U.S.A. v. Crowley and Valjato, Docket No. 00-1149

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: JOSE A. CABRANES
• Citation: U.S.A. v. Crowley and Valjato, 236 F.3d 104 (2nd Cir. 2000)
• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-1149
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellant, v. FRANCIS CROWLEY and STEVEN VALJATO, Defendants-Appellees

Page 104

236 F.3d 104 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellant, v. FRANCIS CROWLEY and STEVEN VALJATO, Defendants-Appellees.

Docket No. 00-1149

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: September 14, 2000

Decided: December 26, 2000

Appeal from a judgment of the United States District Court for the Eastern District of New York (Joanna Seybert, Judge) granting defendants' motion for a new trial on the ground that the charging indictment was insufficiently specific, and, in the alternative, on the ground that a requested charge relating to voluntary intoxication should have been read to the jury. We hold (1) that defendants waived any objection to the indictment's lack of specificity by failing to raise this objection before trial as required by FED. R. CRIM. P. 12(b)(2), and (2) that the requested charge should have been given because it had a foundation in the evidence presented at trial.

Accordingly, we reverse the judgment of the District Court insofar as it rested on the ground that the indictment was insufficiently specific, and affirm the judgment insofar as it rested on the ground that the requested jury charge should have been given. [Copyrighted Material Omitted] DEBRA D. NEWMAN, Assistant United States Attorney for the Eastern District of New York (Loretta E. Lynch, United States Attorney, David C. James and Cynthia Monaco, Assistant United States Attorneys, of counsel), for Appellant.

EDWARD M. SHAW, New York, NY, for Defendant-Appellee Francis Crowley.

THOMAS F. LIOTTI, Garden City, NY (Floyd T. Ewing, III, of counsel), for Defendant-Appellee Steven Valjato.

Before: WALKER, CABRANES and PARKER, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

We review a judgment of the United States District Court for the Eastern District of New York (Joanna Seybert, Judge) granting defendants' motion for a new trial on the ground that the charging indictment was insufficiently particular and, in the alternative, on the ground that a requested voluntary intoxication jury charge should have been read to the jury. We consider the questions of whether a defendant raises a pretrial objection to the specificity of an indictment, as required by Federal Rule of Criminal Procedure 12(b)(2),¹ by asserting in general terms that the indictment is vague or insufficiently specific; and whether a requested jury charge relating to voluntary intoxication should be read to the jury when evidence is presented at trial that suggests that a defendant was too intoxicated to form the specific intent required to commit the crimes with which he was charged. We hold that to raise a pretrial objection to the specificity of an indictment within the meaning of Rule 12(b)(2), a defendant must apprise the District Court of those particular portions of the indictment that are lacking in the requisite specificity, and explain why, in the circumstances, greater specificity is required. In addition, we hold that a requested voluntary intoxication charge should be read to the jury when there is some foundation in the evidence presented at trial for the conclusion that a defendant was too intoxicated to form the specific intent required to commit the charged crime.

Accordingly, we reverse the judgment of the District Court insofar as it rested on the ground that the indictment was insufficiently specific, and affirm the judgment insofar as it rested on the ground that the requested jury charge should have been given.

I.

We set forth below, in the light most favorable to the government, the evidence presented in support of the charges against defendants-appellees Francis Crowley and Steven Valjato.

During the night of September 27, 1997, Crowley, a midshipman at the United States Merchant Marine Academy in Kings Point, New York, entered the room of a fellow midshipman, Stephanie Vincent. Over Vincent's persistent protests, Crowley held her down; fondled her breasts; and touched her vagina, unsuccessfully attempting to place his finger inside of it. Crowley subsequently called for another midshipman, Valjato, to enter Vincent's room. Both Crowley and Valjato then repeatedly asked Vincent to permit them to perform oral sex on her. See United States v. Crowley, 79 F. Supp. 2d 138, 145-46 (E.D.N.Y. 1999) (describing Crowley and Valjato as "beg[ging]" Vincent and "hound[ing]" her). She refused, and the men left her room.

