United States District Court, W.D. Virginia, Danville Division
AMENDED MEMORANDUM OPINION
JACKSON L. KISER, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant William R.
Whyte's Motion to Dismiss the Indictment. Defendant Whyte
filed his Motion on October 20, 2016 [ECF No. 21]. The United
States responded on November 17 [ECF No. 40], and Whyte
replied on November 29 [ECF No. 44]. I heard oral arguments
on the Motion on December 1. The matter is now ripe for
disposition. For the reasons stated herein, I will deny
Defendant Whyte's Motion to Dismiss.
STATEMENT OF FACTS AND PROCEDURAL
William R. Whyte (“Whyte”), along with Defendant
Armet Armored Vehicles, Inc. (“Armet”), was
indicted on July 19, 2012, with three counts of major fraud
against the United States, in violation of 18 U.S.C. §
1031; six counts of wire fraud, in violation of 18 U.S.C.
§ 1343; and three counts of false, fictitious, and
fraudulent claims, in violation of 18 U.S.C. § 287.
(See generally Indictment ¶¶ 28-47 [ECF
is a business “that manufactures and supplies armored
vehicles for government and commercial customers.”
(Id. ¶ 1.) Whyte is Armet's owner and CEO,
and he personally manages and supervises all of the
operations at Armet. (Id. ¶ 2.) The Indictment
stems from contracts Armet secured to provide the government
with armored vehicles for use in Iraq. Contract 0028
concerned 24 armored gun trucks for a total sales price of
$4, 779, 693.36 (id. ¶ 6); contract 0047
concerned eight additional armored gun trucks for an
additional $1, 593, 231.10 (id. ¶ 90). Both
contracts specified that each armored gun truck have armor
protection of a standard “at which armor-piercing
bullets of a given caliber and velocity [would] not penetrate
the armor.” (Id. ¶ 11.) Further,
“the undercarriage of each armored gun truck [was to]
have armored mine plating protection and . . . ‘[a]t a
minimum, the protection level acceptable shall withstand
blast underneath the vehicle from grenades and/or blasts of
whatever nature equivalent to the strength of two DM51 German
ordinance.'” (Id. ¶ 12.)
being awarded the contracts, the government contends that
Armet failed to deliver any vehicles by the delivery date.
(Id. ¶ 14). The government also maintains that,
when delivered, the vehicles failed to meet the contract
specifications with regard to the armor protection.
(Id. ¶ 21-22.) The government asserts that
Armet's invoices and request for a progress payment were
“false and fraudulent because the armored gun trucks
that [it] shipped did not comply with the ballistic and blast
protection requirements of the Contracts and did not have
run-flat tires.” (Id. ¶ 25.)
October 16, 2012, Frank Skinner (“Skinner”),
Armet's former President, filed a qui tam action
against Whyte and Armet alleging violations of the Federal
False Claims Act, 31 U.S.C. § 3732. The government chose
not to exercise its right to intervene in the civil case.
See 31 U.S.C. § 3730(c)(2)-(3). Skinner's
Complaint alleged twenty-five separate counts of fraud or
fraud-related activities arising from the 0028 and 0047
contracts. At trial, the jury returned a verdict for Whyte
and Armet on all counts, finding that neither Whyte nor Armet
“knowingly presented, or caused to be presented, false
or fraudulent claims for payment for . . . armored vehicles
that it fabricated.” (Jury Verdict, U.S. ex rel.
Skinner v. Armet Armored Vehicles, Inc., and William R.
Whyte, 4:12-cv-45, June 4, 2015 [ECF No. 166].)
was eventually extradited to the United States on or about
September 23, 2016.On October 20, 2016, Whyte filed the
present Motion to Dismiss the Indictment, alleging that
collateral estoppel barred all charges against him. At its
core, Whyte alleges that the civil jury's verdict in
U.S. ex rel. Skinner v. Armet conclusively
established that no fraud was committed, and thus the
ultimate question underlying the criminal charges has been
fully prosecuted by the government. As such, he contends the
criminal case must be dismissed. He also contends that
several counts of the Indictment are barred by the applicable
statute of limitations.
STANDARD OF REVIEW
estoppel insures that ‘when an issue of ultimate fact
has once been determined by a valid and final judgment, the
issue cannot again be relitigated between the same parties in
any future lawsuit.'” United States v.
McClung, No. Crim. A. 97-0031-II, 1997 WL 671602, at *1
(W.D. Va. Sept. 23, 1997) (quoting Ashe v. Swinson,
397 U.S. 436, 443 (1970)).
An indictment that involves essential elements of facts and
law which have been tried and decided in an earlier case
should be dismissed. Ashe v. Swenson, 397 U.S. 436
(1970); Brown v. Ohio, 432 U.S. 161 (1977). In
ruling on such a motion, the court must determine exactly
what was decided at the earlier trial. United States v.
Davis, 369 F.2d 775, 777 (4th Cir. 1966), cert.
denied, 386 U.S. 909 (1967). It is the burden of the
moving party to demonstrate that the issue they urge is
foreclosed logically constituted the basis of the earlier
jury verdict. Id. “Only those issues
necessarily determined by the first jury are conclusive in a
second trial.” Id. However, “the inquiry
‘must be set in a practical frame and viewed with an
eye to all the circumstances of the proceedings.'”
United States v. Davis, 460 F.2d 792, 796 (4th Cir.
1972) (quoting Ashe, 397 U.S. at 444).
United States v. Computer Sciences Corp., 511
F.Supp. 1125, 1137 (E.D. Va. 1981).
defendant may, at any time before trial, raise a motion
alleging a defect in the indictment, including its failure to
comport with the applicable statute of limitations.”
United States v. Magainik, 160 F.Supp.3d
909, 913-14 (W.D. Va. 2015); Fed. R. Crim. P. 12(b)(3). Upon
consideration of such a motion, the government's
allegations are presumed to be true, and the indictment is
regarded “in a ‘practical, ' rather than
‘purely technical, ' manner.” Id.
(citing United States v. Matzkin, 14 F.3d 1014, 1019
(4th Cir. 1994). The defendant is entitled to dismissal if he
shows that the indictment's allegations, “even if
true, would not state an offense.” United States v.
Thomas, 367 F.3d 194, 197 (4th Cir. 2004).
estoppel “means simply that when an issue of ultimate
fact has once been determined by a valid and final judgment,
that issue cannot again be relitigated between the same
parties in any ...