Motion to Dismiss the Indictment — United States v. Bock

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Defendant's Motion to Dismiss the Indictment or, in the Alternative, for a Bill of Particulars, Doc. 194 filed December 15, 2023 in United States of America v. Aimee Marie Bock, Criminal No. 22-CR-223 (NEB/TNL), in the U.S. District Court, District of Minnesota. The motion states that the indictment alleges that Defendant conspired with multiple individuals to receive kickbacks in the Federal Nutrition Food Program, and argues that it is defective because it does not assert with sufficient clarity her connection to the crimes. It argues that administrative fees charged by sponsoring organizations are lawful and that the indictment does not allege that kickbacks are inherently fraudulent. In the alternative, it seeks a bill of particulars, and it is signed /s/ Kenneth U. Udoibok, attorney for Defendant.

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

United States of America,
Plaintiff,
vs.
Aimee Marie Bock (1),
Defendant.

CRIMINAL NO: 22-CR-223 (NEB/TNL)

DEFENDANT’S MOTION TO DISMISS THE INDICTMENT OR, IN THE
ALTERNATIVE, FOR A BILL OF PARTICULARS

The Government returned a multiple count indictment against Defendant Aimee
Marie Bock (hereinafter “Defendant”), alleging that she conspired with multiple
individuals to receive kickbacks in the Federal Nutrition Food Program in violation of
Title 18, United States Code, §371, §1343, §1956 and §1957.  (Doc. 1).
However, the indictment is fatally defective because it fails to assert with
sufficient clarity Defendant’s connection to the crimes at issue.  The government alleged
that Feeding Our Future retained “10 to 15 percent of the funds as an administrative fee
in exchange for sponsoring the sites, submitting reimbursement claims, and disbursing
the federal funds.” (Id at ¶8).  Sponsoring organizations charging administrative fees are
lawful.  See 7 CFR  225, 7 CFR § 226.4(a), 7 CFR § 223.6(f)(iv), and 7 CFR
§226.15(e)(6)(i). The Department of Agriculture and Minnesota Department of Education
authorizations therefore entitled Feeding Our Future to use those fees for administrative
CASE 0:22-cr-00223-NEB-DTS     Doc. 194     Filed 12/15/23     Page 1 of 5

