RESPONSE in Opposition by USA as to Carlos De Oliveira re [323] Defendant's MOTION to Dismiss [85] Indictment, or in the Alternative for a Bill of Particulars Replies due by 3/14/2024. (Bratt, Jay)
Page 1 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 1 of
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-80101-CR-CANNON(s)
UNITED STATES OF AMERICA,
Plaintiff,
v.
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,
Defendants.
________________________________/
GOVERNMENT’S OPPOSITION TO CARLOS DE OLIVEIRA’S
MOTION TO DISMISS THE INDICTMENT OR
IN THE ALTERNATIVE FOR A BILL OF PARTICULARSPage 2 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 2 of
TABLE OF CONTENTS
I.
Background
II.
Discussion ........................................................................................................................
III.
A.
Applicable Law .............................................................................................................
B.
Counts 33, 40 and 41 Are Properly Charged ................................................................
C.
Count 42 Is Properly Charged.....................................................................................
D.
There Is No Basis to Require a Bill of Particulars ...................................................... Conclusion ........................................................................................................................
iPage 3 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 3 of
Defendant Carlos De Oliveira moves the Court (ECF No. 323) to dismiss the four counts
of the Superseding Indictment in which he is charged (ECF No. 85, Counts 33, 40, 41, and 42). In
the alternative, he seeks a bill of particulars. ECF No. 323 at 14-17. The motion should be denied
in its entirety. The Superseding Indictment lays out the factual allegations and charges against De
Oliveira in detail, going far beyond what is required by well-established Eleventh Circuit law.
Indeed, while the Superseding Indictment would be sufficient so long as it “tracks the wording of
the statute[s]” charged and “sets forth the essential elements of the crimes,” United States v.
Critzer, 951 F.2d 306, 308 (11th Cir. 1992), it far exceeds those requirements, providing paragraph
after paragraph of detailed allegations that provide a clear roadmap informing De Oliveira of the
charges against him and allowing him to prepare his defense and minimize surprise at trial.
Likewise, there is no basis for a bill of particulars given the detailed allegations in the Superseding
Indictment and thorough discovery—including video, photographs, text messages, witness
interviews, and grand jury transcripts—which together fully apprise De Oliveira of the charges he
faces. Because a bill of particulars “cannot be used as a weapon to force the government into
divulging its prosecution strategy” or to “‘compel the government to detailed exposition of its
evidence or to explain the legal theories upon which it intends to rely at trial,’” United States v.
Maurya, 25 F.4th 829, 837-38 (11th Cir. 2022) (quoting United States v. Burgin, 621 F.2d 1352,
1359 (5th Cir. 1980)), no bill of particulars is warranted here.
I.
Background
De Oliveira is charged along with codefendants Donald Trump and Waltine Nauta with
obstructing and conspiring to obstruct an active grand jury investigation that focused on the
location of boxes containing classified records at the Mar-a-Lago Club (“Mar-a-Lago”). He is also
charged with lying to FBI agents in a voluntary, recorded interview about his participation in
1Page 4 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 4 of
handling boxes at Mar-a-Lago. The Superseding Indictment includes a lengthy, specific, and
detailed factual recitation that makes clear exactly what De Oliveira did, what his role was in the
conspiracy, and what crimes he is charged with committing.
As alleged in the Superseding Indictment, De Oliveira was the property manager of Mara-Lago beginning in January 2022. ECF No. 85 ¶ 10. On May 11, 2022, a federal grand jury
issued a subpoena to Trump’s office for documents containing classification markings. Id. ¶ 53.
In the days before Trump’s attorney conducted a review of boxes in a storage room at Mar-a-Lago
to locate classified documents in response to the subpoena, Nauta moved some 64 boxes out of the
storage room and, on June 2, shortly before the attorney conducted his review of boxes in the
storage room, De Oliveira helped Nauta move a smaller number of boxes (approximately 30) into
the storage room. Id. ¶¶ 59, 62-63. That surreptitious movement of boxes was central to Trump
and Nauta’s effort to conceal boxes from the attorney and from the grand jury. Id. ¶¶ 63-73.
When FBI agents came to Mar-a-Lago on June 3, 2022, to collect documents with
classification markings, they noticed surveillance cameras near the storage room where the boxes
were stored and where the attorney had conducted his review. Id. ¶ 74. As part of the investigation
into the unlawful retention of the documents at Mar-a-Lago, on June 22, 2022, the Department of
Justice emailed one of Trump’s attorneys a draft grand jury subpoena for security camera footage
from outside the storage room. As described in detail in the Superseding Indictment, id. ¶¶ 74-87,
91, De Oliveira was personally involved in attempting to delete the security footage that had been
subpoenaed and that would reveal Nauta’s surreptitious movement of boxes to conceal them from
the attorney’s review.
On June 23, 2022, the day after the Department of Justice emailed the draft subpoena for
security footage, Trump spoke with De Oliveira on the phone for approximately 24 minutes. Id.
2Page 5 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 5 of
¶ 76. The next day, when the grand jury subpoena was served, Nauta and De Oliveira immediately
took steps to obstruct the investigation. Within two hours of receiving a text message stating that
Trump wanted to see him, Nauta changed his travel plans and arranged to fly to Mar-a-Lago, and
provided inconsistent statements about why he had done so. Id. ¶¶ 78-79. Nauta also reached out
to both De Oliveira and Trump Employee 4, who was Director of Information Technology (“IT”)
at Mar-a-Lago. Id. ¶¶ 79-80. In advance of Nauta’s sudden trip to Mar-a-Lago, De Oliveira told
another Trump employee that Nauta wanted to keep his trip secret and that he wanted De Oliveira
to find out from Trump Employee 4 how long the security footage was stored. Id. ¶ 81. On the
evening of Saturday, June 25, when Nauta arrived in Florida, he and De Oliveira went to a security
booth where security camera footage is displayed, and then went with a flashlight to the area
outside the storage room where the pertinent cameras were located. Id. ¶ 82.
On Monday morning, June 27, De Oliveira went to the IT office and asked Trump
Employee 4 to step away from the office with him so they could talk. Id. ¶¶ 83-84. The two of
them walked to a small room known as an “audio closet” and De Oliveira said that their
conversation should remain between the two of them. Id. ¶ 84(a). After asking Trump Employee
4 how long the server retained the footage, De Oliveira told Trump Employee 4 that “the boss”
wanted the server deleted. Id. ¶ 84(a-c). When Trump Employee 4 responded that he would not
have the authority to do that, De Oliveira insisted that “the boss” wanted the server deleted, and
asked “what are we going to do?” Id. ¶ 84(c).1 The Superseding Indictment goes on to describe
how De Oliveira and Nauta met in the bushes on a neighboring property shortly after De Oliveira’s
Trump Employee 4 falsely denied any such exchange in testimony before the grand jury,
at a time when he was represented by counsel who simultaneously represented Nauta and whose
legal fees were paid by Trump’s Political Action Committee. Trump Employee 4 told the
Government the facts set forth in the Superseding Indictment immediately after changing to new
counsel. See, e.g., ECF No. 129 at 2-5.
3Page 6 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 6 of
solicitation of Trump Employee 4, and that De Oliveira also spoke with Trump that afternoon. Id.
¶¶ 85-86. Finally, in August 2022, after the execution of a search warrant at Mar-a-Lago, Nauta
confirmed De Oliveira’s continuing loyalty to Trump and Trump agreed to provide De Oliveira
with an attorney. Id. ¶ 91.
Based on those facts, De Oliveira is charged in three counts. First, Count 33 charges De
Oliveira, Trump, and Nauta with a multi-object conspiracy to obstruct justice, in violation of U.S.C. § 1512(k). Count 33 incorporates the detailed factual allegations described above, and then
clearly defines the conspiracy and its object offenses, closely tracking the statutory language. Id.
¶ 95. For further clarity, Count 33 goes on to enumerate the manner and means of the conspiracy.
Id. ¶ 97. One of those, ¶ 97(g), is the defendants’ attempt to delete the security camera footage
from the Mar-a-Lago Club and to conceal the footage from the grand jury.
Next, Counts 40 and 41 charge De Oliveira (along with Trump and Nauta) with two
substantive counts of obstruction of justice, in violation of 18 U.S.C. § 1512(b)(2)(B) and
§ 1512(c)(1). Those counts, too, incorporate the detailed factual allegations described above and
carefully track the statutory language to make clear precisely what crimes De Oliveira is charged
with committing and how. Id. ¶¶ 113-16. And Count 42 charges De Oliveira with providing false
statements to the FBI in a voluntary, recorded interview, in violation of 18 U.S.C. § 1001(a)(2).
