United States v. Barrow
| Decision Date | 19 February 2021 |
| Docket Number | Criminal No. 20-127 (CKK) |
| Parties | UNITED STATES OF AMERICA, v. CHANCE BARROW, Defendant. |
| Court | U.S. District Court — District of Columbia |
Defendant Chance Barrow is charged with two counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts One & Two) and one count of concealment of material facts in violation of 18 U.S.C. § 1001(a)(1) (Count Three). See Indictment ¶¶ 10-26, ECF No. 25. These charges arise from Defendant Barrow's application for employment as a law enforcement officer with the Treasury Inspector General for Tax Administration ("TIGTA"), a federal law enforcement service. The Indictment alleges that Defendant Barrow concealed from TIGTA that he had resigned from his previous position as an Army-CID intelligence officer and that his National Security Clearance would be suspended because he was under criminal investigation for an alleged sexual assault. Id. ¶¶ 12, 15, 16, 25.
Defendant Barrow now moves to dismiss Count Three of the Indictment, arguing that it fails to state an offense of concealment under § 1001(a)(1) because he had no legal duty to disclose the circumstances surrounding his resignation from Army-CID and the facts alleged in the Indictment are insufficient to establish that he "knowingly and willfully" concealed material information. He further contends that dismissal is appropriate based on erroneous legal instructions to the grand jury. Upon consideration of the Indictment, the parties' briefs,1 relevant legal authority, and the record as a whole, the Court DENIES Defendant's Motion to Dismiss Count Three of the Indictment.
For purposes of a motion to dismiss, the Court must accept the facts alleged in the indictment as true. United States v. Craig, 401 F. Supp. 3d 49, 54 (D.D.C. 2019). Accordingly, the facts recited here provide information pertinent to assessing Defendant Barrow's legal challenges to the Indictment, but should not be read to Id.
In March 2018, the Naval Criminal Investigative Service ("NCIS") opened a criminal investigation into Defendant Barrow, after receiving a report that he had committed a sexual assault. Indictment ¶ 6. At the time, Defendant Barrow was employed as a civilian special agent for Army-CID. Id. ¶ 5. He held a National Security Clearance—which he had obtained in 2008 and renewed in 2014. Id. ¶¶ 3-4. NCIS notified Barrow of the allegations and his employer, Army-CID, "took steps to suspend [Defendant Barrow's] National Security Clearance, limited his access to all law enforcement systems; secured his weapon, badge, credentials, and all other law enforcement equipment; and placed him on administrative office duty." Id. ¶ 7. Barrow"expressed frustration" to one of his supervisors of his placement on office duty and the suspension of his National Security Clearance. Id. ¶ 8. Barrow then resigned from his position in April 2018, after being "advised by Army-CID that he was facing termination and that his National Security Clearance was being suspended." Id. ¶ 9.
In May 2018, Defendant Barrow applied to be a law enforcement officer with TIGTA through the USA Jobs website. Id. ¶ 13. He was selected for a screening interview in July 2018. Id. ¶ 18. The charges in this action arise from his application submissions and interview responses; the Indictment alleges that Defendant Barrow intentionally gave false, misleading, or incomplete answers to conceal the circumstances surrounding his resignation from Army-CID and the ongoing criminal investigation related to the sexual assault allegation. Id. ¶¶ 11, 12, 25. For example, the Indictment alleges that Defendant Barrow intentionally submitted with his application an outdated Standard Form-50 (verifying federal civilian employment) to conceal that he had resigned from Army-CID despite having a more recent version of the same form reflecting his resignation, id. ¶ 16(b), and a Form Standard Form-15 (establishing veteran status) that falsely stated he was currently employed as a criminal investigator, id. ¶ 16(c). Upon submitting these materials through the USA Jobs website, Defendant Barrow was required to certify that "to the best of my knowledge and belief, all the information submitted by me with my application for employment is true, complete, and made in good faith . . . I also understand that false or fraudulent statements may be punishable by fine or imprisonment (18 U.S.C. 1001). Def.'s Mot. Ex. A; see Indictment ¶ 14. Defendant Barrow was also required to complete a Standard Form-86C ("SF-86C") to provide any updates to the Standard Form-86 (Questionnaire for National Security Positions) ("SF-86")—which he had previously completed in 2014 when he renewed his security clearance. Indictment ¶¶ 19, 29. The Indictment alleges that DefendantBarrow failed to provide updates to questions which asked if he had ever left a job after being told he would be fired or following charges or allegations of misconduct. Id. ¶ 20(a). The instructions for the SF-86C provide notice that "[t]he United States Criminal Code (title 18, section 1001) provides that knowingly falsifying or concealing a material fact is a felony which may result in fines and/or up to 5 years of imprisonment." Def.'s Mot. Ex. C (emphasis added); see also Indictment ¶ 19. The Indictment further alleges that, after being advised of his obligations to tell the truth and provide complete information during his screening interview, Barrow told the interviewer, upon being asked, that he was not leaving his current employment because of allegations of misconduct or other unfavorable circumstances. Indictment ¶ 18.
