Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA, v. Criminal No. TDC-18-0012 MARK T. LAMBERT, Defendant. DEFENDANT MARK LAMBERT S MOTION FOR BILL OF PARTICULARS Defendant Mark Lambert, by and through undersigned counsel, respectfully moves this Court, pursuant to Federal Rule of Criminal Procedure 7(f, for entry of an Order directing the Government to file a bill of particulars. In support thereof, Mr. Lambert submits the accompanying Memorandum of Law. WHEREFORE, Mr. Lambert respectfully requests that the Court direct the Government to file a bill of particulars. Respectfully submitted, Dated: October 23, 2018 /s/ William M. Sullivan, Jr. William M. Sullivan, Jr., Esq. (No. 17082 Thomas C. Hill, Esq. (No. 05703 Fabio Leonardi, Esq. (No. 07206 Pillsbury Winthrop Shaw Pittman LLP 1200 17th Street NW Washington, DC 20036 Telephone: 202-663-8027 Fax: 202-663-8007 wsullivan@pillsburylaw.com thomas.hill@pillsburylaw.com fabio.leonardi@pillsburylaw.com Counsel for Defendant Mark Lambert
Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 2 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA, v. Criminal No. TDC-18-0012 MARK T. LAMBERT, Defendant. DEFENDANT MARK LAMBERT S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR BILL OF PARTICULARS Pursuant to Federal Rule of Criminal Procedure ( Fed. R. Crim. P. 7(f, Defendant Mark Lambert respectfully moves this Court for an Order directing the Government to file a bill of particulars. Mr. Lambert was indicted in this case on January 10, 2018, in an eleven-count Indictment charging Mr. Lambert under 18 U.S.C. 371 with Conspiracy to Violate the Foreign Corrupt Practices Act (the FCPA and to Commit Wire Fraud (Count One, under 15 U.S.C. 78dd-2 with Violation of the FCPA (Counts Two through Eight, under 18 U.S.C. 1343 with Wire Fraud (Counts Nine and Ten, and under 18 U.S.C. 1956(a(2(A, with Money Laundering (Count Eleven. See ECF No. 1 (the Indictment. With respect to Counts One, Nine and Ten, however, the Indictment fails to detail the alleged scheme with sufficient particularity to allow Mr. Lambert to adequately prepare his defense. The requested particulars are necessary to inform Mr. Lambert of the specific charges pending against him, and to reduce the possibility of unfair surprise at trial. I. Indictment The Indictment (returned at least nine years after the beginning of the Government s investigation in this matter, approximately four years after a Magistrate Judge refused to grant 2
Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 3 of 14 the Government s request for an arrest warrant against Mr. Lambert, and about two years after Mr. Lambert s defense counsel made a comprehensive declination presentation to the Government alleges, inter alia, a conspiracy to commit wire fraud lasting from an unidentified date in 2004 through October 2014. See Indictment 17-26. Additionally, among other things, the Indictment alleges that Mr. Lambert committed wire fraud between an unidentified date in 2011 and an unidentified date in 2014. The indictment fails to explain, among other things: how the conspiracy, in particular as it relates to Mr. Lambert, allegedly began in 2009; which conspirators, other than Mr. Mikerin and Mr. Condrey, were allegedly involved in the conspiracy to commit wire fraud; how Mr. Lambert allegedly conspired to, and did, defraud TENEX; and what Mr. Lambert allegedly conspired to, and did, deprive TENEX of. While the Indictment includes numerous factual allegations of payments to Mr. Mikerin as part of a bribery scheme in furtherance of an alleged conspiracy to violate, as well as allegedly in violation of the FCPA, the Indictment, as it relates to Mr. Lambert s charges of wire fraud and related conspiracy to commit wire fraud, is effectively a bare-bones document tracking the relevant wire fraud statute, merely incorporating the Indictment s FCPA-related allegations, and with minimal detail from which to derive information in order to prepare a defense against the Government s allegations that Mr. Lambert conspired to commit, and did commit, wire fraud. These shortcomings undermine Mr. Lambert s ability to understand the charges against him and prejudice his ability to prepare a defense. Thus, in order to prevent unfair surprise at trial, Mr. Lambert hereby seeks the following particulars to address the issues highlighted above: Paragraph Particulars Requested 17 Identify Co-Conspirator One and others with whom Mr. Lambert allegedly conspired to commit wire fraud against TENEX. 3
Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 4 of 14 17.b Identify the materially false and fraudulent pretenses, representations, and promises that Mr. Lambert and any coconspirators allegedly conspired to make. Identify the recipients of any materially false and fraudulent pretenses, representations, and promises that Mr. Lambert and any co-conspirators allegedly conspired to make. Identify the money and property that Mr. Lambert and any co-conspirators allegedly conspired to obtain by means of the alleged wire fraud. 22 Identify other TENEX officials and others who were not benefitting from the scheme that Mr. Lambert allegedly was a co-conspirator to. 23 Identify certain TENEX officials with whom Mr. Lambert and any co-conspirators allegedly conspired to conceal the alleged scheme from. Identify how TENEX allegedly overpaid for Transportation Corporation A s services. 2 and 3 1 Identify the materially false and fraudulent pretenses, representations, and promises allegedly made by Mr. Lambert and any co-conspirators. Identify the recipients of any materially false and fraudulent pretenses, representations, and promises allegedly made by Mr. Lambert and any co-conspirators. Identify the money and property that Mr. Lambert and any co-conspirators obtained by means of the alleged wire fraud. As set forth below, Mr. Lambert is entitled to each of these particulars in order to apprise him of the fundamental aspects of the Government s case against him. The failure to order these 1 Indictment at 20. 4
Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 5 of 14 particulars would preclude Mr. Lambert from adequately preparing a defense and would invite unfair prejudicial surprise at the upcoming trial. 2 II. Argument Fed. R. Crim. P. 7(f provides that the Court may direct the filing of a bill of particulars upon the motion of a defendant. The function of a bill of particulars is to provide a defendant with sufficient information about the details of the charges against him to prepare his defense, avoid prejudicial surprise at trial, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense. United States v. Brandon, 298 F.3d 307, 309 (4th Cir. 2002. Indeed, [i]t is not sufficient that the Indictment shall charge the offense in the same generic terms as in the definition [of the crime]; but it must state the specifics it must descend to the particular. Russell v. United States, 369 U.S. 749, 765 (1962. See also United States v. Jay, 887 F.2d 1081 (4th Cir. 1989 (holding that a bill of particulars may serve to provide the evidentiary details. Here, the Court should order the Government to provide a bill of particulars because the current Indictment is woefully inadequate with respect to the specific facts and circumstances of Mr. Lambert s alleged wire fraud and conspiracy to commit wire fraud, in particular with respect to the key details of how the fraud is alleged to have occurred, to whom allegedly fraudulent statements or promises Mr. Lambert conspired to, and did, make, and what Mr. Lambert allegedly conspired to, and supposedly did, obtain from TENEX, the victim of the alleged fraud. See United States v. Elbaz, No. CR TDC-18-00157, 2018 WL 4308560, at *1, 15 (D. Md. Sept. 10, 2018 (requiring a bill of particulars listing the allegedly false statements made directly by 2 For purposes of this motion, Mr. Lambert assumes, arguendo, that the Indictment complies with Fed. R. Crim. P. 7(c(1. Accordingly, while this motion does not raise the sufficiency of the Indictment itself, Mr. Lambert specifically retains his right to challenge the validity of the Indictment. 5
Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 6 of 14 [Defendant], if any, that it intends to introduce at trial, including the date of the statement and the person to whom it was made. ; United States v. Jackson, No. 3:16-CR-31, 2016 WL 6495589, at *1, 7 (N.D. W.Va. Nov. 2, 2016 (holding that [i]n the case of a defendant who is charged with fraud, it is critical that the government identify in the indictment the dates of the fraudulent conduct, the specific fraudulent documents, and the fraudulent statements within the documents. (quoting United States v. Sampson, 448 F. Supp. 2d 692, 696 (E.D. Va. 2006. Merely referring to a litany of payments allegedly in furtherance of, and in violation of, the FCPA, a different crime, is insufficient to establish facts relating to charges of wire fraud and conspiracy to commit wire fraud. More specifics are needed to adequately prepare a defense against the Government s conclusory and factually unsupported allegations. Thus, this motion seeks to remedy this deficiency by providing Mr. Lambert with sufficient factual detail of how the Government intends to prove at trial that he conspired to commit, and did commit, wire fraud. The decision to grant a bill of particulars rests within the sound discretion of the district court. See United States v. Dulin, 410 F.2d 363, 364 (4th Cir. 1969. Moreover, any doubt concerning whether a bill of particulars should be granted must be resolved in favor of disclosure and the conflicting concerns [of the defense and the prosecutor] must yield to the paramount public interest in affording the accused a reasonable foundation for mounting a defense. United States v. Manetti, 323 F. Supp. 683, 696 (D. Del. 1971. Although the Fourth Circuit has not explicitly adopted a test to determine whether a bill of particulars is warranted, courts have typically considered three factors: (i the complexity of the offenses charged; (ii the clarity of the indictment; and (iii the degree of discovery otherwise available. See, e.g., United States v. Walker, 922 F. Supp. 732, 739 (N.D.N.Y. 1996; United 6
Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 7 of 14 States v. Diaz, 675 F. Supp. 1382, 1390 (E.D.N.Y. 1987. As detailed below, each of these factors weighs strongly in favor of ordering the Government to file a bill of particulars detailing the specific facts and circumstances of the alleged wire fraud and conspiracy to commit wire fraud charges in order to allow Mr. Lambert to prepare an adequate defense. A. A Bill of Particulars is Required Because of the Complexity of the Government s Allegations of Wire Fraud and Conspiracy to Commit Wire Fraud The complexity of the Indictment as well as the wire fraud and conspiracy to defraud charges are such that Mr. Lambert cannot adequately prepare a defense or avoid prejudicial surprise at trial without particulars regarding the key facts and circumstances underlying the means and implementation of the alleged fraud against TENEX, including any allegations of materially false and fraudulent pretenses, representations and promises that Mr. Lambert and his co-conspirators made to TENEX, as well as how TENEX was actually defrauded, and what money and property Mr. Lambert and his co-conspirators allegedly obtained from TENEX by means of such wire fraud. For instance, the Indictment alleges that Mr. Lambert and other co-conspirators, including Mr. Condrey, Co-Conspirator One and others, over the course of about ten years, conspired to commit wire fraud. See Indictment 17.b. The related transactions alleged in the Indictment involve unidentified fraudulent invoices, unidentified TENEX contract payments and unidentified overpay[ments] for Transportation Corporation A s services. Id. 23-25. The Indictment also involves offshore bank accounts in Cyprus, Latvia and Switzerland associated with unindicted and unidentified co-conspirators. Id. 26. Moreover, the Indictment s allegations refer to and incorporate over eight pages of overt acts, including email 7
Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 8 of 14 correspondence to unidentified TENEX senior official[s], as well as numerous payments to offshore bank accounts and various supposedly fraudulent TENEX invoices. Id. at A-KK. In sum, the complexity of the charges is a significant factor in determining whether to issue a bill of particulars. See, e.g., Walker, 922 F. Supp. at 739; Diaz, 675 F. Supp. at 1390. Accordingly, a bill of particulars is particularly well-served in cases involving complicated or complex allegations. United States v. Horton, 526 F.2d 884, 887 (5th Cir. 1976. Here, the complexity of the allegations a multi-year conspiracy involving three unidentified coconspirators and multiple transactions to unidentified offshore shell corporations warrants the issuance of a bill of particulars. B. A Bill of Particulars is Necessary Because the Indictment Lacks Clarity