This case was adjudicated by the Honorable Judge Robert M. Dow, Jr.
Let’s start with some background and some of this may cause you to pause and recall a similar matter.
The Defendant is Eunice Sally, also known as Eunice Salley Dobyns, also known as Oya Awanata-Bey and also known as Oya Awanata.
A. Pension and Mail Fraud (Counts One through Six)
According to the Government, Defendant’s grandmother Estella Salley (“Estella”) died in 2009. Estella had worked for the American Can Company, which was taken over by Rexam (and subsequently taken over by Ball Corporation), and received pension checks delivered to the residence which she and Defendant jointly owned and where both resided. According to Rexam, Estella’s pension benefit was payable only during her life, so after her death, the monthly pension checks should have stopped. Instead, 39 pension checks, each for $428.24, totaling $16,701, that were issued to Estella Salley between January 2013 and December 2017, were deposited into one of six bank accounts opened and controlled by Defendant.
On at least four occasions between 2010 and 2015, the pension company sent a letter to Defendant’s residence that stated as follows: “[t]o ensure that our records are current, the Rexam Retirement Center contacts the Social Security Administration each year to verify that former Rexam Pension Plan participants and beneficiaries are still living. During our most recent comparison, the above individual [Estella] is listed as deceased by the Social Security Administration.” The letter goes on to state “if there has been an error and the person listed above has not passed away, please complete the enclosed Letter of Affidavit, have it notarized, and return it to the Rexam Retirement Center.” The letter closes by stating “If no response is received by the Rexam Retirement Center within 30 days, we will assume the Social Security information is correct and update our records accordingly. This will stop any benefits for this individual.” In response to these requests for information, Defendant submitted via USPS affidavits under Estella’s name, which Defendant notarized, affirming that Estella was still alive.
B. Tax Fraud (Counts Seven through Twenty-Nine)
The Government also alleges that Defendant was a paid tax return preparer who, between 2016 and 2017, prepared and filed with the IRS dozens of false individual income tax returns in addition to submitting her own false 2017 income tax return. Defendant created false Forms W-2 (Wage and Tax Statement) identifying her clients as employees of one of 4 or 5 businesses owned by other, unsuspecting clients of Defendant or unrelated third parties. According to the Government, the W-2s falsely stated that the client earned substantial wage income from the listed employer and had substantial income taxes withheld from those wages, when in fact the client had not worked for the listed employer, had not received any wages from the employer and the employer had not withheld any income taxes on the purported wages paid to the client. Defendant then prepared tax returns that reported the fictitious wages and withholdings along with false medical, charitable, and/or business deductions that resulted in the tax returns claiming false and fraudulent income tax refunds.
The Government further alleges that in order to increase the likelihood that the IRS would issue the claimed refunds, Defendant submitted a corresponding employer copy of the W-2 to the IRS, through an account she created under the name of another unsuspecting client. This ensured that if the IRS sought to match the employee copy of the W-2s attached to the filed tax returns with the employer copy submitted separately, it would conclude that the W-2s were legitimate and, in many cases, issue the claimed refunds. In many instances, the IRS issued the false refunds claimed on the tax returns prepared by Defendant.
The Government maintains that Defendant demanded that many of her clients pay her up to 50% of the refund in cash for her role in preparing their tax returns in addition to her regular preparation fee. Some clients complied and Defendant failed to report approximately $45,000 in income she received in 2017 as her share of the fraudulently obtained tax refunds as well as the approximately $4,000 in pension checks that she embezzled.
From the above, it is quite easy to see that the Defendant was very busy to stay one-step ahead of the IRS. However, this type of paper-filing fraud eventually unwinds and entangles the Defendant with no way out but to wait with the knowledge that she will certainly be caught. Anytime along the fraud-road above, the Defendant should have ceased, paid the money back, and immediately hired an experienced tax fraud attorney to represent her at all levels of government: (i) IRS, (ii)FDIC, (iii) Social Security Administration, (iii) companies paying the pensions, and her State tax authority. But since she did not act promptly and seek advice of a tax fraud attorney, her catastrophic acts continue to unfold and multiply against her.
- On October 22, 2019, Defendant was charged by criminal complaint for committing mail fraud, in violation of 18 U.S.C. § 1341
- On November 5, 2019, Defendant was charged by indictment with one count of mail fraud in violation of 18 U.S.C. § 1341, and five counts of theft from an employee benefit plan, in violation of 18 U.S.C. § 664.
- On July 30, 2020, Defendant was charged in a superseding indictment with 15 counts of aiding and abetting the filing of false tax returns, in violation of Title 26 U.S.C. § 7206(2), and one count of filing a false tax return, in violation of 26 U.S.C. § 7206(1).
- A second superseding indictment was returned on November 12, 2020, charging Defendant with an additional seven counts of aiding and abetting the filing of false tax returns in violation of 26 U.S.C. § 7206(2).
