United States v. Sterling
| Decision Date | 29 July 2021 |
| Docket Number | CRIMINAL ACTION 20-0005 2-BAJ-RLB |
| Parties | UNITED STATES OF AMERICA v. ELLIOT STERLING |
| Court | U.S. District Court — Middle District of Louisiana |
Before the Court are four motions to dismiss all or part of the Indictment (Doc. 1) pursuant to Federal Rule of Criminal Procedure (“Rule”) 121 filed by pro se Defendant Elliot Sterling. See (Docs. 37, 56, 59, 74). The Motions are opposed. See (Docs. 58, 61, 70, 90). For the reasons described, the Motions are DENIED.
On August 3, 2020, the Federal Grand Jury returned a fourteen-count Indictment against Defendant Elliot Sterling alleging violations of wire fraud, financial aid fraud, and money laundering. See (Doc. 1). On March 16, 2021 the Court granted Defendant's Motion to Proceed Pro Se (Doc. 28), and later appointed stand-by counsel. (Doc. 39 Doc. 42).
On March 16, 2021, Defendant filed his first Motion to Dismiss, arguing that his due process rights under the Fifth Amendment were violated, that the 1 Defendant's Motions to Dismiss were both filed “Pursuant to Rule 48 Rules.” (Doc. 37, p. 1); (Doc. 59, p. 1). Defendant's first Motion to Quash was filed “Pursuant to Rule 117.” (Doc. 56, p. 1). Defendant's second Motion to Quash merely states “Defendant hereby moves the Court to set Plaintiffs Complaint.” (Doc. 74). All pretrial motions in criminal matters are governed by Federal Rule of Criminal Procedure (“Rule”) 12. Government produced irrelevant evidence, that his Sixth Amendment right to a speedy trial was violated, that the Government has violated its responsibility by prosecuting a case that cannot be proved beyond a reasonable doubt, and that the charges against him were brought in retaliation for his outspoken criticism of the Department of Justice. (Doc. 37, p. 2). Defendant urges that these alleged defects warrant the dismissal of the Indictment in its entirety. (Id.). The Motion is opposed. (Doc. 58).
On May 24, 2021, Defendant filed his first “Motion to Quash, ” arguing that the Government improperly charged him multiple times for the same offense. (Doc. 56, p. 2). The Motion is opposed. (Doc. 61).
On June 2, 2021, Defendant filed his second Motion to Dismiss, asserting that the Indictment should be dismissed because he (Doc. 59-1, p. 1). The Motion is opposed. (Doc. 70).
On June 21, 2021, Defendant filed a second “Motion to Quash, ” arguing that Count Fourteen of the Indictment should be dismissed. (Doc. 74, p. 1). The Motion is opposed. (Doc. 90).
Hearings are not necessary on any of Defendant's motions. “Evidentiary hearings are not granted as a matter of course, but are held only when the defendant alleges sufficient facts which, if proven, would justify relief.” United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983). Because Defendant has not provided “sufficiently definite, specific, detailed, and nonconjectural [allegations] to enable the court to conclude that a substantial claim is presented, ” a hearing is not required. Id.
“The propriety of granting a motion to dismiss an indictment under [] Rule 12 by pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact.” United States v. Miller, 491 F.2d 638, 647 (5th Cir. 1974). Defendant's first Motion to Dismiss (Doc. 37) contains several conclusory factual allegations that Defendant believes warrant dismissal of the Indictment. The Court will address each in turn.
Defendant asserts that “eighty percent of the discovery has nothing to do with the charging document or true bill.” (Doc. 37, p. 2). Even were this a valid reason to dismiss the Indictment, the Court addressed these arguments both in court on May 20, 2021, and in its Order denying Defendant's Motion for Relevance. See (Doc. 75). Therefore, the Court declines to dismiss the Indictment for the reasons previously provided.
Defendant argues that his “six amendment [sic] was also violated with the attorney client relationship.” (Doc. 37, p. 2). Specifically, Defendant alleges that “[t]he prosecutor is using methods from herself and the pro bono attorney for more time.” (Id.).