Regarding the Government s Allegations of Wire Fraud and Conspiracy to Commit Wire Fraud Another challenge that Mr. Lambert faces under the current Indictment is the vagueness, ambiguity, and lack of clarity surrounding the Government s wire fraud and conspiracy to commit wire fraud allegations. Indeed, despite the gravity of the allegations, the Indictment fails to particularize key aspects of these charges. On the face of the Indictment, the content of the false and fraudulent representations or promises that Mr. Lambert and his co-conspirators allegedly made is entirely unclear. Similarly unclear is whom these statements were allegedly made to. Moreover, the Indictment is unclear regarding the nature of the money and property that Mr. Lambert and his co-conspirators allegedly obtained from TENEX. With regard to the Government s conspiracy to commit wire fraud charge, for instance, the Indictment alleges that Mr. Lambert and others allowed [alleged bribe] payments to go undetected by certain TENEX officials and caused TENEX to overpay for Transportation Corporation A s services. Indictment 25. The Government does not allege any further details 8
Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 9 of 14 about whom Mr. Lambert and his co-conspirators allegedly made any false statements to, how Mr. Lambert and his co-conspirators allegedly made any such false statements, or what the factual basis is to allege that TENEX allegedly overpaid for services. Additionally, in connection with the Government s wire fraud charge, the Indictment alleges that [a]n email was sent from the Russian Federation to Condrey in Maryland, attaching a document purporting to be TENEX Invoice No. 35686 and that TENEX wire transferred payment of $192,737.50 from the Russian Federation to a Transportation Corporation A bank account in Maryland in satisfaction of Invoice No. 13-304. Indictment at 20. Yet the Indictment does not explain what the TENEX invoice and the payment represent for purposes of the wire fraud charge, how they are relevant in this context, what role they play in the Government s wire fraud allegation, or what the connection, if any, exists between them. These details are critical to Mr. Lambert in assessing the strength of the Government s case and formulating a defense. This is precisely the type of situation where the defendant requires limited particulars in order to engage in meaningful trial preparation. C. The Government s Flawed Electronic Discovery Has Not Cured the Deficiencies in the Indictment As the Court knows well from the May 30 and September 4, 2018 status conferences, although the Government has produced approximately 2.7 million pages of discovery, about 1.8 million records (the so-called DOE production are replete with technical issues. See ECF Nos. 27, 32. While Mr. Lambert and the Government have recently made substantial progress toward resolving technical deficiencies within the Government s DOE production, over the past several months, Mr. Lambert has engaged in significant time-consuming efforts to review the production for the purpose of learning about the case, as well as information that could shed light on the Government s wire fraud and conspiracy to commit wire fraud charges. Unfortunately, 9
Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 10 of 14 the portion of discovery that the Government has produced, and which is actually fully searchable and reviewable, does nothing to address the deficiencies in the Indictment identified herein. Indeed, the searchable discovery produced to date is completely silent with regard to the facts and circumstances surrounding the alleged wire fraud and conspiracy to commit wire fraud charges. The Government has produced no documents evidencing, or even referencing, any alleged false statements made by Mr. Lambert, to whom any such statements were allegedly made, how Mr. Lambert allegedly conspired to, and did, defraud TENEX, and what property, if any, Mr. Lambert allegedly conspired to, and did, obtain from TENEX. Nor does the discovery explain the relationship, if any, between the TENEX invoice and payment referenced to in the Indictment to substantiate the Government s wire fraud charges. Without these particulars, Mr. Lambert is left to grapple with vague assertions that do not even specify what false statements, let alone to