By an indictment returned on January 21, 1999 ("the indictment"), a grand jury in the Eastern District of New York charged Crowley and Valjato with, inter alia, attempted aggravated sexual abuse in violation of 18 U.S.C. §2241(a)(1) (Count One), and attempted sexual abuse in violation of 18 U.S.C. §2242(1) (Count Two).² Valjato then filed a motion to, inter alia, "dismiss the indictment as vague."³ The District Court denied the motion on June 10, 1999 in an oral ruling from the bench.

A jury trial began on July 7, 1999 before Judge Seybert, and two days later Crowley and Valjato requested a voluntary intoxication jury charge ("the charge" or "the requested charge")-that is, a charge that "if you [the jury] find that the defendant was intoxicated, you may conclude that the defendant did not have the required intent." Crowley, 79 F. Supp. 2d at 163 (internal quotation marks omitted). The District Court declined to give the charge, and on July 15, 1999 the jury convicted both Crowley and Valjato on Counts One and Two of the indictment.

Defendants then moved for a judgment of acquittal or, in the alternative, for a new trial ("the motion"). The District Court granted the motion for a new trial, and dismissed the indictment on the ground that it violated the Grand Jury Clause of the Fifth Amendment of the United States Constitution⁴ because it failed to specify which of the "sexual act[s]" defined in 18 U.S.C. §2246(2) Crowley and Valjato allegedly attempted to commit. Id. at 154-61. As an alternative basis for granting the motion, the District Court held that defendants were entitled to the requested charge because there was a basis for it in the evidence presented at trial.⁵ See id. at 163-66. The District Court entered judgment accordingly and, after the government's motion for reconsideration was denied, its timely appeal followed.

II.

A.

The government argues that the District Court erred in granting the motion on the ground that the indictment was insufficiently specific because: (1) defendants waived their objection to the indictment's lack of specificity by not raising it before trial; (2) to satisfy the Fifth Amendment, the indictment did not need to define the particular "sexual act[s]" with which defendants were charged; and (3) if the indictment was defective, its defects did not prejudice defendants. Because we agree with the government's first argument, we do not reach its second and third arguments.

Federal Rule of Criminal Procedure 12(b)(2) explicitly provides that a claim that an indictment is insufficiently specific "must be raised prior to trial."⁶ This mandate is no mere pleading technicality. Rather, it serves a number of important purposes, including deterrence of gamesmanship-Rule 12(b)(2) prevents a defendant from deciding whether to object to an indictment's purported lack of specificity based solely on whether he is convicted or acquitted-and insuring that indictments are not routinely challenged (and dismissed) after the jury has been seated and sworn, a result that would waste jurors' time and force courts frequently to confront complex Double Jeopardy questions. As the Supreme Court has observed,

If [the] time limits [of Rule 12(b)(2)] are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult.

Davis v. United States, 411 U.S. 233, 241 (1973).

The purposes of Rule 12(b)(2) would not be served-indeed, they would be subverted-if a defendant could "raise" a specificity challenge merely by including generic, boilerplate objections to the indictment in his pretrial motion papers. If such were the case, a defendant could baldly assert in a pretrial motion to dismiss that the indictment by which he was charged was insufficiently particular. Assuming that the motion was not granted, the trial would then begin and the defendant would have the luxury of hedging his bets: If he were convicted, he could file a motion for a new trial that fleshed out the objection that he had already "raised" in his pretrial motion, and hope that a new jury (and ultimately a new grand jury) would look more favorably upon his case. Such hedging of bets would cause precisely the mischief that Rule 12(b)(2) seeks to prevent: It would trivialize the criminal justice system by treating juries as tradeable gamepieces, and would waste a great deal of time by permitting defendants to substantiate their arguments for the first time after their trial is completed.

Accordingly, we hold that in order to raise a challenge to the specificity of an indictment within the meaning of FED. R. CRIM. P. 12(b)(2), a defendant must do more than assert in general terms that the indictment by which he or she was charged is vague or insufficiently specific. Rather, the defendant must apprise the District Court of those particular portions of the indictment that are lacking in the requisite specificity, and explain why, in the circumstances, greater specificity is required....