United States v. Edward Okun, 4th Cir. (2011)
United States v. Edward Okun, 4th Cir. (2011)
United States v. Edward Okun, 4th Cir. (2011)
No. 09-4743
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:08-cr-00132-REP-1)
Argued:
Decided:
PER CURIAM:
Edward Hugh Okun operated a Ponziesque scheme, resulting
in losses in excess of $125 million dollars.
Following a jury
He
was
sentence
3600
sentenced
months
below
to
the
1200
months
advisory
imprisonment,
Guidelines
sentence.
was
erred
legally
when
it
sufficient;
refused
to
(2)
grant
whether
an
the
district
evidentiary
hearing
district
court
erred
when
it
denied
his
motion
for
continuance filed two weeks before trial; and (4) whether the
district court abused its discretion in sentencing him.
For the
I. Background
In 2005, Okun was the sole owner of Investment Properties
of America (IPofA), a Virginia limited liability company, with
its principal place of business in Richmond, Virginia.
was
involved
in
the
business
of
commercial
real
IPofA
estate
August
2005
and
December
2006,
Okun
acquired
six
acquiring
Company
(AEC),
personal
bank
assistance
of
Okun
his
began
account
Lara
first
and
Coleman,
to
QI
company,
wire
AEC
Atlantic
client
IPofAs
bank
IPofAs
Chief
Exchange
funds
account,
Operating
to
his
with
the
Officer.
The
fraud,
18
U.S.C.
1341;
one
count
of
bulk
cash
July
10,
2008,
twenty-seven
count
superseding
The superseding
id.
371
and
1956(h),
thirteen
counts
of
wire
fraud, id. 1343, three counts of mail fraud, id. 1341; three
counts of promotional money laundering, id. 1956(a)(1)(A)(i),
one
count
of
concealment
1956(a)(1)(B)(i),
three
money
counts
of
laundering,
money
id.
laundering,
id.
February
27,
2009,
the
government
filed
motion
to
dismiss one of the wire fraud and one of the mail fraud counts.
On the same day, the district court granted the motion.
On March 3, 2009, the case proceeded to trial.
government
rested
its
case,
Okun
moved
for
After the
judgment
of
to the two remaining mail fraud counts, but denied the motion as
to
the
other
defense,
counts.
closing
Following
arguments,
Okuns
and
the
as
to
the
remaining
presentation
district
of
his
courts
twenty-three
counts
of
the
superseding indictment.
The
district
court
sentenced
Okun
to
1200
months
sentence
of
4800
months
imprisonment.
Okun
noted
timely
appeal.
II.
Okun
first
challenges
the
sufficiency
of
the
indictment
with respect to the mail fraud and wire fraud conspiracy count
and the wire fraud counts.
did
not
provide
sufficient
notice
of
the
alleged
an
indictment
properly
charges
an
offense
is
below
makes
timely
objection
to
the
indictment.
Id. at 1063.
Under
our case law, a valid indictment must: (1) allege the essential
facts constituting the offense; (2) allege each element of the
offense,
so
sufficiently
that
fair
distinctive
notice
that
is
provided;
verdict
will
and
bar
(3)
a
be
second
this
case,
the
fraud
and
wire
fraud
conspiracy
count and the wire fraud counts tracked the statutory language
of the relevant statutes and contained the essential elements of
6
Cf.
United States v. Fogel, 901 F.2d 23, 25 (4th Cir. 1990) (noting
that an indictment that tracks the statutory language ordinarily
is
valid). 2
For
example,
the
fraud
and
wire
fraud
but
adds
in
pretenses
both
were
instances
material.
that
the
(J.A.
false
69).
and
The
the
fraud
and
wire
fraud
statutes.
Numerous
Those
(J.A.
83).
This
charging
language
is
identical
to
1343,
except that, like the language in the mail fraud and wire fraud
conspiracy count, it adds the word material to describe the
false and fraudulent pretenses.
(J.A. 83).
The mail fraud and wire fraud conspiracy count and the wire
fraud counts also alleged the essential facts underlying each
offense, allowing Okun to raise the defense of double jeopardy
should the need arise in a successive prosecution.
With respect
to the mail fraud and wire fraud conspiracy count, the manner
and means section of that count describes how Okun purchased QI
companies, which used exchange agreements that required client
exchange funds to be held for the purpose of funding client
exchanges.
to
purchase
other
QI
companies
and
for
other
purposes
how Okun and others lied to exchangers when the exchanges came
due and how 1031 Tax Group was unable to fund the exchanges.
The manner and means section of the mail fraud and wire
fraud
conspiracy
conspirators
count
concealed
also
the
details
theft
of
how
1031
Okun
Tax
and
Group
other
client
exchange funds from other executives both at IPofA and 1031 Tax
Group.
The
count
focuses
on
important
aspects
of
Okuns
Okun
received
in
the
late
fall
of
2006
regarding
his
Okun
gained
control
over
that
property,
and
that
he
property.
