USA v. Boone et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v.
SCOTT E. BOONE, et al.
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Crim. No. 1:22-CR-00426
Judge Jennifer P. Wilson
MEMORANDUM
Defendants are collectively charged with six counts of major fraud against
the United States and two counts of conspiracy to commit the same. Defendants
have filed two motions to dismiss the indictment. In one motion, they argue that
the indictment fails to charge essential elements of the offenses. In the other, they
argue that the indictment violates the Constitution’s guarantees of due process and
the equal protection of the laws. Alternatively, Defendants move for a bill of
particulars. For the reasons that follow, the court will deny the motions to dismiss,
but will grant in part and deny in part the motion for a bill of particulars.
FACTUAL BACKGROUND
The indictment alleges two fraudulent schemes, each of which involved a
different Small Business Administration (“SBA”) contracting program. One
scheme involved the 8(a) Business Development Program (“8(a) Program”), and
the other involved the Service-Disabled Veteran Owned Small Business Program
(“SDVOSB Program”). The 8(a) Program’s purpose is “to help socially and
economically disadvantaged entrepreneurs gain access to and succeed in the
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marketplace for federal government contracts.” (Doc. 1, ¶ 11.) Likewise, the
SDVOSB Program aims to provide similar assistance to service-disabled veterans.
(Id. ¶ 33.) Both programs attempt to achieve these purposes through, inter alia,
reserved contracting opportunities for program participants. (Id. ¶¶ 11, 33.) 	In
essence, the indictment alleges that Defendants were ineligible to obtain contracts
through these programs, but fraudulently obtained some anyway.
A. Alleged Fraud Involving the 8(a) Program
Defendants’ alleged fraud involving the 8(a) Program arose out of the
relationship between Defendant Rebecca Davis (“Davis”) and Defendants Scott
Boone (“Boone”), Daniel McGuire (“McGuire”), and Thomas Lauer (“Lauer”).
The latter three were business partners in the construction industry, id. ¶ 8, and
were ineligible to participate in the 8(a) Program. (Id. ¶ 18.) Unlike those three,
Davis and her company Elstner Construction Company, Inc. (“Elstner”) were 8(a)
Program participants. (Id. ¶ 10.) Leveraging Davis’s and Elstner’s status, Boone,
McGuire, and Lauer allegedly conspired with Davis to fraudulently obtain 8(a)
Program set-aside contracts from Letterkenny Army Depot (“Letterkenny”).
1. Letterkenny
Letterkenny was a United States Army facility in Chambersburg,
Pennsylvania. (Id. ¶ 6.) Dating back to 2003, Boone, McGuire, and Lauer had
contracted with Letterkenny and, through this work, developed “a close working
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relationship” with an individual identified in the indictment as Government
Official 1. (Id. ¶ 29.) Government Official 1 was the Chief of the Engineering and
Planning Division in Letterkenny’s Directorate of Public Works, which made him
“responsible for overseeing and managing the real property maintenance and
construction work at Letterkenny.” (Id. ¶ 7.) In general, whenever the Directorate
of Public Works needed work done, Government Official 1 would ask
Letterkenny’s contracting office to issue construction contracts. (Id. ¶ 21.) The
contracting office generally obliged these requests. (Id.)
During Government Official 1’s tenure, Letterkenny issued many 8(a)
Program contracts. (Id. ¶ 17.) These contracts were mostly “non-competitive,
direct-award contracts.” (See id. ¶ 26.) When such contracts were being awarded,
Government Official 1 recommended 8(a) Program participants to Letterkenny’s
contracting office. (Id. ¶ 22.) Letterkenny’s contracting office relied on these
recommendations. (Id. ¶ 27.) In fact, Government Official 1 had “significant input
into when the Letterkenny contracting office issued new construction contracts[,]
the parties to whom those contracts were awarded,” and “the dollar amounts
associated with the contracts.” (Id. ¶¶ 27–28.) Government Official 1’s
relationship with Boone, McGuire, and Lauer began developing as he
recommended that 8(a) Program contracts go to several participants with whom
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Boone, McGuire, and Lauer were affiliated. (Id. ¶ 29.) The value of these contacts
totaled over $40 million. (Id.)
2. Defendants Obtain 8(a) Program Contracts
Boone, McGuire, and Lauer allegedly first began a business relationship
with Davis and Elstner in about 2007. (Id. ¶ 30.) At the time, Davis was allegedly
aware that Boone, McGuire, and Lauer had a history of working with 8(a) Program
participants and Government Official 1. (Id. ¶ 41.) An introductory meeting
between Defendants and Government Official 1 occurred in 2007. (Id.)
Between 2007 and 2009, Boone, McGuire, and Lauer allegedly prepared and
submitted proposals under Elstner’s name for 8(a) Program contracts from
Letterkenny. (Id. ¶ 42.) Government Official 1 was responsible for reviewing
technical aspects of these proposals and recommended Elstner for the contracts “on
the basis of the company’s affiliation with” Boone, McGuire, and Lauer. (Id.
¶¶ 43–44.)
In all, Elstner received five 8(a) Program contracts from Letterkenny for
construction-related services between 2007 and 2009. (Id. ¶ 69.) Three were
worth about $3.5 million each. (Id.) One was worth about $15 million. (Id.) And,
one was worth about $60 million. (Id.) This progressive increase in the value of
contracts awarded to Elstner was allegedly recommended by Government Official
1. (Id. ¶ 51.)
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3. Defendants’ Alleged Violations of 8(a) Program Requirements
What made this conduct fraudulent was that Defendants allegedly violated
8(a) Program rules and regulations in the course of obtaining and performing these
contracts. Specifically, two requirements are at issue.
The first requirement concerns who could control the 8(a) Program company
participant. To become an 8(a) Program participant, Elstner “had to be a small
business that was unconditionally owned and controlled by one or more socially
and economically disadvantaged individuals who were of good character and
citizens of and residing in the United States.” (Id. ¶ 15.) Elstner “had to maintain
its eligibility during its tenure in the Program and had to inform the SBA of any
changes that would adversely affect its Program eligibility.” (Id. ¶ 12.)
Accordingly, Davis submitted, on Elstner’s behalf, annual updates to the SBA that
certified Elstner “met certain requirements of the 8(a) Program, including the
requirement for unconditional control.” (Id. ¶ 16.)
The indictment lays out several ways in which Davis allegedly did not
comply with the 8(a) Program’s “control” requirement. For instance, Davis
allegedly assigned substantial authority over one of the $3.5-million contracts to
Boone, McGuire, and Lauer. (Id. ¶ 54.) This assignment allegedly included the
authority “to prepare proposals and negotiate contracts, issue and manage
subcontracts, supervise construction, negotiate change orders, control and track
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project costs, prepare invoices, prepare and issue payments, and execute all
documents.” (Id.) In connection with this assignment, Davis allegedly pledged
“not [to] interfere with the day-to-day operations of her own contracts.” (Id. ¶ 56
(internal quotation marks omitted).) Another example is that Davis and Lauer
allegedly created a business bank account for Elstner that required “both of their
signatures . . . for each and every check, withdrawal, or transfer.” (Id. ¶ 53.) Thus,
Davis could not use any funds in that account without Lauer’s “express written
approval.” (Id.) Davis allegedly also had another checking account for use on all
projects managed by Boone, McGuire, and Lauer that had a similar dual-signature
requirement. (Id. ¶ 55.)