The Sixth Amendment guarantees criminal defendants the right to a speedy and public trial. U.S. const. Amend. VI. This safeguard is amplified by the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, which United States v. Johnson, 29 F.3d 940, 942 (5th Cir. 1994) (citing 18 U.S.C. § 3162(a)(2)). The Speedy Trial Act, however, provides several excludable periods of delay. For example, “the time between the filing of the motion and the hearing on that motion, even if a delay between the motion and the hearing is unreasonable, ” is excludable. Johnson, 29 F.3d at 942 43 (citing Henderson v. United States, 476 U.S. 321, 329-30 (1986)). Similarly, the Speedy Trial Act excludes any period of delay resulting “from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(D). The Speedy Trial Act also considers whether to grant a continuance because “the case is so unusual or complex, due to . . . the nature of the prosecution . . . that it is unreasonable to expect adequate preparation for pretrial proceeding or for the trial itself within the time limits established by” the Speedy Trial Act. 18 U.S.C. § 3161(h)(7)(B)(ii).
The Speedy Trial Act explicitly provides that “[t]he defendant shall have the burden of supporting such motion.” 18 U.S.C. § 3162(a)(2). Here, Defendant has not made any showing that the Speedy Trial Act has been violated. Further, several excludable periods of delay have been invoked in this case. For instance, prior counsel for Defendant filed a motion to continue the trial and to suspend the Speedy Trial Act provisions due to the complexity of the matter. (Doc. 18). That motion was granted on October 21, 2020. See (Doc. 19). The Order declaring the case complex was never withdrawn. There have also been several other excludable periods of delay, including the time necessary to promptly dispose of the motions filed by Defendant.[2] See 18 U.S.C. § 3161(h)(1)(H) (). Thus, Defendant has not established a violation of the Speedy Trial Act or the Sixth Amendment. Therefore, Defendant's Motion is denied on this basis.
Defendant argues that this case involves prosecutorial misconduct, in that the Government allegedly forced Defendant's former clients to “come forward [] with sworn statements accusing the prosecutor of bribing them to be a witness who is told to lie, forcing them to be a witness who is told to lie and using scare tactics for them to be a witness who is told to lie.” (Doc. 37, p. 2).
“Evidentiary issues bearing on possible prosecutorial misconduct should normally be reserved for trial, and should not be determined on a pretrial motion to dismiss.” United States v. Bates, 600 F.2d 505, 511 (5th Cir. 1979) (citing Miller, 491 F.2d at 647). The defendant in Bates claimed “that the prosecutor intimidated, coerced and induced potential defense witnesses not to testify for [defendant] or to change their statements to favor the government.” Id. The United States Court of Appeals for the Fifth Circuit has instructed that these were “precisely the sort of factual questions best reserved for trial.” Id. Therefore, the Court will reserve ruling on Defendant's claims until trial, at which time he will be permitted to cross-examine witnesses on these allegations.[3]
Defendant alleges that his assets were unlawfully seized. (Doc. 37, p. 2). Specifically, Defendant asserts that the Government used “illegal power tactics” to gain control of his assets. (Doc. 37, p. 2). This assertion (for which the Defendant did not provide supporting facts or case law) does not contemplate a defect in the Indictment that would warrant dismissal of the underlying charges.
Defendant's assets were lawfully seized pursuant to a federal seizure warrant issued by the Court on May 4, 2020.[4] See (Doc. 45); (Doc. 115). At the time Defendant's motion to dismiss was filed, he did not have access to the seizure warrant in this case. However, on April 20, 2021, the seizure warrants, affidavits, and seizure return warrants for these assets were unsealed, and the United States was ordered to provide Defendant with copies of the aforementioned documents. See (Doc. 46).
The Indictment also contains a forfeiture allegation notifying Defendant that, if he is convicted of wire fraud or money laundering, he will be required to forfeit “any and all property that constitutes or is derived from the proceeds the defendant obtained directly or indirectly” as a result of these offenses. See (Doc. 1, p. 19-20). If Defendant is convicted, forfeiture of these assets is mandatory. 21 U.S.C. § 853(a)(1). If Defendant is not convicted, he can challenge the seizure of his assets in the pending civil forfeiture action filed by the United States. See, e.g. 21-CV-00129-JWD-SDJ.
Defendant alleges that the...
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