United States v. BURKHART, 1:16-cr-00212

Background

Four defendants (J. Burkhart, D. Benson, S. Ganote, J. Burkhart a/k/a Justin Barnes) indicted in a 32‑count federal indictment alleging health‑care related fraud, anti‑kickback conspiracy, and money‑laundering.
Defendants moved under Fed. R. Crim. P. 12(b)(3)(B) to dismiss Count 3 (wire fraud as to J. Burkhart), Count 13 (conspiracy to violate the Anti‑Kickback Statute as to J. Burkhart, Benson, Ganote), and Counts 14–22 (money laundering as to all four defendants) for lack of specificity.
Count 3 relied on an interstate telephone call between Burkhart and a government cooperating witness (Mazanowski); defendants argued calls induced by cooperators cannot support wire fraud because they are not “in furtherance” of a scheme.
Count 13 charged conspiracy to violate 42 U.S.C. § 1320a‑7b(b)(1)(A) or (B); defendants argued the disjunctive pleading (“or”) failed to provide the required certainty.
Counts 14–22 alleged specific financial transactions (dates, amounts, payor and bank accounts) under 18 U.S.C. § 1956(a)(1)(B)(i); defendants argued the indictment did not specify which statutory definition of “financial transaction” or “financial institution” applied and thus lacked necessary detail.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a wire call with a government cooperator can support a wire fraud count (Count 3)	Government: calls induced by agents can support wire fraud; intent of defendant controls	Defendants: a cooperating witness isn’t a conspirator; statements/calls by cooperators cannot be "in furtherance" of a scheme	Denied — government‑induced or cooperator calls can support wire fraud; indictment tracks statute and gives adequate notice
Whether Count 13’s use of “or” renders the anti‑kickback conspiracy allegation fatally ambiguous	Government: reading the count practically, indictment alleges violations under both prongs and provides detailed supporting paragraphs	Defendants: disjunctive pleading fails to tell which statutory prong is charged, requiring dismissal	Denied — indictment read as whole gives adequate notice of acts and both prongs are pleaded sufficiently
Whether Counts 14–22 fail for not specifying which statutory definition of “financial transaction” or “financial institution” applies	Government: indictment tracks §1956 language and lists date, precise amounts, banks, and account holders; discovery supplements detail	Defendants: multiple statutory definitions create uncertainty about the nature of the alleged transactions and institutions	Denied — counts track statute, provide transaction specifics, and discovery provides needed factual detail
Whether indictment must include all evidentiary proof details	Government: not required to plead every evidentiary detail; must meet minimal constitutional standards	Defendants: demand greater factual specificity to prepare defense and prevent future reprosecution	Denied — indictment meets minimal standards to state elements, give notice, and preserve double jeopardy protections

Key Cases Cited

United States v. Smith, 230 F.3d 300 (7th Cir. 2000) (indictments reviewed practically and in their entirety)
United States v. White, 610 F.3d 956 (7th Cir. 2010) (indictment sufficient if it tracks statute and provides factual particulars for notice)
United States v. Moore, 563 F.3d 583 (7th Cir. 2009) (allegations in indictment accepted as true on face review)
United States v. Hausmann, 345 F.3d 952 (7th Cir. 2003) (indictment need only meet minimal constitutional standards)
United States v. Weimert, 819 F.3d 351 (7th Cir. 2016) (requirement that wire communication be "in furtherance" of scheme discussed)
United States v. Tanner, 628 F.3d 890 (7th Cir. 2010) (discussing cooperator/non‑conspirator status in conspiracy context)
United States v. Villasenor, 664 F.3d 673 (7th Cir. 2011) (statements by cooperating witnesses not treated as conspirator statements for conspiracy liability)
United States v. Keats, 937 F.2d 58 (2d Cir. 1991) (mailings or calls made or induced by government agents can support fraud convictions)
United States v. Anderson, 809 F.2d 1281 (7th Cir. 1987) (government‑initiated mailing can sustain mail fraud conviction)
United States v. Agostino, 132 F.3d 1183 (7th Cir. 1997) (government not required to allege all proof details in indictment)