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Case 1:21-cr-00328-MLB-RGV Document 174 Filed 11/09/23 Page 1 of 44
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
United States of America,
v. Case No. 1:21-cr-328-MLB
Brian Sperber and Edmond
Norkus,
Defendants.
________________________________/
ORDER
Magistrate Judge Russell G. Vineyard issued a Report,
Recommendation, and Order (R&R): (1) denying Defendant Edmond
Norkus’s motion for a bill of particulars (Dkt. 98); (2) recommending the
Court deny both Defendants’ motions to dismiss the indictment (Dkts.
103, 105, 115); and (3) recommending the Court deny Norkus’s motion to
suppress statements he made to FBI agents (Dkt. 97). (Dkt. 153.)
Defendants object. (Dkts. 161, 162.)
I. Background
The United States obtained a superseding indictment against
Defendants Brian Sperber and Edmond Norkus, charging them with wire
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fraud, conspiracy to commit wire fraud, money laundering, and
conspiracy to commit money laundering. (Dkt. 58.) The indictment
alleges that “[b]eginning in or about 2020 and continuing until in or about
March 2021,” Defendants—distributors of personal protective equipment
(“PPE”)—engaged in a “scheme to defraud a PPE supplier as well as
victims who sought to procure PPE for hospital and medical institutions.”
(Dkt. 58 ¶¶ 1, 3–4, 8–9.) Defendants allegedly “defrauded prospective
PPE purchasers out of more than $12 million, much of which they used
for [their] own personal benefit.” (Dkt. 58 ¶¶ 1, 3–4, 8–9.)
A. Wire Fraud Counts
Counts One through Four charge Defendants with wire fraud.
(Dkt. 58 ¶¶ 7–24.) The superseding indictment includes factual
allegations that contextualize those charges. It explains that Sperber
was an authorized distributor for victim O&M Halyard—a
“manufacturer and wholesale distributor of” PPE. (Dkt. 58 ¶¶ 1, 10.)
According to the superseding indictment, “[a]lmost as soon as he became
an authorized O&M Halyard distributor in September 2019,” Sperber
“failed to pay for previously shipped PPE.” (Dkt. 58 ¶ 10.) O&M Halyard
repeatedly told Sperber he had to pay the outstanding invoices and, by
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February 2020, threatened to stop doing business with him if he did not.
(Id.)
The superseding indictment says Defendants’ scheme began when
they “sent fabricated O&M Halyard emails and invoices to” Victim A—a
broker trying to buy PPE. (Dkt. 58 ¶¶ 5, 11.) These emails “falsely
claimed O&M Halyard had an ample supply of N95 masks that was ready
to be shipped to” Sperber. (Dkt. 58 ¶ 11.) “As a result of these
misrepresentations, Victim A wired $3,144,960 to [Norkus’s company] for
the purchase of N95 masks with an expected ship date of February 12,
2020.” (Id.) Norkus allegedly used approximately $875,000 of those
funds to buy a condo and wired the rest to Sperber, “who used those funds
to pay down an outstanding balance of over $1 million on previous orders
with O&M Halyard.” (Id.) On February 10, 2020, Norkus allegedly “sent
a text message to Victim A with a fabricated banking statement that
falsely claimed [his company] had wired nearly $3 million to O&M
Halyard” for the purchase of new PPE for Victim A. (Id.)
Around the same time, Victim B (a medical products wholesaler)
negotiated with Sperber to purchase N95 masks and other PPE. (Dkt.
58 ¶¶ 6, 13.) Defendants caused Victim B to believe falsely that Sperber
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could “acquire a substantial amount of PPE from O&M Halyard” (and
another company), even though O&M Halyard had already told Sperber
it could not supply the order and even though Sperber never confirmed
the other company could do so. (Dkt. 58 ¶ 13.) To convince Victim B that
Defendants had access to additional quantities of PPE, Norkus
“displayed pallets of PPE in a warehouse,” after which Victim B gave
Sperber a cashier’s check for $2.8 million. (Dkt. 58 ¶ 14.) Victim B later
sent two more payments to Sperber: $8.25 million on March 31, 2020, and
$2.5 million on May 1, 2020—both for the purchase of N95 masks. (Id.)
Over the next several weeks, Defendants sent Victim B a series of false,
misleading, and sometimes fabricated emails, invoices, and messages
falsely suggesting O&M Halyard was shipping the masks. (Dkt. 58
¶¶ 15, 16.)
The superseding indictment also explains (again) that Norkus used
$875,000 from Victim A’s money to buy a condo and that Sperber used
“millions of dollars of Victim B’s funds to purchase a waterfront mansion
in Boca Raton, Florida” and “for a variety of personal and business
expenditures.” (Dkt. 58 ¶ 19.) Finally, the superseding indictment points
to four emails Sperber (aided and abetted by Norkus) allegedly sent O&M
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Halyard to mislead O&M Halyard into believing Sperber was preparing
to pay the outstanding invoices. (Dkt. 58 ¶ 24.) These four emails
constitute the substantive wire fraud charges in Counts One through
Four. (Id.)
B. Money Laundering Counts
Counts Seven through Ten charge Defendants with money
laundering for deposits Sperber made to O&M Halyard using illegally
obtained funds. (Dkt. 58 ¶¶ 31, 33, 35, 37.) Specifically, they identify
two different transactions: (1) Defendants’ depositing a $350,000
cashier’s check from TD Bank into an O&M Halyard bank account (Dkt.
58 ¶¶ 31, 35), and (2) Defendants’ depositing a $720,000 cashier’s check
from TD Bank into an O&M Halyard bank account (Dkt. 58 ¶ 33, 37).
Counts Seven and Eight charge Defendants with promotional
money laundering. Those counts each say Defendants—with regard to
the $350,000 check and the $720,000 check, respectively—“[o]n or about
February 12, 2020, . . . did knowingly conduct a financial transaction
affecting interstate commerce, . . . which involved the proceeds of
specified unlawful activity, that is, conspiracy to commit wire fraud, . . .
and wire fraud, . . . with the intention to promote the carrying on of such
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specified unlawful activity and while conducting and attempting to
conduct financial transactions,” while knowing “the property involved in
the financial transaction represented the proceeds of some form of
unlawful activity.” (Dkt. 58 ¶¶ 31, 33.)
Counts Nine and Ten charge Defendants with transactional money
laundering. They say Defendants—again, each with respect to the two
different checks—“[o]n or about February 12, 2020, . . . did knowingly
engage and attempt to engage in a monetary transaction by, through and
to a financial institution, affecting interstate commerce, such transaction
knowingly involving criminally derived property of a value greater than
$10,000, . . . such property having been derived from a specified unlawful
activity, that is wire fraud, [and] conspiracy to commit wire fraud[.]”
