USA v. SIROIS et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA, 	)
)
v. 	) 	Crim. Nos. 	1:21-cr-00175-LEW-11
) 	1:21-cr-00175-LEW-10
KEVIN LEMAY and JAMES 	)
MCLAMB, 	)
)
Defendants 	)
DECISION AND ORDER
Defendants Kevin Lemay and James McLamb move for the dismissal of the solitary
charge against them in the multi-defendant, multi-count indictment. 	Def. Lemay’s
Amended Motion to Dismiss (ECF No. 298); Def. McLamb’s Motion to Join Lemay
Motion to Dismiss (ECF No. 301). 	Lemay and McLamb also contend that the charges
against them were improperly joined with the other charges or, alternatively, that they
should be relieved from prejudicial joinder. Def. Lemay’s Motion for Relief of Misjoinder
or to Sever (ECF No. 290); Def. McLamb’s Motion to Join Lemay Motion for Relief from
Misjoinder or to Sever (ECF No. 299).
B ACKGROUND
The grand jury charged Lemay with Tampering with Documents in violation of 18
U.S.C. § 1512(c)(1) (Count Eight). As alleged, Lemay “altered, destroyed, mutilated, and
concealed 	electronic 	messages 	between 	himself 	and 	Bradley 	Scovil 	and 	Derrick
Doucette . . . with the intent to impair [the messages’] integrity and availability for use in
an official proceeding.” Indictment ¶ 14.
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The grand jury also charged McLamb with Tampering with Documents in violation
of 18 U.S.C. § 1512(c)(1) (Count Nine). 	As alleged, McLamb “altered, destroyed,
mutilated, and concealed electronic messages between himself and Derrick Doucette . . .
with the intent to impair [the messages’] integrity and availability for use in an official
proceeding.” Indictment ¶ 15.
Doucette and Scovil are two former Franklin County Sheriff’s Deputies who have
pleaded guilty to charges of conspiracy to commit honest services fraud. 	As alleged in
Count Four of the indictment, Doucette and Scovil provided law enforcement confidential
information to Lucas Sirois in exchange for the promise of partial ownership of a subsidiary
of Sirois’s marijuana business and did so while in the employ of the Franklin County
Sheriff’s Department. 	Indictment ¶ 10. 	The circumstances that inform Doucette and
Scovil’s pleas predate those that inform the charges against Lemay and McLamb.
Both 	Lemay 	and 	McLamb 	(hereafter 	“Defendants”) 	were 	employed 	as 	law
enforcement officers when they engaged in the conduct charged in Counts Eight and Nine.
The Indictment does not specify what “official proceeding” Defendants allegedly had in
mind when they deleted text messages. The Defendants posit, based on discovery, that the
grand jury must have meant to reference the FBI investigation into the marijuana-related
activities of the other defendants. The deleted messages all appear to be communications
with Doucette and/or Scovil that reveal that the Defendants ran license plate numbers
through a law enforcement database and reported back what the database indicated.
Doucette and Scovil sought assistance because they thought they were being followed but
no longer had access to the database, having left the employ of the Franklin County
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Sheriff’s Department. Defendants later decided that they would like to erase their message
trails and deleted their messages. 	Evidently, the decision to do so was motivated by the
discovery that, in July 2020, the government executed a variety of search warrants as part
of its continuing investigation into the activities of persons associated with the Shoe Shop
marijuana operation and related enterprises and facilities. The grand jury did not issue an
indictment until November 9, 2021.
The larger case is comprised of conspiracy charges involving black market
production and sales of marijuana, money laundering, and bank fraud. Neither Lemay nor
McLamb are implicated in any of the conspiracy charges set out in the indictment,
including the Doucette-Scovil conspiracy to commit honest services fraud. Their solitary
offense, as alleged, is the destruction of electronic messages exchanged with Doucette
and/or Scovil.
DISCUSSION
Rule 12(b) of the Federal Rules of Criminal Procedure provides that “[a] party may
raise by pretrial motion any defense, objection, or request that the court can determine
without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). Among such defenses is “a defect
in the indictment,” including “failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v).
The analysis begins with the language of the statute. 	Id. 	The indictment charges
violations of 18 U.S.C. § 1512(c)(1). Section 1512 criminalizes tampering with a witness,
victim, or an informant. After discussing tampering of the murderous, violent, threatening
and misleading kinds, the statute provides that “[w]hoever corruptly . . . alters, destroys,
mutilates, or conceals a record, document, or other object, or attempts to do so, with the
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intent to impair the object’s integrity or availability for use in an official proceeding . . .
shall be fined under this title or imprisoned not more than 20 years, or both.” Id. § 1512(c).
Defendants argue that the indictment is defective because it simply parrots the
statutory language “official proceeding” without “descending to particulars” to identify the
official proceeding the Defendants supposedly affected by destroying their message
histories. Defendants maintain that they cannot have violated § 1512(c) because they were
unaware of and did not foresee any official proceeding other than the law enforcement
investigation. 	The government responds with a thrust of attenuated reasoning, that the
argument is specious because any reader of this grand jury indictment should appreciate
that the pertinent official proceeding must be the grand jury proceeding, even though there
is caselaw demonstrating that grand juries have indicted persons under § 1512(c) based on
the impact of evidence destruction on mere investigations.