II.
Discussion
A.
Applicable Law
The Federal Rules of Criminal Procedure require only that an indictment be a “plain,
concise, and definite written statement of the essential facts constituting the offense charged.” Fed.
R. Crim. P. 7(c)(1). And an indictment is facially valid if it “(1) presents the essential elements of
the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables
4Page 7 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 7 of
the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any
subsequent prosecution for the same offense.” United States v. Chalker, 966 F.3d 1177, (11th Cir. 2020) (quotation marks omitted); see United States v. Dabbs, 134 F.3d 1071, 1079 (11th
Cir. 1998).
Importantly, a motion to dismiss is not an appropriate vehicle for a pretrial determination
of the sufficiency of the evidence. In judging the sufficiency of an indictment, the Eleventh Circuit
has cautioned that courts should give the charging document “a common sense construction, and
its validity is to be determined by practical, not technical, considerations.” Chalker, 966 F.3d at
1190 (quotation marks omitted). It is generally enough for an indictment to track statutory
language, as long as the indictment sets forth all the elements necessary to constitute the offense
intended to be punished, United States v. Johnson, 981 F.3d 1171, 1179 (11th Cir. 2020), and
provides “a statement of the facts and circumstances as will inform the accused of the specific
offense, coming under the general description, with which he is charged,” United States v.
McGarity, 669 F.3d 1218, 1236 (2012) (quotation marks and citations omitted). An indictment
sufficiently informs the defendant of the charge against him and enables him to plead double
jeopardy in any future prosecution for the same offense “as long as the language therein sets forth
the essential elements of the crime.” United States v. Cole, 755 F.2d 748, 759 (11th Cir. 1985).
Rule 12 does not permit defendants to “challenge whether there is a sufficient evidentiary
foundation to support the grand jury’s probable cause determination.” United States v. Kaley, F.3d 1316, 1326 (11th Cir. 2012), aff’d and remanded, 571 U.S. 320 (2014). Instead, in
considering a motion to dismiss, the court “is limited to reviewing the face of the indictment and,
more specifically, the language used to charge the crimes.” United States v. Sharpe, 438 F.3d
1257, 1263 (11th Cir. 2006). “Because [the defendants were] properly indicted, the government
5Page 8 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 8 of
is entitled to present its evidence at trial and have its sufficiency tested by a motion for acquittal
pursuant to Federal Rule of Criminal Procedure 29.” United States v. Salman, 378 F.3d 1266,
1268 (11th Cir. 2004). A Rule 29 motion is “the proper avenue for contesting the sufficiency of
the evidence in criminal cases because there is no explicit authority to grant a pre-trial judgment
as a matter of law on the merits under the Federal Rules of Criminal Procedure.” Id. “There is no
summary judgment procedure in criminal cases. . . . The sufficiency of a criminal indictment is
determined from its face. The indictment is sufficient if it charges in the language of the statute.”
United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992); United States v. Gosney, No. 22- CR80022, ECF No. 493 (S.D. Fla. Jan. 28, 2023) (“Rather, assuming a facially valid indictment, the
proper vehicle for raising an issue relevant to the guilt or innocence of a defendant is through a
motion for judgment of acquittal or argument to the jury—not via a pretrial motion to dismiss.”
(quoting Salman, 378 F.3d at 1268)).
B.
Counts 33, 40 and 41 Are Properly Charged
Under the well-established standards of the Eleventh Circuit, the Superseding Indictment
is more than sufficient. It not only tracks the statutory language fully, but provides a detailed
recitation of the factual allegations, including dates, times, locations, texts, and actions, and
provides an unambiguous statement of what De Oliveira and his codefendants did to obstruct the
investigation. The Court need not look further to deny De Oliveira’s motion.
Confronted with clear Eleventh Circuit precedent and the thorough and detailed allegations
in the Superseding Indictment, De Oliveira attempts a sleight of hand, suggesting to the Court that
the charges are somehow insufficient simply because De Oliveira is not alleged to have been
responsible for all aspects of the manner and means of the charged conspiracy, see ECF No. at 7-8, and hypothesizes factual possibilities regarding what that the grand jury did not charge, see
6Page 9 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 9 of
id. But it is black-letter law that a conspirator need not participate in all aspects of a conspiracy,
see United States v. Browne, 505 F.3d 1229, 1274 (11th Cir. 2007), and his complaints about what
the Superseding Indictment does not allege are irrelevant in the face of what it does allege, in plain
English and painstaking detail. Those allegations are more than sufficient at this stage of the
proceedings.
Faced with the detailed allegations in the Superseding Indictment, De Oliveira attempts to
circumvent the limitations under Eleventh Circuit law and argue the weight of the evidence,
claiming that his alleged actions related to the deletion of the security camera footage “fail[] to
support” the charges in Counts 40 and 41, and “by extrapolation” the conspiracy charged in Count
33. ECF No. 323 at 9. But arguing that an allegation in the indictment “fails to support” the
charged offenses gives up the game: whether or not factual allegations adequately “support” the
charges returned by a grand jury is precisely the kind of jury question that is not appropriate for a
Rule 12 motion to dismiss. See Sharpe, 438 F.3d at 1263 (explaining that it is “well-settled that a
court may not dismiss an indictment . . . on a determination of facts that should have been
developed at trial”); Salman, 378 F.3d at 1267 (11th Cir. 2004) (reversing dismissal of indictment
where the “district court in effect granted summary judgment” by “looking beyond the face of the
indictment and ruling on the merits of the charges”).
De Oliveira also errs by implying that the Superseding Indictment somehow fails to allege
a connection between De Oliveira’s actions and the “official proceeding” that the defendants
sought to obstruct. It plainly does. See ECF No. 85, Counts 40 and 41. And he misunderstands
the elements of the crimes when he suggests that the Superseding Indictment fails to allege “that
Mr. De Oliveira knew that a subpoena had issued,” or “that the data in question was responsive to
the subpoena,” or that the data “needed to be preserved and provided to the Government.” ECF
7Page 10 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 10 of
No. 323 at 9-10. The elements of the relevant charges require no such allegations or proof—rather,
they require only that the defendant acted corruptly and with intent to cause another person to alter,
destroy, mutilate, or conceal an object with the intent to impair the object’s integrity or availability
for use in an official proceeding (for Count 40, charging a violation of 18 U.S.C. § 1512(b)(2)(B)),
and act with intent to impair the relevant object’s integrity or availability in an official proceeding
(for Count 41, charging a violation of 18 U.S.C. § 1512(c)(1)). See Sand et al., 2 Modern Federal
Jury Instructions – Criminal, ¶¶ 46.09, Inst. 46-59, and 46.10, Inst. 46-66. De Oliveira points to
no authority, and the Government is not aware of any, requiring an indictment to allege a
defendant’s awareness of the details contained in a subpoena; that a defendant have specialized
knowledge about the contours of what might be considered responsive to a subpoena; or that a
defendant who tells an IT director that “the boss” wants footage deleted must be aware of the
extent of anyone’s preservation obligations. The law contains no such requirements, and for good
reason: imposing such detailed knowledge requirements would preclude the application of the laws
regarding obstruction of justice to most subjects of criminal investigations. The Superseding
Indictment charges that De Oliveira endeavored to secure the deletion of footage “to prevent it
from being provided to a grand jury,” ECF No. 85 ¶¶ 114-15, and that readily satisfies the
requirements at this stage of the proceedings.
De Oliveira may think that the evidence will not persuade a petit jury. De Oliveira may
think that the fact that he supposedly did not know all of the details about the draft subpoena will
undercut the Government’s proof. See ECF No. 323 at 9 (arguing that De Oliveira did not have
an “understanding that a Justice Department attorney emailed a draft subpoena for Mar-a-Lago
video footage” on June 22, 2022). But those are issues for trial, subject to the rules of evidence;
here, at the motion to dismiss stage, “a defendant cannot challenge whether there is a sufficient
8Page 11 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 11 of
evidentiary foundation to support the grand jury’s probable cause determination.” Kaley, 677 F.3d
at 1326.***
In sum, with respect to Count 33, the Section 1512(k) conspiracy, the Superseding
Indictment tracks the statutory language, identifies the substantive offenses that were the objects
of the conspiracy (Sections 1512(b)(2)(A), (b)(2)(B), and (c)(1)), identifies the co-conspirators by
name, provides a range of dates during which the conspiracy took place, alleges where the
conspiracy occurred, and details the purpose as well as the manner and means that the conspirators
used to accomplish their objectives. That is more than sufficient. See United States v. Yonn, F.2d 1341, 1349 (11th Cir. 1983) (finding a conspiracy indictment sufficient where it set forth the
elements of the crime, the identities of the co-conspirators, and the timeframe and locale of the
conspiracy); see also United States v. Cadillac Overhaul Supply Co., 568 F.2d 1078, 1082 (5th
Cir. 1978) (“[O]rdinarily, the pleading of the allegations in terms of the statute is sufficient[.]”)
