United States v. Smallwood

• Decision Date: 15 July 2011
• Docket Number: Criminal No. 3:09-CR-249-D(07)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ALICIA CARGILL SMALLWOOD, Defendant.
• Court: U.S. District Court — Northern District of Texas

UNITED STATES OF AMERICA, Plaintiff, v. ALICIA CARGILL SMALLWOOD, Defendant.

Criminal No. 3:09-CR-249-D(07)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

Dated: July 15, 2011.

MEMORANDUM OPINIONAND ORDER

Defendant Alicia Cargill Smallwood ("Smallwood") has filed several motions challenging the third superseding indictment ("indictment"). For the reasons that follow, the court denies the motions.

I

Smallwood is charged in the indictment with two offenses: in count one with conspiracy to commit wire and mail fraud, in violation of18 U.S.C. § 1349; and in count two with fraud and related activity in connection with electronic mail, in violation of 18 U.S.C. § 1037(a)(2) and (b)(2)(C).¹ The indictment also contains a forfeiture notice in which Smallwood's assets are alleged to be subject to forfeiture upon a conviction of either of the counts in which she is charged. Smallwood has filed three motions seeking relief with respect to the indictment: a motion to dismiss the indictment on grounds of duplicity andmultiplicity; a motion to dismiss the indictment on the grounds that it is not "a plain, concise, and definite written statement of the essential facts constituting the offense charged" and is consequently vague and overly broad and fails to state an offense and, alternatively, to strike surplusage in the indictment; and a motion to dismiss count two. The government opposes the motions.²

IILegal Principles Regarding Indictments

Because Smallwood's motions challenge the sufficiency of the indictment, the court begins by reviewing pertinent legal principles.

Under Fed. R. Crim. P. 7(c)(1), an indictment "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." When applying this standard, common sense should prevail over technicalities. See 1 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 123, at 522-23 (4th ed. 2008). In each count, the indictment "must give the official or customary citation of the statute, rule, regulation, or other provision of law that thedefendant is alleged to have violated." Rule 7(c)(1). "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." Id.

Rule 7 put an end to "the rules of technical and formalized pleading which had characterized an earlier era." The complex requirements of common law criminal pleading are now obsolete, harmless imperfections of form are now disregarded, and the fine detail previously demanded at the pleading stage is not longer required.

1 Wright & Miller, supra, § 123, at 521-22 (quoting Russell v. United States, 369 U.S. 749, 762 (1962)). Rule 7(c)(1) "is designed to simplify indictments by eliminating unnecessary phraseology which needlessly burdened many indictments under the former practice." United States v. Debrow, 203 F.2d 699, 701-02 (5th Cir.), rev'd on other grounds, 346 U.S. 374 (1953); see also United States v. Smith, 228 F. Supp. 345, 347 (E.D. La. 1964) ("To require an[] extensive recitation of facts in the indictment itself would be favoring form over substance and would ignore both the wording of Rule 7(c) and the intent to simplify the form of indictment expressed by the Advisory Committee on Federal Criminal Rules.").

"Rule 7 eliminates the necessity for the inclusion in an indictment of many of the technical and prolix averments which were required at common law[.]" United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (en banc). The drafters of Rule 7(c) aimed to prevent "horrible examples of prolix indictments," to allow simpler indictments, and to eliminate technicalities in the official forms previously required. United States v. Trinastich, 354 F. Supp. 54, 57 (W.D. Mo. 1973) (internal quotation marks and citation omitted); see alsoUnited States v. Carrier, 672 F.2d 300, 303 (2d Cir. 1982) (noting that Rule 7(c) was designed to eliminate prolix indictments and to encourage simplicity in procedure); United States v. Linderman, 20 F.R.D. 459, 460 (D. Mont. 1957) (explaining that the Rule 7(c) requirements for an indictment "constitute[] a compromise between the old prolix document and the extremely short form" (internal quotation marks and citation omitted)). One matter of concern presented by a verbose and unnecessarily long indictment is that its length may make it impossible or extremely difficult for the defendant to decipher the charges against her or to assert a bar to subsequent prosecutions for the same offense. See, e.g., United States v. Strauss, 285 F.2d 953, 955 (5th Cir. 1960) (affirming dismissal of indictment where it was impossible for court to discover in an extremely verbose indictment a plain, concise, and definite written statement of the essential facts constituting the offense charged); United States v. Sanders, 266 F. Supp. 615, 621 (W.D. La. 1967) (addressing motion for severance and noting from facts stated in indictment and government brief that it would be extremely difficult or impossible for defendants to separate proofs as to each count of 50-page prolix and redundant indictment as to each defendant); United States v. Heinze, 361 F. Supp. 46, 56 (D. Del. 1973) (holding prolix indictment to be so vague, indefinite, and unclear that it was fatally defective under Rule 7(c) because it failed to inform defendant of the nature and cause of the accusation against him and because it was too unclear to provide defendant protection against being put in jeopardy twice for same offense). Generally "[a]n indictment that is otherwise good will rarely fail because the drafter was too wordy or long winded."

