IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) NO. 2:13-cr-81

) 

STEVEN BORCHERT, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the: (1) Motion for

Disclosure of Grand Jury Material Pursuant to Rule 6(e)(3)(E)(i)

and (ii), filed by pro se Defendant, Steven Borchert, on August 30,

2013 (DE #9); and (2) Motion to Dismiss Indictment, filed by pro se

Defendant, Steven Borchert, on August 30, 2013 (DE #10). For the

reasons set forth below, both motions (DE #9 and DE #10) are

DENIED. Additionally, the request for oral argument is DENIED. 

BACKGROUND

In June 2013, a grand jury charged Defendant, Steven Borchert,

with nine counts of making and subscribing a false document with

the IRS in violation of 26 U.S.C. section 7206(1). The false

documents identified in the indictment are Form 1040s filed with

the IRS for tax years 2001-2009, and the indictment alleges that
Defendant omitted the gross receipts and sales of his carpet

cleaning business from the Form 1040s. (DE #1, ¶¶ 2, 8.) 

Specifically, the statutory allegations in the indictment are:

[Defendant] willfully made and subscribed a false

Form 1040, which was verified by a written

declaration that it was made under the penalties of

perjury and which [defendant] did not believe to be

true and correct as to every material matter. 

Specifically, each of the Form 1040s identified

below, which were filed with the IRS, omitted

Chemdry’s gross receipts and sales on a Schedule C

Form, and anywhere else on the Form 1040.

(DE #1, ¶ 9.)

Defendant filed the instant Motion to Dismiss Indictment (DE

#10), arguing it fails to adequately allege each element of the

offense charged. Additionally, he filed the Motion for Disclosure

of Grand Jury Material, making a similar argument that he believes

the Assistant United States Attorney did not properly instruct the

grand jury as to each and every element of the offense charged. 

(DE #9, p. 2.) The Government filed a response contesting both

motions. (DE #12.) Defendant filed a reply in support of both

motions on September 16, 2013 (DE #16). Therefore, the motions are

fully briefed and ripe for adjudication.

DISCUSSION

Motion to Dismiss Indictment

Under Federal Rule of Criminal Procedure 7(c)(1), an

indictment shall "be a plain, concise and definite written

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statement of the essential facts constituting the offense charged

. . .." Fed. R. Crim. P. 7(c)(1). A grand jury indictment serves

to protect rights granted by the Fifth Amendment, namely limiting

the federal government's power to hold someone to answer for a

felony unless on a grand jury indictment, and the Sixth Amendment,

which grants persons accused of a crime the right to be informed of

the nature and cause of the accusation. See Russell v. United

States, 369 U.S. 749, 760-61 (1962); United States v. Glecier, 923

F.2d 496, 499 (7th Cir. 1991). “An indictment is constitutionally

sufficient and satisfies Fed. R. Crim. P. 7(c)(1) if it states the

elements of the crime charged, informs the defendant of the nature

of the charge so [he] may prepare a defense, and enables the

defendant to plead the judgment as a bar against future

prosecutions for the same offense.” United States v. Agostino, 132

F.3d 1183, 1189 (7th Cir. 1997) (citations omitted); see also

United States v. Allender, 62 F.3d 909, 914 (7th Cir. 1995). An

exhaustive recounting of the facts surrounding the crime is not

required. Agostino, 132 F.3d at 1189. Indeed, even the words of

the statute itself will suffice as long as those words expressly

set forth all the elements necessary to constitute the offense.

Id.

However, it is also true that an indictment “must be tested by

its sufficiency to charge an offense.” United States v. Sampson,

371 U.S. 75, 78-79 (1962). The Seventh Circuit noted, in United

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States v. Gimble, that:

In order to be valid, an indictment must

allege that the defendant performed acts

which, if proven, constituted a violation of

the law that he or she is charged with

violating. If the acts alleged in the

indictment did not constitute a violation of

the law that the defendant has been charged

with violating, we must reverse any subsequent

conviction based on that indictment.

United States v. Gimble, 830 F.2d 621, 624 (7th Cir. 1987). 

In considering Defendant’s motion, this Court is mindful that

dismissing an indictment is an extraordinary measure. See, e.g.,

United States v. Morrison, 449 U.S. 361, 365 (1981) (concluding the

dismissal of an indictment was unwarranted absent a constitutional

infringement that substantially prejudiced defendant's case);

United States v. Stokes, 124 F.3d 39, 44 (1st Cir. 1997) ("Because

the public maintains an abiding interest in the administration of

criminal justice, dismissing an indictment is an extraordinary

step.").

