U.S. v. Blechman

• Decision Date: 23 March 2011
• Docket Number: No. 10–40095–01/02–SAC.,10–40095–01/02–SAC.
• Citation: 782 F.Supp.2d 1238
• Court: U.S. District Court — District of Kansas
• Parties: UNITED STATES of America, Plaintiff,v.Robert Andrew BLECHMAN and Michael N. Sofris, Defendants.

782 F.Supp.2d 1238

UNITED STATES of America, Plaintiff,

v.Robert Andrew BLECHMAN and Michael N. Sofris, Defendants.

No. 10–40095–01/02–SAC.

United States District Court, D. Kansas.

March 23, 2011.

Christine E. Kenney, Richard L. Hathaway, Office of United States Attorney, Topeka, KS, Jay Douglas Befort, Office of United States Trustee, Wichita, KS, for Plaintiff.Christopher Michael Joseph, Joseph & Hollander, P.A., Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

The case comes before the court on the following pretrial motions by the defendant Robert Andrew Blechman: motion to dismiss count one for insufficiency of the evidence as a matter of law, or alternatively, motion for a bill of particulars (Dk. 32); motion to dismiss count two (Dk. 33); motion to dismiss count two as an unconstitutional exercise of the court's power of contempt (Dk. 34); motion to transfer venue (Dk. 35); and motion for a James hearing (Dk. 36). Also pending are the following motions filed by the defendant Michael N. Sofris: motion to dismiss for failure to establish venue and motion to join co-defendant's motion to dismiss for insufficiency of evidence or alternatively, motion for bill of particulars (Dk. 39); motion to join Blechman's motion to transfer venue (Dk. 40); motion for notice of co-conspirator hearsay evidence and for James hearing (Dk. 41); motion to dismiss count two because one cannot aid or abet contempt (Dk. 48); motion to join Blechman's motion to dismiss (Dk. 49); and motion to join Blechman's motion to dismiss count two as an unconstitutional exercise of contempt power (Dk. 50). The government has filed a consolidated response to the above motions. (Dk. 55). Counsel for all parties orally argued these motions on February 22, 2011, and the court took the motions under advisement. After further reviewing the pleadings and extending its research of the relevant law, the court files the following as its ruling.

INDICTMENT

The defendants are charged in count one with conspiracy in violation of 18 U.S.C. § 371, for having “combined, conspired, confederated and agreed to commit offenses against the United States of America, in the District of Kansas and elsewhere, to wit: making false oaths in bankruptcy, in violation of Title 18 United States Code, § 152; and, criminal contempt in violation of Title 18 United States Code, § 401, with reference to § 3148(c).” (Dk. 1, pp. 4–5). Count one alleges the following as overt acts taken “[i]n furtherance and execution of the conspiracy and in order to affect the objects of the conspiracy”: Blechman filing Chapter 7 bankruptcy petitions in the Central District of California in November of 2002 and in January of 2003, Sofris placing Blechman's California residence into a trust in 2003, and Blechman and Sofris filing a Chapter 11 bankruptcy petition in the Central District of California to block eviction from Blechman's California residence. (Dk. 1, p. 5).

Count two charges the defendants with criminal contempt, 18 U.S.C. §§ 2 & 401 with reference to § 1348(c), for disobeying and resisting Judge Sebelius's order setting conditions of release “by committing the crime of knowingly and fraudulently making a material false declaration ... under penalty of perjury in relation to a bankruptcy case, that is the Statement of Financial Affairs and Schedule F, in violation of 18 U.S.C. § 152.” (Dk. 1, p. 6). The indictment includes at ¶ 8(A), the following allegation: “On June 15, 2010, as required by the Bankruptcy Code and Rules, the Defendants filed Schedules and a Statement of Financial Affairs. The Defendants signed the bankruptcy petition, the schedules, and the Statement of Financial Affairs under penalty of perjury.” (Dk. 1, p. 3).

COUNT ONE: BLECHMAN'S MOTION TO DISMISS FOR INSUFFICIENCY OF THE EVIDENCE AS A MATTER OF LAW, OR ALTERNATIVELY, MOTION FOR A BILL OF PARTICULARS (Dk. 32) AND SOFRIS'S MOTION TO DISMISS FOR FAILURE TO ESTABLISH VENUE AND MOTION TO JOIN BLECHMAN'S MOTION TO DISMISS (Dk. 39)

The court grants Sofris's motion to join Blechman's motion and will address the motions as one. The defendants argue that the government is unable to prove as a matter of the law the allegation in count one that the defendants: “combined, conspired, confederated and agreed to commit offenses against the United States of America, in the District of Kansas and elsewhere....” (Dk. 1, p. 5) (italics added). Noting that all of the bankruptcy filings are alleged to have occurred in California, are alleged to concern property located in California, and are alleged to have been made by the defendants who resided in California, and that all alleged overt acts directly referenced in count one occurred in California, the defendants contend the government cannot prove venue for count one exists in the District of Kansas.

