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Motion to Dismiss Indictment for Government Misconduct, Lack of Probable Cause, and Constitutional Violations — No. 1:21-cr-00470 (Dkt. 192, D. Md.)

Summary

A Motion to Dismiss Indictment for Government Misconduct, Lack of Probable Cause, and Constitutional Violations, Document 192 filed February 27, 2025 in the District of Maryland (Case 1:21-cr-00470-MJM), United States v. Nichelle Henson, filed by the defendant pro se under Rule 12(b)(3)(B). She is charged with bank fraud and making false statements in connection with COVID-19 relief funds. She argues that the investigation, which she says began with a bank Suspicious Activity Report about a $5,000 withdrawal, violated the Fourth, Fifth and Sixth Amendments through warrantless record requests, improper ex parte applications and misleading the grand jury, and renews earlier arguments on newly discovered evidence. She asks for dismissal with prejudice and suppression, and the exhibits are to be filed under seal separately.

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Cite this document

“Motion to Dismiss Indictment for Government Misconduct, Lack of Probable Cause, and Constitutional Violations — No. 1:21-cr-00470 (Dkt. 192, D. Md.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/motion-to-dismiss-indictment-for-government-misconduct-lack-of-probabl-d303ba798d/, SHA-256 0e35772e4615d5135a098719f1918d0c6c034088e2d9e0974a67b4dae928cde3.

Full text

      Case 1:21-cr-00470-MJM          Document 192        Filed 02/27/25      Page 1 of 12




         UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

                                                 *
       UNITED STATES                             *
                                                 *
                                                 *
                                                 *
               VS.                               *
       NICHELLE HENSON
                                                 *
                                                 *
                                                 *
                                                 *
        * * * * * * * * * * * * * * * * * * * * ** * 400,000,000* * * * * * * *

         MOTION TO DISMISS INDICTMENT FOR GOVERNMENT MISCONDUCT,

        LACK OF PROBABLE CAUSE, AND CONSTITUTIONAL VIOLATIONS

       COMES NOW, the Defendant, Nichelle Henson, appearing pro se, and respectfully

moves this Honorable Court to dismiss the indictment in this matter with prejudice pursuant to

Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure. The Defendant submits that the

government’s investigative conduct violated the Fourth, Fifth, and Sixth Amendments of the

United States Constitution, rendering the indictment fatally defective and depriving this Court of

jurisdiction. The prosecution’s reliance on unconstitutional searches and seizures, improper ex

parte communications, and a lack of probable cause constitutes an abuse of government

discretion that mandates dismissal of all charges.

       Additionally, the Defendant renews prior arguments raised in the initial motion to dismiss

in light of newly discovered evidence that was unavailable at the time of the previous hearing.

This newly acquired evidence—government letters, ex parte applications, and reports from the

FBI and law enforcement—demonstrates that the government abused its authority, violated

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      Case 1:21-cr-00470-MJM          Document 192        Filed 02/27/25     Page 2 of 12



due process, and circumvented judicial oversight to unlawfully obtain records related to the

Defendant’s business dealings. [THESE EXHIBITS WILL BE FILED UNDER SEAL IN A

SEPARATE FILING, AS THEY ARE ARGUABLY COVERED BY THE COURT’S

PROTECTIVE ORDER]

       GROUNDS FOR DISMISSAL:

   1. Violation of the Fourth Amendment – Unlawful Search and Seizure

   2. Fishing Expedition – Lack of Probable Cause for Investigation

   3. Improper Ex Parte Requests – Deprivation of Due Process

   4. Misleading the Grand Jury – Presentation of Illegally Obtained Evidence

   5. Renewal of Prior Arguments in Light of Newly Discovered Evidence

   6. Defective Indictment – Lack of Jurisdiction Due to Unconstitutional Investigative

       Tactics

   7. False Statements and Fraudulent Conduct by the Government

I. BACKGROUND FACTS

       The Defendant has been charged with bank fraud and making false statements under

federal statutes in connection with the receipt of COVID-19 relief funds. The investigation into

the Defendant’s conduct was triggered solely by a Suspicious Activity Report (SAR) filed by

the Defendant’s bank regarding a $5,000 withdrawal from her business account.

       Despite the SAR’s lack of specific allegations of fraud, the government launched an

expansive probe into the Defendant’s businesses, without probable cause or a warrant,


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      Case 1:21-cr-00470-MJM            Document 192         Filed 02/27/25   Page 3 of 12



seeking financial records and business loan applications without judicial oversight. This

unlawful conduct demonstrates a blatant disregard for the constitutional protections afforded

under the Fourth Amendment.

II. LEGAL ARGUMENTS

       A. The Government’s Actions Violated the Fourth Amendment – Unlawful Search

and Seizure

       The Fourth Amendment prohibits unreasonable searches and seizures. The government’s

conduct in this case is unconstitutional for several reasons:

   1. Lack of a Warrant or Probable Cause:

           o   The SAR alone does not establish probable cause for an investigation. The

               government lacked any substantive evidence to justify its intrusive probe into

               the Defendant’s finances.

           o   The government’s actions are inconsistent with Terry v. Ohio, 392 U.S. 1 (1968),

               which establishes that mere suspicion is insufficient to justify government

               intrusion into a citizen’s private affairs.

