Motion to Dismiss Count One of the Indictment — United States v. Andrews Oduro Brown (Document 45)

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A Motion to Dismiss Count One of the Indictment filed August 17, 2022 as Document 45 in United States v. Andrews Oduro Brown and Charmaine Miesha Brown, No. TDC-22-164, in the United States District Court for the District of Maryland. The defendants argue that Count One, which charges a conspiracy to commit passport fraud beginning in December 2014 and continuing until April 2021, is duplicitous because it joins multiple conspiracies in one count, and that two of the alleged schemes would be barred by the statute of limitations. In the alternative, they ask the Court to strike Schemes One and Two from the indictment. They also ask the Court to stay the briefing schedule for 60 days to allow plea negotiations. The signature block names Ellie C. Marranzini of the Federal Public Defender's office.

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“Motion to Dismiss Count One of the Indictment — United States v. Andrews Oduro Brown (Document 45).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-8-22-cr-00164-dkt-45-d-md-d7e931da30/, SHA-256 30878408dfb96c4b1522eb9323bd205df9e43119309530869aa2ef7c0c62b0b9.

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Case 8:22-cr-00164-TDC Document 45 Filed 08/17/22 Page 1 of 8

In the United States District Court
For the District of Maryland

United States of America *

v. * No. TDC-22-164

Andrews Oduro Brown
Charmaine Miesha Brown *

* * * * * * * * * *

Motion to Dismiss Count One of the Indictment

Count One is a strained attempt to transform three unrelated substantive schemes—two of

which would be barred by the statute of limitations—into a single overarching conspiracy. Because

the doctrine of duplicity precludes charging multiple conspiracies in one count, Count One should

be dismissed.

Background: The alleged passport frauds

On April 27, 2022, the grand jury returned a five-count indictment against Andrews Oduro

Brown and Charmaine Brown. ECF 1. Count One purports to charge a single conspiracy among

Mr. Oduro Brown and Mrs. Brown to commit passport fraud, beginning in December 2014 and

continuing until April 2021. According to the indictment, the object of the conspiracy was to

“procure United States passports for non-United States citizen family members who were not

entitled to such passports through fraudulent means, including the use of false statements and

fraudulent identity documents.” ECF 1 at 2. In essence, and as made clear by the alleged overt

acts, Count One charges four separate schemes involving different objects, documents, and

individuals:

1. Conspiracy to commit passport fraud to bring Child A into the country (Overt

act 11a., Indictment): The indictment alleges that on or about December 1, 2014, Brown submitted
Case 8:22-cr-00164-TDC Document 45 Filed 08/17/22 Page 2 of 8

an application for a U.S. passport in the name of her son, Child C, using a photograph of Child A,

Oduro’s son, a Ghanaian national close in age to Child C. Child A allegedly used this passport to

travel from Ghana to the United States in March of 2015.1

2. Conspiracy to commit passport fraud to obtain a passport for use by

Individual D (Overt act 11c, Indictment): The indictment alleges that on or about August 4, 2015,

Oduro submitted a passport application in the name of Individual E, with the photograph of

Individual D, his sibling who is not a U.S. citizen. The passport was not issued.2

3. Conspiracy to commit passport fraud to obtain a U.S. passport for Child B

(Overt act 11d, Indictment): the indictment alleges that in March of 2020, Brown and Oduro

applied for a passport for Child B, Oduro’s daughter, submitting a Ghanaian birth certificate that

falsely stated that Brown was Child B’s mother. The government alleges that Child B flew from

Ghana to the U.S. on October 6, 2020.3

4. Conspiracy to commit passport fraud to obtain a U.S. passport for Child A

(Overt acts 11b & 11e, Indictment): the indictment alleges that in March of 2016, Brown and

Oduro applied for a U.S. passport for Child A in his own name submitting a Ghanaian birth

certificate falsely stating that Brown was Child A’s mother. According to the indictment, this

passport was renewed in April of 2021, again based on the misrepresentation that Brown was Child

A’s mother.

1
Government’s Opposition to Defendant’s Motion for Review of Detention Order, ECF 32, at 10.
2
ECF 32 at 12.
3
ECF 32 at 11.

