Indictment — United States v. Shibley (Dkt. 82, W.D. Wash. No. 2:20-cr-00174)

Record facts

U.S. District Court for the Western District of Washington · No. 2:20-cr-00174-JCC · Doc. 82 · 2021-10-18 · Docket on CourtListener

Full text

ORDER 
CR20-0174-JCC 
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THE HONORABLE JOHN C. COUGHENOUR 
UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 
AT SEATTLE 
UNITED STATES OF AMERICA, 
 
Plaintiff, 
v. 
ERIC SHIBLEY, 
 
Defendant. 
CASE NO. CR20-0174-JCC 
ORDER 
 
This matter comes before the Court on Defendant’s motion for a trial without COVID-
related restrictions (Dkt. No. 77) and his motion to dismiss assertedly multiplicitous counts or, 
alternatively, require the Government to elect the counts for which it will try him (Dkt. No. 78). 
Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral 
argument unnecessary and hereby DENIES both motions for the reasons explained below. 
A. 
Motion for Trial Without COVID-related Restrictions 
Defendant asks the Court to order that mask-wearing in the courtroom be optional for 
“trial participants and the public, alike, and that no mask mandate apply for vaccinated persons,” 
and “for removal of Plexiglass barriers in the courtroom.” (Dkt. No. 77 at 2.)  
Although the District’s General Orders require “[a]ll individuals” to wear a facemask 
“unless directed to remove their mask by the presiding judge,” W.D. Wash., General Order 11-
21 (August 13, 2021), that does not mean a judge may simply suspend masking requirements 
Case 2:20-cr-00174-JCC     Document 82     Filed 10/18/21     Page 1 of 3

 
ORDER 
CR20-0174-JCC 
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wholesale. Moreover, as the Government points out, under the General Order, the default 
procedure is for individuals addressing the Court and witnesses on the stand to remove their 
masks. Id. at 2. 
Moreover, while Defendant and his counsel may be vaccinated, recent studies suggest 
that vaccine immunity may wane over time,1 and the highly transmissible Delta variant is 
thought to spread readily even among vaccinated people.2  
Finally, while Defendant relies on the Fifth and Sixth Amendments to the Constitution, 
he cites no legal authority supporting his position except for a single case in the Southern District 
of New York that rejected a Confrontation Clause challenge to mask-wearing requirements. 
The Court DENIES Defendant’s motion to hold trial without COVID-related protections. 
B. 
Motion to Dismiss Multiplicitous Counts 
The indictment alleges that Defendant obtained COVID-19 pandemic relief funds 
authorized under the CARES Act by submitting fraudulent applications on behalf of several 
business entities he controlled that, in fact, had no business operations. (See generally Dkt. No. 
31.) Defendant is charged with seven counts of wire fraud, three counts of bank fraud, and five 
counts of money laundering. (Id. at 9–15.) He argues that, because Counts 2 and 4 alleging wire 
fraud are based on “virtually identical conduct” as Counts 8 and 10 alleging bank fraud, the 
counts are multiplicitous and violate Defendant’s rights under the Constitution’s Double 
 
1 Hiam Chemaitelly, et al., Waning of BNT162b2 Vaccine Protection against SARS-CoV2 
Infection in Qatar, NEW ENG. J. OF MED. (OCT. 6, 2021), available at https://www.nejm.org/ 
doi/full/10.1056/NEJMoa2114114?query=featured_home; Einav v. Levin, et al., Waning 
Immune Humoral Response to BNT162b2 Covid-19 Vaccine over 6 Months, NEW ENG. J. OF 
MED. (Oct. 6, 2021), available at https://www.nejm.org/doi/full/10.1056/NEJMoa2114583? 
query=featured_home. 
2 Nidhi Subbaraman, How Do Vaccinated People Spread Delta? What the Science Says, NATURE 
(Aug. 12, 2021), available at https://www.nature.com/articles/d41586-021-02187-1; see also 
Interim Public Health Recommendations for Fully Vaccinated People, CTRS. FOR DISEASE 
CONTROL & PREVENTION (Sep. 1, 2021), available at https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/fully-vaccinated-guidance.html (recommending that fully vaccinated people wear 
mask in “public indoor settings in areas of substantial or high transmission”). 
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ORDER 
CR20-0174-JCC 
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Jeopardy Clause. (Dkt. No. 78 at 2–4.) 
Where the same conduct violates multiple statutes, the Government’s ability to charge 
separate offenses depends on the test from Blockburger v. United States, 284 U.S. 299, 304 
(1932). Under Blockburger, charging the same conduct in separate counts is generally 
permissible if each charge requires proof of an element that the other does not. United States v. 
Zalapa, 509 F.3d 1060, 1062 n.1 (9th Cir. 2007). It does not matter that there may be “a 
substantial overlap in the proof offered to establish the crimes.” United States v. Wahchumwah, 
710 F.3d 862, 869 (9th Cir. 2013). 
Defendant is charged with wire fraud under 18 U.S.C. § 1343 and bank fraud under 18 
U.S.C. § 1344(2). The wire fraud statute requires the Government to prove a wire transmission in 
interstate commerce; the bank fraud statute does not. The bank fraud statute requires proof that 
the target of the fraud was a federally insured financial institution; the wire fraud statute does 
not. Thus, the indictment is not multiplicitous. See Bald Eagle Area School Dist. v. Keystone 
Fin., Inc., 189 F.3d 321, 330 (3d Cir. 1999) ( “[T]he same set of facts can support convictions for 
mail fraud, wire fraud, bank fraud and securities fraud without giving rise to any multiplicity 
problems. Each of those offenses requires proof of a fact which the others do not.” (citations 
omitted)). The Court thus DENIES Defendant’s motion to dismiss. 
For the foregoing reasons, Defendant’s motions (Dkt. Nos. 77–78) are both DENIED. 
DATED this 18th day of October 2021. 
A 
John C. Coughenour 
UNITED STATES DISTRICT JUDGE 
 
Case 2:20-cr-00174-JCC     Document 82     Filed 10/18/21     Page 3 of 3

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