United States District Court, E.D. North Carolina, Eastern Division
MALCOLM J. HOWARD, District Judge.
This matter is before the court on the following motions filed by defendant:
(1) Motion for Production of Any Order Extending Grand Jury's Term or, in the alternative, for Dismissal [DE #207];
(2) Motion to Dismiss Counts 1-4 (§ 666 Counts) [DE #210];
(3) Motion to Dismiss Count 9 on Duplicity Grounds [DE #212];
(4) Motion to Dismiss all Counts [DE #213];
(5) Motion for Bill of Particulars on Counts 11 and 12 [DE #214];
(6) Motion to Dismiss Counts 1-4 for Failure to State an Offense [DE #215];
(7) Motion to Dismiss Counts 1-9 and 11-12 on Vagueness Grounds [DE #216]; and
(8) Motion to Produce Unredacted Emails [DE #222].
I. Motion for Production of Any Order Extending Grand Jury's Term or, in the alternative, for Dismissal [DE #207]
Defendant moves the court for production of a copy of any Order extending the term of the grand jury's service in the instant matter beyond 18 months. Defendant details what he contends are irregularities in the timeline of the grand jury, arguing that if the grand jury served longer than the 18 months allowed by Rule 6 of the Federal Rules of Criminal Procedure, defendant is entitled to production of any court order extending the grand jury term, or if none exists, to dismissal of the case.
The government responded, objecting to the request and noting the presumption of regularity afforded to the grand jury. The court, finding some evidence suggesting irregularity, has conducted a limited in camera examination of the jury administrator of the United States District Court for the Eastern District of North Carolina. The court questioned the jury administrator, who was under oath, regarding the time line of any grand juries which handed down indictments in the above-captioned matter. The court is satisfied that there were no irregularities in the timing of the grand juries, inasmuch as there is no evidence that a grand jury served beyond the 18 month term allowed under Rule 6 of the Federal Rules of Criminal Procedure.
Therefore, defendant's motion for production, or alternatively for dismissal, [DE #207], is DENIED.
II. Motion to Dismiss Counts 1-4 § 666 Counts) [DE #210]
Defendant moves to dismiss counts One through Four for failure to allege an essential element of 18 U.S. C.§ 666 - namely, the inapplicability of § 666(c), which states, "This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business." Defendant relies on United States v. Jackson , 926 F.Supp.2d 691, 715 (E.D. N.C. 2013), in which the court found that the inapplicability of an exception to an obstruction of justice statute was an essential element of the crime that the government had to allege in the indictment. In response, the government cites McKelvey v. United States , 260 U.S. 353, 356-57 (1922), for the proposition that an exception to a statute is an affirmative defense that the defendant must prove. It also argues that Jackson was narrowly confined to the particular statute at issue in that case, and should not be extended to the instant matter.
Although the Fourth Circuit Court of Appeals has not addressed the question of whether § 666(c) is an essential element or affirmative defense, it has confronted this distinction in the context of exceptions in other criminal statutes. In United States v. Royal , 731 F.3d 333 (4th Cir. 2013), the defendant was charged with a firearm offense under 18 u.s.c. § 922 (g). He argued that the indictment was defective based on the government's failure to allege the inapplicability of § 921(a) (3), the statute's "antique firearm exception, " which he contended was an essential element of a § 922 offense. Id. at 337-38. The court concluded that the exception was an affirmative defense, and, thus, the burden to raise the exception was on the defendant. Id. at 338. In support of its position, the court cited the Supreme Court for "the longstanding principle that an indictment or other pleading founded on a general provision defining the elements of an offense need ...