US v. Treadway
| Decision Date | 04 September 1990 |
| Docket Number | Crim. No. A-CR-90-33. |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | UNITED STATES of America, v. Tina Rene TREADWAY. |
Thomas J. Ashcraft, U.S. Atty., Jerry W. Miller, Asst. U.S. Atty., Asheville, N.C., for plaintiff.
Stanley D. Young, Asheville, N.C., for defendant.
THIS MATTER is before the Court on motion of the Defendant to arrest judgment. For the reasons hereinafter stated, that motion will be denied. The motion decided here will be the Court's motion for judgment of acquittal.
The Defendant was brought to trial on May 15, 1990, before a jury in Asheville, North Carolina. The jury returned a verdict of guilty on May 16, 1990, under a bill of indictment filed on March 6, 1990. The Defendant claims that the government indicted her under 18 U.S.C. § 472,1 but proved its case, if at all, under 18 U.S.C. § 510(a)(2).2 The government contends that the bill of indictment properly alleges facts which support conviction of the Defendant under 18 U.S.C. § 510(a)(2).
The dispute developed in the following manner. The bill of indictment read:
A TRUE BILL /s/ Vickie L. Willis FOREMAN /s/Thomas J. Ashcraft THOMAS J. ASHCRAFT UNITED STATES ATTORNEY /s/ Jerry W. Miller JERRY W. MILLER ASSISTANT UNITED STATES ATTORNEY
Before jury selection, the Assistant United States Attorney informed the Court and the Defendant for the first time that the indictment contained a technical error in the citation. It should have been to 18 U.S.C. § 510 rather than 18 U.S.C. § 472. Counsel for the Defendant made no formal objection, but refused the government's request to consent in writing to amendment of the cited charging statute.
The Court became concerned that the language of the indictment charging the attempt to pass a "forged obligation of the United States" (language taken from 18 U.S.C. § 472) constituted an essential element different from an attempt to pass a Treasury check bearing "a falsely made or forged endorsement or signature" (language from 18 U.S.C. § 510(a)(2)). The Assistant United States Attorney and counsel for the Defendant were informed of this concern in camera, but the Defendant again made no objection to going forward with the trial.3
At trial the government introduced evidence tending to show, and from which a reasonable jury could believe beyond a reasonable doubt, that the Defendant attempted to cash a genuine United States Treasury check made out to Phyllis Beard in the amount of $1,381.00, which bore a falsely made or forged endorsement, and that the Defendant did so with an intent to defraud. This evidence would obviously satisfy an indictment phrased in the language of 18 U.S.C. § 510(a)(2). However, no evidence was presented by the government to the effect that the Treasury check in question was anything but a genuine draft issued from the United States Treasury. The question thus arises whether the proof adduced satisfied the "forged obligation of the United States" language used in the indictment.
After the government rested, Defendant made a "motion to dismiss," urging an asserted failure of the government to prove the necessary intent to defraud on the part of the Defendant. Defendant argued moreover that the proof offered by the government "merits a judgment of acquittal." This motion was denied by the Court. Defendant presented her evidence and rested. Defendant did not renew her motion.
At the close of the evidence the Court, faced with the imperative of framing its jury instructions, required the government to elect whether it was pursuing a violation of § 472 or § 510. The government again informed the Court that it sought conviction for a violation of § 510. The Defendant did not object to this classification.
The Court then charged the jury with instructions designed to determine if the jury believed beyond a reasonable doubt that the Defendant had committed acts which would constitute a violation of § 510(a)(2). After deliberations, the jury returned a verdict of guilty. The Court once again informed the government and the Defendant of concern over the validity of the indictment relative to the proof and requested that the issue be addressed in post-trial motions and briefs. On May 23, 1990, the Defendant filed her Motion for Arrest of Judgment, contending that she was not properly indicted for the crime for which she was convicted.
