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United States v. Doty
United States District Court, S.D. West Virginia, Charleston
January 7, 2019
UNITED STATES OF AMERICA
MEMORANDUM OPINION AND ORDER
A. FABER, SENIOR UNITED STATES DISTRICT JUDGE.
the court are a number of pretrial motions all heard at the
third pretrial motions hearing on August 27, 2018.
COURT'S FINDINGS AT SECOND PRETRIAL MOTIONS
reasons placed on the record at the hearing, the court hereby
1) Pursuant to Rule 104 of the Federal Rules of Evidence,
Doty filed a motion requesting the court decide whether she
could offer evidence of the rental value of the items
purchased by the Logan County Board of Education (LCBOE),
purposed for the wedding of Doty's son. See ECF
No. 69. The court determined that the rental value of these
items was not the appropriate monetary measurement. This
valuation sidesteps the allegations of the indictment:
“that [Doty] purchased these items [using LCBOE money],
and she purchased them for her benefit.” ECF No. 83 at
p.3. Therefore, but for Doty's purchases for her
son's wedding, these items would never have been
purchased in the first place, and evidence of the items'
rental value is inappropriate towards determining the value
of the property at issue. Accordingly, Doty's motion was
GRANTED insofar as she requested a decision
from the court.
2) Doty's Motion to Dismiss Counts 1, 2, 3, 6, 7, and 8
on Grounds of Multiplicity was DENIED. ECF
No. 76. While the government charges Doty with multiple
counts arising from the same alleged fraud, each count
requires “an additional fact which the other does
not.” United States v. Blockberger, 284 U.S.
299 (1932); see also United States v. Tartaglione,
228 F.Supp.3d 455, 463 (E.D. Pa. 2017) (indictment charging
Theft from Program Receiving Federal Funds in violation of 18
U.S.C. § 666(a)(1)(A), mail fraud in violation of 18
U.S.C. § 1341, and wire fraud in violation of 18 U.S.C.
§ 1343 passes Blockburger test and was not
multiplicitous); United States v. Williams, 527 F.3d
1235, 1241 (11th Cir. 2008) (“Because §§ 1343
[wire fraud] and 666 [Theft from Program Receiving Federal
Funds] each requires proof of an element not required by the
other, [defendant's] convictions for both crimes satisfy
the Blockburger test); United States v.
Hines, 541 F.3d 833, 837 (8th Cir. 2008) (§ 666
“may be charged in multiple counts so long as the $5,
000 requirement is met in each one-year time period.”).
3) Defendant's Motion to Dismiss Counts 4 and 5 on the
Basis of Duplicity was DENIED. ECF No. 78.
Courts have unanimously agreed § 666(a)(1)(A) allows for
the aggregation of thefts as charged within a single scheme.
See United States v. Webb, 691 F.Supp. 1164, 1168
(N.D. Ill. 1988); United States v. Valentine, 63
F.3d 459, 466 (6th Cir. 1995) (“There is ample support
for allowing the government to aggregate several acts to
establish the $5, 000 threshold required for prosecution
where the multiple conversions are part of a single
scheme.”); e.g. United States v. Sanderson,
966 F.2d 184 (6th Cir. 1992) (concluding that “when one
steals paint and supplies and then orders employees to use
such materials in private contract work, both actions will be
considered components of the larger, single fraudulent act of
theft from the local government”), followed by
United States v. Miller, 200 F.Supp.2d 616, 619 (S.D.
W.Va. 2002) (Haden, J.). Doty also argues that each of her
alleged thefts are not part of a scheme but rather individual
and discrete petit larcenies. However, a determination of
whether Doty's acts constitute a single scheme or
individual acts is a question of fact properly presented to a
jury. See United States v. Kamalu, 298 Fed.Appx.
251, 254 (4th Cir. 2008) (“[T]wo or more acts, each of
which would constitute an offense standing alone and which
therefore could be charged as separate counts of an
indictment, may instead be charged in a single count if those
acts could be characterized as part of a single, continuing
scheme.” (quoting United States v. Shorter,
809 F.2d 54, 56 (D.C. Cir. 1987)).
4) Doty's Motion to Dismiss Counts 3, 4, 7, and 8 and
Forfeiture Claim on Grounds of Prosecutorial Vindictiveness
was DENIED. ECF No. 81. The court granted a
motion to dismiss two counts of the original indictment
alleging violations of 18 U.S.C. 666(a)(1)(A) for failure to
state a claim. See ECF Nos. 38, 45. Thereafter, the
government obtained a Superseding and Second Superseding
Indictment. ECF Nos. 41, 63. These superseding indictments
resurrected the previously dismissed § 666 claims
(Counts Four and Five) and added a wire fraud count (Count
Three), mail fraud count (Count Seven), aggravated identity
theft count (Count Eight), and forfeiture claim. Defense
counsel argues that this “upping the ante”
equates to at least the presumption of vindictiveness. The
court disagrees. The Supreme Court and Fourth Circuit Court
of Appeals have never held the pretrial decisions of the
prosecution may rise to the level of prosecutorial
vindictiveness. United States v. Goodwin, 457 U.S.
368, 368 (1982) (“A prosecutor should remain free
before trial to exercise his discretion to determine the
extent of the societal interest in the prosecution.”);
see also United States v. Wilson, 262 F.3d at 314-15
(4th Cir. 2001). Mindful of the presumption of regularity and
wide latitude offered to the prosecution during the pre-trial
process, the court failed to find even a presumption of
vindictiveness in the actions of the prosecution. See
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)
(“In our system, so long as the prosecutor has probable
cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute,
and what charge to file or bring before a grand jury,
generally rests entirely in his [or her]
5) United States' Motion to Exclude Improper Expert
Testimony was GRANTED in part and
DENIED in part. ECF No. 84. The court
prohibited Greg Harkins from testifying about the rental
value of the wedding decorations, see supra, but
allowed Timothy Ray Pell to testify regarding his expertise
in forensic analysis and digital extraction if he could be
properly qualified to do so.
6) United States' Motion in Limine to Exclude Evidence of
Subsequent Use of Wedding Decorations and Supplies was
DEFERRED at the pretrial motions hearing,
but ultimately DENIED at trial. ECF No. 85.
7) United States' Motion to Exclude Evidence of Affair
was DEFERRED until trial. ECF No. 86.
8) Doty's Motion for Hearing Regarding Grand Jury Matter
was GRANTED to the extent that the court
held a hearing on the matter. ECF No. 87. After inquiring
from the government concerning a statement by a grand juror
when the original indictment was obtained, the court
determined that there did not exist a particularized need
which warranted delving deeper into the veracity of the grand
jury proceedings and upending “our grand jury system
[which] depends upon the secrecy of grand jury
proceedings.” Douglas Oil Co. v. Petrol Stops
Nw., 441 U.S. 211, 218 (1979). This was especially true
because any taint in the original indictment was cured
through obtaining two superseding indictments in this action.
See United States v. Moussaoui, 483 F.3d 220, 235
(4th Cir. 2007) (requiring a showing of particularized need
which necessitates unveiling grand jury materials and also
overwhelming the continued need for secrecy in the grand jury
process). The court also DENIED the parties
motions to seal this issue. See ECF Nos. 86, 87,
9) Doty's Motion for Reconsideration of Doty's Motion
to Strike Surplusage from Indictment was
DENIED. ECF No. 94.
10) Doty's Motion to Exclude Any Evidence that Defendant
Doty Needed Permission to Order Items and Exclude Any
Evidence that “The School Did Not Want or Need These
Items When They Were ...
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