(Dkt. 58 ¶¶ 35, 37.)
C. Pertinent Procedural History
Norkus moved—on his own—for a bill of particulars and to
suppress statements he made to FBI agents during law enforcement’s
investigation of this matter. (Dkts. 97; 98.) Both Defendants—in three
separate motions—moved to dismiss the indictment. (Dkts. 103; 105;
115.) The Magistrate Judge issued an R&R. (Dkt. 153.) In it, he denied
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the motion for a bill of particulars, and recommended the Court deny the
motion to suppress and all three motions to dismiss. (Id.) Defendants
separately object. (Dkts. 161; 162.)
II. Legal Standard
28 U.S.C. § 636(b)(1) requires district courts to “make a de novo
determination of those portions of [an R&R] to which objection is made.”
Any such objection “must specifically identify the portions of the [R&R]
to which objection is made and the specific basis for objection.”
McCullars v. Comm’r, Soc. Sec. Admin., 825 F. App’x 685, 694 (11th Cir.
2020)1; see United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009)
(“[A] party that wishes to preserve its objection must clearly advise the
district court and pinpoint the specific findings that the party disagrees
with.”). “Frivolous, conclusive, or general objections need not be
considered by the district court.” Marsden v. Moore, 847 F.2d 1536, 1548
(11th Cir. 1988).
“It does not appear that Congress intended to require district court
1 The Court recognizes McCullars and other cases cited herein are
unpublished and not binding. The Court cites them nevertheless as
instructive. See Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1355
n.5 (11th Cir. 2018) (“Unpublished cases do not constitute binding
authority and may be relied on only to the extent they are persuasive.”).
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review of a magistrate’s factual or legal conclusions, under a de novo or
any other standard, when neither party objects to those findings.”
Thomas v. Arn, 474 U.S. 140, 150 (1985). And, in most cases, “[a] party
failing to object to [an R&R] waives the right to challenge on appeal the
district court’s order based on unobjected-to factual and legal
conclusions.” McGriff v. Comm’r, Soc. Sec. Admin., 654 F. App’x 469, 472
(11th Cir. 2016). Ultimately, whether or not objections are filed, a district
court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
III. Motion for Bill of Particulars2
Norkus moves for a bill of particulars. (Dkt. 98.) While he
“acknowledges that the indictment contains more than barebones
allegations against him,” he contends “it is lacking in critical ways,”
specifically regarding his conduct and knowledge related to Sperber’s
relationship with O&M Halyard. (Dkt. 98 at 3–4.) He also requests a
bill of particulars regarding certain aspects of the money laundering
2 Although the Magistrate Judge denied Norkus’s motion for a bill of
particulars (Dkt. 98), Norkus challenges the denial in his objections to
the R&R (Dkt. 162 at 1–9). So, the Court addresses his arguments and
treats the Magistrate Judge’s denial as a recommendation.
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charges and of O&M Halyard’s purported injuries. (Dkt. 162 at 6–7.)
Rule 7(f) of the Federal Rules of Criminal Procedure allows a court
to “direct the government to file a bill of particulars.” Fed. R. Crim. P.
7(f). “The purpose of a bill of particulars is to inform the defendant of the
charge against him with sufficient precision to allow him to prepare his
defense, to minimize surprise at trial, and to enable him to plead double
jeopardy in the event of a later prosecution for the same offense.” United
States v. Cole, 755 F.2d 748, 760 (11th Cir. 1985). “A request for a bill of
particulars is, inter alia, befitting in those instances where the defendant
seeks further clarity and precision with regard to the charges that he is
facing in order to adequately prepare a defense.” Id. “[G]eneralized
discovery,” however, “is not the proper function of a bill of particulars.”
Id. A defendant is not entitled to a bill of particulars “with respect to
information which is already available through other sources such as the
indictment or discovery and inspection.” United States v. Rosenthal, 793
F.2d 1214, 1227 (11th Cir. 1986). Nor can a bill of particulars “be used
as a weapon to force the government into divulging its prosecution
strategy.” United States v. Burgin, 621 F.2d 1352, 1359 (5th Cir. 1980).
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A. Substantive Counts
With respect to the substantive wire fraud and money laundering
counts (i.e., all but the conspiracy counts) involving O&M Halyard,
Norkus says the facts underlying those allegations involve only Sperber’s
relationship with that company. (Dkt. 98 at 3–4.) He argues that,
because the superseding indictment does not allege he had any role in or
knowledge about that relationship, he is entitled to a bill of particulars
describing what the United States believes about his involvement. (Dkt.
98 at 4–5.) The Magistrate Judge disagreed, concluding (1) the
superseding indictment contains sufficient language to inform Norkus
about his specific offense conduct and how it relates to the overall object
of the fraud conspiracy and (2) that he can get the specific information he
seeks through discovery. (Dkt. 153 at 17–23.) Norkus objects, saying the
Magistrate Judge improperly analyzed his request under conspiracy law
even though the indictment also charges him with substantive counts of
wire fraud and money laundering for Sperber’s emails and deposits to
O&M Halyard. (Dkt. 162 at 4–6.) As to those charges, Norkus says, the
language of the indictment is insufficient. (Id.)
As an initial matter, the Court agrees with Norkus that the
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framework for analyzing conspiracy charges is useless in determining
whether the superseding indictment properly notifies Norkus about the
substantive crimes of wire fraud and money laundering. The Magistrate
Judge, however, correctly noted the indictment need not allege Norkus
knew about all details and phases of the conspiracy to charge him with
that crime. But this says nothing about whether the indictment properly
notifies him of the substantive crimes with which he is charged. Even
though the United States brought those charges against both
Defendants, the allegations underlying those counts say only that
Sperber—not Norkus—sent false or fabricated emails and wires to O&M
Halyard. (Dkt. 58 ¶¶ 7, 10–11, 14–16.) So, for Norkus to be guilty of
those crimes, the United States must prove he aided and abetted Sperber
in committing them. (Dkt. 58 ¶ 24 (alleging Sperber and Norkus, “aided
and abetted by each other,” committed wire fraud in part by sending the
subject emails; ¶¶ 31, 33, 35, 37 (alleging Sperber and Norkus, “aided
and abetted by each other,” committed money laundering by depositing
illegally obtained funds to O&M Halyard); see Steiner v. United States,
940 F.3d 1282, 1289 (11th Cir. 2019) (“The federal aiding-and-abetting
statute provides that a person who aids or abets the commission of an
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offense is liable as a principal.”).
