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United States v. Lillie

May 15, 2009

UNITED STATES OF AMERICA
v.
BRIAN K. LILLIE, ET AL.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER

On September 10, 2008, a federal grand jury returned a one-count indictment [1] against Andre D. Johnson ("Johnson") and Brian K. Lillie ("Lillie") (collectively "Defendants"), charging them with mail fraud in violation of 18 U.S.C. § 1341. Defendant Lillie has filed various pre-trial motions [34], which currently are before the Court for resolution.*fn1 For the reasons stated below, Defendant' s motions are denied in part and granted in part.

I. Motion to Dismiss Indictment, or Alternatively to Order Review of Grand Jury Materials

Lillie first moves to dismiss the indictment on the grounds that it is not supported by any evidence. "An indictment will be deemed sufficient if it (1) states the elements of the offense charged, (2) fairly informs the defendant of the nature of the charge so that she may prepare a defense, and (3) enables her to plead an acquittal or conviction as a bar against future prosecutions for the same offense." U.S. v. Yoon, 128 F.3d 515, 521-22 (7th Cir. 1997).

The elements of mail fraud are "(1) a scheme to defraud; (2) an intent to defraud; and (3) use of the mails or wires in furtherance of the scheme." U.S. v. Sloan, 492 F.3d 884, 890 (7th Cir. 2007). The indictment states all three of these requisite elements. The indictment also explains the nature of the charge, describing an alleged scheme in which Lillie knowingly submitted false inspection reports to Wells Fargo Home Mortgage in order to fraudulently induce the lender to release federal funds allocated by the Federal Housing Administration for the rehabilitation of distressed property.

Lillie' s contention that the indictment nevertheless is invalid cannot be squared with the requisite elements of the offense of mail fraud. Lillie contends that there is no evidence to support the theory that Johnson and Lillie acted together to defraud Wells Fargo and the government. But the existence of a conspiracy is not an element of mail fraud. To the extent that Lillie is arguing that the government cannot prove its apparent theory of the crime, that argument is not well taken at this stage of the case. As discussed below, a motion to dismiss an indictment is not "a means of testing the strength or weakness of the government' s case.'"U.S. v. Moore, 2009 WL 1053073, at *3 (7th Cir. April 21, 2009). In short, the government is not required to prove its case at this time. Therefore, the Court finds that the indictment is sufficient on its face.

The Supreme Court has long held that "[a]n indictment returned by a legally constituted and unbiased grand jury, * * * if valid on its face, is enough to call for trial of the charge on the merits."Costello v. U.S., 350 U.S. 359, 362 (1956). It is a well-established corollary to that rule that "an otherwise valid indictment cannot be challenged on the ground that the grand jury based it on inadequate or incompetent evidence." U.S. v. Taylor, 154 F.3d 675, 681 (7th Cir. 1998). Indeed, both the Supreme Court and the Seventh Circuit have expressed "reluctance to examine the quality or sufficiency of the evidence presented to a grand jury . . . even [where that evidence was] unconstitutionally obtained." U.S. v. Greve, 490 F.3d 566 (7th Cir. 2007) (citing United States v. Calandra, 414 U.S. 338, 344-45 (1974)). Challenges based on the sufficiency of the evidence that was presented to the grand jury are not permitted. If such challenges were allowed, "the resulting delay would be great indeed," because "before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury." Costello, 350 U.S. at 362.

Lillie contends that he is not challenging the indictment based on the adequacy of the evidence presented to the grand jury, but rather on the grounds that the grand jury heard no evidence supporting the indictment. The Court does not see an appreciable difference between a pre-trial challenge based on the sufficiency of the evidence and one based on a supposed lack of evidence. In either case, the court is being asked to "delv[e] beneath the face of the indictment," something that "decisions by the Supreme Court * * * seem to go out of their way to prevent." U.S. v. Roth, 777 F.2d 1200, 1203 (7th Cir. 1985). Moreover, allowing challenges based on a supposed lack of evidence would require the same kind of preliminary trial that the rule against challenges based on the sufficiency of the evidence was designed to prevent. Because Lillie's indictment was returned by a legally constituted grand jury, and is valid on its face, the motion to dismiss the indictment is denied.

Alternatively, Lillie moves for an order directing the government to produce to him, or to submit to the Court for in camera inspection, all grand jury materials pursuant to Rule 6(e)(3)(E)(ii) of the Federal Rules of Criminal Procedure. In order to be entitled to grand jury materials pursuant to Rule 6(e)(3)(E)(ii), a defendant "must show a particularized need for the review to overcome the presumption of secrecy embodied in the grand jury process." U.S. v. Puglia, 8 F.3d 478 (7th Cir. 1993); see also U.S. v. Capriotti, 2003 WL 23213568, at *3 (N.D. Ill. Dec. 30, 2003 (denying motion for disclosure of grand jury materials to defendant or for in camera review where no particularized need was shown). "Mere unsupported speculation of possible prosecutorial abuse does not meet the particularized need standard." U.S. v. Canino, 949 F.2d 928, 943 (7th Cir. 1991). "'

In determining whether the party requesting disclosure has met his burden, the district court has 'substantial discretion.'" Matter of EyeCare Physicians of America, 100 F.3d 514 (7th Cir. 1996). Here, Lillie provides no more than unsupported speculation that the grand jury must not have been presented with any supporting evidence, which is not sufficient to satisfy the particularized need standard. Therefore, the motion for the disclosure of the grand jury materials respectfully must be denied.

II. Motion to Compel Disclosure of Favorable Evidence

Lillie also moves for the immediate disclosure of all favorable evidence and all evidence that bears upon the credibility of witnesses, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). In particular, Lillie requests that the government produce 22 types of evidence and expresses his confidence "that Government counsel intends to produce any and all Brady material of which he becomes aware." [34, at 7]. In response, the government acknowledges its continuing obligations under Brady and Giglio, and represents that it has complied (and will continue to comply) with those obligations. The government has declined to address Lillie's specific requests, but has noted that it does not necessarily agree that all of the evidence Lillie seeks is subject to disclosure under Brady and Giglio [35 at 9, n.3].

The government correctly notes that courts in this Circuit consistently have held that "where the government has made assurances it will comply with Giglio and Brady, those assurances are sufficient," and a defendant' s discovery motion will be denied as moot. United States v. Butler, 1994 WL 69387, at *2 (N.D. Ill. Feb. 4, 1994) (citing cases); see also U.S. v. Macias, 2007 WL 1202414, at *9 (N.D. Ill. April 19, 2007). However, here, (i) Lillie has specifically requested 22 types of evidence that he believes the government must disclose pursuant to Giglio and Brady, (ii) the government has suggested that it may not agree that all of the requested material is discoverable, and (iii) Lillie identifies two specific items as to which he believes "the Government has not fulfilled its obligations." [36, at 4-5].

Given that trial is not imminent, the Court directs counsel to meet and confer to determine the extent to which the defense and the government have a genuine disagreement as to what the law requires and to file no less than three business days before the next status conference a status report setting forth any areas of continuing disagreement. See U.S. v. Farley, 1997 WL 695680, at *8 n.13 (N.D. Ill. Oct. 31, 1997) (refusing to dismiss Brady motion as moot where government and defense disputed what the law required on the ground that the court cannot "delegate to the government the task of determining what the law is"). Consistent with the foregoing, the Court accepts the government' s representation that it will continue to disclose Brady material if and when it becomes available. In addition, in the interest of efficient pre-trial and trial proceedings, the Court directs the government to provide any Giglio materials no later than 35 days ...


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