Opinion and Order Denying Motion to Dismiss — No. 4:21-cr-00066 (Dkt. 100, S.D. Tex.)

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An Opinion and Order Denying Motion to Dismiss, Document 100 entered July 11, 2022 in the Southern District of Texas, Houston Division (Case 4:21-cr-00066), United States v. LaDonna Wiggins, by Judge Charles Eskridge. The defendant is charged with six counts of wire fraud under 18 USC § 1343 and five counts of money laundering under 18 USC § 1957, arising from Paycheck Protection Program loan applications through Square Capital LLC and Kabbage Inc, including two $1.8 million disbursements. She moved to dismiss Counts Four and Six for failure to state an offense or as multiplicitous of Counts Three and Five. The court holds that a wire transfer of money can support wire fraud and that each count requires proof of a distinct wire use, so it denies the motion and the dependent money-laundering motion.

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“Opinion and Order Denying Motion to Dismiss — No. 4:21-cr-00066 (Dkt. 100, S.D. Tex.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/opinion-and-order-denying-motion-to-dismiss-no-4-21-cr-00066-dkt-100-s-d74229dd12/, SHA-256 9025ab2203258e31300fc535b2a8381ab7d474e3c01b320d3d1f874bceeb70a3.

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Case 4:21-cr-00066 Document 100 Filed on 07/11/22 in TXSD Page 1 of 4
United States District Court
Southern District of Texas

ENTERED
July 11, 2022
Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

UNITED STATES OF § CIVIL ACTION NO.
AMERICA, § 4:21-cr-00066
§
§
vs. § JUDGE CHARLES ESKRIDGE
§
§
LADONNA WIGGINS, §
Defendant. §

OPINION AND ORDER
DENYING MOTION TO DISMISS

The United States charges Defendant LaDonna
Wiggins with six counts of wire fraud in violation of 18 USC
§ 1343 and five counts of money laundering in violation of
18 USC § 1957. Count One (wire fraud) resulted from a
Paycheck Protection Program loan application through
Square Capital LLC by Wiggins for The Concession Stand.
Count Two (wire fraud) resulted from a PPP loan
application through Square Capital by Wiggins for Wiggins
& Graham Enterprise LLC. Counts Three and Four (wire
fraud) resulted from a PPP loan application through
Kabbage Inc by Wiggins for Wiggins & Graham Enterprise,
and the resulting $1.8 million disbursement. Counts Five
and Six (wire fraud) resulted from a PPP loan application
through Kabbage by Wiggins for Pink Lady Line, and the
resulting $1.8 million disbursement. Counts Seven
through Eleven (money laundering) resulted from later
transfers of the disbursed funds. Dkt 68 at 6–8.
Wiggins moved to dismiss Counts Four and Six for
failure to state an offense or as multiplicitous of Counts
Three and Five, respectively. She also moved to dismiss the
corresponding money-laundering counts. Dkts 50 & 75.
These arguments were addressed at hearing on May 19,
Case 4:21-cr-00066 Document 100 Filed on 07/11/22 in TXSD Page 2 of 4

2022. The Court reserved ruling on the motions pending
further briefing on the issue of whether a transfer of money
by wire is sufficient to allege wire fraud. Dkt 88 at 2. The
motions are now ripe in that regard. See Dkts 93 & 94.
As to failure to state an offense. Section 1343 of Title 18
states in pertinent part:
Whoever, having devised or intending to
devise any scheme or artifice to defraud, or
for obtaining money or property by means
of false or fraudulent pretenses, represen-
tations, or promises, transmits or causes to
be transmitted by means of wire, radio, or
television communication in interstate or
foreign commerce, any writings, signs,
signals, pictures, or sounds for the purpose
of executing such scheme or artifice, shall
be fined under this title or imprisoned for
not more than 20 years, or both.
The elements of wire fraud are thus (i) a scheme to
defraud and (ii) the use of, or causing the use of, wire
communications in furtherance of that scheme. United
States v Dowl, 619 F3d 494, 499 (5th Cir 2010).
Wiggins originally asserted that Counts Four and Six
fail to allege that she transmitted or caused to be
transmitted a “writing, sign, signal, picture, or sound” in
furtherance of her alleged scheme because each count is
based on a transfer of money by wire. Dkt 50 at 9. But in
subsequent briefing, she implicitly concedes that such
transfers can in fact serve as the basis for wire fraud. See
Dkt 93. As well she should—it’s beyond dispute that
transfers of money by wire constitute a transfer of a
writing, sign, signal, picture, or sound for the purpose of
Section 1343. For example, see United States v Kennedy,
707 F3d 558, 566 & n 17 (5th Cir 2013) (upholding wire-
fraud convictions based on wire transfers of money from
lenders to bank in response to fraudulent loan
applications); Dowl, 619 F3d at 499–500; United States v
Jonas, 824 F Appx 224, 228 n 3 (5th Cir 2020, per curiam).

