Case 8:18-cr-00012-TDC Document 91-1 Filed 09/17/19 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

)
UNITED STATES OF AMERICA, )
)
v. ) Criminal No. TDC-18-0012
)
MARK T. LAMBERT, )
)
Defendant. )
)

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANT MARK LAMBERT’S MOTION FOR
BILL OF PARTICULARS REGARDING
SECOND SUPERSEDING INDICTMENT

Defendant Mark Lambert, by and through undersigned counsel, respectfully moves this

Court, pursuant to Federal Rule of Criminal Procedure (“Fed. R. Crim. P.”) 7(f), to schedule an

oral hearing on this motion and to issue an Order directing the government to file a bill of

particulars setting forth the facts supporting the government’s allegation that Mr. Lambert joined

the conspiracy charged in this case. The requested particulars are necessary to inform Mr.

Lambert as to the charged conspiracy offense so that he may prepare for trial and minimize the

danger of unfair surprise.

BACKGROUND

As the Court knows well, after a nine year investigation, including a failed attempt to

secure a criminal complaint, the government finally indicted Mr. Lambert on January 10, 2018.

See Indictment (ECF No. 1). According to the indictment, Rodney Fisk, the former president of

Transport Logistics International, Inc. – now also known to have been a covert FBI operative –

allegedly entered into a bribery and wire fraud conspiracy with Russian businessman Vadim

Mikerin, the purported bribe recipient, in 2004. See Indictment at 6, ¶17. The indictment further

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alleged that Mr. Lambert joined the preexisting conspiracy between Mr. Fisk and Mr. Mikerin

about five years later, in 2009, “soon after learning” about the existence of the purported

conspiracy. See id. at 4, ¶12 and 6, ¶17. The indictment, however, failed to identify any facts

supporting the government’s allegation that Mr. Lambert did in fact join such preexisting

conspiracy between Mr. Fisk and Mr. Mikerin.

Over a year later, in April 2019, the government filed with the Court a superseding

indictment. See Superseding Indictment (ECF No. 58). In the superseding indictment, without

explanation, the government amended the start date of the alleged preexisting conspiracy

between Mr. Fisk and Mr. Mikerin for a full five years, from 2004 to 2009. See Superseding

Indictment at 6, ¶17. It also continued to allege that Mr. Lambert joined the preexisting

conspiracy in the same year –i.e., 2009– “soon after” learning about it. Superseding Indictment

at 4, ¶12. Once again, however, the superseding indictment failed to identify any facts

supporting the government’s allegation that Mr. Lambert did in fact join such preexisting

conspiracy.

One month later, the government filed with the Court a second superseding indictment.

See Redlined Second Superseding Indictment (ECF No. 81). In this second superseding

indictment, again without explanation, the government amended both the start date of the alleged

preexisting conspiracy between Mr. Fisk and Mr. Mikerin, from 2009 back to 2007, as well as

the critical date that Mr. Lambert is alleged to have joined such conspiracy, from 2009 back to

2007. See Redlined Second Superseding Indictment at 4, ¶12 and 6, ¶17. It also continued to

allege that Mr. Lambert joined the preexisting conspiracy in the same year –i.e., 2007– “soon

after” learning about it. See Redlines Second Superseding Indictment at 4, ¶12. Once again,

however, the second superseding indictment failed to identify any facts supporting the

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government’s allegation that Mr. Lambert did in fact join the preexisting conspiracy. Nor did it

include any facts or circumstances surrounding the two prior and contradictory government

allegations that Mr. Lambert purportedly joined the conspiracy two years later, when it was

alleged that it was only at that time that he first learned of the conspiracy.

This chart summarizes the government’s changes:

Start Date of Alleged Date Mr. Lambert is Alleged to Have

Preexisting Conspiracy Joined the Preexisting Conspiracy

Indictment
2004 2009
Superseding
Indictment 2009 2009
Second Superseding
Indictment 2007 2007

Prior to filing this motion, Mr. Lambert’s counsel met and conferred with the government

in an attempt to obtain more factual information in order to understand these changes.

Regretfully, however, the government has stated that the amendments to both the start date of

the alleged preexisting conspiracy, as well as the date that Mr. Lambert is alleged to have joined

such conspiracy, consisted of mere “fine tuning.” When asked to further elaborate on this

utterly empty and unhelpful explanation, the government refused to do so.

