Case: 1:20-cr-00424-JG Doc #: 75 Filed: 09/28/21 1 of 13.

PageID #: 1240

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

)
)
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) CASE NO.: 1:20-CR-424
)
vs. )
)
)
MARGARET COLE, et al., )
)
Defendants. )
)

MOTION TO DISMISS THE INDICTMENT AND

INCORPORATED MEMORANDUM OF LAW

NOW COMES, Margaret Cole, by and through the undersigned counsel, and

hereby respectfully moves to dismiss the Indictment in this case for failure to fairly

inform Ms. Cole of the offense charged and for failure to state an offense under law,

and in support states as follows:

INTRODUCTION

Margaret Cole is charged in three counts of a thirteen-count indictment with

conspiracy to defraud the Government in violation of 18 U.S.C. §371, and two

counts of alleged false statements in violation of 42 U.S.C. § 14944. These charges

arise from Ms. Cole’s last-minute effort to assist in an international adoption,

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wherein an American family approved to adopt two children from Poland

questioned whether they could parent one of the girls.1

The Government’s misguided effort to construct a criminal charge relating to

Ms. Cole’s involvement in an international adoption in “crisis” fails as a matter of

law to state a criminal offense and violates basic principles of due process.

Specifically, as set forth below, the Government cannot under controlling law

charge an 18 U.S.C. §371 general conspiracy to defraud the Government when there

is a specific statute on point which does not prohibit the conduct of Ms. Cole and her

adoption agency. Further, the Indictment primarily alleges concealment of certain

facts, but it fails to allege a duty to disclose those facts as is necessary to make any

concealment a fraud. The Government’s overreaching to contrive a crime under

these circumstances in apparent contradiction to the guidance provided by

government regulations violates basic notions of due process and fairness.

Furthermore, the §371 conspiracy count also fails to state an offense because

it relies upon alleged concealment from the Council on Accreditation, a private non-

profit. Because this private entity is not an agency of the government, the

Indictment fails as a matter of law to state a colorable conspiracy to defraud the

government.

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This Motion avoids the use of proper names and identifying information as to the
individuals involved in the two adoptions.

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Counts 12 and 13 also charge Ms. Cole individually with false statements

arising from the same adoption. Both counts illogically claim that Ms. Cole

misrepresented that the one child (“Child 2”) was transferred for respite or

temporary care, when the allegations of the Indictment are clear that the transfer

could only be deemed temporary at the time because the adoption was not approved

by the State with jurisdiction. Furthermore, the Indictment charges Ms. Cole with

failing to disclose certain facts to the Polish Government, but the Indictment again

fails to allege any colorable duty to disclose those facts.

For the reasons more fully discussed below, the Indictment of Ms. Cole goes

too far in contriving a vague and constructive offense, and it accordingly should be

dismissed as a matter of law.

INCORPORATED MEMORANDUM OF LAW

An indictment is generally sufficient if it (1) alleges all of the elements of the

offense; (2) fairly informs the defendant of the charge to be defended, and (3)

protects against double jeopardy for the same offense. United States v. Coss, 677 F.

3d 278, 287-88 (6th Cir. 2012) (citing United States v. Anderson, 605 F. 3d 404, 411

(6th Cir. 2010) and Hamling v. United States, 418 U.S. 87, 117 (1974)). An

indictment “must be accompanied with such a statement of the facts and

circumstances as will inform the accused of the specific offense, coming under the

general description, with which he is charged.” Coss, 677 F. 3d at 288 (citations

omitted.) Furthermore, an indictment should be dismissed if, as a matter of law, the

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undisputed facts alleged fail to state an offense. United States v. Jones, 542 F. 2d

661, 665 (6th Cir. 1976); see also United States v. Marra, 481 F. 2d 1196, 1199 (6th

Cir. 1973)(an indictment must enable “the Court to determine whether the facts

alleged are sufficient in law to withstand a motion to dismiss or to support a

conviction”); United States v. Boren, 278 F. 3d 911, 914 (9th Cir. 2002)(explaining

the nature of a motion to dismiss an indictment for failure to state an offense.).

Here, the indictment fails to state an offense against Ms. Cole as a matter of law for

the following reasons.