Rule 12 of the Federal Rules of Criminal Procedure permit a party to “raise by pretrial motion any defense, objection or request that the court can determine without a trial of the general issue.” Fed.R.Crim.P. 12(b)(2). The Tenth Circuit has discussed this provision:

[R]ule 12 authorizes the district court to resolve before trial only those motions “that the court can determine without a trial of the general issue.” Fed.R.Crim.P. 12(b)(2) (emphasis added). In a criminal case, the “general issue” is “defined as evidence relevant to the question of guilt or innocence.” United States v. Yakou, 428 F.3d 241, 246 (D.C.Cir.2005) (quotation marks omitted). Thus, the Supreme Court has instructed, Rule 12 permits pretrial resolution of a motion to dismiss the indictment only when “trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.” United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969); see also United States v. Knox, 396 U.S. 77, 83, 83 n. 7, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); United States v. Mandujano, 425 U.S. 564, 585 n. 1, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) (Brennan, J., concurring). If contested facts surrounding the commission of the offense would be of any assistance in determining the validity of the motion, Rule 12 doesn't authorize its disposition before trial.

....

Accepting that Rule 12(b)(2) has long governed, and continues to govern federal criminal proceedings, what motions might be said to be susceptible to pretrial determination without implicating what the Rule calls “trial of the general issue”? They fall into two general categories. First, some pretrial motions simply do not implicate the general issue at all. These include motions related to what evidence might be admitted at trial ( e.g., suppression motions), or the conduct of and preparation for trial ( e.g., joinder of offenses and codefendants, venue, bills of particulars, and discovery), for example So long as a motion implicates “fact[s] peculiar to the motion,” and not facts surrounding the question of guilt or innocence, it can't be said to implicate the general issue. [ United States v.] Covington, 395 U.S. [57] at 60, 89 S.Ct. 1559 [23 L.Ed.2d 94 (1969) ].

United States v. Pope, 613 F.3d 1255, 1259–60 (10th Cir.2010) (bolding added).

Consistent with this rule, the courts have fashioned the following standards to govern a pretrial motion challenging the sufficiency of an indictment. Courts regard an indictment “ ‘sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense.’ ” United States v. Todd, 446 F.3d 1062, 1067 (10th Cir.2006) (quoting United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir.1997)). A sufficiency challenge does not allow a court to question the strength of the government's case or its evidence, for the indictment “ ‘should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.’ ” Id. (quoting United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994)). For the court “[o]n a motion to dismiss an indictment, the question is not whether the government has presented sufficient evidence to support the charge, but solely whether the allegations in the indictment, if true, are sufficient to establish a violation of the charged offense.” Id. (citing United States v. Sampson, 371 U.S. 75, 78–79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962); Hall, 20 F.3d at 1087). To this general rule, the Tenth Circuit has recognized a narrow exception:

In “limited circumstances,” however, this Court has held that a district court may “dismiss charges at the pretrial stage ... where the operative facts are undisputed and the government fails to object to the district court's consideration of those undisputed facts in making the determination regarding a submissible case.” Hall, 20 F.3d at 1088. Pretrial dismissal based on undisputed facts is a determination that “as a matter of law, the government is incapable of proving its case beyond a reasonable doubt.” Id. Dismissal in this manner is the “rare exception,” not the rule. Id. Dismissals under this exception are not made on account of a lack of evidence to support the government's case, but because undisputed evidence shows that, as a matter of law, the Defendant could not have committed the offense for which he was indicted.

United States v. Todd, 446 F.3d at 1068. Simply put, this case fits this “rare exception” if the operative facts are not in dispute, if the government does not offer a reasonable objection to the court's inquiry into the evidence, and if the defendant seeks dismissal not because the evidence is lacking but because the undisputed evidence shows he could not have committed the offense as charged.

The Tenth Circuit recently summarized the law relevant to venue in criminal cases:

Although venue is not the focal point in most criminal matters, it is “not a mere technicality.” [ ...