Full text
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 1 of 14
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA CRIMINAL ACTION
VERSUS
ELLIOT STERLING N0.20-00052-BAJ-RLB
ORDER
Before the Court are four motions to dismiss all or part of the Indictment
(Doc. 1) pursuant to Federal Rule of Criminal Procedure ("Rule ) 121 filed by pro se
Defendant Elliot Sterling. See (Docs. 37, 56, 59, 74). The Motions are opposed. See
(Docs. 58, 61, 70, 90). For the reasons described, the Motions are DENIED.
I. BACKGROUND
On August 3, 2020, the Federal Grand Jury returned a fourteen-count
Indictment against Defendant Elliot Sterling alleging violations of wire fraud,
financial aid fraud, and money laundering. See (Doc. 1). On March 16, 2021, the Court
granted Defendant's Motion to Proceed Pro Se (Doc. 28), and later appointed stand-by
counsel. (Doc. 39, Doc. 42).
On March 16, 2021, Defendant filed his first Motion to Dismiss, arguing that
his due process rights under the Fifth Amendment were violated, that the
1 Defendant's Motions to Dismiss were both filed "Pursuant to Rule 48 Rules/' (Doe. 37, p. 1);
(Doc. 59, p. 1). Defendant's first Motion to Quash was filed "Pursuant to Rule 117." (Doc. 56,
p. 1). Defendant s second Motion to Quash merely states "Defendant hereby moves the Court
to set Plaintiffs Complaint." (Doc. 74). All pretrial motions in criminal matters are governed
by Federal Rule of Criminal Procedure ("Rule") 12.
1
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 2 of 14
Government produced irrelevant evidence, that his Sixth Amendment right to a
speedy trial was violated, that the Government has violated its responsibility by
prosecuting a case that cannot be proved beyond a reasonable doubt, and that the
charges against him were brought in retaliation for Ms outspoken criticism of the
Department of Justice. (Doc. 37, p. 2). Defendant urges that these alleged defects
warrant the dismissal of the Indictment in its entirety. {Id.). The Motion is opposed.
(Doc. 58).
On May 24, 2021, Defendant filed his first "Motion to Quash," arguing that the
Government improperly charged him multiple times for the same offense. (Doc. 56,
p. 2). The Motion is opposed. (Doc. 61).
On June 2, 2021, Defendant filed his second Motion to Dismiss, asserting that
the Indictment should be dismissed because he was told by the government this
discovery had over 20,000 pages and it simply doesn t. . . . [Therefore,] this case needs
to be dismissed because its tainted. (Doc. 59-1, p. 1). The IVtotion is opposed.
(Doc. 70).
On June 21, 2021, Defendant filed a second Motion to Quash, arguing that
Count Fourteen of the Indictment should be dismissed. (Doc. 74, p. 1). The Motion is
opposed. (Doc. 90).
II. DISCUSSION
Hearings are not necessary on any of Defendant's motions. "Evidentiary
hearings are not granted- as a matter of course, but are held only when the defendant
alleges sufficient facts which, if proven, would justify relief." United States v.
Harrelson, 705 F.2d 733, 737 (5th Cir. 1983). Because Defendant has not provided
2
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 3 of 14
sufficiently definite, specific, detailed, and nonconjectural [allegations] to enable the
court to conclude that a substantial claim is presented," a hearing is not required. Id.
A. Defendant s First Motion to Dismiss
"The propriety of granting a motion to dismiss an indictment under D Rule 12
by pretrial motion is by-and-large contingent upon whether the infirmity in the
prosecution is essentially one of law or involves determinations of fact." United States
v. Miller, 491 F.2d 638, 647 (5th Cir. 1974). Defendant's first Motion to Dismiss
(Doc. 37) contains several conclusory factual allegations that Defendant believes
warrant dismissal of the Indictment. The Court will address each in turn.
L Relevance of the Discovery
Defendant asserts that "eighty percent of the discovery has nothing to do with
the charging document or true bill. (Doc. 37, p. 2). Even were this a valid reason to
dismiss the Indictment, the Court addressed these arguments both in court on
May 20, 2021, and in its Order denying Defendants Motion for Relevance. See
(Doc. 75). Therefore, the Court declines to dismiss the Indictment for the reasons
previously provided.
ii. Sixth Amendment
Defendant argues that his "six amendment [sic] was also violated with the
attorney client relationship. (Doc. 37, p. 2). Specifically, Defendant alleges that "[t]he
prosecutor is using methods from herself and the pro bono attorney for more time.
