United States v. Webster-Valentino
| Decision Date | 13 December 2017 |
| Docket Number | 8:16CR277 |
| Court | U.S. District Court — District of Nebraska |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JESSICA WEBSTER-VALENTINO, BARBARA FREEMONT, AMEN SHERIDAN, RODNEY MORRIS, DORAN MORRIS, JR., FORREST ALDRICH, MITCHELL PARKER, TILLIE ALDRICH, and JEFF MILLER, Defendants. |
This matter is before the Court on several motions to dismiss counts in the Indictment on multiplicity grounds filed by the Defendants: Filing No. 157 filed by Barbara Fremont ("Freemont") supported by a brief (Filing No. 158); Filing No. 163 filed by Doran Morris, Jr. ("Morris, Jr.") supported by a brief (Filing No. 164); Filing No. 168 filed by Amen Sheridan ("Sheridan") adopting Freemont's motion and brief; Filing No. 169 filed by Rodney Morris ("Morris") supported by a brief (Filing No. 170); Filing No. 175 filed by Mitchell Parker ("Parker") supported by a brief (Filing No. 176); Filing No. 179 filed by Jeff Miller ("Miller") supported by a brief (Filing No. 180); Filing No. 182 filed by Tillie Aldrich ("T. Aldrich") adopting Freemont's Motion (Filing No. 157); Filing No. 186 filed by Jessica Webster-Valentino ("Webster-Valentino") supported by a brief (Filing No. 187); and Filing No. 189 filed by Defendant Forrest Aldrich ("F. Aldrich").
The government filed a consolidated brief (Filing No. 197) in opposition to the above motions. The Court denied Defendants' request for an evidentiary hearing and oral argument, and the motions were deemed submitted.
The background and facts alleged in the Indictment are set forth fully in the Findings and Recommendation on the Defendants' Motions to Dismiss for Lack of Subject Matter Jurisdiction (Filing No. 209).
Count I of the Indictment charges Webster-Valentino and Freemont with conspiracy to convert and misapply $5,000 or more from a program receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(A) and § 371, and conspiracy to convert and misapply moneys of a health care benefit program in violation of 18 U.S.C. § 669 and § 371. The other seven defendants are charged in Count II with the same conspiracy as in Count I.
Counts III through XI charge each Defendant with one count of conversion and misapplication of federal program funds in violation of 18 U.S.C. § 666(a)(1)(A). Webster-Valentino and Freemont are additionally charged with aiding and abetting the misapplication and conversion for each other Defendant as described in Counts V through XI.
Counts XII through XX charge each Defendant with one count of misapplication of funds of a healthcare benefit program in violation of 18 U.S.C. § 669. Webster-Valentino and Freemont are additionally charged with aiding and abetting the misapplication and conversion of the healthcare funds for each other Defendant as described in Counts XIV through XX.
Webster-Valentino and Freemont move to dismiss the conspiracy charge against them (Count I) and either the charges for conversion and misapplication of federal program funds under § 666(a)(1)(A) (Counts III-XI) or the charges for misapplication of funds of a healthcare benefit program under § 669 (Counts XII-XX). Webster-Valentino separately requests that, at a minimum, all but one aiding and abetting charge for conversion and misapplication of federal program funds, and all but one aiding and abetting charge for misapplication of funds of a healthcare benefit program, should be dismissed as to her. Similarly, the other seven defendants also move to dismiss the conspiracy charge against them (Count II) and either the charges for conversion and misapplication of federal program funds or the charges for misapplication of funds of a healthcare benefit program. The defendants argue dismissal is necessary because the Counts are multiplicitous.
Counts III through XI of the Indictment charge Defendants under 18 U.S.C. § 666, which provides, in relevant part:
18 U.S.C. § 666.
Defendants are charged in Counts XII through XX with one count of misapplication of funds of a healthcare benefit program in violation of 18 U.S.C. § 669, which provides, in relevant part:
Whoever knowingly and willfully embezzles, steals, or otherwise without authority converts to the use of any person other than the rightful owner, or intentionally misapplies any of the moneys, funds, securities, premiums, credits, property, or other assets of a health care benefit program, shall be fined under this title or imprisoned not more than 10 years, or both[.]
18 U.S.C. § 669(a). "Health care benefit program" is defined as "any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made under the plan or contract." 18 U.S.C. § 669(b); 18 U.S.C. § 24.
Defendants are charged in Count I and Count II with conspiracy to violate the above two statute sections, pursuant to 18 U.S.C. § 371, which provides:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
18 U.S.C. § 371.
Finally, Webster-Valentino and Freemont are charged with aiding and abetting the other defendants in violating § 666(a)(1)(a) and § 669, pursuant to § 2(a), which provides: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 18 U.S.C. § 2(a).
"An indictment is multiplicitous if it charges the same crime in separate counts." United States v. Platter, 514 F.3d 782, 785 (8th Cir. 2008)(citing United States v. Chipps, 410 F.3d 438, 447 (8th Cir. 2005)). A multiplicitous indictment is problematic because "the jury can convict the defendant on both counts, subjecting the defendant to two punishments for the same crime in violation of the double-jeopardy clause of the fifth amendment." Chipps, 410 F.3d at 447 (citing United States v. Ansaldi, 372 F.3d 118, 124 (2d Cir. 2004)).
The defendants argue that the factual circumstances underlying all the counts in the Indictment are the same, and thus the Indictment is multiplicitous. Specifically, the defendants argue that because the funds allegedly misappropriated were both health care funds under § 669, and federal program/tribal funds under § 666(a)(1)(A), the defendants cannot be charged with conversion and misapplication of those same funds under both statute sections, as well as conspiracy to violate those statutes.
"'[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.'" United States v. Wilkinson, 124 F.3d 971, 975 (8th Cir. 1997)(quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).1 "The Blockburger test is met 'notwithstanding a substantial overlap in the proof offered to establish the crimes.'" Wilkinson, 124 F.3d at 975 (quoting Iannelli v. United States, 420 U.S. 770, 785 n. 17 (1975)). Under Blockburger, a court compares the elements of each charged offense to determine if each one requires proof of a fact that the other does not. Ifso, the Blockburger test is satisfied, and the charged offenses are not multiplicitous. See Blockburger, 284 U.S. at 304.
In order to prove theft from a program receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(A), the government must establish four elements: (1) the defendant was an agent of the organization or Indian tribal government; (2) during the dates alleged in the Indictment, the defendant embezzled, stole, obtained by fraud, converted to the use of another without authority, or intentionally misapplied, property of a value of $5,000 or more as part of a single scheme or plan; (3) the property was owned by or under the care/custody/control of the organization or Indian tribal government; and (4) the organization or Indian tribal government received benefits in excess of $10,000 in the one-year period pursuant to a federal program involving a grant, contract, subsidy, or some other form of federal assistance. See 18 U.S.C. § 666(a)-(b); see also Eighth Circuit Manual of Model Jury Instructions (Criminal) § 6.18.666A (Theft Concerning a Program Receiving Federal Funds) (2014).
In order to prove theft or embezzlement in connection with health care benefit program in violation of 18 U.S.C. § 669, the government must establish: (1) the defendant embezzled, stole, or otherwise without authority converted to the use of any person other than the rightful owner, or intentionally misapplied assets, moneys, property, or funds; (2) such assets, moneys, property, or funds belonged to a health care benefit program,...
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