United States v. Blythe

• Decision Date: 29 September 2015
• Docket Number: CRIMINAL NO.: WDQ-14-0591
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ANGELA M. BLYTHE Defendant.
• Court: U.S. District Court — District of Maryland

UNITED STATES OF AMERICA, Plaintiff, v. ANGELA M. BLYTHE Defendant.

CRIMINAL NO.: WDQ-14-0591

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, NORTHERN DIVISION

September 29, 2015

MEMORANDUM OPINION

Angela M. Blythe is charged with conspiracy to commit bank fraud,¹ bank fraud,² and false statements to a bank.³ ECF No. 1. Pending are Blythe's motions to dismiss on speedy trial grounds, or alternatively, to dismiss count one, in limine to preclude evidence, and to redact paragraph three from the indictment, ECF Nos. 20, 21, 22, 54, and the government's motion in limine, ECF No. 49. Trial began on September 28, 2015. ECF No. 43. For the following reasons, Blythe's motion to dismiss will be denied without prejudice, and her motion to redact will be denied. The motions in limine will be resolved as discussed herein.

I. Background⁴

This case arises from an investigation into three bank loans made to Louis Strosnider⁵ from 2003 to 2005 by K Bank, BB&T, and Sky Bank. ECF No. 28 at 1. Strosnider allegedly used the loans to buy land from Samuel VanSickle, who owned and developed property in West Virginia and Maryland.⁶ Id.; ECF No. 1 ¶ 2. Blythe is an attorney licensed to practice in West Virginia and Maryland. ECF No. 1 ¶ 1.

From September 1998 to September 2001, Blythe represented VanSickle "and his company Mutual Trust Contracting, Inc., in a civil law suit in the Circuit Court for Garrett County in which VanSickle and his company were accused of civil fraud in the sale of a tract of land in Garrett County." Id. ¶ 3.⁷ The civil suit, styled as Curran, et al., v. VanSickle, et al. ("Curran"), alleged that the plaintiffs had bought land from Mutual Trust Contracting, Inc. ("Mutual Trust"), of which VanSickle wasPresident. ECF No. 21-1 at 2.⁸ Before recording the deed, Mutual Trust allegedly sold three lots within the parcel of land to other buyers. Id. When Mutual Trust recorded the deed, the three lots were excluded. Id. The plaintiffs sued Mutual Trust and VanSickle for fraud. Id. A jury found that Mutual Trust had committed fraud but VanSickle had not. Id.⁹ The plaintiffs moved for judgment notwithstanding the verdict and a new trial on the basis that the jury verdict was irreconcilably inconsistent because VanSickle was Mutual Trust's sole stockholder, officer, and agent. Id.; ECF No. 21-2 at 13-14. The presiding judge granted the motion. ECF No. 21-1 at 2.¹⁰ Thereafter, Curran settled. Id.

From June 2000 to June 2006, Blythe allegedly conspired with VanSickle to defraud banks by preparing and recording deeds and conducting property settlements under VanSickle's false identities. ECF No. 1 ¶¶ 1, 8, 11. For example, in October 2004, Blythe allegedly prepared a false settlement statement in connection with Strosnider's purchase of "Red Run" in Oakland, Maryland, failed to conduct the settlement as indicated on the settlement statement, and concealed that fact from the lender,BB&T. Id. ¶¶ 19-20. In December 2004, Blythe allegedly conducted a settlement for VanSickle under his alias, Donald Blunt, Trustee for Gospel Church. Id. ¶ 11(e).

The government's investigation into the criminal conspiracy began in September 2012. ECF No. 28 at 1, 4.¹¹ On September 23, 2014, Blythe and the government executed an agreement tolling the 10-year statute of limitations for 90 days, not including the date of execution. ECF No. 27 at 1 (sealed).

On December 16, 2014, a federal grand jury indicted Blythe for conspiracy to commit bank fraud, bank fraud, and false statements to a bank. ECF No. 1. On August 3, 2015, Blythe moved to dismiss the indictment on speedy trial grounds, or alternatively, to dismiss count one as barred by the statute of limitations. ECF No. 20. That day, Blythe also moved in limine to exclude reference to her prior representation of VanSickle and Mutual Trust in Curran and to redact paragraph three from the indictment. ECF Nos. 21, 22. On August 31, 2015, the government opposed the motions. ECF Nos. 28, 29, 30. On September 17, 2015, Blythe replied. ECF No. 41, 42.

On September 24, 2015, the government moved in limine to preclude evidence, comment, and argument about the government'scharging decisions and Blythe's recent closing activities. ECF No. 49.¹² On September 25, 2015, Blythe opposed the motion. ECF No. 50. On September 27, 2015, Blythe moved in limine to preclude testimony about real estate transactions for which she had served as closing or settlement attorney because the government had failed to designate an expert on those matters. ECF No. 54.

