UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES,

Plaintiff,

v. Criminal Case No. 08-20633

Honorable Patrick J. Duggan

JERRY LATIMORE and

LUTHER GILFORD,

Defendants.

____________________________/

OPINION AND ORDER 

At a session of said Court, held in the U.S.

District Courthouse, Eastern District

of Michigan, on February 2, 2010.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

 U.S. DISTRICT COURT JUDGE

Defendants Jerry Latimore and Luther Gilford (collectively “Defendants”) are

charged in a one count Indictment with Theft of Trade Secrets in violation of 18 U.S.C.

§§ 1832(a)(1)-(4). Presently before the Court are the following motions filed on October

16, 2009:

(1) Defendant Latimore’s Motion to Dismiss Indictment

Due to Excessive Pre-Indictment Delay (Doc. 36);

(2) Motion of Defendant Gilford to Dismiss Indictment on

Grounds of Statute of Limitations (Doc. 38);

(3) Motion of Defendant Gilford to Dismiss Indictment as

Duplicitous (Doc. 39);

(4) Motion of Defendant Gilford to Dismiss Indictment on

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Fifth Amendment Due Process Grounds (Doc. 42).

Gilford has filed a notice of joinder in Latimore’s motion to dismiss. (Doc. 49.) Latimore

has filed a notice of joinder in Gilford’s motions to dismiss (Doc. 41.) On November 10,

2009, the Government filed a consolidated response to Defendants’ motions. The Court

held a hearing with respect to the motions on November 16, 2009.

I. Factual and Procedural Background

According to the Government, this case arises from a scheme to steal trade secrets

from Visteon, Incorporated and sell them to American Axle Corporation. At the time,

Latimore worked as a Senior Engineer at Visteon and Visteon and American Axle were

embroiled in civil litigation involving a contract dispute. Gilford and Latimore were

friends.

In late September 2003, Gilford approached American Axle’s legal department and

indicated that he was representing a Visteon employee who had valuable Visteon

documents to sell (including documents that Visteon failed to produce in discovery). 

Through the month of October, Gilford met with other American Axle representatives,

including Chuck Martel (a private investigator hired by a law firm representing American

Axle) and conveyed his offer. To demonstrate that the offer was serious, Gilford showed

a Visteon document to Martel on October 15, 2003. While Gilford allowed Martel to take

notes, he did not allow Martel to take the document. At the end of October, Martel

brought the case to the FBI.

Gilford and Martel met again on November 18, at which time Martel gave Gilford

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a check for $5,000 in exchange for six (6) Visteon documents. At the request of the FBI,

these documents were reviewed by American Axle attorneys involved in the

Visteon/American Axle litigation to determine if they had been produced in discovery. 

Gilford and Martel met again on November 25, at which time Gilford told Martel that

there were approximately three to four thousand documents to be sold and that his client

would not meet with anyone or talk about the documents until a contract was signed.

At a meeting on December 16, 2003, Martel introduced Gilford to FBI Special

Agent William Fleming, who was posing as an attorney working for American Axle. On

December 19, Gilford met with Fleming again to discuss the contract and the purchase of

the documents. Gilford and Fleming agreed that Gilford would deliver the remaining

documents at the next meeting in exchange for cash and a signed agreement. Latimore

was to be at the next meeting to confirm that the documents came from Visteon.

On December 22, 2003, FBI agents met with an Associate General Counsel for

Visteon, who reviewed some of the documents that Gilford already had provided. 

Visteon’s counsel confirmed that the documents were proprietary Visteon documents

which contained confidential information. The following day, Gilford and Latimore met

with Agent Fleming. Latimore and Gilford provided Agent Fleming various documents,

the parties then signed an agreement, and Agent Fleming paid Gilford and Latimore. 

Gilford and Latimore then were arrested and transported to the FBI’s offices.

A criminal complaint was filed on December 23, 2003. On January 12, 2004, the

Government dismissed the criminal complaint allegedly to continue its investigation. On

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December 2, 2008, a grand jury sitting in the Eastern District of Michigan returned the

pending Indictment.

In the interim, on September 15, 2004, Gilford showed up at the law firm

representing American Axle in its dispute with Visteon and asked to speak with an

attorney. Although he spoke with an attorney who was not assigned to the litigation,

Gilford indicated that he had been “indicted” and was looking for some “financial

assistance.” The attorney told Gilford that he would need to contact the attorneys who

handled the Visteon/American Axle litigation. Those attorneys then contacted the FBI. 

One of the attorneys then called Gilford on September 21, 2004. The FBI monitored the

call. During this call, Gilford indicated that he did not want to talk over the phone but

wanted to meet in person. When the attorney refused, Gilford did not pursue the issue

further.

From 2004 through 2005, the Assistant United States Attorney assigned to the case

(Terrence Berg) continue to pursue the case, including discussions with defense counsel. 

