The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
In a fifteen-count Superseding Indictment, the Government charges Defendant Marlene M. Kernan with one count of insurance fraud in violation of 18 U.S.C. § 1033 (Count 13).*fn1
Currently before the Court is Defendant Marlene Kernan's motion to dismiss Count 13 of the Superseding Indictment on the grounds that the Superceding Indictment is void of any allegations and assertions of overt acts on the part of Mrs. Kernan and more particularly that she "permitted" the participation of one Robert J.
"Skip" Anderson . . . in the business of insurance of the Monument Agency, Inc.; that 18 U.S.C. § 1033(e)(1)(B) is unconstitutionally vague as applied to Mrs. Kernan; and that, therefore, the Superceding Indictment is insufficient on its face as it fails to set forth, prima facie, a violation by Mrs. Kernan of 18 U.S.C. § 1033(e)(1)(B).
See Unsworn Affidavit of John A. Maya dated February 9, 2009, at ¶ 3.
Defendant Marlene Kernan is the President of Monument Agency, Inc. ("Monument"), which serves as an agency on behalf of Oriska Insurance Company ("Oriska"). Defendant James Kernan, Defendant Marlene Kernan's husband, is a licensed attorney and the owner and President of Oriska. Defendant Robert J. "Skip" Anderson, a three-time convicted felon, pled guilty to conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 371 and to being a convicted felon engaged in the business of insurance in violation of 18 U.S.C. § 1033(e)(1)(A).
The Government alleges that, in approximately April 2002, Defendant Anderson relocated from his home in California to Oriskany, New York, where he went to work for Oriska. Defendant James Kernan gave him an office at Oriska and introduced him to the employees as Director of Operations. At this time, both Defendant James Kernan and Defendant Marlene Kernan knew about Defendant Anderson's felony convictions. Defendant Anderson worked for both Oriska and Monument and reported to both Defendant James Kernan and Defendant Marlene Kernan. In exchange for Defendant Anderson's services, Defendant James Kernan and Defendant Marlene Kernan richly compensated him; however, they paid most of the compensation to Defendant Anderson's wife, Theresa Heinrich, who provided no goods or services to either Oriska or Monument but rather served as a conduit to receive payments intended for her husband.
A. Count 13 of the Superseding Indictment
Count 13 of the Superseding Indictment charges that From on or about April 22, 2002, through on or about July 6, 2005, in the Northern District of New York, the defendant, MARLENE M. KERNAN who was engaged in the business of insurance as President of Monument Agency, Inc., whose activities affected interstate commerce, did knowingly and willfully permit the defendant, Robert J. Anderson, an individual who had been previously convicted of a criminal felony involving dishonesty and breach of trust, namely
(a) submitting a false financial statement for the purpose of influencing the action of the Napa Valley Bank concerning a loan and bankruptcy fraud, in violation of Title 18, United States Code, Section 1014 and 152, in United States District Court for the Northern District of California on or about December 9, 1988;
(b) grand theft, in violation of Section 484/487(1) of the California Penal Code, in the Superior Court of California, County of ...