United States v. McTague

• Decision Date: 10 April 2017
• Docket Number: Criminal No. 5:14-CR-055
• Court: U.S. District Court — Western District of Virginia
• Parties: UNITED STATES OF AMERICA v. MARIA ROSALBA ALVARADO MCTAGUE, et al., Defendants.

UNITED STATES OF AMERICA v. MARIA ROSALBA ALVARADO MCTAGUE, et al., Defendants.

Criminal No. 5:14-CR-055

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION

April 10, 2017

By: Michael F. Urbanski United States District Judge

MEMORANDUM OPINION

This matter is before the court on defendants Maria Rosalba Alvarado McTague and Felix Chujoy's Motion to Dismiss Counts 1-11, 13-23, and 25-28 of the Superseding Indictment. ECF No. 433. The government has responded to the motion, ECF No. 443, and the matter was argued on April 6, 2017. See ECF No. 445. For the reasons that follow, the court will GRANT in part and DENY in part defendants' motion to dismiss. Counts Seven, Fourteen, Twenty, and Twenty-one are hereby DISMISSED in full without prejudice. Counts Six, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen, Twenty-two, and Twenty-three are DISMISSED in part without prejudice, as follows:

• Count Six is dismissed to the extent that it alleges an attempt to violate 18 U.S.C. § 1592 and a violation of 18 U.S.C. § 1592(a)(3).

• Counts Fifteen through Nineteen are dismissed to the extent that these counts allege recruiting without the statutorily required fee element.

• Counts Twenty-two and Twenty-three are dismissed to the extent that these counts allege intimidation of the due administration of justice which is not criminalized in 18 U.S.C. § 1503(a).

I.

Federal Rule of Criminal Procedure 7(c)(1) lays out the general requirements for a criminal indictment:

The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government. It need not contain a formal introduction or conclusion. A count may incorporate by reference an allegation made in another count. A count may allege that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. For each count, the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.

"The requirements for an indictment are not onerous," United States v. Palin, No. 1:14cr023, 2015 WL 6134125, at *5 (W.D. Va. Oct. 16, 2015), and courts should review indictments "on a practical basis and in their entirety, rather than 'in a hypertechnical manner,'" United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000) (quoting United States v. McNeese, 901 F.2d 585, 602 (7th Cir. 1990)); see United States v. Matzkin, 14 F.3d 1014, 1019 (4th Cir. 1994) ("[T]he sufficiency of an indictment should be determined by practical, as distinguished from purely technical, considerations." (brackets in original) (quoting United States v. Missler, 414 F.2d 1293, 1297 (4th Cir. 1969))). Consistent with the goal of the Federal Rules "to eliminate technicalities in criminal pleadings," and "secure simplicity in procedure," United States v. Resendiz-Ponce, 549 U.S. 102,110 (2007), the governmentneed not detail its "theory of the case and the supporting evidentiary facts," United States v. Loayza, 107 F.3d 257, 261 (4th Cir. 1997) (quoting United States v. Arlen, 947 F.2d 139, 145 n.7 (5th Cir. 1991)).

Nonetheless, judicial review of indictments is not entirely toothless. The Fifth Amendment to the United States Constitution makes an indictment a prerequisite to prosecution for "a capital, or otherwise infamous crime," U.S. Const. amend. V, while the Sixth Amendment requires that a defendant "be informed of the nature and cause of the accusation" against him. U.S. Const. amend VI. "The criteria against which the sufficiency of an indictment is judged reflect these guarantees." United States v. Daniels, 973 F.2d 272, 274 (4th Cir. 1992).

Accordingly, the Supreme Court has held that "an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 118 (1974). Thus, "[w]hile it is generally sufficient that the indictment describes the offense by using the unambiguous language of the statute, that general description '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.'" United States v. Quinn, 359 F.3d 666, 672-73 (4th Cir. 2004) (quoting Hamling, 418 U.S. at 117-18).

Where a count in an indictment is insufficient, the court may dismiss that count without prejudice. However, dismissal of the entire count is not always necessary: the court may partially dismiss a count and strike the portions of that count that rendered it defective.

