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United States v. Doty

United States District Court, S.D. West Virginia, Charleston

May 10, 2018

UNITED STATES OF AMERICA
v.
PHYLLIS DOTY

          MEMORANDUM OPINION AND ORDER

          David A. Faber Senior United States District Judge.

         Pending before the court are three pretrial motions filed by the defendant. ECF Nos. 15, 16, 17. The court heard argument on each motion at the April 19, 2018 pretrial motions hearing. For the reasons placed on the record, defendant's Motion to Strike Surplusage from Indictment was DENIED, (ECF No. 15), and defendant's Motion under Rule 12(b)(4)(B) iwas DENIED as moot, (ECF No. 16).

         At the hearing, the court took under submission defendant's Motion for Bill of Particulars as to Count Three. ECF No. 17. For the reasons that follow, the court DENIES defendant's motion.

         I. BACKGROUND

         Phyllis Doty, a prior employee of the Logan County Board of Education (“LCBOE”), is charged with embezzling items from and improperly using funds of the LCBOE. ECF No. 1. The Indictment charges her with stealing at least 20 Apple, Inc. products (iPods and iPads) worth more than $12, 000 and ordering more than $6, 800 in wedding supplies with LCBOE money. Id. The Indictment charges Doty with a total of five (5) counts, including wire fraud, theft concerning programs receiving federal funds, and mail fraud.

         Specific to defendant's motion for a bill of particulars, Count Three charges Doty with a violation of 18 U.S.C. 666(a)(1)(A) which prohibits embezzlement[1] from organizations receiving federal funds. ECF No. 1 at p.10. The statute in relevant part provides:

(a) Whoever, if the circumstance described in subsection (b) of this section exists-
(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof-
(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that-
(i) is valued at $5, 000 or more, and
(ii) is owned by, or is under the care, custody, or control of such organization, government, or agency shall be fined under this title, imprisoned not more than 10 years, or both.
(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives in any one year period, benefits in excess in $10, 000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.

18 U.S.C. 666(a)(1)(A).

         The Indictment limits Count Three to Doty's alleged embezzlement of Apple, Inc. products, which, in the aggregate, are valued at more than $5, 000. ECF No. 1 at p.10. The government's 14-page “speaking” Indictment details Doty's conduct: LCBOE ordered at least 350 iPods and iPads from Apple between September 2011 and November 2013. Doty stole at least 20 of these devices. As examples, in August 2011, Doty purchased ten (10) iPods for $2, 990 paid with LCBOE funds. Seven (7) of these iPods were later sold on an eBay account registered to one of Doty's relatives. In July 2013, Doty purchased six (6) iPads for $3, 924 paid with LCBOE funds. Four (4) of these iPads were eventually registered to members of defendant's family. In December 2013, Doty purchased four (4) iPods for $1, 180 using a LCBOE purchasing card. ...


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