UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

UNITED STATES OF AMERICA 

vs. 

GEORGE HOLLEY and PHAIROT 

IAMNAITA, 

Defendants. 

Case No. 3:11-cr-00066 (JAP) 

Oral Argument Requested

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION 

TO DISMISS COUNTS ONE THROUGH SIX AS DUPLICITOUS, TO MERGE 

COUNTS TWO THROUGH FOUR AS MULTIPLICITOUS, AND TO STRIKE 

SURPLUSAGE FROM THE INDICTMENT UNDER FEDERAL RULE OF CRIMINAL 

PROCEDURE 7(D) 

MARINO, TORTORELLA & BOYLE, P.C. CRITCHLEY, KINUM & VAZQUEZ, LLC 

437 Southern Boulevard 75 Livingston Avenue 

Chatham, New Jersey 07928-1488 Roseland, NJ 07068 

(973) 824-9300 (973) 422-9200 

Attorneys for Defendant George Holley Attorneys for Defendant Phairot Iamnaita

On the Brief: 

 Kevin H. Marino, Esq. 

 John D. Tortorella, Esq. 

 John A. Boyle, Esq. 

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii 

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................2

LEGAL ARGUMENT .....................................................................................................................5

I. THE INDICTMENT IS DEFECTIVE BECAUSE IT IS AT ONCE 

DUPLICITOUS AND MULTIPLICITOUS. .......................................................................5

A. Counts One Through Six Of The Indictment Should Be Dismissed As Duplicitous 

Because They Improperly Join Disparate Alleged Instances Of Tipping In A 

Single Count. ........................................................................................................................5

B. Counts Two Through Four Of The Indictment Should Be Dismissed As 

Multiplicitous Because They Improperly Charge A Single Alleged Instance Of 

Securities Fraud In Multiple Counts. ....................................................................................8

II. IF COUNTS ONE THROUGH SIX ARE NOT DISMISSED AS DUPLICITOUS 

OR MULTIPLICITOUS, THE ALLEGATIONS RELATING TO TIPPING 

INVESTORS WHO ARE NOT INCLUDED IN ANY COUNT SHOULD BE 

STRICKEN AS SURPLUSAGE. ........................................................................................9

A. Allegations In The Indictment Relating To The Alleged Tipping Of Investors #2, 

#3 and #4 In Counts One Through Six Should Be Stricken As Surplusage. ........................9

B. Allegations In The Indictment Relating To Holley’s Production Of Documents To 

The Securities and Exchange Commission And References To The Investigation 

By The FBI and U.S. Attorney’s Office In Counts Seven And Eight Should Be 

Struck As Surplusage. .........................................................................................................16

CONCLUSION ..............................................................................................................................23

 

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TABLE OF AUTHORITIES

Cases

Bell v. United States, 

349 U.S. 81 (1955) ...................................................................................................................... 6 

Hobley v. Lotito, 

No. 03 C 3678, 2004 U.S. Dist. LEXIS 20844 (N.D. Ill. Oct. 13, 2004) ................................. 20 

United States v. Alsugair, 

256 F. Supp. 2d 306 (D.N.J. 2003) ..................................................................................... 12, 15 

United States v. Black, 

No. 05 CR 727, 2007 U.S. Dist. LEXIS 81777 (N.D. Ill. Nov. 5, 2007) ................................. 20 

United States v. Bullock, 

451 F.2d 884 (5th Cir. 1971) .................................................................................................... 10 

United States v. Cooper, 

384 F. Supp. 2d 958 (W.D. Va. 2005) ...................................................................................... 10 

United States v. Davis, 

183 F.3d 231 (3d Cir. 1999) ............................................................................................... 20, 21 

United States v. Dunn, 

434 F. Supp. 2d 1203 (N.D. Ala. 2006) ........................................................................ 20, 21, 22 

United States v. Flemming, 

617 F.3d 252 (3d Cir. 2010) ..................................................................................................... 22 

United States v. Gabriel, 

125 F.3d 89 (2d Cir. 1997) ....................................................................................................... 19 

United States v. Gatto, 

746 F. Supp. 432 (D.N.J. 1990) ................................................................................................ 15 

United States v. Giampa,

 904 F. Supp. 235 (D.N.J. 1995) ............................................................................................... 10 

United States v. Haddy, 

134 F.3d 542 (3d Cir. 1998) ............................................................................................... 5, 6, 8 

United States v. Hartsell, 

127 F.3d 343 (4th Cir. 1997) .................................................................................................... 10 

United States v. Hedgepeth, 

434 F.3d 609 (3d Cir. 2006) ................................................................................................. 9, 10 

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iii 

United States v. Ho, 

651 F. Supp. 2d 1191 (D. Haw. 2009) ...................................................................................... 20 

United States v. Jardine, 

No. 04-219, 2004 U.S. Dist. LEXIS 20414 (E.D. Pa. Oct. 12, 2004) ................................ 12, 13 

United States v. Lalley, 

No. 10-326, 2010 U.S. Dist. LEXIS 106857 (D.N.J. Oct. 5, 2010) ............................... 9, 10, 11 

United States v. Langford, 

946 F.2d 798 (11th Cir. 1991) ................................................................................................ 6, 8 

United States v. Ng, 

26 Fed. Appx. 452 (6th Cir. 2001) .............................................................................................. 9 

United States v. Peterson, 

627 F. Supp. 2d 1359 (M.D. Ga. 2008) .................................................................................... 20 

United States v. Phillips, 

583 F.3d 1261 (10th Cir. 2009) ................................................................................................ 19 

United States v. Pollen, 

978 F.2d 78 (3d Cir. 1992) ......................................................................................................... 8 

United States v. Ramos, 

537 F.3d 439 (5th Cir. 2008) .............................................................................................. 19, 22 

United States v. Rigas, 

605 F.3d 194 (3d Cir. 2010) ................................................................................................... 5, 6 

United States v. Root, 

585 F.3d 145 (3d Cir. 2009) ................................................................................................... 6, 7 

United States v. Schlei, 

122 F.3d 944 (11th Cir. 1997) .................................................................................................... 6 

United States v. Simpson, 

No. 3:09-CR-249, 2011 U.S. Dist. LEXIS 76881 (N.D. Tex. July 15, 2011) .................... 20, 22 

United States v. Williams, 

203 F.2d 572 (5th Cir. 1953) .................................................................................................... 17 

Statutes

18 U.S.C. § 1503 ........................................................................................................................... 20 