2
Case 8:22-cr-00164-TDC Document 45 Filed 08/17/22 Page 3 of 8

Argument

I. Count One is duplicitous and must be dismissed.

A. Legal Standard

“An indictment is duplicitous if it charges two offenses in one count, creating ‘the risk that

a jury divided on two different offenses could nonetheless convict for the improperly fused double

count.’” United States v. Robinson, 855 F.3d 265, 269-70 (4th Cir. 2017) (quoting United States

v. Robinson, 627 F.3d 941, 957 (4th Cir. 2010)). Duplicitous charges risk violating a defendant’s

Sixth Amendment right to a unanimous jury verdict. United States v. Kakos, 483 F.3d 441, 444

(6th Cir. 2007). Although a single conspiracy might consist of an agreement to commit multiple

offenses, a conspiracy count is impermissibly duplicitous when, rather than alleging multiple

objects, it alleges multiple conspiracies. See, e.g., United States v. Urbanik, 801 F.2d 692, 695 (4th

Cir. 1986) (“[i]t is improper to charge a single conspiracy when multiple conspiracies exist . . . .”);

United States v. Allmendinger, 2011 WL 1157554, at *1 (E.D.V.A. Mar. 7, 2011) (“It is

unquestioned that an indictment cannot charge two conspiracies in a single count.”).

B. The indictment charges multiple distinct conspiracies in a single count.

“A single conspiracy exists whether there is one overall agreement or one general business

venture.” United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988) (internal quotations and

citations omitted). Determining whether there is one or multiple conspiracies requires

consideration of “the overlap of key actors, methods, and goals.” Id. (internal citations omitted).

The alleged overt acts and factual allegations underlying Count One make clear that it

charges four different conspiracy schemes that, even if true, were not part of the same conspiracy.

Notably absent from the indictment is any indication that the various schemes depended on each

other for their own success or overlapped in their methods, objects, or goals. The government

3
Case 8:22-cr-00164-TDC Document 45 Filed 08/17/22 Page 4 of 8

attempts to link the freestanding schemes under a broad criminal object—procuring U.S. passports

for family members not entitled to them—when in fact they are separate conspiracies.

i. Absence of interdependence. Even assuming that Count One’s stated object is

sufficiently specific, the charge is still duplicitous because the indictment alleges no

interdependence among the schemes. A single conspiracy requires interdependence, meaning that

“the activities of alleged co-conspirators in one aspect of the charged scheme are necessary or

advantageous to the success of the activities of co-conspirators in another aspect of the charged

scheme, or the success of the venture as a whole.” United States v. Stewart, 256 F.3d 231, 250 (4th

Cir. 2001). See also United States v. Harrison, 942 F.2d 751, 756 (10th Cir. 1991) (explaining that

interdependence is the “principal concern” in distinguishing between single and multiple

conspiracies); United States v. Smith, 86 F.3d 1154 (4th Cir. 1996) (unpublished) (same). Even if

Brown and Oduro shared a common goal—committing passport fraud to obtain U.S. passports for

non-citizen family members—a showing of interdependence is needed to tie the schemes together.

See United States v. Carnagie, 533 F.3d 1231, 1239 (10th Cir. 2008) (“This common goal,

however, is not by itself enough to establish interdependence: ‘What is required is a shared, single

criminal objective, not just similar or parallel objectives between similarly situated people.’”)

(emphasis in original) (internal citation omitted).

The four schemes in the indictment were pursued independently of one another; none

depended upon or was advantageous to the success of the others. Each scheme involved different

paperwork, different individuals, different time periods, and different aims. The success or failure

of Scheme One had no impact on the success or failure of Scheme Two, Three, or Four. Each was

pursued and accomplished entirely independently of one another.

4
Case 8:22-cr-00164-TDC Document 45 Filed 08/17/22 Page 5 of 8

ii. Different actors, methods, and goals. Further indication that Count One charges

multiple conspiracies are the various actors, methods, and goals involved in each. Schemes One

and Two involve similar alleged means and objectives: the use of U.S. citizen identities and non-

citizen photographs in an attempt to obtain U.S. passports for use by the non-citizens. But each

involves different U.S. citizen identities and different Ghanaian national photographs, related to

the divergent goals and objectives of each scheme. Scheme One was dedicated to bringing Child

A, using the identity of Child C. It was completed in 2015 and did not continue. Scheme Two

involved using the identity of Individual E for use by Individual D. It was unsuccessful in 2015

and no further attempts toward its objective are alleged. Because Schemes One and Two took place

and ended more than five years before the return of the indictment,4 they would be barred by the

statute of limitations if charged as stand-alone conspiracy offenses. 18 U.S.C. § 3282 (five-year

statute of limitations); see United States v. Smith, 373 F.3d 561, 563 (4th Cir. 2004) (“When an

indictment impermissibly joins separate offenses that occurred at different times, prosecution of

the earlier acts may be barred by the statute of limitations.”) (internal citation omitted).