Count 11 Fails to State a Valid Conspiracy to Defraud the Government

Count 11 (conspiracy to defraud the United States, 18 U.S.C. section 371),

seeks to impose criminal sanctions for an alleged conspiracy to mislead the

government and a private entity regarding a “disruption” and eventual adoption of

Child 2. This Count fails to state a crime because it (1) improperly alleges a general

conspiracy to defraud the United States when there is an applicable statute on

point, (2) the Count is premised on the existence of duties that do not exist as a

matter of law and are not alleged in the Indictment, and (3) the Count is apparently

based on the premise that the Council on Accreditation is an agency of the United

States Government when it is a private organization.

As to the first defect, “Section 371 prohibits two kinds of conspiracies: (1)

conspiracies to commit an offense against the United States and (2) conspiracies to

defraud the United States.” United States v. Kraig, 99 F. 3d 1361, 1366 (6th Cir.

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1996). These are two separate and distinct crimes, and the Government must allege

and prove one or the other. Id. (citing United Sates v. Minarik, 875 F. 2d 1186,

1193-94 (6th Cir. 1989)). Here, the Government has expressly alleged a conspiracy

to defraud the United States. (See Indictment at p. 32.) The fatal problem is that “a

defendant must be charged with a conspiracy to commit an offense against the

government and not a conspiracy to defraud if there is a is a specific statute

describing the conduct involved in the alleged conspiracy.” Id.

In this case, there is a specific statute on point: 42 U.S.C. § 14944. This

statute addresses both alleged objects of the conspiracy to (1) conceal or mislead as

to the transfer of custody for Child 2 and 2) to maintain accreditation for EAC

notwithstanding its involvement in the dissolution of this adoption. Accordingly,

the Government needed to allege a conspiracy to violate this statute (which the

Government in fact charged substantively in Counts 12 and 13) and not a general

conspiracy to defraud the government. On this basis alone, Count 11 should be

dismissed. Minarik, 875 F. 2d at 1193-94.

Furthermore, even if the Government could allege a conspiracy to defraud the

government under these circumstances – which it cannot with a statute on point–

the Indictment still fails to state a valid offense. A general conspiracy to defraud

the United States cannot allege just any effort to make things difficult for the

government, but an object to obstruct the lawful functions of a government agency

through “deceit, craft, or trickery, or at least means that are dishonest.”

Hammerschidt v. United States, 265 U.S. 182, 188 (1924). Not only must the

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government prove an unlawful object to obstruct the lawful functions of the

government, but the knowing commission of at least one overt act “in furtherance of

some object or purpose of the conspiracy as charged.” United States v. Brown, 147

F. 3d 477, 489 (6th Cir. 1998).

The stated goal of the alleged conspiracy is that the defendants and others

conspired to adopt both children “without disclosure to the proper authorities” that

one of the children would be transferred to the care of others upon arrival in the

United States. (Indictment at ¶93(a)). The only overt act that involves alleged

fraud on the government is the alleged failure of the adopting parents when

applying for travel visas to disclose to the State Department their intention to

transfer custody of one of the children upon arrival in the United States.

(Indictment at ¶94(a.). But an allegation of fraud predicated on the failure to

disclose a fact requires an actual duty to disclose. See United States v. Gibson, 409

F. 3d 325, 333 (6th Cir. 2005)(§ 1001 false statement charge requires a “duty to

disclose the concealed facts”); United States v. Curran, 20 F. 3d 560, 571 (3rd Cir.

1994)(reversing §371 conspiracy to defraud government because the jury was misled

as to the duty to disclose); Minarik, 875 F. 2d at 1190 and 1195 (reversing §371

conspiracy to defraud government conviction where “the Government never defined

what duty defendants were under…”). The Government has disputed the existence

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of this requirement, but fundamental fairness prohibits charging someone with

failing to disclose some fact unless they had a legal obligation to do so.2

Here, the Indictment never defines what duty there was to disclose to the

State Department the alleged intent to transfer custody of Child 2 when applying

for the visas. Furthermore, as even the Indictment acknowledges, any duty

belonged to the adopting parents – and not to Ms. Cole, her adoption agency, or the

other alleged conspirators.

