Opinion
Criminal Action No. 00-171 Section "K"(3)
September 22, 2000
A Combined Motion and Memorandum in Support to Strike Paragraph 15 of the Indictment was filed by John Martha Herring and taken on the papers. The Court has reviewed the pleadings, memoranda and the relevant law and finds no merit in the motion.
Defendants have been charged in a 42 page indictment with Conspiracy, Embezzlement and Theft from Employee Pension Plan, Health Care Fraud, Bankruptcy Fraud and Asset Forfeiture. Defendants by this motion seek to strike Paragraph 15 of the indictment because it allegedly violates Federal Rules of Criminal Procedure 7(c)(1) in that this paragraph does not contain "essential facts constituting the offense charged." Rather, they contend that it contains an "interpretation of law and opinion of legislative intent," and thus should be stricken in accordance with Rule 7(d). Their argument rests on the contention that Paragraph 15 states what the law is and what Congress' intent was in enacting the law, rather than being an "allegation of fact" or a statement of law. Relying on Marbury v. Madison, 5 U.S. 137 (1803), defendants contend that Paragraph 15 is an attempt by the executive branch through the United States Attorney to usurp Article III powers to interpret Congressional Acts.
Paragraph 15 of the indictment states in its entirety, "The Employee Retirement Income Security Act of 1974 (ERISA), Title 29. United States Code, Section 10001, et seq., was enacted to protect the interests of participants and their beneficiaries in private-sector employee benefit plans."
The Government responded that Rule 7(c)(1) was introduced as a means of protecting a defendant against immaterial or irrelevant allegations in an indictment which may be prejudicial, and that Defendants have not offered any allegations of such. The Court agrees with this perception. The Government is not required to limit the indictment to those allegations which are indispensable to proof of a crime. United States v. Goldstein, 342 F. Supp.. 661 (E.D.N.Y. 1972). Furthermore, words that are employed in an indictment that are descriptive of that which is legally essential to a charge in the indictment cannot be stricken out as surplusage. United States v. Rosenson, 291 F. Supp.. 867 (E.D.La. 1968), aff'd, 417 F.2d 629, cert. denied, 90 S.Ct. 992, rehearing denied, 90 S.Ct. 1349 (1970).
In evaluating the sufficiency of an indictment, common sense and reason prevail over technicalities. Parsons v. U.S., 189 F.2d 252, 253 (5th Cir. 1951).
The standard for striking surplusage from an indictment is not easily met. It is held that a motion to strike surplusage should be granted only if it is clear that the allegations are not relevant to the charge and are inflammatory and prejudicial. This is a rather exacting standard and only rarely has surplusage been ordered stricken. United States v. Wecker, 620 F. Supp. 1002, 1006 (U.S.D.C.D. Del. 1985).Id. Paragraph 15 is simply an extraction from the section entitled "Congressional findings and declaration of policy" ERISA, 29 U.S.C. § 1001. There is nothing inflammatory or prejudicial in the language. Furthermore, any argument that the language in paragraph 15 of the indictment encroaches on the separation of powers is belied by this fact that it is the codification of Congress's intent and any court would have to take judicial notice of that intent as stated. Accordingly,
IT IS ORDERED that the Combined Motion and Memorandum in Support to Strike Paragraph 15 of the Indictment (Doc. 19) is DENIED.