United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
AARON POLSTER UNITED STATES DISTRICT JUDGE
21, 2017, the Grand Jury indicted James Pearl, Doreen Pearl,
and Shuang “Lucia” Liu (aka “Gloria”)
on violations of 18 U.S.C. § 371 (Conspiracy to Defraud
the United States of America), 18 U.S.C. §§ 542 and
2 (Entry of Goods by Means of False Statements), and 18
U.S.C. §§ 545 and 2 (Smuggling Goods into the
United States). Doc #: 6. On December 15, 2017, Defendants
Doreen and James Pearl (the “Pearl Defendants”)
filed six motions with the Court. Four of those motions are
currently before the Court: (1) Motion for Bill of Particulars,
Doc #: 38; (2) Joint Motion for a Pretrial Copy of the Grand
Jury Proceedings, Doc #: 40; (3) Joint Motion to Dismiss
Indictment Based on Unconstitutional Vagueness and the Rule
of Lenity, Doc #: 42; and (6) Joint Motion to Dismiss Count 1
of the Indictment as Barred by the Statute of Limitations,
Doc #: 43. The Government filed its Responses on January 5,
2018. See Doc #: 47, 49, 51, and 52. The Pearl
Defendants filed their Replies on January 12, 2018.
See Doc #: 56, 58, 60, and 61. For the reasons
stated below, the Court DENIES all motions.
Motion for Bill of Particulars
Pearl Defendants request, through a bill of particulars: (1)
the identity of unindicted co-conspirators; (2) specifics of
alleged false statements in the Indictment; and (3)
additional information on the Government's theory of
prosecution. Mot. 1. A bill of particulars “is meant to
be used as a tool to minimize surprise and assist defendant
in obtaining the information needed to prepare a defense and
to preclude a second prosecution for the same crimes.”
United States v. Salisbury, 983 F.2d 1369, 1375 (6th
Cir. 1993). The decision to order a bill of particulars is
within the sound discretion of the trial court. Id.
However, a bill of particulars is not properly issued to
discover any of the Pearl Defendants' requests. First,
the Government is not required to provide the names of other
co-conspirators in a bill of particulars. United States
v. Mayberry, 3:12cr72, 2012 WL 4343159, *1 (S.D. Ohio
Sept. 21, 2012). Second, a defendant cannot use a bill of
particulars to compel the Government to disclose how it will
prove the charges or preview its legal theory. United
States v. Ingram, 5:15cr78, 2016 WL 1239976, *2 (E.D.
Ky. Mar. 29, 2016). Last, the Government does not have to
disclose which particular statements were allegedly false.
United States v. Moyer, 674 F.3d 192, 203 (3d Cir.
Pearl Defendants argue in their Reply that courts grant
motions for bills of particulars where discovery is extensive
and the indictments are vague. Reply 4. But in the cases
cited by the Pearl Defendants, the indictments did not
include dates, amounts, or any other information that the
defendants could use to identify the conduct the Government
was challenging. See, e.g., United States v.
Nachamie, 91 F.Supp.2d 565, 571 (S.D.N.Y. 2001). Here,
the Government lists the dates, entry numbers, the amount of
tax not paid, and other information to aid the Pearl
Defendants in identifying which invoices the Government
believes contain false statements. See Indictment
§ 79. Thus, the Pearl Defendants have failed to show
that a bill of particulars is necessary to prepare a defense.
Accordingly, the Court cannot grant the Pearl Defendants'
Motion for Bill of Particulars.
Joint Motion for a Pretrial Copy of the Grand Jury
Pearl Defendants filed a motion to obtain a pretrial copy of
the grand jury proceedings. A defendant seeking pretrial
disclosure of grand jury testimony under Rule 6(e), as the
Pearl Defendants do here, must demonstrate a
“particularized need” for the material.
United States v. Azad, 809 F.2d 291, 295 (6th Cir.
