U.S. v. Groos, No. 06 CR 420.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtJoan B. Gottschall
Citation616 F.Supp.2d 777
PartiesUNITED STATES of America v. Nicholas D. GROOS.
Decision Date13 June 2008
Docket NumberNo. 06 CR 420.
616 F.Supp.2d 777
UNITED STATES of America
v.
Nicholas D. GROOS.
No. 06 CR 420.
United States District Court, N.D. Illinois, Eastern Division.
June 13, 2008.

[616 F.Supp.2d 779]

Madeleine Sullivan Murphy, AUSA, United States Attorney's Office, Chicago, IL, for United States of America.

[616 F.Supp.2d 780]

MEMORANDUM OPINION AND ORDER

JOAN B. GOTTSCHALL, District Judge.


Before the court are four pretrial motions filed by defendant, Nicholas D. Groos ("Groos"): (1) a motion to dismiss insufficient indictment; (2) a motion to dismiss counts 2 and 4 for failure to state an offense; (3) a motion to strike surplusage; and (4) a motion for depositions of foreign witnesses.1 For the reasons stated below, the court grants the motion to strike surplusage [57], denies the motion to dismiss insufficient indictment [55] and the motion to dismiss counts 2 and 4[53], and denies without prejudice the motion for depositions of foreign witnesses [58].

I. BACKGROUND2

Groos was the president of Luxembourg-based Viking S.A. Viking S.A. is the international division of The Viking Corporation, a United States company based in Hastings, Michigan that distributes fire suppression equipment ("Viking U.S."). In December 2001, Viking S.A. had Viking U.S. ship two partial orders from its Michigan warehouse to the United Arab Emirates ("UAE").

One order successfully arrived in Dubai, UAE, The other was intercepted by the U.S. Department of Commerce after notification by an Illinois-based freight forwarding company that had been alerted to the alleged final destination of the shipment: Iran. Neither Viking U.S. or Viking S.A. had the required authorization from the U.S. government to export goods from the United States to Iran, The Government indicted Groos on four counts in regard to these alleged transactions under the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06 ("IEEPA"), the Iranian Transactions Regulations, 31 C.F.R. § 560 ("ITR"), and the Export Administration Regulations, 31 C.F.R. § 730-74 ("EAR"), which were promulgated pursuant to the Export Administration Act, 50 U.S.C. app. §§ 2401-20 ("EAA").

II. ANALYSIS

A. Motion to Dismiss Insufficient Indictment [55]

Groos argues that the indictment is legally insufficient because: (1) it understates and misrepresents the mental state required for conviction because it alleges that Groos acted willfully but does not allege that Groos knew his alleged conduct was illegal; and (2) it fails to inform Groos of the date of the alleged illegal conduct. He therefore asks the court to dismiss the indictment pursuant to Rule 12(b)(2), which provides that a "party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the general issue." See Fed.R.Crim.P. 12(b)(2).

1. Must the Indictment Include the Term "Knowingly"?

The relevant section of the IEEPA, upon which all four counts of the indictment rely, provides that:

Whoever willfully violates, or willfully attempts to violate, any license, order, or regulation issued under this chapter shall, upon conviction, be fined not more than $50,000, or, if a natural person,

616 F.Supp.2d 781

may be imprisoned for not more than twenty years, or both,

50 U.S.C. § 1705(b). The parties agree that, at trial, "[t]he government [i]s required to establish that [the defendant] willfully attempted to export goods to another country, knowing the ultimate destination was an embargoed country, without a license." U.S. v. Reyes, 270 F.3d 1158, 1170 (7th Cir.2001) (citing 50 U.S.C. § 1705(b), 31 C.F.R. § 560.203-04, 15 C.F.R. § 785.4(b)(2), and 15 C.F.R. § 787.5(b)) (emphasis added). Accord U.S. v. Homa Int'l Trading Corp., 387 F.3d 144, 147 (2d Cir.2004) (holding that "the district court properly instructed the jury that it could not convict [the defendant] of violating the [Iranian] Embargo unless the defendant knew that [his conduct] was a violation of the embargo, and was, thus, illegal" (internal quotation marks omitted)). Groos acknowledges that each count of the indictment includes the term "willfully," but the parties dispute whether the term "knowingly" must be included in the indictment also.

