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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON

United States of America, 

Plaintiff,

v. Case No. 3:18-cr-79 

Judge Thomas M. Rose 

Michael D. Busch, et al., 

Defendant.

ENTRY AND ORDER DENYING IN PART AND GRANTING IN PART 

MOTION OF DEFENDANT MICHAEL D. BUSCH AND BUSCH’S 

COUNTRY CORNER, INC., TO DISMISS COUNT ONE OF THE 

INDICTMENT OR IN THE ALTERNATIVE TO OBTAIN A BILL OF 

PARTICULARS WITH RESPECT TO COUNTS 1-2, 25-26, 29-30, AND 32-

38. (ECF 23, 32). COUNTS 2, 25-26, 29-30, AND 32-38 ARE DISMISSED

AND A BILL OF PARTICULARS IS ORDERED WITH REGARD TO 

COUNT 1. 

This matter is before the Court for decision on Motion of Defendants, Michael D. Busch 

and Busch's Country Corner, Inc. and Motion to Dismiss Counts 1-2, 25-26, 29-30, and 32-38 of 

the Indictment, or in the alternative, for a Bill of Particulars. (ECF 32) Defendants claim that 

Count 2 is duplicitous and should be dismissed. Defendants also claim that the Indictment fails 

to state an offense as to the wire fraud allegations in Counts 25-26, 29-30, and 32-38, and that 
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the Indictment lacks the constitutionally required specificity as to all of the specified counts. In 

the alternative, Defendant petitions for a bill of particulars clarifying the indictment. 

Count 2 of the indictment charges Michael D. Busch, Randall S. Busch, and Busch’s 

Country Corner with violations of 18 U.S.C. §§ 371 and 1349. There is a wide disparity in the 

statutory maximum sentence for the two statutes: 5 years for § 371 and 20 years for § 1349. 

An indictment must not be duplicitous, meaning that it may not join in a single count, two 

or more distinct and separate offenses. See United States v. Hixon, 987 F.2d 1261, 1265 (6th Cir. 

1993) (citing United States v. Duncan, 850 F.2d 1104, 1108-09 n.4 (6th Cir. 1988)). A 

duplicitous indictment is not permitted because when two offenses are charged under a single 

count it is impossible to know whether the jury's verdict as to that count is as to one offense, or 

both. Id. Consequently, there is no way to know whether the verdict was unanimous, as 

required, as to each separate offense. See United States v. Duncan, 850 F.2d at 1108 n.4. 

Additionally, a duplicitous indictment may result in improper notice of the charges against the 

defendant, and prejudice in the shaping of evidentiary rulings, in sentencing, in limiting review 

on appeal, and in exposure to double jeopardy. Id. 

Count 2 alleges violations of two separate conspiracy statutes - 18 U.S.C. § 371 and 18 

U.S.C. § 1349. Alleging a conspiracy under both 18 U.S.C. § 371 and 18 U.S.C. § 1349 in a 

single count is impermissibly duplicitous. See United States v. Barrington, 648 F.3d 1178, 1189-

90 (11th Cir. 2011). Defendants’ motion to dismiss Count 2 will be granted. 

Defendants also seek dismissal of Counts 25-26, 29-30, and 32-38 alleging they lack any 

allegation of “materiality” or that wire transfers were “in furtherance” of fraud. Materiality of 

an alleged falsehood is a required element of wire fraud. See Neder v. United States, 527 U.S. at 
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24 (holding that materiality of falsehood is an element of the wire fraud statute). Because 

materiality is an element of wire fraud, materiality must be alleged in the indictment. See United 

States v. Omer, 395 F.3d 1087, 1089 (9th Cir. 2005); United States v. Grace, 429 F. Supp.2d 

1207, 1246 (D. Mont. 2006). Failure to allege materiality is a fatal flaw requiring dismissal. See 

United States v. Omer, 395 F.3d at 1089 (reversing a judgment of conviction because the district 

court erred in denying defendant’s motion to dismiss indictment that failed to allege materiality); 

United States v. Grace, 429 F. Supp.2d at 1246 (granting motion to dismiss due to lack of 

materiality allegation). Because they lack allegations as to the materiality of the alleged 

falsehoods or concealments, Counts 25-26, 29-30, and 32-38 fail to state a wire fraud offense and 

will therefore be dismissed. 

