United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND
RECOMMENDATION AND ORDER CERTIFYING THIS CASE READY FOR
T. WALKER, CHIEF UNITED STATES MAGISTRATE JUDGE
matter is presently before the Court on Defendant
Detling's Motion to Dismiss Counts for Lack of
Jurisdiction, Motion to Dismiss Indictment for Failure to
Allege an Offense, and Motion for Bill of Particulars. (Docs.
26, 27, 28). For the reasons outlined below, the Court
RECOMMENDS that Defendant's Motion to
Dismiss Counts for Lack of Jurisdiction be DENIED AS
MOOT (Doc. 26), Motion to Dismiss the Indictment for
Failure to Allege an Offense be DENIED (Doc.
27). Lastly, Defendant's Motion for Bill of Particulars
is DENIED. (Doc. 28).
August 8, 2018, a grand jury in the Northern District of
Georgia returned an Indictment charging Defendant Chalmer
Detling, II (“Defendant”) with seven counts of
wire fraud in violation of 18 U.S.C. § 1343 (Counts One
through Seven) and seven counts of aggravated identity theft
in violation of 18 U.S.C. § 1028A(a)(1) (Counts Eight
through Fifteen). (Doc. 1). After Defendant filed the motions
now under consideration, a grand jury returned a Superseding
Indictment. (Doc. 35). The Superseding Indictment is
identical to the initial Indictment except for the addition
of a sentence in the fourth paragraph: “SunTrust is
headquartered in Atlanta, Georgia, and possesses its ACH and
wire transfers in Orlando, Florida.” (Doc. 35,
¶4). For this reason, the Court construes
Defendant's Motion to Dismiss Counts for Lack of
Jurisdiction (Doc. 26) and Motion to Dismiss the Indictment
for Failure to Allege an Offense (Doc. 27) as challenges to
the Superseding Indictment. The Motion for Bill of
Particulars (Doc. 28) is not specific to any charging
THE SUPERSEDING INDICTMENT
Superseding Indictment alleges Defendant committed wire fraud
and aggravated identity theft by obtaining litigation
advances in his law firm's clients' names without the
clients' knowledge or authorization. (Doc. 35, ¶1).
The Superseding Indictment begins by providing background
information about Defendant and the litigation financing
entities he allegedly defrauded. (Id. ¶¶
1-9). Defendant is an attorney who owned and operated Detling
Law Group, a law firm primarily engaged in personal injury
law. (Id. ¶ 1). Injury Financial, LLC d/b/a
Capital Financing, Litigation Ventures LLC, Mighty Financing
LLC, and LFC Group (collectively, the “litigation
financing entities”) are companies that provide
litigation advances to plaintiffs. (Id. ¶¶
5-8). The litigation financing entities provide modest sums
to plaintiffs, mainly with pending personal injury cases, for
non-litigation related expenses, such as living and medical
expenses. (Id. ¶ 10). A plaintiff applies for a
litigation advance by electronically submitting a signed
financing agreement by email or through an online portal.
(Id.). Although the financing agreement contemplated
repayment with interest, the litigation financing entities do
not consider litigations advances to be loans.
(Id.). Instead, financing entities characterize
litigation advances as investments because plaintiffs who do
not receive any recovery from their lawsuits are not
obligated to repay the advances. (Id.). In
determining whether to provide a litigation advance to any
particular plaintiff, the litigation financing entities
consider the merits of the plaintiff's lawsuit.
is accused of using the personal identifying
information (“PII”) of his clients,
without their permission, to apply for and obtain litigation
advances in his clients' names. (Doc. 35, ¶ 12).
Defendant allegedly submitted applications and agreements to
the litigation financing entities with his clients'
signatures knowing that the documents were not actually
signed by his clients. (Id.). The litigation
financing entities did not require the clients' presence
to apply for or receive funds. (Id. ¶ 13).
Defendant further concealed his actions by directing the
litigation financing entities to send the litigation advances
directly to his law firm's IOLTA account, personally picking
up the checks from the litigation financing entities, and
providing the litigation financing entities with fake phone
numbers and email addresses for the clients. (Id.
¶¶ 13, 14, 16). The Superseding Indictment states
that the litigation advances were ultimately transferred to
Defendant's law firm's operating or other accounts.
(Id. ¶ 15). In total, Defendant is accused of
obtaining approximately fifty (50) fraudulent litigation
advances from the litigation financing entities.
(Id. ¶¶ 17-20).
Superseding Indictment asserts seven counts of wire fraud
(Counts One through Seven) in violation of 18 U.S.C. §
1343 and includes a chart with the date and brief description
of each of the seven wire communications. (Doc. 35, ¶
21). For the aggravated identity theft charges in violation
of 18 U.S.C. § 1028A(a)(1) (Counts Eight through
Fifteen), the Indictment incorporates the factual allegations
and charges in paragraphs one through twenty-one of the
Indictment. (Id. ¶¶ 22-23). Counts Eight
through Fifteen are arranged in a chart that provides the
date of the offense, the related felony, the initials of the
client whose identity was used, and the means of
identification. (Id. ¶ 23).
