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United States v. Bickers

United States District Court, N.D. Georgia, Atlanta Division

September 17, 2019

UNITED STATES OF AMERICA
v.
MITZI BICKERS, Defendant.

          MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION AND ORDER CERTIFYING THIS CASE READY FOR TRIAL

          Linda T. Walker United States Magistrate Judge

         This matter is presently before the Court on Defendant Mitzi Bicker's (“Defendant”) Motion for Bill of Particulars and Motion to Strike Surplusage (Doc. 53), Motion to Dismiss Counts (Doc. 54), and Motion for Early Disclosure of Jencks Material and Early Identification of Government's Case-in-Chief Documents (Doc. 56). The Government has filed a Response in Opposition to Defendant's motions. (Docs. 63, 64, and 65). For the reasons outlined below, Defendant's Motion for a Bill of Particulars and her Motion for Early Disclosure of Jencks Material and Early Identification of Government's Case-in-Chief Documents are DENIED. (Docs. 53, 56). This Court also RECOMMENDS that Defendant's Motion to Strike Surplusage and her Motion to Dismiss Counts be DENIED.[1] (Docs. 53, 54).

         BACKGROUND

         On October 22, 2018, a grand jury in the Northern District of Georgia returned a twelve-count Superseding Indictment (“Indictment”) charging Defendant with two counts of conspiracy to commit bribery in violation of 18 U.S.C. § 371; bribery in violation of 18 U.S.C. § 666(a)(2); three counts of money laundering in violation of 18 U.S.C. § 1957 and Section 2; four counts of wire fraud in violation of 18 U.S.C. §§ 1343 and 1349; tampering with a witness in violation of 18 U.S.C. § 1512(b)(3); and filing false tax returns in violation of 26 U.S.C. § 7206. (Doc. 41). The Indictment also includes a forfeiture provision, pursuant to 18 U.S.C. § 981(a)(1)(C), and 28 U.S.C. § 2461(c). Notably, the Indictment is very detailed, it has 95 paragraphs, and it is twenty-six pages. (Doc. 41).

         In order to address Defendant's claim of entitlement to a bill of particulars and Defendant's motions to strike surplusage and to dismiss counts, the Court will provide some specific details about the Indictment's allegations. Count One, paragraph 1, of the Indictment, charges that Defendant from around 2010 to at least about May 22, 2013:

Knowingly and willfully conspired, agreed, and had a tacit understanding with Elvin R. Mitchell, Jr., Charles P. Richards, Jr. and others known and unknown to commit violations of the laws of the United States, that is - bribery involving a local government receiving federal funds, in that, [Defendant], an agent of the City of Atlanta, Georgia (a local government), corruptly solicited and demanded for her benefit and accepted and agreed to accept a thing of value from a person with the intent to be influenced and rewarded in connection with any business, transaction, and series of transactions of the City of Atlanta government, involving a thing of value of at least $5, 000, in any one-year period where the City of Atlanta government received benefits in excess of $10, 000 under a federal program, involving a grant, contract, subsidy, loan, guarantee, insurance and other form, in violation of Title 18, United States Code, Section 666(a)(1)(B).

         (Doc. 41).

         Under the heading “Object of the Conspiracy, ” paragraph 2, of the Indictment alleges that the Defendant conspired to enrich herself and others by soliciting and accepting payments from Mitchell and Richards, in exchange for her agreement to represent their companies in obtaining lucrative City of Atlanta[2] contracts. (Id.). The Indictment also provides background information regarding Defendant, and Mitchell and Richards. Specifically, paragraphs 3 through 10, of the Indictment provide background on the City; information on three companies associated with Defendant (the Bickers Group, Chateau Land Company, and Pirouette Companies); details regarding Defendant's employment from February 2010 to May 22, 2013, as the Director of Human Services for the City and her salary during this time frame; information about companies owned by Mitchell and Richards; and describes the types of government contracts that Mitchell and Richards' businesses were awarded by the City between 2010 and 2015 in the amount of approximately $17 million. (Id.).

         Under the heading “The City of Atlanta's Ethics and Procurement Codes, ” paragraphs 11 through 14, of the Indictment, reference certain sections of the City's Ethics Codes, while paragraphs 15 through 19 provide details about the City's Procurement Codes. (Id.). Specifically, paragraphs 11 through 14 present the purpose of the City's Ethics Code; explain that an official or employee's participation in contracts is prohibited; indicate that officials or employees are required to file statements disclosing any and all income and financial interests in excess of $5, 000; and reveal that employees are forbidden from soliciting or accepting anything of value calculated to influence a vote, decision, or official authority involving the City. (Id.). Paragraphs 15 through 19, of the Indictment, reference certain sections of the City's Procurement Code describing the responsibility of the Department of Procurement; detailing the requirements of the City's officers and employees to disclose to the chief procurement officer any direct or indirect interests in a procurement; explaining that it is unethical for any person to offer or give an employee or former employee or for any employee or former employee to solicit or accept from another person gratuities, offers of employment, and kickbacks; providing that it is unethical for a person to retain a person to solicit or secure a City contract for a contingent fee; and indicating that it is unethical for any City employee or former employee to use confidential information for actual or anticipated personal gain or to do so on behalf of another person. (Id.).

