Opinion
Case No. 99-40099-01-DES
July 12, 2000
Richard L. Hathaway, Office of U.S. Attorney, Topeka, KS, for plaintiff.
Thomas Kenney, Gregory Hancks, Alan Strasser, Kutak Rock LLP, for defendant.
MEMORANDUM AND ORDER
This matter comes before the court regarding the use of a summary of the second superseding indictment during voir dire. During voir dire, the court does not intend to read the entire second superseding indictment to the jury. At that point, reading the twenty-page second superseding indictment would be a considerable waste of time. Instead, the court has prepared a short summary of the second superseding indictment and the crimes it charges. Courts have upheld the use of indictment summaries and found the use of such summaries beneficial. United States v. Anderson, 174 F.3d 515, 524 (5th Cir. 1999); United States v. Rodriguez-Alvarado, 952 F.2d 586, 590 (1st Cir. 1991) (citing Martin v. United States, 335 F.2d 945, 950 (9th Cir. 1964); United States v. Smith, No. 95-40083, 1996 WL 706827, at *4 (D.Kan. Oct. 31, 1996) ("The court has utilized [summaries] in other cases involving lengthy indictments and found the procedure beneficial to the court, the jury, and the parties.").
A copy of the three-page proposed summary is attached to this order for the parties to review. The court will consider suggestions and objections to the proposed summary at the hearing on the motions in limine on Thursday, July 20, 2000, at 9:30 a.m.
IT IS THEREFORE BY THE COURT ORDERED that the parties are to submit suggestions and objections to the proposed indictment summary at the hearing on the motions in limine on Thursday, July 20, 2000, at 9:30 a.m.
Dated this ________ day of ______, at Topeka, Kansas.
ATTACHMENT
Proposed Summary of the Second Superseding Indictment
On April 12, 2000, the grand jury returned a 49 count second superseding indictment against the defendant, Herbert A. Daniels. A superseding indictment is only a method of accusing a defendant of a crime. It is not evidence of any kind against a defendant and does not create any presumption or permit any inference of guilt. It is a mere charge or accusation — nothing more and nothing less.
The court's final instructions to the jury will contain a complete, verbatim copy of the second superseding indictment. During this state of the proceeding, however, the court will simply read to you a short summary of the crimes charged. Just as the second superseding indictment is not evidence, neither is this summary. The court will read this summary at this time to enable each of you to (1) understand the general nature of the crimes charged; and (2) indicate whether you are familiar with this case or the defendant named in this superseding indictment.
Counts 1 to 30:
18 U.S.C. § 1347 defines the federal crime of health care fraud. 18 U.S.C. § 1347 makes it a crime to knowingly and willfully execute or attempt to execute a scheme or artifice to defraud any health care benefit program in connection with the delivery of and payment for health care benefits, items, or services.
Counts 1 to 30 of the second superseding indictment charge Herbert A. Daniels with knowingly and wilfully executing and attempting to execute a scheme and artifice to defraud several health care benefit programs in connection with the delivery of and payment for numerous health care benefits, items, and services, and resulting in serious bodily injury to Michelle U.
Counts 31 to 40:
18 U.S.C. § 1341 defines the federal crime of mail fraud. 18 U.S.C. § 1341 makes it a crime for a person who devised or intended to devise a scheme or artifice to defraud, for the purpose of executing or attempting to execute such scheme and artifice, to knowingly deposit or cause to be deposited, to be sent and delivered by the U.S. Postal Service or private or commercial interstate carrier, according to the instructions thereon, letters containing any such matter or thing.
Counts 31 to 40 of the second superseding indictment charge Herbert A. Daniels with committing the above-described scheme and artifice to commit health care fraud, and for the purpose of executing and attempting to execute the above-described scheme and artifice, he knowingly deposited or caused to be deposited, to be sent and delivered by the U.S. Postal Service or private or commercial interstate carrier, according to the instructions thereon, letters containing any matter or thing.
Counts 41 to 49:
18 U.S.C. § 1957 defines the federal crime of money laundering. 18 U.S.C. § 1957 makes it a crime to knowingly and wilfully engage or attempt to engage in a monetary transaction in criminally derived property of a value greater than $10,000, which is derived from specified unlawful activity.
Counts 41 to 49 of the second superseding indictment charge Herbert A. Daniels with knowingly and willfully engaging and attempting to engage in a monetary transaction, affecting interstate or foreign commerce, in criminally derived property of a value greater than $10,000, that is, the withdrawal and transfer of funds from a federally insured financial institution, such property having been derived from the specified unlawful activity of mail fraud and health care fraud.