IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

UNITED STATES OF AMERICA

Plaintiff

v.

MICHAEL D. BUSCH, et al.

Defendants

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CASE NO. 3:18-cr-79

Hon. Thomas M. Rose

MOTION TO DISMISS/MOTION 

FOR A BILL OF PARTICULARS

Now come Defendants, Michael D. Busch ("MDB") and Busch's Country Corner, Inc. 

("BCC") and hereby move to dismiss Counts 1-2, 25-26, 29-30, and 32-38 of the Superseding 

Indictment, or in the alternative, for a Bill of Particulars. The reasons for this Motion are set 

forth in the attached Memorandum in Support. 

Respectfully submitted,

/s/ Benjamin G. Dusing__________________

Benjamin G. Dusing (0078572)

Stephanie Kessler (0092338)

FARUKI IRELAND COX RHINEHART & 

DUSING PLL

201 East Fifth Street, Suite 1420

Cincinnati, OH 45202

Telephone: (513) 632-0300

Email: bdusing@ficlaw.com

 skessler@ficlaw.com

Attorneys for Michael D. Busch and Busch's 

Country Corner, Inc.
2

1298591.2

MEMORANDUM IN SUPPORT

I. INTRODUCTION

The grand jury returned a multi-count Indictment on June 12, 2018 ("Original 

Indictment"). Defendants MDB and BCC were charged with conspiracy to commit money 

laundering (18 U.S.C. § 1956(h)) and conspiracy to defraud the United States and to commit 

certain offenses against the United States (18 U.S.C. §§ 371 and 1349). MDB is further charged 

with multiple counts of SNAP fraud (7 U.S.C. § 2024(b)), and multiple counts of wire fraud (18 

U.S.C. § 1343). The Original Indictment also included multiple forfeiture allegations.

Defendants MDB and BCC filed a Motion to Dismiss or for a Bill of Particulars on July 

18, 2018 ("Original Motion to Dismiss"). [Doc. #23]. A response to the Original Motion to 

Dismiss was due August 8, 2018, however, the government failed to file a response. Instead, on

August 14, 2018, sought and obtained a Superseding Indictment. See Superseding Indictment 

[Doc. #30]. The Superseding Indictment differs from the Original Indictment in only one 

respect: the word "materially" was added to ¶ 46. Id. at ¶ 46. If the government's goal in seeking 

the Superseding Indictment was to remedy the issues raised in the Motion to Dismiss, the 

government has failed. For the reasons stated more fully below, all of the issues raised in the 

Original Motion to Dismiss are still applicable to the Superseding Indictment. 

Specifically, Counts 1 (Conspiracy to Commit Money Laundering), 2 (Conspiracy), and 

25-26, 29-30, 32-38 (Wire Fraud) of the Superseding Indictment should be dismissed. First, 

Count 2 is duplicitous and should be dismissed outright. Second, the Superseding Indictment 

fails to state an offense as to the wire fraud counts against MDB. Finally, the Superseding 

Indictment lacks the constitutionally required specificity as to all of the specified counts. 
3

II. LAW AND ARGUMENT

A defendant may bring a motion to dismiss under Rule 12 in order to assert, inter alia, 

defects in instituting the prosecution or a defect in the indictment. Id. If the court finds that “the 

indictment is legally deficient, the proper result is dismissal of the indictment.” United States v. 

Landham, 251 F.3d 1072, 1080 (6th Cir. 2001). 

A. Count 2 (Conspiracy) is Duplicitous and Should be Dismissed

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 

required1, 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. 