1986). The Pearl Defendants argue that they have shown a
particularized need to obtain the grand jury transcript
because it would likely show that “the Government
failed to apprise the Grand Jury of materially exculpatory
information that would have negated probable cause for the
alleged crimes[.]” Mot. 3. However, “the
government has no duty to provide potentially exculpatory
evidence to the grand jury.” Martin v. Maurer,
581 Fed.Appx. 509, 511 (6th Cir. 2014) (citing United
States v. Angel, 355 F.3d 462, 475 (6th Cir. 2004)). So,
the Pearl Defendants have not articulated a particularized
need and the Court cannot grant their motion.
Joint Motion to Dismiss Indictment Based on Unconstitutional
Vagueness and the Rule of Lenity
Pearl Defendants argue that the Department of Commerce's
Anti-Dumping Order is unconstitutionally vague as applied to
them and violates the rule of lenity. Mot. 1. A criminal
statute is unconstitutionally vague if it “defines an
offense in such a way that ordinary people cannot understand
what is prohibited or if it encourages arbitrary or
discriminatory enforcement.” United States v.
Kernell, 667 F.3d 746, 750 (6th Cir. 2012) (quotation
omitted). A defendant bears the burden of establishing that a
criminal statute is vague as applied to his particular case.
United States v. Krumrei, 258 F.3d 535, 537 (6th
Cir. 2001). The Pearl Defendants do not allege that the
Anti-Dumping Order is vague itself but rather that they
received inconsistent guidance from federal agents as to how
it would be enforced. Mot. 5. Thus, they are really arguing
that the public authority defense applies to their case, not
that the regulation is unconstitutionally vague. Whether the
public authority defense applies is a question for the jury
the rule of lenity requires ambiguous criminal laws to be
interpreted in favor of defendants. United States v.
Santos, 553 U.S. 507, 514 (2008). The Pearl Defendants
again fail to explain why the Anti-Dumping Order is ambiguous
and rely solely on the public authority defense. Accordingly,
the Court must deny their motion.
Joint Motion to Dismiss Count 1 of the Indictment as Barred
by the Statute of Limitations
Pearl Defendants also argue that Count 1 should be dismissed
as barred by the statute of limitations because the
Government failed to allege any “overt act” that
occurred after June 21, 2017. Mot. 1. They assert that many
of the overt acts alleged by the Government are really acts
of concealment and thus cannot be considered for computing
the limitations period. Id. Although the Pearl
Defendants are correct that concealment is generally
insufficient to extend a conspiracy, the Court concludes that
this question is ultimately a question of fact for the jury.
statute of limitations period for a violation of Section 371
‘is five years, which period runs from the date of the
commission of the last overt act in furtherance of the
conspiracy.'” United States v. Fraser, 63
Fed.Appx.. 814, 817 (6th Cir. 2003) (quoting United
States v. Craft, 105 F.3d 1123, 1127 (6th Cir. 1997)).
Acts of concealment taken by conspirators to cover up an
already-accomplished crime are not overt acts. Grunewald
v. United States, 353 U.S. 391, 414 (1957). “But a
vital distinction must be made between acts of concealment
done in furtherance of the main criminal objectives of the
conspiracy, and acts of concealment done after these central
objectives have been attained, for the purpose only of
covering up after the crime.” Id. at 405.
“Before trial, the Court does not make the
determination of whether the alleged overt act is in
furtherance of the central objective or mere concealment;
that is a question of fact for the jury.” United
States v. Nazzal, No. 11-20759, 2012 WL 4838996, *3
(E.D. Mich. Oct. 11, 2012).
Pearl Defendants were charged with conspiring to defraud the
United States. Indictment, Count 1. They maintain that the
main objective of the conspiracy, defrauding the United
States, was completed once the Pearls paid lower duty amounts
on imported tires and those tires were subsequently sold.
Mot. 5. The Pearl Defendants argue that all overt acts
alleged by the Government occurring within the statute of
limitations period were acts of concealment taken after the
main object of the conspiracy was attained. Id. They
further argue that determining whether the statute of
limitations has run is a question of law that the Court
should decide before trial. Reply 4-5. However, the Pearl
Defendants are necessarily asking the Court to make a factual
determination: that an overt act did not occur within the
statute of limitations period. To do so, the Court has to
find that the Pearl Defendants' ...