(Id.).
The Sixth Amendment guarantees criminal defendants the right to a speedy
and public trial. U.S. const. Amend. VI. This safeguard is amplified by the Speedy
3
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 4 of 14
Trial Act, 18 U.S.C. §§ 3161-3174, which "requires that a defendant be tried within
seventy non-excludable days of Indictment. If more than seventy non-excludable days
pass between the indictment and the trial, the indictment shall be dismissed on
motion of the defendant/" United States v. Johnson, 29 F. 3d 940, 942 (5th Cir. 1994)
(citing 18 U.S.C. § 3162(a)(2)). The Speedy Trial Act, however, provides several
excludable periods of delay. For example, "the time between the filing of the motion
and the hearing on that motion, even if a delay between the motion and the hearing
is unreasonable, is excludable. Johnson, 29 F.3d at 942-43 (citing Henderson v,
United States, 476 U.S. 321, 329-30 (1986)). Similarly, the Speedy Trial Act excludes
any period of delay resulting "from any pretrial motion, from the filing of the motion
through the conclusion of the hearing on, or other prompt disposition of, such motion."
18 U.S.C. § 3161(h)(l)(D). The Speedy Trial Act also considers whether to grant a
continuance because the case is so unusual or complex, due to ... the nature of the
prosecution . . . that it is unreasonable to expect adequate preparation for pretrial
proceeding or for the trial itself within the time limits established by the Speedy
Trial Act. 18 U.S.C. § 3161(h)(7)(B)(ii).
The Speedy Trial Act explicitly provides that "[t]he defendant shall have the
burden of supporting such motion." 18 U.S.C. § 3162(a)(2). Here, Defendant has not
made any showing that the Speedy Trial Act has been violated. Further, several
excludable periods of delay have been invoked in this case. For instance, prior counsel
for Defendant filed a motion to continue the trial and to suspend the Speedy Trial Act
provisions due to the complexity of the matter. (Doc. 18). That motion was granted on
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 5 of 14
October 21, 2020. See (Doc. 19). The Order declaring the case complex was never
withdrawn. There have also been several other excludable periods of delay, including
the time necessary to promptly dispose of the motions filed by Defendant.2 See
18 U.S.C. § 316l(h)(l)(H) (excluding delay reasonably attributable to any period, not
to exceed thirty days, during which any proceeding concerning the defendant is
actually under advisement by the court. ). Thus, Defendant has not established a
violation of the Speedy Trial Act or the Sixth Amendment. Therefore, Defendant's
Motion is denied on this basis.
iii. Prosecutorial Misconduct
Defendant argues that this case involves prosecutorial misconduct, in that the
Government allegedly forced Defendants former clients to "come forward Q with
sworn statements accusing the prosecutor of bribing them to be a witness who is told
to lie, forcing them to be a witness who is told to lie and using scare tactics for them
to be a witness who is told to lie. (Doc. 37, p. 2).
Evidentiary issues bearing on possible prosecutorial misconduct should
normally be reserved for trial, and should not be determined on a pretrial motion to
dismiss." United States v. Bates, 600 F.2d 505, 511 (5th Cir. 1979) (citing Miller,
2 Excluding the motions addressed herein, the Defendant has filed the following motions:
• A motion to set a trial date. See (Doc. 51).
• A motion for the production of exculpatory and mitigating evidence. See (Doc. 52).
• A "motion for relevance." See (Doc. 53).
• A motion to suppress. See (Doc. 57).
In addition, the United States has filed the following motions:
• A motion to authenticate. See (Doc. 68).
• Two motions in limine. See (Docs. 69, 105).
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 6 of 14
491 F.2d at 647). The defendant in Bates claimed "that the prosecutor intimidated,
coerced and induced potential defense witnesses not to testify for [defendant] or to
change their statements to favor the government. Id. The United States Court of
Appeals for the Fifth Circuit has instructed that these were precisely the sort of
factual questions best reserved for trial." Id. Therefore, the Court will reserve ruling
on Defendant's claims until trial, at which time he will be permitted to cross-examine
witnesses on these allegations.3
iv. Forfeiture Allegation
Defendant alleges that his assets were unlawfully seized. (Doc. 37, p. 2).
