U.S.A. v. Smith

• Decision Date: 13 October 2000
• Docket Number: No. 99-4059,99-4059
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Craig A. Smith, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 300

230 F.3d 300 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Craig A. Smith, Defendant-Appellant.

No. 99-4059

In the United States Court of Appeals For the Seventh Circuit

Argued September 8, 2000

Decided October 13, 2000

Appeal from the United States District Court for the Central District of Illinois, Rock Island Division. No. 98-CR-40067--Joe B. McDade, Chief Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Flaum, Chief Judge, and Posner and Rovner, Circuit Judges.

Flaum, Chief Judge.

Craig Smith appeals his conviction for witness retaliation under 18 U.S.C. sec. 1513(b) following a jury trial. Smith contends on appeal that: (1) the indictment charging him is insufficient as a matter of law, (2) the district court erred by excluding from evidence the victim's misdemeanor convictions, and (3) by substituting a juror outside of Smith's presence, the court violated his right to be present at all stages of the criminal proceedings. For the reasons stated herein, we affirm.

I. BACKGROUND

On the evening of October 30, 1998, Craig Smith accosted Timothy Heater inside the Wells Fargo Lounge. What under different circumstance would be considered a barroom assault, was in this instance a violation of the Federal Witness Retaliation Statute. To fully understand why this altercation resulted in the bringing of federal charges, a discussion of the history of the participants and their relationship is necessary.

From 1994 through 1996, Craig Smith illegally harvested fresh water mussels ("clams"). After harvesting, Smith would sell these clams to the Mississippi Valley Shell Company ("MVSC"), which would then sell them to Japanese cultured pearl businesses. In 1995, as a result of poaching violations, Smith's Illinois clamming license was revoked. Though he continued to harvest clams and sell them on his own, Smith also enlisted the aid of Timothy Heater. At the behest of Smith, Heater purchased an Iowa license to harvest clams. On 13 occasions, Smith handed over his harvest to Heater, who, acting as the "middleman," delivered the clams to MVSC. In return, Heater received a check in his name for the value of the harvest, which he would then cash and deliver the proceeds to Smith. For his part, Heater received approximately 25 dollars per transaction.

On April 1, 1997, government agents executed a search warrant of MVSC. While reviewing seized records, the agents learned of Heater's involvement in MVSC's operations. On April 2, 1998, Heater was served with a grand jury subpoena issued by the United States District Court for the Southern District of Iowa. After reaching an agreement with federal agents, Heater presented himself at the United States Attorney's Office in Rock Island, Illinois. While at the Office, Heater presented handwriting exemplars and discussed his involvement in the illegal clamming operation. Heater informed the agents of how he "laundered" Smith's illegally harvested clams, selling them to MVSC. Partially on the basis of Heater's testimony, Smith was indicted for interstate transportation of illegally taken wildlife in violation of 16 U.S.C. sec. 3372 ("the Lacey Act"). On September 17, 1998, Smith pled guilty to one count of the indictment. The district court allowed Smith to remain free on bond, pending sentencing. The district court also admonished Smith to avoid contact with any government witness.

On October 30, 1998, Heater arrived at the Wells Fargo Lounge, located in Moline, Illinois. Upon entering the establishment, Heater noticed that Smith, accompanied by a group of friends, was seated at a table. Heater proceeded to the main bar where he ordered a drink. Smith, who likewise noticed Heater's presence at the Lounge, approached the bouncer Jesse Sappington. Smith requested that, in order to avoid any potential incident, Sappington ask Heater to leave the premises. Sappington approached Heater, and after some negotiation, Heater agreed to vacate the Lounge. While exiting, Smith approached Heater from behind, verbally threatened his life, and pushed him against a wall. As a result of the altercation, Heater's head was lacerated, and the police were summoned.

On December 18, 1998, Smith was charged with one count of witness retaliation in violation of 18 U.S.C. sec. 1513(b). The trial began on February 22, 1999. On the second day of trial, the court conducted a conference in chambers with both government and defense counsels present. The court had learned that a juror was unable to travel to the court due to inclement weather. In conference, the court stated that it wished to proceed with an alternate juror, but gave both sides the opportunity to state their positions. Smith's counsel stated that he had talked to Smith who liked the juror a lot, and wished that the trial be resumed only when that juror could be present. Nonetheless, the court decided to replace the missing juror with an alternate juror. That day the jury returned a verdict of guilty on the charge of witness retaliation.¹ On November 18, 1999, Smith was sentenced to a term of imprisonment of 93 months, 85 months of which to run concurrent with the illegal harvesting sentence.