In this case, 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). If the government were permitted to proceed on Count 2 as 

 1 A federal jury must return a unanimous verdict in order to convict a criminal defendant. See Fed. R. Crim. P. 

31(a); United States v. Pratt, No. 16-5261, 2017 U.S. App. LEXIS 13785 at *13 (6th Cir., July 26, 2017); United 

States v. Ford, 872 F.2d 1231, 1237 (6th Cir. 1989).
4

charged in the Superseding Indictment, many of the problems recognized by the Sixth Circuit in 

Duncan would occur. For example, if the Defendants were found guilty as to Count 2, there 

would be no way to know whether the verdict was based on one or both of the conspiracy 

statues, or whether the verdict was unanimous as to either or both of the statutes. This unknown 

also creates double jeopardy problems. Further, if the Court cannot ascertain under which statute 

the Defendants were convicted, there will be tremendous risk that the Court could impose a 

sentence beyond the statutory maximum for the actual crime of conviction. This issue is of 

particular concern in this case because there is such a wide disparity in the statutory maximum 

sentence for the two statutes (5 years for § 371 and 20 years for § 1349). Accordingly, Count 2 

should be dismissed as impermissibly duplicitous. 

B. The Superseding Indictment Fails to State an Offense as to Counts 25-26, 

29-30, and 32-38 (Wire Fraud)

Pursuant to Fed. R. Crim. P. 7(c)(1), “[t]he indictment or information must be a plain, 

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

must be signed by an attorney for the government.” An indictment is constitutionally sufficient 

if it: (1) “contains the elements of the offense charged and fairly informs a defendant of the 

charge against which he must defend”; and (2) “enables him to plead an acquittal or conviction 

in bar of future prosecutions for the same offense.” United States v. Resendiz-Ponce, 549 U.S. 

102, 108 (2007) (citing Hamling v. United States, 418 U.S. 87, 117 (1974)). Apart from 

protecting the rights of the accused, the constitutional requirements of a valid indictment further 

“inform[s] the court of the facts alleged, so that it may decide whether they are sufficient in law 

to support a conviction...” Russell v. United States, 369 U.S. 749, 768 (1962). 

Counts 25-26, 29-30, and 32 through 38 do not contain the elements of the offense 

charged and are, therefore, constitutionally deficient. In these counts, MDB is charged with wire 
5

fraud in relation to certain SNAP EBT transactions. The elements of wire fraud are: (1) that the 

defendant devised or knowingly participated in a scheme to defraud in order to obtain money or 

property; (2) that the scheme included material misrepresentations or concealment of a material 

fact; (3) that the Defendant had the intent to defraud; and (4) that the defendant used wires in 

interstate commerce in furtherance of the scheme. See Neder v. United States, 527 U.S. 1 

(1999); United States v. Gold Unlimited, Inc., 177 F.3d 472 (6th Cir. 1999); United States v. 

Frost, 125 F.3d 346 (6th Cir. 1999). 

Materiality of the alleged falsehood(s) is a required element of wire fraud. See Neder v. 

United States, 527 U.S. at 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. Mon. 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). 

Counts 25-26, 29-30, and 32-38 do not properly allege materiality. The addition of the 

word "materially" in the Superseding Indictment does not cure this defect. As noted by the 

Supreme Court in Neder, materiality of the alleged falsehood is the required element. Neder, 

527 U.S. at 24. The materiality requirement requires that the governemtn allege flasehoods, and 

that those falsehoods are material to the alleged scheme. Although the Superseding Indictment 

does include the word "materially" in Counts charging wire fraud, the element of materiality is 

still not satisfied. The Superseding Indictment now contains the phrase "materially false and 
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fraudulent pretenses," however, it fails to allege what statements or concealments were actual 

falsehoods and how those falsehoods are specifically material to the scheme. There are no facts 

alleged in the Superseding Indictment with respect to a material falsehood, consequently, the 

Superseding Indictment, with respect to Counts 25-26, 29-30, and 32-38, is constitutionally 

insufficient.

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

in furtherance of the alleged scheme. As set forth above, it is a required element of wire fraud 

that the wire transactions be in furtherance of the scheme to defraud. Absent allegations to that 

effect, the Superseding Indictment fails to state a wire fraud offense and those counts should 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). 

