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United States v. Collins

United States District Court, W.D. Tennessee, Western Division

July 14, 2017




         Before the Court is Defendant Cleve Collins' Motion to Dismiss the Indictment that was filed on February 17, 2017. (ECF No. 18). The United States of America filed a response in opposition on March 21, 2017, and on April 3, 2017, Defendant filed a reply. (ECF Nos. 24 & 25). The motion was referred to the U.S. Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(A). (ECF No. 23). On May 18, 2017, the Magistrate Judge issued a report and recommendation that the Court deny Defendant's motion to dismiss. The Defendant filed timely objections on May 23, 2017. (ECF No. 26 & 27). For the following reasons, the Court finds the Magistrate Judge's report and recommendation should be adopted and Defendant's motion to dismiss the indictment Denied.


         The Magistrate Judge's report and recommendation contains proposed findings of facts that summarize the events leading to the federal indictment in this case. Defendant has not objected to the Magistrate Judge's proposed findings of fact. Therefore, the Court adopts the Magistrate Judge's proposed factual findings of fact as the factual summary of this case.


         A United States District Court Judge may refer certain dispositive motions, including motions to dismiss the indictment, to a United States Magistrate Judge for proposed findings of fact and conclusions of law pursuant to 28 U.S.C. § 636(b); U.S. v. Houston, Case No. 3:13-10-DCRF, 2013 WL 3975405 *1 (E.D. Tenn. July 29, 2013). The District Judge may accept, reject or modify in whole or in part, the Magistrate's proposed findings and recommendations. U.S. v. Raddatz, 447 U.S. 667, 673-675 (1980) reh'g den., 448 U.S. 916 (1980). See 28 U.S.C. § 636 (b)(1)(B).

         In criminal cases, the district judge is required to make a de novo determination of those portions of a Magistrate's report and recommendation to which specific objections are made. Id. at 674-675. While most actions by a Magistrate Judge are reviewed for clear error, dismissal or quashing of an indictment or information and motions to suppress evidence are among the motions in criminal matters that are subject to de novo review. U.S. v. Quinney, 238 Fed.Appx. 150, 152 (6th Cir. 207) and U.S. v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001).

         III. ANALYSIS

         On November 17, 2016, a federal grand jury returned the instant indictment charging Collins with an alleged scheme to defraud the United States in violation of 18 U.S.C. § 1031. The alleged unlawful scheme to defraud reportedly began on or about August 2009 and continued through February 2011. (ECF No. 1, p. 3 ¶ 10). On May 14, 2009, the General Services Administration (“GSA”) granted Don Brady Construction, Inc., (“DBC”), a contract for roofing and air conditioning improvements to the Ed Jones Federal Building in Jackson, Tennessee. The initial contract award was for the amount of $1, 479, 989.00, but with change orders totaled $1, 502, 309.08. As Chief Operating Officer (“COO”) of DBC, Collins was responsible for ensuring that the work was done in compliance with GSA specifications, obtaining progress payments from GSA as authorized, and certifying that the payments were made to the subcontractors and suppliers for their services. From August 2009 to February 2011, Collins is charged with repeatedly procuring payments from GSA for work that was completed by Jesse Bryant Roofing Company in the amount of $580, 050, and failing to make payments to the roofing company as required. Instead, Collins used the money for his own personal debts and purchases, in violation of 18 U.S.C. § 1031. (ECF No. 1, pp 3-5).

         Initially, Collins raises three grounds in support of his motion to dismiss the indictment: 1) the statute of limitations for the offense has expired; 2) his alleged misrepresentations are immaterial; and 3) he cannot be held criminally liable for actions taken in his capacity as COO. (ECF Nos. 18 & 25). The Government responds that the motion to dismiss should be denied because: 1) the duration of the scheme is a factual issue for the jury; 2) Defendant's statute of limitations argument is premature and the seven-year statute of limitations had not run because the underlying scheme to defraud was a continuing offense; 3) Defendant's argument that he made no material misrepresentations is without merit and a fact question for the jury; and 4) individuals are not insulated from criminal liability based on their employment status. (ECF No. 24).

         The Magistrate Judge addressed the issues raised by Collins and recommended that the Court deny the motion to dismiss the indictment. First, the Magistrate Judge declined to consider the exhibits attached to the motion to dismiss, and then analyzed the language of the indictment. The Magistrate Judge determined that: 1) the alleged facts, if proven, would establish a criminal violation, and that violation would be within the seven year statute of limitations in 18 U.S.C. § 1031(f); 2) the materiality of Collins' statements regarding progress payment certifications are questions of fact for the jury; and 3) Collins' argument that an individual who violates the law while acting as a corporate officer may not be charged criminally is without merit. (ECF No. 26).

         On May 23, 2017, Collins filed objections to the report and recommendation, objecting only to the Magistrate Judge's determination that the allegations within the indictment, if proven, establish a violation occurring within the seven year statute of limitations. (ECF No. 27). As noted above, the Magistrate Judge concluded that the indictment charged that the scheme was executed between August 2009 to February 2011, and therefore the indictment, filed on November 17, 2016, was within the seven year statute of limitations.

         Collins argues that the crime alleged in the indictment was completed and “executed” in August and September 2009, when the first progress payment was submitted. Because the statute of limitations began running at that time, the seven year period expired before the indictment was returned. (ECF No. 27, p. 6). Collins asserts each subsequent payment only carried out the scheme of the already completed offense. (ECF No. 18, pp. 3-4 & ECF No. 25, pp. 2-4). Toussie v. United States, 397 U.S. 112, 115 (1970); Pendergast v. United States, 317 U.S. 412, 418 (1943); and U.S. v. Reitmeyer, 356 F.3d 1313, 1317 (10th Cir. 2004). The Court disagrees.

         “[C]ourts, however, have repeatedly held that an indictment brought under the healthcare fraud, bank fraud, or major fraud statutes may properly charge, in a single count, a pattern of executions, or submissions of fraudulent claims, as part of a single, overarching continuing scheme.” U.S. v. Mermelstein, 487 F.Supp.2d 242, 254 (E.D. N.Y. May 2, 2007). In Mermelstein, the district court noted that sister courts rely on case law that construe similarly worded statutes for the proper interpretation of these offenses. Id. at fn.2 (citing U.S. v. Frequency Electronics, 862 F.Supp. 834, 838-39 (E.D.NY. 1994))(holding that the ...

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