2:22-cr-00169
E.D. Wis.Aug 7, 2023Background
- On Aug. 23, 2022 a grand jury returned an 18‑count indictment charging Aziz Hassan Bey, Letez Osiris Bey, Minister Zakar Ali, and Divine‑Seven El; Count One alleges conspiracy to commit wire fraud under 18 U.S.C. § 1349.
- Court set a pretrial motion deadline of May 12, 2023; government responded to defendants’ April motions on June 2, 2023; defendants filed no replies.
- Magistrate judge issued a Report & Recommendation on July 18, 2023 recommending denial of earlier motions to dismiss; defendants did not file objections but instead moved (July 28) to withdraw prior motions and sought leave to file new motions raising a different issue.
- Defendants (Ali and Aziz Bey) sought leave to file a second/successive Rule 12(b)(3) motion, invoking “good cause” based on preventing a purported constructive amendment of the indictment; government objected.
- Magistrate judge denied leave: defendants failed to show good cause for the untimely filing, and the new substantive argument lacked merit because the indictment tracks the statute and sufficiently alleges agreement and knowing participation; a jury instruction does not constructively amend the indictment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an untimely Rule 12(b)(3) motion may be considered (good‑cause standard) | No — defendants missed court deadline and offered no justification; no new discovery, counsel, or superseding indictment | Yes — movants claim "good cause" because the issue must be resolved to prevent constructive amendment of the indictment | Denied — no good cause shown; late filing excused by neither pro se status nor dissatisfaction with R&R |
| Whether Count One omits essential elements (agreement and knowing participation) or is constructively amended by a jury instruction | Indictment tracks statutory language and alleges defendants "knowingly conspired" — sufficient pleading | Count One omits the agreement/knowledge elements; a future jury instruction would effectively constructively amend the charge | Denied — indictment is sufficient; jury instructions do not amend the indictment; no need for detailed definitional language in the indictment |
Key Cases Cited
- United States v. Adkinson, 916 F.3d 605 (7th Cir. 2019) (untimely Rule 12(b)(3) motion requires a showing of good cause)
- United States v. Suggs, [citation="703 F. App'x 425"] (7th Cir. 2017) (district court reasonably declines to review untimely pretrial motion)
- United States v. Salahuddin, 509 F.3d 858 (7th Cir. 2007) (‘‘unique circumstances’’ standard for considering late filings discussed)
- United States v. White, 610 F.3d 956 (7th Cir. 2010) (indictment is sufficient if it tracks the statutory language)
- United States v. Garten, 777 F.3d 392 (7th Cir. 2015) (elements required to prove a conspiracy include knowledge of the conspiracy’s nature and intent to participate)