In November 2005, then-AUSA Berg conducted a “reverse proffer” with Defendants, at

which the Government provided a power point presentation of the Government’s case. 

Rule 11 plea agreements also were tendered to Defendants at that time.

Efforts to resolve the case were pursued through 2006. At about that time, AUSA

Berg was appointed acting United States Attorney for the Eastern District of Michigan. 

In March 2008, a new AUSA was assigned to the case and thereafter obtained the

Indictment.

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II. Motions to Dismiss

A. Statute of Limitations

Gilford moves to dismiss the Indictment on statute of limitations grounds. The

parties agree that the five year statute of limitations set forth in 18 U.S.C. § 3282 governs. 

The parties disagree, however, as to when the limitations period began to run.

Gilford argues that the acts proscribed by 18 U.S.C. § 1832 were committed by

October 2003, and therefore the statute of limitations expired in October 2008. Gilford

maintains– in anticipation of what he believes will be the Government’s response– that

theft of a trade secret is not a continuing offense. In fact, the Government does not make

this argument in response to Gilford’s motion. Instead, the Government maintains that

the offense was not completed until December 23, 2003, when Gilford and Latimore

actually handed over the documents to Agent Fleming.

The Indictment alleges, in relevant part, that Defendants:

did knowingly and intentionally, with the intent to convert

information that included a trade secret . . . belonging to

Visteon, Incorporated, which were related to products

produced for interstate and foreign commerce, to the

economic benefit of a person other than the owner thereof,

and intending and knowing that the offense would injure the

owner of the trade secret:

(a) steal, or without authorization appropriate, take, and

carry away such information, in violation of Title 18,

United States Code, Section 1832(a)(1);

(b) copy and duplicate such information without

authorization, in violation of Title 18, United States

Code [Section] 1832(a)(2);

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18 U.S.C. § 1832(a)(1) refers to the stealing or without authorization

appropriating, taking, and carrying away of the information.

2

18 U.S.C. § 1832(a)(2) refers, in part, to copying and duplicating the information. 

Notably, this section also includes the act of delivering the information (which Gilford

and Latimore completed on December 23, 2003); however, the Indictment does not

specifically charge them with violating the statute through this action.

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(c) receive and possess such trade secrets knowing the

same to have been stolen, appropriated, and converted

without authorization, in violation of Title 18, United

States Code [Section] 1832(a)(3); and

(d) aid and abet each other and attempt to do all of the

above, in violation of Title 18, United States Code

[Section] 1832(a)(4).

(Doc. 1.) Notably, the Government indicates in its response brief that it “does not dispute

that Latimore was in lawful possession of the documents [at issue].” (Doc. 51 at 7.) As a

result, the crime was not complete– at least with respect to Latimore– simply when he

took possession of Visteon’s documents.

Also as a result, the Court does not believe that Latimore appropriated the

documents without Visteon’s authorization until he delivered the documents to American

Axle on December 23, 2003. The allegation in the Indictment that Latimore violated

§ 1832(a)(1)1

 and that Gilmore aided and abetted Latimore in this violation therefore are

not time-barred. The Court is not aware of when Gilford received and possessed the

documents or when Latimore and/or Gilford copied and duplicated the documents. Thus

the Court cannot rule as to whether the statute of limitations bars the Government’s

charge that Defendants violated § 1832(a)(2)2

 or its charge that Gilford violated

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§§ 1832(a)(1). The Court concludes, however, that the statute of limitations bars the

Government’s charge that Latimore and Gilford engaged in attempted theft of trade

secrets in violation of § 1832(a)(4).

Attempted theft of trade secrets requires proof that the defendant (1) had the intent

needed to commit a crime defined by the statute, and (2) performed an act amounting to a

“substantial step” toward the commission of that crime. See United States v. Hsu, 155

F.3d 189 (3d Cir. 1998). These elements were satisfied the first time Gilford approached

American Axle offering to sell Visteon’s documents. As indicated above, this occurred in

late September 2003. The five-year statute of limitations therefore bars the Government’s

attempted theft of trade secret charge pursuant to § 1832(a)(4).

Based on the above, the Court grants in part and denies in part Gilford’s motion to

dismiss based on the statute of limitations (Doc. 38).

B. Due Process Violation Based on Pre-Indictment Delay

Latimore moves to dismiss the Indictment based on what he asserts was “excessive

and unjustifiable” pre-indictment delay. The statute of limitations sets a time limit on

pre-indictment delay by barring prosecution if a defendant is not indicted by the time the

limitations period has run. However, “the statute of limitations does not fully define the

[defendant’s] rights with respect to the events occurring prior to indictment.” United

States v. Marion, 404 U.S. 307, 324, 92 S. Ct. 455, 465 (1971). The Due Process Clause

of the Fifth Amendment requires dismissal of an indictment if the defendant shows that

any pre-indictment delay “caused substantial prejudice to the [defendant’s] rights to a fair

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trial and that delay was an intentional device to gain tactical advantage over the accused.” 

