Opinion
Case No. 1:03-CR-212.
September 27, 2004
MEMORANDUM OPINION DENYING DEFENDANTS' MOTION TO DISMISS
On May 27, 2004, a jury found defendant Karen Ouwenga guilty of counts one, two, six, and seven as charged in the indictment and found defendant Andrew Ouwenga guilty of all seven counts. Before this Court is defendants' motion to dismiss the indictment because it fails to allege each element of the crimes charged according to the holding by the Supreme Court in Blakely v. Washington, 124 S. Ct. 2531 (2004). For the following reasons, the Court will deny the motion.
Defendant Karen Ouwenga filed a Motion to Dismiss and a brief in support of that motion on August 20, 2004. On August 27, 2004, defendant Andrew Ouwenga filed a Motion to Dismiss incorporating by reference Karen Ouwenga's Motion and Brief in support of her motion.
DISCUSSION
Defendants have asked the Court to dismiss the indictments against them because the indictment does not allege each element of the crime as required by the decision in Blakely, 124 S. Ct. 2531. Defendants' arguments are wholly without merit. This court has held repeatedly that the indictment against defendants was sufficient. Furthermore, even the most expansive reading of Blakely has nothing to do with the sufficiency of the indictments. In Blakely, the Supreme Court expanded the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000) to cases where a defendant was sentenced to a term of imprisonment within the guidelines based on additional facts found by a judge and not a jury. 124 S. Ct. 2531. The Court held that defendant's sentence violated the Sixth Amendment because the facts supporting the exceptional sentence were neither admitted by defendant nor found by a jury. Id.
The Court has most recently upheld the sufficiency of the indictment in its opinion dated August 27, 2004.
Defendants argument that the indictment was insufficient is meritless. Defendants argue that the indictment was insufficient, based on Blakely, because it did not allege three separate elements of "willful" that defendants would read into the statute. The United States Supreme Court has stated that an indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charge against which he must defend and enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. U.S., 418 U.S. 87, 116 (1974).
Defendants were convicted of violating 26 U.S.C. § 7201. Under § 7201, three elements must be proved in order to sustain a conviction: (1) a tax deficiency, (2) wilfulness and (3) an affirmative act of evasion or attempted evasion. U.S. v. Cor-Bon Custom Bullet Co., 287 F.3d 576 (6th Cir. 2002). Despite defendants' contention, these are the only elements that must be proved in order to support a conviction under § 7201. The Sixth Circuit noted in Cor-Bon, that "convictions are no longer reversed because of minor and technical difficulties which do not prejudice the accused." Cor-Bon at 580 (citing Russell v. U.S., 369 U.S. 749 (1962); see also, Fed.R.Crim.P. 52(a) (stating that "any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded"). "Substantial rights, in turn, are affected only when a defendant shows 'prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to the indictment's sufficiency to bar subsequent prosecutions.'" U.S. v. Hathaway, 798 F.2d 902, 911 (6th Cir. 1986) (quoting U.S. v. Miller, 471 U.S. 130, 138 n. 5 (1986)).
The indictment returned against defendants was sufficient, because it alleged the three elements necessary to support a conviction under § 7201. Despite defendants' contentions, there is no requirement that the government allege "the three part test of willfulness." Even if the indictment were somehow insufficient, as defendants allege, any error would have to be considered harmless. Defendants' substantial rights were not adversely affected, because the indictment clearly stated the crime with which defendants were charged and alleged sufficient facts to allow defendants to defend themselves at trial and to bar subsequent prosecutions. Defendants cannot show they were prejudiced in any way and thus, their argument necessarily fails.
Defendants' argument that alleging "gross receipts" does not allege any specific amount of money is also meritless. In U.S. v. Middleton, 246 F.3d 825, 842 (6th Cir. 2001), the Sixth Circuit rejected a defendant's argument that the indictment was fatally flawed because it failed to state the relevant penalty provisions or the sections of the Code that make a defendant liable for the tax he is accused of attempting to evade. The court noted that the fact that the indictment cited only § 7201 did not limit defendant's ability to know the nature of the accusation against him and to plead an acquittal or conviction in bar of future prosecution for the same offense. See Hamling v. U.S., 418 U.S. 87, 117 (1974). The Ninth Circuit has also held that where the necessary elements of tax evasion are proven, there is no requirement of any specific numerical allegation with respect to tax deficiency. U.S. v. Buckner, 610 F.2d 570, 573 (9th Cir. 1979).
The fact that the government did not allege a specific amount of tax loss is immaterial, because the indictment otherwise put defendants on notice of the charges against them and did not limit defendants' ability to plead an acquittal or conviction in bar of future prosecutions for the same offense. Middleton, 246 F.3d at 842. There is also no requirement that the government allege any specific amount of tax deficiency or tax loss in the indictment. Defendants cite no authority in support of their position other than Blakely, which as already noted, says nothing about the sufficiency of an indictment. See Blakely, 124 S. Ct. 2531.
Defendants' third argument appears to attack the sufficiency of indictment and the sufficiency of the evidence as well. Defendants' argument relies on Blakely for the proposition that counts one and two of the indictment do not allege each element of the offense. As the Court has already mentioned, even an incredibly expansive reading of Blakely does not lead one to conclude that Blakely says anything about the indictment process. Defendants' argument is little more than an attempt to reargue the their motion for Arrest of Judgment, which the Court decided adversely to defendants in its Opinion dated August 27, 2004. Defendants argue that Blakely requires dismissal of count one, but defendants fail to even mention Blakely anywhere in the third section of their brief aside from the very last paragraph. Finally, even if Blakely were somehow applicable to defendants' argument, the Court is satisfied that the indictment alleged all the necessary elements of the crimes charged and was therefore sufficient.
Furthermore, the Court has already found the indictment was sufficient as to all counts in its Opinion, dated August 27, 2004, and the Court is satisfied that the reasoning expressed in that Opinion applies with equal force to defendants' present motion.
CONCLUSION
Defendants motion to dismiss is without merit. Defendants' application of Blakely completely misses the mark, as Blakely says nothing about the sufficiency of indictments. Furthermore, the Court has repeatedly upheld the sufficiency of the indictments against defendants and finds, yet again, no reason to dismiss the case against defendants because of any alleged deficiency in the indictment. Accordingly, defendants' motion to dismiss will be DENIED.An order consistent with this opinion shall follow.
ORDER DENYING DEFENDANTS' MOTION TO DISMISS
In accordance with the Court's Memorandum Opinion of even date,IT IS HEREBY ORDERED that defendants' motion to dismiss is DENIED.