   2. Improper Requests to the SBA:

           o   Without a warrant or legitimate justification, the government requested the

               Defendant’s entire SBA loan history, effectively conducting a warrantless

               search.




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           o   The Defendant contends that loan application records are protected business

               documents, and accessing them without proper authorization constitutes an

               unconstitutional seizure of records.

B. The Government’s Investigation Was an Improper Fishing Expedition

       The Defendant asserts that the investigation constitutes an unlawful fishing expedition,

meaning the government conducted a broad, speculative inquiry without any specific evidence

of wrongdoing:

   •   The SAR flagged a lawful transaction with no indication of criminality, yet the

       government expanded its probe into all of the Defendant’s financial dealings.

   •   The government’s conduct mirrors cases where courts have found “general rummaging”

       through financial records unconstitutional.

   •   The lack of specific, articulable suspicion supporting the probe renders the indictment

       unconstitutional.

C. False Statements and Fraud Committed by the Government

       The government has not only accused the Defendant of making false statements but has

itself engaged in false and misleading statements to further its investigation and seize the

Defendant’s assets. The following actions constitute government fraud and misconduct:

   •   The government misrepresented its case to financial institutions, falsely suggesting

       that the Defendant had already been found guilty, which resulted in the bank unlawfully

       seizing her assets.




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   •   The government provided false and misleading information to the grand jury,

       improperly influencing the decision to indict by presenting speculative and

       unconstitutional evidence.

   •   The government falsely claimed that there was probable cause for a broad

       investigation, despite basing the entirety of their inquiry on a routine SAR that contained

       no evidence of fraud.

   •   The government improperly characterized legally authorized financial transactions

       as fraudulent, misleading financial institutions and misrepresenting facts to the court.

   •   Law enforcement reports and ex parte applications contradict each other,

       demonstrating an attempt to build a case around speculation rather than concrete

       evidence.

   •   The prosecution falsely implied that the Defendant knowingly provided fraudulent

       information on loan applications, despite evidence showing that she followed

       ambiguous guidelines in good faith.

       These false statements not only undermine the credibility of the prosecution but also

amount to the same fraudulent conduct they are accusing the Defendant of committing. This

conduct is in direct violation of the Due Process Clause of the Fifth Amendment and further

justifies dismissal of the indictment.

       D. The Indictment is Defective and the Court Lacks Jurisdiction

       A valid indictment cannot be based on unconstitutional investigative tactics. Here, the

prosecution’s failure to adhere to constitutional protections invalidates the charges. Courts have



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      Case 1:21-cr-00470-MJM           Document 192         Filed 02/27/25      Page 6 of 12



consistently ruled that indictments based on evidence obtained in violation of constitutional

rights are subject to dismissal.

       Thus, the indictment against the Defendant is defective, and this Court lacks jurisdiction

to proceed.

       III. RESERVATION OF RIGHTS TO ADD ADDITIONAL ARGUMENTS AND

EVIDENCE

       The Defendant expressly reserves the right to supplement this motion with additional

legal arguments and supporting evidence as they become available. Due to the government’s

ongoing misconduct and lack of transparency, new evidence may surface that further establishes

the unconstitutional nature of the investigation and prosecution. If additional material supporting

dismissal arises, the Defendant will submit further filings to ensure that all violations of

constitutional rights are fully addressed before this Honorable Court.

       IV. RELIEF REQUESTED

       For the foregoing reasons, the Defendant respectfully requests that this Honorable Court:

   1. Dismiss the indictment with prejudice due to the unconstitutional search, due process

       violations, and improper investigative conduct;

   2. Suppress any evidence obtained through these unlawful actions, including evidence

       presented to the grand jury;

   3. Find that the government’s actions violated the Fourth, Fifth, and Sixth

       Amendments, depriving the Defendant of fundamental rights;




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   4. Declare the indictment defective, thereby removing the Court’s jurisdiction over the

       charges;

   5. Find that the government’s failure to obtain a warrant, establish probable cause, or

       follow constitutional requirements invalidates the entire investigation;

   6. Find that the government engaged in false statements and fraud by misrepresenting

       facts to the court, grand jury, and financial institutions;

   7. Provide any other relief deemed appropriate by this Court.

Respectfully submitted,




Nichelle Henson, Pro Se




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      Case 1:21-cr-00470-MJM          Document 192         Filed 02/27/25      Page 8 of 12




AFFIDAVIT OF NICHELLE HENSON IN SUPPORT OF MOTION TO DISMISS

I, Nichelle Henson, being duly sworn, state under penalty of perjury as follows:

I. INTRODUCTION

   1. I am the Defendant in the above-captioned matter, appearing pro se in this proceeding.

   2. I submit this Affidavit in support of my Motion to Dismiss the Indictment against me,

       based on numerous constitutional violations, government misconduct, and improper

       investigative actions that have irreparably tainted the prosecution’s case.

