Opinion
No. 4:99CR3104.
April 20, 2000.
MEMORANDUM AND ORDER ON STATEMENT OF OBJECTION TO DEFENDANT LAMPMAN'S MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
On or about December 15, 1999, a federal grand jury indicted defendant Lampman. Count I alleges that between on or about December 1995, and December 1999, the defendant willfully, knowingly, and unlawfully combined, conspired, confederated and agreed together with persons known and unknown, to distribute and possess with intent to distribute in violation of 21 U.S.C. § 841 a mixture or substance containing methamphetamine and cocaine, in violation of 21 U.S.C. § 846. In response, the defendant has filed a motion to dismiss Count I of indictment under Rule 7(c) of the Federal Rules of Criminal Procedure and the Fifth Amendment (filing 19). Specifically, the defendant claims that the indictment fails to allege with particularity the facts constituting the offense, and therefore violates his Fifth Amendment protection against answering for offenses "unless on a presentment of indictment of a Grand Jury." The United States Magistrate Judge, David L. Piester, J., considered the defendant's motion to dismiss pursuant to 28 U.S.C. § 636(b)(1)(B) and NELR 72.2, and has filed a report and recommendation (filing 32). Pursuant to NELR 72.4, the defendant has filed a proper objection to the Magistrate Judge's Report and Recommendation (filing 37). For the reasons stated below, I agree with defendant's objections and I find I must dismiss Count I of the indictment.
Standard of Review
Pursuant to NELR 72.4, the defendant has filed a proper objection to the Magistrate Judge's Report and Recommendation that the defendant's motion to dismiss be denied. I shall review the Magistrate Judge's recommendation de novo. NELR 72.4; 28 U.S.C. § 636(b)(1)(B);
Analysis
Indictments serve three constitutional purposes, when sufficient. The Sixth Amendment provides a defendant with the right to notice of the charges against him, and the Fifth Amendment provides both a prohibition against double jeopardy and protection against prosecutions for "infamous" crimes except upon indictment by a grand jury. Russell v. United States, 369 U.S. 749, 760-761, 763-764 (1962). See also 24 Moore's Federal Practice, § 607.02[2][a] (Matthew Bender 3d ed. 1997). The defendant admits that the indictment is sufficient to allege a punishable offense as it tracks the statutory language of § 841 and § 846. The defendant also properly recognizes that the bill of particulars which has been ordered (filing 30) will provide sufficient protection against another prosecution for the same offense.United States v. Wessels, 12 F.3d 746, 750 (8th Cir. 1993), cert. denied, 513 U.S. 831 (1994) ("Likewise, the primary purpose of a bill of particulars is to inform the defendant of the nature of the charges against him and to prevent or minimize the element of surprise at trial"). The defendant argues eloquently, however, that it is impossible to identify the alleged conspiracy contained in the indictment, and therefore it is impossible to determine what was in the mind of the grand jury when it returned the indictment. The defendant argues that this vagueness violates his Fifth Amendment right to be tried only for offenses on an indictment of a grand jury. In other words, the defendant asserts that the prosecution could base its case on facts not presented to or considered by the grand jury, and still fall within the broad language of the indictment.
The defendant relies heavily on Russell v. United States, 369 U.S. 749 (1962). In that case, the defendants were convicted of violating 2 U.S.C. § 192, which was a misdemeanor. However, 2 U.S.C. § 194 expressly provides that no one could be prosecuted under 2 U.S.C. § 192 except upon indictment by a grand jury. The indictments in that case appeared to track with the statutory language and specified the questions that the defendants refused to answer before a congressional subcommittee. Russell at 752, n. 4. However, the indictment failed to indicate the subject under investigation at the time of the interrogation of the defendant.Id. at 753. The Court found the indictment deficient, reversing the defendants' convictions. Id. at 771-72.
The defendant draws an analogy between his case and Russell, arguing that like the Russell defendants, he cannot be deprived "of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him." Id. at 770. The defendant asserts that the absence of named co-conspirators in his indictment renders his indictment deficient, just as the Russell indictment was deficient for failing to specify the subject under inquiry.
The defendant argues cogently, but his position is not unassailable. In Russell, the Court found that the subject under investigation was critical to conviction, because the specific questions asked of defendants (which were in the indictment) had to be pertinent to the question under inquiry (which was not in the indictment) to support conviction. A person who refuses to answer an irrelevant question is not subject to a penalty under 2 U.S.C. § 192. Id. at 757. It was also noted that it is almost impossible for the federal courts to determine subsequently the subject under inquiry in this type of case. Id. at 759-60. From this point, the Court embarked on its discussion of the role of the grand jury. Id. at 760-772.
