Court filing
Indictment — United States v. Shibley (Dkt. 81, W.D. Wash. No. 2:20-cr-00174)
Filed October 8, 2021 in Shibley; one of 140 filings from this case.
Record facts
| Court | U.S. District Court for the Western District of Washington |
|---|---|
| Filed | 2021-10-08 |
U.S. District Court for the Western District of Washington · No. 2:20-cr-00174-JCC · Doc. 81 · 2021-10-08 · Docket on CourtListener
Full text
GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS MULTIPLICITOUS
COUNTS OR REQUIRE GOVERNMENT ELECTION OF COUNTS - 1
U.S. v. Eric Shibley, CR20-174JCC
UNITED STATES ATTORNEY
700 STEWART STREET, STE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
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The Honorable John C. Coughenour
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
UNITED STATES OF AMERICA,
Plaintiff,
v.
ERIC SHIBLEY,
Defendant.
NO. CR20-174JCC
GOVERNMENT’S RESPONSE TO
MOTION TO DISMISS MULTIPLICITOUS
COUNTS OR REQUIRE GOVERNMENT
ELECTION OF COUNTS (Dkt. #78)
The government files this response in opposition to Defendant Eric Shibley’s
Motion to Dismiss Multiplicitous Counts or Require Government Election of Counts.
Dkt. # 78. Counts 2 and 8 and Counts 4 and 10 of the Indictment are not multiplicitous
and thus dismissal or election of counts is not warranted.
I.
BACKGROUND
On October 15, 2020, the Defendant was indicted by a grand jury with seven
counts of Title 18, United States Code, Section 1343 (Wire Fraud); three counts of Title
18, United States Code, Section 1344(2) (Bank Fraud); and five counts of Title 18,
United States Code, Section 1957 (Money Laundering) related to a scheme to submit
false and fraudulent applications for Paycheck Protection Program (PPP) loans and
Economic Injury Disaster Loans (EIDL). Dkt. #31. During the scheme, the Defendant
Case 2:20-cr-00174-JCC Document 81 Filed 10/08/21 Page 1 of 5
GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS MULTIPLICITOUS
COUNTS OR REQUIRE GOVERNMENT ELECTION OF COUNTS - 2
U.S. v. Eric Shibley, CR20-174JCC
UNITED STATES ATTORNEY
700 STEWART STREET, STE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
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sought multiple PPP and EIDL funds by submitting applications in the name of fake
businesses that he falsely stated had dozens of employees for which the businesses paid
salaries and payroll taxes and thousands of dollars in payroll as of February 15, 2020. To
support his applications, the Defendant also submitted fake tax returns that had not been
filed with the Internal Revenue Service (“IRS”). In reality, the Defendant’s companies
did not have employees, payroll expenses, or revenues as claimed in his applications.
The Defendant’s scheme resulted in the submission of approximately 30 fraudulent PPP
applications to various lenders and over 10 fraudulent EIDL applications to the SBA.
As alleged in the Indictment, the PPP was established by the Coronavirus Aid,
Relief, and Economic Security (“CARES”) Act, a federal law enacted in or around March
2020 and designed to provide emergency financial assistance to the millions of
Americans suffering the economic effects caused by the COVID-19 pandemic. In order
to obtain a PPP loan, a qualifying business was required to submit a PPP loan application
to a participating lender. The loan application was signed by an authorized representative
of the business and required the business to acknowledge the program rules and make
certain affirmative certifications about its eligibility for a PPP loan. In addition,
businesses applying for a PPP loan were required to provide documentation showing their
payroll expenses. The participating lender then processes the PPP loan applications. If a
PPP loan application was approved, the participating lender funded the PPP loan using its
own monies, which were 100% guaranteed by the U.S. Small Business Administration
(“SBA”). Participating lenders in the PPP were not required to be federally insured
financial institutions. In this case, the Defendant sought loans from both federally
insured financial institutions as well as other participating lenders that were not federally
insured. Data from the application, including information about the borrower, the total
amount of the loan, and the listed number of employees, was transmitted by the lender to
the SBA in the course of processing the loan.
The Indictment charges the Defendant with 15 counts in total. Counts 2 and 8
charge the Defendant with wire and bank fraud respectively for the submission of
Case 2:20-cr-00174-JCC Document 81 Filed 10/08/21 Page 2 of 5
GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS MULTIPLICITOUS
COUNTS OR REQUIRE GOVERNMENT ELECTION OF COUNTS - 3
U.S. v. Eric Shibley, CR20-174JCC
UNITED STATES ATTORNEY
700 STEWART STREET, STE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
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fraudulent PPP loan application in the name of Seattle’s Finest Cannabis LLC to
Financial Institution 4 on or around April 25, 2020. Counts 4 and 10 charge the
Defendant with wire and bank fraud respectively for the submission of fraudulent PPP
loan application in the name of Dituri Construction LLC to Financial Institution 1 on or
about May 4, 2020.
