United States District Court, W.D. Louisiana, Monroe Division
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE.
the undersigned Magistrate Judge, on reference from the
District Court, are two motions filed by defendant, Chad
Lightfoot: 1) a motion to quash, or an alternative motion in
limine [doc. # 68]; and 2) a motion to suppress, or, in the
alternative, a motion in limine [doc. # 69]. The motions are
opposed. For reasons stated below, it is recommended that the
motions be DENIED.
October 25, 2017, a federal grand jury returned a single
count indictment against Chad Lightfoot for disaster aid
fraud in violation of 18 U.S.C. § 1040(a)(2).
See Indictment. On July 24, 2018, defendant filed
the instant motions to quash, suppress, or alternatively, in
limine. The government filed its responses to the motions on
August 7, 2018. [doc. #s 74-75]. Defendant did not file a
reply, and the time to do so has lapsed. See July
25, 2018, Order [doc. # 70]. Accordingly, the matter is ripe.
non-specific motion to quash, defendant argues that, although
the government is prosecuting him for fraudulently seeking
FEMA assistance associated with an address that was not his
“primary residence, ” neither the indictment, nor
the government's proposed jury instructions provide any
suitable basis to define “primary residence, ” or
“principal residence.” Defendant reasons that,
absent a definition for “primary residence, ” he
cannot be in violation of the statute.
indictment must be a “plain, concise and definite
written statement of the essential facts constituting the
offense charged.” Fed.R.Crim.P. 7(c). When reviewing a
defendant's challenge to an indictment that it fails to
state an offense, the court is required to take the
allegations of the indictment as true and to determine
whether an offense has been stated. United States v.
Crow, 164 F.3d 229, 234 (5th Cir.1999). “An
indictment is sufficient if it contains the elements of the
charged offense, fairly informs the defendant of the charges
against him, and ensures that there is no risk of future
prosecutions for the same offense.” United States
v. Thomas, 348 F.3d 78, 82 (5th Cir.2003). Therefore,
“[n]o prescribed set of words are required-the
indictment simply needs to allege each element of the crime
in a way that allows the accused to prepare his defense and
invoke the Double Jeopardy Clause in a subsequent proceeding.
United States v. Franco, 632 F.3d 880, 884-85 (5th
state an offense under 18 U.S.C. § 1040, the government
must allege and prove that, (1) defendant made a materially
false or fraudulent statement or representation to FEMA; (2)
defendant's statement was in connection with a benefit;
(3) the benefit was in connection with the Disaster
Declaration; and (4) the benefit was a payment, money, or
thing of value of the United States. United States v.
Olsen, 760 F.3d 825, 827-28 (8th
defendant cannot in good faith contest that each of the
elements of the offense are detailed in the indictment.
See Indictment. Instead, he argues that the government
has not provided a definition of “primary residence,
” and therefore, the government cannot establish that
he made a false statement or representation regarding his
“primary residence.” Clearly, however, the
charging statute cannot provide definitions for all terms
used in all federal programs and applications for benefits.
Accordingly, courts must consult agency sources or even
related state law. See United States v. Fontenot,
665 F.3d 640, 645 (5th Cir.2011) (looking to other sections
of loan application and state law to discern definition of
"debt," for purposes of a charge under federal
false statement statute).
response to defendant's motion to suppress, the
government noted that the website where defendant applied for
FEMA funds inquired if the residence was the defendant's
the on-line form asked the applicant: "is this your
primary residence, where you live more than six months out of
the year?" The response options included:
a. Yes (Primary)
i. A home is the primary residence if the applicant;
1. Lives in the home more than six (6) months of the year
2. Lists it as their home address on their Federal Tax Return
3. Files a homestead exemption at this address
ii. Primary also includes if the access route to your primary
home, that you own/co-own with others and
maintain/co-maintain with others, was affected.
b. Mo (Secondary
i. A home is a secondary home if it is a:
1. Secondary residence
2. Vacation home,
Opp. Memo. [doc. # 75]).
the regulations define “primary residence” as
“the dwelling where the applicant normally lives,
during the major portion of the calendar year; or the
dwelling that is required because of proximity to employment,
including agricultural activities, that provide 50 percent of
the households income.” 44 C.F.R. § 206.111.
a Fact Sheet issued by FEMA on April 28, 2016, showed
disaster applicants how to appeal. Specifically, the Fact Sheet
[i]f you're a homeowner or renter, FEMA can reconsider
you for grants if you provide documents that prove the
damaged structure was your primary residence. You can prove
primary occupancy with utility bills, a driver's license
or a copy of your lease. You cannot ...