OPINION AND ORDER DENYING MOTIONS FOR A BILL OF PARTICULARS Defendants Eugene Joseph Lemay and Joel Lingat are charged in a one-count1 Superseding Indictment [ECF No. 26] with engaging in a conspiracy to defraud the Internal Revenue Service (“IRS”) in violation of 18 U.S.C. §371. The Defendants separately move this Court to direct the Government to produce a bill of particulars with respect to each Defendant. [ECF No. 49-50]. For the reasons stated herein, the Motions are denied. BACKGROUND The relevant facts are taken from the Complaint [ECF No. 1] (“Compl.”) and the Superseding Indictment [ECF No. 26] (“SI”). The Government alleges that, from 2010 until the end of 2016, Lingat and Lemay conspired to defraud the IRS by evading federal income and payroll taxes. See Compl.
1-2; SI 1. Both Lingat and Lemay worked at “Company-1,” a company that “provides moving and storage services.” SI 2. Since 2010, Lingat was the primary bookkeeper for Company-1. Compl. 6(f). From the 1980s until 2011, Lemay was the nominal owner of Company-1, ultimately serving as its President and CEO. Compl. 6(b).2 Lemay left Company-1 in 2011, but “continued to supervise and play a role in the management of Company-1,” and throughout the time-period relevant to the conspiracy, Lemay “nominally owned” in part Company-1. Compl. at 3, 6 n.1. Beginning in the late-1980s, Lemay “began to direct the operation of a scheme by which Company-1 evaded the assessment and payment of payroll taxes for many of the workers it employed as movers and drivers.” Compl. 6(d). Under Lemay’s leadership, the scheme took one of two forms. Compl. 6(e). The first form involved legitimate companies who would be paid for their labor as independent contractors, and the foremen of those companies would pay the movers directly. Compl. 6(e)(i). In the other form of the scheme, Lemay and others would create shell labor companies by asking “a close associate or family member” to sign paperwork creating the company and opening a bank account in its name. Compl. 6(e)(ii). Managers of Company-1 would then “assign” foremen and movers who worked for Company-1 to the shell company, and pay those employees through the shell company. Compl. 6(e)(ii). After a moving job on behalf of Company-1, “Company-1 bookkeepers” would create falsified invoices from the shell company and pay them, “fraudulently making it appear that the [shell companies] were independent contractors,” when in reality the shell company employees were paid in cash from the shell company’s accounts. Compl. 6(e)(ii). The schemes made it appear, on paper, that labor for Company-1 was performed by independent contractors. Compl. 6(e)(iii). This allowed Company-1 to deduct the labor as an expense for purposes of its tax returns, “without withholding or paying over any payroll taxes to the IRS.” Compl. 6(e)(iii). The shell companies further did not file required W2 and quarterly tax returns, nor did they pay payroll taxes. Compl. 6(e)(iii). Between 2010 and 2016, a total of twenty-four sham companies were set up; eleven in the names of relatives of Lemay. Compl. 6(g). Lingat coordinated with Lemay and others to perpetrate this tax evasion scheme. Compl. 6(f). For example, on April 2, 2014, Lingat sent Lemay an e-mail with the subject “Owners of Labor Co” which listed the names of five shell companies and their nominal owner, all relatives of Lemay. Compl. 6(g)(iv). For each move purportedly assigned to a shell company, Lingat or others at his direction would prepare an invoice to be submitted for payment. Compl. 7(a)-(b). After a payment check was issued to the shell company, Lingat would deposit it in the bank account of the shell company, and prepare a check payable to cash to pay the movers. Compl. 7(c). As part of the scheme, Lingat was paid a cash bonus in a fictitious name “on an almost weekly basis for a period of years” out of the accounts of the shell companies. Compl. 