Opinion
2:20-cr-00418 (BRM)
10-02-2023
UNITED STATES OF AMERICA, Plaintiff, v. JOSE TORRES, Defendant.
NOT FOR PUBLICATION
OPINION
MARTINOTTI, DISTRICT JUDGE
Before the Court is Plaintiff United States of America's (the “Government”) motion to strike the words “coercion” and “coerce” from each Count of the Second Superseding Indictment. (ECF No. 357 (“Motion to Strike”).) Defendant Jose Torres (“Defendant”) does not oppose this motion. (See ECF No. 357 at 1.) Having reviewed the Government's submission and having declined to hold oral argument, and being advised Defendant consents to the Government's motion, for the reasons set forth below and for good cause having been shown, the Government's unopposed Motion to Strike (ECF No. 357) is GRANTED.
I. Background
The Court incorporates by reference the underlying facts laid out in the Court's July 8, 2022 Opinion. (ECF No. 162.) Defendant's trial is scheduled to commence on October 3, 2023. (ECF No. 297.)
On October 1, 2023, the Government filed a motion to strike the words “coercion” and “coerce” from each Count of the Second Superseding Indictment (ECF No. 357 (“Motion to Strike”).) The Government attached to this motion a revised version of the Second Superseding Indictment, reflecting this proposed modification.(ECF No. 357-1.) The Government states it consulted with defense counsel who advised Defendant consents to this motion. (ECF No. 357 at 1.) The Government notes the current charges contemplate that Defendant could commit the alleged crimes “by (1) inducing; (2) enticing; (3) persuading or (4) coercing his victims to travel interstate for the purpose of prostitution,” but asserts “[i]f the Court grants this motion, the jury will only be instructed on the first three theories: inducing, enticing or persuading.” (ECF No. 357 at 1.) The Government states this proposed revision thus “removes one way the Defendant could be found guilty: by coercing his victims.” (Id. (emphasis in original).)
The Government also notes it will be submitting updated jury instructions and a neutral statement of the case to reflect this modification. (ECF No. 357 at 2.)
The Government argues the Court should grant its Motion to Strike “in part because the defense consents to the proposed revisions, but also because the Government may elect to narrow a charge in the indictment returned by the grand jury and proceed to trial only on a more limited theory.” (ECF No. 357 at 1 (citing United States v. Miller, 471 U.S. 130 (1985)).)
II. Legal Standard
“[A] motion to strike language from an indictment is committed to the sound discretion of the trial court.” United States v. Schweitzer, No. 03-00451-1, 2004 WL 1535793, at *3 (E.D. Pa. Feb. 26, 2004) (citing United States v. Jordan, 626 F.2d 928, 931 n.1 (D.C. Cir. 1980)). See, e.g., United States v. Maragh, 532 Fed.Appx. 256, 258 n.4 (3d Cir. 2013) (noting “the District Court granted the Government's motion to, among other things, strike the ‘promotion' language from the indictment”); United States v. Hauck, No. 11-00130, 2011 WL 13168137, at *2 (M.D. Pa. Apr. 14, 2011) (granting in part defendant's motion to strike surplusage from the indictment and accordingly striking all references to “ammunition” in certain counts of the indictment).
III. Decision
“An indictment is constructively amended when, in the absence of a formal amendment, the evidence and jury instructions at trial modify essential terms of the charged offense in such a way that there is a substantial likelihood that the jury may have convicted the defendant for an offense differing from” that charged in the indictment. United States v. Daraio, 445 F.3d 253, 25960 (3d Cir. 2006) (footnote omitted). “The key inquiry is whether the defendant was convicted of the same conduct for which he was indicted.” Id. (citation omitted). In other words, “[a]n indictment is constructively amended when trial evidence and jury instructions broaden the possible bases for conviction beyond those charged in the indictment.” United States v. Hornick, 491 Fed.Appx. 277, 286 (3d Cir. 2012) (emphasis added) (citing Miller, 471 U.S. at 138-39). But “[w]hen trial evidence and jury instructions narrow the scope of evidence that may be used to prove an offense charged in the indictment, there is no constructive amendment.” Id. at 286-87 (emphasis added) (citing Miller, 471 U.S. at 138-39). The Supreme Court has “held that where an indictment charges several offenses, or the commission of one offense in several ways, the withdrawal from the jury's consideration of one offense or one alleged method of committing it does not constitute a forbidden amendment of the indictment.” Miller, 471 U.S at 145.
Here, the Government moves to strike the words “coercion” and “coerce” from each Count of the Second Superseding Indictment. (ECF No. 357.) Defendant does not oppose the Government's motion. (See ECF No. 357 at 1.) Additionally, case law permits withdrawing from the jury's consideration one alleged method of committing the charged offense-here, removing one way Defendant could be found guilty, i.e., by coercing his victims-as this is not an impermissible amendment of the indictment. See Miller, 471 U.S. at 145; Hornick, 491 Fed.Appx. at 286-87. This proposed revision, to which Defendant does not object, does not broaden the indictment or charges in any way and does not “modify essential terms of the charged offense in such a way that there is a substantial likelihood that the jury may have convicted the defendant for an offense differing from” that charged in the indictment. See Daraio, 445 F.3d at 259-60. Accordingly, the Government's unopposed Motion to Strike is GRANTED.
IV. Conclusion
For the reasons set forth above, the Government's unopposed Motion to Strike (ECF No. 357) is GRANTED, and the words “coercion” and “coerce” are stricken from each Count of the Second Superseding Indictment. An appropriate Order follows.