Because Count 33 not only tracks the language of the statute, see Chalker, 966 F.3d at 1190, but
also “provides a statement of facts and circumstances that give notice of the offense” to De
Oliveira, it survives his Rule 12 challenge. United States v. Walker, 490 F.3d 1282, 1296 (11th
Cir. 2007).
De Oliveira oddly asserts that the Superseding Indictment “fails” to specify any overt acts
by De Oliveira in furtherance of the Section 1512(k) conspiracy, ECF No. 323 at 8-9, but that
argument is misguided for two reasons. First, in contrast to 18 U.S.C. § 371, which expressly
requires an overt act, Section 1512(k) contains no overt act requirement. See, e.g., Whitfield v.
United States, 543 U.S. 209, 213-214 (2005); United States v. Shabani, 513 U.S. 10, 14 (1994);
United States v. Edlind, 887 F.3d 166, 176 n.4 (4th Cir. 2018) (Section 1512(k) “does not contain
an overt act requirement”); United States v. Nelms, 653 F. App’x 524, 527 (9th Cir. 2016) (“Section
1512(k) does not require an overt act.”). Second, as set forth in detail above, even if there were an
overt act requirement, the Superseding Indictment is replete with allegations regarding specific
acts that De Oliveira took in furtherance of the conspiracy.
9Page 12 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 12 of
Similarly, Counts 40 and 41 track the language of Sections 1512(b)(2)(B) and (c)(1),
respectively, and specifically allege that De Oliveira requested that another Trump employee
delete security camera footage at Mar-a-Lago in order to prevent the footage from being provided
to a federal grand jury.3 See ECF No. 85 ¶¶ 114, 116. Those counts also incorporated the general
allegations of the Superseding Indictment, including those pertaining to De Oliveira’s conduct.
See id. ¶¶ 113, 115. As with Count 33, these counts therefore survive De Oliveira’s Rule challenge: Counts 40 and 41 both track the language of the statute upon which the charge was
based and contain a statement of facts and circumstances that is more than sufficient to inform De
Oliveira of the charged offenses. See Chalker, 966 F.3d at 1190; Walker, 490 F.3d at 1296.
As a final point, De Oliveira claims confusion as to which “official proceeding” he is
alleged to have obstructed, noting that the grand jury subpoenas referenced in the Superseding
Indictment were issued by a grand jury in the District of Columbia, but that De Oliveira was
indicted by a grand jury empaneled in the Southern District of Florida. ECF No. 323 at 10. His
purported confusion is baseless. First, Section 1512 does not require that a defendant be aware of
the precise “official proceeding” at issue. See United States v. Friske, 640 F.3d 1288, 1292 n.(11th Cir. 2011) (“We emphasize that it is not necessary to prove that the defendant knew that a
proceeding was pending . . . . Consistent with Aguilar’s nexus requirement [United States v.
Aguilar, 515 U.S. 593 (1995)], the government must prove that the defendant knew of or foresaw
an official proceeding, and knew that his actions were likely to affect it.”) (emphasis added).
Second, as De Oliveira is well aware from the extensive discovery provided in this case, the only
grand jury investigation referenced in the Superseding Indictment, ECF No. 85 ¶ 52, was opened
Both Counts 40 and 41 also identify the federal aiding and abetting statute, 18 U.S.C. § 2,
providing an alternative theory of liability. See Rosemond v. United States, 572 U.S. 65, 68 (2014).
10Page 13 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 13 of
in the District of Columbia, so there can be no confusion on his part. Thus, his purported concern
over whether he can “rely on any judgment as a double jeopardy bar,” ECF No. 323 at 10, is
entirely illusory. See United States v. Poirier, 321 F.3d 1024, 1029 (11th Cir. 2003), opinion
corrected, No. 01-15989, 2003 WL 21211926 (11th Cir. Apr. 1, 2003) (in assessing sufficiency of
indictment, courts are to employ a “common sense construction” and indictment can be valid even
if it might have been drafted “with more clarity”) (internal citation and quotation marks omitted).
One of De Oliveira’s few case citations is to United States v. McGarity, but that case is
entirely distinguishable. The Section 1512(c) count in McGarity only parroted the statutory
language, with no factual detail. 669 F.3d at 1238-39; see also United States v. Berger, McGarity,
et al., No. 3:08-cr-00022, ECF No. 78 at 29-30 (N.D. Fla. Mar. 13, 2008) (Superseding
Indictment). Quite distinct from McGarity, which, as De Oliveira quotes, only provided notice
that defendants obstructed an “unknown official proceeding,” “at some time,” “in some place,”
“by some action,” ECF No. 323 at 10, De Oliveira has been informed of the official proceeding
he is alleged to have obstructed (including the dates of the relevant subpoenas), informed of the
specific dates of both the conspiracy and his own alleged actions, informed of the specific locations
at which his actions are alleged to have occurred, and informed of the particular manner and means
of the conspiracy that the grand jury alleged was sufficient for a finding of probable cause. The
Superseding Indictment here is a far cry from the indictment referenced by the court in McGarity.
There is no basis to dismiss any of Counts 33, 40, or 41.
C.
Count 42 Is Properly Charged
De Oliveira separately asks the Court to dismiss Count 42, which alleges false statements
in violation of 18 U.S.C. § 1001(a)(2). In De Oliveira’s view, Count 42 “apparently” shows, “in
a rambling and disconnected colloquy,” that De Oliveira denied knowing where “items” were
11Page 14 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 14 of
stored at Mar-a-Lago. ECF No. 323 at 11. De Oliveira’s interpretation is a slanted and distorted
take on a recorded conversation that, as set forth in Count 42, is actually quite clear. As the
Superseding Indictment explains, De Oliveira gave the following unambiguous answers to
straightforward questions in his interview with the FBI:
Question:
When -- after the end of the presidency, boxes
arrived to Mar-a-Lago. Were you part of any
group to help --
Answer:
No.
Question:
-- unload and move them?
Answer:
No.
*
*
*
Question:
Do you -- were you -- do you even know, like, or
were you even there or aware that boxes were --
Answer:
No.
Question:
-- like, all this stuff was being moved in?
Answer:
Never saw anything.
Question:
Okay.
Answer:
Yeah. And then --
Question:
Even his personal stuff, like, his clothes --
Answer:
Never.
Question:
-- and furniture, nothing?
Answer:
Never saw nothing.
Question:
Okay. So you don’t know where items would have
been stored, as soon as he moved back to Mar-aLago?
Answer:
No.
12Page 15 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 15 of
ECF No. 85 ¶ 119.
This voluntary exchange with De Oliveira, which was recorded, leaves no doubt that he
conveyed to the FBI that he (1) was not involved in the effort to unload and move any boxes into
Mar-a-Lago at the end of the presidency, (2) had not been aware of anything being moved into
Mar-a-Lago at the end of the presidency, (3) that he “never saw anything” being moved into Mara-Lago, not even furniture or clothes, and (4) that he did not know where items would have been
stored upon former President Trump’s return to Mar-a-Lago in January 2021. De Oliveira’s goal,
which is evident from his flat denials, was to distance himself as much as possible from the boxes
that were at the center of the FBI’s investigation, and he concedes this goal in his motion: “Mr.
De Oliveira’s point—obviously—was that he had no real involvement in that move and had no
idea what went where once it arrived at Mar-a-Lago . . . .” ECF No. 323 at 12. The Government
agrees that this was precisely De Oliveira’s point; it was also false.
Given the clarity of the questions and his answers, De Oliveira tries to suggest that he may
have been confused, emphasizing that the conversation occurred two years after the move into
Mar-a-Lago, implying that his “memory” may have been faulty or could have benefitted from
being refreshed, id. at 11, and that De Oliveira might not have “understood in that moment” the
questions being asked, id. at 12. These are at best arguments for a jury, not arguments to dismiss
the indictment. Moreover, as the transcript and the charges make clear, the questions were
unambiguous and De Oliveira did not suggest in any way that he didn’t remember or that he was
confused about what the agents were asking. Instead, he answered the questions crisply and
clearly: “no,” “no,” “no,” “never saw anything,” “never,” “never saw nothing,” “no.” Again, his
intent was obvious and his answers were false.