18 U.S.C. § 1515(a)(1)(A)-(D) ............................................................................................... 19, 22 

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Rules

Black’s Law Dictionary (9th ed. 2009) ......................................................................................... 21 

Regulations

Fed. R. Crim. P. 7(d) ....................................................................................................................... 9 

Journals & Treatises

1 Charles Alan Wright et al, Fed. Prac. & Proc. Crim. § 128 (4th ed.) .......................................... 9 

1A Charles Alan Wright et al., Fed. Prac. & Proc. Crim. § 142 (4th ed.) ...................................... 6 

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PRELIMINARY STATEMENT

Defendants, George Holley (“Holley”) and Phairot Iamnaita (“Iamnaita”), respectfully 

submit this memorandum of law in support of their motion to dismiss Counts One through Six of 

the Indictment as duplicitous, to merge Counts Two through Four as multiplicitous, and to strike 

surplusage from any remaining counts of the Indictment pursuant to Federal Rule of Criminal 

Procedure 7(d). The Indictment charges Holley and Iamnaita with securities fraud, wire fraud 

and conspiracy to commit securities fraud, and also charges Holley with obstruction of justice. 

Although the Indictment should be dismissed for violating Defendants fifth and sixth amendment 

rights as set forth in Defendants’ accompanying motion, it is defective for the additional reasons 

that it improperly joins separate offenses in a single count and includes a host of irrelevant and 

prejudicial allegations and references. 

The securities fraud, wire fraud and conspiracy allegations contained in Counts One 

through Six of the Indictment suffer from duplicity because they allege that Holley tipped 

Iamnaita, Investor #1, Investor #2, Investor #3 and Investor #4 as part of a single scheme, rather 

than charging each tip as a separate violation of the securities laws. If Holley and Iamnaita were 

convicted on any of these counts, therefore, it would not be clear whether the jury convicted 

them on the basis of evidence relating to alleged tips to any one of the investors or some 

combination of them. This is the classic danger that the doctrine of duplicity protects against, 

and the Court should therefore dismiss Counts One through Six on that ground. 

If the Court determines that Counts One through Six — or some subset of them — are 

not duplicitous, it should strike as surplusage a host of irrelevant and prejudicial allegations in 

any undismissed count(s). These include: (1) allegations that Holley tipped three investors in 

addition to those he is expressly charged with tipping; (2) references to unidentified “others” as 

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participants or co-conspirators in the charged conduct; and (3) references to investigations 

unrelated to the official proceeding Holley is charged with impeding (and, in so doing, 

obstructing justice). These additional allegations and references are irrelevant and prejudicial. 

Accordingly, they must be stricken from the Indictment should the Court deny Defendants’ 

Motion to Dismiss. 

STATEMENT OF FACTS

The Indictment alleges that Holley and Iamnaita participated in an insider trading scheme 

in which Holley provided material nonpublic information to Iamnaita and others who traded on 

the information and thereby received illegal profits. (Indictment, Counts One through Four, ¶¶ 2-

31.) Count One of the Indictment charges Holley with insider trading for allegedly disclosing 

inside information to Investor #1 about the anticipated acquisition of HDI by Nipro. (Id., Counts 

One through Four, ¶ 21, 31.) Holley is alleged to have specifically told Investor #1 that a 

company wished to acquire Home Diagnostics and that the negotiations were going well. (Id., 

Counts One through Four, ¶ 21.) Counts Two through Four charge Holley and Iamnaita with 

insider trading regarding three purchases of Home Diagnostics stock made on behalf of Iamnaita 

in January 2010. (Id., Counts One through Four, ¶ 31.) The Indictment alleges that Holley 

disclosed inside information to Iamnaita and Iamnaita executed the purchase of Home 

Diagnostics stock based on that information. (Id., Counts One through Four, ¶¶ 3-5, 31.) 

Although paragraph 31 does not identify the alleged purchases by Investor #2, Investor #3 or 

Investor #4, the trades of those investors are included as part of the scheme to defraud as 

described in paragraphs 2, 4 and 5 of Counts One through Four. (Id., ¶¶ 2, 4-5.) 

Count Five of the Indictment charges Holley and Iamnaita with conspiracy to commit 

securities fraud. (Id., Count Five, ¶¶ 1-3.) The Indictment alleges that Holley and Iamnaita 

conspired and agreed with each other and others to commit securities fraud through the insider 

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trading scheme charged in Counts One through Four. (Id.) The Indictment alleges that the 

Defendants committed three overt acts in furtherance of the conspiracy: (1) Holley sent a 

$121,700 check to CW-1 to fund the purchase of Home Diagnostics stock on behalf of Iamnaita; 

(2) CW-1 wired approximately $120,000 from a bank account to a Merrill Lynch account for 

Iamnaita; and (3) CW-1 and Iamnaita caused the purchase of 6,050 shares of Home Diagnostics 

stock in the Merrill Lynch account. (Id., Count Five, ¶ 3.) Count Five incorporates by reference 

paragraphs 2, 4 and 5 of Counts One through Four, which allege that the insider trading scheme 

included a plan for Investors #1-4 to trade on material non-public information supplied by 

Holley. (Id., Count Five, ¶ 1.) 

Count Six of the Indictment charges Holley and Iamnaita with wire fraud based on the 

wire transfer of $120,000 from CW-1’s bank account to the Merrill Lynch account established 

for Iamnaita’s benefit. (Id., Count Six, ¶¶ 1-2.) Count Six also incorporates by reference 

paragraphs 2, 4 and 5 of Counts One through Four, which allege that the insider trading scheme 

included a plan for Investors #1-4 to trade on material non-public information supplied by 

Holley. (Id., Count Six, ¶ 1.) 

Counts Seven and Eight charge Holley with obstruction of justice. (Id., Counts Seven and 

Eight, ¶¶ 1-7.) Count Seven alleges that after Holley learned that the FBI had contacted Investor 

#3 in November 2010,1

 he reminded Investor #3 that Holley had previously given Investor #3 

 

1

 The Indictment contains a clerical error regarding the date on which Holley allegedly 

“reminded Investor #3 that he had previously given Investor #3 several analyst reports 

concerning Home Diagnostics.” (Indictment, Counts Seven and Eight, ¶ 5.) In paragraph 26 of 

Counts One through Four, the Indictment alleges that Holley sent Investor #3 analyst and news 

reports regarding HDI in “late 2009.” In paragraph 5 of Counts Seven and Eight, the Indictment 

alleges that Holley reminded Investor #3 about those reports in November 2009 after learning 

that Investor #3 had been contacted by the FBI. Given that HDI was not sold until February 

2010, it is clear that the reference in paragraph 5 of Counts Seven and Eight should be to 

November 2010, not November 2009. 