Can it get worse for the Defendant…Yes. On January 21 and February 10, 2021, Defendant filed motions to dismiss the indictment and moved to suppress evidence seized during the execution of a search warrant at her home and seeks other relief as well. Then amazingly enough Defendant exercised her right to represent herself and has filed her own motions with the court without the assistance of legal counsel. The Court wisely appointed standby counsel.
Oh no, not the Sovereign Citizen Defense!!
Defendant claimed diplomatic immunity as a Sovereign Citizen believing that she is not a citizen of the United States and is not subject to the jurisdiction of this Court. Her motions begin by demanding that the Court “obtain diplomatic records from the State Department” which would “prove [diplomatic] immunity.” It appears that Defendant is referring to a “diplomatic” passport in her name from a fictitious country named Al Moroccan. The Government notes that in 2016, a form titled, “Notification of appointment of foreign diplomatic officer and career council of office” and accompanied by a diplomatic passport purportedly from the country of Al Moroccan Empire National Republic was sent to the State Department that appeared to be signed by Defendant. These documents do not confer diplomatic immunity or any other rights or benefits upon Defendant, and any argument to the contrary is frivolous. Defendant’s demands that the Government produce, and the Court defer to, these documents was of course denied.
Wait, there is more from the Defendant…
Defendant also claims that this case should be dismissed because she is a victim of selective and vindictive prosecution. “[S]elective prosecution requires a showing that the defendant ‘(1) … [was] singled out for prosecution while other violators similarly situated were not prosecuted; and (2) the decision to prosecute was based on an arbitrary classification such as race, religion, or the exercise of constitutional rights.'” The United States v. Monsoor,77 F.3d 1031,1033 (7th Cir. 1996) (citing the United States v. Cyprian, 23 F.3d 1189, 1195 (7th Cir. 1994). Defendant’s claim in this instance is entirely conclusory. Unfortunately, the Defendant failed to present any evidence or analysis that would support her assertion that she is being prosecuted based on an arbitrary classification or that she is being singled out while others were not prosecuted for the same offense. Absent a prima facie case, this contention was rejected without a hearing.
Now we come to the indictment and Grand Jury findings that are challenged by the Defendant on the following basis.
Defendant’s conclusory arguments for dismissal based on alleged flaws and irregularities in the grand jury process also are unavailing. The Government represents that it has provided multiple grand jury transcripts to Defendant in discovery, none of which Defendant cites in support of any deficiency in the process.
In regard to the absence of signatures on the indictments, it is the practice in this district to not publicly file the signed indictment in order to protect the identity of the foreperson. In any event, even if this practice were questionable or even improper, any failure of either the United States Attorney or the grand jury foreperson to sign the indictment would not invalidate the indictments themselves. See, e.g., the United States v. Wright, 365 F.2d 135, 137 (7th Cir. 1966) (“[T]he signature of the prosecuting attorney is not an essential part of the information; nor is the improper signing of the instrument a defect such as to invalidate it.”); Hobby v. United States, 468 U.S. 339, 345 (1984) (“Even the foreman’s duty to sign the indictment is a formality, for the absence of the foreman’s signature is a mere technical irregularity that is not necessarily fatal to the indictment.”) (citing Frisbie v. United States, 157 U.S. 160, 163-165 (1895)).
Defendant also alleges—again without any supporting facts or legal argument—that the Government engaged in an “illegal selection or organization of the grand jury, disqualification of individual grand jurors, presence of unauthorized persons in the grand jury” and “other irregularities.” But even if there had been irregularities in the grand jury, that is not a basis for dismissing the indictment unless Defendant can show prejudice, which she has not. As the Supreme Court has explained, “as a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.” Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988).
Yes, there is more, the Defendant alleges the name on the Arrest Warrant and Indictment is improper as to her as the Defendant.
Defendant continues to raise another argument that the arrest warrant is not in her lawful name and therefore, she is being “unlawfully detained. Please see the above first paragraph with here aka names. However, Fed. R. Crim. P. Rule 4(b)(1)(A) states that an arrest warrant must “contain the defendant’s name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty.” Under Seventh Circuit law, “[a]n arrest warrant that correctly names the person to be arrested generally satisfies the fourth amendment’s particularity requirement, and no other description of the arrestee need be included in the warrant.” Powe v. City of Chicago, 664 F. 2d 639, 645 (7th Cir. 1981). Here, the arrest warrant was issued in the name “Eunice Salley,” which is the defendant’s given name and the name she used when she committed the offenses for which she has been charged, neither of which the defendant has denied. The arrest warrant also identified her known aliases to include Oya Awanata, the name she currently uses, as well as her address, date of birth, height, weight, sex, race, and hair and eye colors. This information was sufficiently particularized to identify Defendant for purposes of her arrest.
The indictments, too, were legally sufficient. The initial indictment was returned under the name Eunice Salley a/k/a Eunice Salley-Dobbins and Oya Awanata-Bey. The superseding indictments added the name Oya Awanata as another a/k/a used by Defendant. The Government states that the indictment is led by the name Eunice Salley because that is the only name Defendant used when she committed her offenses, including after she legally changed her name from Eunice Daniel Salley Dobyns to Owa Awanata Bey on April 13, 2017.