         The Indictment further describes the “Manner and Means” of the conspiracy by alleging that Mitchell and Richards agreed to and did pay bribes to Defendant, while she was a City employee, to secure City contracts for their businesses. (Id.). In exchange for those payments, the Indictment alleges Defendant agreed to represent Mitchell and Richards and their companies on matters relating to the City's contracting, and that Defendant provided sensitive contracting information to Mitchell and Richards to assist them in submitting contract bids. (Id.). Paragraph 21 of the Indictment explains that in early 2013, Defendant's financial ties to the Pirouette Companies was exposed publicly resulting in Defendant amending her 2013 City Financial Disclosure Statement to reveal her relationship with the Pirouette Companies. (Id.). It is also noted that Defendant resigned from the City on or about May 22, 2013. (Id.).

         Additionally, the Indictment sets forth in paragraphs 22 through 51 a number of “Overt Acts” allegedly committed by Defendant and her alleged co-conspirator/s in furtherance of the conspiracy:

Under the City's Ethics Code and as part of her employment, Defendant was required to disclose annually all positions of employment she held for any portion of the year with any business, including the existence and nature of any business done by the employer entity with the City;
That in 2011, 2012, 2013, and 2014, Defendant completed, signed, and submitted via the Internet, City financial disclosure statements knowing that some of those disclosure statements (financial disclosure statements submitted in 2012, 2013 (original), and 2014), contained false and fraudulent answers and representations in that she represented that she had not been employed outside the City, she had not received more than $5, 000 in annual income from any other company, or she had not been paid for appearing on behalf of any person, client, or private interest before any city agency;
That between 2010 and 2015, Mitchell and Richards and their companies paid over $2 million in bribe payments to Defendant, the Bickers Group, Chateau Land Company, and the Pirouette Companies, in an attempt to get City contracts; and certain payments from Mitchell and Richards to Defendant and certain City contracts awarded to Mitchell and Richards, as well as certain purchases made by Defendant, are detailed.

(Id.). Count Two, of the Indictment alleges Defendant conspired with others to commit bribery, in violation of 18 U.S.C. § 371. (Id.). The “Object of the Conspiracy” is described as, after Defendant left her employment with the City on or about May 22, 2013, she solicited and accepted bribe payments from Mitchell, Richards, and their companies, in exchange for her agreement to represent their businesses to obtain lucrative City contracts through the bribery of at least one public official. (Id.). Specifically, Count Two charges that from on or about May 22, 2013, to at least sometime in 2015, Defendant:

knowingly and willfully conspired, agreed, and had a tacit understanding with Elvin R. Mitchell, Jr., Charles P. Richards, Jr., and others known and unknown to commit violations of the laws of the United States, that is - bribery involving a local government receiving federal funds, in that Defendant corruptly gave, offered, and agreed to give a thing of value to a person with the intent to influence and reward an agent of the City (a local government), in connection with any business, transaction, and series of transactions of the City government, involving a thing of value of at least $5, 000, in any one-year period where the City government received benefits in excess of $10, 000 under a federal program involving, a grant, contract, subsidy, loan, guarantee, insurance and other form, in violation of Title 18, United States Code, Section 666(a)(2), all in violation of Title 18, United States Code, Section 371.

(Id.). Count Three, of the Indictment charges Defendant with bribery by attempting to obtain lucrative government contracts with the City of Jackson, Mississippi (“Jackson”) through the provision of money, goods, and services to public officials intending to influence and reward the public officials for exercising their official duties in violation of 18 U.S.C. § 666 (a)(2). The Indictment provides detailed background information explaining that a Special Mayoral Election was held in Jackson in the spring of 2014; that Defendant assisted a candidate in that election who was elected Mayor of Jackson (“the Mayor”) in April 2014; and that in March, April, and July 2014, and in February 2015, Defendant, Mitchell, Richards, and “K.J.” allegedly wrote checks, from various personal and corporate accounts, to the Mayor's election committee. (Id.).

         The Indictment describes the “Bribery Scheme” as follows: beginning in March 2014, Defendant hosted parties and paid for things like food, flights, hotels, chauffeured car services, entertainment, fundraisers, and campaign services for the Mayor and other Jackson officials in an effort to influence and reward the public officials. (Id.). Mitchell is alleged to have been the funding source for many of those activities. (Id.). Similarly, paragraphs 63 through 73 detail certain specific payments allegedly made by Defendant for Jackson officials, actions taken by Defendant related to contracts and projects in Jackson, and representations Defendant made about getting a contract in Jackson. (Id.).

