United States v. Cox, 67-CR-183.
Decision Date | 12 June 1968 |
Docket Number | No. 67-CR-183.,67-CR-183. |
Citation | 285 F. Supp. 367 |
Parties | UNITED STATES of America, Plaintiff, v. Charles Layton COX, Defendant. |
Court | U.S. District Court — Eastern District of Wisconsin |
James B. Brennan, U. S. Atty., by Thomas E. Weil, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff.
Michael A. Clarke, Milwaukee, Wis., for defendant.
The defendant, Charles Layton Cox, was found guilty of bank robbery by a jury on March 29, 1968. On April 25, 1968, this court heard arguments on defense motions for judgment of acquittal, new trial, and arrest of judgment. The motions for judgment of acquittal and new trial were denied, and further briefs were ordered on the motion for arrest of judgment. The basis for the motion to arrest judgment is that the indictment was fatally defective in that it failed to allege that the bank was federally chartered or insured. It is argued that without language in the indictment alleging that the bank was insured by the Federal Deposit Insurance Corporation, the indictment fails to charge a federal offense and that, therefore, this court was without jurisdiction of the case. No language appeared in the indictment of Mr. Cox alleging that the Silver Lake State Bank was insured by the Federal Deposit Insurance Corporation.
The indictment reads as follows:
Rule 7(c) of the Federal Rules of Criminal Procedure provides:
It is clear to this court that the defendant was aware of the charges against him at all material times and was not therefore prejudiced in his defense of the case by the failure to include the allegation of federally insured funds.1 It is equally clear that the only issue before the court now is whether the indictment as returned by the grand jury charged a federal offense. If no federal offense was charged because one of the elements of a crime was omitted, this court would have been given no jurisdiction over the case. Collins v. Markley, 346 F.2d 230 (7th Cir. 1946), cert. denied 382 U.S. 946, 86 S.Ct. 408, 15 L.Ed.2d 355; Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). An indictment which fails to allege an essential element of the offense is fatal and cannot be cured by an allegation that the acts charged were done "in violation of" the statute. United States v. Guterma, 189 F.Supp. 265 (S.D.N.Y.1960).
The rule referred to in the case of Hewitt v. United States, 110 F.2d 1 (8th Cir. 1940), is in the opinion of this court dispositive of this case.2 The Eighth Circuit Court of Appeals in the Hewitt case said at page 5:
* * *"
It is clear from a reading of the indictment that absolutely no factual federal connection was alleged. Compare United States v. Harper, 241 F.2d 103 (7th Cir. 1957), and the cases collected at Annot. 59 A.L.R.2d 946.
This court takes judicial notice that not all banks are insured by a federal agency. On April 18, 1968, there were 392 banks in the United States that were not insured by the Federal Deposit Insurance Corporation. This fact makes it even clearer that bank robbery indictments must allege the necessary federal connection.
For the foregoing reasons,
It is ordered that defendant's motion in arrest of judgment must be and the same hereby is granted.
It is further ordered that the defective indictment in this case must be and it hereby is dismissed.
1 The...
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