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United States v. Doty

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

July 13, 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 the defendant's motions to dismiss Counts Three, Four, and Five of the Indictment and motion to strike surplusage from the Indictment. ECF Nos. 30-33. For the reasons that follow, the court GRANTED defendant's motions to dismiss Counts Three and Four[1] and DENIES defendant's motion to dismiss Count Five and motion to strike surplusage.

         I. BACKGROUND

         Phyllis Doty, a prior employee of the Logan County Board of Education (“LCBOE”), was indicted for embezzling items from and improperly using funds of the LCBOE. ECF No. 1. The Indictment[2]charges Doty with fraudulently purchasing Apple products (iPods and iPads) to sell and give as gifts to family members and obtaining wedding supplies for her son's wedding. Id. The Indictment charges Doty in a total of five (5) counts, including wire fraud (Counts 1 and 2), theft concerning programs receiving federal funds (Counts 3 and 4), and mail fraud (Count 5).

         II. MOTIONS TO DISMISS

         A. Applicable Law

         Rule 12 of the Federal Rules of Criminal Procedure permits a defendant to file a pretrial motion alleging a defect in the charging document. Fed. R. Crim. P. 12(b)(3)(B). Therefore, while the court presumes the facts as alleged by the government are true, United States v. Treacy, 677 Fed.Appx. 869, 873 (4th Cir. 2017), if the indictment fails to state conduct which would result in a crime, then the court may dismiss the indictment as defective. United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012) (“A district court may dismiss an indictment under Rule 12 ‘where there is an infirmity of law in the prosecution.'”) (quoting United States v. Snipes, 611 F.3d 855, 866 (11th Cir. 2010)). Therefore, to warrant dismissal the defendant must “demonstrate that the allegations therein, even if true, would not state an offense.” United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004) (citing United States v. Hooker, 841 F.2d 1225, 1227-28 (4th Cir. 1988) (en banc)).

         B. Counts Three and Four Fail to Charge Doty with Violations of 18 U.S.C.§ 666(a)(1)(A)

         Count Three and Four charge Doty with violations of 18 U.S.C. § 666(a)(1)(A), which prohibits the embezzlement[3] of more than $5, 000 from organizations receiving federal funds more than $10, 000. 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, ...

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