United States v. Overbay

• Decision Date: 13 June 1977
• Docket Number: No. CR-2-77-14.,CR-2-77-14.
• Citation: 444 F. Supp. 256
• Parties: UNITED STATES of America, Plaintiff, v. Selma E. OVERBAY, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

444 F. Supp. 256

UNITED STATES of America, Plaintiff, v. Selma E. OVERBAY, Defendant.

No. CR-2-77-14.

United States District Court, E. D. Tennessee, Northeastern Division.

June 13, 1977.

John L. Bowers, U. S. Atty., Gordon Ball, and Richard K. Harris, Asst. U. S. Attys., Knoxville, Tenn., for plaintiff.

Thomas L. Kilday, Milligan, Coleman, Fletcher & Gaby, Greeneville, Tenn., for defendant.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

The defendant Mrs. Overbay moved for a dismissal of the indictment herein or, alternatively, for the dismissal of certain counts thereof. Rule 12(b)(2), Federal Rules of Criminal Procedure. Such motion was referred to a United States magistrate of this district for a report and recommendation as to its disposition by the Court. 28 U.S.C. § 636(b)(1)(B). It was recommended that the motion be denied in its entirety. The defendant made timely objections to such recommendation, and the Court considered such objections de novo. 28 U.S.C. § 636(b)(1).

The 13-count indictment herein charges Mrs. Overbay with 13 violations of 18 U.S.C. § 665.^* Specifically, each count charges that:

* * * * * *

* * * Mrs. Overbay, an employee of the First Tennessee Human Resource Agency, an agency receiving financial assistance on the above date under the Comprehensive Employment and Training Act of 1973, willfully and knowingly embezzled and obtained by fraud the following amount of money which was the subject of a grant or contract of assistance pursuant to the Comprehensive Employment and Training Act of 1973, by causing to be issued, a paper writing in the form of a check drawn on the First Tennessee Human Resource Agency Account in the Mountain Empire Bank of Johnson City, Tennessee * * * and by causing said check to be delivered to said Mrs. Selma E. Overbay, who then forged the name of the payee and uttered the check and received and converted to her own use the proceeds thereof, well knowing that she was not entitled thereto * * *.

"The Federal Rules of Criminal Procedure, 18 U.S.C.A., were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure. * * *" United States v. Debrow (1953), 346 U.S. 374, 376, 74 S.Ct. 113, 115, 98 L.Ed. 92, 96 (headnote 3), citing Rule 2, Federal Rules of Criminal Procedure. "* * * An indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which she must defend, and, second, enables her to plead an acquittal or conviction in bar of future prosecutions for the same offense. * * *" Hamling v. United States (1974), 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590, 62025, citing: Hagner v. United States (1932), 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861, and United States v. Debrow, supra. It is generally sufficient that an indictment set forth the offense in the words of the statute itself, so long as those words fully, directly, and expressly, without any ambiguity or uncertainty, set forth all the elements necessary to constitute the offense intended to be punished. Ibid., 418 U.S. at 117, 94 S.Ct. at 2907, 41 L.Ed.2d at 620-62126. "* * * `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 she is charged.' * * *" Ibid., 418 U.S. at 117-118, 94 S.Ct. at 2907, 41 L.Ed.2d at 62127, quoting from United States v. Hess (1888), 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 516, 518. Tested against these criteria, the indictment herein is sufficient.

Mrs. Overbay also contends the language used in each count of the indictment, charging that she "* * * willfully and knowingly embezzled and obtained by fraud * * *" the money so thereafter described, renders each such count defective. However, where, as here, the statute specifies several alternative ways in which the offense can be committed by using the disjunctive word, or, the indictment may properly allege the commission of such offense by one or more of such methods by using the conjunctive word, and. Crain v. United States (1896), 162 U.S. 625, 636, 16 S.Ct. 952, 40 L.Ed. 1097, 1100; United States v. Jones, C.A. 9th (1974), 491 F.2d 1382, 13843, 4; United States v. Miller, C.A. 5th (1974), 491 F.2d 638, 64814-16, certiorari denied (1974), 419 U.S. 970, 95 S.Ct. 236, 42 L.Ed.2d 186; Gerberding v. United States, C.A. 8th (1973), 471 F.2d 55, 597; United States v. McCann, C.A. 5th (1972), 465 F.2d 147, 1629; Morrison v. United States (1966), 124 U.S.App.D.C. 330, 331-332, 365 F.2d 521, 522-5231; Driscoll v. United States, C.A. 1st (1966), 356 F.2d 324, 3318. In fact, if the indictment herein were phrased in the conjunctive, there would exist a serious question of its being insufficient and subject to dismissal. See: United States v. Donovan, C.A. 7th (1964), 339 F.2d 404, 407-408, certiorari denied (1965), 380 U.S. 975, 85 S.Ct. 1338, 14 L.Ed.2d 271; United States v. Wells, D.C.Del. (1959), 180 F.Supp. 707, 7097; United States v. MacKenzie, D.C.Me. (1959), 170 F.Supp. 797, 7991. Furthermore, "* * * it may be alleged in a single count that * * * the defendant committed the offense * * * by one or more specified means. * * *" Rule 7(c)(1), Federal Rules of Criminal Procedure. Such is precisely alleged in the indictment herein.

Lastly, the defendant contends that "* * * the language of the thirteen (13) counts of the indictment herein clearly allege and detail only four (4) transactions and offenses on the stated dates, involving numerous checks. * * *" Although Mrs. Overbay refers to such alleged deficiency as being "* * * duplicitous, * * *" she obviously is referring to "multiplicity" which "* * * is the charging of a single offense in separate counts. * * *" United States v. Hairrell, C.A. 6th (1975), 521 F.2d 1264, 12665.

"* * * Multiplicity * * * is an objection ordinarily raised on appeal or by postconviction motion, since it challenges not the propriety of the prosecution itself but the imposition of cumulative sentences." 8 Moore's Federal Practice (2d ed.) 8-47, ¶ 8.071. "* * * The joinder of multiple counts based on the same conduct is not a basis for challenging the legality of an indictment * * * for * * * a determination of whether there is multiplicity often cannot be made prior to trial. * * *" Ibid., at 8-50, ¶ 8.071. Such defects are not so fatal as to...