United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
In an eight-count Superseding Indictment filed on June 27, 2013 (ECF 19), defendants Joeann and John Wharton are charged with several criminal acts relating to their receipt of various types of Social Security benefits during an extended period. The Whartons were married in 1970, when Ms. Wharton was 16 and Mr. Wharton was 29. The status of their marriage during the relevant time period is contested.
Count One charges conspiracy to defraud the government with respect to Social Security benefits programs, in violation of 18 U.S.C. § 371. In particular, Count One alleges that, since about 1996, the defendants conspired to embezzle, steal, and convert money of the government, whose value exceeded $1, 000, in violation of 18 U.S.C. § 641, and that they conspired to use, without lawful authority, the identification of another, during and in relation to theft of government property, in violation of 18 U.S.C. § 1028A(a)(1), (a)(4), and (a)(5). See ECF 19, ¶ 11.
Count Two charges the submission of a false statement on December 13, 2012, in violation of 42 U.S.C. § 1383a(a)(2). Count Three, lodged against Ms. Wharton only, charges Social Security fraud under 42 U.S.C. § 1383a(a)(3), in connection with Social Security benefits paid to Ms. Wharton from October 1996 until December 2012. Counts Four through Seven charge theft of government funds, in violation of 18 U.S.C. § 641. Count Eight, against Ms. Wharton only, alleges aggravated identity theft under 18 U.S.C. § 1028(A). All of the substantive counts incorporate paragraphs 1 through 10 and 12 through 23 of Count One.
The charges involve several factual groupings. One group concerns Ms. Wharton's disability claim, filed in 1996 in connection with the Social Security benefits program known as Supplemental Security Income for the Aged, Blind, and Disabled, pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 301 et seq. ("SSI Program"). According to the government, Ms. Wharton received SSI Program benefits from 1996 to 2012, based on a diagnosis of "mental retardation" and a corresponding representation of financial need. In particular, the government alleges that, when Ms. Wharton applied for SSI Program disability benefits in October 1996, she did so under false pretenses, in that she falsely represented that she was living separate and apart from her husband when, according to the government, they were living together. See ECF 19, ¶ 12. Had that fact been known, Ms. Wharton would not have qualified for SSI Program benefits. Id. This first group is embodied in Count One (conspiracy), as well as Count Three and Count Four.
Count Three, against Ms. Wharton only, alleges that between October 1996 and December 2012, with "knowledge of the occurrence of any event affecting her initial or continued right to payment of SSI Program benefits, " Ms. Wharton "did conceal and fail to disclose said event with intent to fraudulently secure payment...." Specifically, she "knowingly concealed and failed to disclose that she lived with her husband... for the purpose of causing SSA to continue to pay SSI Program benefits" for which Ms. Wharton was "otherwise ineligible...." See 42 U.S.C. § 1383a(a)(3). Count Four charges both defendants with embezzling, stealing, and converting SSI Program benefits whose value exceeded $1, 000, paid to Ms. Wharton between October 1996 and December 2012. See 18 U.S.C. § 641.
A second group of allegations concerns the alleged misuse of SSI Program disability benefits under Title II of the Social Security Act, paid from 1993 to 2004 to Ms. Wharton as representative payee for the couple's disabled son, L.W. According to the allegations, Ms. Wharton received these benefits during a period when her son did not live with her, and converted the benefits for the use of the defendants. The benefits paid with respect to L.W. are part of the conspiracy count (Count One, ¶¶ 8, 13, 15, 20, 23(a)). However, because of limitations, these allegations are not the subject of a substantive count.
A third group of allegations pertains to the alleged misuse of SSA Title II Program survivor's benefits, paid between 2002 and 2012 to Ms. Wharton in her capacity as representative payee for the Whartons' two granddaughters, E.W. and C.W., whose mother, LaShema (the couple's daughter) was murdered in 2002. This conduct is embodied in Counts One and Five. See 18 U.S.C. § 641. According to the allegations, Ms. Wharton continued to receive and convert to the defendants' use the survivor's benefits that "she was required to spend for the care and benefit of her granddaughters, even during a period when her granddaughters no longer lived with her." ECF 19, ¶ 14.
Another group of facts relates to John Wharton's alleged use of a false identity to obtain Title II Program retirement benefits between April 2010 and June 2013 under the SSA record name of James Wharton, while he also received disability benefits in his own name. See ECF 19, ¶¶ 16-19; 18 U.S.C. § 641. This conduct is the subject of Counts One and Six.
Counts One and Seven refer to Ms. Wharton's receipt of Medicaid benefits between January 2000 and January 2013, based on her receipt of SSI Program benefits. See ECF 19, ¶ 7; 18 U.S.C. § 641.
Count Eight, lodged only against Ms. Wharton, alleges that on July 14, 2011, in relation to theft of government property (as set forth in Count Five), Ms. Wharton used, without lawful authority, a means of identification of another person, i.e., the name and signature endorsement of her granddaughter, C.W., on a bank check issued by the U.S. Treasury on or about July 13, 2011. See ECF 19, ¶ 22; 18 U.S.C. § 1028A(a)(1).