Defendant argues that he did not need to report his business

receipts because the “receipts do NOT include the performance of

the functions of a public office, as trade or business is defined

to include such performance.” (DE #10, p. 6 (emphasis in

original).) Borchert has already made this argument to Judge Alan

Sharp, Judge Philip Simon, the Seventh Circuit Court of Appeals and

the Supreme Court, and every single Court has already rejected this

argument. See, e.g, Borchert v. United States, 232 Fed. Appx. 601,

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602-03 (7th Cir. 2007) (finding his argument that the IRS may

collect tax only on income derived from a revenue stream internally

connected with the federal government “patently frivolous”);

Borchert v. United States, 4:07-CV 71 (N.D. Ind., DE #13, Nov. 15,

2007) (J. Simon) (regarding Borchert’s claim that the Internal

Revenue Code did not apply to him, “[t]his is precisely the

argument that the petitioner made last year before Judge Sharp

which he rejected and which was again rejected by the Seventh

Circuit on appeal.”); Borchert v. United States, 552 U.S. 1102, No.

07-718, cert. denied (Jan. 7, 2008). This Court follows and agrees

with this authority. 

Defendant also claims that the element missing from the

indictment is that the Defendant did not believe the document to be

true and correct as to every material matter. (DE #16, p. 3.) To

the contrary, this Court finds that the indictment alleges all of

the necessary elements. The elements of a Section 7206(1) offense

are as follows:

1. The defendant made and subscribed a document

which was false as to a material matter;

2. The document contained a written declaration

that it was made under the penalties of

perjury;

3. The defendant did not believe the document to

be true and correct as to every material

matter; and

4. The defendant falsely subscribed to the

document willfully, with the specific intent

to violate the law.

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United States v. Bishop, 412 U.S. 346, 350 (1973); United States v.

Hills, 618 F.3d 619, 634 (7th Cir. 2010); see also Seventh Circuit

Pattern Instructions, 26 U.S.C. § 7206(1) Fraud and False

Statements - Elements. The Government has alleged that the Form

1040s are false as to a material matter. (DE #1, ¶ 9); see United

States v. Pree, 408 F.3d 855, 873 (7th Cir. 2005) (“[a] false

statement is ‘material’ when it has the potential for hindering the

IRS’s efforts to monitor and verify the tax liability of the

taxpayer.”) (quotation omitted); United States v. Hedman, 630 F.2d

1184, 1196 (7th Cir. 1980) (finding any false statement relating to

gross income, regardless of the amount, constitutes a material

misstatement in violation of § 7206(1)). The indictment alleges

that the false Form 1040s were verified by a written declaration

and made under the penalties of perjury. (DE #1, ¶ 9.) 

Additionally, it alleges “Borchert did not believe [the Form 1040s]

to be true and correct as to every material matter.”1 (DE #1, ¶ 9)

Finally, it sufficiently alleges that Defendant subscribed to the

document willfully. Indeed, the Supreme Court has defined

“willfulness” as the “voluntary, intentional violation of a known

legal duty.” Cheek v. United States, 498 U.S. 192, 200 (1991). 

1

Defendant emphatically claims he did believe the document

was true and correct as to every material matter (DE #16, p. 6). 

However, the indictment sufficiently alleges that Defendant did

not believe the document was true and correct as to every

material matter - which is all that is required at this stage. 

Whether the Government can prove the allegations at trial is left

up to the jury to decide.

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The omission of required information can form the basis of a

conviction under 26 U.S.C. § 7206(1). See, e.g., United States v.

Taylor, 574 F.2d 232, 234-36 (5th Cir. 1978) (failure to report

amounts of gross livestock receipts on Schedule F render a return

materially false). Therefore, the indictment properly states the

elements of the crime charged and alleges acts which, if proven,

constitute a violation of the Internal Revenue Code. 

To the extent Defendant argues the indictment should be

dismissed for improper instructions to the grand jury, this

argument is also unavailing. There is a strong presumption of

regularity of grand jury proceedings and courts ordinarily do not

delve into those actions. United States v. Williams, 504 U.S. 36,

46 (1992). “An indictment returned by a legally constituted and

unbiased grand jury, like an information drawn by the prosecutor,

if valid on its face, is enough to call for trial of the charge on

the merits.” Costello v. Untied States, 350 U.S. 359, 363 (1956). 

Without more than mere assertions that the prosecutor must have

provided erroneous instructions to the grand jury, Defendant cannot

overcome the strong presumption of regularity of the grand jury

proceeding. 

Finally, Defendant contends that the statute of limitations

has expired on his claims. (DE #10, pp. 11-12.) Defendant claims

that the statute of limitation for 26 U.S.C. § 6020(b) is three

years, has expired, and provides proof that no tax was owed. (DE

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#16, p. 5.) However, this argument is simply misguided. Here,

Defendant was charged with violations of 26 U.S.C. § 7206(1). (DE

#1.) It is undisputed that the statute for violation of Section

7206(1) is 6 years. See 26 U.S.C. § 6531(5); Kawashima v. Holder,

132 S. Ct. 1166, 1180 (2012) (“setting a six-year statute of

limitations for, inter alia, tax crimes involving fraud or

falsity”). The limitation time begins to run on the date that the

return is filed with the IRS. See United States v. Marashi, 913

F.2d 724, 736 (9th Cir. 1990) (quotation omitted) (“A violation of

26 U.S.C. § 7206(1) is complete when a taxpayer files a return

which he does not believe to be true and correct as to every

material matter”). In this case, the indictment alleges the filing

date for all nine counts, the oldest filing date being December 7,

2007, which is still within the six-year statute of limitations

since the indictment was filed on June 19, 2013. See, e.g., United

States v. Solomon, 588 F.2d 1171, 1179 (7th Cir. 1982) (finding

charge of filing a false tax return was timely if the indictment

charging the offense is returned within six years of the day on

which the offense is complete).

