IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) No. 2:16-CR-30

)

ROBERT STOCHEL, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on Defendant, Robert E.

Stochel’s, Motion to Dismiss Based on Statute of Limitations, filed

on April 20, 2016 (DE #13). For the reasons set forth below, the

motion (DE #13) is DENIED. 

BACKGROUND

Robert Stochel (“Stochel”) is charged with one count of mail

fraud in violation of 18 U.S.C. § 1341. According to the

indictment, Stochel was an attorney that was appointed as a

receiver over a corporation, Tip Top Supermarket, Inc., in 1999. 

(DE #1 at ¶¶ 1-3). Stochel opened a bank account for the

receivership. (DE #1 at ¶ 4). He then devised a scheme to defraud

the receivership beneficiaries of monies. (DE #1 at ¶ 7). The

purpose of the scheme, according to the indictment, was “to obtain

monies totaling approximately $331,840 by means of materially false

and fraudulent pretenses, representations, promises, and material
omissions, by withdrawing those monies from the Receivership Estate

for his own personal use and benefit, and preventing the parties

and counsel in the Tip Top litigation from learning of his scheme

by lulling them into a false sense of security as to whether the

Receivership Account had funds sufficient to make a significant

final disbursement to the Receivership Beneficiaries.” (DE #1 at

¶ 8).

The indictment alleges that, once the funds had been depleted, 

when the receivership estate incurred a legitimate expense, Stochel

deposited his own funds into the account and paid the expense with

a check from the receivership account so that it appeared that the

expense was being paid with the receivership estate’s monies. (DE

#1 at ¶ 11). The indictment further alleges that, as part of the

scheme, “Stochel caused substantial delay whenever asked for an

accounting of the Receivership Account, to prevent the discovery of

his depletion of that account, and to lull the Receivership

Beneficiaries into a fall [sic] sense of security as to the health

of that account.” (DE #1 at ¶ 12). According to the indictment,

when asked, Stochel represented that the receivership account was

sufficiently funded. (DE #1 at ¶ 13). Furthermore, during court

hearings, in an effort to lull the receivership beneficiaries into

a false sense of security, Stochel allegedly represented that the

receivership account had a balance reflecting what it would have

had if he had not depleted it. (DE #1 at ¶ 14). In an effort to

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conceal his fraud, Stochel also represented that his fees would

drain most or all of the remaining balance in the receivership

account. (DE #1 at ¶ 15). And, when the receivership beneficiaries

asked the court to appoint an accountant to review the financial

records, Stochel filed a “Receiver’s Trial Rule 60 Motion for

Relief from Order of March 7, 2012,” falsely representing that the

receiver had adequate funds to pay the accountant. (DE #1 at ¶ 16). 

The Rule 60 motion, mailed on or about March 13, 2012, provides the

basis for the mail fraud charge.

Stochel filed the instant motion to dismiss the indictment

arguing that the indictment was not obtained until after the

statute of limitations in effect on the date of the charged offense

had expired. He further argues that indictment after the statute

of limitations has lapsed violates the ex post facto clause, bill

of attainder clause, and due process clause of the United States

Constitution. The Government has filed a response. No reply was

filed. Accordingly, the motion is ripe for adjudication.

DISCUSSION

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

indictment shall “be a plain, concise and definite written

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

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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. 

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

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.

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

When reviewing a motion to dismiss a criminal indictment, this

Court must assume the facts alleged in the indictment are true and

“must view all facts in the light most favorable to the

government.” United States v. Yashar, 166 F.3d 873, 880 (7th Cir.

1999). Dismissing an indictment is an extraordinary measure, and

the defendant’s arguments will be reviewed while keeping that in

mind. See, e.g., United States v. Morrison, 449 U.S. 361, 363

(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.”). 

“To prove mail fraud, the government must show that the

defendant: (1) participated in a scheme to defraud; and (2) caused

the mails to be used in furtherance of that fraudulent scheme....

it is the causing of the mails to be used in furtherance of the

fraudulent scheme that constitutes the offense of mail fraud.” 

United States v. Barger, 178 F.3d 844, 847 (7th Cir. 1999). The

federal mail fraud statute does not reach all frauds - the use of

the mail must be “part of the execution of the fraud.” Schmuch v.