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analyst reports concerning Home Diagnostics. (Id., Counts Seven and Eight, ¶ 5.) Count Eight 

alleges that after the FBI approached Investor #2 in December 2010 regarding his purchase of 

Home Diagnostics stock, Holley told his assistant to give Investor #2 analyst and news reports 

concerning Home Diagnostics. (Id., Counts Seven and Eight, ¶¶ 3-4.) 

In addition to the charged conduct, the Indictment alleges conduct that is not related to 

the charges in Counts One through Eight. First, in the section regarding Counts One through 

Four, the Indictment alleges that Holley disclosed inside information to three investors — 

Investors #2, #3, and #4 — about the anticipated merger between Home Diagnostics and Nipro. 

(Id., Counts One through Four, ¶¶ 23-30.) The Indictment alleges that Holley disclosed inside 

information to Investor #2, including that Home Diagnostics was going to be purchased by 

another company, and recommended that Investor #2 purchase Home Diagnostics stock. (Id., 

Counts One through Four, ¶ 23.) According to the Indictment, Holley told Investor #2 to 

consider the information a bonus (i.e., part of his compensation as an employee of one of 

Holley’s companies). (Id.) The Indictment goes on to allege that Holley disclosed inside 

information to Investor #3, including that Home Diagnostics was likely going to be purchased, 

and told Investor #3 that it was a good opportunity to make money on Home Diagnostics stock. 

(Id., Counts One through Four, ¶ 27.) Holley is also alleged to have told Investor #3 that he was 

calling from a telephone line that was not traceable back to Holley. (Id.) The Indictment further 

alleges that Holley disclosed inside information to Investor #4 regarding the anticipated 

acquisition of Home Diagnostics by Nipro. (Id., Counts One through Four, ¶ 29.) Paragraph 31 

of Counts One through Four does not expressly charge Holley with a crime relating to Holley’s 

alleged disclosures to Investor #2, #3, and #4, and the paragraphs regarding Holley’s specific 

interactions with those investors are not realleged in Counts Five through Eight. 

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Second, in Counts Seven and Eight, the Indictment alleges that in April 2010 Holley 

produced analyst reports and press releases concerning Home Diagnostics to the U.S. Securities 

Exchange Commission (“SEC”) in response to an investigative subpoena that did not call for 

their production. (Id., Counts Seven and Eight, ¶ 6.) The Indictment does not charge Holley 

with impeding any proceeding before the SEC. Those Counts also allege that Holley impeded 

investigations being conducted by both the United States Attorney’s Office (USAO) and the FBI 

into insider trading in HDI stock. (Id., Counts Seven and Eight, ¶ 7.) Neither a USAO 

investigation nor an FBI investigation, however, is an “official proceeding” for purposes of an 

obstruction of justice charge. This motion follows. 

LEGAL ARGUMENT

I. THE INDICTMENT IS DEFECTIVE BECAUSE IT IS AT ONCE 

DUPLICITOUS AND MULTIPLICITOUS. 

A. Counts One Through Six Of The Indictment Should Be Dismissed As 

Duplicitous Because They Improperly Join Disparate Alleged 

Instances Of Tipping In A Single Count. 

Duplicity describes “the improper joining of distinct and separate offenses in a single 

count.” United States v. Rigas, 605 F.3d 194, 210 (3d Cir. 2010) (en banc). The danger posed 

by a duplicitous count is that it “‘may conceal the specific charges, prevent the jury from 

deciding guilt or innocence with respect to a particular offense, exploit the risk of prejudicial 

evidentiary rulings, or endanger fair sentencing.’” Id. (quoting United States v. Haddy, 134 F.3d 

542, 548 (3d Cir. 1998)). As explained succinctly by one commentator: 

The vice of duplicity is that there is no way for a jury to convict on 

one offense and acquit on another offense contained in the same 

count. A closely related problem is that, because the jurors have 

two crimes to consider in a single count, they may convict without 

reaching a unanimous agreement on either. A general verdict of 

guilty will not reveal whether the jury unanimously found the 

defendant guilty of either offense, both offenses, or guilty of one 

crime and not guilty of the other. This uncertainty could prejudice 

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defendant in sentencing, in any appellate review, and in guarding 

against double jeopardy. 

1A Charles Alan Wright et al., Fed. Prac. & Proc. Crim. § 142 (4th ed.). As the Third Circuit 

has held, “[a]n impermissibly duplicitous indictment is subject to dismissal.” Rigas, 605 F.3d at 

210; United States v. Schlei, 122 F.3d 944, 979-80 (11th Cir. 1997) (holding that a duplicitous 

securities fraud count contained an offense not properly venued for trial, and that the lack of any 

assurances of jury unanimity required vacation of the conviction on that count). 

To determine whether a particular count in an indictment challenged as duplicitous 

properly charges a violation of the pertinent statute, the court must first determine how Congress 

defined the allowable unit of prosecution. Bell v. United States, 349 U.S. 81 (1955); United 

States v. Root, 585 F.3d 145, 150 (3d Cir. 2009). The Third Circuit has held that the allowable 

unit of prosecution under Section 10(b) of the Exchange Act and Rule 10b-5 may vary 

depending on the type of fraud at issue. Haddy, 134 F.3d at 549. Where, for example, the 

scheme to defraud involves a manipulation of securities prices of separate companies, it may be 

appropriate to charge the scheme as to each company in a separate count. Id. at 549. In other 

cases, however, the allowable unit of prosecution may be a discrete purchase or sale of a 

security. United States v. Langford, 946 F.2d 798, 803 (11th Cir. 1991). In this case, the 

Indictment alleges that the scheme to defraud involves purchases of HDI stock by disparate 

investors based on material non-public information provided by Holley. The allowable unit of 

prosecution in this case, therefore, should be the purchases made by those individual investors. 

To decide otherwise would risk implicating each of the concerns that give rise to the duplicity 

doctrine: (1) avoiding the uncertainty of whether a general verdict of guilty conceals a finding of 

guilty as to one crime and a finding of not guilty as to another; (2) avoiding the risk that the 

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jurors may not have been unanimous as to any one of the crimes charged; (3) assuring the 

defendant adequate notice; (4) providing the basis for appropriate sentencing; and, (5) protecting 

against double jeopardy in a subsequent prosecution. Root, 585 F.3d at 154. 

