New York disbarment and there
is no effort in this motion to explain it away the Government
The defense position also ignores that in the notices of
appearance, he represented that he was "not under a court or
administrative agency order suspending, enjoining, restraining,
disbarring, or otherwise restricting [him] in the practice of
law." The defendant maintains that he was not barred from
practicing law before the Board of Immigration Appeals at the
time he filed the notices of appearance forms but, because the
forms inquire about orders restricting his practice of law issued
by other authorities, his argument fails.
The Government argues with some persuasiveness that he knew he
was making misstatements, and that he knew he had no business
practicing law before the DOL and INS/BICE, because he signed many of ...