whom, the Government s wire fraud and conspiracy to commit wire fraud charges are based upon. To the extent that the information is, somehow, discernable in the discovery materials, finding the proverbial needle in the haystack remains an impossible task without an effective bill of particulars to guide the review, especially when the vast majority of the Government s discovery is not searchable and saddled by numerous technical issues. Accordingly, the discovery provided to date only heightens Mr. Lambert s need for a bill of particulars. Although some courts have found that extensive discovery may obviate the need for a bill of particulars, the small portion of searchable discovery provided in this case clearly fails to provide the particulars left out of the Indictment. The Government knows or should know the particulars requested herein and will suffer no prejudice by providing the information to Mr. Lambert. Failing to disclose this information through a bill of particulars invites unfair surprise to Mr. Lambert at trial. 10
Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 11 of 14 WHEREFORE, Mr. Lambert respectfully requests that the Court direct the Government to file a bill of particulars. Respectfully submitted, Dated: October 23, 2018 /s/ William M. Sullivan, Jr. William M. Sullivan, Jr., Esq. (No. 17082 Thomas C. Hill, Esq. (No. 05703 Fabio Leonardi, Esq. (No. 07206 Pillsbury Winthrop Shaw Pittman LLP 1200 17th Street NW Washington, DC 20036 Telephone: 202-663-8027 Fax: 202-663-8007 wsullivan@pillsburylaw.com thomas.hill@pillsburylaw.com fabio.leonardi@pillsburylaw.com Counsel for Defendant Mark Lambert 11
Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 12 of 14 CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of October 2018, I caused the foregoing Motion for Bill of Particulars and Memorandum of Law to be filed electronically using the Court s CM/ECF system, which automatically sent a notice of electronic filing to all counsel of record. Respectfully submitted, Dated: October 23, 2018 /s/ Fabio Leonardi Fabio Leonardi, Esq. (No. 07206 Pillsbury Winthrop Shaw Pittman LLP 1200 17th Street NW Washington, DC 20036 Telephone: 202-663-8713 Fax: 202-663-8007 fabio.leonardi@pillsburylaw.com 12
Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 13 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA, v. Criminal No. TDC-18-0012 MARK T. LAMBERT, Defendant. [PROPOSED] ORDER Upon consideration of Defendant Mark Lambert s Motion for Bill of Particulars, it is hereby, ORDERED, that the Motion is GRANTED; and it is hereby, FURTHER ORDERED, that the Government shall file a bill of particulars within five (5 days of the date of this Order, which shall identify the following particulars: Paragraph 3 Particulars 17 Identify Co-Conspirator One and others with whom Mr. Lambert allegedly conspired to commit wire fraud against TENEX. 17.b Identify the materially false and fraudulent pretenses, representations, and promises that Mr. Lambert and any coconspirators allegedly conspired to make. Identify the recipients of any materially false and fraudulent pretenses, representations, and promises that Mr. Lambert and any co-conspirators allegedly conspired to make. Identify the money and property that Mr. Lambert and any co-conspirators allegedly conspired to obtain by means of the alleged wire fraud. 22 Identify other TENEX officials and others who were not 3 All references are to paragraphs in the Indictment. 13
Case 8:18-cr-00012-TDC Document 35 Filed 10/23/18 Page 14 of 14 benefitting from the scheme that Mr. Lambert allegedly was a co-conspirator to. 23 Identify certain TENEX officials with whom Mr. Lambert and any co-conspirators allegedly conspired to conceal the alleged scheme from. Identify how TENEX allegedly overpaid for Transportation Corporation A s services. 2 and 3 4 Identify the materially false and fraudulent pretenses, representations, and promises allegedly made by Mr. Lambert and any co-conspirators. Identify the recipients of any materially false and fraudulent pretenses, representations, and promises allegedly made by Mr. Lambert and any co-conspirators. Identify the money and property that Mr. Lambert and any co-conspirators obtained by means of the alleged wire fraud. IT IS SO ORDERED. DATE THEODORE D. CHUANG United States District Judge 4 Indictment at 20. 14