United States v. O'Brien
1:17-cr-00239
N.D. Ill.Nov 9, 2017Background
- Defendants Jessica O’Brien and Maria Bartko indicted for a multi-year scheme to defraud lenders (Counts: mail fraud §1341; bank fraud §1344) related to two Chicago investment properties.
- Indictment alleges four transactions (2004 purchase, 2005 refinances, 2006 commercial line of credit, 2007 straw-buyer sale) forming a single scheme; each count alleges only one execution in 2007 (a mailing and a bank funding).
- O’Brien moved to dismiss Counts I and II as duplicitous, arguing the government lumped multiple separate offenses into single counts to evade the statute of limitations and that this causes prejudice.
- Government contends the four transactions are means/executions of one continuing scheme, and it permissibly alleged only one execution per count occurring within the limitations period.
- Court reviewed whether the alleged acts form a single course of conduct during a discrete time and whether any duplicity prejudice can be cured by jury instructions or other measures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the indictment is duplicitous by joining multiple offenses in a single count | O’Brien: Four transactions are separate offenses; joining them hides time-barred acts and denies notice | Government: Transactions are interrelated means of a single continuing scheme; charging only the 2007 execution per count is permissible | Not duplicitous: court finds the acts fairly alleged as one scheme and Counts allege single executions in 2007 |
| Whether pre-2007 transactions are improperly used to circumvent statute of limitations | O’Brien: Grouping time-barred acts with timely ones improperly circumvents the statute | Government: Pre-limitations acts are relevant to prove the scheme and intent; prosecution may charge a single ongoing scheme | Court: Government’s approach is within its discretion; pre-limit evidence is admissible to show the scheme and intent |
| Whether joinder prejudices defendant’s Sixth Amendment notice and jury unanimity rights | O’Brien: Lumped acts prevent jury from distinguishing offenses; deprives notice and may force inconsistent testimony choices | Government: Indictment specifies the 2007 executions; clear jury instructions and special verdict can ensure unanimity and adequate notice | Court: Potential prejudice can be cured by instructions/special verdict form; indictment provides adequate notice |
| Whether dismissal is proper remedy for any duplicity or whether less drastic measures suffice | O’Brien: Dismiss counts to avoid prejudice and statute issues | Government: If any risk, jury instructions and evidentiary rulings cure prejudice; dismissal disfavored | Court: Denies dismissal; will mitigate with precise jury instructions and verdict form; evidence likely admissible under Rules 404(b)/608(b) if relevant |
Key Cases Cited
- United States v. Moore, 563 F.3d 583 (7th Cir.) (indictment challenge is not a means to test evidentiary strength)
- United States v. Hughes, 310 F.3d 557 (7th Cir.) (duplicity defined as joining multiple offenses in one count)
- United States v. Buchmeier, 255 F.3d 415 (7th Cir.) (duplicitous indictment risks jury inability to render specific findings; unanimity can be cured by instructions)
- United States v. Berardi, 675 F.2d 894 (7th Cir.) (single offense may be charged by alleging multiple means)
- United States v. Davis, 471 F.3d 783 (7th Cir.) (indictment proper if it fairly alleges a continuing course of conduct during a discrete period)
- United States v. Hammen, 977 F.2d 379 (7th Cir.) (government may allege only one execution of an ongoing scheme even if multiple executions occurred)
- United States v. Longfellow, 43 F.3d 318 (7th Cir.) (time-barred executions may be relevant to a continuing scheme charged within limitations)
- United States v. Wellman, 830 F.2d 1453 (7th Cir.) (acts outside limitations may be relevant to prove scheme and in furtherance of timely mailings)