United States District Court, N.D. Georgia, Atlanta Division
Martin May, United States District Judge.
case comes before the Court on the Magistrate Judge's
Report and Recommendation ("R&R") ,
recommending that Defendant's Motion to Dismiss for Lack
of Jurisdiction  be denied as moot and Defendant's
Motion to Dismiss for Failure to Allege a Defense  be
denied. The Magistrate Judge also denied Defendant's
Motion for Bill of Particulars . Pursuant to 28 U.S.C.
§ 636(b)(1), Defendant filed Objections . After due
consideration, the Court enters the following Order.
to Federal of Civil Procedure 72(a), a magistrate judge may
issue a written order for any non-dispositive, pretrial
matter. A party may serve and file objections to that order
within 14 days, and the district court reviews those
objections and can "modify or set aside any part of the
order that is clearly erroneous or is contrary to law."
Fed.R.Civ.P. 72(a). However, if the ruling would be
dispositive, the magistrate judge must issue a report and
recommendation ("R&R") that, if properly
objected to within 14 days, requires the district court to
conduct a de nova review of the magistrate
judge's R&R. Fed.R.Civ.P. 72(b). Under the foregoing
standard, the Court will review the Magistrate Judge's
recommendation as to the Motion to Dismiss  de
nova and her order as to the Motion for Bill of
Particulars  under the clearly erroneous or contrary to
law standard of review.
objects that (1) pursuant to United States v.
Takhalov, 827 F.3d 1307 (11th Cir. 2016), the indictment
does not sufficiently allege wire fraud; and, (2) a bill of
particulars is needed to avoid surprise and prepare his
defense as the indictment does not set forth how Defendant
used his client's identification without lawful authority
or how the litigation financing entities were defrauded.
See Dkt. No. . The Court considers each
objection in turn.
as to the sufficiency of the indictment, the Court agrees
with the Magistrate Judge that the Superseding Indictment
sufficiently alleges wire fraud. As alleged, Defendant
misrepresented to litigation financing companies that they
would be funding his clients' living or medical expenses,
when instead, Defendant was depositing those funds in his law
firm's operating account. Defendant argues that this
distinction is ultimately immaterial, as the litigation
financing companies still received an interest in his
clients' cases-the benefit of their bargain. But, at this
stage, it would be inappropriate for this Court to determine
whether the benefit of the bargain was the actual use of the
disbursed funds or a more limited financial interest in the
litigation or whether that distinction was material
to the litigation financing companies. That task is for a
jury at trial. See United States v.
Takhalov, 827 F.3d 1307, 1314 (11th Cir. 2016)
("Thus, even if a defendant lies, and even if the victim
made a purchase because of that lie, a wire-faud case must
end in an acquittal if the jury nevertheless
believes that the alleged victims 'received exactly what
they paid for."' (quoting United States v.
Shellef, 507 F.3d 82, 108 (2d Cir. 2007) (emphasis
added)); see also R&R, Dkt. No.  at 11-18. As
indicted, the allegations are sufficient to support the
Government's theory that Defendant deprived the
litigation funding companies of the benefits of their
bargains, whether by obtaining funds in an unauthorized
manner or misusing the funds for an improper purpose. The
Court therefore ADOPTS the R&R and OVERRULES
Defendant's Objection on this issue.
to the Magistrate Judge's order on Defendant's Motion
for Bill of Particulars, the Court does not find the
Magistrate Judge's denial either clearly erroneous or
contrary to law, as the requested information is either in
the Superseding Indictment or otherwise available in the
previously produced discovery. Thus, Defendant's
Objection is likewise OVERRULED as to a Bill of Particulars.
Court OVERRULES Defendant's objections and ADOPTS the
Magistrate Judge's Report and Recommendation
("R&R") [ 45] as the order of the Court.
Defendant's Motion to Dismiss for Lack of Jurisdiction
 is DENIED as moot, and Defendant's Motion to Dismiss
for Failure to Allege a Defense  is DENIED.
Motion to Allow Participation in Vair Dire  is GRANTED,
and Defendant's Motion to Strike Surplusage in the
Indictment  is DEFERRED, until the pretrial conference.
trial in this action is hereby set to begin on Monday, August
26, 2019 at 9:30 A.M. in Courtroom 2107. The pretrial
conference will be held on Monday, August 20, 2019 at 9:30
A.M. in Courtroom 2107. By noon on Wednesday, August 7, 2019,
the parties are to file the following: motions in
limine and proposed voir dire questions. By
noon on Wednesday, August 7, 2019, the Government must file a
brief summary of the indictment that the parties can rely on
for voir dire. By noon on Wednesday, August 14,
2019, the parties are to file responses to motions in
limine and any objections and to those items listed
time is allowed through August 16, 2019, pursuant to 18
U.S.C. § 3161 (h)(7)(A) and (B)(iv), to give counsel for
Defendant and the Government the reasonable time necessary
for effective preparation, taking into account the exercise
of due diligence. The Court finds that the ends of justice
served outweigh the best interest of the public and the
Defendant in a speedy ...