The opinion of the court was delivered by: ELAINE BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Donald Copeland ("defendant") is charged with three counts of
bank fraud under 18 U.S.C. § 1344. Each of the three counts of
the superseding indictment charges defendant with an execution of
a scheme involving the fraudulent submission of a loan
application to U.S. Bank: Count I charges that on or about July
22, 1998, defendant executed the scheme by submitting or causing
to be submitted a fraudulent loan application under the business
name "VAS Enterprises"; Count II charges that on or about August
3, 1998, defendant executed the scheme by submitting or causing
to be submitted a fraudulent loan application under the business
name "Maximilian Building Associates"; Count III charges that on
or about August 5, 1998, defendant executed the scheme by
submitting or causing to be submitted a fraudulent loan
application under the business name "We Clean". Defendant now
brings four pretrial motions.
I. Motion to Strike Surplusage
As part of a general description of the alleged scheme, each
count of the indictment contains or incorporates the language: "loan applications were submitted under the names of businesses
including, but not limited to, VAS Enterprises, Maximilian
Building Associates, We Clean, AFL Enterprises, Neo Environment,
Inc., BSA Enterprises, Leo-Max Associates, VOL Consultant, Max
Rental Associates. . . ." Even though the government plans to
show evidence of the nine fraudulent applications, the government
has chosen to indict the defendant on only three executions of
the scheme. Defendant now moves to strike "allegations as to all
applications other than those charged as a criminal offense"
arguing that reference to these applications is not essential to
the indictment and is prejudicial.
"A motion to strike surplusage should be granted only if the
targeted allegations are clearly not relevant to the charge and
are inflammatory and prejudicial." United States v.
Chaverra-Cardona, 667 F. Supp. 609, 611 (N.D. Ill. 1987). In
this matter, the six additional alleged fraudulent applications
are undeniably relevant to proving the overall scheme of bank
fraud. The government's choice to only indict on three specific
counts does not prevent it from presenting additional evidence
relevant to proving the overarching scheme. United States v.
Hammen, 977 F.2d 379, 383 (7th 1982) ("[E]ach execution need
not give rise to a charge in the indictment."); See also United
States v. Kirkham, 129 Fed. Appx. 61, 69 (5th Cir. 2005)
(stating that it is permissible to list in an indictment
executions of a scheme even though they are not charged executions). Therefore, defendant's motion to strike
surplusage is denied.
II. Motion to Dismiss for Duplicity
Defendant moves to dismiss the indictment for duplicity.
Duplicity, or the joining of more than one offense in a single
count, is prohibited because a jury cannot render in a general
verdict a finding on each offense individually. United States v.
Marshall, 75 F.3d 1097, 1111 (7th Cir. 1996). Section 1344
Whoever knowingly executes, or attempts to execute, a
scheme or artifice
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits,
assets, securities, or other property owned by, or
under the custody or control of, a financial
institution, by means of false or fraudulent
pretenses, representations, or promises;
shall be fined not more than $1,000,000 or imprisoned
not more than 30 years, or both.
Each count in the indictment in this case reads in relevant
[D]efendant herein, knowingly executed and attempted
to execute the above-described scheme to defraud U.S.
Bank by knowingly submitting or causing to be
submitted a fraudulent Advantage Line Loan
Application for the business of [NAME] to U.S. Bank;
In violation of United States Code, Section 1344.
Defendant argues that the indictment charges more than one
offense in each count because the language of the indictment
generally charges the defendant under § 1344 without specifying a subsection, and blends the language of § 1344(1) and § 1344(2) in
doing so. Defendant argues that the two subsections of § 1344 are
different offenses requiring different proof.
Defendant is correct that courts have characterized each
subsection of § 1344 as a separate offense. United States v.