There is a "general rule forbidding amendment of an indictment by the court or prosecutor," United States v. Coward, 669 F.2d 180, 183-84 (4th Cir. 1981) (citing Ex parte Bain, 121 U.S. 1, 7 (1887)), which vindicates the right to indictment by a grand jury protected by the Fifth Amendment. See United States v. Miller, 471 U.S. 130, 135-36 (1985). But, the Supreme Court "has long recognized that an indictment may charge numerous offenses or the commission of any one offense in several ways," and "[a]s long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime." Id. at 136; see Turner v. United States, 396 U.S. 398, 420 (1920) ("[W]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged").

Accordingly, "[a] part of the indictment unnecessary to and independent of the allegations of the offense proved may normally be treated as 'a useless averment' that 'may be ignored.'" Miller, 471 U.S. at 136 (quoting Ford v. United States, 273 U.S. 593, 602 (1927). In recognition of this fact, there is a "generally acknowledged exception [to the rule forbidding court amendment of indictments,] which permits the court to strike surplusage from the indictment." Coward, 669 F.2d at 183-84; see United States v. Brooks, 438 F.3d 1231, 1237 (10th Cir. 2006) (The court "may strike from an indictment allegations which areboth independent of and unnecessary to the offense on which a conviction ultimately rests."); accord United States v. Williams, 445 F.3d 724, 733 (4th Cir. 2006).

In sum, Court precedent

forbids two general kinds of amendments to indictments. First . . . any amendment that transforms an indictment from one that does not state an offense into one that does. . . . The second improper alteration is seen in any change that tends to increase the defendant's burden at trial.

Coward, 669 F.2d at 184 (quoting United States v. Milestone, 626 F.2d 264, 269 (3d Cir. 1980). Within these confines, the court may dismiss portions of an indictment without offending a defendant's Fifth Amendment right to indictment by grand jury. See Salinger v. United States, 272 U.S. 542, 548-49 (1926) (Where an indictment charges multiple offenses, or the commission of one offense in several ways, striking one offense, or one alleged method of committing it, does not constitute a forbidden amendment of the indictment).

II.

Defendants challenge the superseding indictment on two primary grounds: failure to state an offense under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), and lack of specificity under Rule 12(b)(3)(B)(iii). See ECF No. 433. They raise challenges to all counts except Counts Twelve and Twenty-four.¹ The court will now describe and rule on defendants' arguments as to each count.

A. Count One

Count One of the Superseding Indictment charges the defendants with a labor trafficking conspiracy. Defendants allege that this count is defective because, though it properly alleges the elements of a conspiracy, it "does not identify which code section (1581, 1583, 1589, 1590, or 1592) that the defendants are accused of conspiring to violate." ECF No. 433, at 8. In support, defendants cite United States v. Kingrea, which held that, "Although an offense that is the object of a conspiracy need not be delineated in the indictment with the same particularity as a substantive offense, this admonition applies to the statements of fact that 'flesh out' the indictment—not the basic elements of the offense itself." 573 F.3d 186, 192 (4th Cir. 2009) (quoting United States v. Hooker, 841 F.2d 1225, 1229 (4th Cir. 1988)).

Though Count One fails to identify the code section of the underlying offense, as defendants acknowledge, "[t]he language of [Count One], 'by means of a scheme, plan, or intended, etc.,' tracks part of 18 U.S.C. § 1589[(a)](4)." ECF No. 433, at 8-9. In actuality, the language of the Superseding Indictment provides all the elements of 18 U.S.C. § 1589(a) (the substantive offense), in addition to the elements of conspiracy.

18 U.S.C. § 1589 provides:

(a) Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means—

. . .

(3) by means of the abuse or threatened abuse of law or legal process; or

(4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint . . . .

Count One of the Superseding Indictment alleges that the defendants

conspired with each other and with others known and unknown to the grand jury to knowingly provide and obtain the labor and services of individuals known to the grand jury by means of a scheme, plan, or

...