11 May Analysis Requirements: Based on your readings, analyze the court cases, include the following in your discussion: Identify, discuss, and provide s
Based on your readings, analyze the court cases, include the following in your discussion:
Identify, discuss, and provide specific examples of the legal aspects of the fraud committed in each case.
Identify, discuss, and provide specific examples of any legal aspects that a fraud examiner must consider in each case with respect to the evidence.
Provide specific examples of what these 2 cases have in common and what is unique to the way each case was settled depending on whether it was tried in civil or criminal court.
FEDERAL CASES – CIVIL CASE
173 F.Supp.3d 44
United States District Court, S.D. New York.
Gigi JORDAN, Petitioner,
DEPARTMENT OF JUSTICE, Federal Bureau of Investigation, United States Department of Health and Human Services, and the Attorney General of the United States, Respondents.
No. 15-CV-1028 (RA)
Signed March 29, 2016
Background: Plaintiff brought action under the Crime Victims' Rights Act (VARA) against the Department of Justice (DOJ), the United States Attorney General, and other government officials, alleging that she was a victim of federal crimes perpetrated by her former husband. Defendants moved to dismiss.
Holdings: The District Court, Ronnie Abrams , J., held that:
1 plaintiff was allegedly a victim of purported financial fraud crimes under the CVRA;
2 government fulfilled all of its CVRA obligations to plaintiff;
3 plaintiff was not entitled to documents or other information about government's investigation under the CVRA; and
4 plaintiff did not qualify as alleged victim of purported healthcare fraud crimes, under the CVRA.
Attorneys and Law Firms
*46 Allan Laurence Brenner, Sole Practitioner, Long Beach, NY, for Petitioner.
OPINION & ORDER
RONNIE ABRAMS, United States District Judge.
Petitioner Gigi Jordan brings this Petition to enforce her rights under the Crime Victims' Rights Act (“CVRA”), 18 U.S.C. § 3771, alleging that she is a victim of federal crimes perpetrated by her former husband. Respondents the Department of Justice (“DOJ”), the Federal Bureau of Investigation (“FBI”), the United States Department of Health and Human Services (“HHS”), and the Attorney General of the United States (collectively, the “Government”) move to dismiss the Petition, arguing that Jordan is not entitled to any remedies under the CVRA. Because the Government has already provided Jordan all the CVRA rights to which she is presently entitled, the motion is granted.
Jordan asserts that, between 1991 and the present, she “was the victim of a massive, far reaching scheme of fraud, forgery, conversion, threats and intimidation engineered by Raymond A. Mirra, Jr.,” her former husband. Pet. ¶ 1. She alleges that “Mirra, and others at his direction, used over 190 documents forged with Jordan's signature in the commission of multiple acts of bank, mail and wire fraud.” Id. ¶ 6 (emphasis in original). The details of Mirra's alleged schemes are set forth both in the Petition and a civil complaint currently pending in the District of Delaware, which is “incorporated [in the Petition] by reference.” *47 Id. ¶ 7 & Ex. A (Compl., The Hawk Mountain LLC v. Raymond A Mirra, Jr., No. 13–CV–2083 (SLR), 2014 WL 3533911 (D.Del. Jul. 9, 2014) (“Ex. A”)). These filings allege that Mirra, among other things, opened fraudulent brokerage accounts, initiated illegal wire transfers, stole real property, and unlawfully profited from the sale of Jordan's company to a corporation Mirra runs. See, e.g., Ex. A ¶¶ 59, 69, 225, 317. She further alleges that between 2008 and 2010, Mirra “engaged in a series of acts of harassment, intimidation and coercion of Jordan, as well as direct threats to her life … designed to prevent Jordan from discovering the conversion of her assets, asserting her rights to the assets, and to deter her from reporting Mirra's financial wrongdoing to law enforcement authorities.” Pet. ¶ 10.
In addition to those acts “directly victimiz[ing her],” id. at 3, Jordan alleges that “beginning in or about 1994,” Mirra “embarked upon a multi-tiered plan” to perpetuate several healthcare frauds, id. ¶ 11, including “black-marketing HIV/AIDS drugs, drug diversion, money laundering and Medicaid fraud schemes,” id. ¶ 85. She asserts that “the monies expended, invested and otherwise utilized by Mirra and the enterprise, in the criminal transactions involving [the healthcare companies] were in whole or in significant part the proceeds of the fraud and conversion of Jordan's rightful assets,” id. ¶ 35, and that the illegal proceeds were laundered through new accounts opened in her name without her knowledge, id. ¶ 9.
