United States v. Recker

• Decision Date: 01 March 2013
• Docket Number: No. 12-CR-2027-LRR,12-CR-2027-LRR
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL RECKER, Defendant.
• Court: U.S. District Court — Northern District of Iowa

UNITED STATES OF AMERICA, Plaintiff,

v.MICHAEL RECKER, Defendant.

No. 12-CR-2027-LRR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION

DATED: March 1, 2013

ORDER

TABLE OF CONTENTS

I. INTRODUCTION........................................ 2

II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND ......... 2

A. Indictment ........................................ 2

1. Grain elevator fraud ............................. 2

2. Bankruptcy fraud ............................... 3

B. Motions .......................................... 4

III. MOTION TO SEVER COUNTS ..............................5

A. Same or Similar Character ............................. 6

B. Common Scheme or Plan ............................. 11

C. Summary ........................................ 11

IV. MOTIONS TO DISMISS .................................. 12

A. Motion to Dismiss Count 12............................ 13

1. Parties' arguments ............................. 13

2. Analysis .................................... 14

B. Motion to Dismiss Count 13............................ 17

1. Parties' arguments ............................. 17

2. Analysis .................................... 18

V. CONCLUSION ........................................ 20

I. INTRODUCTION

The matters before the court are Defendant Michael Recker's: (1) "Motion to Sever Counts" (docket no. 27); (2) "Motion to Dismiss Count 12" (docket no. 29); (3) "Amended Motion to Dismiss Count 12" (docket no. 32); and (4) "Motion to Dismiss Count 13" (docket no. 28) (collectively, "Motions").

II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

A. Indictment

On October 23, 2012, a grand jury returned a seventeen-count Superseding Indictment ("Indictment") (docket no. 13) against Defendant. Counts 1 through 11 and Count 17 charge Defendant with various offenses relating to a grain elevator fraud. Counts 12 through 16 charge Defendant with various offenses relating to a bankruptcy fraud.

1. Grain elevator fraud

The grain elevator fraud arises out of an alleged scheme involving false grain elevator scale tickets. The Indictment alleges that, as part of this grain elevator fraud, Defendant caused Brad Haberman, a grain company employee, to issue false grain elevator scale tickets. Some of these tickets falsely claimed that the soybeans or corn that Defendant delivered were of a high quality when, in fact, the soybeans or corn were of a low quality. Other tickets falsely claimed that Defendant had delivered soybeans or corn when, in fact, he had made no such delivery. The grain company paid Defendant based on the information in the false grain elevator scale tickets. Defendant then paid Haberman for Haberman's part in the scheme. Defendant wrote checks to Haberman with false notations indicating that the checks were issued for legitimate purposes, such as the purchase of agricultural equipment. The Indictment alleges that Defendant executed this scheme from approximately November 11, 2008, to October 18, 2009.

The Indictment contains twelve counts relating to the grain elevator fraud. Count 1 charges Defendant with conspiring to falsely make, issue, forge or counterfeit official forms, specifically, grain elevator scale tickets, in violation of 18 U.S.C. § 371. Counts2 through 9 charge Defendant with causing another to make, issue, alter, forge or counterfeit a false grain elevator scale ticket in violation of 7 U.S.C. §§ 87b and 87c. Counts 10 and 11 charge Defendant with making a false statement to a federal agent in violation of 18 U.S.C. § 1001. Specifically, Count 10 alleges that Defendant told Special Agents with the Internal Revenue Service ("IRS") that he did not know Haberman when, in fact, he did know Haberman. Count 11 alleges that Defendant told Special Agents with the IRS that he did not know about checks written to Haberman when, in fact, he knew about such checks. Finally, Count 17 charges Defendant with obstructing and impeding the administration of the internal revenue laws by engaging in financial transactions in a manner designed to hide and conceal income, including income derived from the grain elevator fraud, in violation of 26 U.S.C. § 7212.

2. Bankruptcy fraud

The Indictment also alleges that Defendant engaged in fraudulent conduct in connection with a bankruptcy proceeding. Specifically, the Indictment alleges that, on approximately April 5, 2009, Defendant sold a combine at auction for $52,039.00. Approximately two months later, Defendant filed for bankruptcy protection in the United States Bankruptcy Court for the Northern District of Iowa. In his bankruptcy petition and supporting documents, Defendant failed to disclose that he sold the combine. In a meeting of bankruptcy creditors, Defendant was questioned about the combine. Defendant claimed under oath that he sold the combine on behalf of R.M. and he denied having any ownership interest in the combine or its sale proceeds. Thereafter, Defendant filed a document with the United States Bankruptcy Court. The document was titled "Information For Judges Use Concerning the Issue of Whether to Deposit Funds or Not." Indictment at 14. Attached to the document was a letter purportedly from R.M. to the auction company stating that R.M. owned the combine and that Defendant was selling the combine on R.M.'s behalf. In fact, Defendant knew that R.M. had not written, signed or sent the letter. Furthermore, Defendant knew that R.M. did not have an ownership interest in the combine and thatDefendant had not sold the combine on R.M.'s behalf. The Indictment alleges that Defendant executed this scheme to defraud from approximately May 2009 to September 2010.