In this case, the Indictment alleges that Holley tipped Iamnaita, Investor #1, Investor #2, 

Investor #3 and Investor #4 with material non-public information regarding the HDI tender offer 

as part of a scheme that would allow each of them to profit from that information. (Indictment, 

Counts One through Four, ¶¶ 2, 4-5, 6-7, 21-30.) Paragraph 31 of Counts One through Four 

identifies the specific trades by which Holley and Iamnaita are alleged to have committed 

securities fraud as charged in those four counts. Specifically, Count One charges Holley with 

engaging in insider trading by tipping Investor #1, and Counts Two through Four charge Holley 

and Iamnaita with engaging in insider trading — Holley as tipper and Iamnaita as tippee — with 

respect to trades made on Iamnaita’s behalf. Thus, neither in those counts nor elsewhere in the 

Indictment are Holley or Iamnaita charged with insider trading with respect to Investor #2, 

Investor #3 or Investor #4. (Indictment, Counts One through Four, ¶ 31.) Nevertheless, because 

the Indictment makes allegations regarding these investors throughout the preceding thirty (30) 

paragraphs of Counts One through Four, there is a significant risk that a jury might rely solely 

upon evidence relating to those allegations to find Holley and/or Iamnaita guilty on Counts One 

through Four. 

The same risk is presented in Counts Five and Six, which incorporate by reference 

paragraphs 2, 4 and 5 of Counts One through Four. Because the securities fraud counts and the 

conspiracy and wire fraud counts that relate to them incorporate allegations regarding Investors 

#1-4, there is a significant danger that the jury could convict Holley and Iamnaita without 

reaching a unanimous verdict regarding the conduct charged by the grand jury. For the 

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foregoing reasons, we respectfully submit that the Court should dismiss Counts One through Six 

as duplicitous. 

B. Counts Two Through Four Of The Indictment Should Be Dismissed 

As Multiplicitous Because They Improperly Charge A Single Alleged 

Instance Of Securities Fraud In Multiple Counts. 

In addition to being duplicitous because they implicitly incorporate allegations regarding 

Investors #1-4, Counts Two through Four are multiplicitous. United States v. Pollen, 978 F.2d 

78, 83 (3d Cir. 1992). Counts are multiplicitous when they charge a single offense in more than 

one count. Haddy, 134 F.3d at 548 n. 7. Multiplicitous charges pose two dangers. First, as the 

Third Circuit has explained, a multiplicitous indictment may lead to multiple sentences for a 

single violation, a result prohibited by the Double Jeopardy Clause. Pollen, 978 F.2d at 82. 

Second, “a multiplicitous indictment may improperly prejudice a jury by suggesting that a 

defendant has committed several crimes — not one.” Langford, 946 F.2d at 802. 

In this case, Counts Two through Four of the Indictment charge the exact same securities 

trade as three separate offenses. In paragraph 16 of Counts One through Four, the Indictment 

alleges that Dudas and Iamnaita instructed their broker to use the entire $120,000 deposited in 

their joint Merrill Lynch brokerage account to purchase shares of HDI. The paragraph goes on 

to allege that the broker acted on those instructions by purchasing more than 18,000 shares of 

HDI stock between January 19, 2010 and January 26, 2010. (Indictment, Counts One through 

Four, ¶ 16.) 

Paragraph 31 of Counts One through Four, however, charges Holley and Iamnaita with 

three separate counts of securities — one for each block of trades the broker executed to 

complete the order. This is a classic instance of multiplicity because Counts Two, Three and 

Four each charge the same securities transaction allegedly authorized by Dudas and Iamnaita. 

Accordingly, Holley and Iamnaita respectfully request that the Court merge the multiplicitous 

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counts if they are not dismissed for the other reasons raised in Defendants’ motions. United 

States v. Ng, 26 Fed. Appx. 452, 461 (6th Cir. 2001) (“The remedy for multiplicitous 

prosecutions and convictions is for the sentencing court to vacate or merge any multiplicitous 

counts.”) 

II. IF COUNTS ONE THROUGH SIX ARE NOT DISMISSED AS 

DUPLICITOUS OR MULTIPLICITOUS, THE ALLEGATIONS RELATING 

TO TIPPING INVESTORS WHO ARE NOT INCLUDED IN ANY COUNT 

SHOULD BE STRICKEN AS SURPLUSAGE. 

A. Allegations In The Indictment Relating To The Alleged Tipping Of 

Investors #2, #3 and #4 In Counts One Through Six Should Be 

Stricken As Surplusage. 

 Rule 7(d) of the Federal Rules of Criminal Procedure (“Fed. R. Crim. P.”) provides that 

“[u]pon the defendant’s motion, the court may strike surplusage from the indictment....” Fed. R. 

Crim. P. 7(d). As the Advisory Committee Note to the rule explains, the rule provides “a means 

of protecting the defendant against immaterial or irrelevant allegations in an indictment or 

information, which may, however, be prejudicial.” Advisory Committee Note to Fed. R. Crim. 

P. 7(d). This protection is necessary because “[p]rosecutors have been known to insert 

unnecessary allegations for ‘color’ or ‘background[,]’ hoping that these will stimulate the interest 

of jurors.’” 1 Charles Alan Wright et al, Fed. Prac. & Proc. Crim. § 128 (4th ed.). 

In keeping with the Advisory Note, on motions to strike surplusage from an indictment, 

the Third Circuit applies a conjunctive test, which permits the district court, “upon the 

defendant’s timely motion,” to strike surplusage from an indictment when it is both irrelevant or 

immaterial and prejudicial. United States v. Hedgepeth, 434 F.3d 609, 613 (3d Cir. 2006); 

United States v. Lalley, No. 10-326, 2010 U.S. Dist. LEXIS 106857, at *8 (D.N.J. Oct. 5, 2010). 

An indictment may include matters that the Government intends to prove at trial, even if those 

matters are not essential elements of the crime charged, provided that they are “‘in a general 

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sense relevant to the overall scheme charged in the indictment.’” Lalley, 2010 U.S. Dist. LEXIS 

106857, at *8 (quoting United States v. Giampa, 904 F. Supp. 235, 271-72 (D.N.J. 1995)). 

However, as one court aptly explained: 

Rule 7(c) of the Federal Rules of Criminal Procedure provides that 

“the indictment . . . must be a plain, concise, and definite written 

statement of the essential facts constituting the offense charged.” 