II. Analysis

A. Motion to Dismiss

1. Motion to Dismiss the Indictment

Blythe initially argued her motion under the Sixth Amendment; however, she has conceded that the Sixth Amendment--which governs post-indictment delay--does not apply. ECF Nos. 20-1 at 2-4; 42 at 1 n.1. Rather, Blythe now argues that the indictment should be dismissed for pre-indictment delay under the Fifth Amendment. ECF No. 42 at 1.

To establish a due process violation from pre-indictment delay, a court must first "assess whether the defendant has suffered actual prejudice." United States v. Automated Med. Labs., Inc., 770 F.2d 399, 403 (4th Cir. 1985). If there has been actual prejudice, "the court must then consider theGovernment's reasons for the delay, balancing the prejudice to the defendant with the Government's justification for delay." Id. at 403-04. "The basic inquiry then becomes whether the Government's action in prosecuting after substantial delay violates 'fundamental conceptions of justice' or 'the community's sense of fair play and decency.'" Id. at 404 (quoting United States v. Lovasco, 431 U.S. 783, 790 (1977)).

Blythe argues that during the delay in bringing charges against her, two key witnesses--John Dever and Genevieve Scheigh--have died and other witness's memories have faded. ECF Nos. 20-1 at 4; 42 at 1-2. Dever allegedly appraised Red Run, and Scheigh allegedly executed a "release of deed of trust" for one of the real estate transactions alleged in count one. ECF No. 42 at 2. The government argues that Blythe has failed to explain what Dever and Scheigh would have testified about and how that testimony would have aided her defense. ECF No. 28 at 4. Blythe contends that "what they would have testified to is beside the point. What is important is their role in the alleged conspiracy." ECF No. 42 at 1.

To the contrary, when a defendant asserts prejudice because of witness unavailability, she "must 'demonstrate, with specificity, the expected content of that witness'[s] testimony' and 'that the information the witness would have provided was not available from other sources.'" United States v. Kalbflesh,No. 14-4606, 2015 WL 4759522, at *1 (4th Cir. Aug. 13, 2015) (quoting Jones v. Angelone, 94 F.3d 900, 908 (4th Cir. 1996)). That requires the defendant to "relate the substance of the testimony which would be offered by the missing witnesses . . . in sufficient detail to permit a court to assess accurately whether the information is material to the accused's defense." Id. (quoting United States v. Bartlett, 794 F.2d 1285, 1290 (4th Cir. 1986)). Speculation about potential prejudice from the passage of time is insufficient. Id. The defendant must carry a "heavy burden" to prevail on a claim of prejudice from witness unavailability. United States v. Harris, 551 F. App'x 699, 703 (4th Cir. 2014) (citation omitted).

Here, beyond noting Dever's and Scheigh's alleged roles in the conspiracy and positing that Blythe and others "will not be able to recall the events at issue with any certainty," ECF No. 20-1 at 4, Blythe has failed to demonstrate actual prejudice. See Automated Med. Labs., Inc., 770 F.2d at 404 (finding slight, if any, prejudice when delay resulted in the loss of a key witness whose testimony was "highly speculative"); Harris, 551 F. App'x at 704.

Even had Blythe demonstrated actual prejudice, there is no evidence that the government intentionally delayed its investigation, which began in September 2012 after a criminal referral by the FDIC. ECF No. 28 at 4. The lapse of time fromSeptember 2012 to December 2014 is not particularly long; nevertheless, even "delay result[ing] from a protracted investigation," if "conducted in good faith," does not deprive a defendant of due process. United States v. Uribe-Rios, 558 F.3d 347, 358 (4th Cir. 2009) (citation omitted); see also Lovasco, 431 U.S. at 795-96 ("investigative delay," distinct from "delay undertaken by the Government solely to gain tactical advantage over the accused," does not establish a due process violation) (internal quotation marks and citation omitted); Automated Med. Labs., Inc., 770 F.2d at 404 (no due process violation arising from 45 month delay).

Recognizing, however, that Blythe may be unable to demonstrate actual prejudice or intentional delay until the close of evidence, the Court will deny the motion to dismiss without prejudice to Blythe renewing her motion at the close of evidence.

2. Motion to Dismiss Count One

Blythe alternatively argues that the government has failed to allege with specificity conduct by Blythe within the ten year limitations period. ECF No. 20-1 at 1. The government argues that it has alleged conduct within the ten year limitations period, and whether count one is time-barred is a question of fact. ECF No. 28 at 5.

On count one, the statute of limitations for conspiracy to commit bank fraud is ten years. See 18 U.S.C. § 3293(1). The government has alleged that Blythe and VanSickle engaged in a conspiracy from June 2000 to June 2006, and Blythe performed acts in furtherance of the conspiracy in October and December 2004. ECF No. 1 ¶¶ 11(e), 19-20. The agreement executed by the parties tolled the statute of limitations for 90 days--until December 22, 2014--after the date Blythe was indicted. ECF Nos. 1, 27 (sealed). The statute of limitations in 18 U.S.C. § 3293(1) "is not jurisdictional." United States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir. 1994) (quoting United...