II.
ARGUMENT
A.
Legal Standard
Multiplicity occurs when an indictment charges “a single offense in more than one
count.” United States v. Garlick, 240 F.3d 789, 793–94 (9th Cir. 2001). “It is not
determinative whether the same conduct underlies the counts; rather, it is critical whether
the ‘offense’—in the legal sense, as defined by Congress—complained of in one count is
the same as that charged in another.” United States v. Chacko, 169 F.3d 140, 146 (2d
Cir. 1999) (citations omitted). “The test for multiplicity is whether each count ‘requires
proof of an additional fact which the other does not.’” Garlick at 794 (quoting
Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).
“The Blockburger test examines whether each charged offense contains an element not
contained in the other charged offense.” Chacko at 146 (citing United States v. Dixon,
509 U.S. 688 at 696 (1993). “If there is an element in each offense that is not contained
in the other, they are not the same offense for purposes of double jeopardy, and they can
both be prosecuted.” Id. (citing Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir.1995)).
B.
Counts 2 and 8 and Counts 4 and 10 are not multiplicitous.
The Defendant’s argument as it relates to Counts 2 and 8 and Counts 4 and 10 of
the Indictment fail the Blockburger test because the wire fraud and bank fraud statutes
contain different elements. Counts 2 and 4 charge the Defendant with wire fraud in
Case 2:20-cr-00174-JCC Document 81 Filed 10/08/21 Page 3 of 5
GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS MULTIPLICITOUS
COUNTS OR REQUIRE GOVERNMENT ELECTION OF COUNTS - 4
U.S. v. Eric Shibley, CR20-174JCC
UNITED STATES ATTORNEY
700 STEWART STREET, STE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
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violation of 18 U.S.C. § 1343. According to the Ninth Circuit Model Criminal Jury
Instructions, the elements of wire fraud are:
1.
The defendant knowingly devised a scheme or plan to defraud, or a
scheme or plan for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises;
2.
The statements made or facts omitted as part of the scheme were
material; that is, they had a natural tendency to influence, or were
capable of influencing, a person to part with money or property;
3.
The defendant acted with the intent to defraud, that is, the intent to
deceive and cheat; and
4.
The defendant used, or caused to be used, an interstate wire
communication to carry out or attempt to carry out an essential part
of the scheme.
Ninth Circuit Model Criminal Jury Instruction 8.124 (2010).
Counts 8 and 10 charge the Defendant with bank fraud in violation of 18 U.S.C. §
1344(2). According to the Ninth Circuit Model Criminal Jury Instructions, the elements
of bank fraud in violation of 18 U.S.C. § 1344(2) are:
1.
The defendant knowingly carried out a scheme or plan to obtain
money or property from the [financial institution] by making false
statements or promises;
2.
The defendant knew that the statements or promises were false;
3.
The statements or promises were material; that is, they had a natural
tendency to influence, or were capable of influencing, a financial
institution to part with money or property;
4.
The defendant acted with the intent to defraud; and
5.
Fifth, [financial institution] was federally insured.
Ninth Circuit Model Criminal Jury Instruction 8.127 (2010).
Case 2:20-cr-00174-JCC Document 81 Filed 10/08/21 Page 4 of 5
GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS MULTIPLICITOUS
COUNTS OR REQUIRE GOVERNMENT ELECTION OF COUNTS - 5
U.S. v. Eric Shibley, CR20-174JCC
UNITED STATES ATTORNEY
700 STEWART STREET, STE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
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The proof of the wire fraud and bank fraud counts will necessarily overlap, as the
government will call one bank witness that will testify about the particular PPP loan
application. But the counts are not multiplicitous because each statute requires the
government to prove an element that the other statute does not: the wire fraud statute
requires the government to prove that the Defendant used an interstate wire to carry out
the scheme; the bank fraud statute requires the government prove that the Defendant
carried out a scheme to obtain money from a federally insured financial institution. The
Defendant’s argument that the counts are multiplicitous fails the Blockburger test
because each statute contains a unique element.
III.
CONCLUSION
The government respectfully requests that the Court deny the Defendant’s Motion
to Dismiss Multiplicitous Counts or Require Government Election of Counts.
DATED this 8th day of October, 2021.
Respectfully submitted,
TESSA M. GORMAN
Acting United States Attorney
JOSEPH BEEMSTERBOER
Acting Chief, Fraud Section,
Criminal Division
U.S. Department of Justice
s/ Brian Werner
BRIAN WERNER
Assistant United States Attorney
s/ Laura Connelly
LAURA CONNELLY
Trial Attorney
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