The Indictment contains five counts relating to the bankruptcy fraud. Count 12 charges Defendant with wire fraud in violation of 18 U.S.C. § 1343. Specifically, Count 12 alleges that, in furtherance of the scheme to defraud, Defendant caused the Clerk of Court for the United States Bankruptcy Court to transmit an interstate wire communication—specifically, the filing that included the letter purportedly from R.M. Count 13 charges Defendant with aggravated identity theft in violation of 18 U.S.C. § 1028A. Specifically, Count 13 alleges that Defendant knowingly used a means of identification of another, that is, R.M.'s name and signature. Count 14 charges Defendant with bankruptcy fraud by concealment in violation of 18 U.S.C. § 152(1). Count 15 charges Defendant with bankruptcy fraud by false oath in violation of 18 U.S.C. § 152(2). Finally, Count 16 charges Defendant with falsification of records in a bankruptcy proceeding in violation of 18 U.S.C. § 1519.

B. Motions

On January 7, 2013, Defendant filed the Motion to Sever Counts, the Motion to Dismiss Count 12 and the Motion to Dismiss Count 13. On January 9, 2013, Defendant filed the Amended Motion to Dismiss Count 12, which replaces the original Motion to Dismiss Count 12.¹ On January 28, 2013, the government filed a Resistance to the Motion to Sever Counts (docket no. 33), a Resistance to the Motion to Dismiss Count 12 (docket no. 35) and a Resistance to the Motion to Dismiss Count 13 (docket no. 34). Neither partyrequests a hearing on the Motions, and the court finds that a hearing is unnecessary. The Motions are fully submitted and ready for decision.

III. MOTION TO SEVER COUNTS

In the Motion to Sever Counts, Defendant requests that the court sever Counts 1 through 11 and Count 17, which relate to the grain elevator fraud, from Counts 12 through 16, which relate to the bankruptcy fraud. Defendant first argues that Counts 1 through 11 and Count 17 are improperly joined with Counts 12 through 16 under Federal Rule of Criminal Procedure 8. Defendant alternatively argues that, even if joinder is proper under Rule 8, the court should nevertheless sever the counts pursuant to Federal Rule of Criminal Procedure 14. Because the court concludes that the counts are misjoined under Rule 8, the court finds it unnecessary to address Defendant's arguments under Rule 14.

Under Rule 8, an "indictment or information may charge a defendant in separate counts with [two] or more offenses if the offenses charged . . . are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Fed. R. Crim. P. 8(a); see also United States v. Mann, 701 F.3d 274, 289 (8th Cir. 2012) ("Rule 8(a) governs the joining of offenses and permits the joinder of offenses that are 'of the same or similar character or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.'" (quoting Fed. R. Crim. P. 8(a)). "'The rule is broadly construed in favor of joinder to promote judicial efficiency.'" United States v. Midkiff, 614 F.3d 431, 439 (8th Cir. 2010) (quoting United States v. McCarther, 596 F.3d 438, 441-42 (8th Cir. 2010)); see also United States v. Taken Alive, 513 F.3d 899, 902 (8th Cir. 2008) ("The rule is broadly construed in favor of joinder to promote the efficient administration of justice."). When determining whether joinder is proper under Rule 8, the court looks only to the allegations contained in the indictment. See Schaffer v. United States, 362 U.S. 511, 513 (1960) (noting that "[t]he allegations of the indictment . . . met the explicit provisions of Rule 8(b) as to joinder of defendants"); see also United States v. Lane, 474 U.S. 438, 447 (1986)(discussing Schaffer); United States v. Locklear, 631 F.3d 364, 368 (6th Cir. 2011) ("'Whether joinder was proper under Rule 8(a) is determined by the allegations on the face of the indictment.'" (quoting United States v. Chavis, 296 F.3d 450, 456 (6th Cir. 2002))); United States v. Wadena, 152 F.3d 831, 848 (8th Cir. 1998) ("An indictment must reveal on its face a proper basis for joinder." (citing United States v. Bledsoe, 674 F.2d 647, 655 (8th Cir. 1982))); United States v. Velasquez, 772 F.2d 1348, 1354 (7th Cir. 1985) ("[T]he test for misjoinder is what the indictment...