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Court filing — No. 3:20-cr-00052 (Dkt. 128, M.D. La.)

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        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.

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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

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 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

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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
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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).
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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)).


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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).

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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.
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(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

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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

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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.

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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).

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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,

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    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




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