Id.

Latimore argues that he has suffered actual prejudice by the pre-indictment delay

in this case through the loss of evidence and witnesses. Specifically, Latimore asserts

prejudice due to the loss of his laptop computer, which the FBI seized upon his arrest in

December 2003 and has since lost. (See Doc. 36 Ex. A (Macomb County Sheriff Report

indicating that Latimore’s laptop was logged into evidence but could not be found when

the property room subsequently was searched)). Latimore contends that information on

the computer “would have shown that [he] was lawfully in possession of Visteon

materials” and “that the designation of some documents had been changed from non

confidential to confidential as a result of [the Visteon/American Axle litigation].” (Id. at

3.) Latimore further contends that “[o]ther facts critical to [his] defense were contained

within this computer as well.” (Id.) Finally, Latimore claims that he has been denied the

ability to find material witnesses as a result of the delay and that the memories of other

witnesses will have faded. Latimore maintains that the Government lacks a valid or

justifiable reason for the pre-indictment delay and, therefore, “it can be inferred that the

delay was intentional to gain a tactical advantage.” (Id. at 4.)

Latimore fails to establish “substantial prejudice” resulting from the pre-indictment

delay in this case. The Sixth Circuit Court of Appeals has rejected a defendant’s claim of

prejudice based on witnesses’ loss of memory, finding that the claim fails as a matter of

law. United States v. Wright, 343 F.3d 849, 860 (6th Cir. 2003), cert. denied, 541 U.S.

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990 (2004) (citing Payne v. Rees, 738 F.2d 118, 121-22 (6th Cir. 1984)). Latimore’s

vague assertions that material witnesses have been lost as a result of the delay and that

“other facts” critical to his defense were contained on his lost laptop computer also are

insufficient to support a finding that he has suffered prejudice by the delay. See Randle v.

Jackson, 544 F. Supp. 2d 619, 631 (E.D. Mich. 2008) (citing United States v. Beszborn,

21 F.3d 62, 67 (5th Cir. 1994) (“[A] vague assertion that memories have diminished,

witnesses have been lost, and documents have been misplaced does not establish

prejudice from a pre-charge delay.”)

With respect to the loss of his laptop computer, the Government concedes in its

response brief that Latimore lawfully possessed Visteon’s documents. Therefore,

Latimore cannot claim prejudice resulting from the loss of information on the computer

showing the same. The Court does not believe that Latimore establishes substantial

prejudice to his defense because he no longer has access to his laptop to establish a

change in the designation of “some” documents as a result of the Visteon/American Axle

litigation. The Court expects that proof of any changes can be gained through other

means (e.g. discovery from Visteon). Moreover, the Government indicates that it is

attempting to locate a mirror image of the laptop’s hard drive that it provided to Visteon

pursuant to a discovery order in the Visteon/American Axle litigation and that it is

inquiring as to whether the hard drive still is available. (Doc. 51 at 7 n. 3.)

In any event, Latimore fails to demonstrate that the pre-indictment delay was an

intentional device by the Government to gain a tactical advantage over Defendants. 

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There is no evidence that the delay was intentional. In fact, Latimore himself surmises

that the case “appears to have ‘fallen through the cracks.’” (Doc. 36 at 4.) In actuality,

the Government’s response reflects that it was attempting to negotiate a settlement with

Defendants through at least sometime in 2006 and that the case may have fallen through

the cracks at some point in 2006– not because of any wrongful intent– but due to Mr.

Berg’s work load and appointment around that time as First Assistant United States

Attorney. Further undermining any claim that the delay was an intentional device to gain

a tactical advantage is the fact that the Government provided discovery to Defendants

early in the case.

Therefore, the Court denies Latimore’s motion to dismiss due to pre-indictment

delay (Doc. 36).

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C. Fifth Amendment Due Process

Gilford also moves to dismiss the Indictment on Fifth Amendment due process

grounds based on pre-indictment delay, as well as his claim that the Government engaged

in “outrageous conduct.” Gilford makes the same or similar arguments as Latimore to

demonstrate prejudice resulting from the pre-indictment delay. Gilford does not offer

anything different to demonstrate that the delay was an intentional effort by the

Government to gain a tactical advantage. With respect to his assertion that the

Government engaged in outrageous conduct resulting in the violation of his due process

rights, Gilford specifically alleges the following actions or inactions by the Government:

(1) fail[ing] to notify Visteon of its victimization, then

carry[ing] out a sting operation in which it allowed what it

believed were trade secrets to circulate unchecked, ignoring

its obligation to prevent or limit criminal activity and finally

continued to do nothing to protect the alleged “trade secrets,”

for five years after it dismissed the charges; and/or (2)

notif[ying] Visteon of its alleged victimization during the

sting operation, watch[ing] Visteon do nothing to protect

against a then known risk– in essence doing nothing then to

protect the secrecy of those “trade secrets” from disclosure,

and finally present[ing] its evidence and indictment to the

grand jury knowing that it could not meet an essential element

of the offense.

