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United States v. Boender

February 24, 2010


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


On February 26, 2009, a federal grand jury indicted Defendant Calvin Boender ("Boender"). Subsequently, a nine-count superseding indictment (the "Indictment") was issued on May 28, 2009. [See 8]. Before the Court is Boender's motion to dismiss several counts of the Indictment [73], which the parties have fully briefed [74, 77, 78]. For the reasons set forth below, the motion to dismiss [73] is respectfully denied.

I. Background

Counts 1 through 4 of the Indictment charge Boender with committing mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1346. Count 5 charges Boender with "federal programs bribery" in violation of 18 U.S.C. § 666(a)(2). Counts 6 and 7 each charge Boender with campaign finance fraud in violation of 2 U.S.C. §§ 441f and 437g(d)(1)(A)(ii). Counts 8 and 9 each charge Boender with obstruction of justice in violation of 18 U.S.C. § 1503(a).

Boender's motion to dismiss targets Counts 1 through 4, 6, and 9 of the Indictment. As explained in Part III of this opinion, the motion to dismiss is denied as moot with regard to Counts 1 through 4. With respect to Count 6, Boender argues that the conduct that the United States of America (the "Government") has alleged does not amount to a crime. Although Boender has raised a pure issue of law that is amenable to resolution at the motion to dismiss phase, the Court agrees with the Government's contention that a prosecution may proceed on the Government's proffered theory. With respect to Count 9, Boender argues that the charge cannot be proved without calling his former attorney as a witness and violating his constitutional rights and testimonial privileges. The Court concludes that Boender's argument is not properly amenable to resolution at the motion to dismiss phase because it requires the Court to look behind the indictment. Further, Boender has not presented the Court with sufficient evidence to entitle him to an evidentiary hearing on his prosecutorial misconduct argument; at the motion to dismiss phase, a defendant bears a heavy burden of showing that an evidentiary hearing is appropriate, and Boender has not satisfied that burden. The motion to dismiss therefore is denied as to Count 9 as well, and the evidentiary issues raised by Boender pertaining to that Count will be addressed separately in the context of the Court's rulings on the parties' motions in limine.

II. Legal Standard

Federal Rule of Criminal Procedure 12(b)(3)(B) permits a party to make a pretrial motion that challenges the sufficiency of an indictment or information. The contents of an indictment or information, in turn, are spelled out in Federal Rule of Civil Procedure 7(c)(1). The Seventh Circuit teaches that an indictment is constitutionally adequate and complies with Rule 7(c)(1) where it (i) states the elements of the offense charged, (ii) fairly informs the defendant of the nature of the charge so that he or she may prepare a defense, and (iii) enables the defendant to plead an acquittal or conviction as a bar against future prosecutions for the same offense. United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir. 1997); see also Hamling v. United States, 418 U.S. 87, 118 (1974) (discussing precedent and describing when the language of the indictment will be deemed sufficient); Russell v. United States, 369 U.S. 749, 763 (1962) (among the criteria for gauging sufficiency of an indictment are whether it includes "the elements of the offense intended to be charged" and whether is "sufficiently apprises the defendant of what he must be prepared to meet").

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). Indictments are to be reviewed "on a practical basis and in their entirety, rather than in a hypertechnical manner." United States v. Cox, 536 F.3d 723. A motion to dismiss an indictment is not "a means of testing the strength or weakness of the government's case.'" United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009). Thus, while an indictment may be dismissed if subject to a defense that raises a purely legal question (United States v. Labs of Virginia, Inc., 272 F. Supp. 2d 764, 768 (N.D. Ill. 2003)), a defense that relates to the strength of the Government's evidence ordinarily must wait for the trial. Moore, 563 F.3d at 586 (inquiry at the motion to dismiss phase is to determine "if it's possible to view the conduct alleged" as constituting the crime alleged); United States v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988) (noting the ordinary rule while affirming a district court that dismissed an indictment as to which, under the undisputed facts, "there was no case to prove").

III. Analysis

A. Counts 1 through 4: Mail and Wire Fraud

Boender's motion to dismiss Counts 1 through 4 targets charges of mail fraud and wire fraud. At the Court's January 29, 2010, status hearing, the Government indicated that it did not intend to pursue these counts and that it would notify Boender if it decided to deviate from that course. The Government subsequently has confirmed that if the case proceeds to trial on March 8, it will not pursue Counts 1 through 4 and has tendered a draft superseding indictment that omits those Counts. For these reasons, Boender's motion is denied as moot as to Counts 1 through 4, with the caveat that the Court will re-open the matter if trial does not proceed on March 8 and the Government later chooses to pursue these Counts.

B. Count 6: Campaign Finance Fraud

According to Boender, Count 6 must be dismissed because the plain language of the provision under which he was charged, 2 U.S.C. § 441f, "does not prohibit reimbursement of a campaign contributions." Def. Mem. at 7. Boender attempts to bolster his plain language argument with a structural argument: because another provision, 2 U.S.C. § 441a uses the words "indirectly," "conduit," and "intermediary," Congress would have used similar language in § 441f had it wished to criminalize so-called conduit contributions. Def. Mem. at 6-7. If nothing else, Boender contends that the rule of lenity should apply and, therefore, that the statute should be construed in his favor, particularly given the First Amendment issues at stake. Id. at 7. The Court respectfully disagrees with Boender's contentions.

The provision under which Boender is charged in Count 6 provides: "No person shall make a contribution in the name of another person or knowingly permit his name to be used to effect such a contribution * * *." 2 U.S.C. ยง 441f (emphasis added). According to Count 6 of the Indictment, "On or about March 2, 2004, in the Northern District of Illinois and elsewhere, Calvin Boender * * * knowingly and willfully violated the Federal Election Campaign Act, which violation involved making contributions [as the term is defined in Title 2] to a federal candidate, in the names of others, and which violation aggregated $2,000 or more during a calendar year, by causing other persons to contribute to Candidate A, a candidate for the Office of the Member of ...

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