The second requirement concerned the amount of work on its contacts the
8(a) Program company had to do with its own employees. To obtain an 8(a)
Program contract for general construction work, the “participant had to agree to
perform at least 15% of the cost of the contract with its own employees.” (Id.
¶ 14.) The $60-million contract Elstner obtained had a provision that seemingly
related to a similar 8(a) Program requirement. (See id. ¶ 65.) That provision
required Elstner to “perform on the site, and with its own organization, work
equivalent to at least 10 percent of the total amount of work to be performed under
the contract.” (Id.)
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Defendants allegedly violated these requirements by nominally moving
employees from other companies— including from “favored subcontractors long
utilized by” Boone, McGuire, and Lauer—onto Elstner’s payroll. (Id. ¶ 59.)
Despite this movement, these “employees’ roles remained unchanged.” (Id.) They
did not interact with Davis or Elstner’s existing employees, but rather “continued
to report to the subcontracting companies from which they came.” (Id.)
Government Official 1 allegedly knew of this practice and “understood [it] was a
violation of the rules and purposes of the 8(a) Program, yet . . . continued to assist
[Defendants] in securing” the contracts. (Id. ¶ 58.)
B. Alleged Frauds Involving SDVOSB Program
The alleged fraud involving the SDVOSB Program was executed by Boone,
McGuire, and Lauer using Boone’s company, Bon Secour Management, LLC
(“BSM”). Boone founded BSM around 2006 and certified the company as an
SDVOSB in 2011. (Id. ¶¶ 31–32.) McGuire and Lauer both had roles at BSM.
McGuire “sought out SDVOSB contracting opportunities for” BSM and handled
certain company paperwork. (Id. ¶ 35.) Lauer also sought out SDVOSB
contracting opportunities for BSM and served as the company’s “point of contact .
. . in the U.S. Government’s System for Award Management.” (Id. ¶ 36.)
The alleged SDVOSB Program fraud involved a $5.3-million contract
awarded to BSM in 2013 by the Veterans Affairs Medical Center in Salem,
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Virigina. (See id. ¶¶ 72–73.) Under that contract, BSM agreed to replace the
hospital’s “high voltage distribution system.” (Id. ¶ 72.) In accepting this contract,
BSM had to agree to spend to “at least 15% of the labor costs associated with [the]
contract . . . on [its] own employees.” (See id. ¶ 34.)
BSM allegedly did not follow through. To make it appear falsely that BSM
was complying with its obligations, Boone allegedly hired an electrical
subcontractor and moved employees who worked for that subcontractor onto
BSM’s payroll. (Id. ¶¶ 78–79.) Specifically, Boone placed onto BSM’s payroll “a
longtime superintendent” of the electrical subcontract as well as additional
laborers. (Id. ¶¶ 81–82.) Despite being on BSM’s payroll, these individuals
continued reporting to the personnel at the electrical subcontractor. (Id. ¶¶ 81–82.)
A document submitted by Boone to the U.S. Department of Veterans Affairs
included a list of personnel that BSM intended to work on site. (Id. ¶ 86.) None of
the individuals listed therein had previously worked for BSM. (Id.)
PROCEDURAL H ISTORY
On December 14, 2022, a federal grand jury returned an eight-count
indictment against Defendants. The charges consist of six counts of major fraud
against the United States, in violation of 18 U.S.C. § 1031, and two counts of
conspiracy to commit the same, in violation of 18 U.S.C. § 371. Each Defendant
has pleaded not guilty. (Docs. 16, 25, 27, 36.) On May 14, 2025, Defendants filed
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a motion to dismiss for legal insufficiency, a motion to dismiss under the Due
Process and Equal Protection Clauses, and a motion for a bill of particulars. 1
(Docs. 116, 117, 121.) Briefing occurred over the next several months according
to schedules set by the court. (Docs. 129 & 167.) All three motions became fully
briefed and ripe for resolution on October 29, 2025. (See Docs. 118, 122, 123,
151, 152, 155, 157, 171, 180, 184.) 2
M OTION TO DISMISS FOR L EGAL I NSUFFICIENCY
The court first considers Defendants’ motion to dismiss for legal
insufficiency. This motion requests dismissal of the indictment pursuant to Federal
Rule of Criminal Procedure 12(b)(3)(B) on the basis that it fails to state an offense.
A. Standard of Review
Under Federal Rule of Criminal Procedure 12(b)(3)(B), a defendant may
move to dismiss an indictment for duplicity, multiplicity, lack of specificity,
improper joinder, or failure to state an offense. Fed. R. Crim. P. 12(b)(3)(B). To
state an offense, an indictment must provide “a plain, concise, and definite written
1 Defendants also filed other pre-trial motions that either have been resolved or will be resolved
in due course.
2 On October 29, 2025, the Government filed a notice of supplemental authority, informing the
court of a recent Third Circuit opinion. (Doc. 187.) This notice failed to comply with Local
Rule 7.36 in two respects. First, the notice far exceeds the 100-word limit. Second, the notice
contains arguments. Due to this noncompliance, the court will not consider anything raised in
the Government’s notice other than the citation to the Third Circuit’s opinion. Similarly, the
court will not consider Defendants’ response, Doc. 189, since such responses are not
contemplated by Local Rule 7.36.
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statement of the essential facts constituting the offense charged.” Fed. R. Crim. P.
7(c)(1). The indictment also must provide “the official or customary citation of the
statute, rule, regulation, or other provision of law that the defendant is alleged to
have violated.” Id.
An indictment is sufficient to survive a motion to dismiss for failure to state
an offense if it “(1) contains the elements of the offense intended to be charged, (2)
sufficiently apprises the defendant of what he must be prepared to meet, and (3)
allows the defendant to show with accuracy to what extent he may plead a former
acquittal or conviction in the event of a subsequent prosecution.” United States v.
Fattah, 858 F.3d 801, 814 (3d Cir. 2017) (quoting United States v. Stevenson, 832
F.3d 412, 423 (3d Cir. 2016)). “‘No greater specificity than the statutory language
is required so long as there is sufficient factual orientation’ to permit a defendant to
prepare his defense and invoke double jeopardy.” United States v. Huet, 665 F.3d
588, 595 (3d Cir. 2012) (quoting United States v. Kemp, 500 F.3d 257, 280 (3d Cir.
2007)). Thus, an indictment is generally sufficient where it “informs the defendant
of the statute he is charged with violating, lists the elements of a violation under
the statute, and specifies the time period during which the violations occurred.” Id.
(quoting United States v. Urban, 404 F.3d 754, 771 (3d Cir. 2005)). “In contrast,
if an indictment fails to charge an essential element of the crime, it fails to state an
offense.” Id. (citing United States v. Wander, 601 F.2d 1251, 1259 (3d Cir. 1979)).
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The court reviews the indictment “as a whole,” United States v. Schramm,
75 F.3d 156, 162 (3d Cir. 1996), providing it “a common sense construction.”
United States v. Mattia, 157 F.4th 305, 310 (3d Cir. 2025). Even still, the court
must consider only the facts alleged in the indictment. United States v. Vitillo, 490
F.3d 314, 321 (3d Cir. 2007). A pretrial motion to dismiss is “not a permissible
vehicle for addressing the sufficiency of the government’s evidence.” United
States v. Gillette, 738 F.3d 63, 74 (3d Cir. 2013) (quoting Huet, 665 F.3d at 595).