Defendant also complained about the order in which her names are used and moves to strike any alias as surplusage because they are used to “inflame and are not relevant to the charged crimes.” However, “[w]hen proof of an alias is relevant to identifying the defendant, or otherwise relates to the proof of the acts charged in the indictment” it is permissible for the prosecution to include it in the indictment. The United States v. Williams, 739 F.2d 297, 299 (7th Cir. 1984). To the extent that Defendant believes one or more of the aliases is more prejudicial than probative, she may move in limine to prevent its use at trial. Id. The Government already has indicated its willingness to strike certain aliases (Eunice Salley Dobyns and Oya Awanata-Bey) that do not appear to have been used in the commission of the charged offenses. The Court finds that any further assessment of the aliases will be deferred until trial.
Defendant continued to raise claims that were found to be without merit, but I will list them in summary below to save time.
1. Prosecution failed to Provide Written Notice of Court Dates and Hearings
Defendant’s claims that the prosecution has failed “to give written notice of court dates, hearings and failed to file notices and certificate of services for each” are not well taken. To begin, the Government is under no obligation to provide the defendant with written notice of any court dates or hearings. Moreover, the docket reveals that the Court has issued orders after every court appearance, whether Defendant appeared or not, and has attempted to send Defendant copies of certain orders that Defendant herself has rejected and sent back to the Court.
Defendant argued that the indictment is “multiplictious.” An indictment is multiplicitious if it charges a single offense in multiple counts. “The purpose of this rule is to prevent multiple punishments for the same act, in violation of the Double Jeopardy Clause of the Fifth Amendment.” United States v. Snyder, 189 F.3d 640, 647 (7th Cir. 1999). “If the same act or transaction violates two distinct statutes, then the punishment for violation of both statutes violates the double jeopardy clause unless each offense requires proof of a fact not required by the other.” The United States v. Stavros, 597 F.2d 108, 112 (7th Cir. 1979). “The test for multiplicity looks to “whether each provision requires proof of a fact which the other does not.” The United States v. Esfahani, No. 05 CR 0255, 2006 WL 163025, at *4 (N.D. Ill. Jan. 17, 2006). This argument, too, misses the mark because each count involves a separate and distinct act from every other count, making each count its own unit of prosecution. See the United States v. Moses, 513 F.3d 727, 732 (7th Cir. 2008).
3. Statute of Limitations
Defendant appears to advance a statute of limitations argument. The Government has 30 days after an arrest to indict a defendant. The defendant was arrested on October 23, 2019, and indicted on November 5, 2019, well within the thirty-day time limit. The criminal conduct charged in Counts One through Six occurred between December 30, 2015, and January 4, 2017. The statute of limitations for those counts is five years. The defendant was charged by indictment for these counts on November 5, 2019, well within the five-year statute of limitations. Finally, the criminal conduct charged in Counts Seven through Twenty-Two occurred between June 25, 2016, and May 8, 2018. The statute of limitations for Title 26 offenses is six years from the filing of the false tax return. The defendant was charged by indictment for these counts on November 12, 2020, well within the sixth year’ statute of limitations. In short, any statute of limitations argument fails.
4. Search Warrant
In her first motion, Defendant refers to the suppression of an “illegal search” but does not identify a particular search or any defects in the search warrants. In her second motion, Defendant focuses her argument on the search of her home. Defendant argued that the search of her home was “illegal because she had a reasonable expectation of privacy” and that the “search was conducted without a warrant, any exigent circumstances justifying a warrantless search, and without any valid consent to conduct a warrantless search.” This is incorrect since the search of Defendant’s home on October 23, 2019, was conducted pursuant to a valid search warrant that was sworn out before, and signed by, Magistrate Judge Valdez.
5. Motion to Strike Stand-By Counsel
Defendant filed a separate motion asking the Court to remove her stand-by counsel. That motion was denied since the stand-by counsel was appointed at this stage of the case to familiarize himself with the matters at issue should the case proceed to trial and to assist Defendant in regard to pre-trial matters should she seek his assistance. As the Court had previously advised, stand-by counsel also is necessary in this case given Defendant’s proclivity to challenge the Court’s jurisdiction and to assert other frivolous positions associated with the sovereign citizen movement. As the Supreme Court of the United States has explained, a trial court “may—even over objection by the accused—appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” see Faretta v. California, 422 U.S. 806, 834 n.46 (1975).
The Defendant’s motions to dismiss the indictment and for other relief and to strike stand-by counsel, as well as the other miscellaneous relief, were denied by the Court in their entirety. In hindsight, it should be obvious to the Defendant that the best course of action was upon learning of any government inquiries to hire and listen to tax counsel for making resolution, restitution, and working with the government to bring her fraud to a legal conclusion.