Specifically, Defendant asserts that the Government used "illegal power tactics" to
gain control of his assets. (Doc. 37, p. 2). This assertion (for which the Defendant did
not provide supporting facts or case law) does not contemplate a defect in the
Indictment that would warrant dismissal of the underlying charges.
Defendant s assets were lawfully seized pursuant to a federal seizure warrant
issued by the Court on May 4, 2020.4 See (Doc. 45); (Doc. 115). At the time Defendant's
3 Defendant will also have the opportunity to raise a Rule 29(a) motion "challenging the
sufficiency of the evidence to convict" at the close of the Government's case-in-chief, and at
the dose of all of the evidence. United States v. Hope, 487 F.3d 224, 227 (5th Cir. 2007) (citing
United States v. Lucio, 428 F.3d 519, 522 (5th Cir. 2005)); See also FED. R. GRIM. P. 29(a).
4 If the court determines that there is probable cause to believe that the property would be
forfeitable in the event of conviction and that a protective order will not be sufficient to assure
the availability of the property for forfeiture upon conviction, then the court has the discretion
to issue a pre-indictment seizure warrant. 21 U.S.C. § 853(f); See also United States v. Real
Property Located at 1407 North Collins Street, Arlington, Texas, 901 F.3d 268, 273 (5th
Cir. 2018) (The Government may restrain property prior to trial when there is probable
cause to think the property is forfeitable. ... A grand jury indictment establishes probable
cause to think a defendant committed an offense permitting forfeiture.") (citing Kaley v.
United States, 571 U.S. 320, 340-41 (2014)).
6
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 7 of 14
motion to dismiss was filed, he did not have access to the seizure warrant in this case.
However, on April 20, 2021, the seizure warrants, affidavits, and seizure return
warrants for these assets were unsealed, and the United States was ordered to
provide Defendant with copies of the aforementioned documents. See (Doc. 46).
The Indictment also contains a forfeiture allegation notifying Defendant that,
if he is convicted of wire fraud or money laundering, he will be required to forfeit "any
and all property that constitutes or is derived from the proceeds the defendant
obtained directly or indirectly" as a result of these offenses. See (Doc. 1, p. 19—20). If
Defendant is convicted, forfeiture of these assets is mandatory. 21 U.S.C. § 853(a)(l).
If Defendant is not convicted, he can challenge the seizure of his assets in the pending
civil forfeiture action filed by the United States. See, e.g, 21-CV-00129-JWD-SDJ.
v. Selective Prosecution
Defendant alleges that the Government targeted him for prosecution because
he publicly spoke out against the United States Department of Justice following its
investigation into the death ofAlton Sterling, Defendant's cousin.5 (Doc. 37, p. 3). The
Court construes this as a motion to dismiss based on selective or vindictive
prosecution under Rule 12 (b) (2) (A) (iv).
In our criminal justice system, the Government retains broad discretion to
prosecute individuals. See Wayte v. United States, 470 U.S. 598, 608 (1985). <([S]o long
as the prosecutor has probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute, and what charge to file
5 The United States filed a IVfotion in Limine to exclude this line of questioning on
July 8, 2021. See (Doc. 105).
7
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 8 of 14
or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher
v. Hayes, 434 U.S. 357, 364 (1978). Therefore, a selective prosecution claim is not a
defense on the merits to the criminal charge, but instead, an independent claim that
the prosecutor brought a charge for reasons forbidden by the Constitution. United
States v. Armstrong, 517 U.S. 456, 463 (1996). A motion to dismiss is the proper
vehicle for raising a claim of selective prosecution. The Court has the authority to
dismiss charges which arise from selective prosecution. See United States v. Jennings,
724 F.2d 436, 445 (5th Cir. 1984).
To succeed on a claim of selective prosecution, a defendant must meet a "heavy
burden." Id. (quoting United States v. Johnson, 577 F.2d 1304, 1308 (5th Cir. 1978)).
First, a defendant must make a prima facie showing that he has been singled out for
prosecution while others similarly situated who have committed the same acts have
not been prosecuted." Id. (citing United States v. Tibbetts, 646 F.2d 193, 195 (5th
Cir. 1981)). Importantly, a defendant is required to make this showing before the
Court can permit any discovery on the matter. In re United States, 397 F.3d 274, 284
(5th Cir. 2005).
