United States v. Case

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 13, 2008

No. 08-60405 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA;

Plaintiff-Appellant;
v.

RODNEY CASE, KEVIN CLARK, MIKE FULTON, DOUGLAS MURPHY,
and JAMES WARD;

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:06-CR-00210

Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant United States of America asserts that the district court
erred when it dismissed counts one, nine, and twelve of the second superceding
indictment. Having reviewed the parties’ briefs, heard oral argument, and
considered the record, we disagree. First, count one, which charged all the
abovenamed Defendants-Appellees with conspiring to commit wire fraud in
violation of 18 U.S.C. § 371 was properly dismissed because the count is

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
 No. 08-60405

unconstitutionally vague since it fails to allege any materially false statements
or representations by Defendants-Appellees. See Neder v. United States, 527
U.S. 1, 25 (1999) (“[M]ateriality of falsehood is an element of the federal mail
fraud, wire fraud, and bank fraud statutes.”). Second, count nine, which charged
Defendants-Appellees Mike Fulton, Douglas Murphy, and James Ward with
stealing and copying trade secrets in violation of various provisions of the
Economic Espionage Act (“EEA”) was properly dismissed because it is barred by
the statute of limitations. Finally, count twelve, which charged Defendant-
Appellee Ward with violating various provisions of the EEA was also properly
dismissed on statute of limitations grounds. Accordingly, the judgment of the
district court is AFFIRMED.

2