Smith now appeals his conviction on three grounds. First, Smith argues that his indictment is insufficient as a matter of law. Second, he claims that the district court erred in failing to allow him to introduce evidence of Heater's misdemeanor convictions for domestic battery and theft. Finally, Smith asserts that the district court's in-chambers decision to substitute an alternate juror for a tardy one violated his constitutional right to be present at all phases of the criminal proceedings.

II. DISCUSSION

A. Sufficiency of the Indictment

Defendant's first argument on appeal is that the indictment in this case is legally insufficient to charge the offense of witness retaliation. We review challenges to the sufficiency of an indictment de novo. See United States v. Torres, 191 F.3d 799, 805 (7th Cir. 1999), cert. denied, 120 S.Ct. 1218 (2000). To be sufficient, an indictment must fulfill three distinct functions. First, the indictment must state all of the elements of the crime charged; second, it must adequately apprise the defendant of the nature of the charges so that he may prepare a defense; and third, it must allow the defendant to plead the judgment as a bar to any future prosecutions for the same offense. See Fed.R.Crim.P. 7(c)(1); Torres, 191 F.3d at 805. Indictments are reviewed on a practical basis and in their entirety, rather than "in a hypertechnical manner." United States v. McNeese, 901 F.2d 585, 602 (7th Cir. 1990).

In setting forth the offense, it is generally acceptable for the indictment to "track" the words of the statute itself, so long as those words expressly set forth all the elements necessary to constitute the offense intended to be punished. United States v. Hinkle, 637 F.2d 1154, 1157 (7th Cir. 1981). However, an indictment that tracks the statutory language can nonetheless be considered deficient if it does not provide enough factual particulars to "sufficiently apprise the defendant of what he must be prepared to meet." Russell v. United States, 369 U.S. 749, 763 (1962). In order for an indictment to satisfy this second hurdle, we require, at a minimum, that it provide some means of pinning down the specific conduct at issue. United States v. Josten, 704 F.Supp. 841, 844 (N.D. Ill. 1989). Yet in this inquiry, the presence or absence of any particular fact need not be dispositive of the issue.

Applying the standards set forth above, we believe the indictment in the instant case is sufficient. The indictment of the defendant charged that

On or about October 30, 1998, at Moline, in Rock Island County, in the Central District of Illinois, the defendant, CRAIG ALLEN SMITH, did knowingly engage in conduct and thereby cause bodily injury to another person, and did threaten to do so, all with intent to retaliate against that person for documents and objects produced by that person, who was a witness in an official proceeding, that is, a session of the Federal Grand Jury for the Southern District of Iowa, and for information relating to the commission of Federal offenses given by that person to law enforcement officers, namely violations of the Lacey Act, Title 16, United States Code, Section 3372. All in violation of Title 18, United States Code, Section 1513(b).

Smith does not contend that the indictment in question fails to state the elements of witness retaliation. As defendant notes, this indictment largely mirrors the language of 18 U.S.C. sec. 1513(b), the witness retaliation statute.² By framing the charge against Smith in the language of the statute, this indictment fulfills that first function of identifying the essential elements necessary to sustain a conviction. Smith contends however, that in doing so, this indictment is devoid of any specific allegations as to the conduct engaged in, the bodily injury suffered, the victim's name or identity, the nature of the alleged threat, and the precise location of the offense. Thus, he urges, it fails to give him notice of what specifically he must be prepared to meet at trial.

Smith is correct in his assertion that the indictment at issue does not detail every factual nugget necessary for conviction. However, we do not believe that it is necessary for an indictment to allege in detail the factual proof that will be relied on to support the charges. We consistently have held that the minimum level of detail that is required for an indictment is that it be sufficiently detailed so that it adequately apprises the defendant of the charges, thereby enabling him to prepare his defense. See Hinkle, 637 F.2d at 1157; see also United States v. Williams, 679 F.2d 504, 508 (5th Cir. 1982).

Turning to the indictment, we believe that it contains sufficient particulars to put the defendant on notice of the nature...