In response to the Superseding Indictment, the defendants filed a host of motions, some of which were heard on February 18, 2014. At that time, the Court considered the following submissions: Defendant John Wharton's Motion to Adopt Motions (ECF 34); Defendant John Wharton's Motion for Bruton Relief (ECF 36); Defendant Joeann Wharton's Consolidated Pretrial Motions (ECF 37); Joeann Wharton's Request For a Bill of Particulars (ECF 39); the Government's Consolidated Response to Defense Motions (ECF 43); Defendant Joeann Wharton's Reply to the Government's Consolidated Response (ECF 60); Defendants' Reply with respect to Bruton-Crawford violations (ECF 61); and the Government's Consolidated Surreply to Defense Motions (ECF 64).
In particular, with respect to the defendants' consolidated pretrial motions, the parties addressed the following matters: the motion to dismiss the Superseding Indictment, except Count Two (false statement), as unconstitutionally vague (ECF 37); the motion for severance of defendants or counts (ECF 37); the motion to strike misleading surplusage from the Superseding Indictment (ECF 37); and the motion for a bill of particulars (ECF 39).
1. Constitutional Vagueness
The defense has launched a flurry of challenges to the Superseding Indictment under the umbrella claim that the Superseding Indictment is unconstitutionally vague and imprecise, in violation of the Fifth and Sixth Amendments to the United States Constitution. See ECF 37 at 17-26. According to the defendants, they cannot adequately defend the case because they lack the requisite notice of the precipitating underlying events, acts of concealment, and/or failures to disclose. The defendants complain that the Superseding Indictment merely tracks the relevant statutory language, but "fails to describe any factual particulars of the most basic sort." Id. at 21. Further, the defense argues: "[S]imply because an offense continues' does not permit the government to fail to plead the nature of the wrongful act, when that act actually occurred, and where that act occurred." Id.
In connection with their challenge to Counts Four through Seven, all of which charge theft of government property under 18 U.S.C. § 641, the defendants assert that the only conduct identified with particularity concerns the events of October 1996,  when Ms. Wharton applied for SSI Program benefits. The defendants assert: "If the government's entire disability fraud case hinges on one specific and alleged false statement in October, 1996, in New York City, then Mrs. Wharton can defend. In this scenario the criminal act is that which occurred in 1996...." ECF 37 at 22. But, the defense insists that the government cannot "choose any [unspecified] instance it prefers within [the 16 year] time span" referenced in the Superseding Indictment. Id.
In other words, given that the Superseding Indictment covers a 16-year time period, and identifies with particularity only the events of October 1996, the defense maintains that the government cannot at trial choose other alleged misrepresentations to form the basis of the charges, as there has been no notice to the defendants, nor any indication that the grand jury considered such matters. The defense insists that, based on the allegations in the Superseding Indictment, the government is not entitled to argue to the jury that Ms. Wharton violated the law on the basis of unspecified misrepresentations within the 16 year period. In their view, the government is limited to the alleged representation made in October 1996.
Moreover, the defendants argue that, based on the pending charges, they would not be guilty as to SSI Program benefits if, in fact, the Whartons lived separate and apart in 1996, when Ms. Wharton applied for SSI Program benefits. In their view, that is the operative time, based on the charges. If the defendants could be guilty because their marital status changed at some other point in time during the ensuing 16 years, "then there is a profound lack of notice, " rendering the Superseding Indictment fatally defective. Id. at 22.
According to the defendants, Counts Four through Seven merely regurgitate the statutory language without alleging facts, other than the nature of the benefits stolen and the expansive time period at issue. In their view, "there is not one assertion as to how the claimed monies were embezzled, stolen, purloined, or knowingly converted." ECF 37 at 20 (emphasis in original). The defendants add: "Nor is there any indication of when, with constitutional specificity, any such acts occurred. If there are multiple acts that generate criminal liability, which of those acts [are the defendants] to defend against." Id. at 20-21 (emphasis in original).
The defense challenges Count Three on similar grounds. It characterizes that count, which alleges a violation of 42 U.S.C. § 1383a(a)(3), as "analogous to the theft counts, " and argues that "no one... can determine which of Ms. Wharton's failures to disclose, if any at all, the grand jury might have determined to be the required event underpinning this indictment." Id. at 22-23. Further, the defense contends that, if the jury can consider any unspecified conduct within the 16-year time span, the defendants could "be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted [them.]'" Id. (citation omitted).
The defendants recognize that the government relies, inter alia, on the continuing offense doctrine in connection with Counts Three through Seven. See ECF 37 at 21 & n.10. Nevertheless, they maintain that the doctrine "does not permit the government to fail to plead the nature of the wrongful act" or when and where it occurred. Id. at 21.
In addition, as to the Conspiracy Charge (Count One), the defense acknowledges the common thread of Social Security benefits. But, it points to a "bare assertion" of joint activities, purpose, or connection. They contend: "The prosecution has simply asserted by fiat a connection between these events...." Id. at 26. The defendants add: "It is obvious that Count One is simply the government's attempt to throw together every conceivable matter in one big stew pot." Id. 
The government counters that the Superseding Indictment is "quite specific." ECF 43 at 17. For example, it claims that Count Three charges Ms. Wharton with failing to disclose that she "lived with her husband for all or nearly all of the period between October 1996... and December 2012...." Count Four charges Ms. Wharton with embezzling SSI Program benefits that would not have been paid except for "her concealment of living arrangements...." Id. According to the government, "this charging language puts the Whartons on notice that they are charged in Counts Three and ...