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United States v. Lightfoot

United States District Court, W.D. Louisiana, Monroe Division

August 30, 2018

UNITED STATES OF AMERICA
v.
CHAD LIGHTFOOT

          REPORT AND RECOMMENDATION

          KAREN L. HAYES UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         Background

         On 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.

         I.

         Motion to Quash

         In his 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.

         An 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 Cir.2011).

         To 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 Cir.2014).[1]

         Here, defendant cannot in good faith contest that each of the elements of the offense are detailed in the indictment. See Indictment.[2] 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).

         In its 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 primary residence:

         (Image Omitted)

         Specifically, 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,

         (Gov.'t Opp. Memo. [doc. # 75]).

         Similarly, 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.

         Finally, a Fact Sheet issued by FEMA on April 28, 2016, showed disaster applicants how to appeal.[3] Specifically, the Fact Sheet stated,

[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 ...

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