13Page 16 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 16 of
Contrary to De Oliveira’s insistence, his false answers were also highly material to the
Government’s investigation. A false statement is “material if it has a natural tendency to influence,
or [is] capable of influencing, the decision of the decisionmaking body to which it is addressed.”
United States v. Henderson, 893 F.3d 1338, 1346 (11th Cir. 2018) (quotation marks omitted). A
governmental body need not have “actually relied on the false statement,” and a false statement
can be material “even if the decision maker actually knew or should have known that the statement
was false.” Id. at 1346, 1351 (quotation marks omitted). Ultimately, the “materiality of a false
statement,” once alleged in a charging document, “is a jury question.” United States v. Fern, F.3d 1318, 1326-27 (11th Cir. 1998) (citing United States v. Gaudin, 515 U.S. 506 (1995)).
At trial, the Government will prove beyond a reasonable doubt that De Oliveira’s
statements were false, including through witness testimony about the movement of boxes on
January 20, 2021; witness testimony about De Oliveira’s involvement in moving boxes on January
20, 2021; photographs of De Oliveira on January 20, 2021; and other evidence. And the
Government will prove that they were material, because truthful answers would have helped the
FBI establish precisely what it was trying to find out: whether boxes that contained classified
documents came from the White House, whether and for how long they were stored in the
residential quarters and basement storage room at Mar-a-Lago, and whether the boxes moved to
Mar-a-Lago at the end of the presidency were identical or similar to those loaded on Trump’s plane
to New Jersey on June 3, 2022. But at this stage, the Government is not required to detail its proof,
and a motion to dismiss may not be used to challenge the evidentiary sufficiency of the grand
jury’s probable cause determination. See Kaley, 677 F.3d at 1326. Count 42 tracks the language
of the statute and provides a detailed recitation of the statements alleged to have been false. That
is sufficient. See Johnson, 981 F.3d at 1179; McGarity, 669 F.3d at 1236; see also United States
14Page 17 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 17 of
v. Bazantes, 978 F.3d 1227, 1246 (11th Cir. 2020) (holding that indictment sufficiently pleaded
false statement charge where it tracked the language of statute and alleged facts summarizing
defendants’ alleged false submissions).
The Eleventh Circuit has held that an indictment for false statements under Section is facially valid even where it does nothing more than charge that a defendant “knowingly made a
false, fictitious and fraudulent statement . . . in violation of Title 18 U.S.C. § 1001.” United States
v. Stefan, 784 F.2d 1093, 1101-02 (11th Cir. 1986). Count 42 clears that bar and then some. De
Oliveira has offered no basis to dismiss it.
D.
There Is No Basis to Require a Bill of Particulars
As an alternative to dismissal, De Oliveira asks the Court to order the Government to
provide a bill of particulars. ECF No. 323 at 14-17. Citing no caselaw regarding bills of
particulars, De Oliveira provides 16 specific questions that he contends the Government should
have to answer. No bill of particulars is warranted here, and even if it were, the specific questions
identified by De Oliveira go far beyond what a defendant is entitled to.
As the Eleventh Circuit has explained, the “purpose of a bill of particulars is threefold: ‘to
inform the defendant of the charge against him with sufficient precision to allow him to prepare
his defense, to minimize surprise at trial, and to enable him to plead double jeopardy in the event
of a later prosecution for the same offense.’” Maurya, 25 F.4th at 837-38 (quoting United States
v. Warren, 772 F.2d 827, 837 (11th Cir. 1985)). But a bill of particulars “cannot be used as a
weapon to force the government into divulging its prosecution strategy; we do not allow
defendants to ‘compel the government to detailed exposition of its evidence or to explain the legal
theories upon which it intends to rely at trial’ in that manner.” Id. (quoting Burgin, 621 F.2d at
1359).
15Page 18 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 18 of
Those improper purposes are precisely what De Oliveira’s specific questions seek here.
First, as to the conspiracy charged in Count 33, De Oliveira seeks various information related to
the Government’s theory of the formation of the conspiracy. See ECF No. 323 at 15, subparts a.c. But the Eleventh Circuit has “explicitly forbidden” the use of a bill of particulars to “‘compel
the government to provide the essential facts regarding the existence and formation of a
conspiracy.’” Maurya, 25 F.4th at 837-38 (quoting United States v. Rosenthal, 793 F.2d 1214,
1227 (11th Cir. 1986), modified, 801 F.2d 378 (11th Cir. 1986)). De Oliveira also poses various
questions about the Government’s view of the facts, such as “whether the Government alleges that
Mr. De Oliveira has ever seen a classified document,” and “whether the Government alleges that
Mr. De Oliveira was aware of the subpoena issued on May 11, 2022.” ECF No. 323 at 15. De
Oliveira even asks the Government to account for his own knowledge of various concepts, such as
“whether Mr. De Oliveira understood . . . what a video data server was” or “understood what a
subpoena was.” Id. at 16. The grand jury is not required to set forth any such things in an
indictment, and these factual questions are, at most, matters for trial. See United States v. Roberts,
174 Fed. App’x 475, 477 (11th Cir. 2006) (explaining that a bill of particulars “is not designed to
compel the government to detailed exposition of its evidence or to explain the legal theories upon
which it intends to rely at trial”) (citing Burgin, 621 F.2d at 1359).
De Oliveira’s proposed questions related to the false statement charge in Count 42 fare no
better. De Oliveira wants the Government to specify “what was false” about his statements, as
well as how they were material to the Government’s investigation. See ECF No. 323 at 16-17.
But a defendant is not entitled to any such bill of particulars where the indictment itself identifies
with particularity the specific statements alleged to be false.
See, e.g., United States v.
Ramamurthy, No. 18-cr-20710, 2019 WL 633328, at *4 (S.D. Fla. Feb. 13, 2019) (“Where the
16Page 19 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 19 of
bulk of the government’s evidence consists of testimony regarding conversations the defendant
personally participated in, the defendant cannot argue surprise. Therefore, a bill of particulars is
not warranted.”); see also Cole, 755 F.2d at 760-61 (denying motion for bill of particulars where
indictment tracked the language of the statute, provided adequate notice of charges, and bulk of
government’s evidence involved testimony by witnesses about conversations in which the
defendant participated). Likewise, a bill of particulars may not be used to force the Government
to specify the ways in which it contends particular statements are false. See Ramamurthy, WL 63328 at *3 (rejecting “argument that the government must specify the way in which it
believes the false statements to be false”) (citing United States v. Barnhart, 889 F.2d 1374 (5th
Cir. 1989) and United States v. Oberski, 734 F.2d 1035, 1035 n.1 (5th Cir. 1984)).
As with the defendant in Maurya, De Oliveira “simply want[s] the government to explain
ahead of time which . . . details would be most significant at trial; essentially, he ask[s] about the
government’s specific legal ‘theory.’” 25 F.4th at 838. This Court should conclude as the Eleventh
Circuit did: such a request is “inappropriate” and must be rejected. Id. De Oliveira has the benefit
of a detailed indictment and substantial discovery. He has been sufficiently informed of the
charges against him so as not to be unfairly surprised at trial, and the Superseding Indictment
contains sufficient detail to enable him to plead double jeopardy in any later prosecution for the
same offense. See Warren, 772 F.2d at 837. He is not entitled to more.
III.
Conclusion
For the foregoing reasons, De Oliveira’s motion should be denied in its entirety.
17Page 20 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 20 of
Respectfully submitted,
JACK SMITH
Special Counsel
N.Y. Bar No. By:
/s/ Jay I. Bratt
Jay I. Bratt
Counselor to the Special Counsel
Special Bar ID #A950 Pennsylvania Avenue, N.W.
Washington, D.C. David V. Harbach, II
Assistant Special Counsel
Special Bar ID #ABrett C. Reynolds
Assistant Special Counsel
Special Bar ID #A
18Page 21 Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 21 of
CERTIFICATE OF SERVICE
I hereby certify that on March 7, 2024, I electronically filed the foregoing document with
the Clerk of the Court using CM/ECF, which in turn serves counsel of record via transmission of
Notices of Electronic Filing.
/s/ Jay I. Bratt
Jay I. Bratt
19
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 1 of 21
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-80101-CR-CANNON(s)
UNITED STATES OF AMERICA,
Plaintiff,
v.
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,
Defendants.