ARGUMENT

Particulars regarding the facts supporting the government’s allegation that Mr. Lambert

joined the conspiracy charged in this case are necessary because the second superseding

indictment again fails to provide factual allegations regarding an essential element of the charged

conspiracy offense. Whether Mr. Lambert joined the preexisting conspiracy between Mr. Fisk

and Mr. Mikerin is an essential fact constituting an element of the charged conspiracy offense.

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However, the second superseding indictment fails to identify any facts supporting the

government’s allegation that Mr. Lambert did in fact join such preexisting conspiracy. In

addition, the charged conspiracy offense lacks clarity. Indeed, the government has twice

materially changed what it believes might be the facts and circumstances surrounding the

preexisting conspiracy which Mr. Lambert is purported to have joined.

Accordingly, particulars as to the facts supporting the government’s allegation that Mr.

Lambert joined the preexisting conspiracy are necessary to allow Mr. Lambert to properly

prepare a defense and reduce the possibility of unfair surprise at trial. 1

I. The second superseding indictment fails to provide any facts supporting the
government’s allegation that Mr. Lambert joined the charged conspiracy

Particulars setting forth the facts supporting the government’s allegation that Mr.

Lambert joined the conspiracy charged in this case are necessary because the second superseding

indictment lacks a written statement of the essential facts constituting an element of the charged

conspiracy offense. Indeed, the charged offense requires the government to prove that Mr.

Lambert joined the preexisting conspiracy between Mr. Fisk and Mr. Mikerin. However, the

second superseding indictment fails to identify any facts supporting this specific allegation.

Under the Federal Rules of Criminal Procedure, an indictment must include a “definite

written statement of the essential facts constituting the offense charged . . . .” Fed. R. Crim. P.

7(c)(1). And if the indictment fails to do so, the “defendant may move for a bill of particulars

before or within 14 days after arraignment or at a later time if the court permits.” Fed. R. Crim.

P. 7(f).

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“[T]he purpose of a bill of particulars is to enable a defendant to obtain sufficient information
on the nature of the charge against him so that he may prepare for trial, minimize the danger of
surprise at trial . . . .” United States v. Schembari, 484 F.2d 931, 935 (4th Cir. 1973).
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[W]here an indictment sets forth the offense elements and includes a brief
statement of the facts and circumstances of the offense, but omits certain essential
specifics of the offense . . . such an omission, if necessary, is typically and
appropriately remedied by discovery or, in some instances, by requiring the
government to file a bill of particulars.

United States v. Cuong Gia Le, 310 F. Supp. 2d 763, 773-74 (E.D. Va. 2004).

Where a defendant is charged with conspiracy to commit a substantive offense, such as

wire fraud or a violation of the Foreign Corrupt Practices Act, the government must prove that

two or more persons made an agreement to commit the substantive offense, that the defendant

knew the unlawful purpose of the agreement, and that “the defendant joined in the agreement

willfully.” Memorandum Order (ECF No. 48) at 4 (setting forth the elements of a conspiracy to

commit wire fraud) (emphasis added). Accordingly, as one of the elements of conspiracy

requires proof that the defendant willfully joined it, an indictment charging the defendant with

such offense must include statements of facts supporting this specific factual allegation.

The second superseding indictment, however, fails to identify any facts supporting the

government’s allegation that Mr. Lambert did in fact join the preexisting conspiracy between Mr.

Fisk and Mr. Mikerin. And consequently, it lacks essential facts about an element of the

conspiracy offense of which Mr. Lambert has been charged. Therefore, particulars as to this

specific allegation are necessary to enable Mr. Lambert to obtain sufficient information on the

nature of the conspiracy offense charged against him so that he may prepare for trial and

minimize the danger of unfair surprise.

II. The charged conspiracy offense lacks clarity because the government has twice
changed its allegations as to the preexisting conspiracy which Mr. Lambert is
purported to have joined

Particulars regarding the government’s allegation that Mr. Lambert joined the preexisting

conspiracy between Mr. Fisk and Mr. Mikerin are also necessary because the charged conspiracy

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offense lacks any clarity and the government’s unexplained shifting dates creates even more

confusion. Indeed, since the government first charged Mr. Lambert in January 2018, it has twice

changed its allegations regarding whether Mr. Lambert joined a preexisting conspiracy around

the same time that Mr. Fisk and Mr. Mikerin started it, or whether the conspiracy had existed for

years before Mr. Lambert allegedly joined it.