Motion for Disclosure of Grand Jury Materials

Defendant’s argument for disclosure of grand jury materials

dovetails with his motion to dismiss - he argues that “the

indictment is insufficient for failure to allege each and every

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element of the crime charged and that it did not, therefore, appear

that the Grand Jury had found probable cause as to each and every

element of the crime charged.” (DE #9, p. 2.) He believes the

“Grand Jury proceedings may contain evidence that will support the

pending motion to dismiss the indictment.” Id. 

Our judicial system has recognized that the proper functioning

of grand jury proceedings depends upon their absolute secrecy. See

Douglas Oil Co. Of California v. Petrol Stops Northwest, 441 U.S.

211, 218 (1979). Federal Rule of Criminal Procedure Rule 6(e)

codifies the rule that grand jury proceedings should be kept

secret. See Fed. R. Crim. P. 6(e). “[P]arties seeking disclosure

of grand jury transcripts must show that the material they seek is

needed to avoid a possible injustice in another judicial

proceeding, that the need for disclosure is greater than the need

for continued secrecy, and that their request is structured to

cover only material so needed.” Matter of Grand Jury Proceedings,

Special Sept., 1986, 942 F.2d 1195, 1198 (7th Cir. 1991) (citing

Douglas Oil Co., 441 U.S. at 222). Grand jury secrecy may not be

broken except where the party seeking disclosure can show a

“compelling necessity” or a “particularized need.” Id. Our

circuit has held that “[i]n determining whether disclosure of grand

jury matters is appropriate in any given case, a court must

exercise substantial discretion, weighing the need for secrecy

against the need for disclosure of specified documents and

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testimony occurring before the grand jury.” Matter of Grand Jury

Proceedings, Miller Brewing Co., 687 F.2d 1079, 1088 (7th Cir.

1982) (citing Douglas Oil Co., 441 U.S. at 223-24).

Here, Defendant merely argues that the grand jury proceedings

may contain evidence to support his motion to dismiss the

indictment. Defendant has failed to demonstrate a particularized

need for testimony of all witnesses, statements made by the

Assistant United States Attorney, or any colloquy between the grand

jury members and the Assistant United States Attorney. See, e.g.,

United States v. Edelson, 581 F.2d 1290, 1291 (7th Cir. 1979)

(finding a defendant seeking the production of grand jury

transcripts must do more than make general unsubstantiated or

speculative allegations of impropriety to prevail under Rule

6(e)(3)(c)(ii) (the former rule)). Rather, Defendant seems to be

generally searching for anything helpful to his cause. “The

secrecy of a grand jury proceeding is not to be pierced by such a

slender reed: a mere possibility of benefit does not satisfy the

required showing of a particularized need.” Matter of Jury

Proceedings, Special Sept., 1986, 942 F.2d at 1199 (citations

omitted). 

Moreover, where the defendant seeks disclosure based on

alleged prosecutorial misconduct before the grand jury, he must

show the alleged misconduct would compel dismissal of the

indictment, which is only appropriate if the prosecutorial

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misconduct prejudiced the defendant. United States v. Anderson, 61

F.3d 1290, 1296 (7th Cir. 1995). In this case, Defendant only

speculates about prosecutorial misconduct, which is not enough. 

For example, the Court in United States v. Buske, No. 09-CR065,

2010 WL 3023364, at *3 (E.D. Wis. July 29, 2010), denied a similar

request for grand jury material where the defendant could not make

the required showing that the prosecutor improperly instructed the

grand jury about the definition of “proceeds” in a money laundering

case. Similarly, Defendant has not demonstrated that he has been

prejudiced by any alleged erroneous instructions given to the grand

jury.

Here, there is nothing in the record to suggest that the

Assistant United States Attorney misunderstood the law or gave

improper instructions to the grand jury. This Court has found that

the indictment is proper, and Defendant has failed to show a

particularized need or compelling necessity for disclosure of grand

jury materials.2

CONCLUSION

For the aforementioned reasons, the Motion for Disclosure of

Grand Jury Material Pursuant to Rule 6(e)(3)(E)(i) and (ii) (DE

#9), and the Motion to Dismiss Indictment (DE #10) are DENIED. 

2

The Government notes that it will be producing a transcript

of any grand jury witness who will be testifying at trial.

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Additionally, the request for oral argument is DENIED. 

DATED: September 18, 2013 /s/ RUDY LOZANO, Judge

United States District Court

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