United States v. Jeffery R. Tackett et al. — Opinion and Order, Western District of Virginia (Document 562)

Summary

An opinion and order filed December 28, 2021 as Document 562 in United States of America v. Jeffery R. Tackett, et al., Case No. 1:21CR00024, in the U.S. District Court for the Western District of Virginia. The government's motion in limine sought to exclude evidence about federal stimulus payments unless evidence first suggested a defendant believed participation in the alleged scheme was lawful. The opinion describes the charged scheme to submit fraudulent applications to the Virginia Employment Commission for pandemic unemployment benefits, including with the personal information of jail inmates. The court holds that the government must prove knowledge in its case in chief, declines to limit the sequence of defense evidence, and denies the motion (ECF No. 503). Senior United States District Judge James P. Jones signed it.

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Case 1:21-cr-00024-JPJ-PMS Document 562 Filed 12/28/21 Page 1 of 5 Pageid#: 3939




                 IN THE UNITED STATES DISTRICT COURT
                FOR THE WESTERN DISTRICT OF VIRGINIA
                          ABINGDON DIVISION

  UNITED STATES OF AMERICA                       )
                                                 )
                                                 )      Case No. 1:21CR00024
                                                 )
  v.                                             )      OPINION AND ORDER
                                                 )
  JEFFERY R. TACKETT, ET AL.,                    )      JUDGE JAMES P. JONES
                                                 )
                    Defendants.                  )


       In this criminal case the United States has filed a Motion in Limine seeking

 an order excluding the introduction of any evidence at trial regarding federal

 stimulus payments or other government benefits programs unless evidence is first

 introduced that would raise a reasonable inference that the accused believed in fact

 that his or her participation in the fraudulent scheme to obtain benefits was lawful.

       The government has accused dozens of individuals in this district with

 participating in a scheme in 2020 to submit fraudulent applications to the Virginia

 Employment Commission (VEC) in order to obtain funds provided by Congress to

 aid those who had lost their jobs because of the COVID-19 pandemic. Many of the

 defendants have already pled guilty, but others are still to be tried. The scheme, as

 alleged, involved individuals unemployed but not as a result of the pandemic —for

 example, inmates in local jails — who provided their personally identifiable

 information (PII), including names, dates of birth, and Social Security numbers, to
Case 1:21-cr-00024-JPJ-PMS Document 562 Filed 12/28/21 Page 2 of 5 Pageid#: 3940




 an organizer or leader of the conspiracy. A conspirator would prepare a required

 form using the PII supplied, as well as the name of a fictitious employer claimed to

 be the last employer when the applicant became unemployed due to COVID-19. The

 form would then be submitted to the VEC, falsely representing that the applicant

 was unemployed because of the pandemic.1 In most cases, the application was

 accepted and the VEC provided benefits through a weekly pre-paid debit card in the

 name of the applicant. Often, particularly if the applicant was incarcerated, the

 conspiracy leaders would scam the applicant and use the debit card themselves,

 passing on little or none of the proceeds. The government charges that hundreds of

 thousands of dollars were fraudulently obtained by those charged in this case.2

           The defendants are charged with conspiring to defraud the United States, in

 violation of 18 U.S.C. § 371, conspiring to commit mail fraud, in violation of 18

 U.S.C. § 1349, fraud in connection with emergency benefits, in violation of 18




       1
            The government benefits involved in the fraud are referred to in the Indictment
 as “pandemic unemployment benefits.” The Indictment alleges that “[i]ndividuals are only
 eligible for pandemic unemployment benefits if they are unemployed for reasons related
 to the COVID-19 pandemic and are otherwise available to work and are seeking
 employment.” Indictment ¶ 8, ECF No. 25.
       2
           The allegations made in this case are not alone. “Nearly $100 billion at minimum
 has been stolen from COVID-19 relief programs set up to help businesses and people who
 lost their jobs due to the pandemic, the U.S. Secret Service said Tuesday.” Jennifer
 McDermott, Associated Press, PBS News Hour, (Dec. 22, 2021, 9:40 AM), https://www.
 pbs.org/newshour/nation/nearly-100-billion-stolen-in-pandemic-relief-funds-secret-servic
 e-says.
                                            -2-
Case 1:21-cr-00024-JPJ-PMS Document 562 Filed 12/28/21 Page 3 of 5 Pageid#: 3941




 U.S.C. §1040(a), mail fraud, in violation of 18 U.S.C. § 1341, and aggravated

 identity theft, in violation of 18 U.S.C. § 1028A.3

        In its present motion, the government expresses concern that the defendants

 will seek to show their innocent motive in seeking benefits and providing their PII

 to the fraud’s organizers by presenting evidence of the existence of other government

 benefit programs beside the pandemic employment benefits, and in particular the

 provision of the March 2020 CARES Act providing for government payments to

 virtually everyone, regardless of the lack of employment, often referred to as

 “stimulus payments.”4 It is surmised by the government that the defendants will

 simply present evidence of the well-known stimulus payment program and without

 other evidence of their motive, hope to convince the jury that they believed that they

 were lawfully applying for these stimulus payments.

        The government does not argue that a defendant must actually testify as to

 their good faith confusion before the evidence sought to be precluded is relevant, but

 only that some evidence indicating their lawful motivation must be first presented.



        3
           Certain of the defendants are also charged with conspiring to obstruct justice, in
 violation of 18 U.S.C. § 1512(k), and lying to investigators, in violation of 18 U.S.C. §
 1001.
        4
           Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134
 Stat. 281 (Mar. 27, 2020). A second round of stimulus payments was made in 2021.
 Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, 134 Stat. 1182 (Dec. 27,
 2020).

                                             -3-
Case 1:21-cr-00024-JPJ-PMS Document 562 Filed 12/28/21 Page 4 of 5 Pageid#: 3942




 The government contends that it is solely a matter of timing — evidence that a

 defendant providing their PII thought it was for a legitimate purpose before evidence

 of the existence of stimulus payments is relevant.

       To prove guilt of a charge of conspiracy, the government must prove, among

 other things, the defendant’s “knowing and willing participation.” United States v.

 Rafiekian, 991 F.3d 529, 547 (4th Cir. 2021).        As the standard jury instruction

 cautions, “a person who has no knowledge of a conspiracy, but who happens to act

 in a way that advances some purpose of a conspiracy, does not thereby become a

 conspirator.” United States v. Brown, 727 F.3d 329, 338–39 (5th Cir. 2013).

       It is recognized that when a defendant intends to assert an affirmative defense

 to a charge at trial, the defendant’s “ability to put forth evidence of [such] defense

 may properly be tested in limine.” United States v. Cramer, 532 F. App’x 789, 791

 (9th Cir. 2013) (unpublished). But no affirmative defense is involved here. It is the

 government’s burden to prove in its case in chief the defendants’ knowledge of the

 fraudulent scheme. I do not find that I can limit the sequence of the defendants’

 evidence in this case.

       It is important to emphasize, however, that I can limit defense counsel’s

 statements and argument to the jury, and I caution counsel that their descriptions of

 the case to the jury must be supported at the least by reasonable inferences from the

 facts in evidence or to be introduced.


                                          -4-
Case 1:21-cr-00024-JPJ-PMS Document 562 Filed 12/28/21 Page 5 of 5 Pageid#: 3943




       For the reasons stated, it is ORDERED that the government’s Motion in

 Limine, ECF No. 503, is DENIED.

                                            ENTER: December 28, 2021

                                            /s/ JAMES P. JONES
                                            Senior United States District Judge




                                      -5-


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