Second, a defendant must demonstrate that "the government's selective
prosecution of him has been constitutionally invidious." Id. Even if a defendant
demonstrates that he was singled out for prosecution, "selective prosecution, absent
some invidious element, may not be challenged." Id. at n. 12 (citations omitted). To
show "invidiousness, a defendant must demonstrate "that the government's selective
prosecution is actuated by constitutionally impermissible motives on its part." Id.
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 9 of 14
(citation omitted); See also United States v. Young, 231 F. Supp. 3d 33, 104 (M.D. La.
Feb. 6, 2017) (Thus, the Defendant must . . . demonstrate that the government's
discriminatory selection of him for prosecution has been invidious or in bad faith in
that it rests upon such impermissible considerations [such] as ... the desire to
prevent his exercise of constitutional rights. (quotation omitted)).
Defendant has not made any evidentiary showing, much less one supported by
clear evidence, to support this claim. In re United States, 397 F.3d at 284. Defendant
has neither made a prima facie showing that he was singled out for prosecution while
others similarly situated who committed the same crime were not prosecuted, nor
demonstrated that the prosecution was constitutionally invidious in that it rested
upon a desire to prevent his exercise of constitutional rights. Therefore, Defendant's
motion is denied on this basis.
B. Defendant s Second Motion to Dismiss
Defendant s second Motion to Dismiss (Doc. 59) alleges that he "was told by
the Government this discovery had over 20,000 pages and it simply doesn't."
(Doc. 59-1, p. 1) (emphasis added). Defendant asserts that after, going pro-se [he]
was given a hard drive that... doesnt come anywhere close to 20,000 documents
after things [were] unsealed. {Id.} (emphasis added). Therefore, the Indictment
needs to be dismissed because it is tainted." (Id.).
Defendant alleges, in essence, a discovery violation. The remedy for a discovery
violation is not dismissal of the Indictment. Instead, "any sanction imposed should be
the least severe penalty necessary to ensure compliance with the court's discovery
orders." United States v. Dvorin, 817 F.3d 438, 453 (5th Cir. 2016) (citing United
9
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 10 of 14
States v. Garrett, 238 F.3d 293, 298 (5th Cir. 2000)). The Court finds that there has
been no discovery violation here. The Government has confirmed in court, on the
record, on multiple occasions, that it has produced all available discovery. Defendant
has confirmed on each occasion that he has received the discovery.
The Government in its opposition to this Motion provided some insight into the
source of Defendant's confusion. It confirmed that it has produced 2,445 files in
discovery to Defendant, which exceeds 20,000 pages of discovery. (Doc. 70, p. 3). This
confirms what Defendant should know. In Defendant s motion to declare his case
complex, which was filed by his previous counsel, one of the reasons provided was the
volume of discovery. (Doc. 18). On September 9, 2020, the Government provided
Defendant with 9,243 pages of documents and 23 recorded jail conversations. On
October 12, 2020, the Government provided an additional 10,485 pages of documents
and 52 videos. (Doc. 18, p. 1). The Government made additional productions on
October 15, 2020; October 30, 2020; November 5, 2020; February 19, 2020;
March 5, 2021; May 14, 2021; and June 9, 2021. (Doc. 70, p. 2 at n. 1). Together, well
over 20,000 pages of discovery—not documents—have been produced.
The Court is satisfied that no discovery violations have occurred, and on this
basis, Defendant's Motion to Dismiss is DENIED.
C. Defendants First ]V[otion to Quash
In this motion, Defendant appears to allege that he was improperly charged
with the same offense multiple times in the Indictment, in violation of
Rule 12(b)(3)(B)(ii), although he does not provide any evidence or reasons as to why
he believes that to be the case. (Doc. 56, p. 2). The Government argues that it has
10
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 11 of 14
properly charged Defendant for each instance of conduct made punishable by law.
(Doc. 61, p. 2).
The rule against multiplicity stems from the 5th Amendment to the
Constitution which forbids placing a defendant twice in jeopardy for one offense. The
rule prohibits the Government from charging a single offense in several counts and
is intended to prevent multiple punishments for the same act." United States v.
Kimbrough, 69 F.3d 723, 729 (5th Gir. 1995). Courts generally look to the plain
language of the statute when determining whether a specific course of conduct
constitutes one or more separate crimes. See id. at 730.