________________________________/
GOVERNMENT’S OPPOSITION TO CARLOS DE OLIVEIRA’S
MOTION TO DISMISS THE INDICTMENT OR
IN THE ALTERNATIVE FOR A BILL OF PARTICULARS
PDF Page 3
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 2 of 21
TABLE OF CONTENTS
I.
Background ......................................................................................................................... 1
II.
Discussion ........................................................................................................................... 4
III.
A.
Applicable Law ............................................................................................................. 4
B.
Counts 33, 40 and 41 Are Properly Charged ................................................................ 6
C.
Count 42 Is Properly Charged..................................................................................... 11
D.
There Is No Basis to Require a Bill of Particulars ...................................................... 15
Conclusion ........................................................................................................................ 17
i
PDF Page 4
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 3 of 21
Defendant Carlos De Oliveira moves the Court (ECF No. 323) to dismiss the four counts
of the Superseding Indictment in which he is charged (ECF No. 85, Counts 33, 40, 41, and 42). In
the alternative, he seeks a bill of particulars. ECF No. 323 at 14-17. The motion should be denied
in its entirety. The Superseding Indictment lays out the factual allegations and charges against De
Oliveira in detail, going far beyond what is required by well-established Eleventh Circuit law.
Indeed, while the Superseding Indictment would be sufficient so long as it “tracks the wording of
the statute[s]” charged and “sets forth the essential elements of the crimes,” United States v.
Critzer, 951 F.2d 306, 308 (11th Cir. 1992), it far exceeds those requirements, providing paragraph
after paragraph of detailed allegations that provide a clear roadmap informing De Oliveira of the
charges against him and allowing him to prepare his defense and minimize surprise at trial.
Likewise, there is no basis for a bill of particulars given the detailed allegations in the Superseding
Indictment and thorough discovery—including video, photographs, text messages, witness
interviews, and grand jury transcripts—which together fully apprise De Oliveira of the charges he
faces. Because a bill of particulars “cannot be used as a weapon to force the government into
divulging its prosecution strategy” or to “‘compel the government to detailed exposition of its
evidence or to explain the legal theories upon which it intends to rely at trial,’” United States v.
Maurya, 25 F.4th 829, 837-38 (11th Cir. 2022) (quoting United States v. Burgin, 621 F.2d 1352,
1359 (5th Cir. 1980)), no bill of particulars is warranted here.
I.
Background
De Oliveira is charged along with codefendants Donald Trump and Waltine Nauta with
obstructing and conspiring to obstruct an active grand jury investigation that focused on the
location of boxes containing classified records at the Mar-a-Lago Club (“Mar-a-Lago”). He is also
charged with lying to FBI agents in a voluntary, recorded interview about his participation in
1
PDF Page 5
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 4 of 21
handling boxes at Mar-a-Lago. The Superseding Indictment includes a lengthy, specific, and
detailed factual recitation that makes clear exactly what De Oliveira did, what his role was in the
conspiracy, and what crimes he is charged with committing.
As alleged in the Superseding Indictment, De Oliveira was the property manager of Mara-Lago beginning in January 2022. ECF No. 85 ¶ 10. On May 11, 2022, a federal grand jury
issued a subpoena to Trump’s office for documents containing classification markings. Id. ¶ 53.
In the days before Trump’s attorney conducted a review of boxes in a storage room at Mar-a-Lago
to locate classified documents in response to the subpoena, Nauta moved some 64 boxes out of the
storage room and, on June 2, shortly before the attorney conducted his review of boxes in the
storage room, De Oliveira helped Nauta move a smaller number of boxes (approximately 30) into
the storage room. Id. ¶¶ 59, 62-63. That surreptitious movement of boxes was central to Trump
and Nauta’s effort to conceal boxes from the attorney and from the grand jury. Id. ¶¶ 63-73.
When FBI agents came to Mar-a-Lago on June 3, 2022, to collect documents with
classification markings, they noticed surveillance cameras near the storage room where the boxes
were stored and where the attorney had conducted his review. Id. ¶ 74. As part of the investigation
into the unlawful retention of the documents at Mar-a-Lago, on June 22, 2022, the Department of
Justice emailed one of Trump’s attorneys a draft grand jury subpoena for security camera footage
from outside the storage room. As described in detail in the Superseding Indictment, id. ¶¶ 74-87,
91, De Oliveira was personally involved in attempting to delete the security footage that had been
subpoenaed and that would reveal Nauta’s surreptitious movement of boxes to conceal them from
the attorney’s review.
On June 23, 2022, the day after the Department of Justice emailed the draft subpoena for
security footage, Trump spoke with De Oliveira on the phone for approximately 24 minutes. Id.
2
PDF Page 6
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 5 of 21
¶ 76. The next day, when the grand jury subpoena was served, Nauta and De Oliveira immediately
took steps to obstruct the investigation. Within two hours of receiving a text message stating that
Trump wanted to see him, Nauta changed his travel plans and arranged to fly to Mar-a-Lago, and
provided inconsistent statements about why he had done so. Id. ¶¶ 78-79. Nauta also reached out
to both De Oliveira and Trump Employee 4, who was Director of Information Technology (“IT”)
at Mar-a-Lago. Id. ¶¶ 79-80. In advance of Nauta’s sudden trip to Mar-a-Lago, De Oliveira told
another Trump employee that Nauta wanted to keep his trip secret and that he wanted De Oliveira
to find out from Trump Employee 4 how long the security footage was stored. Id. ¶ 81. On the
evening of Saturday, June 25, when Nauta arrived in Florida, he and De Oliveira went to a security
booth where security camera footage is displayed, and then went with a flashlight to the area
outside the storage room where the pertinent cameras were located. Id. ¶ 82.
On Monday morning, June 27, De Oliveira went to the IT office and asked Trump
Employee 4 to step away from the office with him so they could talk. Id. ¶¶ 83-84. The two of
them walked to a small room known as an “audio closet” and De Oliveira said that their
conversation should remain between the two of them. Id. ¶ 84(a). After asking Trump Employee
4 how long the server retained the footage, De Oliveira told Trump Employee 4 that “the boss”
wanted the server deleted. Id. ¶ 84(a-c). When Trump Employee 4 responded that he would not
have the authority to do that, De Oliveira insisted that “the boss” wanted the server deleted, and
asked “what are we going to do?” Id. ¶ 84(c).1 The Superseding Indictment goes on to describe
how De Oliveira and Nauta met in the bushes on a neighboring property shortly after De Oliveira’s
1
Trump Employee 4 falsely denied any such exchange in testimony before the grand jury,
at a time when he was represented by counsel who simultaneously represented Nauta and whose
legal fees were paid by Trump’s Political Action Committee. Trump Employee 4 told the
Government the facts set forth in the Superseding Indictment immediately after changing to new
counsel. See, e.g., ECF No. 129 at 2-5.
3
PDF Page 7
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 6 of 21
solicitation of Trump Employee 4, and that De Oliveira also spoke with Trump that afternoon. Id.
¶¶ 85-86. Finally, in August 2022, after the execution of a search warrant at Mar-a-Lago, Nauta
confirmed De Oliveira’s continuing loyalty to Trump and Trump agreed to provide De Oliveira
with an attorney. Id. ¶ 91.
Based on those facts, De Oliveira is charged in three counts. First, Count 33 charges De
Oliveira, Trump, and Nauta with a multi-object conspiracy to obstruct justice, in violation of 18
U.S.C. § 1512(k). Count 33 incorporates the detailed factual allegations described above, and then
clearly defines the conspiracy and its object offenses, closely tracking the statutory language. Id.
¶ 95. For further clarity, Count 33 goes on to enumerate the manner and means of the conspiracy.
Id. ¶ 97. One of those, ¶ 97(g), is the defendants’ attempt to delete the security camera footage
from the Mar-a-Lago Club and to conceal the footage from the grand jury.
Next, Counts 40 and 41 charge De Oliveira (along with Trump and Nauta) with two
substantive counts of obstruction of justice, in violation of 18 U.S.C. § 1512(b)(2)(B) and
§ 1512(c)(1). Those counts, too, incorporate the detailed factual allegations described above and
carefully track the statutory language to make clear precisely what crimes De Oliveira is charged
with committing and how. Id. ¶¶ 113-16. And Count 42 charges De Oliveira with providing false
statements to the FBI in a voluntary, recorded interview, in violation of 18 U.S.C. § 1001(a)(2).
II.
Discussion
A.
Applicable Law
The Federal Rules of Criminal Procedure require only that an indictment be a “plain,
concise, and definite written statement of the essential facts constituting the offense charged.” Fed.