Additionally, Counts 25-26, 29-30, and 32-38 fail to allege that the wires in question 

were “in furtherance” of the alleged scheme. The required elements of wire fraud also include 

that the wire transactions be “in furtherance” of the scheme to defraud. Paragraph 43 alleges 

acts in “furtherance” of Count 2, but nothing in Counts 25, 26, 29, 30 or 32-38 allege that the 

wire transfers were in “furtherance” of the fraud. 

There is nothing illegal about causing wire transfers to occur, and fraud is not a federal 

crime. Indeed, it is only when wire transfers are made “in furtherance of” fraud, that the 

Commerce Clause allows federal jurisdiction of this crime. United States v. Lindemann, 85 

F.3d 1232, 1241 (7th Cir. 1996). The government regularly fulfills this pleading requirement. 

See, e.g., United States v. Ogbazion, 3:15-cv-104, ECF6, PageID 60, ¶ 54 (S.D. Ohio 2015) (“In 

furtherance of, and for the purpose of executing such scheme and artifice to defraud,”)(charging 

violation of 18 U.S.C. § 1343). Absent allegations that wire transfers were made “in furtherance 
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of” the fraud, the Superseding Indictment fails to state a wire fraud offense, and for this reason as 

well, those counts will be dismissed. See United States v. Maze, 414 U.S. 395, 399-400 (1974); 

United States v. Webb, 24 F. Supp.3d 432, 438 (M.D. Pa. 2014). 

The Federal Rules of Criminal Procedure require an indictment to include a "plain, 

concise, and definite written statement of the essential facts constituting the offense charged." 

Fed. R. Crim. P. 7(c)(1). Correspondingly, the Sixth Circuit has provided clear guidance as to 

whether an indictment is sufficient. Specifically, a sufficient indictment "(1) set[s] out all of the 

elements of the charged offense and . . . give[s] notice to the defendant of the charge he faces; 

and (2) [is] sufficiently specific [so as] to enable the defendant to plead double jeopardy in a 

subsequent proceeding, if charged with the same crime based on the same facts." United States v. 

Kuehne, 547 F.3d 667, 696 (6th Cir. 2008) (citing United States v. Douglas, 398 F.3d 407, 413 

(6th Cir. 2005)); United States v. Cobb, 397 Fed. Appx. 128, 137 (6th Cir. 2010). 

In addition, Defendant moves this Court for an order directing the Government to file a 

bill of particulars. The Federal Rules of Criminal Procedure permit the court to direct the 

government to file a bill of particulars. Fed. R. Crim. P. 7(f). The final decision to render a bill 

of particulars is left to the discretion of the trial court. United States v. Slaisbury, 983 F.2d 1369, 

1375 (6th Cir. 1993). An order requiring a bill of particulars is appropriate when the bill 

minimizes surprise, assists the defendant in preparing a defense, and helps to preclude a second 

prosecution for the same crimes. United States v. Vassar, 346 Fed. Appx. 17, 21 (6th Cir. 2009) 

(quoting United States v. Crayton, 357 F.3d 560, 568 (6th Cir. 2004)). 

As the Government has rightfully explained, a bill of particulars is not a means to obtain 

all the evidence held by the government before trial, and it is not a way for the defense to 
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become versed in the prosecution=s theory of the case. Id.; United States v. Jones, 678 F. Supp. 