Fed. R. Crim. P. 7(c)(emphasis added in decision). This provision 

contemplates an indictment that merely pleads each of the factual 

elements of the offense charged. It does not contemplate the 

inclusion of every piece of evidence that ultimately may be 

relevant to building a case against the defendant. If it did, a 

criminal indictment would be free to grow from a “plain and 

concise” statement of “essential” facts to an unreadable 

monstrosity discussing every piece of evidence that would be 

conceivably relevant at trial. Indeed, the Government would be 

free to use an indictment to thoroughly present its case to the jury 

before the trial even began, at a time when the defendant would not 

be entitled to defend himself. Although the cases defining 

surplusage sometimes inquire as to whether the material is 

“relevant to the charges,” [citation omitted], this language should 

not be read as permitting any material that would be legally 

relevant at trial. Because so much material can qualify as legally 

relevant, such a reading would contravene the explicit language of 

Rule 7(c). Rather, as described by the Fourth Circuit in [United 

States v. Hartsell, 127 F.3d 343, 353 (4th Cir. 1997)], the question 

is whether that material is “unnecessary” in making out a prima 

facie pleading of the violation. 

United States v. Cooper, 384 F. Supp. 2d 958, 960 (W.D. Va. 2005), aff’d, 482 F.3d 658 (4th Cir. 

2007). Language that serves only to “inflame the jury, confuse the issues, and blur the elements 

necessary for conviction under the separate counts” is considered prejudicial. United States v. 

Bullock, 451 F.2d 884, 888 (5th Cir. 1971). Applying the conjunctive test as set forth in 

Hedgepeth, it is clear that portions of the Indictment should be stricken because they are both 

immaterial and prejudicial to the Defendants. 

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1. All References To Investor #4 Should Be Stricken As Surplusage

 The Indictment alleges that Holley disclosed inside information to Investor #4 and that 

Investor #4 purchased Home Diagnostics stock based, in part, on the inside information 

(Indictment, Counts One through Four, ¶¶ 29-30). The alleged tipping of inside information to 

Investor #4, however, is not alleged in the Indictment (a) to be the basis of any of the four counts 

for securities fraud (Id., ¶ 31); (b) to be an overt act in furtherance of the alleged conspiracy to 

commit securities fraud (Id., Count Five , ¶ 3); (c) to have any connection with the alleged wire 

fraud (Id., Count Six, ¶ 2); or (d) to have any connection with the alleged obstructive of justice 

offenses. (Id., Counts Seven and Eight, ¶¶ 2-7.) Indeed, the specific tipping allegations 

pertaining to Investor #4, which are set forth in ¶¶ 29-30 of Counts One through Four, are not 

realleged in Counts Five through Eight, as these counts only reallege paragraphs 1 through 5 and 

8 through 20 of Counts One through Four. (Id., Count Five, ¶ 1; Count Six, ¶ 1; Counts Seven 

and Eight, ¶ 1.) Moreover, Investor #4 is not alleged to be a coconspirator with Holley and 

Iamnaita (Id., Count Five, ¶ 2.) Thus, the allegations relating to Investor #4 are wholly 

irrelevant as to all of the charges in the Indictment and serve only to “inflame the jury, confuse 

the issues, and blur the elements necessary for conviction under the separate counts” for 

securities fraud, conspiracy to commit securities fraud, wire fraud, and obstructive of justice. 

 The Government may argue that the allegations involving Investor #4 are relevant to the 

overall insider trading scheme alleged in the Indictment and thus permissible. Lalley, 2010 U.S. 

Dist. LEXIS 106857, at *8. However, the existence of an overall insider trading scheme is not 

necessary to sustain the charges against Defendants. Moreover, although the Indictment 

characterizes the alleged insider trading as a single “insider trading scheme,” it is actually only 

charged in the specific securities fraud counts as two separate schemes: one involving Holley and 

Iamnaita and the other involving Holley and Investor #1. In Count One, Holley is charged with 

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insider trading in connection with Investor #1’s purchase of 1,000 shares of Home Diagnostics 

stock on January 15, 2010. (Indictment, ¶ 31, Count 1.) In Count Two, Holley and Iamnaita are 

charged with insider trading in connection with Iamnaita’s purchase of 6,050 shares of Home 

Diagnostics stock on January 19, 2010. (Id., Count 2.) In Count Three, Holley and Iamnaita are 

charged with insider trading in connection with another purchase of 6,050 shares of Home 

Diagnostics stock by Iamnaita on January 20, 2010. (Id., Count 3.) In Count Four, Holley and 

Iamnaita are charged with insider trading in connection with Iamnaita’s purchase of 6,000 shares 

of Home Diagnostics stock on January 21, 2010. (Id., Count 4.) These charges have nothing to 

do with Investor #4 and the allegations pertaining to Investor #4 have nothing to do with these 

charges. See United States v. Alsugair, 256 F. Supp. 2d 306, 317 (D.N.J. 2003) (recognizing that 

a motion to strike surplusage should be granted “wherein it is clear that the allegations contained 

therein are not relevant to the charge made”) (quotation marks omitted). 

 Accordingly, all references, and allegations pertaining, to Investor #4 must be stricken as 

irrelevant, prejudicial surplusage. (Indictment, Counts One through Four, ¶¶ 1(i), 2-7, 29-30.) 

See United States v. Jardine, No. 04-219, 2004 U.S. Dist. LEXIS 20414, at *14-15 (E.D. Pa. Oct. 

12, 2004) (“The Government cannot ‘elect’ to include in an indictment information that is not 

essential to the offense charged if such information is prejudicial to Defendants.”). 

2. All References To Investors # 2 And 3 From Counts One Through 

Four Should Be Struck As Surplusage

 Similar to Investor #4, the Indictment contains tipping allegations involving Investors #2 

and #3 in the securities fraud counts (Indictment, Counts One through Four, ¶¶ 2-7, 23-28), 

however, the alleged tipping of inside information to these particular investors does not serve as 

the basis for any of the securities frauds counts. (Id., Counts One through Four, ¶ 31.) Instead, 

the securities fraud counts only involve Holley (as tipper) and Investor #1 (as tippee) (Count 

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One) and Holley (as tipper) and Iamnaita (as tippee) (Counts Two, Three and Four). It is 

unnecessary and highly prejudicial to include these allegations involving Investors #2 and #3 in 

Counts One through Four when they in no way relate to the securities fraud counts. See Jardine, 

2004 U.S. Dist. LEXIS 20414, at *14-15. 

 In addition, just like Investor #3, the conspiracy offense does not charge Investors #2 and 

#3 as coconspirators with Holley and Iamnaita nor does it charge them with being involved in 

any overt acts. (Indictment, Count Five, ¶¶ 2-3.) Only Holley and Iamnaita are alleged to have 

been conspirators and the alleged overt acts involved only Holley, Iamnaita and CW-1 and were 

in connection with Iamnaita’s purchase of Home Diagnostics stock on January 19, 2010. (Id.) 