The court’s review is therefore limited to determining whether, assuming the facts
alleged in the indictment are true, “a jury could find that the defendant committed
the offense for which he was charged.” Huet, 665 F.3d at 596. A district court
should generally uphold an indictment “unless it is so defective that it does not, by
any reasonable construction, charge an offense.” United States v. Willis, 844 F.3d
155, 162 (3d Cir. 2016) (quoting Vitillo, 490 F.3d at 324).
B. Conspiracy Counts
Defendants seek dismissal of the entire indictment, yet make no specific
argument why the conspiracy counts should be dismissed. At best, the court can
infer that Defendants believe the conspiracy counts fail because the Government
failed to properly allege the substantive offense. This argument, if Defendants
actually are making it, is unavailing.
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It has been long settled that “an indictment charging a conspiracy under 18
U.S.C. § 371 need not specifically plead all of the elements of the underlying
substantive offense.” United States v. Williams, 591 F. App’x 78, 87 (3d Cir.
2014); accord United States v. Werme, 939 F.2d 108, 112 (3d Cir. 1991); Wander,
601 F.2d at 1259. Instead, “an indictment need only set forth ‘the agreement and
specific intent to commit an unlawful act, and when required by statute, an overt
act.’” Werme, 939 F.2d at 112 (quoting Wander, 601 F.2d at 1259). Defendants
make no attempt to explain why the indictment fails to satisfy this standard.
Accordingly, the court will not dismiss the conspiracy counts of the indictment.
C. Major-Fraud Counts
Defendants argue that the indictment fails to allege essential elements of
major fraud against the United States. (Doc. 123, p. 18.) 3 Those elements are: “(1)
the defendant knowingly and with the intent to defraud the Government or to
obtain money or property by means of materially false or fraudulent pretenses,
representations, or promises; (2) executed or attempted to execute a scheme with
the intent to defraud the Government; (3) the scheme took place as a part of
acquiring [a contract] with the Government; and (4) the value of the contract was
$1,000,000 or more.” United States v. Whyte, 918 F.3d 339, 350 n.13 (4th Cir.
2019). Defendants’ arguments focus on the first element. Specifically, Defendants
3 For ease of reference, the court uses the page numbers from the CM/ECF header
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contend that the indictment fails to adequately allege that they intended to defraud
the Government by means of material misrepresentations. 4
1. The Indictment Sufficiently Pleads the First Element of Major
Fraud.
As a general matter, the court does not share Defendants’ view. The
indictment explicitly alleges that Defendants executed “a scheme and artifice with
the intent to defraud the United States and to obtain money and property by means
of false and fraudulent pretenses, representations, and promises.” (Doc. 1, ¶¶ 69,
88.) It then goes further and details the factual basis supporting this allegation.
When “taken as a whole, read reasonably and given fair construction,” Schramm,
75 F.3d at 162, the indictment makes clear that Defendants are accused of
concocting schemes to obtain contracts through the 8(a) and SDVOSB Programs
with no intention of complying with those programs’ requirements. The
indictment as a whole notifies Defendants what these allegedly flaunted
requirements were, i.e., the 8(a) Program’s “control” requirement and both
programs’ employee-use requirements. The indictment also describes certain
conduct that allegedly violated these requirements and when that conduct generally
occurred. For instance, the indictment alleges ways in which Davis ceded control
4 In their initial brief, Defendants also argued that the indictment fails to allege a scheme to harm
the property rights of the United States. (Doc. 123, p. 39.) Defendants’ position relied on the
assertion that the federal fraud statutes only covered frauds that cause the victim an economic
loss. The Supreme Court rejected that assertion in Kousisis v. United States, 605 U.S. 114, 129
(2025).
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of Elstner to Boone, McGuire, and Lauer, see, e.g., Doc. 1, ¶¶ 54, 56. So, too, the
indictment describes Defendants’ alleged practice of nominally moving laborers
onto Elstner’s and BSM’s payrolls, respectively, without any sort of change in
those employees’ roles or duties. (See, e.g., id. ¶¶ 57, 59, 81, 82.) The indictment
also strongly suggests the ways Defendants presumably misrepresented that they
were in compliance with these requirements. For example, Davis submitted annual
updates certifying Elstner’s compliance with 8(a) Program rules during the time
Defendants’ were allegedly breaking those rules. (See id. ¶ 16.) So, too, Boone,
Lauer, and McGuire allegedly prepared contract proposals for Elstner, which
presumably contained misrepresentations about the company’s compliance with
Program 8(a) requirements. (See id. ¶ 42.) Given all of this information, the court
cannot conclude the indictment fails to sufficiently plead that Defendants intended
to defraud the Government by means of material misrepresentations.
2. Defendants Have Not Identified a Fatal Flaw with the
Indictment.
Defendants identify what they believe are three fatal defects with the
Indictment’s attempt to plead that they made material misrepresentations. The
court addresses each in turn.
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i. 	Failure to Explicitly Allege that Elstner’s Annual
Certifications were False
Defendants first fault the indictment for not explicitly alleging that Elstner’s
annual certifications were false. (Doc. 123, pp. 37–39.) They believe that by
failing to do so, the indictment is wrongfully attempting to plead an essential
element of the offense by implication. (Id.) But, the indictment does no such
thing. As noted above, the indictment explicitly charges that Defendants made
false representations. (Doc. 1, ¶¶ 69, 88.) These allegations substantially track the
statutory language. Compare id., with 18 U.S.C. § 1031. Defendants make no
argument why this court should ignore the ordinary rule that “[a]n indictment that
tracks the language of the underlying statute generally suffices.” Stevenson, 832
F.3d at 424 (quoting United States v. Troy, 618 F.3d 27, 34 (1st Cir. 2010)).
Defendants’ argument in reality does not go to whether the indictment
alleges an essential element of the offense, but to whether the indictment contains a
sufficient quantity of supporting factual allegations. This is laid bare by their
insistence that the indictment should contain the contents of Elstner’s
certifications. (See Doc. 123, p. 38.) Yet, our legal system has long moved past
criminal pleading rules that require detailed allegations. United States v. Resendiz-
Ponce, 549 U.S. 102, 110 (2007). As noted above, the indictment explicitly
alleges that Defendants made false representations and provides enough factual
context to enable Defendants to infer what those misrepresentations were.
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Therefore, the indictment’s failure to explicitly allege that Elstner’s certifications
were false is, at most, a technical deficiency, which is not a reason to dismiss the
major-fraud counts. See Schramm, 75 F.3d at 163 (cautioning that “courts must
ignore minor and technical deficiencies in an indictment”).
ii. Failure to Define The Regulatory Concept of “Control”
Next, Defendants believe that the indictment’s failure to define SBA’s
regulatory concept of “control” requires its dismissal. (Doc. 123, p. 38.)
Defendants’ argument relies primarily on two cases, United States v. Harra, 985
F.3d 196 (3d Cir. 2021), and Russell v. United States, 369 U.S. 749 (1962). In
Harra, the Third Circuit held that when guilt depends on the falsity of statements
made in response to an objectively ambiguous reporting requirement, the
Government must prove at trial that the Defendants’ statements were false under
every objectively reasonable interpretation of the requirement. 985 F.3d at 215. In
Russell, the Supreme Court held that an indictment charging the defendants with
refusing to testify before Congress had to identify what the grand jury found was
the subject under congressional inquiry. 369 U.S. at 771. The Russell Court
reasoned that the subject under inquiry was “a specific identification of fact” upon
which “guilt depend[ed] so crucially.” Id. at 764.