An indictment must “charge all of the essential facts of a criminal offense; [and] inform

the defendant of the offense charged with sufficient clarity so that he will not be misled while

preparing his defense . . . .” United States v. Guyette, 382 F. Supp. 1266, 1270 (E.D. Va. 1974)

(quotation marks omitted). See also United States v. Jenkins, 675 F. Supp. 2d 647, 653 (W.D.

Va. 2009) (finding that while the charging language tracked the elements of the statute, the

accompanying allegations were “too open to interpretation to ensure that [the defendant] is being

tried for the specific conduct the Grand Jury found indictable, and for the same reason, too open

to interpretation as to the conduct [the defendant] is being called upon to defend”).

The charged conspiracy, however, lacks clarity regarding the circumstances surrounding

the preexisting conspiracy which Mr. Lambert is purported to have joined, which is one of the

essential elements of the charged conspiracy offense. Indeed, when the government first charged

Mr. Lambert, the indictment appeared to allege that Mr. Lambert joined the preexisting

conspiracy in 2009, five years after Mr. Fisk and Mr. Mikerin had started it in 2004. However,

when the government filed its superseding indictment, the amended charging document appeared

to allege that Mr. Lambert joined the preexisting conspiracy in the same year that Mr. Fisk and

Mr. Mikerin purportedly began the conspiracy, five years later (2009) than the original

indictment had previously alleged that the conspiracy began. But then, when the government

filed its second superseding indictment, it appeared to allege that while Mr. Lambert joined the

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preexisting conspiracy in the same year that Mr. Fisk and Mr. Mikerin began such conspiracy

(2009), that actually occurred two years earlier than what the superseding indictment had

previously alleged, and three years later than alleged in the original indictment.

These date changes carry significant consequences. Indeed, with each stroke of the pen,

the government has swiftly replaced what it believes might be the facts and circumstances

surrounding the preexisting conspiracy which Mr. Lambert is purported to have joined. And

because the indictment and each of the two superseding indictments have failed to set forth any

facts supporting the specific allegation that Mr. Lambert did in fact join the conspiracy, Mr.

Lambert’s only resort has been to review millions of pages of discovery material, hoping,

without success, to identify what, if any, might be the facts that the government is alluding to.

Accordingly, there is a significant risk that Mr. Lambert will be unfairly surprised

regarding the facts the government may elicit at trial to support its allegation that Mr. Lambert

joined the preexisting conspiracy – which is a fundamental element of the government’s case

against him. Therefore, unless Mr. Lambert is informed as to what these alleged facts might be,

he will be both misled by the charged conspiracy offense and precluded from adequately

preparing a defense. 2

Consequently, particulars as to the facts supporting the government’s allegation that Mr.

Lambert joined the preexisting conspiracy are necessary to enable Mr. Lambert to obtain

2
And to the extent that the facts supporting the government’s allegation that Mr. Lambert joined
the preexisting conspiracy are somehow discernable from the government’s voluminous
discovery production, the Court should at least order the government to identify all records
that support this specific allegation. See, e.g., Memorandum Order at 7 (ordering the
government to provide an index identifying the documents produced in discovery that
constitute specific contracts and kickback payments allegedly made as part of the wire fraud
conspiracy and substantive wire fraud counts).
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sufficient information on the nature of the conspiracy offense charged against him so that he may

prepare for trial and minimize the danger of unfair surprise.

WHEREFOR, Mr. Lambert respectfully requests that the Court schedule an oral hearing

on this motion and issue an Order directing the government to file a bill of particulars as set forth

herein.

Respectfully submitted,

Dated: September 17, 2019 /s/ William M. Sullivan, Jr.

William M. Sullivan, Jr., Esq. (No. 17082)
Thomas C. Hill, Esq. (No. 05703)
Fabio Leonardi, Esq. (No. 07206)
Pillsbury Winthrop Shaw Pittman LLP
1200 17th Street NW
Washington, DC 20036
Telephone: 202-663-8027
Fax: 202-663-8007
wsullivan@pillsburylaw.com
thomas.hill@pillsburylaw.com
fabio.leonardi@pillsburylaw.com

Counsel for Defendant Mark Lambert