Groos argues that it is not enough to track the language of the statute in this case because the term "willfully" is ambiguous and the indictment subsequently fails to apprise Groos of all the elements of the crime. He relies heavily on Russell v. U.S., 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), which holds that an indictment that fails to "apprise the defendant with reasonable certainty, of the nature of the accusation against him" is deficient, even if it tracks the language of the statute. Id. at 765, 82 S.Ct. 1038. The Government points to U.S. v. Quinn, 401 F.Supp.2d 80 (D.D.C.2005), which rejected a similar challenge to a similar indictment. In Quinn, the court acknowledged that the government had to prove that the defendant knew his conduct was illegal, but that in an indictment brought under 50 U.S.C. § 1705(b) alleging "willful" conduct sufficiently apprised the defendant of the charges he faced. Id. at 102. Groos contends that such a conclusion runs afoul of Russell because of the uncertainty about the meaning of "willfulness."

The court does not find the omission of the term "knowingly" to be fatal to the indictment. Although Groos reads the requirement of a specific indictment very narrowly, the cases he cites actually stand for the proposition that an indictment is deficient when, as a whole, it fails to put the defendant on notice of the claims against him. See, e.g., U.S. v. Carll, 105 U.S. 611, 26 L.Ed. 1135 (1881) (finding an indictment defective when it "omitt[ed] the allegation ... that the defendant knew the instrument which he uttered to be false" when this was a necessary element of the crime); U.S. v. Yefsky, 994 F.2d 885 (1st Cir.1993) (finding defective an indictment for conspiracy that failed to allege an agreement where it failed to expressly incorporate the necessary factual allegations into the conspiracy count). As the Supreme Court noted in Russell:

Undoubtedly, the language of the statute may be used in the general description of an offense, but it must be accompanied with such 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.

369 U.S. at 765, 82 S.Ct. 1038 (citing U.S. v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 516 (1888)).

In this case, paragraphs 1 to 20 of the indictment form part of Count 1 and are expressly incorporated into Counts 2 through 4. Paragraph 11 states: "No later than on or about December 11, 2001, defendant NICHOLAS D. GROOS learned that Viking S.A. could not continue to ship products to Iran without the authorization of the U.S. government," Paragraph 13 states, in part: "No later than on or about

616 F.Supp.2d 782

December 15, 2001, defendant NICHOLAS D. GROOS, for the purpose of evading the prohibition on exports from the United States to Iran, arranged for any further shipments ... to be routed [via the UAE]." These factual paragraphs provide Groos with sufficient notice of the allegations against him, notwithstanding the absence of the term "knowingly" in the indictment itself.

2. Do the Date Errors Make The Allegations Unclear?

In part, the indictment reads:

14. On or about December 18, 2001, defendant NICHOLAS D. GROOS provided Mr. Pillai with the order previously placed ....

15. On or about December 18, 2007, Mr. Pillai provided defendant NICHOLAS D. GROOS with an order ....

16. On or about December 18, 2007, Viking S.A. issued Order Acknowledgment 100422 SD ....

17. On or about December 18, 2001, Viking S.A. issued a purchase order to Viking U.S. concerning fire protection equipment ....

Indictment ¶¶ 14-17 (emphasis added).

Groos argues that the indictment fails to identify the precise date of the allegedly improper conduct, specifically the date an order was made or acknowledged. He argues that this information affects a material element of the charge, because the order is the only transaction at issue in the case, Groos states that the date set forth in the indictment is "obviously inaccurate" because "it is after the date of the Grand Jury's deliberations and the date the indictment was filed." Def.'s Mem. in Supp. of Mot. to Dismiss Insufficient Indictment at 5. He argues that the disparity in dates is too great to be a mere clerical or typographical error and that the Government should not be allowed to amend the indictment.3 The Government notes that although the date "December 18, 2007" was erroneously used in two paragraphs, the paragraphs before and after contain the correct date. It also contends that the paragraphs are not material because the violations actually occurred when the equipment was sent, and the order date is incidental. In short, the government asserts that the date is irrelevant to the elements of the crime and the defendant contends that he does not have fair notice of the crime charged because of the error.