Under Defendants’ theory, the SBA’s “control” requirement is an
ambiguous regulatory requirement pursuant to Harra and, therefore, the definition
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of “control” relied upon by the grand jury is a “specific identification of fact” upon
which guilt depends pursuant to Russell. (Doc. 123, pp. 38–39.) The indictment’s
failure to supply the definition, Defendants’ theory continues, leaves them
susceptible to being convicted under a definition of “control” that is different than
the one presented to the grand jury, thus undermining their Sixth Amendment
rights. (See Doc. 123, pp. 24–25.)
Defendants’ theory is unpersuasive, because Harra and Russell are readily
distinguishable. Harra’s ruling came in a post-trial context and considered what
the Government must prove at trial, not what the indictment must plead. Contrary
to what Defendants seemingly contend, see Doc. 157, p. 11, different standards
govern what the Government must plead versus what it must prove at trial. After
all, an indictment need not lay out the evidentiary details of the Government’s
case. United States v. Clark, No. 2:24-cr-246, 2025 WL 2826004, at *1 (W.D. Pa.
Oct. 3, 2025); see also United States v. Rafoi, 60 F.4th 982, 994 (5th Cir. 2023)
(quoting United States v. Gordon, 780 F.2d 1165, 1172 (5th Cir. 1986)) (“[A]
defendant's constitutional right to know the offense with which he is charged must
be distinguished from a defendant's need to know the evidentiary details
establishing the facts of such offense, which can be provided through a motion for
bill of particulars.”).
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Defendants are correct that a motion for acquittal considers whether the
Government has proven beyond a reasonable doubt the essential elements of the
crime. United States v. Tyler, 956 F.3d 116, 122 (3d Cir. 2020). So, a ruling on a
motion for acquittal could shed light on what the essential elements of a crime are.
But, whether the indictment has sufficiently pleaded an essential element is a
distinct question from whether the trial evidence has proven that essential element.
While Harra may require the Government at trial to prove Defendants’ alleged
misrepresentations were false under every reasonable interpretation of SBA
regulations, it does not require the Government to explain how it plans to do so in
the indictment. To hold otherwise would require the Government to meet a
pleading standard that simply is not contemplated by Rule 7(c)(1). See Resendiz-
Ponce, 549 U.S. at 110 (explaining that “[w]hile detailed allegations might well
have been required under common-law pleading rules . . . they surely are not
contemplated by Rule 7(c)(1)”).
Russell is similarly inapposite. There, the indictment’s failure to define the
subject under congressional inquiry left “the chief issue” of the entire prosecution
“undefined” and, thus, failed to inform defendants of the offenses against them.
Russell, 369 U.S. at 766. This failure to inform was especially evident in one of
the consolidated cases, where the defendant had never been informed of “what
subject the subcommittee was investigating” and “at every stage in the ensuing
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criminal proceeding . . . was met with a different theory, or by no theory at all, as
to what the topic had been.” Id. at 767–68. In fact, the Government’s articulation
of the subject under inquiry at trial was different than the one it presented to the
Supreme Court.5 Id. at 767. This variation highlighted that the indictment’s flaw
could lead the defendant to “be convicted on the basis of facts not found by, and
perhaps not even presented to, the grand jury which indicted him.” Id. at 770.
The flaw in the Russell indictments is different from the flaw Defendants see
in the present indictment. Russell dealt with the omission of a fact; this case
involves the omission of a legal definition. The Supreme Court addressed the
difference between the two in Hamling v. United States, 418 U.S. 87, 117–19
(1974). There, the Court found that an indictment’s failure to plead the definitional
components of “obscenity” did not render it constitutionally deficient. Id. at 118–
19. The Court recognized that Russell did not compel a different outcome. See id.
at 118.
Thus, Hamling made clear that Russell does not disturb two general rules.
First, an indictment may use a legal term of art so long as “it is a term sufficiently
definite in legal meaning to give a defendant notice of the charge against him.” Id.
5 At trial, the Government stated that the subject was “Communist activities generally.” Russell,
369 U.S. at 767. At the Supreme Court, the Government stated that the subject was “Communist
activity in news media.” Id.
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at 118; accord United States v. Aliperti, 867 F. Supp. 142, 145 (E.D.N.Y. 1994). 6
Second, “an indictment that charges a legal term of art ‘sufficiently charges the
component parts of the term.’” United States v. Cefaratti, 221 F.3d 502, 507 (3d
Cir. 2000) (quoting United States v. Wicks, 187 F.3d 426, 429 (4th Cir. 1999));
accord Hamling, 418 U.S. at 119.
Defendants attempt to save their theory by arguing that the regulatory
concept of “control” does not have a sufficiently definite meaning. Indeed,
Defendants go so far as to state, without citing any supporting authority, that
“‘control’ has no fixed meaning.” (Doc. 157, p. 23.) Defendants’ position is
belied by their prior acknowledgements. In a previous filing, they recognized that
13 C.F.R. § 124.106 governs what constitutes “control” for the purposes of
eligibility for the 8(a) Program and appreciated that this “regulation[] provide[s]
guidance on evaluating . . . control.” (Doc. 90, p. 30.)
A closer look at 13 C.F.R. § 124.106 reveals that the meaning of “control” is
not nearly as imperceptible as Defendants make it seem. The court’s own analysis
reveals that § 124.106’s core requirements have remained constant since at least
2004. An 8(a) Program participant has to “be managed on a full-time basis by one
6 More generally, an indictment may use words with special or technical meanings so long as
those meanings are well known. United States v. Quong, 303 F.2d 499, 503 (6th Cir. 1962); 1
Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 126 (5th ed. Sept.
2025 Update); see Mattia, 157 F.4th at 312 (finding that indictment may use a term whose
meaning could change depending on context when term “apprise[d]” the defendant “of what he
needs to meet at trial”).
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or more disadvantaged individuals who possess requisite management
capabilities.” 13 C.F.R. § 124.106(a)(1). This includes the corollary requirements
that “a disadvantaged full-time manager must hold the [participant’s] highest
officer position” and that “[o]ne or more disadvantaged individuals who manage
the . . . Participant generally must devote full-time to the business.” 13 C.F.R.
§ 124.106(a)(2), (3). So, too, “[o]ne or more disadvantaged individuals must
control the Board of Directors of a corporate . . . Participant.” 13 C.F.R.
§ 124.106(d). The regulation also spells out exactly when the “SBA will deem
disadvantaged individuals to control the Board of Directors.” 13 C.F.R.
§ 124.106(d)(1). Defendants fail to reconcile how “control” can have no fixed
meaning, yet be governed by such a detailed regulation. Accordingly, the court
determines that “control” has sufficiently definite legal meaning such that the
indictment did not need to define it to pass constitutional muster.
iii. Reliance on Purported Misrepresentations Implicit in
Conduct
Finally, Defendants fault the indictment for not explicitly alleging that they
made false representations about their compliance with SBA’s employee-use
requirements. In Defendants’ mind, the indictment merely alleges that they created
the false impression of compliance with those requirements. (Doc. 123, pp. 34–
36.) Defendants claim such allegations are insufficient under United States v.
Frankel, 721 F.2d 917 (3d Cir. 1983).
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In Frankel, the defendant was charged with mail fraud and wire fraud “for
operating a check kiting scheme.” Id. at 917. 	The defendant wrote checks from
two accounts to another, knowing that the paying accounts did not have sufficient
funds. Id. at 917–18. The defendant then would use the artificial balance created
to pay off his creditors. Id. at 918. The Frankel indictment alleged that the
defendant made false representations in executing the alleged fraud. Id. at 917.
