U.S. v. Cecil

Decision Date27 November 1979
Docket Number78-3150 and 78-3154,Nos. 78-2797,s. 78-2797
Citation608 F.2d 1294
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Dan Felix CECIL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lynn Richard JOHNSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Randy Darrell THOMAS, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

David S. Hoffman, Hoffman, Anderson & Brown, Tucson, Ariz., William J. Friedl, Bendalin, Galasky & Friedl, Phoenix, Ariz., for defendants-appellants.

Rhonda L. Repp, Asst. U. S. Atty., Tucson, Ariz., argued, for plaintiff-appellee; Jon R. Cooper, Asst. U. S. Atty., Tucson, Ariz., on brief.

Appeal from the United States District Court for the District of Arizona.

Before HUFSTEDLER and CHOY, Circuit Judges, and WOLLENBERG *, District Judge.

PER CURIAM:

Appellants Cecil, Johnson, and Thomas challenge the validity of their criminal convictions. They allege that the insufficiency of the underlying Grand Jury indictment and other problems at their trial not pertinent to this decision require the reversal of their conviction. We reverse due to the insufficiency of the indictment.

On May 23, 1978, the Grand Jury charged defendants and others with conspiring to commit offenses in violation of certain federal statutes relating to the importation and distribution of marihuana. The indictment reads as follows:

COUNT I

That beginning on or before July, 1975, and continuing thereafter until on or after October, 1975, within the District of Arizona and elsewhere, LEONARD SILAS JOHNSON, FELIX DAN CECIL, DONALD LEE SCHAFFER, IVA LEE THUNDERCLOUD, LYNN RICHARD JOHNSON, RANDY DARRELL THOMAS, WARREN ARTHUR HAGGARD, KENNY ROBERT JAMES, SILAS BLAINE JOHNSON, TONY JOHNSON, and LIONEL JOHNSON, named herein as defendants and co-conspirators, did knowingly and intentionally conspire and agree together and with each other and with various other persons both known and unknown to the Grand Jury, to commit offenses in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1).

It was the object of said conspiracy that large quantities of marihuana, a Schedule I controlled substance, would be imported into the United States of America from Mexico by one or more of the co-conspirators in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1).

All in violation of Title 21, United States Code, Section 963.

COUNT II

That beginning on or before July, 1975, and continuing thereafter until on or after October, 1975, in the District of Arizona and elsewhere, LEONARD SILAS JOHNSON, FELIX DAN CECIL, DONALD LEE SCHAFFER, IVA LEE THUNDERCLOUD, LYNN RICHARD JOHNSON, RANDY DARRELL THOMAS, WARREN ARTHUR HAGGARD, KENNY ROBERT JAMES, SILAS BLAINE JOHNSON, TONY JOHNSON and LIONEL JOHNSON, named herein as defendants, did knowingly and intentionally conspire and agree together and with each other and with various other persons both known and unknown to the Grand Jury to commit offenses in violation of Title 21, United States Code, Section 841(a)(1).

It was the object of said conspiracy that one or more of the co-conspirators would possess with intent to distribute and would distribute quantities of marihuana, a Schedule I controlled substance, in violation of Title 21, United States Code, Section 841(a)(1).

All in violation of Title, 21, United States Code, Section 846.

A jury found appellant Cecil guilty on both Counts and appellants Johnson and Thomas guilty on only Count II.

The appellants all raised timely challenges to the indictment proffering motions to dismiss based upon the indictment's insufficient factual precision. The trial judge recognized the validity of these claims, commenting that, "this sort of indictment goes far beyond the leeway afforded by the Ninth Circuit." Reporter's Transcript, November 6, 1978, at 23 (hereinafter "R.T."). However, initially indicating that the requested bill of particulars would remedy the indictment's defects (R.T. at 23) and later deciding that the Government's "open file" discovery did remedy these problems (Record at 352), the court denied appellants' motion to dismiss.

We begin our analysis stating the established rule that a bill of particulars cannot save an invalid indictment. Russell v. United States,369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Keith,605 F.2d 462, 464 (9th Cir. 1979); United States v. Nance, 174 U.S.App.D.C. 472, 474, 533 F.2d 699, 701 (D.C. Cir. 1976). The very purpose of the requirement that a man be indicted by a grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. Russell v. United States, 369 U.S. at 771, 82 S.Ct. 1038 (citing Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960)). If a bill of particulars were allowed to save an insufficient indictment, the role of the grand jury as intervenor would be circumvented. Rather than the assurance that a body of fellow citizens had assessed the facts and determined that an individual should face prosecution, the prosecutor would be in a position to second guess what actually happened within the grand jury and fill in the gaps with what he assumed transpired. The protection of a significant check on the power of the courts and prosecutors would thus be lost. For similar reasons, 'open file' discovery cannot cure an invalid indictment. Thus, the trial judge's stated reasons for denying the motion to dismiss were in error, and we must now determine the validity of this indictment.

This inquiry must focus upon whether the indictment provides "the substantial safeguards" to criminal defendants that indictments are designed to guarantee. Russell v. United States, 369 U.S. at 763, 82 S.Ct. 1038. Pursuant to this purpose, an indictment must furnish the defendant with a sufficient description of the charges against him to enable him to prepare his defense, to ensure that the defendant is prosecuted on the basis of facts presented to the grand jury, to enable him to plead jeopardy against a later prosecution, and to inform the court of the facts alleged so that it can determine the sufficiency of the charge. Russell v. United States, 369 U.S. at 763, 768 n. 15, 771, 82 S.Ct. 1038; United States v. Keith, 605 F.2d at 464; United States v. Pheaster, 544 F.2d 353, 360 (9th Cir. 1976), Cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977). To perform these functions, the indictment must set forth the...

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