Doherty, 969 F.2d 425, 427 (7th Cir. 1992) ("The statute, which
reads in the disjunctive, establishes two distinct, albeit
closely related, offenses: (1) schemes to defraud financial
institutions; and (2) schemes to obtain money, etc., from
financial institutions by false pretenses, representations or
promises."); United States v. LeDonne, 21 F.3d 1418, 1426 (7th
Cir. 1994). In specifically addressing § 1344, however, it has
been held that a single count of an indictment may conjunctively
charge bank fraud under both subparagraph (1) or (2). United
States v. LeDonne, 21 F.3d 1418, 1427 (7th Cir. 1994) ("where a
statute defines two or more ways in which an offense may be
committed, all may be alleged in the conjunctive in one count in
order to adequately apprise the defendant of the government's
intention to charge him under either prong of the statute. And
proof of any one of those acts conjunctively charged may support
a conviction.") (citations omitted); See also United States v.
Crisci, 273 F.3d 235, 239 (2d Cir. 2001) ("a single count of an
indictment may charge bank fraud under both subsections (1) and
(2) and that proof of the violation of either subsection is
sufficient to support a conviction"). Although the counts do not explicitly state that the defendant
is being charged under both subsections in this case (i.e., the
indictment does not read ". . . in violation of § 1344 (1) and §
1344(2)"), the language of the indictment tracks and incorporates
the language of both § 1344(1) and § 1344(2). The language of the
indictment conjunctively charges acts, that if proved, could
support a conviction under either subsection of § 1344.
Defendant's motion to dismiss the indictment for duplicity is
III. Motion to Dismiss for Multiplicity
Defendant moves to dismiss the indictment for multiplicity.
Multiplicity is the charging of a single offense in multiple
counts and may result in a defendant receiving multiple
punishments for a single offense. United States v. Muhammad,
120 F.3d 688, 702 (7th Cir. 1997). Defendant argues that the
government has only alleged one distinct scheme of bank fraud and
that each of the three counts punishes that single scheme.
Under § 1344," "each `execution' of a scheme . . . constitutes
a separate violation of § 1344." United States v. Allender,
62 F.3d 909, 912 (7th Cir. 1995). Each execution of a scheme can be
punished separately and charged in a separate count. Id.; United
States v. Hord, 6 F.3d 276, 323 (7th Cir. 1994). The question of
whether alleged acts constitute separate executions of a scheme
or are merely acts in furtherance of a single execution is a
question of how "interrelated" the alleged acts are. United States v.
Longfellow, 43 F.3d 318, 323 (7th Cir. 1994). Acts are separate
executions when they are "chronologically and substantively
independent[,] none depended on the others for its existence,
[and] each had its own functions and purpose [and] they were
interrelated only because they involved the same overall scheme."
Id. (quoting United States v. Molinaro, 11 F.3d 853, 859 (9th
Cir. 1993)). In determining the interrelatedness of executions, a
key inquiry is whether the actions in question subjected the
financial institution to a new and additional risk or whether the
actions were taken in furtherance of a previously created risk.
Id. at 325.
In the present case, the applications were all submitted on
different dates, under different business names, and contained
different false and fraudulent statements. Each alleged
fraudulent application was for a separate and distinct loan that
subjected U.S. Bank to a new and additional monetary risk
independent of any other application. The fact that U.S. Bank was
the financial institution involved in all three transactions does
not alter the fact that they were separate executions. See Id.
Furthermore, the fact that each count incorporates a general
description of the scheme as background to that count does not
make the indictment multiplicative because each count requires
the proof of a specific execution of the scheme. Accordingly,
defendant's motion to dismiss for multiplicity is denied. IV. Motion for Bill of Particulars
Fourth, defendant moves for a bill of particulars stating the
following: 1) the specific portion of each loan or application
alleged to be false; 2) specific disclosure of documents relating
to the alleged financial loss $133, 539.00 because the defendant
has received 1223 pages of undifferentiated documents; 3) for
each alleged fraudulent transaction, a specification of the date,
loan applicant, and amount of loss; 4) identification of
anonymous co-schemers Individual A and Individual B referenced in
the indictment; 5) identification of the persons constituting