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Margaret Cole Hughes' 13-Page Motion To Dismiss EAC Child Slavery Case Dated Sept. 29th. 2021
Margaret Cole Hughes' 13-Page Motion To Dismiss EAC Child Slavery Case Dated Sept. 29th. 2021
PageID #: 1240
)
)
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) CASE NO.: 1:20-CR-424
)
vs. )
)
)
MARGARET COLE, et al., )
)
Defendants. )
)
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,
INTRODUCTION
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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
facts, but it fails to allege a duty to disclose those facts as is necessary to make any
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
government.
1
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
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
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
circumstances as will inform the accused of the specific offense, coming under 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
conviction”); United States v. Boren, 278 F. 3d 911, 914 (9th Cir. 2002)(explaining
Here, the indictment fails to state an offense against Ms. Cole as a matter of law for
Child 2. This Count fails to state a crime because it (1) improperly alleges a general
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
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
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
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
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
Hammerschidt v. United States, 265 U.S. 182, 188 (1924). Not only must the
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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
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.
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
what duty defendants were under…”). The Government has disputed the existence
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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
potential transfer to the government. To the contrary, the regulations state that
agency should arrange counseling, and if that does not succeed and “the placement
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.
v. State of New Jersey, 306 U.S. 451 (1939); United States v. Cardiff, 344 U.S. 174
Here, the Indictment vaguely alleges that the object of the conspiracy was to
adoption.” (Indictment at p. 33). While the Indictment never specifies the laws
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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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.
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
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,
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.
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
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
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,
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
disruption within 30 days of its occurrence.” (Indictment at p. 35, ¶96). The first
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
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
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.
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
As for the remaining alleged falsehoods, the Indictment again alleges failures
to disclose facts. The statute, however, by its plain terms only criminalizes
CONCLUSION
WHEREFORE, for the foregoing reasons, Counts 11, 12, and 13 of the Indictment
should be dismissed.
and
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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
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