United States v. Russell

• Decision Date: 18 June 1975
• Docket Number: No. SA-75-CR-78.,SA-75-CR-78.
• Citation: 415 F. Supp. 9
• Parties: UNITED STATES of America v. Stuart H. RUSSELL.
• Court: U.S. District Court — Western District of Texas

415 F. Supp. 9

UNITED STATES of America v. Stuart H. RUSSELL.

No. SA-75-CR-78.

United States District Court, W. D. Texas, San Antonio Division.

June 18, 1975.

Thomas Ruane, Watergate Sp. Prosecution Force, Dept. of Justice, Washington, D. C., John E. Clark, U. S. Atty., Dept. of Justice, by Jerry Handy, San Antonio, Tex., for plaintiff.

Wallace Duncan, Washington, D. C., for defendant.

ORDER

JOHN H. WOOD, Jr., District Judge.

On this 18th day of June, 1975, came on to be considered the Motion to Dismiss Indictment filed by the defendant in the above styled and numbered cause and the Court, having considered the motion and the Government's opposition thereto together with defendant's reply to the Government's opposition, the Indictment herein and the record and file in the case, is of the opinion and so finds that the defendant's Motion to Dismiss should be denied.

By his motion defendant seeks to test the sufficiency of the Indictment herein in generally a two pronged attack of mixed factual and legal elements. The thrust of the first prong of this attack is basically a legal one challenging the constitutionality of the relevant Statute on its face (18 U.S.C., Section 610, hereafter referred to as Section 610) or as utilized in the instant Indictment in conjunction with 18 U.S.C., Section 371 (Conspiracy to Commit an Offense Against the United States — hereafter referred to as Section 371) and 18 U.S.C., Section 2 (Aiding and Abetting the Commission of an Offense Against the United States, hereafter referred to as Section 2).¹ The thrust of the second prong of defendant's attack is basically one of mixed fact and law challenging the sufficiency of the Indictment. In considering defendant's motion, several points must be kept in mind. First, the time honored test of the sufficiency of an Indictment is whether "it contains the elements of the offense intended to be charged, sufficiently apprises a defendant of what he must be prepared to meet, and is detailed enough to assure against double jeopardy . . . (citations omitted)." United States v. Miller, 491 F.2d 638, 649 (5th Cir., 1974). In addition, since the attack raised by the Motion to Dismiss is on the sufficiency of the Indictment, the allegations contained therein should be taken as true. In this connection, Rule 12, Federal Rules of Criminal Procedure, was not intended to provide for "speaking motions" of the type submitted in part herein by the defendant. A different Rule would allow the truth of the allegations contained in the Indictment to be challenged by Affidavit, Exhibit or other factual pleading, thereby turning the pretrial motion into a trial of the general issue. 1 Wright Federal Practice and Procedure, Section 194, pages 412 through 413. Rule 12 motions are not to be converted from Motions to Dismiss into a criminal case analogy of the civil practice Motion for Summary Judgment. In this connection, defendant urges through Affidavits and Exhibits attached to his motion that the individuals named in the Indictment and alleged to be "officers" of the Associated Milk Producers, Inc. (hereafter referred to as AMPI) are not, were not, nor could they have legally been "officers" of AMPI.

This Court has not been cited to nor has it found any case which has held Section 610 unconstitutional on its face. In considering the constitutionality of a Statute, there is a long standing presumption that a Statute enacted by Congress is constitutional and, therefore, such Statute should be construed wherever possible so as to uphold constitutionality. In ruling on a constitutional challenge to Section 610, the District Court in U. S. v. Boyle, 338 F.Supp. 1025, 1032, 1033 (D.D.C.1972), affirmed, 157 U.S.App.D.C. 166, 482 F.2d 755 (1973), cert. den'd, 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d 483 (1973), held that:

". . . The statute is sufficiently narrow on its face and in its application so that it does not unnecessarily infringe on Constitutional rights beyond those where the government has demonstrated a compelling interest in regulating."

While not specifically so stating, the Court was there heeding a long standing admonition of the Supreme Court eloquently summarized by Justice Brennan in N. A. A. C. P. v. Button, 371 U.S. 415, 432-433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). As the Supreme Court observed in Shelton v. Tucker, 364 U.S. 479, 488-489, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960):

"Even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifles fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose . . ."

These general principles are of particular pertinence and applicability when the Statute involved is criminal. Also, in this regard the presumption...