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United States v. Agee

United States District Court, S.D. Indiana, Indianapolis Division

November 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KERRI AGEE a/k/a KERRI AGEE-SMITH, KELLY ISLEY, NICOLE SMITH a/k/a NICOLE SMITH-KELSO, CHAD GRIFFIN, and MATTHEW SMITH Defendants.

          ORDER ON DEFENDANTS' MOTIONS TO DISMISS INDICTMENT

          TANYA WALTON PRATT, JUDGE.

         Four of the five defendants in this alleged conspiracy to defraud the United States by obtaining Small Business Association (“SBA”) guarantees for loans that did not meet SBA's guidelines and requirements, have filed motions to dismiss specific counts of the Indictment. Before the Court are Motions to Dismiss the Indictment filed pursuant to Federal Rule of Criminal Procedure 12(b)(3) by Defendants Kerri Agee (Filing No. 78), Kelly Isley (Filing No. 81), Nicole Smith (Filing No. 87), and Chad Griffin (Filing No. 92) (collectively, “Defendants”). The Defendants were indicted on March 20, 2019 with one count of Conspiracy to Commit Wire Fraud Affecting a Financial Institution, in violation of 18 U.S.C. § 1349, and one count of Conspiracy to Make False Statements in Purchases and Applications for Guarantees, in violation of 18 U.S.C. § 371, as well as Wire Fraud and Making or Aiding and Abetting False Statements in Purchases and Applications for Guarantees, in violation of 18 U.S.C. § 371. The Defendants move to dismiss the Indictment on grounds of multiplicity, lack of specificity, and counts being time barred. For the following reasons, the Court grants in part and denies in part the Motions to Dismiss.

         I. LEGAL STANDARD

         Federal Rule of Criminal Procedure 7(c)(1) requires that an indictment include “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). A defendant may move to dismiss an indictment if there is “a defect in the indictment, ” such as “charging the same offense in more than one count (multiplicity)” or “lack of specificity.” Fed. R. Crim. P. 12(b)(3). “An indictment need not say much to be deemed sufficient.” United States v. Moore, 563 F.3d 583, 585 (7th Cir. 2009). “[W]hen evaluating the sufficiency of an indictment, we focus on its allegations, which we accept as true.” Id. at 586. “Challenging an indictment is not a means of testing the strength or weakness of the government's case, or the sufficiency of the government's evidence.” Id. (citation and quotation marks omitted).

         “Indictments are reviewed on a practical basis and in their entirety, rather than in a hypertechnical manner.” United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000) (citation and quotation marks omitted). “[A]n indictment is legally sufficient if it (1) states all the elements of the crime charged, (2) adequately informs the defendant of the nature of the charges against him, and (3) allows the defendant to assert the judgment as a bar to future prosecutions of the same offense.” United States v. Vaughn, 722 F.3d 918, 925 (7th Cir. 2013) (citation omitted). In order to successfully challenge an indictment, a defendant must demonstrate that the indictment does not meet one or more of these requirements and that she will suffer prejudice as a result. United States v. Dooley, 578 F.3d 582, 590 (7th Cir. 2009).

         “In setting forth the offense, it is generally acceptable for the indictment to ‘track' the words of the statute itself, so long as those words expressly set forth all the elements necessary to constitute the offense intended to be punished.” Smith, 230 F.3d at 305. “[W]hile there must be enough factual particulars so the defendant is aware of the specific conduct at issue, the presence or absence of any particular fact is not dispositive.” United States v. White, 610 F.3d 956, 959 (7th Cir. 2010).

         II. DISCUSSION

         The Defendants ask the Court to dismiss the Indictment because of multiplicity, a lack of specificity, and some counts being time barred. The Indictment charges as follows:

Count 1 charges Defendants Kerri Agee, Kelly Isley, Nicole Smith, Chad Griffin, and Matthew Smith with Conspiracy to Commit Wire Fraud Affecting a Financial Institution;
Count 2 charges Defendants Kerri Agee, Kelly Isley, and Nicole Smith with Wire Fraud Affecting a Financial Institution;
Count 3 charges Defendant Kerri Agee with Wire Fraud Affecting a Financial Institution;
Count 4 charges Defendants Kerri Agee, Kelly Isley, and Nicole Smith with Wire Fraud Affecting a Financial Institution;
Count 5 charges Defendants Kerri Agee, Kelly Isley, and Nicole Smith with Wire Fraud Affecting a Financial Institution;
Count 6 charges Defendants Kerri Agee, Kelly Isley, Nicole Smith, Chad Griffin, and Matthew Smith with Conspiracy to Make False Statements in Purchases and Applications for Guarantees;
Count 7 charges Defendants Kerri Agee, Kelly Isley, and Nicole Smith with False Statements in Purchases and Applications for Guarantees;
Count 8 charges Defendants Kerri Agee, Kelly Isley, and Nicole Smith with False Statements in Purchases and Applications for Guarantees;
Count 9 charges Defendant Kerri Agee with False Statements in Purchases and Application;
Count 10 charges Defendant Kerri Agee with False Statements in Purchases and Applications;
Count 11 charges Defendants Kerri Agee, Kelly Isley, and Nicole Smith with False Statements in Purchases and Applications for Guarantees;
Count 12 charges Defendants Kerri Agee and Chad Griffin with False Statements in Purchases and Applications for Guarantee; and
Count 13 charges Defendants Kerri Agee, Kelly Isley, and Nicole Smith with False Statements in Purchases and ...

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