C. The Superseding Indictment Lacks the Required Specificity as to Counts 

1-2, 25-26, 29-30, and 32-38 

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). 
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In some instances, a Bill of Particulars can be used to cure a lack of specificity.2

 The 

purpose of a Bill of Particulars is to provide the defendant with sufficient notice of the charges 

against him so that he can prepare an adequate defense, to minimize surprise to the defendant at 

trial, and to enable the defendant to plead double jeopardy in the event of a subsequent 

prosecution. See United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993); United States 

v. Carlock, 806 F.2d 535, 550 (5th Cir. 1986); United States v. Perez, 489 F.2d 51, 70-71 (5th 

Cir. 1973). A Bill of Particulars fulfills this function when the indictment itself is too vague and 

indefinite for such purposes. See United States v. Addonizio, 451 F.2d 49, 63-64 (3rd Cir. 1971); 

United States v. Sanchez, No. CR-2-90-101, 1991 U.S. Dist. LEXIS 21903 (E.D. Tenn., Feb., 22, 

1991). The question is not merely whether the indictment provides the defendant with notice, 

but whether there is sufficient information to allow the defendant to defend against it. See 

United States v. Bortnovsky, 820 F.2d 572, 574-575 (2nd Cir. 1987) (holding that the defendant 

was hindered in preparing his defense by the district court’s failure to order a Bill of Particulars 

to compel the government to reveal crucial information, including specific dates of alleged 

crimes and the specific documents that were allegedly fraudulent and that such a denial had the 

effect of impermissibly shifting the burden of proof to the defendant). The right of a criminal 

defendant to be sufficiently apprised of the charges against him so as to be able to defend himself 

and his right to be free from multiple prosecutions for the same offense are basic constitutional 

rights. U.S. Const. amend. V; U.S. Const. amend. VI. See e.g. Rosen v. United States, 161 U.S. 

29, 40 (1896) (noting that the constitutional right of a defendant to be informed of the nature and 

cause of the accusation against him entitles him to apply for a Bill of Particulars). 

 2 It is a settled rule that a bill of particulars, however, cannot save an invalid indictment. See Russell v. United 

States, 369 U.S. 749, 770 (1962). An indictment cannot be amended except by resubmission to the grand jury, 

unless the change is merely a matter of form. Id. 
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1. Count 1 should be dismissed because it lacks the required 

specificity

In Count 1 of the Superseding Indictment, MDB and BCC 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 Superseding Indictment states that the Defendants "engaged in financial transactions 

that, in fact, 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 Superseding Indictment, however, is completely devoid of any facts regarding how 

any alleged proceeds of unlawful activity were used to "promote" that unlawful activity. In fact, 

there are no specific allegations at all as to how the alleged proceeds of unlawful activity were 

used at all, let alone in promotion of further unlawful activity. The lack of specificity in this 

regard is especially problematic in this case because when proceeds of minor fraudulent 
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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, MDB and BCC cannot "undertake and prepare an adequate defense." 

As such, the Superseding Indictment is constitutionally defective as to Count 1 and Count 1 

should be dismissed. In the event the Court finds dismissal inappropriate at this juncture, it 

should at least require a Bill of Particulars. 

2. Count 2 should be dismissed because it lacks the required 

specificity

In Count 2 of the Superseding Indictment, MDB and BCC are charged with conspiracy 

under both 18 U.S.C. § 371 and 18 U.S.C. § 1349. The Superseding Indictment, however, is 

wholly deficient as to what exactly MDB and BCC supposedly did in violation of federal law. 

As to the "manner and means" of the alleged conspiracy/conspiracies the Superseding Indictment 

refers back to the same "manner and means" set forth in Count 1. See Superseding Indictment 

[Doc. #30] at ¶ 42. Nowhere does the Superseding Indictment actually specify any unlawful 

actions as to MDB and BCC. 

