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United States v. Yurek

United States District Court, D. Colorado

April 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
1. DARYL FRANCIS YUREK, Defendant.

          ORDER ON INDICTMENT MOTIONS

          WILLIAM J. MARTÍNEZ, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the following motions filed by Defendant Daryl Yurek, each in various ways challenging the sufficiency of the Indictment (ECF No. 1): (1) Motion For Bill of Particulars (ECF No. 105); (2) Motion to Dismiss Count 1 Re: Duplicity (ECF No. 106); (3) Motion to Dismiss Counts 2, 3, 4 and 5 of the Indictment Re: Multiplicity (ECF No. 107); and (4) Motion to Dismiss Count 3 (ECF No. 108).

         I. BACKGROUND

         Defendant Daryl Yurek (“Defendant” or “Mr. Yurek”) is charged in a Five-Count Indictment. (ECF No. 1.) Count 1 jointly charges both Mr. Yurek and his wife and co-Defendant Wendy Yurek (“Ms. Yurek”) with a single count of tax evasion in violation of 26 U.S.C. § 7201. The Indictment recites factual allegations that include 26 specifically enumerated acts on dates between January 16, 2006 and April 2014, as set out in paragraphs 16a.-16z. (Id. at 5-11.) Some of these acts were allegedly committed by Mr. Yurek, some were allegedly committed by Ms. Yurek, and some were allegedly committed by both Mr. and Ms. Yurek.

         Count 2 jointly charges Mr. and Ms. Yurek with a single count of filing a bankruptcy petition in furtherance of a scheme to defraud, in violation of 18 U.S.C. § 157(1). The Indictment on Count 2 incorporates by reference many of the factual allegations of Count 1.

         Count 3 charges Mr. Yurek with one count of making a false statement under oath in relation to a bankruptcy proceeding, in violation of 18 U.S.C. § 152(2), based on alleged conduct at a January 7, 2011 Bankruptcy Rule 2004 examination, which is also an act charged in paragraph 16t. of Count 1.

         Count 4 charges Mr. Yurek with one count of making a false declaration under penalty of perjury in a tax submission, in violation of 26 U.S.C. § 7206, based on alleged declarations made in an IRS Form 433-A (submitting “Collection Information for Wage Earners”), dated September 10, 2009.

         Count 5 charges Mr. Yurek with a second count of making a false declaration in violation of 26 U.S.C. § 7206, based on a separate IRS Form 433-A, dated March 30, 2010.

         I. MOTION FOR BILL OF PARTICULARS

         Defendant first moves for a Bill of Particulars. (See ECF No. 105.) Federal Rule of Criminal Procedure 7(f) allows a criminal defendant to move for a bill of particulars, which is “a formal written statement by the prosecutor providing details of the charges against the defendant.” 1 Charles A. Wright et al., Federal Practice & Procedure § 130 (4th ed., Jan. 2017 update) (“Wright & Miller”).

The purpose of a bill of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense. A bill of particulars is not necessary if the indictment sets forth the elements of the offense charged and sufficiently apprised the defendant of the charges to enable him to prepare for trial. The defendant is not entitled to notice of all of the evidence the government intends to produce, but only the theory of the government's case.

United States v. Ivy, 83 F.3d 1266, 1281 (10th Cir. 1996) (emphasis in original) (citations, quotations, and brackets omitted). The decision whether to require a bill of particulars is committed to the sound discretion of the district court. United States v. Levine, 983 F.2d 165, 166 (10th Cir. 1992).

         Here, the Court agrees with the Government that the Indictment provides sufficient information and particularity, and that a Bill of Particulars is not required. Defendant makes specific requests for further particularity as to each of the five counts, which the Court will address in turn. In sum, the Court finds that the specificity requested by Defendant goes beyond that to which he is entitled and/or has already been adequately provided to him.

         A. Count One

         As to Count One (tax evasion, 26 U.S.C. § 7201), a necessary element of the charge is for the Government to prove at least one “affirmative act constituting an evasion or attempted evasion” of a proven tax liability. United States v. Boisseau, 841 F.3d 1122, 1125 (10th Cir. 2016) (citing Sansone v. United States, 380 U.S. 343, 351 (1965)). Defendant first requests specificity as to whether the Government “intend[s] to present any evidence at trial” of additional “affirmative acts” beyond those enumerated in the 26 sub-parts of the Indictment's paragraph 16. (ECF No. 105 at 5, ¶ 1 (emphasis added).) However, Defendant is not entitled to notice of all the Government's evidence. Ivy, 83 F.3d at 1281; United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983) (“ A bill of particulars may not be used to compel the Government to disclose evidentiary details”). On review of the detailed Indictment here, the Court concludes that it provides sufficient notice of the Government's theory of the case and that Defendant's request seeks evidentiary details to which he is not entitled.

         Defendant also requests information already sufficiently provided by the Indictment, including what specific statements were “false and misleading” in the forms submitted to the IRS. (ECF No. 105 at 5 ¶¶ 2 & 3.) The Indictment identifies the documents at issue, the dates they were submitted, and a description of the allegedly misleading statements as representations of “insufficient assets and income to pay the full amount” of deficient taxes, as well as “false and misleading information about Defendant's employment and investments.” (ECF No. 1 ¶¶ 16a.-b.) No further specificity is required on this point.

         Likewise, Defendant asks for more particularity regarding what “false and misleading” information was provided to whom by his September 1, 2010 Bankruptcy Petition. (ECF No. 105 at 5 ¶ 6.) But the Indictment identifies the document and its date, and further states that the alleged misinformation was that found in the Bankruptcy schedules disclosing Defendant's “assets, transfers of assets, income, and financial affairs.” (ECF No. 1 ¶ 16q.)

         Beyond that, discovery and the Government's response reveal further specificity of what allegedly false statements were found in the Bankruptcy filing, including, interalia: failure to disclose specific stock transfers; failure to disclose specific stock owned by Defendant; failure to disclose Defendant's control of his and Ms. Yurek's residence, held in their son's name, as “property owned by another person that the debtor holds or controls”; and failure to list specific personal expenses paid by the Yureks' business entities with their disclosed income. (ECF No. 114 at 10.) Reviewed in combination with the Indictment, the discovery information described in the Government's response provides more than sufficient specificity. See Ivy, 83 F.3d at 1282 (“By providing complete discovery containing sufficient information to allow them to prepare their defense, the government gave [defendants] the tools necessary to anticipate and forestall any surprise that might have resulted from the indictment. Once the government provided these tools, it was [defendants'] responsibility to use them in preparing their defense”); United States v. Kunzman, 54 F.3d 1522, 1526 (10th Cir. 1995) (affirming denial of motion for bill of particulars where the defendant ...


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