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United States v. Guirguis

United States District Court, D. Hawaii

October 23, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
WAGDY A. GUIRGUIS (01), MICHAEL H. HIGA (02), Defendants.

          ORDER DENYING DEFENDANT WAGDY A. GUIRGUIS' MOTION TO DISMISS COUNTS 4 AND 10 (ECF NO. 50) AND DENYING DEFENDANT MICHAEL H. HIGA'S JOINDER MOVING TO DISMISS COUNT 7 (ECF NO. 55)

          Helen Gillmor, Judge.

         Defendant Wagdy A. Guirguis moves to dismiss Counts 4 and 10 of the Indictment. Defendant Michael H. Higa joins in Defendant Guirguis' Motion and moves to dismiss Count 7.

         Defendant Guirguis claims that the Court does not have jurisdiction over Counts 4 and 10, because they involve purported activities of Defendant Guirguis with “GMP Guam, Inc.” He claims GMP Guam, Inc. is a Guam corporation subject to the Guam Territorial income tax. Defendant Guirguis argues such charges are subject to exclusive jurisdiction in the Guam District Court, pursuant to the Guam Organic Act of 1950, 48 U.S.C. § 1421, et seq.

         Defendant Higa joins in Defendant Guirguis' Motion and argues that if the Court lacks jurisdiction over Counts 4 and 10 against Defendant Guirguis, the Court also lacks jurisdiction over Count 7, which is brought against Defendant Higa relating to “GMP Guam, Inc.”

         The Government opposes the Defendants' Motions.

         The Government alleges that “GMP Guam, Inc., ” as charged in the Indictment, is a United States domestic corporation that is subject to the Internal Revenue Code.

         The Court finds that there is a sufficient jurisdictional basis to proceed to trial on Counts 4, 7, and 10 in the Indictment.

         Defendant Wagdy A. Guirguis' Motion to Dismiss Counts 4 and 10 (ECF No. 50) is DENIED.

         Defendant Michael H. Higa's Joinder Moving to Dismiss Count 7 (ECF No. 55) is DENIED.

         PROCEDURAL HISTORY

         Defendant Wagdy A. Guirguis is charged in the Indictment filed on August 31, 2017 (ECF No. 1) as follows:

         Count 4 relating to “GMP Guam, Inc.” against Defendant Guirguis:

In the District of Hawaii, Defendant Guirguis, a resident of Oahu, did willfully make and subscribe the tax return for GMP Guam, Inc. in calendar year 2010, which was verified by a written declaration that it was made under the penalty of perjury and was filed with the Internal Revenue Service, and which return he did not believe to be true and correct as to every material matter for GMP Guam, Inc., Form 1120, filed on March 6, 2012, where Line 1a reported “gross receipts or sales” of $15, 000, which understated actual gross receipts by approximately $1, 344, 000.00, in violation of 26 U.S.C. § 7206(1).

         Count 10 relating to “GMP Guam, Inc.” against Defendant Guirguis:

During the calendar year 2011, Defendant Guirguis was the president of GMP Guam, Inc., a corporation not expressly exempt from tax with gross receipts of approximately $1.7 million during the year, with its principal place of business at Honolulu, Hawaii. He therefore was required by law, after the close of the calendar year 2011 and on or before March 15, 2012, to make an income tax return, for and on behalf of the corporation, to the Internal Revenue Service Center, at Ogden, Utah, or to the person assigned to receive returns at the local office of the Internal Revenue Service at Honolulu, Hawaii, stating specifically the items of the corporation's gross income and the deductions and credits allowed by law. Well knowing and believing all the foregoing, he did willfully fail, on or about March 15, 2012, in the District of Hawaii, to make an income tax return at the time required by law, in violation of 26 U.S.C. § 7203.

         Defendant Michael H. Higa is also charged in the Indictment (ECF No. 1), in Count 7, relating to “GMP Guam, Inc., ” as follows:

On or about March 6, 2012, Defendant Michael Higa, a resident of Oahu, did willfully aid and assist in, and procure, counsel, and advise the preparation and presentation to the Internal Revenue Service, the tax return for GMP Guam., Inc. on Form 1120, for calendar year 2010. The tax return was false and fraudulent as to material matters, as follows: Line 1a reported “gross receipts or sales” of $15, 000, in violation of 26 U.S.C. § 7206(2).

         On August 31, 2018, Defendant Wagdy A. Guirguis filed DEFENDANT WAGDY A. GUIRGUIS' MOTION TO DISMISS COUNTS 4 AND 10. (ECF No. 50).

         On September 6, 2018, Defendant Michael H. Higa filed DEFENDANT HIGA'S JOINDER, arguing if the Court finds it has no jurisdiction as to Counts 4 and 10, then the Court ...


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