United States v. Johnson

262 F.R.D. 410, 2009 U.S. Dist. LEXIS 97755, 2009 WL 3377924
CourtDistrict Court, D. Delaware
DecidedOctober 19, 2009
DocketCrim. Action No. 08-146-1-2-JJF
StatusPublished
Cited by1 cases

This text of 262 F.R.D. 410 (United States v. Johnson) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Johnson, 262 F.R.D. 410, 2009 U.S. Dist. LEXIS 97755, 2009 WL 3377924 (D. Del. 2009).

Opinion

MEMORANDUM OPINION

FARNAN, District Judge.

Presently before the Court are the following Motions brought by the Government: Motion In Limine To Permit The Introduction Of Defendants’ Income Tax Records (D.I. 135); and Motion In Limine To Permit The Introduction Of Evidence Relating To SEC Civil Lawsuit (D.I. 137). Also pending before the Court is Defendants’ Motion To Reconsider Motion to Strike Surplusage From Indictment. (D.I. 138,143.)

For the reasons discussed, the Government’s Motion In Limine To Permit The Introduction Of Defendants’ Income Tax Records will be granted, and the Government’s Motion In Limine To Permit The Introduction Of Evidence Relating To SEC Civil Lawsuit will be granted in part and denied in part. Specifically, the Motion will be granted to the extent that the Court will permit introduction of evidence pertaining to the Final Judgment of Permanent Injunction entered against MERL Holdings, Inc.com, the Permanent Injunction entered against Ed Johnson, and the Stipulation and Order between the SEC and MERL Holdings, Inc. com Resolving the SEC’s Motion for Contempt. The Motion will be denied to the extent that the Court will not permit the introduction of the Civil Complaint brought by the SEC against Ed Johnson and MERL Holdings, Inc.com, and the Civil Jury Verdict against Ed Johnson. In addition, Defendants’ Motion To Reconsider Motion to Strike Surplusage From Indictment will be denied.

I. Background

On September 11, 2008, a federal grand jury this District returned a fourteen count indictment against Co-Defendants Ed Johnson, and his wife, C. Carol Johnson (collectively, “Defendants”). The Indictment charged that between 2003 and February 2007, Defendants conspired to commit mail and wire fraud, committed multiple counts of mail and wire fraud, and engaged in an illegal monetary transaction. (D.I. 1.)

[413]*413II. Defendants’ Motion To Reconsider Motion to Strike Surplusage From Indictment

A. Parties’ Contentions

By his Motion, Co-Defendant Ed Johnson asks the Court to reconsider its March 4, 2009 Order denying a Motion to Strike Sur-plusage From Indictment. Defendant contends that, at that time, the record was not as complete to allow for a full understanding of the case. (D.I. 138, at 1.) Specifically, Defendant contends that Paragraphs 21 and 32 of the Indictment (D.I. 1) should be stricken as surplusage under Federal Rule of Criminal Procedure 7(d) for being irrelevant and prejudicial. (D.I. 138, at ¶ 3.) Defendant contends Paragraph 2 is immaterial because it is not necessary to prove allegations in Counts 1-14 of the Indictment, and is prejudicial because it will tend to confuse the issues at trial. (Id. at ¶ 4.) Defendant contends Paragraph 3 is irrelevant because it is not alleging wrongful conduct, and is prejudicial because it will open the door to allegedly irrelevant evidence about the civil order. (Id. at ¶ 15.) Co-Defendant G. Carol Johnson also adopts this Motion. (D.I. 143.) She additionally contends that the Government previously argued the language should remain in the Indictment because the jury would not see the Indictment’s allegations, and accordingly, there was no risk of prejudice. (D.I. 144, at 6.) However, she contends that there is now prejudice because the Government seeks to introduce evidence as intrinsic which would prove these allegations. (Id.)

The Government responds that Defendants’ Motion does not meet the legal standard for the granting of motions to reconsider, and repeats the same argument made in the original Motion to Strike. (D.I. 146, at 2.) Further, 'the Government contends that Defendants must show that the Indictment’s contested language is both irrelevant and prejudicial, but have failed to do so because the language is clearly relevant. (Id. at 3.) The Government contends that Paragraph 2 is relevant for several reasons: 1) it relates to Co-Defendant Ed Johnson’s role within HCCC; 2) it helps explain the role both Defendants played regarding HCCC; and 3) it helps to demonstrate the Defendants’ intent to defraud in two different ways. (Id. at 5-6.) The Government contends that Paragraph 3 is relevant because it provides the necessary factual context for charges pertaining to HCCC’s actions concerning a church’s loan, and because it provides evidence of the Defendants’ intent to defraud. (Id. at 7-8.)

B. Legal Standard

The purpose of a motion for reconsideration is to correct manifest errors of law or fact, or to present newly discovered evidence. Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999) (citations omitted). It may not be used “as a means to argue new facts or issues that inexcusably were not presented to the court in the matter previously decided,” or to “allow repetition of arguments already briefed, considered and decided.” Brambles USA, Inc. v. Blocker, 735 F.Supp. 1239, 124-41 (D.Del.1990) (citations omitted). Accordingly, a motion for reconsideration may be granted if the moving party demonstrates at least one of the following: 1) an intervening change in the controlling law; 2) the availability of new evidence that was not available when the court issued its order; or 3) the need to correct a clear error of law or fact, or to prevent manifest injustice. Max’s Seafood Café, 176 F.3d at 677. Reconsideration may be appropriate where “the Court has patent[414]*414ly misunderstood a party, or has made a decision outside the adversarial issues presented to the Court.” Brambles USA, 735 F.Supp. at 1241.

C. Discussion

The Court will deny the Motion to Reconsider. Defendants contend that the Court made a clear error when it denied the original Motion to Strike, and also appear to argue that new evidence exists which was not previously available to the Court. (D.I. 156, at 2.) Defendants’ blanket contention that there is now a more complete record does not necessarily mean that new evidence is available. In fact, Defendants fail to point to any previously unavailable evidence, now in the record, which would influence the Court’s ruling on this Motion. Accordingly, the issue is whether the Court made a clear error in denying Defendants’ original Motion to Strike.

The Court concludes that denial of Defendants’ original Motion to Strike was not in error. Under Federal Rule of Criminal Procedure 7(d), the Court may strike surplusage from an indictment. A motion to strike surplusage should be granted if it contains information that is “both irrelevant (or immaterial) and prejudicial.” U.S. v. Hedgepeth, 434 F.3d 609, 612 (3d Cir.2006). Language in an indictment need not be essential to the charges, but can be generally relevant to the overall scheme charged. U.S. v. Wecker, 620 F.Supp. 1002, 1006 (D.Del.1985). Language in an indictment is more specifically relevant if it shows the purpose behind the alleged scheme. Id.

The contested language of Paragraphs 2 and 3 is relevant.

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Bluebook (online)
262 F.R.D. 410, 2009 U.S. Dist. LEXIS 97755, 2009 WL 3377924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-johnson-ded-2009.