The only misrepresentation the charges relied upon was that adequate funds existed
in the defendant’s account, which was “implicit in the presentation of the checks.”
Id. at 919. Applying Supreme Court precedent, the Third Circuit held that this
purported misrepresentation could not be the basis for the charged crimes, because
presenting a check for deposit “is not a factual assertion at all, and therefore cannot
be characterized as ‘true or false.’” Id. (quoting Williams v. United States, 458
U.S. 279, 284 (1982)). According to Defendants here, the instant indictment runs
afoul of Frankel’s holding because it does nothing more than allege a
misrepresentation that is implicit in conduct. (Doc. 123, p. 35.) The Government
offers no retort.
Nevertheless, Frankel is distinguishable from the present case. A common-
sense reading of the indictment suggests that the Government’s case relies on
actual misrepresentations, not purported misrepresentations implicit in conduct.
With respect to the 8(a) Program scheme, the indictment suggests Davis provided
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false annual updates that Elstner was complying with 8(a) Program rules and
requirements. (See Doc. 1, ¶ 16.) It also suggests that Boone, McGuire, and Davis
allegedly prepared bids for 8(a) Program contracts on Elstner’s behalf, id. ¶ 42,
which presumably involved some sort of false representation that Elstner was
eligible for 8(a) Program contracts. With respect to the SDVOSB Program, the
indictment suggests Boone, McGuire and/or Lauer promised that BSM would
abide by the SDVOSB employee-use requirement in securing the contract in
Viriginia. (See id. ¶¶ 32–36, 79.) These are all actual misrepresentations. Given
this, Defendants reliance on Frankel is unpersuasive.
D. Conclusion
The indictment satisfies its constitutional function of “fairly inform[ing]”
Defendants of the crimes “against which [they] must defend” as well as
“enabl[ing] [them] to plead an acquittal or conviction in bar of future prosecutions
for the same offense.” Resendiz-Ponce, 549 U.S. at 108 (quoting Hamling, 418
U.S. at 117). Accordingly, the court will deny Defendants’ motion to dismiss for
legal insufficiency.
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M OTION TO DISMISS UNDER D UE PROCESS AND E QUAL P ROTECTION C LAUSES
The court next considers Defendants’ other motion to dismiss. (Doc. 121.)
This motion asks the court to dismiss the counts related to the 8(a) Program on the
ground that it violates Defendants’ rights under the Due Process and Equal
Protection Clauses. 7 Defendants’ argument proceeds in three parts. First, they
argue that the 8(a) Program’s eligibility rules during the relevant time were
unconstitutional, because the program used race-based presumptions to award
contracts. (Doc. 171, pp. 5–7.) They then contend this unconstitutionality has two
consequences. One, the Government cannot as a matter of law establish the
materiality element of major fraud. (Id. at 9–14.) Two, the Government’s theory
of the case is so “intertwined” with the unconstitutionality of the 8(a) Program that
the present prosecution is nothing more than an attempt to enforce unconstitutional
racial set-asides against Defendants, which violates their rights under the Due
Process and Equal Protection Clauses. (Id. at 14–16.)
A. Unconstitutionality of 8(a) Program
The court need not consider or detail the minutiae of Defendants’ arguments
as to why the 8(a) Program’s eligibility rules were unconstitutional. In short,
Defendants argue that the case Ultima Services Corp. v. U.S. Department of
7 Although styled as a “motion to dismiss the indictment,” the motion makes no argument why
the court should dismiss the counts related to the SDVOSB Program.
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Agriculture, 683 F. Supp. 3d 745 (E.D. Tenn. 2023) definitively settled the
question. (See Doc. 122, pp. 2–5.) This was evident, according to Defendants, by
the fact that the Government never challenged Ultima and changed the eligibility
rules to conform with the decision. (See id. at 2.) The Government offers no
defense of the prior eligibility rules. Accordingly, the court will assume, without
deciding, that the 8(a) Program’s then-effective eligibility rules were
unconstitutional.
B. Materiality
Before contemplating the interplay between this assumed unconstitutionality
and materiality, the court first looks at whether the indictment has sufficiently
pleaded materiality in general. A federal fraud conviction requires proof of a
material falsehood. Cf. Neder v. United States, 527 U.S. 1, 25 (1999)
(“[M]ateriality of falsehood is an element of the federal mail fraud, wire fraud, and
bank fraud statutes”). An indictment sufficiently alleges this element “so long as
the facts alleged in the indictment warrant an inference” of materiality. United
States v. Saybolt, 577 F.3d 195, 205 (3d Cir. 2009) (quoting United States v.
Creech, 408 F.3d 264, 269 (5th Cir. 2005)).
“The materiality standard is demanding,” Universal Health Servs., Inc. v.
United States ex rel. Escobar, 579 U.S. 176, 194 (2016), and “substantially
narrows the universe of actionable misrepresentations.” Kousisis, 605 U.S. at 135.
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Similar to “a but-for standard, materiality asks whether the misrepresentation
‘constitut[ed] an inducement or motive’ to enter into a transaction.” Id. at 131
(quoting Smith v. Richards, 38 U.S. (13 Pet.) 26, 39 (1839)); accord Neder, 527
U.S. at 22–23 (quoting 1 J. Story, Commentaries on Equity Jurisprudence § 195
(10th ed. 1870)) (“In the first place, the misrepresentation must be of something
material, constituting an inducement or motive to the act or omission of the other
party.”). The analysis “look[s] to the effect on the likely or actual behavior of the
recipient of the alleged misrepresentation.” Universal Health, 579 U.S. at 193
(quoting 26 R. Lord, Williston on Contracts § 69:12, p. 549 (4th ed. 2003)); accord
Kousisis, 605 U.S. at 131.
Defendants argue that materiality also requires that a misrepresentation go to
the “essence of the bargain.” (Doc.171, p. 9.) To Defendants, a misrepresentation
is material only if it relates to the very fundamental basis of the bargain. (Doc.
123, pp. 19–20.) Defendants contend that the Third Circuit adopted this
“heightened standard” in its opinion in United States v. Kousisis, 82 F.4th 230 (3d
Cir. 2023), aff’d, 605 U.S. 114 (2025). (Doc. 123, p. 19–20.) The Government
offers no position on this issue.
Even assuming arguendo that the Third Circuit in Kousisis adopted an
essence-of-the-bargain standard, that case supports the conclusion that the present
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indictment meets the standard. 8 In Kousisis, the defendants were indicted for
defrauding the U.S. Department of Transportation’s disadvantaged business
enterprise program. 82 F.4th at 234–35. They had submitted contract proposals in
which they committed, pursuant to the program’s regulations, to contracting with a
disadvantaged business enterprise for a specific percentage of the contract amount.
Id. at 234. The contracts at issue provided that failure to comply with these
obligations would be a material breach of the contracts. Id. Nevertheless, the
defendants disregarded these obligations and submitted false documentation stating
they were in compliance. Id. at 235. The Third Circuit determined that the
evidence on these facts presented at trial supported a federal fraud conviction. Id.
at 241. When referencing materiality, the Third Circuit found that participation of
disadvantaged business enterprises was “an essential component of the contract”
and had there been none, “the nature of the [p]arties’ bargain would have been
different.” Id.