1302, 1304 (S.D. Oh. 1988); Salisbury, 983 F.2d at 1375. Moreover, the bill should not be 

issued so as to provide details of the conspiracy, or learn of every overt act the prosecution 

intends to prove at trial. United States v. Brodie, 326 F. Supp. 2d 83, 91 (D.D.C. 2004); 

Salisbury, 983 F.2d at 1375. 

However, an indictment must be specific enough that the defendant knows what he is 

charged with and how to defend himself. See United States v. Levinson, 405 F.2d 971, 977 (6th 

Cir. 1968) (“First, an indictment must inform the accused of the nature of the charges against 

him, with such specificity and particularity that the accused is enabled to undertake and prepare 

an adequate defense.”) (citing United States v. Debrow, 346 U.S. 374 (1953); Hagner v. United 

States, 285 U.S. 427 (1932); Russell v. United States, 369 U.S. 749 (1962); Hamling v. United 

States, 418 U.S. 87 (1974)) (“Undoubtedly the language of the statute may be used in the general 

description of an offense, but it must be accompanied with such a statement of the facts and 

circumstances as will inform the accused of the specific offense, coming under the general 

description, with which he is charged.”) (internal citations omitted). 

In Count 1 of the Indictment, Michael D. Busch and Busch’s Country Corner are charged 

with conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). The 

elements of conspiracy to commit money laundering are: (1) that two or more persons conspired 

to commit the crime of money laundering; and (2) the defendant knowingly and voluntarily 

joined the conspiracy. See United States v. Harrison, 663 F. App'x 460, 465 (6th Cir. 2016) 

(citing United States v. Prince, 618 F.3d 551, 553-54 (6th Cir. 2010)). 

The Indictment states that the Defendants "engaged in financial transactions that, in fact, 
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involved the proceeds of specified unlawful activity, with the intent to promote the carrying on 

of certain specified unlawful activities, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and 18 

U.S.C. § 2." 

The type of money laundering alleged is referred to as "promotional money laundering" - 

meaning that the defendant conducted a financial transaction that involved the proceeds of 

unlawful activity, knowing that the property involved was proceeds of unlawful activity, and 

intended to promote that unlawful activity." See United States v. Miller, 562 Fed. App'x 272, 296 

(6th Cir. 2014). The "paradigmatic" example of this crime is a drug dealer using proceeds from 

one transaction to buy more drugs to sell. Id. (citing United States v. Warshak, 631 F.3d 266, 317 

(6th Cir. 2010)). 

The Indictment, however, lacks any facts regarding how the alleged proceeds of unlawful 

activity were used to "promote" that unlawful activity. There are no specific allegations as to 

how the alleged proceeds of unlawful activity were used, including as to how they were used in 

promotion of further unlawful activity. The lack of specificity matters because when proceeds 

of fraudulent transactions are used to pay the operating expenses of an otherwise legitimate 

business, there is no promotional money laundering. See United States v. Miles, 360 F.3d 472, 

477 (5th Cir. 2004); United States v. Martinelli, 454 F.3d 1300, 1318 (11th Cir. 2006). Absent 

any specific factual allegations regarding the use of the funds and how that use was supposedly 

in promotion of further unlawful activity, Michael D. Busch and Busch’s Country Corner cannot 

"undertake and prepare an adequate defense." As such, the Indictment is constitutionally 

defective as to Count 1. To cure this, the Court will order a Bill of Particulars. 

III. Conclusion
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Because Count 2 is duplicitous, it is DISMISSED. Because Counts 25-26, 29-30, and 

32-38 fail to allege materiality or that wire transfers were “in furtherance of” fraud, they are 

DISMISSED. Because Count 1 lacks specificity as to how proceeds of the alleged fraud were 

laundered to promote the scheme, the government is ordered to file a bill of particulars with 

regard to it. 

DONE and ORDERED in Dayton, Ohio on Thursday, October 25, 2018. 

s/Thomas M. Rose 

________________________________ 

THOMAS M. ROSE 

UNITED STATES DISTRICT JUDGE