7(f). PROCEDURAL HISTORY On September 15, 2021, Lingat was charged in a one count indictment with conspiracy to defraud the IRS in violation of 18 U.S.C. §371. [ECF No. 13]. Lingat plead not guilty to the one-count indictment on September 23, 2021. See Minute Entry dated Sept. 23, 2021. On October 20, 2021, Magistrate Judge Lehrburger unsealed the Superseding Indictment, charging Lingat and Lemay with one count of conspiracy to defraud the IRS in violation of 18 U.S.C. §371, and Lemay with two counts of tax evasion for the 2014 and 2015 tax years in violation of 26 U.S.C. §7201. [ECF Nos. 25-26]. On November 3, 2021, the Court held an arraignment during which Lingat and Lemay pled not guilty to all charges. [ECF No. 34]. At the Arraignment, the Government raised the possibility that venue may not be proper in the Southern District with respect to the two counts of tax evasion. [ECF No. 34]. The Court therefore set a briefing schedule for any motion to transfer those counts. [ECF No. 34]. Thereafter, the Government and Lemay jointly moved to transfer the two counts of tax evasion to the United States District Court for the District of New Jersey, which the Court granted. [ECF Nos. 45, 46]. In the order granting the joint request to transfer the two counts of tax evasion, the Court set a briefing schedule for the Defendants’ anticipated motion for a bill of particulars. [ECF No. 46]. Pursuant to that schedule, Lingat filed a Motion for a Bill of Particulars [ECF No. 49] (“Lingat Mot.”) and a supporting memorandum of law [ECF No. 49-2] (“Lingat Mem.”), and Lemay filed a separate Motion for a Bill of Particulars [ECF No. 50] (“Lemay Mot.”) and a supporting memorandum of law [ECF No. 50-1] (“Lemay Mem.”). The Government then filed a single opposition to both Motions [ECF No. 51] (“Opp.”), and Lingat and Lemay each filed separate replies. [ECF No. 52] (“Lingat Reply”); [ECF No. 53] (“Lemay Reply”). LEGAL STANDARD The Federal Rules of Criminal Procedure gives the Court power to “direct the government to file a bill of particulars.” Fed. R. Crim. P. 7(f). A bill of particulars serves to “give the defendant notice of the essential facts supporting the crimes alleged in the indictment or information, and also to avoid prejudicial surprise to the defense at trial.” Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure §130 (4th ed.) (“Wright & Miller”). “A bill of particulars should be required only where the charges in the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.” United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990). The Court may look beyond the indictment to determine whether a bill of particulars is required, and considers “‘if the information sought by defendant is provided…in some acceptable alternate form.’” United States v. Barnes, 158 F.3d 662, 665-66 (2d Cir. 1998) (quoting United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987)). Accordingly, the Court may consider the information in the criminal complaint and the information provided in discovery in assessing whether to grant a motion for a bill of particulars. See United States v. Morgan, 690 F. Supp. 2d 274, 284 (S.D.N.Y. 2010) (“If the information the defendant seeks is provided in the indictment or in some acceptable alternate form, such as discovery or a criminal Complaint, no bill of particulars is required”) (internal quotation marks omitted). The central question, as to whether a bill of particulars is required, is whether the “information sought is necessary, not whether it is helpful.” United States v. Facciolo, 753 F. Supp. 449, 451 (S.D.N.Y. 1990). The decision whether or not to grant a motion for a bill of particulars lies within the discretion of the district court. See United States v. Ramirez, 609 F.3d 495, 502 (2d Cir. 2010); United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984). DISCUSSION The issues raised by both Lingat and Lemay in their respective Motions overlap to a certain extent. For the sake of efficiency, the Court addresses jointly the issues raised by both Parties, and addresses specific arguments raised by only one party separately. Upon thorough review of all arguments raised by either or both Parties, the Court has determined that the Defendants are not entitled to a bill of particulars at this stage. I. A BILL OF PARTICULARS IS NOT NECESSARY TO IDENTIFY THE WHO, WHAT, WHERE, AND WHEN OF THE CONSPIRACY Lingat argues that he is entitled to a bill of particulars because the Superseding Indictment is “vague, complex, and spans a large period of time.” Lingat Mem. at 4. For that reason, he seeks an order directing the Government to provide, inter alia, the location and addresses of where the alleged conspiracy formed or occurred (Lingat Mot.