United States, 489 U.S 705, 710 (1989). While a mailing is

essential to a mail fraud charge, the mailing need only be

“incident to an essential part of the scheme.” Schmuch, 489 U.S 

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at 710-11 (internal citations and quotations omitted). The statute

of limitations for mail fraud is five years, and begins running on

the date of the mailing. 18 U.S.C. § 3282(a); United States v.

Tadros, 310 F.3d 999, 1006 (7th Cir. 2002); United States v. Dunn,

961 F.2d 648, 650 (7th Cir. 1992).

In this case, the mailing relied upon in the indictment took

place on or about March 13, 2012, and Stochel was indicted on March

16, 2016. While Stochel has argued that the statute of limitations

bars this charge, there is not a statute of limitations problem -

the mailing that provides the basis for the mail fraud charge

occurred within five years of the indictment. See United States of

America v. McGowan, No. 03 CR 350, 2004 WL 909745, at *1-2 (N.D.

Ill. Apr. 23, 2004)(discussing why a similar argument did not pose

a statute of limitations problem in the context of wire fraud). 

Stochel acknowledges that the statute of limitations begins on the

date of the mailing but nonetheless argues that the indictment is

untimely because “any alleged mailing occurred at least five (5)

years and eight (8) months after Stochel withdrew money from the

receivership account for his own personal use and benefit” and

“almost ten (10) years after the funds were withdrawn according to

the Indictment.” (DE #13 at ¶¶ 7-8). The fact that the actual

withdrawal of money from the receivership account occurred long

before the mailing does not create a statute of limitations

problem. As noted above, the statute of limitations runs from the

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date of the mailing to the date of the indictment. McGowan, 2004

WL 909745, at *1-2. Accordingly, to the extent Stochel is arguing

that the indictment violates the statute of limitations, his

argument fails.

Despite Stochel’s argument being framed as a statute of

limitations problem, Stochel’s fundamental issue is that too much

time lapsed (more than 5 years) between when the last of the money

was withdrawn and the mailing that provides the basis for the

charge. The lapse in time, according to Stochel, suggests that the

mailing providing the basis for the charge is not part of the

alleged fraudulent scheme. 

Stochel concedes that a mailing that lulls victims into a

false sense of security may violate the mail fraud statue even

after the money has been taken if the scheme includes the lulling

of victims. Sampson, 371 U.S. at 80 (scheme contemplated lulling

activities from the start, both before and after money was

acquired); United States v. Bach, 172 F.3d 520, 522 (7th Cir.

1999)(finding that “the scheme was both to defraud and to retain

investors’ money and that the mailings charged in the indictment

were indeed in furtherance of that scheme.”); United States v.

Brocksmith, 991 F.2d 1363, 1367-68 (7th Cir. 1993)(“Use of the

mails to lull victims into a false sense of security, we have held,

violates the mail fraud statute, even if it occurs after the money

has been fraudulently obtained.”). 

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However, other cases have found that mailings sent after the

theft itself did not further the scheme. In United States v.

Kwiat, one of the cases Stochel relies upon, the defendants,

directors of a bank, developed a scheme to defraud the bank’s

depositors and stockholders of their honest services. United

States v. Kwiat, 817 F.2d 440, 443 (7th Cir. 1987). After each

fraudulent mortgage loan, the bank had the mortgage recorded, and

the recorder mailed the mortgage back to the bank after recording. 

The court found that the mailing of the recorded mortgage back to

the bank “did not make the fraud possible or facilitate it.” Id.

at 443. In so deciding, the Seventh Circuit Court of Appeals noted

that “there is no mail fraud unless the mailing is for the purpose

of executing such scheme (as § 1341 itself provides) and is

causally linked to the scheme’s success.” Id. (emphasis in

original, internal quotations and citations omitted). 

In United States v. Walters, another case relied upon by

Stochel, Walters convinced college football players to enter into

professional contracts when they were not yet eligible to do so,

and then locked those post-dated contracts away and agreed to lie

to the universities if any inquires were made. United States v.

Walters, 997 F.2d 1219 (7th Cir. 1993). Walters was charged with

mail fraud because the universities paid scholarships to athletes

who were ineligible, and the universities, who required their

athletes to verify eligibility, then sent those verifications by

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mail to athletic conferences such as the Big Ten. It was those

mailings, by the universities, that served as the basis for the

mail fraud charges. Id. at 1222. The court found that the link

between the defendant’s fraudulent scheme and the mailings by the

colleges - mailings that could not reasonably be foreseen - was too

tenuous. Id. at 1222-23. As the court noted, “[t]he prosecutor

must prove that the use of the mails was foreseeable, rather than

calling on judicial intuition to repair a rickety case.” (emphasis

in original). Id. at 1223-24.

