45 F.3d 238 (8th Cir. 1995), 93-3650, United States v. Nabors

Docket Nº:93-3650.
Citation:45 F.3d 238
Party Name:UNITED STATES of America, Appellant, v. Charles Bruce NABORS and Craig Scott Keltner, Appellees.
Case Date:January 06, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 238

45 F.3d 238 (8th Cir. 1995)

UNITED STATES of America, Appellant,

v.

Charles Bruce NABORS and Craig Scott Keltner, Appellees.

No. 93-3650.

United States Court of Appeals, Eighth Circuit

January 6, 1995

Submitted Oct. 10, 1994.

Rehearing and Suggestion for Rehearings

En Banc Denied March 29, 1995.[*]

Page 239

Michael D. Johnson, Little Rock, AR, argued (Paula J. Casey and Michael D. Johnson on the brief), for appellant.

Edward Witt Chandler, Mountain Home, AR, argued (Harold W. Madden, on the brief), for appellee Charles Nabors.

Michael C. Angel, Little Rock, AR, argued (William C. McArthur, on the brief), for appellee Craig Keltner.

Before HANSEN, Circuit Judge, HEANEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

By a second superseding indictment filed in federal district court in April, 1993, the government charged that between late 1990 and mid-1992, Charles Nabors and Craig Keltner were members of a racketeering enterprise. That charge was one of 11 counts in the indictment. Both defendants moved to dismiss that count, contending that it was insufficient as a matter of law. The district court granted the motion. The government appeals. We reverse the order of the district court.

I.

Under the federal rules, an indictment "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." See Fed.R.Crim.P. 7(c)(1). "[A]n indictment is [constitutionally] sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.... It is generally sufficient that an indictment set forth the offense in the words of the statute itself,

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as long as 'those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.' " Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974), quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882). "Indictments are normally sufficient unless no reasonable construction can be said to charge the offense." United States v. Peterson, 867 F.2d 1110, 1114 (8th Cir.1989).

The challenged count of the indictment alleges that the defendants are guilty of violating the statute that makes it unlawful for "any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." See 18 U.S.C. Sec. 1962(c). The exact language of the racketeering count charges that the defendants "and others constituted an enterprise as defined in [the statute], that is: a group of individuals associated in fact for the purpose of obtaining monetary benefits for its members"; that the defendants were "employed by and associated with the enterprise"; that the enterprise "was engaged in, and [its] activities ... affected, interstate and foreign commerce"; and that the defendants "knowingly, and willfully did conduct and participate, directly and indirectly, in the conduct of the affairs of the enterprise through a pattern of racketeering activity," namely, various specified acts of armed robbery, kidnapping, interstate transportation of stolen property, attempted bank robbery, and mail and wire fraud.

Even though the language of the racketeering count tracks the statute almost exactly, the defendants contended that the indictment was insufficient by virtue of its failure to allege "a single continuous RICO 'enterprise' with an existence of its own." The district court agreed, holding that the racketeering count fails to identify "a RICO enterprise distinct from the culpable persons, the...

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