Schemes Three and Four differ starkly from One and Two, but involve almost identical

alleged means and similar objectives as one another: applications for U.S. passports in the names

of Oduro’s Ghanaian national children, using their actual identities and Ghanaian birth certificates

representing that Brown was their mother. Each of these schemes include a series of alleged acts

within the statute of limitations.

While the schemes have overlap in terms of the alleged participants—the two defendants,

Brown and Oduro—they lack overlap in methods and goals. Each had a different objective, each

4
See United States v. McKinney, 954 F.2d 471, 475 (7th Cir. 1992) (“A conspiracy ends when its
central criminal purpose has been accomplished.”); United States v. Roshko, 969 F.2d 1, 7 (2d.
Cir. 1992) (“a conspiracy continues until its aim has been achieved, it has been abandoned, or
otherwise terminated.”) (internal quotation and citation omitted).

5
Case 8:22-cr-00164-TDC Document 45 Filed 08/17/22 Page 6 of 8

occurred at a different time, each involved different methods. These factors point to one

conclusion—Count One charges multiple distinct conspiracies.

C. Dismissal is the appropriate remedy.

Because Count One charges multiple conspiracies, it is duplicitous and should be

dismissed. “Where an Indictment or information contains a duplicitous count, the proper remedy

is to dismiss the count or to require the United States to elect which offense it desires to pursue.”

United States v. Pleasant, 125 F. Supp. 2d 173, 176 (E.D.V.A. 2000). Under certain circumstances,

courts have remedied duplicity by ordering the government to seek from the grand jury a new

indictment that is not duplicitous. See United States v. Marlinga, 2005 WL 513494 (E.D. Mich.

Feb. 28, 2005) (granting Motion to Reformulate Count One as Duplicitous, and ordering

government to charge conspiracies in separate indictments). In general, the Court has discretion to

fashion relief “according to the particular harm or harms to be avoided” in a particular case. United

States v. Sturdivant, 244 F.3d 71, 79 (2d Cir. 2001).

Here, duplicity cannot be remedied by a jury instruction or a new indictment. Dismissal is

the only remedy that will protect Mr. Oduro and Mrs. Brown’s Sixth Amendment right to jury

unanimity from being compromised. If Count One were tried as pleaded, a jury could potentially

convict Mr. Oduro and Mrs. Brown without unanimity, by spreading their votes among the

multiple schemes contained within Count One.

Alternatively, if the Court is not inclined to dismiss Count One, the Court should strike

Schemes One and Two from the indictment. Those conspiracies are outside the statute of

limitations and wholly unrelated to alleged Schemes Three and Four, which deal entirely with

supposedly fraudulently-used Ghanaian birth certificates. The object of the conspiracy in Scheme

One was completed in 2015. A conspiracy ends “when its central purpose has been accomplished.”

6
Case 8:22-cr-00164-TDC Document 45 Filed 08/17/22 Page 7 of 8

United Med. & Surgical Supply Corp., 989 F.2d 1390, 1399 (4th Cir. 1993) (internal quotation and

citation omitted). Scheme Two’s conspiracy terminated when the government rejected the passport

application, also outside the statute of limitations. These two schemes should be eliminated from

the indictment and the government should be barred from attempting to include them in any new

indictment.

Conclusion

Mrs. Brown and Mr. Oduro move to dismiss Count One as duplicitous for the reasons

articulated above. They ask the Court to stay the briefing schedule on this motion for 60 days to

enable the parties an opportunity to engage in plea negotiations without requiring the government

to respond to this motion at this time. Discovery is not yet complete, it is voluminous, and the

parties request additional time to receive and review the evidence before foreclosing negotiations.

Respectfully submitted,

James Wyda
Federal Public Defender

/s/
Ellie C. Marranzini, #817525
Assistant Federal Public Defender
6411 Ivy Lane, Suite 710
Greenbelt, MD 20770-4510
(301) 344-0600
(301) 344-0019 (fax)
Email: ellie_marranzini@fd.org

______/s/________________________
STEVEN F. WROBEL
Fed Bar No. 24985
Law Office of Steven Wrobel, LLC
107 Ridgely Ave., Suite 9

7
Case 8:22-cr-00164-TDC Document 45 Filed 08/17/22 Page 8 of 8

Annapolis, MD 21401
(410) 547-2417
FAX (410) 268-5616
steven@stevenwrobel.com

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