Defendant’s Motion to Arrest Judgment — No. 1:23-cr-10299 (Dkt. 133, D. Mass.)

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The government's opposition to the defendant's motion to arrest judgment, filed in the U.S. District Court for the District of Massachusetts in United States v. Dean A. Tran, No. 23-cr-10299-FDS, docketed as 1:23-cr-10299, as Document 133 of 5 pages, dated October 18, 2024. The United States opposes Tran's motion and memorandum at ECF Dkt. Nos. 124 and 127 seeking an arrest of judgment under Rule 34 of the Federal Rules of Criminal Procedure. It says such relief must rest on the court's want of jurisdiction or the indictment's failure to charge an offense, that the Court does have jurisdiction over the offenses of conviction, and that Tran's Tenth Amendment and federalism arguments, already raised in an earlier motion to dismiss at ECF Dkt. No. 22, remain wrong. The filing is signed by John T. Mulcahy for the United States.

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        Case 1:23-cr-10299-FDS          Document 133        Filed 10/18/24      Page 1 of 5




                            UNITED STATES DISTRICT COURT
                                 DISTRICT OF MASSACHUSETTS


UNITED STATES OF AMERICA                        )
                                                )
              v.                                ) No. 23-cr-10299-FDS
                                                )
DEAN A. TRAN,                                   )
                                                )
              Defendant                         )
                                                )

                        GOVERNMENT’S OPPOSITION TO
                   DEFENDANT’S MOTION TO ARREST JUDGMENT

        The United States of America, by and through the undersigned assistant United States

 Attorneys, hereby opposes the motion and accompanying memo filed by defendant Dean A. TRAN

 requesting an arrest of judgment under Rule 34 of the Federal Rules of Criminal Procedure. ECF

 Dkt. Nos. 124 (hereinafter, the “Defendant’s Motion”), 127 (hereinafter, the “Defendant’s

 Memo”). A decision arresting a judgment of conviction must be “grounded upon the District

 Court’s want of jurisdiction or upon any failure of the indictment to charge an offense.” United

 States v. Nadolillo, 252 F.2d, 755, 757 (1st Cir. 1958). Contrary to the defendant’s assertion, this

 Court does have jurisdiction over the offenses of conviction. For these reasons set forth below,

 the Court should deny the Defendant’s Motion.

        I.      The Tenth Amendment does not forbid this prosecution.

        The defendant previously raised a Tenth Amendment argument in an earlier Motion to

 Dismiss. ECF Dkt. No. 22. As was the case then, it is still true that the defendant’s various

 arguments concerning the Tenth Amendment and federalism are wrong and have already been

 soundly rejected by multiple federal courts.

        The wire fraud statute, 18 U.S.C. § 1343, contains an interstate nexus requirement. This

 sufficiently triggers the Commerce Clause and federalizes the law and its application. The use of
       Case 1:23-cr-10299-FDS            Document 133       Filed 10/18/24       Page 2 of 5




interstate wires is what the statute seeks to protect. United States v. McLellan, 959 F.3d 442, 469

(1st Cir. 2020) (“As we have previously found, the structure, elements, and purpose of the wire

fraud statute indicate that its focus is not the fraud itself but the abuse of the instrumentality in

furtherance of a fraud.”); United States v. Gordon, 875 F.3d 26, 37 (1st Cir. 2017) (“[I]n enacting

the mail and wire fraud statutes, Congress took aim at the means of conducting a substantive

offense, not at the substantive offense itself.”).

        Defendant’s Memo reiterates two clear arguments. The first is that the wire fraud statute

does not apply when the government is a victim. The Eastern District of Kentucky has previously

rejected this argument. See generally United States v. Morris, 572 F. Supp. 3d 323 (E.D. Ky. 2021).

In Morris, the defendant argue that the wire fraud was unconstitutionally applied because he only

defrauded the Kentucky Department of Revenue, meaning that “the victim at issue is a state actor.”

Id. at 339. The court rejected this argument, holding that “the victim of the crime is not the focus

of § 1343 or the Commerce Clause” and that the focus instead is the use of interstate wires. Id.

The Court noted that “[t]he statute does not, by its terms, require that the conduct comprising or

underlying the fraudulent scheme itself be an interstate activity. [Defendant’s] argument conflates

the jurisdictional aspect inherent in the second element—wire use—with the independent first

element—the underlying fraudulent scheme.” Id. The “chief evil targeted by § 1343 is fraudulent

interstate wire use, no matter whether the fraud scheme itself is interstate or commercial in

character.” Id. at 340. As in Morris, the wire fraud statute is applied here to target the use of

interstate wires regardless of who the victim is.

        The defendant’s second argument is that the application of the wire fraud statute is

unconstitutional in this case because the crime is a state crime, not a federal crime. The defendant’s

characterization of the crime is false. The PUA program was a federal program created by

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         Case 1:23-cr-10299-FDS         Document 133         Filed 10/18/24      Page 3 of 5




Congress under the CARES Act. Moreover, as both Jennifer Lavin and Special Agent Christina

Rosen testified at trial, the PUA program was funded by federal monies. However, even if the

program were entirely intrastate, it would still be constitutional to charge defendant with wire fraud

because the use of interstate wires meets the interstate nexus requirement. See United States v.

Tum, 707 F.3d 68, 73 (1st Cir. 2013) (“The wire-fraud statute's interstate-nexus requirement is

purely jurisdictional and not a substantive element of the offense, meaning the government did not

have to prove that Tum had reason to think that a communication would cross state lines.”); cf.

United States v. Lopez, 514 U.S. 549, 562 (1995) (holding that the Commerce Clause requires a

“nexus to interstate commerce”).

         II.    Silverstein is constitutional.

         Defendant claims that the First Circuit’s decision in Silverstein v. United States, 377 F.2d

269 (1st Cir. 1967) was unconstitutional. Defendant’s Memo cites no law which overrules

Silverstein, and instead relies on references to the 16th Amendment. Until the First Circuit or the

Supreme Court finds Silverstein to be unconstitutional, this Court is bound by First Circuit

precedent. Furthermore, the charge and corresponding jury instructions are consistent with the

law. See 26 U.S.C. § 7206(1). Despite the defendant’s argument that it must be proven that the

government must lose money as the result of false tax returns, section 7206(1) clearly

criminalizes false statements made on a tax return regardless of any pecuniary loss to the

government. Id. There is no reason for this Court to hold that a loss of tax revenue is an essential

element for a criminal tax prosecution. This assertion contradicts the plain text of the statute and

the existing precedent of this Circuit. Regardless, Revenue Agent Ranahan testified about tax

loss for each of 2020, 2021 and 2022 and introduced corresponding summary charts for those tax

years.

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      Case 1:23-cr-10299-FDS   Document 133    Filed 10/18/24        Page 4 of 5




                                          Respectfully submitted,



                                          JOSHUA S. LEVY
                                          Acting United States Attorney

                                   By:    /s/ John T. Mulcahy
                                          John T. Mulcahy
                                          Dustin Chao
                                          Assistant U.S. Attorneys


Date: October 18, 2024




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       Case 1:23-cr-10299-FDS          Document 133         Filed 10/18/24      Page 5 of 5




                                 CERTIFICATE OF SERVICE

        I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non- registered participants.


                                              By:     /s/ John T. Mulcahy
                                                      John T. Mulcahy


Date: October 18, 2024




                                                 5


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