Defendants latch onto this language to argue that the Third Circuit adopted
an essence-of-the-bargain test, but make no attempt to distinguish the underlying
facts. Ultimately, the misrepresentations in both Kousisis and the present case
concern compliance with eligibility requirements for set-aside contracts. The
8 To be clear, the court reserves ruling on whether the essence-of-the-bargain standard governs.
Nothing in this opinion should preclude the parties from making further arguments on this issue.
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defendants in Kousisis falsely promised to follow such requirements to induce a
transaction. See id. at 234. Defendants allegedly did the same here. If the
misrepresentations in Kousisis went to the nature of the bargain, the court sees no
reasons why Defendants’ misrepresentations do not. Accordingly, the court finds
that the indictment alleges sufficient facts to warrant an inference that Defendants’
misrepresentations concerning their eligibility for the set-aside contracts were
material to the transactions involving the contracts. 9
That conclusion, of course, does not end the court’s inquiry. Defendants
contend that the unconstitutionality of the 8(a) Program’s prior eligibility
requirements forecloses any finding of materiality as a matter of law. Those
requirements were not, however, determined to be unconstitutional at the time
Defendants’ alleged fraud was occurring. The Ultima court found the
requirements unconstitutional in 2023. Therefore, the issue the court must address
is whether Defendants’ alleged misrepresentations ceased to be material after
Ultima’s ruling. Fortunately, the Supreme Court settled that question long ago.
In United States v. Kapp, defendants were charged with “conspiracy to
defraud the United States by furnishing false information and making false
9 Defendants rely heavily on Justice Thomas’s concurring opinion in Kousisis, 605 U.S. at 135–
46 (Thomas, J. concurring), which expressed doubt that provisions requiring petitioners to
comply with regulations governing the disadvantaged business enterprise program were material
under the essence-of-the-bargain test. Without commenting on its merits, Justice Thomas’s
concurring opinion is not binding on this court, whereas the Third Circuit’s opinion is.
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statements to the Secretary of Agriculture.” 302 U.S. 214, 215 (1937). The object
of the fraud was “to secure benefit payments under the Agricultural Adjustment
Act of May 12, 1933.” Id. The defendants secured such payments by allegedly
lying about who were the producers of hogs that the defendants sold to the
Government. Id. The defendants argued that the indictment was invalid due to the
fact that the Supreme Court had previously invalidated the relevant provisions of
the Agricultural Adjustment Act. Id. The district court agreed. Id. at 216. It ruled
that the defendants’ misrepresentations “cease[d] to be a material fact,” since
relevant provisions of the statute were void. Id.
The Supreme Court, however, reversed. Id. at 218. The Court explained,
“Congress was entitled to protect the government against those who would swindle
it regardless of questions of constitutional authority as to the operations that the
government is conducting.” Id. Otherwise, “[i]t might as well be said that one
could embezzle moneys in the United States Treasury with impunity if it turns out
that they were collected in the course of invalid transactions.” Id. at 217. The
Supreme Court was as clear as can be: A material misrepresentation made pursuant
to a statute or regulation does not cease to be material when that statute or
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regulation is later found to be unconstitutional. Id. at 218. That principle applies
with equal force here. 10
C. Due Process and Equal Protection Considerations
What is left of Defendants’ argument is the contention that this prosecution
effectively enforces unconstitutional race-based eligibility rules against Defendants
in violation of the Due Process and Equal Protection. As Defendants see it, there is
no constitutional difference between criminally punishing them for accessing the
8(a) Program contracts and preferentially allocating the contracts on the basis of
race. (Doc. 184, p. 7.) Throughout their briefing, Defendants use the language of
“intertwinement.” They argue, “a prosecution theory that is ‘intertwined’ with a
constitutional violation requires dismissal.” (Doc. 184, p. 6.) Defendants do not,
however, adequately explain how this intertwinement theory applies in a
prosecution for fraud.
Defendants cite Texas v. Johnson, 491 U.S. 397 (1989), as a paradigmatic
example of when the intertwinement of a prosecution and unconstitutionality
requires dismissal. (Doc. 184, p. 6.) But, Johnson deals with a wholly distinct
situation. That case involved a prosecution for desecrating the American flag,
which the Supreme Court determined was constitutionally protected activity. 491
10 Defendants contend that Kapp cannot speak to what the essence-of-the-bargain standard
requires because that case involved no bargained-for exchange. Defendants are wrong. The
defendants in Kapp sold “hogs to the government at premium prices through
misrepresentations.” 302 U.S. at 215.
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U.S. at 399. The activity giving rise to the charges was protected; thus, the
initiation of the prosecution itself was a violation of the defendant’s constitutional
rights. Johnson simply supports the obvious proposition that an individual may not
be prosecuted for engaging in protected activity. It does not speak to the propriety
of prosecuting individuals for engaging in fraud—an indisputably unprotected
activity, United States v. Alvarez, 567 U.S. 709, 723 (2012) (plurality opinion)—
when doing so might incidentally implicate constitutional protections.
Cases that do speak to this issue, however, are Bryson v. United States, 396
U.S. 64 (1969) and Dennis v. United States, 384 U.S. 855 (1966). Both cases
involved a then-present provision in the National Labor Relations Act—referred to
as Section 9(h)—which stipulated that labor unions could not secure certain NLRB
services unless each officer of the union and its parent organization submitted
affidavits affirming that they were not a member of the Communist Party. Dennis,
384 U.S. at 857. In both cases, the defendants were charged with falsely denying
their Communist affiliation in affidavits submitted to the NLRB. Bryson, 396 U.S.
at 65; Dennis, 384 U.S. at 857. Both sets of defendants sought to have the
indictments dismissed on the grounds that Section 9(h) violated their constitutional
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rights.11 Bryson, 396 U.S. at 67–68; Dennis, 384 U.S. at 864–65. The Dennis
court articulated the following “governing principle”:
[A] claim of unconstitutionality will not be heard to excuse a voluntary,
deliberate and calculated course of fraud and deceit. 	One who elects
such a course as a means of self-help may not escape the consequences
by urging that his conduct be excused because the statute which he
sought to evade is unconstitutional.
Id. at 867. The Bryson court found this principle equally applicable to the facts
presented therein. 396 U.S. at 68. The plain lesson of these cases is that the
constitution offers no respite to those who fraudulently circumvent the law.
Defendants claim Bryson and Dennis are distinguishable. They contend that
“the prosecution theories” in those cases “were independent of the underlying
constitutional violation.” (Doc. 184, p. 7.) As opposed to here, according to
Defendants, where the prosecution theory is “intertwined” with the constitutional
violation. (Id.) Far from distinguishing the present case, Defendants’ arguments
echo those made in Dennis. Those petitioners argued that their case was distinct
from cases like Kapp because their constitutional challenge went “to the propriety
11 Prior to Dennis, the Supreme Court upheld the constitutionality of Section 9(h) in American
Communications Ass’n v. Douds, 339 U.S. 382 (1950). Dennis, 384 U.S. at 864–65. Congress
then replaced Section 9(h) with a provision that “made it a crime for a member of the
Communist Party to hold office or any other substantial employment in a labor union.” Id. at
864. The Supreme Court struck the new provision down as a bill of attainder in United States v.
Brown, 381 U.S. 437 (1965). Dennis, 384 U.S. at 864. Both the Dennis and Bryson petitioners
argued that Brown had effectively overruled Doud. Id. at 846–65; see Bryson, 396 U.S. at 66.
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of the very question—Communist Party membership and affiliation— which
petitioners are accused of answering falsely.” Dennis, 384 U.S. at 867. The Court
found “this distinction as without force” and recognized that prosecuting fraud is
not the same as enforcing a “statute claimed to be unconstitutional.” Id.