R. Crim. P. 7(c)(1). And an indictment is facially valid if it “(1) presents the essential elements of
the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables
4
PDF Page 8
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 7 of 21
the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any
subsequent prosecution for the same offense.” United States v. Chalker, 966 F.3d 1177, 1190
(11th Cir. 2020) (quotation marks omitted); see United States v. Dabbs, 134 F.3d 1071, 1079 (11th
Cir. 1998).
Importantly, a motion to dismiss is not an appropriate vehicle for a pretrial determination
of the sufficiency of the evidence. In judging the sufficiency of an indictment, the Eleventh Circuit
has cautioned that courts should give the charging document “a common sense construction, and
its validity is to be determined by practical, not technical, considerations.” Chalker, 966 F.3d at
1190 (quotation marks omitted). It is generally enough for an indictment to track statutory
language, as long as the indictment sets forth all the elements necessary to constitute the offense
intended to be punished, United States v. Johnson, 981 F.3d 1171, 1179 (11th Cir. 2020), and
provides “a statement of the facts and circumstances as will inform the accused of the specific
offense, coming under the general description, with which he is charged,” United States v.
McGarity, 669 F.3d 1218, 1236 (2012) (quotation marks and citations omitted). An indictment
sufficiently informs the defendant of the charge against him and enables him to plead double
jeopardy in any future prosecution for the same offense “as long as the language therein sets forth
the essential elements of the crime.” United States v. Cole, 755 F.2d 748, 759 (11th Cir. 1985).
Rule 12 does not permit defendants to “challenge whether there is a sufficient evidentiary
foundation to support the grand jury’s probable cause determination.” United States v. Kaley, 677
F.3d 1316, 1326 (11th Cir. 2012), aff’d and remanded, 571 U.S. 320 (2014). Instead, in
considering a motion to dismiss, the court “is limited to reviewing the face of the indictment and,
more specifically, the language used to charge the crimes.” United States v. Sharpe, 438 F.3d
1257, 1263 (11th Cir. 2006). “Because [the defendants were] properly indicted, the government
5
PDF Page 9
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 8 of 21
is entitled to present its evidence at trial and have its sufficiency tested by a motion for acquittal
pursuant to Federal Rule of Criminal Procedure 29.” United States v. Salman, 378 F.3d 1266,
1268 (11th Cir. 2004). A Rule 29 motion is “the proper avenue for contesting the sufficiency of
the evidence in criminal cases because there is no explicit authority to grant a pre-trial judgment
as a matter of law on the merits under the Federal Rules of Criminal Procedure.” Id. “There is no
summary judgment procedure in criminal cases. . . . The sufficiency of a criminal indictment is
determined from its face. The indictment is sufficient if it charges in the language of the statute.”
United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992); United States v. Gosney, No. 22- CR80022, ECF No. 493 (S.D. Fla. Jan. 28, 2023) (“Rather, assuming a facially valid indictment, the
proper vehicle for raising an issue relevant to the guilt or innocence of a defendant is through a
motion for judgment of acquittal or argument to the jury—not via a pretrial motion to dismiss.”
(quoting Salman, 378 F.3d at 1268)).
B.
Counts 33, 40 and 41 Are Properly Charged
Under the well-established standards of the Eleventh Circuit, the Superseding Indictment
is more than sufficient. It not only tracks the statutory language fully, but provides a detailed
recitation of the factual allegations, including dates, times, locations, texts, and actions, and
provides an unambiguous statement of what De Oliveira and his codefendants did to obstruct the
investigation. The Court need not look further to deny De Oliveira’s motion.
Confronted with clear Eleventh Circuit precedent and the thorough and detailed allegations
in the Superseding Indictment, De Oliveira attempts a sleight of hand, suggesting to the Court that
the charges are somehow insufficient simply because De Oliveira is not alleged to have been
responsible for all aspects of the manner and means of the charged conspiracy, see ECF No. 323
at 7-8, and hypothesizes factual possibilities regarding what that the grand jury did not charge, see
6
PDF Page 10
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 9 of 21
id. But it is black-letter law that a conspirator need not participate in all aspects of a conspiracy,
see United States v. Browne, 505 F.3d 1229, 1274 (11th Cir. 2007), and his complaints about what
the Superseding Indictment does not allege are irrelevant in the face of what it does allege, in plain
English and painstaking detail. Those allegations are more than sufficient at this stage of the
proceedings.
Faced with the detailed allegations in the Superseding Indictment, De Oliveira attempts to
circumvent the limitations under Eleventh Circuit law and argue the weight of the evidence,
claiming that his alleged actions related to the deletion of the security camera footage “fail[] to
support” the charges in Counts 40 and 41, and “by extrapolation” the conspiracy charged in Count
33. ECF No. 323 at 9. But arguing that an allegation in the indictment “fails to support” the
charged offenses gives up the game: whether or not factual allegations adequately “support” the
charges returned by a grand jury is precisely the kind of jury question that is not appropriate for a
Rule 12 motion to dismiss. See Sharpe, 438 F.3d at 1263 (explaining that it is “well-settled that a
court may not dismiss an indictment . . . on a determination of facts that should have been
developed at trial”); Salman, 378 F.3d at 1267 (11th Cir. 2004) (reversing dismissal of indictment
where the “district court in effect granted summary judgment” by “looking beyond the face of the
indictment and ruling on the merits of the charges”).
De Oliveira also errs by implying that the Superseding Indictment somehow fails to allege
a connection between De Oliveira’s actions and the “official proceeding” that the defendants
sought to obstruct. It plainly does. See ECF No. 85, Counts 40 and 41. And he misunderstands
the elements of the crimes when he suggests that the Superseding Indictment fails to allege “that
Mr. De Oliveira knew that a subpoena had issued,” or “that the data in question was responsive to
the subpoena,” or that the data “needed to be preserved and provided to the Government.” ECF
7
PDF Page 11
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 10 of 21
No. 323 at 9-10. The elements of the relevant charges require no such allegations or proof—rather,
they require only that the defendant acted corruptly and with intent to cause another person to alter,
destroy, mutilate, or conceal an object with the intent to impair the object’s integrity or availability
for use in an official proceeding (for Count 40, charging a violation of 18 U.S.C. § 1512(b)(2)(B)),
and act with intent to impair the relevant object’s integrity or availability in an official proceeding
(for Count 41, charging a violation of 18 U.S.C. § 1512(c)(1)). See Sand et al., 2 Modern Federal
Jury Instructions – Criminal, ¶¶ 46.09, Inst. 46-59, and 46.10, Inst. 46-66. De Oliveira points to
no authority, and the Government is not aware of any, requiring an indictment to allege a
defendant’s awareness of the details contained in a subpoena; that a defendant have specialized
knowledge about the contours of what might be considered responsive to a subpoena; or that a
defendant who tells an IT director that “the boss” wants footage deleted must be aware of the
extent of anyone’s preservation obligations. The law contains no such requirements, and for good
reason: imposing such detailed knowledge requirements would preclude the application of the laws
regarding obstruction of justice to most subjects of criminal investigations. The Superseding
Indictment charges that De Oliveira endeavored to secure the deletion of footage “to prevent it
from being provided to a grand jury,” ECF No. 85 ¶¶ 114-15, and that readily satisfies the
requirements at this stage of the proceedings.
De Oliveira may think that the evidence will not persuade a petit jury. De Oliveira may
think that the fact that he supposedly did not know all of the details about the draft subpoena will
undercut the Government’s proof. See ECF No. 323 at 9 (arguing that De Oliveira did not have
an “understanding that a Justice Department attorney emailed a draft subpoena for Mar-a-Lago
video footage” on June 22, 2022). But those are issues for trial, subject to the rules of evidence;
here, at the motion to dismiss stage, “a defendant cannot challenge whether there is a sufficient
8
PDF Page 12
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 11 of 21
evidentiary foundation to support the grand jury’s probable cause determination.” Kaley, 677 F.3d
at 1326.2
***
In sum, with respect to Count 33, the Section 1512(k) conspiracy, the Superseding
Indictment tracks the statutory language, identifies the substantive offenses that were the objects
of the conspiracy (Sections 1512(b)(2)(A), (b)(2)(B), and (c)(1)), identifies the co-conspirators by
name, provides a range of dates during which the conspiracy took place, alleges where the
conspiracy occurred, and details the purpose as well as the manner and means that the conspirators
used to accomplish their objectives. That is more than sufficient. See United States v. Yonn, 702
F.2d 1341, 1349 (11th Cir. 1983) (finding a conspiracy indictment sufficient where it set forth the
elements of the crime, the identities of the co-conspirators, and the timeframe and locale of the
conspiracy); see also United States v. Cadillac Overhaul Supply Co., 568 F.2d 1078, 1082 (5th
Cir. 1978) (“[O]rdinarily, the pleading of the allegations in terms of the statute is sufficient[.]”)