Defendant has been charged with nine counts of wire fraud. The Government
argues that t([t]he wire fraud statute, by its plain language, expressly punishes each
wire transmission as a separate crime. (Doc. 61, p. 3) (citing United States v. Lemons,
941 F.2d 309, 318 (5th Cir. 1995)). The Government has identified nine separate
instances between December 2017 and September 2018 where Defendant allegedly
"caused an interstate wire communication to be transmitted ... in connection with
the submission of a FAFSA6, which contained false material information. (Doc. 1,
p. 17-18). The Fifth Circuit has unequivocally held that [e]ach separate use of wire
communication constitutes a separate offense under section 1343. Henderson v.
United States, 425 F.2d 134, 138 n. 4 (5th Cir. 1970).
Similarly, the Fifth Circuit and other circuits have found that an individual
who fraudulently obtains federal funds on multiple occaisions can be charged with
6 Free Application for Federal Student Aid.
11
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 12 of 14
multiple counts of financial aid fraud in violation of 20 U.S.C. § 1097(a). See United
States v. Strain, 78 F. App'x 975, 976 (5th Cir. 2003) (per curium); United States v.
Ezeta, 752 F.3d 1182 (9th Cir. 2014); United States, v. Gibson, 770 F.2d 306, 307
(2d Cir. 1985).
Therefore, because Defendant has not been improperly charged multiple times
in Counts One through Thirteen of the Indictment, Defendant's Motion is DENIED.7
D. Defendant's Second Motion to Quash
In his motion, Defendant argues that he has evidence that count 14 on the
Indictment should be removed. (Doc. 74-1, p. 2). Count Fourteen of the Indictment
charges that, on or about March 19, 2019, Defendant "knowingly engaged and
attempted to engage in monetary transactions involving criminally derived property"
in violation of 18 U.S.C. § 1957 by withdrawing $256,000 from his Chase bank
account. (Doc. 1, p. 18).
Defendant alleges that he received a letter after multiple calls telling [him] to
come and remove [his] money from Chase Bank, and that if he did not follow the
instructions, Chase would have sent a check for the full balance inside [his] account
on April 6, 2019 in which [he] will still have done the same thing, which is deposit
the money into an account that is owned by [him]. (Doc. 74-1, p. 1). In support,
Defendant relies on an unverified, undated letter from Chase Bank entitled "Deposit
Account Closure Information, that purports to inform Defendant that his account
7 Further, as the Government notes in its opposition, the proper remedy for the duplicate
counts is the dismissal of the duplicate counts only, not dismissal of the entire Indictment.
(Doc. 61, p. 4) (citing Lemons, 941 F.2d at 318).
12
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 13 of 14
was subject to closure and that included procedures that Chase recommended
Defendant take prior to April 6, 2019. (Doc. 74-2, p. 1).
"The elements of money laundering, in violation of 18 U.S.C. § 1957(a), are: (i)
property valued at more than $10,000 that was derived from a specified unlawful
activity; (ii) the defendant's engagement in a financial transaction with the property;
and (iii) the defendant's knowledge that the property was derived from unlawful
activity." United States v. Alanis, 726 F.3d 586, 602 (5th Cir. 2013) (citation omitted).
The Fifth Circuit is clear that "the mens rea element of the offense does not extend to
whether the defendant knowingly laundered the funds, only whether the defendant
knew the funds were illicit and engaged in a 'financial transaction' with them
regardless. Id. at n. 6. Therefore, the Government must show that Defendant derived
more than $10,000 from a specified unlawful activity (in this case wire fraud), that
Defendant engaged in a financial transaction with this property, and that Defendant
knew the property was derived from unlawful activity.
The Government asserts that Defendant's motion seeking to dismiss Count
Fourteen improperly usurps the responsibility of the trier of fact to determine
culpability, and should be dismissed. (Doc. 90, p. 6). The Court agrees. The reason
why Defendant removed the funds from his account is not evidence of a defect in the
Indictment such that would warrant dismissal of this charge, but rather a defense to
be brought at trial. Therefore, Defendant's motion to quash Count Fourteen of the
Indictment is DENIED.
III. CONCLUSION
Accordingly,
13
Case 3:20-cr-00052-BAJ-RLB Document 128 07/29/21 Page 14 of 14
IT IS ORDERED that Defendant's Motions (Docs. 37, 56, 59, 74) arc
DENIED.
^
Baton Rouge, Louisiana, this day of July, 2021
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
14