This fundamental principle is ultimately what reveals the defect in
Defendants’ conception of this case. By prosecting Defendants’ alleged fraud, the
Government is not attempting to enforce the 8(a) Program’s prior eligibility rules.
To hold otherwise, the court would have to turn a blind eye to Dennis and Bryson.
If Defendants believed that those rules violated their constitutional rights, they
could have challenged them many years ago. They cannot avoid prosecution for
fraudulently violating these rules by belatedly challenging their constitutionality.
D. Conclusion
Defendants have failed to show that the unconstitutionality of the 8(a)
Program’s prior eligibility rules require the dismissal of this case. Accordingly,
the court will deny their motion to dismiss the indictment under the Due Process
and Equal Protection Clauses.
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M OTION FOR B ILL OF PARTICULARS
In the alternative, Defendants move for a bill of particulars. (Doc. 117.)
While the indictment satisfies Rule 7(c)(1) and fulfills its constitutional function,
the necessity of a bill of particulars is a separate question. See United States v.
Tranquillo, 606 F. Supp. 2d 370, 382 (S.D.N.Y. 2009) (recognizing that “[a]n
indictment may fulfill the requirements of [Rule] 7(c)(1) but nonetheless may
provide insufficient information to permit the preparation of an adequate defense”).
Upon consideration of the question, the court determines that a bill of particulars is
necessary in this case. Thus, the court will grant in part and deny in part
Defendants’ motion.
A. Standard of Review
Federal Rule of Criminal Procedure 7(f) gives courts the power to “direct the
government to file a bill of particulars.” Fed. R. Crim. P. 7(f). “A bill of
particulars is a ‘formal, detailed statement of the claims or charges brought by . . .
a prosecutor.” Urban, 404 F.3d at 771 (quoting Black’s Law Dictionary 177 (8th
ed. 2004)). Its purpose is “to inform the defendant of the nature of the charges
brought against him, to adequately prepare his defense, to avoid surprise during the
trial and to protect him against a second prosecution for an inadequately described
offense.” Id. (quoting United States v. Addonizio, 451 F.2d 49, 63–64 (3d Cir.
1971)).
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The decision whether to require a bill of particulars has long been committed
to the trial court’s discretion. Will v. United States, 389 U.S. 90, 98–99 (1967);
Addonizio, 451 F.2d at 64. In general, courts should grant a motion for a bill of
particulars “whenever an indictment's failure to provide factual or legal
information significantly impairs the defendant's ability to prepare his defense or is
likely to lead to prejudicial surprise at trial.” United States v. Rosa, 891 F.2d 1063,
1066 (3d Cir. 1989); accord Urban, 404 F.3d at 771–72. This standard calls for
courts to consider “matter[s] of degree” and cannot be reduced to “definite rules.”
Addonizio, 451 F.2d at 64 (quoting United States v. Russo, 260 F.2d 849, 850 (2d
Cir. 1958)).
Nevertheless, a bill of particulars is not a discovery tool intended to “provide
the defendant with the fruits of the government’s investigation.” United States v.
Smith, 776 F.2d 1104, 1111 (3d Cir. 1985); accord Addonizio, 451 F.2d at 64;
United States v. Tedesco, 441 F. Supp. 1336, 1343 (M.D. Pa. 1977) (noting that a
bill of particulars is not “a means of compelling disclosure of every detail of the
preparation and theory of the Government’s case.”). Instead, “it is intended to give
the defendant only that minimum amount of information necessary to permit the
defendant to conduct his own investigation.” Smith, 776 F.2d at 1111.
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B. Defendants’ Requests
Defendants seek a bill of particulars in order to compel the Government to
identify the following: (1) the specific misrepresentations by which they executed
the alleged fraudulent schemes and the factual basis for the materiality of those
misrepresentations; (2) the rules and regulations of the 8(a) and SDVOSB
Programs that they violated; (3) the identities of unnamed conspirators and/or
aiders and abettors; and (4) the factual basis for the alleged attempt charge. (Doc.
118, p. 5.) The court considers each in turn.
1. Specific Misrepresentations and Their Materiality
Defendants contend that the Government should identify the specific
material misrepresentations that are the basis for the charges here. (Doc. 118, pp.
6–10.) Otherwise, Defendants argue that they suspectable to prejudicial surprise at
trial. (Id. at 6.) The Government counters that the indictment itself and the
discovery given to Defendants provide them sufficient information to discern the
material misrepresentations the Government intends to prove. (Doc. 151, p. 27–
31.)
The court starts by noting that the indictment, far from being a paragon of
clarity, relies heavily on implication. For instance, as noted above, the indictment
does not specifically allege that any of Elstner’s annual updates contained false
statements, let alone identify what those misstatements were. (See Doc. 1, ¶ 16.)
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The reader is left to infer as much from the rest of the indictment. More generally,
the indictment does not explicitly identify any specific material misrepresentation
that any Defendant made to a government official. The indictment leaves
Defendants—and the court, for that matter—guessing as to what specific
misrepresentations the Government will seek to prove at trial. To be clear, the
indictment provides enough information to put Defendants on notice that they are
charged with making misrepresentations about their eligibility for contracts
through the 8(a) and SDVOSB Programs. But, it does not provide enough
information to protect Defendants from surprise at trial.
The alleged criminal conduct in this case spanned sixteen years, Doc. 1,
¶¶ 39, 77, and involved multi-year-long contractual relationships likely involving,
as Defendants note, thousands of representations. (Doc. 155, p. 3.) It is
unreasonable to expect Defendants to guess which of these they will need to
defend against at trial, especially since “the government knows precisely the
statements on which it intends to rely and can easily provide the information.”
United States v. Trie, 21 F. Supp. 2d 7, 21 (D.D.C. 1998). Without further clarity,
“the burden of proof impermissibly may shift,” in effect, to Defendants to prove all
of their representations were not fraudulent. United States v. Rinsch, No. 25-cr-85,
2025 WL 2972226, at *9 (S.D.N.Y. Oct. 22, 2025) (quoting United States v. Vaid,
No. 16-cr-763, 2017 WL 3891695, at *11 (S.D.N.Y. Sept. 5, 2017)).
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The Government’s production of discovery does not obviate the issue. In
many cases, “access to discovery . . . weakens the case for a bill of particulars.”
Urban, 404 F.3d at 772. But, that does not mean “disclosure . . . of ‘mountains of
documents’ is . . . an adequate substitute for a bill of particulars when the
disclosure does not provide guidance regarding what the government would prove
at trial.” United States v. Kemp, No. 04-cr-370, 2004 WL 2757867, at *8 (E.D. Pa.
Dec. 2, 2004); accord United States v. Bortnovsky, 820 F.2d 572, 575 (2d Cir.
1987) (finding district court erred in not granting motion for bill of particulars
when the Government provided “mountains of documents to defense counsel who
were left unguided as to which documents would be proven falsified”); United
States v. Holmes, No. 5:18-cr-00258, 2020 WL 666563, at *9 (N.D. Cal. Feb. 11,
2020) (finding a bill of particulars warranted since the “universe of potential
misrepresentations [was] vast” and the discovery in th[e] case [was] immense”).
Here, Defendants report that discovery provided by the Government consists
of over 250,000 documents that cover a 20-year period. (Doc. 118, p. 8.) Most of
the documents contain multiple pages and some even contain over 1,000 pages.
