Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. McComber

United States District Court, Ninth Circuit

January 9, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
GERALD W. McCOMBER, Defendant.

ORDER DENYING MOTION TO DISMISS [DKT No. 15]

DEAN D. PREGERSON, District Judge.

Presently before the court is Defendant Garald W. McComber's Rule 12(b)(3) motion to dismiss a single count indictment charging him with forgery of a judge's signature, in violation of 18 U.S.C. § 505. The motion is suitable for adjudication without oral argument. Having considered the parties' submissions, the court now adopts the following order.

I. Background

The parties agree upon the following:

In approximately February 2013, Gerald McComber applied for a position as an insurance agent with One America Services ("One America"). McComber met and interviewed with Mark Anderson of One America and was offered a position, pending McComber's passing of a background check.

As part of the company's background check, One America obtained a credit report, which disclosed a tax lien against McComber. At the direction of the company's compliance office, Anderson questioned McComber about the lien. McComber informed Anderson that the tax lien had been taken care of and that evidence of the resolution would be forthcoming.

Subsequently, Anderson received a letter via fax dated October 3, 2012, addressed to Gerald W. McComber, and ostensibly signed by "Alice Marie Stotler, [sic] U.S. District Judge." The letter states that "Tax Lien #0508725R has been released from your name, and the amounts in question have been satisfied completely." (Mot. Ex. C.) It further states that "[t]here are no outstanding fees or penalties due, and your record has been cleared of any restrictions or liens." (Id.)

Apparently suspicious of the letter's authenticity, a One America official contacted the district court to determine its origins. It appears Judge Stotler then referred the matter to the FBI, which initiated an investigation, leading to the instant prosecution. On December 4, 2013, a Grand Jury returned a one-count indictment against McComber for forgery of a judge's signature, in violation of 18 U.S.C. § 505. (DKT No. 1.) The indictment states as follows:

On or about March 3, 2013, in Orange County, within the Central District of California, and elsewhere, defendant GERALD W. McCOMBER knowingly forged the signature of a judge of the United States, and knowingly concurred in the use of such forced signature, namely, the signature of United States District Judge Alicemarie H. Stotler, on a document, for the purpose of authenticating a document, namely a document purporting to release defendant McCOMBER from Federal Tax Lien #0508725R.

(Id.)

On December 6, 2013, McComber filed the instant motion to dismiss the indictment, asserting that the indictment is invalid because it does not explicitly state that McComber acted with intent to defraud and therefore fails to state an essential element of the offense. (See Mot. at 5.)

II. Legal Standard

Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B), a defendant may bring a motion challenging the sufficiency of the indictment. Fed. R. Crim. P. 12(b)(3)(B).

An indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c)(1). An indictment is sufficiently pled if it "contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend...." United States v. Lazarenko , 546 F.3d 593, 599 (9th Cir. 2008). An indictment's failure to "recite an essential element of the charged offense is not a minor or technical ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.