Norkus wants to know exactly what evidence the United States
believes it can use to prove Norkus aided and abetted Sperber in
defrauding O&M Halyard. Specifically, he wants the United States to
tell him: (1) whether it believes he had contact with O&M Halyard or
knew about Sperber’s emails and wires to the company; (2) whether the
alleged scheme was “to defraud Victims A and B, or a scheme to defraud
O&M Halyard”; and (3) the “precise actions” Norkus took “to aid and abet
Sperber as it relates” to the substantive counts. (Dkt. 98 at 5.)
Norkus’s request fails for two reasons. First, the superseding
indictment lays out in significant detail the entire fraudulent scheme—
including that Norkus forwarded fabricated emails from O&M Halyard
to Victims A and B knowing they were fake to make those victims believe
the transactions were legitimate. (Dkt. 58 ¶ 15.) Second, the United
States represents it turned over “substantial” discovery that it says
“provides the information Norkus is seeking,” including warrant
affidavits, records from O&M Halyard and other relevant third parties,
and witness interviews. That is enough. See United States v. Beverly,
2010 WL 11474387, at *2 (M.D. Ga. Oct. 15, 2020) (denying motion for
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bill of particulars where indictment and discovery gave defendant the
information he wanted).
Norkus counters that the United States “has provided no discovery
indicating that [] Norkus either knew of or benefitted from either the
emails sent to O&M Halyard . . . or the wires sent to O&M Halyard.”
(Dkt. 162 at 4–5.) He says he “does not necessarily seek the specific
evidence at issue, . . . but instead, he seeks to know what position the
[United States] is going to take as to his knowledge, given that his
knowledge is an essential element of the offense.” (Dkt. 162 at 6.) But a
bill of particulars “is not designed to compel the government to detailed
exposition of its evidence or to explain the legal theories upon which it
intends to rely at trial.” United States v. Roberts, 174 F. App’x 475, 477
(11th Cir. 2010) (quoting Burgin, 621 F.2d at 1359). The law simply does
not permit a criminal defendant to posit to the United States specific
interrogatories requiring it to answer pointed questions as to its theory
of the case, such as whether it “believes” certain things. The superseding
indictment and discovery provide Norkus with the information to which
he is entitled at this point. The United States will be held to that
evidence at trial, and Norkus is not entitled to know its legal strategy.
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B. “Specified Unlawful Activity”
Norkus also says he needs to know more about what “specified
unlawful activity” predicates the money laundering counts. (Dkt. 112 at
3–4.) He claims he assumed that activity “was the charged counts,” but
because the United States said he “could not assume that the charged
counts of wire fraud were the” subject activity underlying the money
laundering charges, he finds it “necessary and appropriate” for the
United States to provide a bill of particulars identifying the specified
unlawful activity. (Id.) It appears the Magistrate Judge did not address
this argument—at least in regard to the motion for a bill of particulars.
Regardless, it fails.
Norkus argues allowing the United States to rely on a different
specified unlawful activity than the conduct charged in the superseding
indictment would effectively allow it to improperly amend that
indictment ex post facto. (Id.) That is not true. All the superseding
indictment says is that the specified unlawful activity underlying the
money laundering counts is wire fraud. (Dkt. 58 ¶¶ 31, 33, 35, 37.)3 It
3 The superseding indictment also charges conspiracy to commit wire
fraud as a specified unlawful activity. (Dkt. 58 ¶¶ 31, 33, 35, 37.) As
discussed in detail below, the Magistrate Judge correctly concluded
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does not specify that the predicate wire fraud is the conduct charged in
the superseding indictment. So there is no risk of a constructive
amendment.
This does not seem to be a real dispute. A common-sense reading
of the superseding indictment suggests paragraph 11 describes the wire
fraud underlying the money laundering charges. That paragraph alleges
Defendants sent “fabricated” emails and invoices to Victim A—plus one
text message on February 10, 2020—causing Victim A to wire over $3
million to Norkus’s company for the purchase of PPE with an expected
shipment date of February 12, 2020. (Dkt. 58 ¶ 11.) The United States’s
use of the term “fabricated” suggests it contends the emails and invoices
were “false.” Paragraph 11 then alleges Norkus and Sperber used some
of the money obtained by the “fabricated” emails and invoices to pay down
their outstanding balance with O&M Halyard. (Id.) The money
laundering counts point to two checks Defendants purportedly deposited
into an O&M Halyard bank account “[o]n or about February 12, 2020.”
conspiracy to commit wire fraud cannot serve as a specified unlawful
activity supporting a money laundering charge. (Dkt. 153 at 49 n.21.)
So, the Court addresses only the wire fraud allegations in dealing with
Norkus’s motion for a bill of particulars.
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(Dkt. 58 ¶¶ 31, 33, 35, 37.) It thus seems obvious to the Court—given
that the money laundering charges describe transactions that took place
on the same day as or shortly after Defendants’ “fabricated”
communications to Victim A and involved payments to O&M Halyard—
that those counts charge Defendants with using some portion of Victim
A’s fraudulently obtained money to pay down outstanding O&M Halyard
invoices. In other words, Defendants’ use of “fabricated” emails and
invoices to get money from Victim A (as alleged in paragraph 11) is the
predicate for the money laundering charges alleged in Counts 7 through
10. The United States’s response to Norkus’s motion buttresses this
conclusion. The United States explained that the indictment alleges
“Sperber used victims’ funds to pay down his debt to O&M Halyard.”
(Dkt. 107 at 6.) While the United States does not specifically say the
referenced “victims’ funds” are from Victim A obtained through the
conduct described in paragraph 11 of the superseding indictment, that is
the only possibility given that Victim A is the only alleged victim that
wired Defendants money prior to February 12, 2020. In an abundance of
caution, if this common-sense interpretation of the superseding
indictment is wrong and the United States intends to rely on some other
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wire fraud conduct in the money laundering counts, it should clearly say
so and provide a bill of particulars to describe this other conduct.
Otherwise, the Court will hold the United States to this evidence at trial.4
C. O&M Halyard’s Injuries
Finally, Norkus requests information “about whether or how O&M
Halyard was or would have been injured by the wire fraud,” given that
the United States must prove he had an intent to harm the company.