(Id.) Providing such “a needle in a haystack is akin to not providing . . . a needle at
all.” United States v. Khalil, No. 22-cr-20200, 2024 WL 3160668, at *4 (E.D.
Mich. June 25, 2024). Accordingly, a bill of particulars is necessary to apprise
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Defendants of the affirmative misrepresentations and/or material omissions that the
Government intends to prove at trial. 12
Defendants also want the Government to explain why their
misrepresentations are material. (Doc. 118, pp. 6–7.) But, they fail to explain why
such explanation is necessary for them to prepare for trial. 	As noted above, the
indictment provides sufficient facts to warrant an inference that Defendants made
misrepresentations about their compliance with SBA’s control requirement and
employee-use requirements, which in turn allegedly induced the Government into
awarding them the set-aside contracts. Defendants have failed to explain why
more information concerning materiality is needed. Thus, the Government need
not provide that information in a bill of particulars.
2. The Regulations and Rules Defendants Allegedly Violated
Defendants also argue the bill of particulars must identify the specific
regulations that the Defendants allegedly violated. They believe the indictment’s
failure to do so “significantly impairs” their ability to prepare for trial. (Doc. 118,
p. 11.) For instance, Defendants claim that the indictment’s use of the phrase
“unconditional control” creates ambiguity as to which 8(a) Program rule they
violated, because 8(a) program regulations do not require “unconditional control.”
12 The indictment does not clearly indicate that the Government intends to prove material
omissions. But, the Government’s briefing suggests otherwise. (Doc. 180, p. 14 n.5.)
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(Doc. 155, pp. 5–6.) Moreover, Defendants claim they are unsure as to which of
multiple regulations regarding the employee-use requirements the Government will
rely upon in this case. (Id. at 6–9.) The Government responds that the
indictment’s allegations plus the discovery provided to Defendants puts them on
notice of the laws and regulations at issue.
The Government’s response is unconvincing. The indictment does not
identify any SBA rule or regulation underpinning the Government’s case. Instead,
the indictment merely uses generalities, such as “the rules and purpose of the 8(a)
Program.” (Doc. 1, ¶ 58.) The Government is right that Defendants are aware of
the rules and regulations that seemingly are at issue in this case. Indeed, they
identify several regulations in their briefing on the instant motion, Doc. 155, pp. 5–
9, and in previous filings, Doc. 90, pp. 30–32. Nevertheless, Defendants’ general
awareness of SBA rules and regulations does not excuse the Government from
clearly informing them of those that will be central to this case. The general
allusion to regulations and rules in the indictment is not sufficient when so many
rules and regulations govern the 8(a) and SDVOSB Programs.
Khalil is instructive. In that matter, the defendants were charged with
healthcare-related frauds. Khalil, 2024 WL 3160668, at *1. The indictment
alleged, in one count, that defendants fraudulently “impede[d] Medicare
administration and oversight,” yet did “not identify any specific violation of a rule
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or regulation.” Id. at *3. In another count, it alleged that Defendants had failed to
comply with obligations they had pursuant to Medicare regulations, yet did not
identify the source of those obligations. Id. The most the indictment did was
generally cite to “Medicare guidance,” which “encompass[es] nearly forty chapters
and thousands of pages.” Id. at *4. The indictment’s shortcomings led the Khalil
court to order the Government to provide a bill of particulars that identified “what
law, rule, regulation, or other authority it will claim establishes or bears upon
Defendants’ culpability under [the two counts].” Id.
The indictment here similarly alludes to violations of regulations, yet fails to
identify them. Given the complexity of this fraud case and the regulatory regime
involved, Defendants are entitled to know what rules and regulations are relied
upon by the Government. 13
3. Unindicted Coconspirators and Aiders and Abettors
The indictment alleges in the conspiracy counts that Defendants “conspire[d]
. . . together and with other persons both known and unknown to the Grand Jury.”
(Doc. 1, ¶¶ 39, 76.) Similarly, the indictment alleges in the substantive counts that
13 In passing, Defendants suggest that the Government should not only identify the rules and
regulations Defendants allegedly violated, but also the Government’s interpretation of them.
That request seeks “the legal theories upon which [the Government] intends to rely at trial.”
United States v. Delle Donna, 552 F. Supp. 2d 475, 498 (D.N.J. 2008) (quoting United States v.
Burgin, 621 F.2d 1352, 1359 (5th Cir. 1980)). Such a request is outside the proper purview of a
bill of particulars. Id.
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Defendants “aided and abetted each other and other persons both known and
unknown to the Grand Jury.” (Id. 69, 88.) Defendants argue they are entitled to
learn the identities of these unnamed individuals.
Courts are “highly reluctant to require a bill of particulars when defendants
have asked for specific identities of coconspirators or others allegedly involved.”
United States v. Sampson, No. 4:11-cr-155, 2012 WL 214707, at *2 (M.D. Pa. Jan.
24, 2012) (quoting United States v. Coffey, 361 F. Supp. 2d 102, 122 (E.D.N.Y.
2005)); accord United States v. Smukler, 330 F. Supp. 3d 1050, 1066 (E.D. Pa.
2018); United States v. Knight, No. 12-cr-0367, 2013 WL 3367259, at *4 (E.D. Pa.
July 3, 2013). Defendants simply argue, in a conclusory fashion, that their ability
to prepare for trial will be “unfairly hampered” unless the Government reveals the
identities of unindicted co-conspirators. (Doc. 118, pp. 12–13.) This argument is
belied by the fact that the Government provided Defendants, among other
discovery, several dozen witness-interview memoranda, some of which involved
cooperating witnesses. (Doc. 151, p. 29, 36 n.5.) In light of the discovery
provided and without a more particularized argument as to why their defense is
being hindered, Defendants have failed to show they are entitled to a bill of
particulars on this issue.
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4. Attempt Charge
Finally, the indictment’s substantive counts include allegations that
Defendants “willfully executed and attempted to execute . . . a scheme and artifice
with intent to defraud the United States.” (Doc. 1, ¶¶ 69, 88.) Defendants contend
that the Government should identify the factual basis for this attempt charge.
(Doc. 118, p. 13.) The Government retorts that this is an improper effort to obtain
the Government’s evidence and theories of criminal liability. (Doc. 151, pp. 37–
38.)
The court finds Defendants’ argument persuasive. Read as a whole, the
indictment describes executed fraud schemes. Nowhere in the indictment can one
gleam any attempted, uncompleted schemes. Given the indictment’s lack of clarity
as to any attempted schemes, Defendants’ request cannot be characterized as
improper. If the Government is charging Defendants with an attempt crime, they
are entitled to know the factual basis for such a charge. See Rosa, 891 F.2d at
1066 (recognizing that defendants have a “legitimate interest in securing
information concerning the [G]overment’s case.”) Otherwise, Defendants would
be left guessing about what they would have to be prepared to meet at trial.
C. Conclusion
While the present indictment provides sufficient notice to Defendants to
survive the motions to dismiss, certain of its shortcomings substantially hinder
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Defendants’ ability to prepare for trial. Accordingly, the court will grant in part
and deny in part the motion for bill of particulars in order to address these
shortcomings.
S UMMARY OF RULINGS
For the reasons explained above, the court will deny Defendants’ motion to
dismiss for legal insufficiency and their motion to dismiss under the Due Process
and Equal Protection Clauses. The court will, however, grant in part and deny in
part Defendants’ motion for a bill of particulars. An appropriate order will issue.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Dated: December 9, 2025
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