Because Count 33 not only tracks the language of the statute, see Chalker, 966 F.3d at 1190, but
also “provides a statement of facts and circumstances that give notice of the offense” to De
Oliveira, it survives his Rule 12 challenge. United States v. Walker, 490 F.3d 1282, 1296 (11th
Cir. 2007).
2
De Oliveira oddly asserts that the Superseding Indictment “fails” to specify any overt acts
by De Oliveira in furtherance of the Section 1512(k) conspiracy, ECF No. 323 at 8-9, but that
argument is misguided for two reasons. First, in contrast to 18 U.S.C. § 371, which expressly
requires an overt act, Section 1512(k) contains no overt act requirement. See, e.g., Whitfield v.
United States, 543 U.S. 209, 213-214 (2005); United States v. Shabani, 513 U.S. 10, 14 (1994);
United States v. Edlind, 887 F.3d 166, 176 n.4 (4th Cir. 2018) (Section 1512(k) “does not contain
an overt act requirement”); United States v. Nelms, 653 F. App’x 524, 527 (9th Cir. 2016) (“Section
1512(k) does not require an overt act.”). Second, as set forth in detail above, even if there were an
overt act requirement, the Superseding Indictment is replete with allegations regarding specific
acts that De Oliveira took in furtherance of the conspiracy.
9
PDF Page 13
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 12 of 21
Similarly, Counts 40 and 41 track the language of Sections 1512(b)(2)(B) and (c)(1),
respectively, and specifically allege that De Oliveira requested that another Trump employee
delete security camera footage at Mar-a-Lago in order to prevent the footage from being provided
to a federal grand jury.3 See ECF No. 85 ¶¶ 114, 116. Those counts also incorporated the general
allegations of the Superseding Indictment, including those pertaining to De Oliveira’s conduct.
See id. ¶¶ 113, 115. As with Count 33, these counts therefore survive De Oliveira’s Rule 12
challenge: Counts 40 and 41 both track the language of the statute upon which the charge was
based and contain a statement of facts and circumstances that is more than sufficient to inform De
Oliveira of the charged offenses. See Chalker, 966 F.3d at 1190; Walker, 490 F.3d at 1296.
As a final point, De Oliveira claims confusion as to which “official proceeding” he is
alleged to have obstructed, noting that the grand jury subpoenas referenced in the Superseding
Indictment were issued by a grand jury in the District of Columbia, but that De Oliveira was
indicted by a grand jury empaneled in the Southern District of Florida. ECF No. 323 at 10. His
purported confusion is baseless. First, Section 1512 does not require that a defendant be aware of
the precise “official proceeding” at issue. See United States v. Friske, 640 F.3d 1288, 1292 n.5
(11th Cir. 2011) (“We emphasize that it is not necessary to prove that the defendant knew that a
proceeding was pending . . . . Consistent with Aguilar’s nexus requirement [United States v.
Aguilar, 515 U.S. 593 (1995)], the government must prove that the defendant knew of or foresaw
an official proceeding, and knew that his actions were likely to affect it.”) (emphasis added).
Second, as De Oliveira is well aware from the extensive discovery provided in this case, the only
grand jury investigation referenced in the Superseding Indictment, ECF No. 85 ¶ 52, was opened
3
Both Counts 40 and 41 also identify the federal aiding and abetting statute, 18 U.S.C. § 2,
providing an alternative theory of liability. See Rosemond v. United States, 572 U.S. 65, 68 (2014).
10
PDF Page 14
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 13 of 21
in the District of Columbia, so there can be no confusion on his part. Thus, his purported concern
over whether he can “rely on any judgment as a double jeopardy bar,” ECF No. 323 at 10, is
entirely illusory. See United States v. Poirier, 321 F.3d 1024, 1029 (11th Cir. 2003), opinion
corrected, No. 01-15989, 2003 WL 21211926 (11th Cir. Apr. 1, 2003) (in assessing sufficiency of
indictment, courts are to employ a “common sense construction” and indictment can be valid even
if it might have been drafted “with more clarity”) (internal citation and quotation marks omitted).
One of De Oliveira’s few case citations is to United States v. McGarity, but that case is
entirely distinguishable. The Section 1512(c) count in McGarity only parroted the statutory
language, with no factual detail. 669 F.3d at 1238-39; see also United States v. Berger, McGarity,
et al., No. 3:08-cr-00022, ECF No. 78 at 29-30 (N.D. Fla. Mar. 13, 2008) (Superseding
Indictment). Quite distinct from McGarity, which, as De Oliveira quotes, only provided notice
that defendants obstructed an “unknown official proceeding,” “at some time,” “in some place,”
“by some action,” ECF No. 323 at 10, De Oliveira has been informed of the official proceeding
he is alleged to have obstructed (including the dates of the relevant subpoenas), informed of the
specific dates of both the conspiracy and his own alleged actions, informed of the specific locations
at which his actions are alleged to have occurred, and informed of the particular manner and means
of the conspiracy that the grand jury alleged was sufficient for a finding of probable cause. The
Superseding Indictment here is a far cry from the indictment referenced by the court in McGarity.
There is no basis to dismiss any of Counts 33, 40, or 41.
C.
Count 42 Is Properly Charged
De Oliveira separately asks the Court to dismiss Count 42, which alleges false statements
in violation of 18 U.S.C. § 1001(a)(2). In De Oliveira’s view, Count 42 “apparently” shows, “in
a rambling and disconnected colloquy,” that De Oliveira denied knowing where “items” were
11
PDF Page 15
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 14 of 21
stored at Mar-a-Lago. ECF No. 323 at 11. De Oliveira’s interpretation is a slanted and distorted
take on a recorded conversation that, as set forth in Count 42, is actually quite clear. As the
Superseding Indictment explains, De Oliveira gave the following unambiguous answers to
straightforward questions in his interview with the FBI:
Question:
When -- after the end of the presidency, boxes
arrived to Mar-a-Lago. Were you part of any
group to help --
Answer:
No.
Question:
-- unload and move them?
Answer:
No.
*
*
*
Question:
Do you -- were you -- do you even know, like, or
were you even there or aware that boxes were --
Answer:
No.
Question:
-- like, all this stuff was being moved in?
Answer:
Never saw anything.
Question:
Okay.
Answer:
Yeah. And then --
Question:
Even his personal stuff, like, his clothes --
Answer:
Never.
Question:
-- and furniture, nothing?
Answer:
Never saw nothing.
Question:
Okay. So you don’t know where items would have
been stored, as soon as he moved back to Mar-aLago?
Answer:
No.
12
PDF Page 16
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 15 of 21
ECF No. 85 ¶ 119.
This voluntary exchange with De Oliveira, which was recorded, leaves no doubt that he
conveyed to the FBI that he (1) was not involved in the effort to unload and move any boxes into
Mar-a-Lago at the end of the presidency, (2) had not been aware of anything being moved into
Mar-a-Lago at the end of the presidency, (3) that he “never saw anything” being moved into Mara-Lago, not even furniture or clothes, and (4) that he did not know where items would have been
stored upon former President Trump’s return to Mar-a-Lago in January 2021. De Oliveira’s goal,
which is evident from his flat denials, was to distance himself as much as possible from the boxes
that were at the center of the FBI’s investigation, and he concedes this goal in his motion: “Mr.
De Oliveira’s point—obviously—was that he had no real involvement in that move and had no
idea what went where once it arrived at Mar-a-Lago . . . .” ECF No. 323 at 12. The Government
agrees that this was precisely De Oliveira’s point; it was also false.
Given the clarity of the questions and his answers, De Oliveira tries to suggest that he may
have been confused, emphasizing that the conversation occurred two years after the move into
Mar-a-Lago, implying that his “memory” may have been faulty or could have benefitted from
being refreshed, id. at 11, and that De Oliveira might not have “understood in that moment” the
questions being asked, id. at 12. These are at best arguments for a jury, not arguments to dismiss
the indictment. Moreover, as the transcript and the charges make clear, the questions were
unambiguous and De Oliveira did not suggest in any way that he didn’t remember or that he was
confused about what the agents were asking. Instead, he answered the questions crisply and
clearly: “no,” “no,” “no,” “never saw anything,” “never,” “never saw nothing,” “no.” Again, his
intent was obvious and his answers were false.
