United States v. Trinastich

• Decision Date: 09 February 1973
• Docket Number: No. 24028-1.,24028-1.
• Citation: 354 F. Supp. 54
• Parties: UNITED STATES of America, Plaintiff, v. Michael Eugene TRINASTICH, Defendant.
• Court: U.S. District Court — Western District of Missouri

354 F. Supp. 54

UNITED STATES of America, Plaintiff, v. Michael Eugene TRINASTICH, Defendant.

No. 24028-1.

United States District Court, W. D. Missouri, W. D.

February 9, 1973.

William A. Kitchen, Asst. U. S. Atty., Kansas City, Mo., for plaintiff.

Kenneth West, James A. Polsinelli, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER DISMISSING INDICTMENT WITHOUT PREJUDICE

JOHN W. OLIVER, District Judge.

I.

This case, a prosecution for an alleged violation of Section 1201, Title 18, United States Code, would have been reached for trial on the regular Division I-Division II docket on February 5, 1973. On Friday, February 2, 1973, counsel for the government thoughtfully advised the Court that he anticipated that several difficult questions of evidence were likely to arise during the anticipated trial. He made inquiry whether, in accordance with the Court's usual practice, a conference with counsel for both sides should be scheduled to discuss those questions.

A conference with counsel for the parties was accordingly convened at 2:00 p.m. on Friday, February 2, 1973, for the purpose stated. At that conference, the Court's attention was for the first time directed to the fact that the indictment in this case alleged in conjunctive language an alleged violation of Section 1201, Title 18, United States Code, which the Congress stated in disjunctive language.

Specifically, the government's "plain, concise and definite written statement of the essential facts constituting the offense charged," as required by Rule 7(c) of the Rules of Criminal Procedure, alleged only that the defendant had willfully and knowingly transported a named person in interstate commerce "who had theretofore been unlawfully seized, confined, inveigled, decoyed, kidnapped, carried away and held by the defendant for reward or otherwise, that is for the purpose of sexual gratification, all in violation of Section 1201, Title 18, United States Code."

Section 1201, Title 18, United States Code, prohibits, in disjunctive language, the interstate transportation of a person who has been "seized, confined, inveigled, decoyed, kidnapped, abducted or carried away." All parties recognized, as they must, that the same person can not, for example, be both "decoyed" and "kidnapped" in interstate commerce, anymore than the same piece of personal property may be both "embezzled" and "stolen" from interstate commerce. Although the legislative history is vague, it must be assumed that a person who is "decoyed" across a state line is one who has been induced to do so voluntarily because of some sort of false representation; a person who is "kidnapped" is taken across the state line by force and against his will.

The additional question of whether the holding of a person for "the purpose of sexual gratification," as alleged in the indictment, stated an offense within the meaning of Section 1201's prohibition against interstate transportation of persons "for ransom or reward or otherwise" also arose and was discussed at the conference. The Court indicated that the indictment was not faulty in that regard in light of United States v. Healy, 376 U.S. 75, 81, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964), which expressly recognized the earlier authority of Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522 (1936). See also Bailey v. United States (10th Cir., 1969) 410 F.2d 1209, 1217, to which the government directed our attention in regard to that question.

It was in connection with the discussion of the "or otherwise" question, however, that the Court learned for the first time that the State of Kansas has also indicted the defendant for rape. That case, of course, directly involves the same factual circumstances which allegedly constitute the federal offense for which he is charged in this case. We were advised at the conference that the trial of the State rape charge has been specially set for trial and will be tried in the District Court of Johnson County, Kansas, later this month.

II.

The question of whether defendant's motion to dismiss for failure to comply with Rule 7(c) should be granted is not affected by the circumstances relating to the overlapping State and federal prosecutions. It is appropriate, however, that those circumstances not be ignored because they may be relevant in connection with any future prosecution which the government may wish to pursue after the trial of the State rape charge in the District Court of Johnson County, Kansas, later this month. We shall first state our reasons why defendant's motion to dismiss should be granted without prejudice.