(Doc. 42 at 5.) Gilford also contends that the Government violated his Sixth Amendment

right to counsel when the FBI monitored the September 21, 2004 call between himself

and an attorney representing American Axle.

Nothing about the facts presented to this Court thus far suggests that the

Government engaged in an inappropriate sting operation or that it did not adequately

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The Government indicates that there were no admissions or statements made

during the monitored call and that it does not intent to use the contact in any evidentiary

way. (Doc. 51 at 17.)

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protect Visteon’s alleged trade secrets. The first set of documents actually given by

Gilford to Martel were shown only to lawyers for American Axle who were subject to a

non-disclosure agreement in the litigation with Visteon. There is no evidence that there

was a “circulation” of the documents at issue.

There also is no support for Gilford’s claim that his Sixth Amendment rights were

violated when the FBI monitored his phone call with an American Axle attorney after

Gilford made a request for “financial assistance.” Gilford’s conduct suggested that he

was engaged in an offense unrelated to the charge offense. See Texas v. Cobb, 532 U.S.

162, 121 S. Ct. 1335 (2001) (holding that the Sixth Amendment attaches only to charged

offenses and that there is no exception for “factually related” uncharged offenses.) In any

event, even if the monitoring of the phone call constituted a Sixth Amendment violation,

dismissal pursuant to the Fifth Amendment’s Due Process Clause is not the proper

response.3

“The level of outrageousness needed to prove a due process violation is ‘quite

high,’ and the government’s conduct must ‘shock the conscience of the court.’” United

States v. Pardue, 983 F.2d 843, 847 (8th Cir. 1993) (quoting United States v. Jacobson,

916 F.2d 467, 469 (8th Cir. 1990), rev’d on other grounds, 503 U.S. 540, 112 S. Ct. 1535

(1992)). The Government’s conduct that Gilford alleges to support his due process claim

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does not fall within “that narrow band of ‘the most intolerable government conduct’ for

which the defense [of a due process violation] is reserved.” Id. (quoting United States v.

Musslyn, 865 F.2d 945, 947 (8th Cir. 1989)).

For the above reasons, the Court denies Gilford’s motion to dismiss the Indictment

on Fifth Amendment due process grounds (Doc. 42).

D. Duplicity of the Indictment

Gilford contends that the Indictment is duplicitous in that it charges multiple

offenses in a single count, causing prejudice to Defendants that cannot be cured by jury

instructions. “An indictment is duplicitous if ‘it joins in a single count two or more

distinct and separate offenses.’” United States v. Shumpert Hood, 210 F.3d 660, 662 (6th

Cir. 2000) (quoting United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir. 1981)). 

However, “[i]t is not duplicitous to allege in one count that multiple means have been

used to commit a single offense.” United States v. Damrah, 412 F.3d 618, 622-23 (6th

Cir. 2005) (citing Fed. R. Crim. P. 7(c)(1)).

Here, the Indictment alleges a single offense (theft of trade secrets) and alternative

means by which Defendants committed the offense. As such, it is not duplicitous. Even

if it were, however, the violation is not fatal to the Indictment. See United States v.

Robinson, 651 F.2d 1188, 1194 (6th Cir. 1981) (“The rules about multiplicity and

duplicity are pleading rules, the violation of which is not fatal to an indictment. 

Defendant’s remedy is to move to require the prosecution to elect either the count or the

charge within the count upon which it will rely . . . Additionally, a duplicitous or

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multiplicitous indictment is remediable by the court’s instruction to the jury

particularizing the distinct offense charged in each count in the indictment.”) The Court

therefore denies Gilford’s motion to dismiss the Indictment as duplicitous (Doc. 39).

III. Conclusion

Based on the above, the Court denies Gilford’s Motion to Dismiss Indictment as

Duplicitous and his Motion to Dismiss Indictment on Fifth Amendment Due Process

Grounds (Docs. 39 and 42, respectively). The Court also denies Latimore’s Motion to

Dismiss Indictment Due to Excessive Pre-Indictment Delay (Doc. 36.) Gilford’s Motion

to Dismiss on Grounds of Statute of Limitations is granted in part and denied in part, in

that the Court finds at this time that the charge of attempted theft of trade secrets in

violation of 18 U.S.C. § 1832(a)(4) is time-barred.

SO ORDERED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

AUSA Graham L. Teall

Andrew Densemo, Esq.

Fritz E. Berckmueller, Esq.

Virginia A. Davidson, Esq.

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