The wire fraud count likewise does not involve Investors #2 or #3; rather, it involves a wire 

transfer alleged caused by Holley and Iamnaita from CW-1’s bank account to effect Iamnaita’s 

purchase of Home Diagnostics stock on January 19, 2010. (Id., Count Six, ¶ 2.) 

 The fact that Investors #2 and #3 are involved in the obstruction of justice counts does 

not save the allegations pertaining to them in the securities fraud counts from being stricken. 

First, the obstruction of justice counts do not reallege the specific tipping allegations pertaining 

to Investors #2 and #3, which are set forth in ¶¶ 23-28 of Counts One through Four; rather, they 

only reallege paragraphs 1 through 5 and 8 through 20 of Counts One through Four. (Id., Counts 

Seven and Eight, ¶ 1.) Second, although ¶¶ 1(g), (h), and 2-5 of Counts One through Four, 

which are realleged in the obstruction of justice counts, contain generic allegations involving 

Investors #2 and #3, those allegations do not belong in Counts One and Four in the first place 

because, as discussed above, they are not essential to the securities fraud counts charged. 

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 Accordingly, all references to Investors #2 and #3 should be stricken from Counts One 

through Four as irrelevant, prejudicial surplusage. (Indictment, Counts One through Four, ¶¶ 

1(g), (h), 2-7, 26-30.) 

3. References To “Others” And “Other Conspirators” Should Be 

Struck From The Indictment As Surplusage.

 The Indictment is replete with references to “and others” and contains a reference to 

“other conspirators.” (Indictment, Counts One through Four, ¶ 2)(“GEORGE HOLLEY and 

PHAIROT IAMNAITA, Investor #1, Investor #2, Investor #3, Investor #4 and others known 

and unknown, participated in an insider trading scheme by defendant GEORGE HOLLEY 

disclosing material, nonpublic information (“Inside Information”) and defendants PHAIROT 

IAMNAITA, Investor #1, Investor #2, Investor #3, Investor #4, and others executing securities 

transaction based on Inside Information pertaining to Home Diagnostics . . . .”); id., ¶ 3 (“As 

Chairman of Home Diagnostics, defendant GEORGE HOLLEY obtained Inside Information and 

disclosed this Inside Information to defendant PHAIROT IAMNAITA, Investor #1, Investor #2, 

Investor #3, Investor #4, and others . . . .”); id., ¶ 4 (Defendant GEORGE HOLLEY disclosed 

the Inside Information to defendant PHAIROT IAMNAITA, Investor #1, Investor #2, Investor 

#3, Investor #4, and others in breach of his duty of confidentiality to Home Diagnostics and with 

the understanding that defendant PHAIROT IAMNAITA, Investor #1, Investor #2, Investor #3, 

Investor #4, and others would use the Inside Information to purchase and sell securities); id., ¶ 5 

(“Defendant PHAIROT IAMNAITA, Investor #1, Investor #2, Investor #3, Investor #4, and 

others . . . executed securities transactions on the basis of this Inside Information . . . .”); id., ¶ 6 

(“The object of the insider trading scheme was for defendant GEORGE HOLLEY, defendant 

PHAIROT IAMNAITA, Investor #1, Investor #2, Investor #3, Investor #4, and others to obtain 

money by purchasing Home Diagnostics securities on the basis of Inside Information . . . .”); id., 

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¶ 7 (“The manner and means by which defendants GEORGE HOLLEY and PHARIOT [sic] 

IAMNAITA, Investor #1, Investor #2, Investor #3, Investor #4, and others accomplished the 

object of the insider trading scheme included, among other things . . . .”); id., Count Five, ¶ 2 

(“GEORGE HOLLEY and PHAIROT IAMNAITA did knowingly, willfully, and intentionally 

conspire and agree with each other and others to commit offenses against the Untited States, 

namely, securities fraud . . . .”); id., ¶ 3 (“defendants GEORGE HOLLEY and PHAIROT 

IAMNAITA and their coconspirators committed or caused to be committed the following overt 

acts . . . .”) (emphasis supplied). These references should be stricken as irrelevant, prejudicial 

surplusage because they suggest that the Defendants were part of a larger scheme and conspiracy 

than what is explicitly charged in the Indictment. 

In United States v. Alsugair, 256 F. Supp. 2d 306 (D.N.J. 2003), Judge Orlofsky granted 

a motion to strike the words “and others” as surplusage from an indictment. 256 F. Supp. 2d at 

317-18. In doing so, the Court stated: 

The superseding indictment makes specific reference to two 

individuals, Firas and Abdel-Megeed, who were part of the alleged 

conspiracy to defraud ETS. The indictment’s multiple references 

to “others,” however, implies that there are additional individuals 

who were involved in the scheme, which could prejudice the 

defendant by leading the jury to believe that there exists a broader 

scope of illegal activity than is actually charged in the indictment. 

This vagueness of language could certainly prejudice Alsugair. 

Alsugair, 256 F. Supp. 2d at 317; see also United States v. Gatto, 746 F. Supp. 432, 457-58 

(D.N.J. 1990) (recognizing that the court had “previously stricken vague language from an 

indictment where the language is not specifically relevant to all the crimes alleged because such 

terms may permit the jury to draw improper inferences” and striking the reference to the term 

“and others”). 

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 Here, the Indictment makes specific reference to trades based on inside information 

provided by Holley to Iamnaita and Investors #1-4 and also specifically identifies Holley and 

Iamnaita as having agreed to commit securities fraud (Indictment, Count Five, ¶ 2, and CW-1 as 

being involved with Holley and Iamnaita in committing overt acts in furtherance of the 

conspiracy (although CW-1 is not identified as a coconspirator) (Id., ¶ 3.) The Indictment’s 

numerous references to “and others” and its reference to “other conspirators,” however, suggests 

that Holley provided other individuals with inside information for trading purposes and that other 

individuals were involved in the alleged conspiracy thereby leading the jury to believe that the 

Defendants were involved in a broader scope of activity than what is expressly charged in the 

Indictment and resulting in prejudice to the Defendants. 

 Accordingly, because the vague terms of “and others” and “other conspirators” are 

irrelevant and prejudicial, they should be stricken from the Indictment. 