2
Case 4:21-cr-00066 Document 100 Filed on 07/11/22 in TXSD Page 3 of 4

Counts Four and Six state an offense.
As to multiplicity. “Multiplicity is the charging of a
single offense in several counts.” United States v Reedy, 304
F3d 358, 363 (5th Cir 2002) (quotation marks and citation
omitted). “Where a multipart transaction raises the
prospect of multiplicity under a single statute, the question
becomes whether separate and distinct prohibited acts,
made punishable by law, have been committed.” Id at 363–
64 (quotation marks and citation omitted). To make this
determination, a court must ascertain “the allowable unit
of prosecution, which is the actus reus of the defendant.”
United States v Planck, 493 F3d 501, 503 (5th Cir 2007)
(quotation marks and citations omitted). And it must then
determine whether conviction under each allowable unit
charged “requires proof of an additional fact” that the other
charges don’t require. Reedy, 304 F3d at 363; see also
Blockburger v United States, 284 US 299 (1932).
Wiggins argues that a fraudulent loan application and
the resulting disbursement only constitute a single wire-
fraud charge. She thus contends that Counts Four and Six
are multiplicitous because they rely on the same allegedly
fraudulent PPP loan applications that underlie Counts
Three and Five, respectively. Dkt 50 at 10–11; Dkt 93.
To the contrary, the Fifth Circuit holds that the
allowable unit of prosecution under Section 1343 is each
use of a wire by the defendant or caused by the defendant
in furtherance of the scheme. See United States v St Gelais,
952 F2d 90, 96–97 (5th Cir 1992); Jonas, 824 F Appx at 228
n 3. A defendant causes a wire to be used by another where
she “does an act with knowledge that the use of [interstate
wires] will follow in the ordinary course of business, or
where such use can reasonably be foreseen.” United States
v Ingles, 445 F3d 830, 835 (5th Cir 2006) (quotation marks
and citation omitted); see also United States v Hoffman,
901 F3d 523, 548 n 15 (5th Cir 2018).
Count Three alleges here the use of a wire by Wiggins
to submit the Wiggins & Graham Enterprise PPP loan
application to Kabbage. Dkt 68 at 6. Count Four alleges the
use of a wire by Kabbage—which was caused by Wiggins

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Case 4:21-cr-00066 Document 100 Filed on 07/11/22 in TXSD Page 4 of 4

via the fraudulent loan application—to transfer the
Wiggins & Graham Enterprise PPP loan funds to a bank
account controlled by Wiggins. Ibid. Count Five alleges the
use of a wire by Wiggins to submit the Pink Lady Line PPP
loan application to Kabbage. Id at 7. Count Six alleges the
use of a wire by Kabbage—which was caused by Wiggins
via the fraudulent loan application—to transfer the Pink
Lady Line PPP loan funds to a bank account controlled by
Wiggins. Ibid.
Counts Four and Six aren’t multiplicitous of Counts
Three and Five, respectively, because each count is based
on a separate use of a wire by or caused by Wiggins in
furtherance of the scheme. Four separate and distinct
prohibited acts have therefore been committed. Reedy, 304
F3d at 363–64. And each count also “requires proof of an
additional fact” that the other charges don’t require—
namely, proof of a distinct wire use.
As to the money-laundering counts. Wiggins argued
that if Counts Four or Six were dismissed, then the
corresponding money-laundering counts should also be
dismissed. Dkt 50 at 16; Dkt 75 at 10. She conceded at
hearing that this motion would rise or fall based on the
resolution of the motion to dismiss the wire-fraud counts.
Dkt 88 at 2. Because Counts Four and Six won’t be
dismissed, neither will Counts Seven through Eleven.
The motion by Defendant LaDonna Wiggins to dismiss
Counts Four and Six for failure to state an offense or as
multiplicitous is DENIED. Dkts 50 & 75.
The motion by Defendant LaDonna Wiggins to dismiss
the corresponding money-laundering counts is likewise
DENIED. Dkts 50 & 75.
SO ORDERED.
Signed on July 11, 2022, at Houston, Texas.

Hon. Charles Eskridge
United States District Judge

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