(Dkt. 162 at 7–8.) Specifically, he says “he is entitled to know what the
[United States] intends to allege is the harm intended to O&M Halyard
as a result of the emails charged in” the wire fraud counts. (Dkt. 162 at
8.) He notes that the superseding indictment alleges Sperber sent the
fraudulent emails and wires so he could remain an O&M Halyard
distributor and commit additional acts of fraud, but says “this does not
establish an injury to O&M Halyard.” (Id.) The Magistrate Judge did
not address this argument, either. But it fails for the same reasons as
4 To the extent Norkus suggests the United States could still use different
wire fraud conduct to support the money laundering counts at trial, the
Court can address that issue—if it arises—at the close of trial. See
United States v. Holt, 777 F.3d 1234, 1261 (11th Cir. 2015) (improper
“variance occurs when the facts proved at trial deviate from the facts
contained in the indictment”).
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before—namely, that the superseding indictment and discovery provide
Norkus with sufficient information about what the United States accuses
him of doing and how that conduct constitutes a crime.
Like before, a common-sense reading of the superseding indictment
gives Norkus the information he wants. It says the fraud Defendants
committed upon O&M Halyard allowed them to continue to defraud it
going forward. (Dkt. 58 ¶ 29.) The United States made clear in its
opposition to Defendants’ motion to dismiss the wire fraud counts that it
considers the charged emails to have “lull[ed] O&M Halyard into
thinking that its debt had been (or would be) paid with legitimate funds,”
and that had O&M Halyard known Defendants made the payments using
fraudulently obtained funds, it “could have sought legal remedies or
reported [Defendants’] unlawful conduct to law enforcement.” (Dkt. 125
at 8–9.) So, it seems obvious that the United States contends Defendants
injured O&M Halyard by “lulling” it into a false sense of security that
prevented it from taking actions to protect itself and stop Defendants’
misconduct. Once again, if the Court is wrong, the United States should
say so and tell Defendants what injuries it claims O&M Halyard suffered.
At bottom, Norkus is not entitled to a bill of particulars to give him
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granular detail about what “the intended injury was,” because, at least
according to the Court’s reading of the superseding indictment, he
already knows (or should know) that allegation. (Dkt. 162 at 8.) Norkus
can argue at trial that the evidence is insufficient to establish an injury.
But for now, he is not entitled to a bill of particulars.
IV. Motions to Dismiss
In three separate motions, Defendants jointly move to dismiss the
money laundering counts as multiplicitous and for failure to allege a
crime, and to dismiss the wire fraud counts for failure to allege a crime.
(Dkts. 103; 105, 115.) The Court, however, need only address in this
order the two motions dealing with the money laundering charges. (Dkts.
103; 105.)5 The Magistrate Judge recommended denying both motions.
5 This is because, while the Magistrate Judge recommended denying
Defendants’ motion to dismiss the wire fraud counts for various reasons
(Dkt. 153 at 29–31), Defendants objected raising an argument they had
not initially brought before the Magistrate Judge. Specifically, they say
the indictment really alleges two, separate schemes—one against
Victims A and B and a later one against O&M Halyard. (Dkts. 161 at 1–
6; 162 at 16–19.) They argue that because the emails charged in the wire
fraud counts could have “lulled” only O&M Halyard into a false sense of
security (since Victims A and B never saw those emails), they cannot
render Defendants criminally liable for the scheme against Victims A and
B. (Id.) At a hearing on Sperber’s motion to decertify this case as ready
for trial, the Court explained it would allow Defendants to raise this new
argument for the first time in front of the Magistrate Judge to better
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(Dkt. 153.) Defendants object. (Dkt. 161; 162.)
A. Multiplicity
Defendants say the money laundering charges—Counts 7 through
10—are multiplicitous. (Dkt. 105 at 5.) Basically, they say those counts
improperly charge them with both transactional money laundering and
promotional money laundering—which they argue “contain the same
unit of prosecution”—over the same two transactions. (Dkt. 105 at 6.)6
The Magistrate Judge disagreed, concluding those two crimes contain
different elements, such that they can be charged in separate counts.
(Dkt. 153 at 34–36.) Sperber does not object on multiplicity grounds.
Norkus does object, however, essentially raising the same arguments he
made to the Magistrate Judge. (Dkt. 162 at 9–10.)
“An indictment is multiplicitous if it charges a single offense in
more than one count.” United States v. Williams, 527 F.3d 1235, 1241
(11th Cir. 2008). “A multiplicitous indictment not only subjects the
develop the issue. (Dkt. 165.) So, Defendants’ motion to dismiss the wire
fraud counts (Dkt. 115)—and the Magistrate Judge’s recommendation to
deny that motion—are moot.
6 More specifically,with Count 7 being multiplicitous of Count 9 and
Count 8 being the same in regard to Count 10.
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defendant to numerous sentences for one offense, but also ‘prejudice[s]
the defendant and confuse[s] the jury by suggesting that not one but
several crimes have been committed.’” Id. (citation omitted). “Because
a multiplicitous indictment involves double jeopardy issues, multiplicity
and double jeopardy challenges are typically evaluated under the same
standards.” United States v. Woods, 730 F. Supp. 2d 1354, 1376 (S.D. Ga.
2010). “Accordingly, the test enunciated in [Blockburger v. United States,
284 U.S. 299 (1932)], used to evaluate double jeopardy challenges . . . is
also used to determine whether an indictment is multiplicitous.” Id.
Under Blockburger, courts examine “whether each [count] requires proof
of a fact which the other does not.” Id. (citations and internal quotation
marks omitted). Courts “focus . . . on the proof necessary to establish the
statutory elements of the offense, not the actual evidence presented at
trial.” Id. (citation omitted).
On one hand, the transactional money laundering statute requires
the United States to prove that Defendants: “(1) conducted a financial
transaction (such as purchasing property) with the proceeds of ‘specified
unlawful activity’ (2) with the knowledge that the proceeds came from
‘some form of unlawful activity’ and (3) with the intent ‘to promote the
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carrying on of specified unlawful activity.’” United States v. 275 Milton
Rahn Road Rincon, Ga. 31326, 2022 WL 969621, at *6 (S.D. Ga. Mar. 30,
2022) (citations omitted); see also 18 U.S.C. § 1956(a)(1)(A)(i). On the
other hand, the promotional money laundering statute requires the
United States to prove Defendants (1) “‘knowingly engage[d] or
attempt[ed] to engage in a monetary transaction in criminally derived
property that is of a value greater than $10,000,’ and (2) the property ‘is
derived from specified unlawful activity.’” United States v. Forehand, 577
F. App’x 942, 947 (11th Cir. 2014); see also 18 U.S.C. § 1957. So, not only
do the statutes differ in what the United States must prove, each statute
includes an additional element the other does not (i.e., for promotional
money laundering, that Defendants made the transaction with the intent
to promote the carrying on of illegal activity, and for transactional money
laundering, that the transaction is of a value greater than $10,000). In
other words, each statute “require[s] proof of additional facts not required
by the other.” United States v. Caruso, 948 F. Supp. 382, 390 (D.N.J.
