Opinion
2:21-cr-00053-GMN-VCF
03-31-2022
UNITED STATES OF AMERICA, Plaintiff, v. DOUGLAS LEE THAYER, Defendant.
CHRISTOPHER CHIOU Acting United States Attorney Nevada Bar Number 14853 SIMON F. KUNG JESSICA OLIVA Assistant United States Attorneys Attorneys for the United States of America
CHRISTOPHER CHIOU Acting United States Attorney Nevada Bar Number 14853 SIMON F. KUNG JESSICA OLIVA Assistant United States Attorneys Attorneys for the United States of America
GOVERNMENT'S UNOPPOSED MOTION TO CORRECT COUNT 1 OF THE INDICTMENT
(EXPEDITED TREATMENT REQUESTED)
GLORIA M. NAVARRO, UNITED STATES DISTRICT COURT JUDGE
The parties met and conferred on March 31, 2022 and the defense does not oppose this motion. I. Factual Background
On February 10, 2021, a Federal Grand Jury returned an Indictment charging Defendant Douglas Lee Thayer with fraud related to his company United States Adult Adoption Services. Count 1 of that Indictment charges the Defendant with Wire Fraud, in violation of 18 U.S.C. § 1343. More specifically, Count 1 alleges that the Defendant engaged in the following transaction:
6. On or about February 10, 2016, within the State and Federal District of Nevada and elsewhere,
DOUGLAS LEE THAYER, defendant herein, and others known and unknown to the grand jury, aiding and abetting one another, for the purpose of executing the above scheme, and attempting to do so, caused to be transmitted by means of wire communication in interstate commerce the signals and sounds described as a wire transfer of $13,000 from a Bank of America account in California to a Wells Fargo account in Nevada, associated with the deposit of a check from victim B.S., all in violation of Title 18, United States Code, Section 1343.
However, the Government recently discovered that Count 1 mistakenly identifies the relevant financial transaction as being between Bank of America and Wells Fargo, instead of between Bank of America and U.S. Bank. That is, the indictment should read, “. . . a wire transfer of $13,000 from a Bank of America account in California to a Wells Fargo US Bank account in Nevada . . . .” For the reasons below, the Government now asks the Court to correct this error in the Indictment.
II. Argument
“The essential purpose of an indictment is to give the defendant ‘notice of the charge so that he can defend or plead his case adequately.'” United States v. Neill, 166 F.3d 943, 947 (9th Cir. 1999) (quoting United States v. James, 980 F.2d 1314, 1316 (9th Cir. 1992)). “Generally, failure of an indictment to detail each element of the charged offense constitutes a fatal defect.” James, 980 F.2d at 1316. “However, a minor or technical deficiency in the indictment will not cause reversal of a conviction absent prejudice to the defendant.” Neill, 166 F.3d at 947. “[C]ourts generally have not applied the strict language in Bain [that any amendment of an indictment must be resubmitted to the grand jury] to cases involving only minor clerical errors or misnomers, where the substance of the charge is left totally unaffected and the prerogative of the grand jury is not usurped.” United States v. Kegler, 724 F.2d 190, 193-94 (D.C. Cir. 1983) (emphasis added); see also Neill, 166 F.3d at 947 (“Amendment of the indictment to fix typographical errors is appropriate as long as the error did not mislead the defendant.”).
In Neill, for example, the indictment charged the defendant with two counts of bank robbery: one robbery at a Wells Fargo Bank and a second robbery at the Bank of Salem. 166 F.3d at 947-48. Count two, which covered the Bank of Salem robbery allegations, mistakenly alleged that the money was in the “care, custody, control and management of Wells Fargo Bank” instead of the Bank of Salem. Id. at 948. The error went unrecognized by the Government, the defendant, and the district court until after the case was submitted to the jury. Id. After the jury inquired whether Wells Fargo Bank owned the Bank of Salem, the Government moved to amend the indictment, and the district court granted that motion over the defendant's objection. Id. at 947-48. The defendant appealed, but the Ninth Circuit concluded that “[a]mending the indictment was not error in this case” “because [the defendant] was clearly not prejudiced by the” mistake in the indictment. Id. at 948; see also United States v. Burnett, 582 F.2d 436, 438 (8th Cir. 1976) (“[A] finding of prejudice to the defendant must be present before an amendment [of an indictment] will be held impermissible.”); United States v. Gardley, No. 2:10-cr-00236-GMN-PAL, 2012 WL 5451021 (D. Nev. Sept. 14, 2012) (Leen, J.) (relying on Neill to amend indictment to correct errors in the purchase price for property transactions, the identity of a purchaser, and dates of bank fraud scheme).
Count 1 of the Indictment in this case presents virtually the same mistake as count two in Neill: both misidentify the name of the relevant bank. Like the defendant in Neill, the Defendant here cannot claim any prejudice from the mistake. The rest of Count 1 is sufficiently detailed to put the Defendant on notice of the specific transaction he is charged with making: the date of the check, the amount of the payment, the type of check and the originating bank (i.e. a cashier's check issued by the Bank of America) are all correct. See United States v. Williams, 2012 WL 5881845, at *2 (E.D. Pa. Nov. 21, 2012) (“The focal points of the Counts were ‘sufficiently clear to enable [the defendant] to prepare [his] defense.'” (citing United States v. Coleman, 656 F.2d 509 (9th Cir. 1981))).
Williams is particularly instructive given the Indictment's numerous correct details identifying the charged transaction. There, two weeks before trial, the Government moved to correct five mistakes in the indictment, including
(1) changing the victim's initials in one count from R.K. to P.M. while keeping the transaction dates, credit card issuer, and account number unchanged;
(2) changing the name of the credit card issuer in another count from Citibank to Discover while keeping the transaction date, account number, and the initials of the victimized accountholder unchanged; and
(3) correcting one digit in the account number in a third count while keeping the transaction date, credit card issuer, and the initials of the victimized accountholder the same.2012 WL 5881845, at *1. Over the defendant's objection, the district court permitted the amendments because “the corrections cannot be characterized as creating a prejudice against [the defendant].” Id. (“[N]owhere does [the defendant] suggest how he has been hoodwinked or misled in the preparation of his defense by the original text of the indictment as compared to the proposal or how he conceivably could be without double jeopardy protection in this circumstance.”).
Furthermore, the discovery provided to the Defendant in this case identifies the correct bank at which the Defendant deposited the cashier's check (U.S. Bank) and includes, an image of the actual deposited check that identifies the receiving bank as U.S. Bank (Exhibit 1 (annotation added)), along with a Bank Signature Card for the associated U.S. Bank account at issue identifying Douglas Thayer as the account holder for the account in the name of “US Adult Adoption Services” (Exhibit 2).
Produced at Bates number USA06913.
Produced at Bates number USA06825.
Count 1 correctly charges the Defendant with causing a wire transfer of $13,000 associated with the deposit of a cashier's check by victim B.S., which originated from Bank of America. Correcting that Count to reflect that the check was deposited at U.S. Bank, not Wells Fargo, is a minor, technical correction that causes the Defendant no prejudice. III. Conclusion
Because the rest of Count 1 and the discovery put the Defendant on sufficient notice of the charge against him, the Court should correct Count 1 of the Indictment as follows: “. . . a wire transfer of $13,000 from a Bank of America account in California to a Wells Fargo US Bank account in Nevada
For good cause appearing, the Court GRANTS the Government's Unopposed Motion to Correct Count 1 of the Indictment.
Exhibit 1
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Exhibit 2
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