constitutes a single offense.
And the discussion that follows makes plain the propriety of the
present Count One charge in those terms, for Schumann is indeed
asserted to have engaged in a continuing course of conduct in
carrying out his asserted scheme.’

Accordingly Schumann’s first motion is granted, while his
second is denied. This action is set for a status hearing at

9 a.m. March 16 to set a timetable for further proceedings.

Milton I. Shadur
Senior United States District Judge

Date: March 8, 2006

2 As for Schumann's related contention that the lack of

particularization might impermissibly permit conviction on a
nonunanimous basis (on the premise that some jurors might find
one fact to have been falsified, concealed or covered up while
other jurors might rely on a different fact), that risk can
readily be avoided by appropriate jury instructions that require
unanimity as to a fact or facts as a precondition to a guilty
finding.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,

Plaintiff,

)
}
}
)
v. ) No. 04 CR 660
)

EDWARD SCHUMANN, )

)

Defendant. }

MEMORANDUM OPINION AND ORDER

This criminal case was put on hold for a very long time
period (more than a year) because of the agreed-upon need to
determine the mental competency of defendant Edward Schumann
Schumann”), After last month’s ultimate receipt and
consideration of a truly comprehensive psychological and
neuropsychological evaluation of that question (comprising no
fewer than 25 single-spaced pages), Schumann and his counsel
withdrew their earlier-filed request for a competency hearing.
That brought to the fore two motions that had long since been
filed by Schumann's counsel, responded to by the government and
then placed on the back burner during the period that Schumann’s
competency was in issue:

1. Schumann's motion to strike from the indictment the
sentencing allegations that followed its three substantive
counts and

2. Schumann’s motion to dismiss Count One of the

indictment.



Little needs to be said as to the first of those motions.

Here the indictment was returned back in July 2004, before the

Supreme Court’s definitive dual pronouncement in United States v.
Booker, 125 S.Ct. 738 (2005). To this Court’s understanding, the
issues to which the sentencing allegations speak pose no threat
that could run afoul of Apprendi _v. New Jersey, 430 U.S. 460
(2000), so that post-Booker those issues may be resolved by this
Court without submission to a jury. Accordingly, unless the
government can explain any continued need for the retention of
the sentencing allegations, Schumann’s motion is granted,

As for Count One, here is the operative paragraph that
charges Schumann with engaging in a protracted scheme in asserted
violation of 18 U.S.C. §1001(a) (1):

2. Beginning no later than September 1996, and
continuing until at least in or about August 1999, at
Chicago, Bedford Park, Matteson, in the Northern
District of Illincis, Eastern Divisicn, and elsewhere,
EDWARD SCHUMANN, also known as, “Ed Sumanas,” defendant
herein, knowingly and willfully falsified, concealed,
and covered up by a scheme material facts with respect
to applications for extensions of B-1 and B-2 visas, a
matter within the jurisdiction of the INS, an agency of
the executive branch of the Government of the United
States, namely, that certain Applicants were eligible
for extensions of B-1 and B-2 visas when, in fact, they
were not eligible for such extensions,’

Schumann’s counsel challenges Count One (1) as duplicitous

because it assertedly alleges more than one offense, (2) as

1 [Footnote by this Court] That charge is followed by nine
paragraphs that details the operation of the alleged scheme.

2



untimely because certain of the alleged offenses were committed
more than five years before return of the indictment and (3) as
insufficiently particularized as to the allegedly false
statements attributed to Schumann. At their core, all three of
those contentions rely on the notion that every one of the
transactions that implemented the scheme adverted to in Count
One--each individual material fact that was assertedly falsified,
concealed or covered up--must be the subject of a separate count
in the indictment.

In response the United States persuasively points to the per

curiam decision in United States v. Hubbell, 177 F.3d 11, 13-14

(D.C. Cir. 1999), which holds “that §1001 allows prosecution of
‘scheme crimes,’” a term that aptly describes Count One.
Schumann’s counsel seeks to discount the persuasiveness of that
decision by asserting (correctly, of course) that Hybbell is not
a Seventh Circuit decision and pointing instead to the discussion

in United States v. Buchmeier, 255 F.3d 415, 421-24 (7* Cir.

2001).

But the difficulty with that contention is that, fairly
read, Buchmeier supports the government’s position rather than
Schumann’s, At the outset of its analysis (255 F.3d at 421) the
Buchmejer opinion states:

However, an indictment charging multiple acts in the

same count, each of which could be charged as a

separate offense, may not be duplicitous where these
acts comprise a continuing course of conduct that