United States District Court, Middle District of Tennessee, Nashville Division
KEVIN H. SHARP, UNITED STATES DISTRICT JUDGE
Pending before the Court are the following Motions filed by Defendant: (1) Motion to Dismiss Counts 4, 5, 6, 7 & 8 of the Indictment (Docket No. 38); (2) Motion for Bill of Particulars (Docket No. 39); and (3) Motion to Dismiss Due to Prejudicial Pre-Indictment Delay (Docket No. 40). Those Motions have been fully briefed by the parties and, for the reasons that follow, will be denied.
On March 28, 2013, a federal grand jury returned an eight-count indictment against Defendant. Count One alleges that Defendant and others, including Jamie Little (“JL”) and Leo Rice (who are identified in the Indictment solely by their initials), conspired to commit mail fraud. That fraud allegedly began in or around November 2009, and continued until around October 2011. Count Two alleges that, as a part of the scheme, Defendant committed mail fraud on or about May 22, 2011. Count Three alleges Defendant committed aggravated identity theft on or about February 28, 2011. Finally, Counts Four through Eight allege bank fraud.
According to the Indictment, Defendant was a Claims Adjuster for Western Express, a trucking company based in Nashville, Tennessee. JL was also a claims adjuster and administrator at Western Express, and LR worked for the trucking company in recruiting and dispatch.
Accident claims valued at $10, 000 or less were handled internally at Western Express, and Defendant’s responsibilities included evaluating and processing such claims. The essence of the Indictment is that Defendant, JL, and LR devised a scheme to defraud Western Express by falsifying and submitting fake accident claims to Western Express for payment. Among the particulars, it is alleged that (1) individuals were recruited to serve as claimants to file false claims arising from accidents that either did not occur or did not involve the claimant; (2) paperwork purporting to settle the claims was falsified and submitted to Western Express for payment; (3) settlement moneys were split between the claimants and conspirators; (4) endorsement signatures were forged on checks issued by Western Express and placed into Defendant’s personal bank account; and (5) sham corporations were created to solicit payments from Western Express.
After the alleged fraud was discovered, Western Express contacted both state and federal authorities. It also instituted a civil suit against Defendant, and he counter-sued claiming sexual harassment, retaliation and a hostile work environment.
II. Motion to Dismiss Due to Prejudicial Pre-Indictment Delay
Because it is potentially dispositive, the Court begins with Defendant’s request for dismissal due to pre-indictment delay.
Statutes of limitations, “which provide predictable, legislatively enacted limits on prosecutorial delay, ” are the primary safeguard against “overly stale criminal charges.” United States v. Lovasco, 431 U.S. 783, 789 (1977). Nevertheless, a “statute of limitations does not fully define the [defendant’s] rights with respect to the events occurring prior to indictment, ” United States v. Marion, 404 U.S. 307, 324 (1971) and, “[i]n certain cases, the Due Process Clause protects against preindictment delay, ” Parker v. Burt, 595 F. App’x 595, 601 (6th Cir. 2015).
“In this circuit, dismissal for pre-indictment delay ‘is warranted only when the defendant shows substantial prejudice to his right to a fair trial and that the delay was an intentional device by the government to gain a tactical advantage.’” United States v. Schaffer, 586 F.3d 414, 424 (6th Cir. 2009) (quoting United States v. Greene, 737 F.2d 572, 574 (6th Cir. 1984)). “‘The standard for pre-indictment delay is nearly insurmountable, especially because proof of actual prejudice is always speculative.’” United States v. Montgomery, 491 F. App’x 683, 691 (6th Cir. 2012) (quoting United States v. Rogers, 118 F.3d 466, 477 n. 10 (6th Cir. 1997)).
Defendant bears the “heavy burden to prove that pre-indictment delay caused actual prejudice.” United States v. Wright, 343 F.3d 849, 860 (6th Cir. 2003). “‘Bare assertions, without supporting evidence, are not sufficient to demonstrate prejudice.’” Montgomery, 49 F. App’x at 691 (quoting United States v. Vaughn, 444 Fed. App’x 875, 879 (6th Cir. 2011)).
Defendant relies upon the following time line to support his claim that the Government took too long to indict:
1) November 2009 through October 2011 – crimes allegedly occur
2) October 6, 2011 – Western Express reports alleged fraud to Nashville police
3) October 13, 2011 – E-mail indicates that Western Express Claims Manager and Vice President believes “best bet is to present our case to the U.S. district attorney’s office as interstate insurance fraud”
4) November 2, 2011 – Western Express files civil complaint against Defendant alleging fraud
5) January 27, 2012 – Federal agent interviews Jamie Little about alleged fraud who, in turn, implicates Defendant
6) March 15, 2012 – Defendant files civil complaint against Western Express
7) May 23 & 24, 2012 – Defendant responds to interrogatories and production requests
8) July 11, 2012 – Matthew Neal, Western Express’s Recruiting Director dies in a house fire
9) August 14, 2012 – Counsel for Western Express emails Defendant’s counsel in civil case advising that Western Express has been working with federal agents on a prosecution and providing the government with discovery. The following day, Government provides a target letter to Defendant’s attorney in civil case
10) August 16, 2012 – Counsel moves for stay of civil proceedings
11) January 15, 2013 – Western Express meets with federal agents to provide and assist in review of discovery materials from civil case
12) March 28, 2013 – Defendant ...