U.S. v. Balsiger, Case No. 07-Cr-57.
| Decision Date | 16 June 2009 |
| Docket Number | Case No. 07-Cr-57. |
| Citation | 644 F.Supp.2d 1101 |
| Parties | UNITED STATES of America, Plaintiff. v. Thomas C. BALSIGER, Bruce A. Furr, Steven A. Furr, Lance A. Furr, William L. Babler, Ovidio H. Enriquez, David J. Howard, James C. Currey, Howard R. McKay, Daxesh V. Patel and Bharatkumar K. Patel, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Matthew L. Jacobs, Richard G. Frohling, Stephen A. Ingraham, Kelly Brown Watzka, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, for Plaintiff.
Daniel E. Reidy, Thomas P. McNulty, Jones Day, Robert W. Tarun, Peter P. Tomczak, Baker & McKenzie LLP, Heather M. Lewis Donnell, Vincent J. Connelly, Sarah E. Streicker, Mayer Brown LLP, Corey B. Rubenstein, Joseph J. Duffy, Stetler & Duffy Ltd., Charles B. Sklarsky, Monica R. Pinciak, Jenner & Block LLP, Leigh D. Roadman, Royal B. Martin, Martin Brown & Sullivan Ltd., Chicago, IL, John E. Leeper, Law Office of John Edward Leeper, El Paso, TX, Joseph Sib Abraham, Jr., Law Office of Joseph Sib Abraham, El Paso, TX, James H. Voyles, Jr., Jennifer M. Lukemeyer, Voyles Zahn Paul Hogan & Merriman, Indianapolis, IN, James A. Plaisted, Walder Hayden & Brogan PA, Roseland, NJ, James M. Shellow, Robin Shellow, Shellow & Shellow SC, Milwaukee, WI, for Defendants.
DECISION AND ORDER
On March 6, 2007, a federal grand jury in this district returned a 25-count indictment against International Outsourcing Services, LLC (IOS), and eleven individual defendants charging them with wire fraud in violation of 18 U.S.C. §§ 1343 and 2. On December 5, 2007, a 27-count superseding indictment against the eleven individual defendants only was returned by the federal grand jury. IOS was not charged in the superseding indictment. The superseding indictment added two counts, Counts 26 and 27. Count 26 charges all defendants with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. Count 27 charges defendants Thomas C. Balsiger, Bruce A. Furr, Lance A. Furr, William L. Babler, Ovidio H. Enriquez, David J. Howard and James C. Currey with conspiracy to obstruct justice in violation of 18 U.S.C. §§ 371 and 2. Both the initial indictment and the superseding indictment contain forfeiture provisions.
In an amended scheduling order issued on November 18, 2008, the court, at the request of defendants Steven and Bruce Furr (Furr defendants for purposes of this decision only), ordered these two defendants to file their pretrial motions on or before December 18, 2008. Pursuant to that order, defendants Steven and Bruce Furr filed the following pretrial motions: a motion for a speedy trial (Docket # 230), a joint motion to dismiss the superseding indictment for violations of their Sixth and Fifth Amendment rights (Docket # 256), a motion for a bill of particulars regarding forfeiture allegations (Docket # 257) and a motion to sever defendants (Docket # 258).
Defendant Bruce Furr, individually, filed a motion to dismiss the superseding indictment for Fifth Amendment due process violations (Docket # 254), a motion to suppress any evidence seized from his office on May 16, 2005, (Docket #261), and a motion for a bill of particulars. (Docket # 262). Defendant Steven Furr, individually, also filed a motion for a bill of particulars. (Docket # 253). In addition, defendants Thomas Balsiger, Steven Furr, Bruce Furr, Lance Furr, William Babler, David Howard, James Currey and Howard McKay filed a joint motion to transfer venue to the Eastern District of Texas, El Paso Division. (Docket # 255).
This court will address defendants Bruce Furr's and Steven Furr's: 1) motions for a bill of particulars (Docket ## 262 and 253); 2) joint motion for a bill of particulars regarding forfeiture allegations (Docket # 257), and 3) joint motion to sever defendants (Docket #258); and 4) joint motion for a speedy trial. (Docket # 230). The court also will address defendants Thomas Balsiger, Steven Furr, Bruce Furr, Lance Furr, William Babler, David Howard, James Currey and Howard McKay's joint motion to transfer venue to the Eastern District of Texas (Docket # 255). The remaining motions will be addressed in separate decisions.
