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United State v. Viniard

United States District Court, W.D. Kentucky, Paducah Division

July 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
VICKIE LOUISE VINIARD, et al., Defendant.

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge United States District Court

         A federal grand jury returned a superseding indictment against Vickie Louise Viniard, the Judge Executive of Ballard County, Kentucky, charging her with one count of bank fraud, two counts of making a false statement on a loan application, and one count of wire fraud. Viniard takes issue with the charges alleged in the superseding indictment. Pointing to the Double Jeopardy Clause of the Fifth Amendment, she claims that making a false statement on a loan application is nothing more than a lesser-included offense of bank fraud. The issue appears to be of first impression in this Circuit, and Viniard's argument is not without some appeal. Nonetheless, the Court finds no defect of constitutional magnitude in the superseding indictment. Accordingly, Viniard's Motion to Dismiss, [R. 43], is DENIED.

         I.

         A.

         In June 2017, a federal grand jury returned a superseding indictment against Vickie Louise Viniard, charging her with one count of bank fraud (18 U.S.C. § 1344), two counts of making a false statement on a loan application (18 U.S.C. § 1014), and one count of wire fraud (18 U.S.C. § 1343). [R. 37 at 3-5, ¶¶ 6-13 (Superseding Indictment).] According to the superseding indictment, Viniard, as the Judge Executive of Ballard County, Kentucky, applied for a series of loans between 2012 and 2014 in order to finance the County's operations. [Id. at 1-2, ¶¶ 1-5.] In the course of doing so, Viniard misrepresented that she had authority to take out the loans (and to pledge the County's assets as collateral), giving rise to the charge for bank fraud. [Id. at 3, ¶¶ 6-7.] Earlier during that same time period, she lied to a loan officer about having unilateral authority to borrow money on the County's behalf, which led to the first charge of making a false statement on a loan application. [Id. at 4-5, ¶¶ 10-11.] She later fabricated a resolution from the Ballard County Fiscal Court to evidence that authority, resulting in the second charge of making a false statement on a loan application. [Id. at 3-4, ¶¶ 8-9.]

         B.

         Viniard takes issue with the charges alleged in the superseding indictment. She seeks to dismiss both charges of making a false statement on a loan application. [R. 43 (Motion to Dismiss).] The Government opposes the motion. [R. 47 (Response).]

         II.

         The Double Jeopardy Clause of the Fifth Amendment “provides that no ‘person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.'” United States v. Vichitvongsa, 819 F.3d 260, 272 (6th Cir. 2016) (alteration in original) (quoting U.S. Const. amend. V). It protects an individual from “successive prosecutions for the same offense after acquittal or conviction, as well as from multiple punishments for the same offense.” United States v. Farah, 766 F.3d 599, 606 (6th Cir. 2014) (citing Brown v. Ohio, 432 U.S. 161, 165 (1977)). A multiplicitous indictment, which charges “a single offense in more than one count, ” violates that constitutional precept. United States v. Myers, 854 F.3d 341, 355 (6th Cir. 2017) (quoting United States v. Swafford, 512 F.3d 833, 844 (6th Cir. 2008)). To determine whether an indictment is multiplicitous, the Court

focuses on the statutory elements of the two crimes with which a defendant has been charged, not on the proof that is offered or relied upon to secure a conviction. . . . If each [offense] requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.

         United States v. DeCarlo, 434 F.3d 447, 455 (6th Cir. 2006) (alterations in original) (quoting United States v. Barrett, 933 F.2d 355, 360-61 (6th Cir. 1991)).

         III.

         Viniard claims that the superseding indictment is multiplicitous, and so violates the Double Jeopardy Clause of the Fifth Amendment. [R. 45 at 2-7 (Memorandum in Support).] In support of that position, she argues that the charges of making a false statement on a loan application, based on 18 U.S.C. § 1014, are nothing more than a lesser-included offense of the bank fraud charge, based on 18 U.S.C. § 1344. [R. 45 at 3- 5 (Memorandum in Support).] The issue appears to be of first impression in this Circuit, and Viniard's argument is not without some appeal. Nonetheless, the Court finds no defect of constitutional magnitude in the superseding indictment.

         The analysis begins and ends with the statutory text at issue. The ...


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