United States v. Farinas
Decision Date | 09 May 1969 |
Docket Number | No. 68 CR. 927.,68 CR. 927. |
Citation | 299 F. Supp. 852 |
Parties | UNITED STATES of America v. Juan Pedro FARINAS, Defendant. |
Court | U.S. District Court — Southern District of New York |
Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, for plaintiff, Charles B. Updike, New York City, of counsel.
Sanford M. Katz, New York City, for defendant.
Defendant moves herein to dismiss the indictment charging him with a violation of the Selective Service Act of 1967, for a bill of particulars, and for discovery and inspection. Inasmuch as it is the opinion of this Court that the indictment lodged herein is too vague in its language to enable the defendant to properly prepare his defense, defendant's other motions need not be considered at this time.
The indictment in this case provides:
In Lowenburg v. United States, 156 F. 2d 22 (10th Cir. 1946), the defendant, classified IV-E under the Selective Service Act, was assigned to work of national importance at various camps, including the Civilian Public Service Camp at Mancos, Colorado, and allegedly failed to perform his duties satisfactorily. The court held that an indictment which merely charged a defendant with refusing to perform "the duties assigned to him by the director of said Civilian Public Service Camp No. 111, in the Town of Mancos, in the County of Montezuma, in the State of Colorado", without apprising the defendant of the specific duties which he is charged with having failed to perform, did not meet the minimum requirements of good pleading and was, therefore, legally insufficient to charge the accused with the commission of a public offense.
Inasmuch as the fundamental purpose underlying Rule 7(c) of the Federal Rules of Criminal Procedure2 is to inform a defendant of the nature of the charges leveled against him and, therefore, of what he must be prepared to meet, Wright, Federal Practice and Procedure § 125 at 232-33 (1969), it is the opinion of this Court that the indictment in this case serves that end no better than that which was before the court in Lowenburg, supra. Although the indictment herein goes one step further by charging that the defendant failed in his duties by refusing to obey certain orders, its failure to specify the nature of the orders allegedly disobeyed renders that step a negligible one in light of the basic function of an indictment.
It is well established that the purpose of an indictment is to fully apprise the defendant of the crime with which he is charged so that he may properly prepare his defense. United States v. Simmons, 96 U.S. 360, 362, 24 L.Ed. 819 (1877). To this end, it has been held that although an indictment may be drafted in the language of the statute so long as the language employed contains all the essential elements of the offense charged, United States v. Spada, 331 F.2d 995 (2d Cir.), cert. denied, 379 U.S. 865, 85 S.Ct. 130, 13 L.Ed.2d 67 (1964); United States v. Cimino, 321 F. 2d 509, 512 (2d Cir.), cert. denied sub nom. D'Ercole v. United States, 375 U.S. 967, 84 S.Ct. 486, 11 L.Ed.2d 416 (1963), where the statutory definition "* * * includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species,—it must descend to the particulars. * * *" United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875); United States v. Hess, 124 U.S. 483, 488, 8 S.Ct. 571, 31 L.Ed. 516 (1888); United States v. Guterma, 189 F.Supp. 265, 270-271 (S.D.N.Y.1960). In other words, if a statute upon which an indictment is lodged fails, by virtue of its general terminology, to sufficiently apprise the defendant of what he needs to know in order to commence the preparation of a defense, the indictment cannot suffer from the same defect, but must specifically set forth the facts which constitute the core of the alleged offense.
The indictment in this case, which charges the accused with failing to obey orders of certain representatives of the Armed Forces of the United States while the accused was present at the place where his induction was to be accomplished, not only could conceivably fail to state a crime (see discussion below) but, most importantly, falls below the minimum standard of specificity in respect of the requirement of reasonable notice. United States v. Hess, supra; United States v. Cruikshank, supra; Lowenburg v. United States, supra; United States v. Turner, 274 F.Supp. 412, 417 (E.D.Tenn.1967); United States v. Simplot, 192 F.Supp. 734, 737 (D.Utah 1961); United States v. Devine's Milk Laboratories, Inc., 179 F.Supp. 799, 800-801 (D.Mass.1960); United States v. Apex Distrib. Co., 148 F.Supp. 365, 372 (D.R.I.1957).
Further, where an indictment condemns an act belonging to a species of conduct, which species includes other acts not amounting to indictable offenses, it is not sufficient that the indictment merely identifies the species in general but, rather, it must particularize the act or acts which, it is alleged,...
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...of the indictment without reference to the grand jury." 174 U.S.App.D.C. at 474, 533 F.2d at 701. Similarly, in United States v. Farinas, 299 F.Supp. 852, 854 (S.D.N.Y.1969), the court dismissed an indictment which charged a violation of the Selective Service Act of 1967 in defendant's refu......
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...may properly prepare his defense. Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Farinas, 299 F.Supp. 852 (S.D.N.Y.1969). The notice which an indictment furnishes, however, is not limited to the crime actually specified therein. It is axio......
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