Jordan alleges that in 2011 “an attorney acting on Jordan's behalf, arranged to meet with [an Assistant United States Attorney ("AUSA") from the U.S. Attorney's Office for the Southern District of New York ("SDNY") ] … to discuss the vast financial fraud conducted against Jordan by Mirra.” Id. ¶ 36. Jordan claims that prior to the meeting, she discussed these frauds over the phone with the FBI, “provid[ing] overwhelming information to support that Mirra was operating a complex criminal enterprise.” Id. ¶ 38. She also asserts that she “sent extensive documentation to [the AUSA] that detailed the enterprise's fraudulent financial activity.” Id. ¶ 39. In May 2011, Jordan's attorney met with the SDNY AUSA “in an hour-long meeting” during which the attorney “provided everything law enforcement would need in an investigation related to Mirra and his associates[ ].” Id. The lawyer also provided the evidence to another SDNY AUSA. Id. ¶¶ 47-48. Jordan asserts that, despite the SDNY AUSA's alleged initial “interest in the matter,” id. ¶ 40, “[n]either Jordan nor her attorneys were ever informed of the status or progress of any investigation in the Southern District of New York,” id. ¶ 48.
Jordan also alleges that she twice “sent the documentary materials to law enforcement in … Pennsylvania,” including several FBI agents and three AUSAs from the U.S. Attorney's Office for the Eastern District of Pennsylvania (“EDPA”). Id.¶¶ 44, 49. Although prosecutors did not initially respond, Jordan eventually received a phone call from the EDPA's “First Ass[istant] US Attorney Louis Lappen … responding to [her] voicemail message.” Id. ¶ 50. happen allegedly asked that the materials be resent and “was apologetic saying he was going to look into why no one had responded to the documents sent and said he would be referring this to … the (then) Chief of their Criminal Division.” Id. After this phone call, “[n]either Jordan nor her attorneys were ever informed of the status or progress of any investigation in the Eastern District of Pennsylvania.” Id. ¶ 51.
In late 2011, Jordan contacted HHS's Office of Inspector General, which led to two meetings with HHS officials and FBI *48 agents in December 2011 and June 2012. Id. ¶¶ 53, 55-58. She alleges that, during these meetings, “[t]he targeted specificity and scope of their questions was entirely consistent with the notion that these matters were being investigated as potential criminal RICO violations, with Mirra as the enterprise's focal point.” Id. ¶ 54. Throughout this period, Jordan's attorneys and federal law enforcement remained in contact by email. Id. ¶¶ 53-60. Following the meetings, Jordan asked to speak with prosecutors working on these cases from the SDNY. Id. ¶¶ 61, 63. She alleges that she was denied the opportunity to do so because “the District Attorney of New York, the agency prosecuting Jordan for charges unrelated to the Mirra investigation[,] … requested that there be no face-to-face meeting between Jordan and federal prosecutors.” Id. ¶¶ 68, 71.2
On July 17, 2012, the SDNY held a press conference to announce “a complaint… alleging a massive Medicaid fraudinvolving a black market in HIV/AIDS drugs.” Id. ¶ 28. Jordan asserts that although “Mirra does not appear as a defendant in any of the pending indictments, nor is he mentioned by name in the body of any of the complaints, indictments or superseding indictments[, by] virtue of his long-standing status as principle of [some of the healthcare companies under investigation], he had to have been either a person of interest, a subject or a target of this wide-ranging multi-agency investigation.” Id. ¶ 33. According to Jordan, Mirra's “omission from any existing indictments bespeaks a wider, ongoing investigation with the context of a potential RICO prosecution,” id. ¶ 34, and “[t]he [existing] indictment is predicated on criminal acts, including among other things, mail fraud and wire fraud, which usually lay at the heart of a typical RICO investigation and or prosecution,” id. ¶ 32. Jordan alleges that while she requested meetings with prosecutors after the indictment was filed, the Government refused her requests. See id. ¶¶ 63, 71-72.