TO DISMISS COUNTS FOR LACK OF JURISDICTION
moved to dismiss Counts Four through Seven and Counts Eleven
through Fifteen for lack of federal jurisdiction. (Doc. 26).
Defendant posits that Counts Four through Seven fail to
allege a federal offense because the Superseding Indictment
does not provide the geographic location for SunTrust.
(Id. ¶ 6.) Without the geographic location, the
Superseding Indictment fails to show transmission of
interstate wire communications as is required for §
1343. (Id.) As a result, Defendant contends that
Counts Eleven through Fifteen for aggravated identity theft
should be dismissed because they are not supported by a
related felony. (Id. ¶ 8.)
Superseding Indictment, however, added the location of
SunTrust's headquarters (Atlanta, Georgia) and the
location where SunTrust processes its ACH and wire transfers
(Orlando, Florida). (Doc. 35, ¶ 4). Defendant concedes
that the addition cured the jurisdictional deficiency. (Doc.
41, at 2). Accordingly, Defendant's Motion to Dismiss
Counts For Lack of Jurisdiction should be DENIED AS
MOOT. (Doc. 26).
TO DISMISS THE INDICTMENT FOR FAILURE TO ALLEGE AN
argues the Superseding Indictment should be dismissed for
failing to allege an offense. (Doc. 27). Fraud requires
intent to defraud and a lie about the nature of the bargain
itself. (Id. at 4). Defendant asserts that the facts
in the Superseding indictment, if true, do not indicate that
Defendant intended to defraud the litigation financing
entities. (Id. at 2-5). Further, the Superseding
Indictment does not show that the litigation financing
entities did not get what they sought: an equitable interest
in the outcome of the lawsuit. (Id. at 2-3).
Defendant's apparent authority bound his clients to the
agreements; thus, the litigation financing entities obtained
their investments in the ongoing lawsuits. (Id. at
2, 6). Because the aggravated identity theft charges are
predicated upon wire fraud, the aggravated identity theft
charges must also fail. (Id. at 6.)
response, the Government argues the litigation financing
entities did not receive the benefit of the bargain. (Doc.
33, at 9). The Government asserts that the Superseding
Indictment does not claim that the litigation financing
entities sought an investment opportunity, but advanced funds
to cover “living expenses and/or medical
expenses” for plaintiffs with a pending lawsuit.
(Id. at 10). None of Defendant's clients
received the litigation advances because the funds were
transferred to his law firm's accounts. (Id.).
The Government contends that the litigation financing
entities were unaware that Defendant's clients did not
apply for or receive the litigation advances, which was the
purpose of the transaction. (Id. at 10-11).
7(c) of the Federal Rules of Criminal Procedure states that
an indictment “must be a plain, concise, and definite
written statement of the essential facts constituting the
offense charged . . . ” Fed. R. Crim. P. 7(c).
Defendant may file a motion alleging a defect in the
indictment or information, including a defect amounting to
“failure to state an offense.” Fed. R. Crim. P.
12(b)(3)(B)(v). “An indictment is considered legally
sufficient if it: (1) presents the essential elements of the
charged offense, (2) notifies the accused of the charges to
be defended against, and (3) enables the accused to rely upon
a judgment under the indictment as a bar against double
jeopardy for any subsequent prosecution for the same
offense.” United States v. Schmitz, 634 F.3d
1247, 1259 (11th Cir. 2011) (quoting United States v.
Jordan, 582 F.3d 1239, 1245 (11th Cir. 2009)). “It
is generally sufficient that an indictment set forth the
offense in the words of the statute itself, as long as those
words of themselves fully, directly, and expressly, without
any uncertainty or ambiguity, set forth all the elements
necessary to constitute the offense [sic] intended to be
punished.” United States v. Garrett, 467
Fed.Appx. 864, 867 (11th Cir. 2012) (citing Hamling v.
United States, 418 U.S. 87, 117 (1974)); see United
States v. Critzer, 951 F.2d 306, 307-08 (11th Cir. 1992)
(“The indictment is sufficient if it charges in the
language of the statute.”); United States v.
Malone, No. 804CR348T24TGW, 2005 WL 1243762, at *3 (M.D.
Fla. May 25, 2005) (denying a motion to dismiss an indictment
because it tracked the language of the statute setting forth
the essential elements of the crime).
indictment that tracks the language of the statute must be
accompanied by a statement of “facts and circumstances
that will inform the accused of the specific offense, coming
under the general description, with which he is
charged.” Russell v. United States, 369 U.S. 749, 765
(1962) (quoting United States v. Hess, 124 U.S. 483, 487
(1888)); United States v. Bobo, 344 F.3d 1076, 1083 (11th
Cir. 2003). But an indictment does not have to “detail
the factual proof that will be relied upon to support the