   3. The statements contained herein are based on my personal knowledge, information, and

       belief.

II. FACTUAL BACKGROUND

   4. The government’s investigation against me began after my bank filed a Suspicious

       Activity Report (SAR) related to a $5,000 withdrawal from my business account.

   5. The SAR contained no evidence of criminal conduct, fraud, or illegality. It was a standard

       financial report that banks file routinely and does not constitute probable cause for an

       investigation.

   6. Despite the lack of probable cause, the government initiated a broad and intrusive

       investigation into all of my financial and business dealings, which included:




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     Case 1:21-cr-00470-MJM         Document 192        Filed 02/27/25     Page 9 of 12



          o   Submitting ex parte applications to seize my tax and financial records without

              judicial oversight or probable cause.

          o   Contacting the Small Business Administration (SBA) and unlawfully requesting

              my loan applications and business records.

          o   Misrepresenting my financial transactions as fraudulent, despite no evidence of

              deceit or misrepresentation in my loan applications.

          o   Pressuring witnesses and business associates to cooperate with their theory,

              despite there being no independent evidence of wrongdoing.

III. GOVERNMENT MISCONDUCT AND CONSTITUTIONAL VIOLATIONS

A. Fourth Amendment Violations – Unreasonable Search and Seizure

   7. The government’s request for my entire loan application history and business tax

      records was executed without a warrant, violating my Fourth Amendment rights.

   8. The government failed to provide any evidence to justify a probable cause finding, yet

      they proceeded to access and review my personal and business records.

   9. Courts have held that broad, warrantless searches of private financial records are

      unconstitutional and impermissible.

B. Fifth Amendment Due Process Violations

   10. The government’s ex parte communications with financial institutions and tax

      authorities deprived me of my right to challenge the subpoenas issued against my

      records.



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     Case 1:21-cr-00470-MJM          Document 192        Filed 02/27/25      Page 10 of 12



   11. Due process requires that a person be notified of government actions that affect their

      fundamental rights, yet the government failed to do so.

   12. The government’s failure to adhere to constitutional protections has tainted the

      indictment, making it unlawful.

C. Sixth Amendment Violations – Deprivation of the Right to a Fair Trial

   13. The government engaged in misleading and coercive tactics to convince witnesses to

      testify against me.

   14. They intentionally misrepresented facts before the grand jury, leading to an indictment

      based on false premises.

   15. The government has failed to disclose exculpatory evidence, depriving me of my right

      to present a full and fair defense.

IV. FALSE STATEMENTS AND FRAUD COMMITTED BY THE GOVERNMENT

   16. The government has falsely characterized my lawful financial transactions as

      fraudulent.

   17. The government falsely represented to the grand jury that I had engaged in fraudulent

      conduct, despite clear evidence that my loan applications were filed in good faith.

   18. The government falsely led financial institutions to believe that I had already been

      convicted, which resulted in my business funds being seized without due process.

   19. The government engaged in reckless disregard for the truth, submitting incomplete

      and misleading reports in an effort to secure an indictment against me.



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      Case 1:21-cr-00470-MJM         Document 192        Filed 02/27/25       Page 11 of 12




V. RENEWAL OF PRIOR ARGUMENTS BASED ON NEWLY DISCOVERED

EVIDENCE

  20. I previously filed a motion to dismiss, which was denied based on the court’s finding

       that I had insufficient evidence to prove my constitutional claims at the time.

  21. Since that ruling, I have obtained new evidence demonstrating that the government acted

       improperly and conducted a biased investigation against me.

  22. This new evidence includes:

  •    Government letters and reports confirming that my financial records were obtained

       without proper legal authorization.

  •    Ex parte applications showing the government’s intent to circumvent judicial review.

  •    Statements from law enforcement officials acknowledging that their case was built on

       speculation rather than concrete evidence.

  23. This new evidence fundamentally alters the basis for dismissal and provides conclusive

       proof that the government’s investigation was unconstitutional and improperly

       conducted.

VI. REQUESTED RELIEF

  24. Based on the foregoing facts, I respectfully request that this Court:

  •    Dismiss the indictment with prejudice due to the unconstitutional investigation and

       prosecutorial misconduct.


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      Case 1:21-cr-00470-MJM          Document 192        Filed 02/27/25   Page 12 of 12



  •    Suppress any evidence obtained through unconstitutional means, including evidence

       presented to the grand jury.

  •    Declare the government’s investigation unlawful due to its violation of my Fourth,

       Fifth, and Sixth Amendment rights.

  •    Provide any other relief deemed just and proper under the circumstances.

VII. AFFIRMATION

  25. I declare under penalty of perjury under the laws of the United States that the foregoing

       is true and correct to the best of my knowledge.

  Nichelle Henson, Pro Se




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