1996). The buck stops there—the counts are not multiplicitous for that
reason alone.
In arguing to the contrary, Norkus cites several cases, claiming
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they “hold that relying on one action to convict a defendant on multiple
crimes is multiplicitous.” (Dkt. 162 at 9–10.) But those cases involved
either (1) multiple convictions for gun crimes under the same statute
setting the unit of prosecution as one firearm, see United States v. Zapala,
509 F.3d 1060, 1062 (9th Cir. 2007) (separate convictions under same
statute for possessing one firearm was multiplicitous because unit of
prosecution was single firearm); United States v. Hollis, 506 F.3d 415,
421 (5th Cir. 2007) (convictions as felon-in-possession and fugitive-in-
possession under same subsection of statute is prohibited because only
difference in elements was offender’s status); United States v. Phipps, 319
F.3d 177, 184–85 (5th Cir. 2003) (separate convictions under same
statute for single use of firearm based on multiple predicate offenses was
multiplicitous) or (2) a single false statement that violated two
subsections of the same statute, see United States v. McIntosh, 124 F.3d
1330, 1336–37 (10th Cir. 1997) (separate convictions for bankruptcy
fraud under same statute were multiplicitous where they were based on
same false statement and Congress did not show “clear intention” to
allow punishment for the same act under separate subsections of the
statute).
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The situation here is different. For one thing, Defendants’ alleged
conduct violated two separate statutes. Even as one of Norkus’s cases
recognizes, “Congress undoubtedly may subject a defendant to multiple
convictions and punishments for the same act.” McIntosh, 124 F.3d at
1337. For another thing, and as the Court already explained, a successful
challenge on multiplicity grounds requires the defendant to show the
legal elements of the challenged charges are the same. United States v.
Woods, 684 F.3d 1045, 1060 (11th Cir. 2012) (“[C]harges in an indictment
are not multiplicitous if the charges differ by even a single element or
alleged fact.”). Regardless of whether the result of both offenses was the
same (i.e., Defendants’ using the proceeds of the alleged wire fraud for
their own ill-gotten gains), the superseding indictment still alleges
Defendants committed more than one laundering offense. To rule
otherwise would require the United States to decide before indictment
whether it wants to limit its prosecutorial discretion and trial evidence
to proving Norkus entered into the alleged transaction with the intent
“to promote the carrying on of specified unlawful activity” as required by
the first statute or whether, instead, to seek to prove he knowingly
engaged in the type of transaction at issue in the second statute. The
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United States is not required to make that election and can seek to
prosecute Norkus for both alleged crimes. Norkus’s multiplicity
challenge fails.
B. Failure to Allege a Crime
Defendants also move to dismiss the money laundering counts on
the ground they fail to “charge the crime of money laundering.” (Dkts.
103 at 5; 105.) They say the charges “plainly involve transactions that
predate the completion of the alleged fraudulent scheme—and well before
any of the substantive wire fraud counts,” so the “specified unlawful
activity” underlying the money laundering counts could not have
occurred. (Dkt. 103 at 5.) The Magistrate Judge disagreed, concluding
(1) the non-charged emails, text messages, and invoices that caused
Victim A to wire money to Defendants in February 2020 could serve as
the specified unlawful activity supporting the money laundering counts,
and (2) even if that conduct had not predated the money laundering acts,
there is no legal requirement that the entire fraudulent scheme be
completed before a defendant starts laundering illegal proceeds; rather,
a defendant “can properly be charged with money laundering for the
earlier actions that helped comprise the fraudulent scheme.” (Dkt. 153
25
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at 49–53 (citation omitted).) Defendants object, saying (1) because the
money laundering counts allege the illegal proceeds were derived in part
from wire fraud conspiracy (and because wire fraud conspiracy cannot be
a specified unlawful activity to support that charge), they are deficient;
(2) the charged wire fraud cannot support the money laundering counts
because the fraud was not complete prior to the transactions that form
the basis of the money laundering counts; (3) if non-charged conduct
supports the laundering counts, the indictment does not sufficiently put
Defendants on notice of the charges against them; and (4) the money
laundering charges must be dismissed because they are based on the
same transactions that support the fraud charges. (Dkts. 161 at 6–14;
162 at 10.)
The Court agrees that wire fraud conspiracy cannot support the
money laundering charges. So did the Magistrate Judge. (Dkt. 153 at 49
n.21 (citing United States v. Shea, 2023 WL 4551635, at *3 (S.D.N.Y. July
14, 2023) (“‘specified unlawful activity,’ . . . does not include wire fraud
conspiracy”) (citation omitted).) As the R&R correctly explains, however,
“this error relates to an ancillary issue and not an essential element of
the” crime, and “after removing [the] erroneous language, the
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[superseding] [i]ndictment still states an offense.” (Dkt. 153 at 49 n.21
(quoting Shea, 2023 WL 4551635, at *3).) Each of the money laundering
counts includes the substantive offense of wire fraud as a specified
unlawful activity, and that is enough. See United States v. Hirmer, 2009
WL 10726280, at *4 (N.D. Fla. July 14, 2009) (“Wire fraud is a specified
unlawful activity.”) (citing 18 U.S.C. §§ 1956(c)(7)(a), 1961(1)).
It does not matter that the entire fraudulent scheme was not
complete or that the conduct underlying the substantive wire fraud
counts occurred after the alleged date of the money laundering for two
reasons. First, as the Magistrate Judge correctly held, the United States
can rely on non-charged conduct to support the money laundering counts.
(Dkt. 153 at 49.) Indeed, the United States does not “have to prove the
defendant committed the specified unlawful activity.” Hirmer, 2009 WL
10726280, at *4; see also United States v. Martinelli, 454 F.3d 1300, 1309
(11th Cir. 2006) (affirming defendant’s conviction for conspiracy to
launder proceeds of mail fraud even though defendant was not charged
with mail fraud). It doesn’t even have to “allege any details about the
specified unlawful activity.” Hirmer, 2009 WL 10726280, at *4 (emphasis
added) (citing United States v. Smith, 44 F.3d 1259, 1265 (4th Cir. 1995)).