The Defendants’ argument is based on the following rule of criminal pleading:
It is an elementary principle of criminal pleading, that where the definition
of an offence, whether it be at common law or by statute, ‘includes generic
terms, it is not sufficient that the indictment shall charge the offence in the
same generic terms as in the definition; but it must state the species,—it must
descend to particulars. 	1 Arch. Cr. Pr. and Pl., 291. 	The object of the
indictment is, first, to furnish the accused with such a description of the
charge against him as will enable him to make his defense, and avail himself
of his conviction or acquittal for protection against a further prosecution for
the same cause; and, second, to inform the court of the facts alleged, so that
it may decide whether they are sufficient in law to support a conviction, if
one should be had. 	For this, facts are to be stated, not conclusions of law
alone. A crime is made up of acts and intent; and these must be set forth in
the 	indictment, 	with 	reasonable 	particularity 	of 	time, 	place, 	and
circumstances.
United States v. Cruikshank, 92 U.S. 542, 558 (1875).
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Based on the first principle of Cruikshank, and as punctuated by its literary echo in
Kafka’s The Trial, the indictment should have descended to the most basic particulars to
apprise Defendants of the official proceeding the Government had in mind so that the grand
jury 	may 	understand 	whether 	the 	Government 	has 	earned 	its 	indictment 	against
Defendants. 	The Defendants should fare better at the charging stage of a criminal
proceeding than did Josef K. The Government cannot indict defendants under this statute
based upon official proceedings in the air. This requirement is not ceremonial but rather it
assures the most fundamental utility is achieved. This is not merely to inform Defendants
of the specific underlying offense, but to assure the Defendants and the Court that the grand
jury made its charging decision based on a showing calibrated to an actual indictable
offense rather than prosecutorial umbrage over interference with an ongoing investigation
or anything else that does not constitute a crime. 	See United States v. Murphy, 762 F.2d
1151, 1153, 1155 (1st Cir. 1985) (Gignoux, J.) (holding that an indictment charging
defendants with intimidating a person “with intent to influence the testimony of any person
in an official proceeding” was invalid because “it cannot be known what official
proceeding the grand jury had in mind or the defendants must be prepared to meet” and
because the indictment “did not adequately apprise the defendants of the charges against
them”). The significance of the failure to descend to particulars is demonstrated when one
considers the nature of the proof required to convict.
Proof of culpability under § 1512(c) entails a nexus requirement. Specifically, the
Government 	must 	demonstrate 	that 	the 	defendant 	knew 	of 	or foresaw 	an 	official
proceeding and knew that his actions would affect it. United States v. Elizondo, 21 F.4th
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453, 471 (7th Cir. 2021); United States v. Friske, 640 F.3d 1288, 1292 & n.5 (11th Cir.
2011) (collecting cases and drawing an analogy to both Arthur Andersen LLP v. United
States, 544 U.S. 696, 708 (2005) (prescribing nexus element under 18 U.S.C. § 1512(b)(2))
and United States v. Aguilar, 515 U.S. 593, 600–01 (1995) (prescribing nexus element
under 18 U.S.C. § 1503)); see also United States v. Buchanan, 2023 WL 5352223, at *5
(6th Cir. Aug. 21, 2023). For present purposes, the nexus analysis looks different if one
has in mind the investigation’s evidence gathering function as compared with the grand
jury’s function of charging violations of federal law. See United States v. Sutherland, 921
F.3d 421, 425 (4th Cir. 2019) (“FBI investigations . . . are not official proceedings . . . .”);
United States v. Ermoian, 752 F.3d 1165, 1171 (9th Cir. 2013) (same).
Defendants’ knowledge about the potential significance of their message history to
federal investigators can be inferred. 	Most law enforcement officers in Defendants’
position would appreciate how sharing confidential information with suspects rather than
informing on them could affect the course of an investigation. But Defendants’ knowledge
about the utility of the message history to a grand jury’s decision whether to indict the other
defendants—and if so which defendants—is much harder to intuit. 	Since the messages
were not evidence of an offense by any other defendant and became evidence for present
purposes only upon their destruction, why would Defendants think of their destruction of
the messages in terms of affecting a grand jury’s ability to indict anyone, assuming they
were contemplating a grand jury at all? 	See, e.g., Elizondo, 21 F.4th at 472 (looking for
evidence the defendant foresaw that the items destroyed might be used in an official
proceeding). 	The government argues that the question should be put to the trial jury to
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resolve and that the motion to dismiss is an improper attempt to raise a pretrial evidentiary
challenge. However, the problem here is that the generic indictment fails to reassure that
the grand jury even contemplated the proper question. Given the failure of the indictment
to descend to particulars by identifying the grand jury proceedings, Defendants’ Motion to
Dismiss will be granted. 	Murphy, 762 F.2d at 1154–55 (remanding with instruction to
dismiss the indictment despite conviction).
B. 	Joinder
Given the ruling on the Motions to Dismiss, the matter of prejudicial joinder is moot.
C ONCLUSION
For the reasons stated, Defendant Lemay’s Amended Motion to Dismiss (ECF No.
298) and Defendant McLamb’s related Motion to Join (ECF No. 301) are GRANTED.
Lemay’s Motion for Relief of Misjoinder or to Sever (ECF No. 290) and McLamb’s related
Motion to Join (ECF No. 299) are DENIED AS MOOT. 	Counts Eight and Nine of the
indictment are DISMISSED.
SO ORDERED.
Dated this 18th day of October, 2023
/s/ Lance E. Walker
UNITED STATES DISTRICT JUDGE
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