A court can make only non-material changes to an indictment, such as to correct typographical errors or errors as to nonmaterial dates. U.S. v. Leichtnam, 948 F.2d 370, 376 (7th Cir.1991) (permitting amendments "to correct for a typographical or clerical error or a misnomer" such as an incorrect date "unless the particular date is an important element of the charged offense"); U.S. v. Cina, 699 F.2d 853, 857 (7th Cir.1983) ("In general, either an amendment or a variance will be allowed to stand if it does not change an `essential' or `material' element of the charge so as to cause prejudice to the defendant."). "An `essential' or `material' element of a crime is one whose specification with precise accuracy is necessary to establish the very illegality of the behavior and thus the court's jurisdiction." Cina, 699 F.2d at 859. Nevertheless,...

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4 practice notes
  • Collier v. Austin Peay State University, Civil No. 3:08-0400.
    • United States
    • U.S. District Court — Middle District of Tennessee
    • March 26, 2009
    ...Plaintiffs' claims brought under federal law against all remaining Defendants be DISMISSED; and (3) Plaintiffs state law claims against 616 F.Supp.2d 777 all Defendants be DISMISSED WITHOUT Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has ten (10) days after service o......
  • United States v. Soleimani, CRIMINAL CASE NO. 1:18-cr-00216-ELR-RGV
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • September 25, 2019
    ...economy of the United States, if the President declares a national emergency with respect to such threat[.]" United States v. Groos, 616 F. Supp. 2d 777, 783-84 (N.D. Ill. 2008) (internal marks omitted) (quoting 50 U.S.C. § 1701(a)). "Specifically, it authorizes the President to regulate . ......
  • United States v. Agee, No. 1:19-cr-00103-TWP-DLP-01
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • July 9, 2021
    ...they are surplusage because they constitute "nothing more than background and contextual information." United States v. Groos, 616 F. Supp. 2d 777, 790 (N.D. Ill. 2008). She contends that the surplusage invites the jury to make a "judgment of Ms. Agee based on how well she followed the SBA'......
  • United States v. Foster, No. 13 C 6456 (09 CR 316-2)
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • June 9, 2014
    ...of his or her testimony would result in injustice due to the materiality of the testimony to the case." United States v. Groos, 616 F. Supp. 2d 777, 790 (N.D. Ill. 2008) (quotation omitted). Here, the CI was available to testify at trial, and thus not a candidate for deposition, until he as......
4 cases
  • Collier v. Austin Peay State University, Civil No. 3:08-0400.
    • United States
    • U.S. District Court — Middle District of Tennessee
    • March 26, 2009
    ...Plaintiffs' claims brought under federal law against all remaining Defendants be DISMISSED; and (3) Plaintiffs state law claims against 616 F.Supp.2d 777 all Defendants be DISMISSED WITHOUT Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has ten (10) days after service o......
  • United States v. Soleimani, CRIMINAL CASE NO. 1:18-cr-00216-ELR-RGV
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • September 25, 2019
    ...economy of the United States, if the President declares a national emergency with respect to such threat[.]" United States v. Groos, 616 F. Supp. 2d 777, 783-84 (N.D. Ill. 2008) (internal marks omitted) (quoting 50 U.S.C. § 1701(a)). "Specifically, it authorizes the President to regulate . ......
  • United States v. Agee, No. 1:19-cr-00103-TWP-DLP-01
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • July 9, 2021
    ...they are surplusage because they constitute "nothing more than background and contextual information." United States v. Groos, 616 F. Supp. 2d 777, 790 (N.D. Ill. 2008). She contends that the surplusage invites the jury to make a "judgment of Ms. Agee based on how well she followed the SBA'......
  • United States v. Foster, No. 13 C 6456 (09 CR 316-2)
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • June 9, 2014
    ...of his or her testimony would result in injustice due to the materiality of the testimony to the case." United States v. Groos, 616 F. Supp. 2d 777, 790 (N.D. Ill. 2008) (quotation omitted). Here, the CI was available to testify at trial, and thus not a candidate for deposition, until he as......

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