Similarly, in United States v. McClain, the defendants were

engaged in a scheme to submit a fraudulent parking study to the

City of Chicago and, during the course of that scheme, they sought

membership in an organization (the Institutional and Municipal

Parking Congress) because they believed that membership would

bolster their credibility. United States v. McClain, 934 F.2d 822,

835 (7th Cir. 1991). However, while they received the sought-after

membership, the defendants ultimately decided not to use it in

their scheme. A mailing related to obtaining the membership served

as the basis of the mail fraud charge, but the Seventh Circuit

Court of Appeals found that the mailing must be “part of the

execution of the fraud” and that “the mailing before us cannot be

said to have furthered the fraud attempted by the conspirators.” 

Id. 

Each of these cases were decided by examining the facts,

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including the nature of the scheme and the nature of the mailing. 

“The relevant question at all times is whether the mailing is part

of the execution of the scheme as conceived by the perpetrator at

the time....” Schmuck v. United States, 489 U.S. 705, 715 (1989). 

In this case, Stochel argues that the indictment fails to

allege how the theft of funds in 2006 can be part of the same

scheme resulting in the mailing of a Rule 60 motion in 2012. While

the Court agrees that it is a large gap in time, this argument

ignores several allegations in the indictment itself regarding the

scope of the alleged scheme. The indictment alleges a scheme that

spanned from 2001 through June of 2012. (DE #1 at ¶ 7). It

alleges that the scheme’s purpose included lulling the victims into

a false sense of security. (DE #1 at ¶ 8). And, it alleges a

variety of actions by Stochel designed to achieve this goal:

depositing personal funds into the receivership account to pay

expenses with receivership checks, causing delay when asked for an

accounting, representing that the account was sufficiently funded,

representing in court hearings and pleadings that the account

balance was what it should have been but for his theft,

representing that the receivership account balance would be drained

by his own fees, and - finally - drafting and mailing the Rule 60

motion that falsely represented that the receiver had adequate

funds to pay an accountant when required. (DE #1 at ¶¶ 10-17). The

indictment does not allege specific dates when each one of these

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events occurred, but that is not required. The allegations of the

indictment, taken in the light most favorable to the Government,

suggest a lengthy scheme involving both the theft of funds and

steps to hide that theft which continued until the time of the

mailing of the Rule 60 motion. The five-plus year alleged break

between the theft and the mailing suggested by Stochel, if true,

might support his theory that there was not one lengthy scheme

involving both theft and lulling, but in the context of a motion to

dismiss, this Court must construe the facts in the light most

favorable to the Government. 

If this case proceeds to trial, the Government will be put to

the task of proving that the scheme alleged in the indictment

existed (meaning that the scheme contemplated both obtaining the

monies by fraud and lulling his victims into believing no theft had

occurred) and that the mailing in question was sent for the purpose

of carrying out the scheme or attempting to do so. The gap in time

between the theft of the monies and the mailing may be an obstacle

to making the required showing. This Court cannot say, however,

that based on the indictment before it, the Government as a matter

of law will be unable to prove the alleged scheme existed. 

One additional matter must be addressed. Stochel’s motion

alleges that the “extension of the statute of limitations” led to

violations of the ex post facto, bill of attainder and due process

clauses of the United States Constitution. (DE # 13). Other than

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referencing the provisions themselves, no argument is set forth in

the motion itself, and those constitutional provisions are

mentioned nowhere in the memorandum supporting the motion. Because

these arguments were not developed in any meaningful way, they

cannot be addressed by the Court and are deemed waived.1 

CONCLUSION

For the reasons set forth below, the motion to dismiss the

indictment (DE #13) is DENIED. 

DATED: July 22, 2016 /s/ RUDY LOZANO, Judge

United States District Court

1 This does not appear to be prejudicial to Stochel. Neither the ex

post facto clause nor the bill of attainder clause appear to have any

application in this case, and no argument in the memorandum would suggests

that the due process clause is implicated in any way other than the alleged

violation of the statute of limitations. Additionally, the failure to develop

these arguments was pointed out in the Government’s response brief, and no

reply was filed, further suggesting that waiver is appropriate here. 

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