A motion for arrest of judgment should be granted where an indictment fails to charge an offense. Fed.R.Crim.P. 34; Finn v. United States, 256 F.2d 304 (4th Cir.1958). A motion to arrest judgment may be used to achieve little else, however. "A motion for arrest of judgment may be granted only on the grounds that: (1) the indictment or information does not charge an offense; or (2) the court was without jurisdiction of the offense charged." United States v. Hudson, 422 F.Supp. 395, 396, n. 1 (E.D.Pa.1976) (emphasis in original); Fed.R.Crim.P. 34. As the Defendant does not attack this Court's subject matter jurisdiction over either § 472 or § 510 offenses, the only inquiry raised by the Defendant's motion, as designated, is whether the indictment charges an offense.4
The question of whether the indictment charges an offense against the United States is a question of law and may be determined from a reading of the indictment itself. United States v. Rosenson, 291 F.Supp. 867, 871 (E.D.La.1968). A motion to arrest judgment "must be based on a defect apparent upon the face of the indictment itself, and not upon the evidence or its sufficiency." United States v. Kelly, 548 F.Supp. 1130, 1132 (E.D.Pa.1982).
In determining whether the indictment is sufficient on its face, review for an alleged defect is made under a liberal standard. "The practice of fine combing indictments for verbal and technical omissions is no longer countenanced in the courts and ... a substantial compliance with the purpose of an indictment to acquaint the defendant with the offense of which he stands charged, so that he can prepare his defense and protect himself against double jeopardy, is sufficient." Finn, supra, at 307, quoting Hartwell v. United States, 107 F.2d 359, 362 (5th Cir. 1939). Further, "an indictment will be construed more liberally after verdict than before, and every intendment is then indulged in support of the sufficiency." Id.; see also, United States v. Fogel, 901 F.2d 23 (4th Cir.1990). Finally, indictments which are crafted to track the language of a statute5 and which charge each element of an offense are valid. Fogel, at 25; Kelly, at 1132.
In the case presently before the Court the indictment, as filed, alleges on its face all of the elements of an offense against the United States, and, in so doing, tracks the language of a criminal statute.6 It is "a plain, concise and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c)(1). It does "contain the elements of the offense charged and fairly informs a defendant of the charge against which he must defend," in the language of Hamling, supra. Because the indictment, as filed, meets all of the requirements for facial validity, it could not be dismissed under a motion for arrest of judgment. The indictment, as filed, is technically sufficient as a matter of law to charge an offense, albeit an offense of attempting to pass a counterfeit obligation of the United States under 18 U.S.C. § 472. Thus, the motion in arrest of judgment, as such, must be denied.
It is true, as held hereinafter, that the government's indictment language left out an essential element of the offense described in 18 U.S.C. § 510(a)(2), namely the element of a forged endorsement. But this is not the same as failure to charge an offense altogether. It appears that Defendant has simply mislabeled a motion for judgment of acquittal as a motion for arrest of judgment.
Since the offense herein found to have been charged in the indictment is not the one on which the government elected to proceed at trial, and offered evidence to support, the remedy of motion for judgment of acquittal suggests itself, on grounds of fatal variance between indictment and proof.
Procedurally, the Defendant has made no motion for judgment of acquittal, as such. Her motion made at the close of the government's evidence might have been deemed to be such a motion; but if so, it was waived when not thereafter made or renewed at the close of the Defendant's evidence. United States v. Rone, 598 F.2d 564, 572 (9th Cir.1979); Fed.R.Crim.P. 29. However, the Court's expressed concerns over the sufficiency of the evidence relative to the indictment amounted to such a motion made sua sponte on which decision was reserved. Fed.R.Crim.P. 29(a) and 29(b). It will be here decided.
Although the Defendant waived her right to move for a judgment of acquittal, one district court has previously noted that "the Supreme Court has clearly implied that a trial court has the inherent power, if not the duty, to examine the sufficiency of the evidence against a criminal defendant sua sponte." United States v. Broadus, 664 F.Supp. 592, 595 (D.D.C.1987). As noted in Broadus, other circuits have held that a district court has inherent power to enter a judgment of acquittal and may do so at any...
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