B. Allegations In The Indictment Relating To Holley’s Production Of 

Documents To The Securities and Exchange Commission And 

References To The Investigation By The FBI and U.S. Attorney’s 

Office In Counts Seven And Eight Should Be Struck As Surplusage. 

1. Holley Is Not Charged With Impeding An SEC Investigation.

 In the charges for obstruction of justice, the Indictment alleges that Holley produced 

documents to the U.S. Securities Exchange Commission (“SEC”) in response to an investigative 

subpoena. (Indictment, Counts Seven and Eight, ¶ 6.) The Indictment further alleges that among 

these documents were the same analyst and news reports that had been given to Investor #2, even 

though these documents were not called for by the subpoena. (Id.) The Indictment, however, 

does not charge Holley with impeding any proceeding before the SEC. Rather, the “official 

proceeding” he is charged with obstructing is the “the grand jury’s, the United States Attorney’s 

Office’s, and the FBI’s investigation of insider trading in the securities of Home Diagnostics... .” 

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(Id., ¶ 7.) Moreover, the Indictment alleges that Holley gave the reports to Investor #2 after he 

had been approached by Special Agents of the FBI — not after he had been approached by any 

agents of the SEC. The allegations concerning Holley’s SEC production is thus wholly 

irrelevant to the obstruction of justice charges, and their inclusion in the Indictment are highly 

prejudicial in that the allegations improperly imply that Holley somehow impeded a proceeding 

before the SEC. Accordingly, paragraph 6 of Counts Seven and Eight must be struck in its 

entirety. See United States v. Williams, 203 F.2d 572, 574 (5th Cir. 1953) (“Indirect 

expressions, implied allegations, argumentative statements, and uncertainty due to 

generalizations in language” may be stricken from the Indictment). 

2. FBI And U.S. Attorney’s Office Investigations Are Not Official 

Proceedings.

In Counts Seven and Eight, the “official proceeding” that Holley is charged with 

obstructing is “the grand jury’s, the United States Attorney’s Office’s, and the FBI’s 

investigation of insider trading in the securities of Home Diagnostics . . . .” (Indictment, Counts 

Seven and Eight, ¶ 7.) However, an investigation by the FBI or the United States Attorney’s 

Office does not constitute an “official proceeding” as defined in 18 U.S.C. § 1515(a)(1) for § 

1512(c)(2) purposes. The references to the investigation by the FBI and the United States 

Attorney’s Office insinuate that it is a violation of § 1512(c)(2) to impede an investigation by 

these agencies, when it is not. Accordingly, these references should be stricken from the 

Indictment as immaterial, prejudicial surplusage. (Indictment, Counts Seven and Eight, ¶¶ 2, 7.) 

In Counts Seven and Eight of the Indictment, the Government charges Holley with 

obstruction of justice in violation of 18 U.S.C. § 1512(c)(2), which provides that “[w]hoever 

corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so, shall 

be fined under this title or imprisoned not more than 20 years or both.” 18 U.S.C. § 1512(c)(2). 

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Specifically, Count Seven of the Indictment charges that in or about November 2009, after 

learning that Investor #3 had been contacted by Special Agents of the FBI regarding his purchase 

of Home Diagnostics stock, Holley reminded Investor #3 that he had previously given Investor 

#3 several analyst reports concerning Home Diagnostics and encouraged Investor #3 to falsely 

claim that he had purchased Home Diagnostics stock based on those reports rather than based on 

the inside information provided by Holley. (Indictment, ¶¶ 5, 7.) Count Eight charges that on 

or about December 9, 2010, the day after Special Agents of the FBI contacted Investor #2 

regarding his purchases of Home Diagnostics stock, Holley directed his assistant to give Investor 

#2 analyst and news reports concerning Home Diagnostics stock so that Investor #2 could falsely 

claim that he had purchased Home Diagnostics stock based on those reports rather than on the 

inside information provided by Holley. (Id., ¶¶ 3-4, 7.) The Indictment alleges that by engaging 

in the above conduct, Holley “did corruptly obstruct, influence, and impede, an official 

proceeding, namely, the grand jury’s, the United States Attorney’s Office’s, and the FBI’s 

investigation of insider trading in the securities of Home Diagnostics” in violation 18 U.S.C. §§ 

1512(c) and 2 (aiding and abetting). As discussed below, the Court should dismiss Counts Seven 

and Eight of the Indictment to the extent they allege that Holley obstructed, influenced and 

impeded the investigation by the United States Attorney’s Office and the FBI because such 

investigations do not constitute an “official proceeding” within the meaning of the statute. 

Section 1515(a)(1) defines “official proceeding” as used in section 1512 as: 

(A) a proceeding before a judge or court of the United States, a 

United States magistrate [United States magistrate judge], a 

bankruptcy judge, a judge of the United States Tax Court, a special 

trial judge of the Tax Court, a judge of the United States Claims 

Court [United States Court of Federal Claims], or a Federal grand 

jury; 

(B) a proceeding before the Congress; 

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(C) a proceeding before a Federal Government agency which is 

authorized by law; or 

(D) a proceeding involving the business of insurance whose 

activities affect interstate commerce before any insurance 

regulatory official or agency or any agent or examiner appointed 

by such official or agency to examine the affairs of any person 

engaged in the business of insurance whose activities affect 

interstate commerce[.] 

18 U.S.C. § 1515(a)(1)(A)-(D). Although this definition clearly includes a proceeding before “a 

Federal grand jury,” it does not expressly include investigations by the United States Attorney’s 

Office or the FBI nor does it include, more generally, government investigations. Because 

investigations by the FBI and United States Attorney’s Office are not court or congressional 

proceedings nor are they proceedings involving the business of insurance, the issue is whether 

they constitute “a proceeding before a Federal Government agency which is authorized by law.” 