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Second, even though it didn’t have to, the United States did allege
plenty of details about the wire fraud conduct that serves as the predicate
for the money laundering charges. The money laundering counts allege
that the violative transactions took place “[o]n or about February 12,
2020.” (Dkt. 58 ¶¶ 31, 33, 35, 37.) As already explained, the superseding
indictment says Defendants sent fabricated communications to Victim A
to trick it into wiring over $3 million for N95 masks expected to ship on
February 12, 2020. (Dkt. 58 ¶ 11.) But Defendants never shipped that
PPE. (Id.) Rather, according to the superseding indictment, Sperber
(with Norkus’s help) used the funds from that wire fraud to pay down an
outstanding balance on previous orders with O&M Halyard—
transactions charged in the money laundering counts. (Id.) So, the
unlawful communications that led Victim A to wire that money occurred
prior to the charged acts of money laundering, and can clearly serve as
the specified unlawful activity on which those counts are predicated. See
United States v. Nickolas, 2014 WL 5811127, at *2 (D. Ariz. Nov. 10,
2014) (“where wire fraud and money laundering are alleged in the same
indictment, and wire fraud is the specified unlawful activity referenced
in the money laundering counts, money laundering convictions can rest
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on communications other than those that comprise the wire fraud
counts”). And contrary to Defendants’ argument, they did not have to
complete the entire fraudulent scheme before they used proceeds from
Victim A for that use to constitute money laundering. See United States
v. Seward, 272 F.3d 831, 837 (7th Cir. 2001) (“Although it is true that the
defendant must have control of the proceeds of a fraudulent transaction
before he can engage in money laundering with those proceeds, there is
no requirement that the entire fraudulent scheme be complete before the
defendant starts laundering the proceeds from early portions of the
scheme.”).
Given the superseding indictment’s level of detail, the Court does
not buy Defendants’ argument that it does not put them on sufficient
notice of what non-charged conduct constitutes the specified unlawful
activity in the money laundering counts. Again, however, if the Court is
wrong, the United States must promptly say so.
Defendants counter that regardless of the timing, the money
laundering counts must be dismissed because they are premised on the
same transactions that constitute the charged wire fraud. (Dkts. 161 at
11–14; 162 at 11–13 (citing United States v. Christo, 129 F.3d 578, 579
29
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(11th Cir. 1997).) As the Magistrate Judge correctly concluded, however,
the superseding indictment alleges Defendants engaged in illegal
financial transactions that were “separate from and in addition to the
underlying criminal activity.” Christo, 129 F.3d at 580. First, when
Defendants sent fabricated communications to Victim A to defraud it into
wiring the $3.1 million payment, “[t]hat act of fraud was complete and
[Defendants] had control over the proceeds of the fraud” once they
received the money. United States v. Howard, 271 F. Supp. 2d 79, 86
(D.D.C. 2002); see also Belt v. United States, 868 F.3d 1208, 1211 (11th
Cir. 1989) (“The elements of an offense under the wire fraud statute are
1) a scheme to defraud, and 2) the use of wire communications in
furtherance of the scheme.”). Then, when Defendants used that money,
they engaged in “transactions in the proceeds of the [wire] fraud.”
Howard, 271 F. Supp. 2d at 86–87. It does not matter that “the activity
alleged in the [superseding] indictment as constituting the money
laundering is also alleged in the [wire fraud] counts” because “there is
separate underlying unlawful activity that gave rise to the proceeds
charged.” Id. at 87. That separate underlying activity is Sperber’s
sending the four emails charged in the wire fraud counts—but that
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activity has nothing to do with the money laundering charges. (Dkt. 58
¶ 24.) In other words, the “wire transaction[s] that serve[] as the basis
for [Defendants’] wire fraud charge[s] . . . [are] separate and apart from
the monetary transactions supporting the money-laundering charges.”
United States v. Huff, 641 F.3d 1228, 1233 (10th Cir. 2011).
V. Motion to Suppress
Norkus moves to suppress an interview he gave FBI agents during
their investigation into the alleged crimes, saying agents violated the
Georgia Rules of Professional Conduct (“GRPC”), agents encroached on
his attorney-client relationship, and his statement was not voluntary.
(Dkts. 97; 142 at 18–25.) The Magistrate Judge held a hearing to elicit
testimony from one of the agents who interviewed Norkus and
recommends this Court deny Norkus’s motion to suppress. (Dkts. 139;
153 at 68–88.) Norkus objects. (Dkt. 162.)
A. GRPC Violation and “Encroachment” on
Attorney-Client Relationship
In March 2021, FBI agents interviewed Norkus about financial
transactions between Sperber and an alleged victim. (Dkt. 139 at 5:7–
13, 10:8-22.) At that time, Norkus was represented by counsel in two
related civil cases. (Dkts. 134-1; 139 at 24:2–13.) He told the agents he
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knew Sperber, was upset with Sperber because the lawsuits were
Sperber’s fault, and planned to meet with his lawyer later that day
regarding the litigation. (Dkt. 134-1.) One of the agents asked Norkus
about the civil suits, and Norkus told him he had entered into a
settlement agreement and was trying to get Sperber to reimburse him for
that expense. (Dkt. 134-1.) Norkus talked about a conversation he had
with an attorney, but one of the agents interrupted, telling him they did
not want to know about conversations with lawyers. (Dkts. 134-1; 139 at
24:23–25:5.) Norkus never asked to speak with his attorney during the
interview.
Norkus says the agents violated the GRPC and “encroached” on his
attorney-client relationship by continuing to question him despite
knowing he had retained counsel. (Dkt. 142 at 18–22.) The Magistrate
Judge concluded Norkus’s statement should not be suppressed because
(1) even if the agents violated the GRPC, the appropriate remedy is not
suppression, and (2) intrusion of the attorney-client relationship
sufficient to warrant suppression arises under the Sixth Amendment
right to counsel, which is not implicated here. (Dkt. 153 at 68–75.)
Norkus objects, raising basically the same arguments he made to the
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Magistrate Judge. (Dkt. 162.)
Federal prosecutors in Georgia are subject to the GRPC. 28 U.S.C.
§ 530B. Pertinent here, Rule 4.2 of the GRPC prohibits a lawyer from—
without consent—“communicat[ing] about the subject of the [lawyer’s]
representation with a person the lawyer knows to be represented by
another lawyer in the matter.” Ga. R. Prof’l Conduct 4.2(a). Even where
an attorney violates this so-called “no-contact rule,” however,
“[s]uppression is not an available remedy.” United States v. Evans
Concrete, LLC, 2023 WL 3019058, at *9 (S.D. Ga. Apr. 20, 2023) (citing
United States v. Lowery, 166 F.3d 1119, 1124 (11th Cir. 1999) (“[A] state
rule of professional conduct cannot provide an adequate basis for a
federal court to suppress evidence that is otherwise admissible.”)). So,
regardless of whether the FBI agents (who presumably are not lawyers)
fall within the ambit of Rule 4.2 (something neither the parties nor the
Magistrate Judge address) and whether they violated said Rule, any
purported violation would not result in suppression. See United States v.