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purposes. The Government has not alleged that Defendant Bock used the funds she
procured pursuant to 7 CFR 225 and 7 CFR 226 for any other purpose than planning,
organizing, and managing a food service. Instead, the Government summarily classifies
these administrative fees as kickbacks.
Motions to dismiss are generally governed by Rules 7 and 12 of the Federal Rules
of Criminal Procedure. Under Rule 12, “a party may raise by pretrial motion any defense,
objection, or request that the court can determine without a trial on the merits.” Fed. R.
Crim. P. 12(b)(1). When there is a facial challenge to an indictment, the court must
determine whether the indictment is legally sufficient.
To be legally sufficient on its face, an indictment must contain all the essential
elements of the offense charged and must fairly inform the defendant of the crime with
which he is being charged in sufficient detail so that he may prepare a defense.  See Fed.
R. Crim. P. 7(c); Hamling v. United States, 418 U.S. 87, 117 (1974); United States v.
Bowie, 618 F.3d 802, 817 (8th Cir. 2010); United States v. Huggans, 650 F. 3d 1210, 1217
(8th Cir. 2011).
“An indictment will ordinarily be held sufficient unless it is so defective that it
cannot be said, by any reasonable construction, to charge the offense…”  Huggans, 650
F.3d at 1218 (quoting United States v. Hayes, 574 F.3d 460, 472 (8th Cir. 2009)). An
indictment is also ordinarily deemed sufficient if it “tracks the statutory language.”
United States v. Wearing, 837 F.3d 905, 910 (8th Cir. 2016) (citing United States v.
Tebeau, 713 F.3d 955, 962 (8th Cir. 2013)). In reviewing the sufficiency of an indictment,
the Government’s allegations are accepted as true, without reference to allegations
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outside the indicting document. United States v. Farm & Home Savings Association, 932
F.2d 1256, 1259, n.3 (8th Cir. 1991).
Even if all allegations are accepted as true, this indictment fundamentally does not
allege a crime. Here, the indictment sets out the date that the alleged offense occurred but
fails to state that the administrative fee changed by Feeding Our Future is lawful and that
the fees were not paid to Defendant. The indictment also failed to note that Defendant
Bock actively reported organizations that she suspected of fraudulent activity.   Further,
the indictment failed to state which of the Defendant’s conduct could be classified as
unlawful.  Therefore, the Government presupposes fraudulent activity to classify an
otherwise legal collection of administrative fees as fraudulent. Such circular reasoning is
not sufficient to support an indictment.
Even assuming for a moment that Defendant was the recipient of kickbacks, there
are no allegations that kickbacks are inherently fraudulent. New York v. Amgen Inc., 652
F.3d 103, (1st Cir. 2011) deals precisely with this issue.  In this case, the court addresses
an issue  relating to whether  Medicaid claims affected by kickbacks are eligible for
Medicaid payment. But the court seems to reject the notion that it is settled law that
kickbacks are inherently fraudulent practices.  See Amgen, 652 at 112 (“[the assertion]
that [i]t is widely recognized on both the federal and State levels that kickback schemes
are fraudulent practices under Medicaid and Medicare . . . stretches to broadly.”).
Instead, the court turns to relevant state law to determine whether kickbacks are indeed
fraudulent.  This was enough for the court in Amgen to dismiss the claim based on State
law in Georgia while it allowed the claims to proceed that made clear kickbacks are
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considered fraudulent. Id. at 116.  Like Medicaid, the implementation is a Child Nutrition
Program is a program that is delegated to the states with a federal oversight framework.
Therefore, the same reasoning applies here. Regarding federal anti-fraud statutes, there
are only statutes relating to the health industry. There are no analogous anti-fraud statutes
in Minnesota or relating to FDA programs that explicitly define kickbacks as fraudulent
per se.
Therefore, because the indictment in this case makes no claim that the kickback is
illegal, they have not alleged any illegal activity.
Regardless, Defendant maintains that she received no kickbacks while in her role
as executive director of Feeding our future.
Notwithstanding the prior arguments, in the event that the Court finds that the
indictment provides enough information to fairly inform Defendant of the crime with
which she is being charged, Defendant herein brings an alternative motion for a bill of
particulars.  “If a defendant believes that an indictment does not provide enough
information to prepare a defense, then he or she may move for a bill of particulars.”
United States v. Livingstone, 576 F.3d 881, 883 (8th Cir. 2009) (citing Fed. Crim. P. 7(f)).
A bill of particulars “serves to inform the defendant of the nature of the charge against
him with sufficient precision to enable him to prepare for trial” and to “avoid or minimize
the danger of surprise at trial.” Id. (quoting United States v. Hernandez, 299 F.3d 984,
989-990 (8th Cir. 2002)). However, “a bill of particulars is not a discovery device to be
used to require the government to provide a detailed disclosure of the evidence that it will
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present at trial.”  Livingstone, 576 F.3d at 883; United States v. Huggans, 650 F.3d 1210,
1220 (8th Cir. 2011).
Here, the indictment fails to state any facts beyond the general notion that
Defendant conspired with a myriad of individuals to receive kickbacks in the Federal
Child Nutrition Program in the State of Minnesota through the Minnesota Department of
Education.  The indictment does not provide enough information sufficient for Defendant
to know the nature of the charge against her, being that charging administrative fees in
the program is lawful.
Because the Government brought an indictment that fails to assert with sufficient
clarity the connection between Defendant and the offenses, the indictment must be
dismissed.  Furthermore, the indictment on its face does not contain all the essential
elements of the offense charged and does not fairly inform Defendant of the charge
against her and for which she must defend.  Therefore, Defendant seek dismissal of the
indictment.
KENNETH UBONG UDOIBOK, P.A.

December 14, 2023

/s/Kenneth U. Udoibok
Kenneth U. Udoibok (#0262523)
Flour Exchange Building, Suite
5010 310 Fourth Avenue South
Minneapolis, MN 55415
Phone: (612) 808-6031
k@kenulaw.com

ATTORNEY FOR DEFENDANT
AIMEE MARIE BOCK

CASE 0:22-cr-00223-NEB-DTS     Doc. 194     Filed 12/15/23     Page 5 of 5

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