Moreover,
each
count
sets
forth
date,
an
court
on
notice
of
the
actions
for
which
Okun
was
date
range
companies,
for
the
detailed
conduct
the
charged,
manner
and
identified
means
of
the
the
relevant
scheme,
and
Thus, Okuns
indictment
period,
the
here
scheme,
was
the
sufficiently
purported
specific.
investment
The
companies,
time
the
States
Postal
Inspector
John
Barrett,
Jr.
Inspector
illegal
entities.
affidavit
activities
The
was
primary
Dashiell.
of
Okun
source
The
and
of
his
the
information
related
information
from
corporate
in
the
Dashiell
was
states:
[Dashiell] has informed me that on a daily basis, 1031
Tax Group clients either close on substitute property,
and so need their deposited funds, or decide not to
11
search
warrant
authorized
(1)
all
communications
clients
and
officers
and
the
searching
between
and
employees
of
agents
to
1031
Tax
and
its
among
IPofA
and
copies
of
other
tax
Okun-related
returns
filed
companies;
by
Okun
and
and
(4)
other
any
retained
Okun-related
companies.
On April 27, 2007, federal law enforcement agents undertook
a thorough search of the offices of various corporate entities
12
the
numerous
claim.
district
grounds.
court,
On
Okun
appeal,
challenged
however,
he
the
search
on
only
one
presses
truethat
(J.A. 748).
Field
believed
that
district
court
Inspector
rejected
Barretts
Barretts
sufficient
assets
were
contention,
statement
concluding
concerning
Fields
statement
was
not
false,
because,
in
who
but
are
that
currently
the
requesting
corporation
is
the
return
investigating
of
financing
The
district
court
noted
that
this
reading
(J.A.
of
their
the
United
In its
decision
Franks,
in
however,
the
Supreme
Court
carved
out
at
155-56.
After
making
the
essential
preliminary
Franks
evidentiary
hearing
is
to
determine
The purpose of
whether
the
1999).
defendant
false
has
shown
statements
after
by
were
Franks
evidentiary
preponderance
knowingly
and
of
the
hearing,
evidence
intentionally
(or
the
that
with
and
establish
probable
suppressed.
that
such
false
cause,
the
statements
evidence
14
were
necessary
seized
must
to
be
In
order
for
Franks
the
rule
to
apply
and
justify
the
evidence
defendant
that
the
must
show
affiant
by
placed
preponderance
false
statements
of
the
in
the
show
that,
with
Id. at 156.
the
false
statements
purged
from
the
false
Id. at 15556.
statements
knowingly
Thus, if an affidavit
and
intentionally
(or
nonetheless
sufficient
to
establish
probable
cause.
Cir.
is
2000)
(requiring
suppression
only
if
false
statements
Franks
Inspector
contention
Barretts
counsel
founders
affidavit
for
Okun
for
does
the
not
contain
conceded
reason
false
at
oral
statement,
as
argument. 3
candidly
simple
did
not
have
sufficient
funds
(J.A. 748).
on
hand
to
pay
back
review
the
district
courts
denial
of
motion
for
March
2,
2009.
His
the
alphabetical
16,
2009
request
for
government
order
January
had
instead
of
provided
listing
a
the
witness
order
in
list
in
which
it
The district
the government discussed with Okuns counsel for many months its
theory
of
misrepresentations
to
prior
owners
of
the
QI
companies.
through
variety
of
district
17
court
filings
and
document
production.
government
Moreover,
would
had
have
continuance
suffered
prejudice,
been
as
granted,
it
had
the
already
V. Sentence
We review a sentence imposed by the district court under
the
deferential
whether
the
abuse-of-discretion
sentence
imposed
is
standard,
inside,
regardless
of
outside,
or
just
United States v.
Evans, 526 F.3d 155, 161 (4th Cir. 2008); see also Gall v.
United States, 552 U.S. 38, 41 (2007).
review
requires
us
to
inspect
the
for
procedural
18
U.S.C.
3553(a)
factors,
or
failing
to
adequately
required
subsection.
Cir.
2006).
individualized
to
robotically
tick
through
3553(a)s
every
the
district
based
18
on
the
court
facts
must
make
an
presented,
by
applying
the
relevant
3553(a)
factors
to
the
specific
564 F.3d 325, 328 (4th Cir. 2009) (citation, internal quotation
marks, and
emphasis
omitted).
The
district
court
must
also
and
set
forth
enough
to
satisfy
us
that
it
has
Rita v.
count
of
conspiracy
to
commit
money
laundering,
twelve
(USSG)
Chapter
5,
Part
Sentencing
Table,
comment.
(n.2).
Because none
Okuns
maximum
advisory
sentence
on
Guidelines
all
counts
sentence
of
was
conviction
the
As
statutory
combined4,800
months.
Next, the district court considered the relevant 3553(a)
factors,
emphasizing
the
extensive
harm
caused
by
Okuns
conduct, and the need for adequate deterrence and to protect the
public from further crimes by Okun.
20
imposing sentence.
the
is
district
checklist
court
fashion.
not
required
Johnson,
445
to
F.3d
apply
at
3553(a)
345.
Here,
in
the
After
that
reviewing
the
those
district
extensive
court
findings,
considered
the
we
are
parties
arguments and had a reasoned basis for exercising its own legal
decisionmaking authority.
Accordingly,
VI. Conclusion
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
21