Scrushy, 366 F. Supp. 2d 1134, 1141 (N.D. Ala. 2005) (holding
suppression was not warranted even if attorney for United States
violated no-contact rule because “[e]ven if the contacts did constitute an
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ethical breach, the Eleventh Circuit law is clear that an ethical breach
cannot be the basis for exclusion of evidence”).
Norkus acknowledges that violation of an ethical rule alone cannot
serve as the basis for suppression. (Dkt. 162 at 22.) But, he says, “even
assuming that there was nothing improper under Rule 4.2 about
contacting [] Norkus, the problem is that—during that contact—the
agents encroached on his attorney-client relationship with his civil
lawyer.” (Dkt. 162 at 21.) Norkus claims the agents “invit[ed]
information from him about his conversations with his lawyer and about
the goals of that representation, including seeking reimbursement from
Sperber for payments that he had made.” (Id.) He argues that by asking
him about his legal representation, the agents encroached on his
attorney-client relationship, rendering suppression an appropriate
remedy. (Dkt. 162 at 22–23.)
In support of his argument, Norkus primarily relies on United
States v. Sander, in which the Fifth Circuit explained that “[w]here there
is an intrusion on the attorney-client relationship the remedy for such a
violation is not dismissal but the suppression of any evidence so
obtained.” 615 F.2d 215, 219 (5th Cir. 1980). Like the Magistrate Judge
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explained, however, Sander analyzed whether law enforcement violated
a defendant’s Sixth Amendment rights by reading the defendant’s
attorney’s files. Id. The other cases Norkus cites for his encroachment
theory similarly examine whether officers violate some constitutional
right of a defendant by improperly obtaining privileged information. See
United States v. DeLuca, 663 F. App’x 875, 878–79 (11th Cir. 2016)
(determining whether agents’ viewing privileged communications
violated defendant’s Fifth Amendment rights so as to warrant dismissal
of indictment); United States v. Ofshe, 817 F.2d 1508, 1515 (11th Cir.
1987) (examining whether intrusion of attorney-client privilege
warranted dismissal under Sixth Amendment); United States v.
Franklin, 598 F.3d 954, 957 (5th Cir. 1979) (same).
This case is different for two reasons. First, the record makes clear
that the agents did not intrude on Norkus’s attorney-client relationship.
As Norkus himself points out, the agents explicitly told him more than
once that they did not want to hear anything he discussed with his
attorney. (Dkt. 142 at 8, 12.) While Norkus cherry-picks certain quotes
about what he discussed with the agents regarding his civil lawsuits,
none demonstrate that the agents encouraged him to divulge privileged
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information. The agents did not, for example, question Norkus on what
his civil attorney’s legal strategy was, what advice that attorney provided
him, or any discussions he had with that attorney. Instead, as noted, the
agents went so far as to instruct Norkus not to disclose any privileged
material to them. (Dkt. 139 at 24:23–25:5 (agent testifying that “every
time [Norkus] mentioned something [about an attorney], we said we don’t
want to hear about anything that you may have spoken with your
attorney”).)
Second, even if the agents—through the questions Norkus
voluntarily answered—obtained privileged information, they did not
violate his constitutional rights in doing so. The interview did not
implicate Norkus’s Sixth Amendment right to counsel because he gave
his statement “well before the initiation of the prosecution against him.”
DeLuca, 663 F. App’x at 879; see also McNeil v. Wisconsin, 501 U.S. 171,
175 (1991) (“The Sixth Amendment right . . . does not attach until a
prosecution is commenced, that is, at or after the initiation of adversary
judicial criminal proceedings—whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.”) (citation
and internal quotation marks omitted). The agents’ conduct also fell “far
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short” of the “outrageous” conduct necessary to establish a violation of
Norkus’s Fifth Amendment rights. DeLuca, 663 F. App’x at 879. The
agents merely asked Norkus general questions about his civil lawsuits,
cautioned him not to divulge any conversations he had with his attorney,
and Norkus answered those questions without duress. Nothing about the
agents’ conduct warrants suppression on encroachment grounds.
Finally, Norkus complains that, at the evidentiary hearing on his
motion to suppress, he was “prohibited from asking significant questions
about the agents’ knowledge of [] Norkus[’s] represented status.” (Dkt.
162 at 20 n.10.) The Magistrate Judge denied his request to reopen the
evidence to get more information on this front because (1) suppression
was not an available remedy for the agents’ purported violation of Rule
4.2, and (2) counsel had an opportunity to ask limited questions about
the representation at the hearing. (Dkt. 153 at 75–76 n.29.) Norkus says
this was error because “suppression is an appropriate remedy” and his
attempts to ask questions were too limited based on the United States’s
relevance objections at the hearing. (Dkt. 162 at 20 n.10.) The Court
disagrees. No one disputes that the agents knew Norkus was
represented by an attorney in related civil cases or that they continued
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to question him despite this knowledge. (Dkt. 139 at 24:2–4, 25:6–8.)
Indeed, the agent confirmed he did not stop the interview “[e]ven when
[Norkus] told [him] he had a meeting with his lawyer that afternoon.”
(Dkt. 25 at 9–13.) But that doesn’t matter because: (1) as already
explained, even if the agents’ continuing to talk to Norkus violated the
GRPC, suppression is not an appropriate remedy; and (2) the agents—
knowing Norkus was represented—took care to avoid learning privileged
information and did not violate any of his constitutional rights. Norkus
does not say—and the Court cannot discern—how more information
about the agents’ knowledge of the fact of his representation would result
in a different outcome.
B. Voluntariness
Norkus also says his March 2021 interview should be suppressed
as involuntary. (Dkt. 142 at 22–24.) Specifically, he claims his
statements were not freely given because the agents (1) “led him to
believe that they were investigating [] Sperber, not him,” (2) asked him
“various questions that encroached on his attorney-client relationship,”
and (3) “told him that he needed to cooperate and needed to provide the
requested information—including ‘owning up’ to his actions.” (Dkt. 142
38
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at 24.) The Magistrate Judge concluded the agents’ admonitions to tell
the truth and attempts to downplay the significance of Norkus’s
involvement did not amount to coercion. (Dkt. 153 at 80–88.) Norkus
objects, again raising the same arguments. (Dkt. 162 at 22–24.)