1 Wright & Miller, supra, § 125, at 571.³

But even if an indictment is lengthy and needlessly verbose, Rule 7(c) does not mandate that it be dismissed. Instead, the defendant's proper recourse is to file a motion to strike surplusage from the indictment. See, e.g., United States v. McDermot, 58 F.3d 636, at *5 (5th Cir. 1995) (unpublished opinion) (affirming denial of motion to dismiss indictment as needlessly wordy because defendant cited no authority to support argument that needlessly verbose indictment required dismissal and in light of "ample authority clarifying that a defendant's remedy in the face of a needlessly wordy indictment is a motion to strike surplusage under Rule 7(d)." (citation omitted)); United States v. N.Y. Great Atl. & Pac. Tea Co., 137 F.2d 459, 462-63, 465 (5th Cir. 1943) (decided prior to Rule 7(c)) (reversing dismissal of indictment because, although indictment was too wordy to be a good pleading, it "has the fault not of vagueness and indefiniteness, but of a too detailed pleading of evidence," which did not affect validity of indictment); United States v. Rehak, 2008 WL 2828886, at *8 (D. Minn. July 21, 2008) (denying motion to strike surplusage and noting that "while such verbose indictments are not the norm, the Court cannot say they are unheard of, especially in cases alleging a fraudulent scheme."); United States v. Pilnick, 267 F. Supp. 791, 795 (S.D.N.Y. 1967) (holding that although indictment was wordy and hardly a modelpleading, it was sufficient to withstand motion to dismiss because conspiracy and scheme charged were sufficiently set forth to apprise defendant of crimes charged and enable him to assert bar to subsequent prosecutions for same offense).

"The foundational requirement[] of the indictment or information is that it give the defendant fair notice of the charges against him, which means in part that every element of the charged offenses must be stated." 1 Wright & Miller, supra, § 123, at 523. Each count must be evaluated separately. Id. at 524. The defendant is guaranteed by the Sixth Amendment "to be informed of the nature and cause of the accusation" against her. 1 Wright & Miller, supra, § 125, at 542. An indictment has two purposes. First, it "contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend." Id.; see also United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007) (noting that one "constitutional requirement[] for an indictment [is] that it contain[] the elements of the offense charged and fairly inform[] a defendant of the charge against which he must defend"). Second, the indictment "enables [a defendant] to plead an acquittal or conviction in bar of future prosecutions for the same offense." 1 Wright & Miller, supra, § 125, at 542; see also Resendiz-Ponce, 549 U.S. at 108 (noting that second constitutional requirement is that indictment "enable[] [the defendant] to plead an acquittal or conviction in bar of future prosecutions for the same offense."). "[T]o be sufficient, an indictment must . . . allege[] every element of the crime charged and in such a way as to enable the accused to prepare his defense and to allow the accused to invoke the double jeopardy clause in a subsequent proceeding." United States v. Ramos, 537 F.3d 439, 459 (5th Cir. 2008).

To determine whether an indictment serves these purposes and is therefore sufficient, the court should consider the indictment in its entirety and be guided by common sense and practical considerations. See 1 Wright & Miller, supra, § 125, at 545. The indictment must allege every essential element of the offense charged, and the allegations must be direct rather than left to inference. See id. at 546-47. An indictment that alleges only the statutory language of the offense charged is "permissible only if either the language itself gives sufficient notice to the accused, or if the language is accompanied by 'such a statement of the facts and circumstances as will inform the accused of the specific offen[s]e.'" Id. at 549 (quoting Hamling v. United States, 418 U.S. 87, 117-18 (1974)).

In sum, "[a]n indictment adequately charges an offense if it (1) enumerates each prima facie...