Numerous courts that have considered the issue have concluded that such government 

investigations do not rise to the level of an “official proceeding” as defined in § 1515(a)(1). See

United States v. Phillips, 583 F.3d 1261, 1263 (10th Cir. 2009) (district court determined that a 

Drug Enforcement Agency investigation is not an official proceeding under the statute); United 

States v. Ramos, 537 F.3d 439, 463 (5th Cir. 2008) (concluding that “an internal, informal 

investigation, in its most preliminary stages, of employee violations of an agency policy is not an 

‘official proceeding’” because the term contemplates a formal environment in which persons are 

called to appear or produce documents and not simply any investigatory step taken by an 

agency); United States v. Gabriel, 125 F.3d 89, 105 n.13 (2d Cir. 1997) (noting that although the 

issue had not been raised by the defendant, if the jury had concluded that the defendant’s “sole 

intent was to interfere with the FBI investigation . . . it would have been compelled to find [the 

defendant] innocent” of witness tampering under § 1512(b)(1) because “government 

investigations” are not included in § 1515(a)’s definition of “official proceeding”); United States 

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v. Ho, 651 F. Supp. 2d 1191, 1197 n.3 (D. Haw. 2009) (describing as “unextraordinary” the 

“proposition that to violate § 1512(b)(1), the defendant must have foreseen an official proceeding 

and not a mere investigation”); United States v. Dunn, 434 F. Supp. 2d 1203, 1207 (N.D. Ala. 

2006) (holding that ATF investigation was not a “proceeding before a Federal Government 

agency which is authorized by law” because the phrase clearly “refers to hearings, or something 

procedurally similar, held before federal agencies”); United States v. Peterson, 627 F. Supp. 2d 

1359, 1369 (M.D. Ga. 2008) (“A federal law enforcement agency investigation is not an official 

proceeding.”); United States v. Simpson, No. 3:09-CR-249, 2011 U.S. Dist. LEXIS 76881, at 

*96-101 (N.D. Tex. July 15, 2011) (dismissing obstruction of justice counts from an indictment 

where the FBI investigation was a mere “investigatory step” toward the “‘official proceedings,’ 

namely the grand jury investigation and the instant proceeding – that developed out of the FBI 

investigation.”); United States v. Black, No. 05 CR 727, 2007 U.S. Dist. LEXIS 81777, at *46-

47 (N.D. Ill. Nov. 5, 2007) (the court instructed the jury, inter alia, that an investigation by the 

United States Attorney’s Office does not constitute an “official proceeding”); Hobley v. Lotito, 

No. 03 C 3678, 2004 U.S. Dist. LEXIS 20844, at *39 n.13 (N.D. Ill. Oct. 13, 2004) (“FBI 

investigations are not included within the definition of official proceedings provided by § 

1515(a)(1)”). 

The Third Circuit’s decision in United States v. Davis, 183 F.3d 231 (3d Cir. 1999), 

which involved the issue of whether a wiretap investigation is a “judicial proceeding” under 18 

U.S.C. § 1503, provides ample support for concluding that an investigation by the FBI or the 

United States Attorney’s Office does not constitute an “official proceeding” as defined in § 

1515(a)(1) for § 1512(c)(2) purposes. In Davis, the defendant was convicted of obstructing 

justice in violation of § 1503, which requires that a defendant have notice of knowledge of some 

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judicial proceeding constituting the “administration of justice.” 183 F.3d at 239. The judicial 

proceeding that the defendant was convicted of obstructing was a wiretap investigation. Id. The 

defendant argued on appeal that his conviction should be reversed because a wiretap 

investigation was not a judicial proceeding. Id. The government argued in response that a 

wiretap constitutes a judicial proceeding when it is actively monitored by a federal court. Id. at 

240. The Third Circuit rejected this argument, stating: 

Fundamentally, a wiretap order is an investigative method used by 

the executive branch, not an element of the judicial process. 

[Citation omitted.] Judicial supervision pursuant to Title III of the 

Omnibus Crime Control and Safe Streets Act of 1968 [citation 

omitted] does not make wiretaps a function of the judicial branch, 

but rather ensures that wiretaps – searches – are carried out within 

the confines of the Fourth Amendment. [Citation omitted.] 

We conclude that a wiretap order is more like a search warrant 

than it is like a grand jury and that its pendency does not constitute 

the “administration of justice” within the meaning of § 1503. 

Id. Similarly here, the questioning of the investors by the FBI and the United States Attorney’s 

Office was simply an investigative tool — it did not bear any marks of an “official proceeding” 

such as a hearing or something procedurally similar. 

 Indeed, the common understanding of the term “proceeding” connotes a judicial or 

administrative action or hearing, not an investigation. See Dunn, 434 F. Supp. 2d at 1207 (“the 

common and ordinary understanding of ‘proceeding’ connote[s] a hearing”); Black’s Law 

Dictionary 1324 (9th ed. 2009) (defining “proceeding” as, inter alia, “[t]he regular and orderly 

progression of a lawsuit”; “[a]ny procedural means for seeking redress from a tribunal or 

agency”; “[a]n act or step that is part of a larger action”; and “[t]he business conducted by a court 

or other official body; a hearing”). Moreover, as the Dunn Court explained, “the term 

‘proceeding’ is used throughout § 1515(a)(1) to describe events that are best thought of as 

hearings (or something akin to hearings): for example, federal court cases, grand jury testimony, 

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Congressional testimony, and insurance regulatory hearings, 18 U.S.C. § 1515(a)(1)(A), (B) & 

(D).” Dunn, 434 F. Supp. 2d at 1207. 

 Certainly, as the court in Dunn recognized, “[h]ad Congress intended for an investigation, 

standing alone, to be an ‘official proceeding,’ it could easily have included ‘investigations into 

violations of the federal criminal statutes’ among the definitions in § 1515(a)(1).” Id. at 1208. 

 Even if the meaning of “official proceeding” was less than clear, the Court must resolve 

any ambiguity in favor of Holley under the rule of lenity. See United States v. Flemming, 617 

F.3d 252, 269 (3d Cir. 2010) (“The rule of lenity provides that when ambiguity in a criminal 

statute cannot be clarified by either its legislative history or inferences drawn from the overall 

statutory scheme, the ambiguity is resolved in favor of the defendant.”) (quotation marks 

omitted); Ramos, 537 F.3d at 464 (holding alternatively that “the rule of lenity requires the 

conclusion that ‘official proceeding’ in § 1512 (c) does not embrace the agency investigation at 

issue here”); Simpson, 2011 U.S. Dist. LEXIS 76881, at *96-99 (granting motion to dismiss 

obstruction of justice counts in an indictment where court not conclude that the FBI investigation 

was an “official proceeding” under a narrow construction of the term, as required by the rule of 

lenity). 

 Accordingly, because the investigation by the FBI and the United States Attorney’s 

Office does not constitute an “official proceeding” as defined in 18 U.S.C. § 1515(a) for 

purposes of 18 U.S.C. § 1512(c), the Court should strike from the Indictment the references to 

the investigation by the FBI and the United States Attorney’s Office in ¶¶ 2 and 7 of Counts 

Seven and Eight of the Indictment. 

 

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