         Counts Four through Six, of the Indictment, charge Defendant with money laundering, in violation of 18 U.S.C. § 1957. (Id.). Paragraphs 77, 79, and 81 describe certain monetary payments allegedly from Mitchell to Defendant (approximately $85, 700, $21, 000, and $22, 000, respectively); and paragraphs 78, 80, and 82 detail certain purchases allegedly made by Defendant around the same time periods for a 2014 GMC Acadia Denali and four Yamaha Waverunners. (Id.). Additionally, paragraph 83 alleges Defendant, aided and abetted by Mitchell and others, knowingly engaged in monetary transactions involving criminally-derived property from the bribery scheme in Count 2 by purchasing the 2014 GMC Acadia Denali on May 9, 2014 (Count Four); two Waverunners on May 23, 2014 (Count Five); and two Waverunners on July 3, 2014 (Count Six). (Id.).

         Counts Seven through Ten, of the Indictment, charge Defendant with wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349. (Id.). Similar to the previous counts in the Indictment, certain factual allegations are re-alleged and incorporated, and these counts relate to the Defendant's City Financial Disclosure forms described in Count One. Specifically, paragraphs 85 through 88 allege that Defendant, while serving as the Director of Human Services for the City, filed multiple false City Financial Disclosure forms via the internet; that from February 2010 to May 22, 2013, Defendant received payments of more than $5, 000 from sources other than the City that she failed to disclose in violation of the City's Code of Ethics; and that at the same time Defendant continued to receive her salary from the City. Thus, Defendant is charged with knowingly devising and participating in a scheme to defraud and obtain money from the City by means of a materially false and fraudulent pretense, representation, promise, and by an omission of a material fact, and in executing the scheme caused certain interstate wire communications, that is, electronic communications associated with salary payments from the City made to Defendant on February 22, 2013 (Counts Seven and Eight) and on March 8, 2013 (Counts Nine and Ten). (Id.).

         In Count 11 of the Indictment, Defendant is charged with tampering with a witness or informant, in violation of 18 U.S.C. § 1512(b)(3) (Id.). Paragraph 90 alleges that between May and September 11, 2015, Defendant aided and abetted by others, knowingly used and attempted to use intimidation, threats, and corrupt persuasion; and engaged in misleading conduct towards Mitchell, with the intent to hinder, delay, and prevent Mitchell from communicating with a law enforcement officer relating to the commission or possible commission of a federal offense. Finally, in Count 12 of the Indictment, Defendant is charged with filing a false tax return in violation of 26 U.S.C. § 7206(1). Specifically, paragraph 92 alleges Defendant knowingly and willfully made and filed a false federal tax return, in that she claimed a total income for 2011 of $57, 986 when she knew that was not an accurate statement of her total income. (Id.).

         DEFENDANT'S MOTION FOR BILL OF PARTICULARS AND TO STRIKE SURPLUSAGE FROM THE INDICTMENT

         Defendant has filed a motion for a bill of particulars requesting that the Court direct the Government to provide additional information regarding Counts One, Two, Three, and Seven through Ten of the Indictment. (Doc. 53). Defendant also requests that the Court require the Government to strike surplusage in Counts One and Three of the Indictment.

         I. Defendant 's Motion for Bill of Particulars

         A. Defendant's Requests

         Defendant contends that the Government should be directed to file a bill of particulars to provide additional information regarding Count One (Conspiracy), Count Two (Conspiracy), and Counts Seven through Ten (Wire Fraud) of the Indictment. (Doc. 53). First, Defendant seeks more information with regard to several paragraphs in Count One as provided below:

In Count 1, paragraph 1, the Indictment alleges [Defendant[ was an agent of the City of Atlanta, Georgia during the time-frame of “in or about 2010 until on or about May 22, 2013.” During that time-frame, the indictment alleges that as an agent of the City, [Defendant] “corruptly solicited and demanded for her benefit and accepted and agreed to accept a thing of value from a person with the intent to be influenced and rewarded in connection with any business, transaction, and series of transactions of the City of Atlanta government. . . .”
The second paragraph of Count 1 is then entitled “Object of the Conspiracy” and goes on to allege that [Defendant] solicited and accepted payments “from Mitchell and Richards and their companies in exchange for her agreement to represent their businesses and to obtain lucrative City of Atlanta contracts for their companies through bribery.”
In Count 1, under the heading of “overt acts” contained in paragraphs 22-29, the Indictment alleges that [Defendant] submitted inaccurate financial disclosure statements to the City of Atlanta for the years 2011-2014.

         (Doc. 53, at 1-2). Defendant argues the Government should be required to provide what information they used to conclude that she had any agency or scope of authority for the City of Atlanta to influence or cause the award or reward of any City of Atlanta contracts outside of her position and/or scope of employment within the City in the Department of Human Services.

         Based on paragraph 2 of Count One, Defendant also argues the Government should be required to provide information regarding in what way and to whom did she represent Mitchell and/or Richards' businesses in order to obtain City of Atlanta contracts. In Defendant's third request, she seeks additional information based on Count 1 and Defendant's financial disclosures. Defendant contends that the Government should be required to specify how a statement made ...


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