In addition to the allegations that Defendant concealed the circumstances surrounding his resignation, the Indictment also alleges that Defendant Barrow represented that he held an active National Security Clearance ), despite knowing that his clearance would be suspended due to the ongoing NCIS criminal investigation.2 Specifically, Defendant Barrow submitted a resume with his application on the USA Jobs website indicating that he held an active security clearance. Id. ¶ 16(a). He also answered "no" to questions on the SF-86C which asked if there had been any changes to his "investigations and clearance record" since he completed his SF-86 form in 2014. Id. ¶ 21.
Defendant Barrow was hired for the TIGTA position to begin work on October 1, 2018. Id. ¶ 2. He held the position until July 2019. Id. ¶ 3. The government contends that had TIGTAknown of Defendant Barrow's employment and security clearance history, he would not have been hired as a law enforcement officer. Id. ¶ 26.
A grand jury returned an Indictment charging Defendant Barrow with two counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts One & Two) and one count of concealment of material facts in violation of 18 U.S.C. § 1001(a)(1) (Count Three). See Indictment ¶¶ 10-26. In the present motion, Defendant Barrow seeks dismissal of only Count Three, which charges him with "unlawfully, knowingly and willfully, falsify[ing], conceal[ing], and cover[ing] up by a trick, scheme, and device, material facts in the court of his application to and hiring by TIGTA, including that he previously resigned from a position with Army-CID prior to Army-CID's proposed termination" and that he did so "following allegations of . . . misconduct that were the subject of a NCIS criminal investigation." Id. ¶ 25. The purpose of this alleged concealment scheme was "to deprive TIGTA of material adverse information about [Defendant Barrow's] employment and security clearance history, so that TIGTA would hire [him] despite the disqualifying information." Id. ¶ 26.
Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B), a criminal defendant may move to dismiss an indictment before trial based on a "defect in the indictment," including for "failure to state an offense." Fed. R. Crim. P. 12(b)(3)(B)(v). "In ruling on a motion to dismiss for failure to state an offense, a district court is limited to reviewing the face of the indictment and, more specifically, the language used to charge the crimes." United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (quoting United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006) (emphasis in original)). "[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend,and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974); see also United States v. Verrusio, 762 F.3d 1, 13 (D.C. Cir. 2014) ().
"[A] pretrial motion to dismiss an indictment allows a district court to review the sufficiency of the government's pleadings, but it is not a permissible vehicle for addressing the sufficiency of the government's evidence." United States v. Mosquera-Murillo, 153 F. Supp. 3d 130, 154 (D.D.C. 2015) (internal citation and quotation marks omitted). Accordingly, when considering a motion to dismiss an indictment, the Court "assumes the truth of [the government's] factual allegations." United States v. Ballestras, 795 F.3d 138, 149 (D.C. Cir. 2015). Dismissal may be granted "only in unusual circumstances" since it "directly encroaches upon the fundamental role of the grand jury." United States v. Stone, 394 F. Supp. 3d 1, 13 (D.D.C. 2019) (internal...
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