What is more, the applicable regulation for intercountry adoptions, 22 C.F.R.

§ 96.50, places no such obligation on an adoption agency to immediately disclose the

potential transfer to the government. To the contrary, the regulations state that

“(w)hen a placement for adoption is in crisis in the post-placement phase,” the

agency should arrange counseling, and if that does not succeed and “the placement

is disrupted, the agency or person assuming custody of the child assumes

responsibility for making another placement of the child.” Id. at §96.50(d). By the

plain terms of the regulation, any obligation to disclose “the disruption” to the State

Department comes only after the agency arranges for temporary care, and then acts

“to find an eventual adoptive placement for the child.” Id. at §96.50(e).

Prosecuting individuals for an alleged failure to disclose that is not clearly set

forth in the regulations violates basic notions of due process. “Ordinarily, citizens

2
Ms. Cole has also filed a motion for a bill of particulars seeking disclosure of any
legal duty to disclose underlying the repeated allegations of concealment. (See
Reply in Support of Motion for a Bill of Particulars, Dkt. 44, page ID#:390-91).

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may not be punished for actions undertaken in good faith reliance upon

authoritative assurance that punishment will not attach.” United States v. Laub,

385 U.S. 475, 487 (1967); accord, United States v. Levin, 973 F. 2d 463, 467 (6th Cir.

1992). Furthermore, criminal sanctions cannot be imposed under “vague and

undefined commands” or if they are “inexplicably contradictory.” Id. (citing Lanzetta

v. State of New Jersey, 306 U.S. 451 (1939); United States v. Cardiff, 344 U.S. 174

(1952)). In addition, under the rule of lenity, constructive offenses should be

avoided. McNally v. United States, 483 U.S. 350, 360 (1987).

Here, the Indictment vaguely alleges that the object of the conspiracy was to

transfer custody of a child “in contravention of the laws governing intercountry

adoption.” (Indictment at p. 33). While the Indictment never specifies the laws

contravened, the government promulgated regulations found at 22 C.F.R. § 96.50 to

address what an agency should do if a placement for an intercountry adoption is in

“crisis.” As alleged in the Indictment, the adoption at issue was in “crisis” on or

about June 21, 2015, when “Poland Client” expressed to Ms. Cole “a strong desire to

find another family to raise Child 2.” (Indictment at § 51.) Accordingly, section

96.50 applies and fairly read informs the agency that it has substantial discretion to

provide counseling to the adopting parent, and if that does not succeed, to provide

temporary care. 22 C.F.R. § 96.50 (c), (d), and (e). While it references consulting

the Secretary “about any new prospective adoptive parent(s),” this is necessarily a

later step after counseling, and transferring the child to the “temporary care” of

another. Furthermore, this regulation itself provides no clear deadline for such

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notice. Under these circumstances, it is plainly unfair to impose upon Margaret

Cole and others criminal sanctions for the adoptive parents’ failure to disclose in

applying for travel visas their alleged intent to transfer custody of one child to

temporary care when they arrived at a later date in the United States.

In addition to this effort to criminalize a non-offense, the Indictment in this

same count alleges a further object of the conspiracy of concealing the role of Cole

and others in the transfer of the child from the Council on Accreditation (“COA”).

This object too, and the related alleged overt acts, seeks to criminalize a failure to

disclose without identifying a specific legal obligation to do so prior to the

dissolution of the adoption from Poland.

More fundamentally, however, the Count should also be dismissed as a

matter of law because the Government has charged a conspiracy to defraud the

government, and the COA is a private entity. As the Supreme Court has instructed,

a conspiracy to defraud a third party is not a conspiracy to defraud the government

even if the government has some interest in the private entity. Tanner v. United

States, 483 U.S. 107, 129-30 (1987); accord, United States v. Mendez, 528 F. 3d 811,

815-16 (11th Cir. 2008)(defendant lacked intent to defraud the United States where

he fraudulently obtained a Florida commercial driver’s license even though the U.S.

Department of Transportation sets minimum standards to obtain the license).