United States v. Frank (W.D.Mo., 1972) 350 F.Supp. 489, upon which defendant relies, shows that for now over two years we have indicated our agreement with what the Court of Appeals panel, which included the present Chief Justice of the United States, said in Pino v. United States, 125 U.S.App.D.C. 225, 370 F.2d 247, 249, in regard to the "unaccountable practice" of using conjunctive language in an indictment which attempts to charge a violation of a statute which is couched in disjunctive language. Pino flatly stated that "indictments should not be prepared in this fashion in the first instance" and that as early as 1965 in Jackson v. United States (1965) 121 U.S.App.D.C. 160, 348 F.2d 772, it had "referred to this use of the conjunctive in the indictment as confusing." The Court of Appeals, of course, could not reach the violation of Rule 7(c) question because the defendant in that case did not make any pretrial objection to the indictment, as contemplated by Rule 12(b)(2). Pino accordingly did not reverse on that ground because the defendant's objection "was clearly untimely under Rule 12(b)(2), Fed.R.Crim.P."

The attack on the indictment involved in the Frank case, like the attack made in Pino, was not until after trial. We reluctantly concluded that in a procedural situation involving a post-trial attack upon an indictment, numerous Eighth Circuit cases such as Rimerman v. United States (8th Cir., 1967) 374 F.2d 251, required that we not grant a new trial in cases in which the defendant had not filed a timely pretrial motion to dismiss for an alleged violation of Rule 7(c).

Neither Rimerman nor any other case with which we are familiar remotely suggests that the vague post-conviction approval of the form of an indictment drawn under 19th Century rules of criminal pleading apparently approved in the leading case of Crain v. United States, 162 U.S. 625, 16 S.Ct. 952, 40 L.Ed. 1097 (1896), prohibits this Court from granting a pretrial motion to dismiss an indictment which fails to comply with the explicit requirements of Rule 7(c). Such a motion has been filed in this case. We find and conclude that the indictment in this case does not comply with the plain requirements of Rule 7(c) and that the pending pretrial motion should be granted to avoid the obvious confusion which would be injected into the trial of this case should the motion be denied.

8 Moore's Federal Practice, ¶ 7.04, p. 7-14, commenting on the purpose of Rule 7(c)'s requirement that the indictment shall consist of "a plain, concise, and definite written statement of the essential facts constituting the offense charged," stated that "the draftsmen of the Rules were much influenced by `horrible' examples of prolix indictments, and the desire for simplification and elimination of technicalities is reflected in the Official Forms." Later in the same section, attention was directed to the fact that "Rule 7(c) expressly provides that it may be alleged in a single count that the means by which defendant committed the offense are unknown, or that he committed it by one or more specified means." (Id. p. 7-21, emphasis ours).

Professor Moore reiterated throughout his discussion of Rule 7(c) that "ordinarily it is sufficient if the indictment or information follows the language of the statute creating the offense." (Id. p. 7-16). He quoted with approval the conclusion stated in Finn v. United States (4th Cir., 1958) 256 F.2d 304, at 306, that the government in that case had "failed to observe the better and easier practice, generally followed by careful prosecutors, of charging the offense in the language of the statute."

Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), which reversed a conviction affirmed in the Court of Appeals, is one of the few cases in which the Supreme Court had occasion to discuss Rule 7(c). That case pointed out that until 1872, when the Congress enacted what ultimately became 18 U.S.C. (1940 ed.) § 556, federal courts were guided in their judgments concerning the sufficiency of grand jury indictments by the common law. Russell teaches that "any discussion of the purpose served by a grand jury indictment in the administration of federal criminal law must begin with the Fifth and Sixth Amendments to the Constitution." (Id. at 760, 82 S.Ct. at 1045). The Supreme Court directed attention to the holding of United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588, and quoted with approval its conclusion that "it is an elemental principle of criminal pleading that an indictment must state the...