MOTIONS FOR A BILL OF PARTICULARS (Docket ## 253, 262)
Defendants Steven Furr and Bruce A. Furr have filed motions for a bill of particulars. Defendant Steven Furr seeks an order with respect to the superseding indictment requiring the government to provide a bill of particulars with regard to six specific categories: 1) cement mixer (page 7, ¶ 18); 2) fraudulent coupon submission (page 7, ¶¶ 17a-d, 19, and 20); 3) accounting issues (pages 7-8, ¶ 21; page 9, ¶ 25; and pages 9-10, ¶ 28); 4) board members (page 9, ¶ 26); 5) concealment from law enforcement (page 9, ¶ 27); and 6) private investigator (page 10, ¶ 29). Specifically, Steven Furr wants the government to identify whether there is any evidence linking him to these particular allegations in the superseding indictment.
Defendant Bruce Furr wants the government to disclose the following information in a bill of particulars based on the superseding indictment: 1) obstruction of justice—Kari Costello litigation (identification of whether there is any clause in the final separation agreement between International Outsourcing Services and Ms. Costello that prohibits her from talking to any governmental agency; 2) obstruction of justice—store tag defense (identification of specific information set forth in Count 27 ¶¶ 53j-l, n-p, and u-v); 3) private investigator (page 10, ¶ 29); 4) fraudulent coupon submission (page 7, ¶¶ 17a-c, 19); 5) accounting issues (pages 7-9, ¶¶ 21, 24, and 25); and 6) cement mixer (page 7, ¶ 18).
Defendant Steven Furr asserts that other than to describe his position in the company, the superseding indictment contains only one specific factual allegation against him. Specifically, he cites pages 8-9, ¶ 24 of the superseding indictment which states:
[A]s part of the scheme, Chris Balsiger, Bruce Furr, Steven Furr and Lance Furr, and others took steps to conceal their scheme from the innocent retailers whose accounts at IOS were used to launder the diverted coupons. These steps included providing false and misleading information to retailers regarding the volume of coupons billed in the retailer's name as well as false information regarding IOS's coupon-processing and invoicing practices.
contends that these allegations are inadequate to enable him to prepare his defense. He further states that he "seeks only to know whether evidence exists linking him to certain acts described in the Superseding Indictment." (Reply in Support of Defendant Steven Furr's Motion for a Bill of Particulars at 2).
Defendant Steven Furr also maintains that the vast majority of the voluminous discovery materials do not involve him and that he will be required to find the "needle in the haystack" when analyzing the charges against him and preparing a defense. (Defendant Steven Furr's Memorandum —Bill of Particulars at 3). He acknowledges that the government is following its open file policy and that his counsel has had informal discussions with government counsel over a year ago at which time the government identified a number of documents believed to be important to the case against him. Although helpful, defendant Steven Furr states that he has no way of knowing if the government's theory has changed since those discussions. Therefore, he asserts that a bill of particulars is necessary.
In response, the government points out that it is following its open file policy in this case. Therefore, it asserts that defendant Steven Furr has access to all relevant discovery information pertaining to the superseding indictment which obviates the need for a bill of particulars, citing United States v. Fassnacht, 332 F.3d 440, 447 n. 2 (7th Cir.2003). The government also states that although the documents in this case are voluminous, the documents provided to the defendants are in large part available in searchable electronic format. Thus, defendant Steven Furr can readily identify which documents refer to him or to any other defendant or subject.
In a further attempt to assist defendant Steven Furr, the government states that in April 2008, it provided his counsel with a packet containing more than 200 pages of discovery material relating to defendant Steven Furr. The government maintains that although the superseding indictment does not contain the kind of specificity the defendant seeks, it is adequate to enable him to prepare a defense. The government states that the "superseding indictment's main charge is a multi-year scheme to defraud, whereby Steven Furr's family's company IOS—for which he has worked most if not all of his adult life—allegedly took coupons it supposedly received from small stores and invoiced these coupons to manufacturers through larger stores in order to defeat manufacturers' fraud controls and increase the likelihood of payment, to the tune of hundreds of millions of dollars." (Government's Response to Steven Furr's Motion for a Bill of Particulars at 5).
Finally, the government states that as recently as early February 2009, the government had agreed to assist defendant Steven Furr's counsel to locate pertinent discovery materials. The government indicates that this cooperation will continue. Therefore, the government asserts that the motion for a bill of particulars should be denied.
In his motion, defendant Bruce Furr states that Counts 1-26 of the superseding indictment contain only two sets of factual allegations against him by name, specifically citing ¶¶ 24, 25 and 28(a...
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