The alleged target in this Count, the COA, is an “international, independent,

nonprofit organization that accredits human and social service providers…in the

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U.S. and Canada.” See coanet.org//About COA. It is accordingly not an agency of the

United States Government. For approximately ten years, it served as an

accrediting entity for certain international adoption agencies pursuant to a

Memorandum of Agreement with the State Department. (See Public Notice 567,

C.F.R. Vol. 71, No. 137, 40771 (July 18, 2006)). Demonstrating its status as an

independent private entity, the COA withdrew from the Agreement, stating that it

would no longer be able to perform its duties as an accrediting entity due to

“unforeseen circumstances.” (See https:travel.state.gov/Council on Accreditation to

Withdraw as Accrediting Entity, October 14, 2017). Accordingly, because the COA is

indisputably a private entity, the alleged object to mislead it cannot serve as the

basis for a § 371 defraud the government charge. See Tanner, 483 U.S. at 129-30,

Mendez, 528 F. 3d at 815-16.

Counts 12 and 13 Should Be Dismissed

In Count 12, the Indictment alleges that Ms. Cole falsely represented that

custody for Child 2 was transferred for respite care and “falsely represented that

Adoption Agency complied with the requirement to report any dissolution or

disruption within 30 days of its occurrence.” (Indictment at p. 35, ¶96). The first

falsehood alleged is inherently illogical even accepting the allegations as true.

Because as the Indictment itself acknowledges the adoption was not approved by

the State in question at the time of the transfer of custody in 2015, the new

guardians could only have taken custody of the child for temporary care. There is

no colorable falsehood.

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As for the other falsehood alleged in Count 12, the Government does not cite

the source for the thirty-day rule or its precise requirements. However, the April

18, 2016 disclosure form to the COA, which is not in dispute, contains no

representation, true or false, as to the timeliness of any disclosure. What it reports

is a “Date of the Incident,” which is inherently ambiguous because the category of

the incident is listed as both an “Adoption Disruption/ Dissolution.” These are two

different events, which occurred at two different times. Here, the date of the

dissolution (the date that the subsequent adoption was finalized under state law) is

imprecisely alleged by the Government to be “in or around February 2016.” (See

Indictment at ¶ 62). The exact date would be a function of the rules of finality of

state law. In any event, the Indictment fails to allege that the date listed in the

disclosure to the COA is even incorrect as to the dissolution under state law, much

less that the date was knowingly listed as false by Ms. Cole.

In Count 13, the Indictment alleges a false or fraudulent statement of an

accrediting entity, in this case the Polish Government. The false statement alleged,

which is inherently illogical, is that the new guardians took custody of the child for

temporary care. Because, as the Indictment itself acknowledges, the adoption was

not approved by the State in question at the time of the transfer of custody in 2015,

the new guardians could only have taken custody of the child for temporary care.

The Indictment on this basis is further troubling because the letter itself, which is

alleged to be the means for the false communication, acknowledges that the

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guardians that received initial custody for temporary or respite care eventually

adopted “Child 2.”

As for the remaining alleged falsehoods, the Indictment again alleges failures

to disclose facts. The statute, however, by its plain terms only criminalizes

affirmative false statements. In addition, as discussed above, the Indictment does

not establish a duty to disclose the information allegedly concealed.

CONCLUSION

WHEREFORE, for the foregoing reasons, Counts 11, 12, and 13 of the Indictment

should be dismissed.

Date: September 28, 2021 Respectfully submitted,

By: /s/ Edmund W. Searby

Edmund W. Searby (OH 067455)
SEARBY/LLP
30195 Chagrin Blvd, Suite 210N
Cleveland, Ohio 44124
Tel: 216-591-2613
esearby@searby.law

and

Justin J. Roberts (OH 0086168)

J. Roberts LLC
600 Superior Ave., Suite 1300
Cleveland, Ohio 44114
Tel: 216-417-2114
Justin.roberts@jrobertslegal.com

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CERTIFICATE OF SERVICE

I hereby certify that on September, 28, 2021 service is made of this Motion to

Dismiss and Incorporated Memorandum of Law upon all counsel of record by this

Court’s CM/ECF system.

/s/ Edmund W. Searby

Counsel for defendant Margaret Cole

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