United States v. Michael Busch
20-4065
| 6th Cir. | Nov 4, 2021Background
- Busch’s Country Corner (BCC), owned by Michael and Amanda Busch and operated day-to-day by Randall Busch, was a SNAP-authorized retailer that processed ~195,113 EBT transactions from 2010–2018.
- A USDA/Secret Service/local taskforce conducted an undercover investigation (May 2017–Apr 2018) involving an informant who made eleven controlled buys at BCC in which EBT cards were charged and cash paid back to the informant; video and witness testimony showed Randall conducting trades and Michael participating on occasions.
- Investigators used USDA ALERT and Ohio Conduent transaction databases to produce summary statistics; the prosecutor initially estimated $3.45 million loss by comparing BCC monthly EBT averages to six comparator stores.
- Grand jury indicted Michael, Amanda, Randall, and BCC for conspiracy, SNAP fraud, and wire fraud; Randall pled guilty and testified for the government; Michael, Amanda, and BCC were convicted after a jury trial relying largely on the undercover videos and witnesses.
- After trial the defense retained an expert who obtained raw ALERT transaction data and produced statistical analyses concluding negligible loss; defense argued the prosecution’s prior failure to produce raw ALERT data before trial violated Brady.
- The district court denied the Brady claim, rejected both parties’ loss-estimation approaches, estimated loss at $87,192 for sentencing, and the Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Brady failure to disclose raw ALERT transaction data | Busches: undisclosed raw ALERT data was exculpatory/impeaching; statistical analysis would show widescale fraud did not occur and could impeach government witnesses, so material to guilt/punishment | Gov: defense received monthly summaries and Conduent raw BCC data pretrial; ALERT raw data was not used by investigators or material to the eleven charged transactions | No Brady violation — data was neither clearly exculpatory nor material; no reasonable probability of different outcome |
| Jury instruction on SNAP fraud/regulatory violations | Busches: instruction conflated civil/regulatory violations with criminal liability and risked removing specific-intent requirement | Gov: statute (7 U.S.C. §2024(b)(1)) criminalizes knowing violations of regulations; jury was instructed that knowledge and intent were required | Instruction correct — required knowing unlawful conduct and intent; no legal error |
| Prosecutorial misconduct (evidence elicitation & closing) | Busches: prosecutor improperly elicited prejudicial cash-management evidence, vouched for Randall, mischaracterized facts, and misstated law undermining fair trial | Gov: evidence was admitted by the court as probative; many objections not raised at trial; statements were within advocacy or cured by instructions; not flagrant or outcome-determinative | No reversible misconduct or plain error — remarks/evidence not sufficiently prejudicial or flagrant to deny due process |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (suppression of exculpatory/impeaching evidence violates due process)
- United States v. Bagley, 473 U.S. 667 (1985) (Brady materiality standard: reasonable probability of different result)
- Strickler v. Greene, 527 U.S. 263 (1999) (Brady materiality and prejudice analysis)
- Kyles v. Whitley, 514 U.S. 419 (1995) (cumulative materiality of undisclosed evidence)
- Darden v. Wainwright, 477 U.S. 168 (1986) (standard for prosecutorial misconduct affecting due process)
- Richardson v. Marsh, 481 U.S. 200 (1987) (presumption that jurors follow curative instructions)
- Bruton v. United States, 391 U.S. 123 (1968) (prejudice from certain co-defendant statements)
- United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) (two-step prosecutorial-misconduct review and flagrancy factors)
- United States v. Henry, 545 F.3d 367 (6th Cir. 2008) (improper vouching doctrine)
- United States v. Reid, 625 F.3d 977 (6th Cir. 2010) (permissibility of referencing plea agreements for credibility)
- United States v. Hall, 979 F.3d 1107 (6th Cir. 2020) (plain-error standard on preserved objections)
- United States v. Sills, 662 F.3d 415 (6th Cir. 2011) (narrow circumstances for reversal under plain-error doctrine)
- United States v. Francis, 170 F.3d 546 (6th Cir. 1999) (considering prosecutorial remarks in context)
- United States v. Carson, 560 F.3d 566 (6th Cir. 2009) (review standard for prosecutorial misconduct)