To determine if a defendant’s statement was voluntary, courts
examine “whether the defendant was coerced by the government into
making the statement: ‘[t]he relinquishment of the right must have been
voluntary in the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion or deception.’” United States v.
Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir. 1992) (quoting Colorado
v. Connelly, 479 U.S. 157, 170 (1986)). “Among the factors the Court
should consider are the defendant’s intelligence, the length of his
detention, the nature of the interrogation, the use of any physical force
against him, or the use of any promises or inducements by police.” United
States v. Bhatt, 160 F. Supp. 3d 1359, 1363 (N.D. Ga. 2016) (citing
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). “Sufficiently
coercive conduct normally involves subjecting the accused to an
exhaustingly long interrogation, the application of physical force or the
threat to do so, or the making of a promise that induces a [statement].”
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United States v. Jones, 32 F.3d 1512, 1517 (11th Cir. 1994).
Norkus “does not dispute that the circumstances of the interview
were not coercive—the agents did not pull weapons or threaten him.”
(Dkt. 162 at 24.) Nor could he. The Magistrate Judge laid out in
painstaking detail the circumstances surrounding the interview (Dkt.
153 at 60–67), which show that the agents acted cordially and
professionally throughout the interview, that the interview was not
overly long or exhaustive, and that Norkus could not reasonably have felt
physically coerced or threatened by the agents’ conduct.
Norkus takes issue, however, with several things the agents said
that he claims essentially tricked him into giving his statement:
33 minutes into the interview, one of the agents told
Norkus there was “a grand jury investigation going on
right now up in Atlanta related to this whole case,” to
which Mr. Norkus asked, “To what case . . . with Brian
[Sperber] and everything?” The agent replied, “Right,”
and the other agent said, “Brian [Sperber] and
everything,” before the agents indicated Norkus needed
to be truthful.
Later on, the agents told Norkus they thought he could
help them, positioning Sperber as the one “using
[Norkus]” and putting him through “a lot of stuff” before
telling Norkus that he did “have to own up to some of
these things.”
The agents told Norkus, “We’re looking for your
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cooperation, so part of it is you owning up,” before
instructing him to tell them about his conversations
with Sperber.
The agents told Norkus they “were going to need [his]
involvement to tell [them], which [emails] did [he] doctor
up, and which ones did [Sperber] do?”
One of the agents concluded the interview by telling
Norkus that Sperber was “having Norkus do all this
stuff,” and that they “want[ed] to know what he is
directing . . . so we need you to cooperate with us.”
(Dkt. 142 at 22–24.) Like the Magistrate Judge concluded, however, none
of these statements—taken separately or together—were so coercive as
to render Norkus’s statement involuntary. (Dkt. 153 at 81–86.)
First, regarding Norkus’s complaint about the agents’ saying
cooperation was in his best interest, the Eleventh Circuit has explained
that encouraging a defendant to cooperate is not coercive even if the
agents know the defendant might face criminal charges for his
involvement in what they are discussing. See United States v. Hipp, 644
F. App’x 943, 945 (11th Cir. 2016) (holding agent’s statement that
cooperating with the government would be in defendant’s best interest
“amounted to ‘no more than affording [defendant] the chance to make an
informed decision with respect to [his] cooperation with the
government’”) (quoting United States v. Ballard, 586 F.2d 1060, 1063 (5th
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Cir. 1978)). Similarly, “[a] mere admonition to the accused to tell the
truth does not render a statement involuntary,” and “a general statement
that cooperation may be beneficial to an accused, with no promise of
leniency, does not amount to an illegal inducement.” Hipp, 644 F. App’x
at 947.
Second, even if the agents’ attempts to downplay the significance of
Norkus’s statement amounted to trickery or deception, “[i]t is clear, that
the police’s use of a trick alone will not render a confession involuntary.”
United States v. Castaneda-Castaneda, 729 F.2d 1360, 1363 (11th Cir.
1984). Rather, “trickery or deceit is only prohibited to the extent it
deprives the suspect ‘of knowledge essential to his ability to understand
the nature of his rights and the consequences of abandoning them.’”
Soffar v. Cockrell, 300 F.3d 588, 596 (5th Cir. 2002) (quoting Moran v.
Burbine, 475 U.S. 412, 424 (1986)); see also United States v. Lall, 607
F.3d 1277, 1285 (11th Cir. 2010) (misrepresentations of fact are not
enough to render confession involuntary). Nothing about what the
agents said to Norkus suggests they misled him about his legal rights.
Instead, as Norkus concedes, they merely misled him “into believing that
he was participating in an investigation into [] Sperber.” (Dkt. 144 at 10
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n.3.) So, the agents’ purported deception was not so coercive as to render
Norkus’s statement involuntary. See United States v. Farley, 607 F.3d
1294, 1328 (11th Cir. 2010) (“Knowledge of what the agents really
suspected [defendant] of doing would no doubt have been useful, possibly
even decisive, to [defendant] in calculating the wisdom of answering their
questions. But their deception on that point was not ‘constitutionally
significant[.]’”) (citation omitted).
Finally, to the extent Norkus claims his statement was not
voluntary because the agents “never gave him the information to contact
his attorney or told him that he was not required to speak with them
first” (Dkt. 162 at 24–25), Norkus has not even come close to
demonstrating that he was (or could reasonably have thought he was) in
custody. See United States v. Muhammad, 554 F. Supp. 2d 1314, 1320
(M.D. Fla. 2008) (“Miranda warnings are necessary prior only to
custodial interrogation.”) (citing Miranda v. Arizona, 384 U.S. 436, 445–
46 (1966)). He did not even argue his statements’ inadmissibility under
Miranda to the Magistrate Judge. See Williams v. McNeil, 557 F.3d
1287, 1292 (11th Cir. 2009) (“[A] district court has discretion to decline
to consider a party’s argument when that argument was not first
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presented to the magistrate judge.”). So, this argument fails.
VI. Conclusion
The Court OVERRULES each of Defendants’ Objections to the
R&R (Dkts. 161; 162), ADOPTS IN PART AND REJECTS AS MOOT
IN PART the R&R (Dkt. 153) as modified herein, and DENIES Norkus’s
Motion to Suppress Statement (Dkt. 97), Norkus’s Motion for Bill of
Particulars (Dkt. 98), Norkus’s Motion to Dismiss Counts 7–10 (Dkt.
103), and Defendants’ Corrected Joint Motion to Dismiss Multiplicitous
Counts (Dkt. 105). The Court DENIES AS MOOT Defendants’ Motion
to Dismiss Wire Fraud Counts (Dkt. 115).
SO ORDERED this 9th day of November, 2023.
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MICH"K E L L. B R O W N
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