13
PDF Page 17
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 16 of 21
Contrary to De Oliveira’s insistence, his false answers were also highly material to the
Government’s investigation. A false statement is “material if it has a natural tendency to influence,
or [is] capable of influencing, the decision of the decisionmaking body to which it is addressed.”
United States v. Henderson, 893 F.3d 1338, 1346 (11th Cir. 2018) (quotation marks omitted). A
governmental body need not have “actually relied on the false statement,” and a false statement
can be material “even if the decision maker actually knew or should have known that the statement
was false.” Id. at 1346, 1351 (quotation marks omitted). Ultimately, the “materiality of a false
statement,” once alleged in a charging document, “is a jury question.” United States v. Fern, 155
F.3d 1318, 1326-27 (11th Cir. 1998) (citing United States v. Gaudin, 515 U.S. 506 (1995)).
At trial, the Government will prove beyond a reasonable doubt that De Oliveira’s
statements were false, including through witness testimony about the movement of boxes on
January 20, 2021; witness testimony about De Oliveira’s involvement in moving boxes on January
20, 2021; photographs of De Oliveira on January 20, 2021; and other evidence. And the
Government will prove that they were material, because truthful answers would have helped the
FBI establish precisely what it was trying to find out: whether boxes that contained classified
documents came from the White House, whether and for how long they were stored in the
residential quarters and basement storage room at Mar-a-Lago, and whether the boxes moved to
Mar-a-Lago at the end of the presidency were identical or similar to those loaded on Trump’s plane
to New Jersey on June 3, 2022. But at this stage, the Government is not required to detail its proof,
and a motion to dismiss may not be used to challenge the evidentiary sufficiency of the grand
jury’s probable cause determination. See Kaley, 677 F.3d at 1326. Count 42 tracks the language
of the statute and provides a detailed recitation of the statements alleged to have been false. That
is sufficient. See Johnson, 981 F.3d at 1179; McGarity, 669 F.3d at 1236; see also United States
14
PDF Page 18
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 17 of 21
v. Bazantes, 978 F.3d 1227, 1246 (11th Cir. 2020) (holding that indictment sufficiently pleaded
false statement charge where it tracked the language of statute and alleged facts summarizing
defendants’ alleged false submissions).
The Eleventh Circuit has held that an indictment for false statements under Section 1001
is facially valid even where it does nothing more than charge that a defendant “knowingly made a
false, fictitious and fraudulent statement . . . in violation of Title 18 U.S.C. § 1001.” United States
v. Stefan, 784 F.2d 1093, 1101-02 (11th Cir. 1986). Count 42 clears that bar and then some. De
Oliveira has offered no basis to dismiss it.
D.
There Is No Basis to Require a Bill of Particulars
As an alternative to dismissal, De Oliveira asks the Court to order the Government to
provide a bill of particulars. ECF No. 323 at 14-17. Citing no caselaw regarding bills of
particulars, De Oliveira provides 16 specific questions that he contends the Government should
have to answer. No bill of particulars is warranted here, and even if it were, the specific questions
identified by De Oliveira go far beyond what a defendant is entitled to.
As the Eleventh Circuit has explained, the “purpose of a bill of particulars is threefold: ‘to
inform the defendant of the charge against him with sufficient precision to allow him to prepare
his defense, to minimize surprise at trial, and to enable him to plead double jeopardy in the event
of a later prosecution for the same offense.’” Maurya, 25 F.4th at 837-38 (quoting United States
v. Warren, 772 F.2d 827, 837 (11th Cir. 1985)). But a bill of particulars “cannot be used as a
weapon to force the government into divulging its prosecution strategy; we do not allow
defendants to ‘compel the government to detailed exposition of its evidence or to explain the legal
theories upon which it intends to rely at trial’ in that manner.” Id. (quoting Burgin, 621 F.2d at
1359).
15
PDF Page 19
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 18 of 21
Those improper purposes are precisely what De Oliveira’s specific questions seek here.
First, as to the conspiracy charged in Count 33, De Oliveira seeks various information related to
the Government’s theory of the formation of the conspiracy. See ECF No. 323 at 15, subparts a.c. But the Eleventh Circuit has “explicitly forbidden” the use of a bill of particulars to “‘compel
the government to provide the essential facts regarding the existence and formation of a
conspiracy.’” Maurya, 25 F.4th at 837-38 (quoting United States v. Rosenthal, 793 F.2d 1214,
1227 (11th Cir. 1986), modified, 801 F.2d 378 (11th Cir. 1986)). De Oliveira also poses various
questions about the Government’s view of the facts, such as “whether the Government alleges that
Mr. De Oliveira has ever seen a classified document,” and “whether the Government alleges that
Mr. De Oliveira was aware of the subpoena issued on May 11, 2022.” ECF No. 323 at 15. De
Oliveira even asks the Government to account for his own knowledge of various concepts, such as
“whether Mr. De Oliveira understood . . . what a video data server was” or “understood what a
subpoena was.” Id. at 16. The grand jury is not required to set forth any such things in an
indictment, and these factual questions are, at most, matters for trial. See United States v. Roberts,
174 Fed. App’x 475, 477 (11th Cir. 2006) (explaining that a bill of particulars “is not designed to
compel the government to detailed exposition of its evidence or to explain the legal theories upon
which it intends to rely at trial”) (citing Burgin, 621 F.2d at 1359).
De Oliveira’s proposed questions related to the false statement charge in Count 42 fare no
better. De Oliveira wants the Government to specify “what was false” about his statements, as
well as how they were material to the Government’s investigation. See ECF No. 323 at 16-17.
But a defendant is not entitled to any such bill of particulars where the indictment itself identifies
with particularity the specific statements alleged to be false.
See, e.g., United States v.
Ramamurthy, No. 18-cr-20710, 2019 WL 633328, at *4 (S.D. Fla. Feb. 13, 2019) (“Where the
16
PDF Page 20
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 19 of 21
bulk of the government’s evidence consists of testimony regarding conversations the defendant
personally participated in, the defendant cannot argue surprise. Therefore, a bill of particulars is
not warranted.”); see also Cole, 755 F.2d at 760-61 (denying motion for bill of particulars where
indictment tracked the language of the statute, provided adequate notice of charges, and bulk of
government’s evidence involved testimony by witnesses about conversations in which the
defendant participated). Likewise, a bill of particulars may not be used to force the Government
to specify the ways in which it contends particular statements are false. See Ramamurthy, 2019
WL 63328 at *3 (rejecting “argument that the government must specify the way in which it
believes the false statements to be false”) (citing United States v. Barnhart, 889 F.2d 1374 (5th
Cir. 1989) and United States v. Oberski, 734 F.2d 1035, 1035 n.1 (5th Cir. 1984)).
As with the defendant in Maurya, De Oliveira “simply want[s] the government to explain
ahead of time which . . . details would be most significant at trial; essentially, he ask[s] about the
government’s specific legal ‘theory.’” 25 F.4th at 838. This Court should conclude as the Eleventh
Circuit did: such a request is “inappropriate” and must be rejected. Id. De Oliveira has the benefit
of a detailed indictment and substantial discovery. He has been sufficiently informed of the
charges against him so as not to be unfairly surprised at trial, and the Superseding Indictment
contains sufficient detail to enable him to plead double jeopardy in any later prosecution for the
same offense. See Warren, 772 F.2d at 837. He is not entitled to more.
III.
Conclusion
For the foregoing reasons, De Oliveira’s motion should be denied in its entirety.
17
PDF Page 21
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 20 of 21
Respectfully submitted,
JACK SMITH
Special Counsel
N.Y. Bar No. 2678084
By:
/s/ Jay I. Bratt
Jay I. Bratt
Counselor to the Special Counsel
Special Bar ID #A5502946
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
David V. Harbach, II
Assistant Special Counsel
Special Bar ID #A5503068
Brett C. Reynolds
Assistant Special Counsel
Special Bar ID #A5503067
18
PDF Page 22
Case 9:23-cr-80101-AMC Document 372 Entered on FLSD Docket 03/07/2024 Page 21 of 21
CERTIFICATE OF SERVICE
I hereby certify that on March 7, 2024, I electronically filed the foregoing document with
the Clerk of the Court using CM/ECF, which in turn serves counsel of record via transmission of
Notices of Electronic Filing.
/s/ Jay I. Bratt
Jay I. Bratt
19
Back to 