After Jordan filed the instant action to enforce the rights she claims were denied to her under the CVRA, the Government moved to dismiss. On March 24, 2016, the Court held oral argument.
STANDARD OF REVIEW
1 2In reviewing a motion to dismiss, the Court must accept all factual allegations in the petition as true and draw all reasonable inferences in the plaintiff's favor. Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 429 (2d Cir.2012). To survive a motion to dismiss, however, a petition “ ‘must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard demands “more than a sheer possibility that a defendant has acted unlawfully.” Id. “ ‘Plausibility … depends on a host of considerations: the full factual picture presented by the complaint, the particular cause of action and its elements, and the existence of alternative explanations so obvious that they render plaintiff's inferences unreasonable.’ ” *49 Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir.2013) (quoting L–7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir.2011)).
3Enacted in 2004, the CVRA guarantees victims of federal crimes an array of substantive and participatory rights. See In re Rendon Galvis, 564 F.3d 170, 174 (2d Cir.2009). The statute was enacted to correct a criminal justice system that, as Senator Dianne Feinstein put it, had become “out of balance—while criminal defendants have an array of rights under law, crime victims have few meaningful rights.” 150 Cong. Rec. S4260-01 (daily ed. Apr. 22, 2004). While cautioning that “[n]othing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction,” 18 U.S.C. § 3771(d)(6), Congress passed the CVRA to ensure that actors in the criminal justice system “care about both the rights of accused and the rights of victims,” 150 Cong. Rec. S4260-01 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein). To that end, the statute entitles victims—defined as those “directly and proximately harmed as a result of the commission of a Federal offense”—to ten rights that apply at various stages of a criminal prosecution. 18 U.S.C. § 3773(e)(2)(A). Jordan invokes four of those rights: (1) “The reasonable right to confer with the attorney for the Government in the case”; (2) “The right to proceedings free from unreasonable delay”; (3) “The right to be treated with fairness and with respect for the victim's dignity and privacy”; and (4) “The right to be informed in a timely manner of any plea bargain or deferred prosecution agreement.” 18 U.S.C. § 3771(a)(5), (a)(7)-(9); Pet. at 3; Oral Arg. Tr. 41:21-23.
Jordan alleges that she was a victim of two distinct categories of federal crimes that entitle her to CVRA remedies. First, the Petition alleges that “Mirra directly victimized Jordan through a series of federal criminal offenses, including but not limited to mail fraud, wire fraud, money laundering, and racketeering,” Pet. at 3, as well as “forgery, conversion, threats and intimidation,” id. ¶ 1 (the “Financial Frauds”). In short, Jordan alleges that Mirra took large amounts of money from her banking and brokerage accounts without her knowledge or permission. See id. at 3–4. She asserts that she is a “direct” victim of the Financial Frauds because they were perpetrated directly—and exclusively—against her. See id. Second, the Petition alleges that “[i]n addition, Mirra was at the forefront of a criminal enterprise which engaged in a massive scheme of healthcare fraud,” id. at 3, which included “black-marketing HIV/AIDS drugs, drug diversion, money laundering and Medicaid fraud schemes,” id. ¶ 85 (the “Healthcare Frauds”). Jordan alleges that, for the Healthcare Frauds, she is a victim because her “divested assets were used for … financing” the frauds, id. at 3, and the illicit proceeds were laundered through new bank accounts that Mirra opened in her name, id. ¶ 9. Finally, in the event the Court does not grant Jordan CVRA remedies for the Financial or Healthcare Frauds, the Petition asserts an alternative theory that combines the two categories of offenses. Under this theory, Mirra's alleged criminal actions, when examined together, constitute a criminal conspiracy under the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq. See, e.g., Pet. ¶¶ 33-35. Jordan argues that both the Financial Frauds perpetrated directly against her and the illegal Healthcare Frauds are predicate acts of this larger RICO enterprise.
Even assuming the facts alleged in the Petition to be true, each of Jordan's claims must fail. Jordan, who has already had the *50 opportunity to confer with the Government, is not presently entitled to any additional remedies in connection with the investigation of the Financial Frauds, is not a victim