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United States v. Wittich

United States District Court, E.D. Louisiana

October 31, 2014

UNITED STATES,
v.
RAINER WITTICH, Section:

ORDER AND REASONS

NANNETTE JOLIVETTE BROWN, District Judge.

Before the Court is Defendants Rainer Wittich ("Wittich") and The Brinson Company's ("TBC") "Motion to Strike Surplusage."[1] Having considered the pending motion, the memorandum in support, the memorandum in opposition, the record testimony and the applicable law, the Court will grant-in-part and deny-in-part the pending motion.

I. Background

On February 13, 2014, a grand jury indicted Wittich and TBC on charges of conspiracy, copyright infringement, trafficking in technology designed to circumvent copyright protection systems, and circumventing a technological measure that protects a copyrighted work.[2] On May 29, 2014, a grand jury authorized a superseding indictment.[3] On October 2, 2014, Wittich and TBC were charged in a 9-count second superseding indictment with conspiracy, copyright infringement, circumvention of technological measures effectively controlling access to copyrighted works, conspiracy to commit international money laundering and trafficking in technology designed to circumvent copyright protection systems.[4]

On September 26, 2014, Defendants filed the instant motion to exclude evidence of plea discussions that occurred on September 26, 2013.[5] The Court heard oral argument on the motion on October 16, 2014.

II. Parties' Arguments

A. Defendants' "Motion to Strike Surplusage"

Defendants argue that the following language should be stricken from the Superseding Indictment:

1) Any reference to or use of the term "fake";
2) "The use of non-authentic or unauthorized SDS units increased the risk of Mercedes-Benz automobiles being stolen or suffering from misdiagnosed or undiagnosed problems";
3) "On [sic] about September 26, 2013, WITTICH and his counsel met with Special Agents from the Federal Bureau of Investigation. During the meeting, FBI agents detailed the nature of their investigation and presented numerous documents obtained throughout the investigation."[6]

Defendants argue that these items should be stricken from the Superseding Indictment under Federal Rule of Criminal Procedure 7(d).[7] Defendants contend that district courts can strike surplusage from an indictment if the inflammatory and prejudicial language "serve[s] only to inflame the jury, confuse the issues, and blur elements necessary for conviction[.]"[8] They assert that courts can also strike "[i]ndirect expressions, implied allegations, argumentative statements, and uncertainty due to generalizations in language[.]"[9]

Defendants argue that the term "fake, " as used by the Government to modify the term "SDS units, " is "highly prejudicial and self serving."[10] They state, "This prejudicial language is essentially the very fact that the government must prove here."[11] They assert that "such a generic descriptive phrase by its very nature creates the impression that the product is unlawful.[12]

Defendants contend that the stolen vehicle language is not relevant to the elements of the crime.[13] They assert that the language is irrelevant and prejudicial, and maintain that the ...


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