As to Count 2, the Superseding Indictment contains the following generic allegations as 

to manner and means of the alleged conspiracy: 

Beginning in January 2010 and continuing at least until May 10, 

2018, defendants... have engaged in a pattern, practice and 

conspiracy of illicit SNAP EBT trafficking by exchanging cash for 

SNAP benefits contrary to federal law and 7 C.F.R. § 271.1. 

Id. at ¶ 31. 
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Between in or about October 2010 and in or about March 2018, 

approximately 64% of all of BCC's aforesaid SNAP EBT 

transactions were fraudulent. These fraudulent SNAP EBT 

transactions resulted in Conduent and XTS causing approximately 

$3,450,960.00 in interstate money wire transfers of U.S. 

Government funds being therefore deposited into BCC's said 

MainSource Bank account number xxxx-9510. 

Id. at ¶ 34. 

The remaining allegations have nothing to do with any criminal activity, and, in fact, only 

describe actions taken to run a legitimate business that accepts SNAP EBT benefits as payment 

for goods. The entirety of Count 2 (and the Superseding Indictment as whole, for that matter) 

begs the question – what does the government think MDB and BCC specifically did to violate 

the law? A defendant in a criminal case should never be asking that question because that should 

be clear from the indictment. 

Here, it is entirely unclear what MDB and BCC are accused of specifically. Without that 

required specificity, Count 2 should be dismissed. At the very least a Bill of Particulars is 

required. 

3. Counts 25-26, 29-30, and 32-38 should be dismissed because they 

lack the required specificity

Counts 25-26, 29-30, and 32-38 lack specificity as to the alleged falsehoods or 

concealments that form the basis for the charges. As set forth above, the elements of wire fraud 

are: (1) that the defendant devised or knowingly participated in a scheme to defraud in order to 

obtain money or property; (2) that the scheme included material misrepresentations or 

concealment of a material fact; (3) that the Defendant had the intent to defraud; and (4) that the 

defendant used wires in interstate commerce in furtherance of the scheme. See Neder v. United 
11

States, 527 U.S. 1 (1999); United States v. Gold Unlimited, Inc., 177 F.3d 472 (6th Cir. 1999); 

United States v. Frost, 125 F.3d 346 (6th Cir. 1999). 

Where an alleged scheme to defraud is an element, the indictment must allege those 

representations or promises that the government claims are false. See United States v. Curtis, 

506 F.2d 985, 989-990 (10th Cir. 1974) (collecting cases). It is not sufficient in this regard to 

simply plead the statutory language. Id. Here, there are no allegations regarding what specific 

statements were made that were allegedly false, by whom the statements were made, or when the 

statements were made. This is fatal. Accordingly, Counts 25-26, 29-30, and 32-38 should be 

dismissed. At the very least, a Bill of Particulars is required to properly inform MDB as to what 

fraudulent conduct he is accused. 

III. CONCLUSION

 Based on the foregoing, Counts 1 (Conspiracy to Commit Money Laundering), 2 

(Conspiracy), and 25-26, 29-30, 32-38 (Wire Fraud) of the Superseding Indictment should be 

dismissed. Alternatively, the Court should order a Bill of Particulars. 
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 Respectfully submitted,

/s/ Benjamin G. Dusing______________

Benjamin G. Dusing (0078572)

Stephanie Kessler (0092338)

FARUKI IRELAND COX RHINEHART & 

DUSING PLL

201 East Fifth Street, Suite 1420

Cincinnati, OH 45202

Telephone: (513) 632-0300

Email: bdusing@ficlaw.com

 skessler@ficlaw.com

Attorneys for Michael D. Busch and Busch's 

Country Corner, Inc.

CERTIFICATE OF SERVICE

I hereby certify that on the 30th day of August, 2018, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system which will send notification of such filing 

to all parties of record. 

/s/ Benjamin G. Dusing

Benjamin G. Dusing (0078572)