Russell effectively holds that a sufficient indictment under 2 U.S.C. § 192 must specifically state the question under inquiry as found by the grand jury. Id. at 771-772. It does not conflict with the test of sufficiency of indictments articulated in United States v. Wessels, 12 F.3d 746, 750 (8th Cir. 1993): "An indictment is legally sufficient on its face if it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution." The subject under investigation is an essential fact in a 2 U.S.C. § 192 charge, and this was missing from the Russell indictments.
The question presented here then becomes whether the names of Lampman's alleged co-conspirators are essential facts for the offense charged in Count I. Fed.R.Crim.P. 7(c)(1). The defendant's complaint that his indictment fails to list his co-conspirators is well taken, but it is precisely this sort of problem that a bill of particulars is capable of curing. While it is clear that a bill of particulars cannot cure a defective indictment, Russell at 779, the defendant presents no authority that merely failing to name co-conspirators renders an indictment defective. There is some authority for the proposition that the absence of named co-conspirators does not render an indictment defective, at least when names of alleged co-conspirators are provided to the defendant prior to trial. U.S. v. Gaytan, 74 F.3d 545, 551-552 (5th Cir. 1996) (rejecting defendants' argument that conspiracy counts of indictment without allegations of times, dates, places, and persons involved are fatal to the indictment). A bill of particulars should be furnished to provide clearer notice of a conspiracy charged when the indictment and other information available to the defendant are insufficiently specific to put the defendant on notice of the crimes charged. U.S. v. Cutolo, 861 F. Supp. 1142, 1149 (E.D.N.Y. 1994). Here, a bill of particulars has been ordered for precisely the purposes that the defendant requested: he will be provided with the names of all co-conspirators, in addition to other information granted in the magistrate judge's order (filing 30). The bill of particulars also provides the defendant with a launching pad to challenge the prosecution's case at trial to the extent that the case varies from the bill of particulars, since the government is not permitted to surprise a defendant by presenting information that differs materially from that contained in the bill of particulars.Wessels at 750. The claimed defect in the indictment in the present case also significantly differs from the defect in theRussell indictments, in that the defendant here only claims that the indictment fails to specifically identify the conspiracy charged, not that the indictment fails to provide sufficient information to determine whether a crime in fact occurred, as inRussell. Lampman has admitted that the indictment in the present matter is sufficient to allege a punishable offense.
Nevertheless, none of these observations directly respond to the defendant's argument. The Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger. . . ." It is undisputed that this right applies in the present case. The fact that a bill of particulars has been ordered does indeed insure that the defendant has notice of the specific acts comprising the charges against him and provides protection against subsequent prosecutions for the same offense. However, a bill of particulars does not ensure that the grand jury has indicted the defendant for the acts described in the bill, when the indictment is so vague that virtually any conspiracy could fit under the indictment as long as it meets the indictment's time constraints. In this case, the bill of particulars has been ordered on March 28 and has not yet been filed. Since the indictment, which is dated December 15, 1999, fails specifically to identify the conspiracy in any way other than to limit its operation to a four-year span between December of 1995 and December of 1999, and to name the drugs involved, it is certainly possible that during the four months since the indictment, information which had not been presented to the grand jury came to light during the government's investigation. The government could conceivably choose to prosecute the defendant based on information that the grand jury never considered, for a conspiracy that the grand jury never heard about. The vagueness of the indictment could place the defendant in the position of answering for crimes for which he has not been indicted, even if the government's case follows its bill of particulars to the letter. This would amount to an impermissible violation of defendant's right under the Fifth Amendment to be held to answer only for offenses charged by a grand jury.
The indictment in this case is not specific enough in its presentation of essential facts as required by Fed.R.Crim.P. 7(c)(1) to prevent the court from having to guess what was in the mind of the grand jury when it returned the indictment, which renders impossible any subsequent attempt by defendant to assert his Fifth Amendment right to answer only to charges presented by a grand jury indictment. Russell at 770.
IT IS THEREFORE ORDERED that the defendant's motion to dismiss Count I of the indictment on the grounds that it fails to guarantee that the defendant will not be held to answer for an offense unless on a presentment or indictment of a grand jury is granted, filing 19.