Court filing
Indictment — United States v. Shibley (Dkt. 78, W.D. Wash. No. 2:20-cr-00174)
Filed October 1, 2021 in Shibley; one of 140 filings from this case.
Record facts
| Court | U.S. District Court for the Western District of Washington |
|---|---|
| Filed | 2021-10-01 |
U.S. District Court for the Western District of Washington · No. 2:20-cr-00174-JCC · Doc. 78 · 2021-10-01 · Docket on CourtListener
Full text
Honorable John Coughenour
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON, SEATTLE
UNITED STATES OF AMERICA, )
) No. CR20-174 JCC
Plaintiff,
)
) DEFENSE MOTION TO DISMISS
v.
) MULTIPLICITOUS COUNTS OR REQUIRE
) GOVERNMENT ELECTION OF COUNTS
ERIC SHIBLEY,
)
) Noted: October 8, 2021
Defendant.
)
_______________________________)
Motion
Defendant Eric Shibley, through undersigned counsel, moves the court for an
order dismissing either counts 2 and 4 or counts 8 and 10 of the indictment as
multiplicitous. Alternatively, the court should direct the government to elect which
counts upon which it will proceed at trial. This motion is based on the due process and
double jeopardy clauses of the Fifth Amendment to the United States Constitution and the
adjoined memorandum.
Relevant procedural and factual background
Mr. Shibley is charged by Indictment with seven counts of wire fraud (18 U.S.C. §
1343), three counts of bank fraud (18 U.S.C. § 1344(2)), and five counts of money
laundering (18 U.S.C. § 1957). The charges arise from various loan applications he
1
Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-321
Case 2:20-cr-00174-JCC Document 78 Filed 10/01/21 Page 1 of 5
made in the spring of 2020 in connection with the federal Paycheck Protection Program
(PPP) and the Economic Injury Disaster Loan (EIDL) program. The Indictment alleges a
scheme to defraud various financial institutions and the U.S. Small Business
Administration in order to unjustly enrich himself by the use of false statements about
monthly payroll expenses, employees and revenues of entities that Mr. Shibley
controlled. In a section spanning several pages and headed “Manner and Means of the
Scheme to Defraud”(paragraphs 35— 45), the Indictment details the alleged actions of
Mr. Shibley in committing this fraud. Based on that rendition the Indictment then
charges seven counts of wire fraud, based on the specific electronic transmissions of
different loan notes and PPP and EIDL loan applications. (Counts 1 - 7).
A short section charging bank fraud follows. It begins by re-alleging virtually the
entirety of the previous 45 paragraphs of the indictment, including everything supporting
the wire fraud allegations. Short sections on “The Scheme to Defraud”, “The Purpose of
the Scheme to Defraud”, and “Execution of the Scheme to Defraud” follow, but they are
repetitive of previous language. Three separate bank fraud counts are alleged based on
the submission of two particular PPP loan applications and a signed bank note. (Counts 8,
9 and 10).
Two of the three bank fraud counts allege virtually identical conduct already
charged in other wire fraud counts. Count 2 alleges wire fraud based on an April
2
Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-321
Case 2:20-cr-00174-JCC Document 78 Filed 10/01/21 Page 2 of 5
25, 2020 “Electronic submission of fraudulent PPP loan application in the name of
Seattle’s Finest Cannibis LLC to Financial Institution 4.” Count 8 alleges bank
fraud based on an April 25, 2020 “Submission of fraudulent PPP loan application
in the name of Seattle’s Finest Cannabis LLC to Financial Institution 4.” In a
similar fashion the wire fraud in Count 4 and the bank fraud in Count 10 are both
specifically based on the May 4, 2020 electronic “submission of fraudulent PPP
loan application in the name of Dituri Construction LLC to Financial Institution 1.”
Argument
Counts 2 and 4 are multiplicitous with respect to Counts 8 and 10 because
they charge the same conduct in two different counts and, in this case, their
respective proofs are identical.
Multiplicity in an indictment occurs when one crime or act has been divided
into more than one count. Gerberding v. United States, 471 F.2d 55, 58 (8th Cir.
1973). Multiplicitous indictments violate the double jeopardy clause of the Fifth
Amendment by subjecting a defendant to punishment for the same offense more
than once. United States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999). They also
create a psychological effect on the jury at trial by suggesting that the alleged
3
Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-321
Case 2:20-cr-00174-JCC Document 78 Filed 10/01/21 Page 3 of 5
criminal activity is of greater scope and gravity than it actually is. United States v.
Marquardt, 786 F.2d 771, 778 (7th Cir. 1986).
The proper remedy for a multiplicitous indictment is an election or
consolidation of the offending counts and dismissal of the surplus count. United
States v. Seda, 978 F.2d 779 (2d Cir. 1992). Either Mr. Shibley acted fraudulently
when he electronically submitted the two PPP loan applications referenced in these
counts or he acted with no fraudulent intent. But he should not have to defend
himself against double charges arising from identical evidence and an identical
alleged fraud scheme. Nor should he be forced to combat the impression, sure to
be harbored by the jury, that the dual charges reflect a greater scope and gravity of
criminal activity that it actually was.
Submitted this 1st day of October, 2021.
/s/ Michael Nance
Attorney for defendant Eric Shibley
4
Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-321
Case 2:20-cr-00174-JCC Document 78 Filed 10/01/21 Page 4 of 5
Certificate of Service
I hereby certify that on the 1st day of October, 2021, I electronically filed the
foregoing with the clerk of the court using the CM/ECF system. Notice of this
filing will be sent electronically to counsel of record for other parties.
/s/ Michael Nance, WSBA # 13933
Email: michaelnancelaw@gmail.com
5
Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-321
Case 2:20-cr-00174-JCC Document 78 Filed 10/01/21 Page 5 of 5File and source
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