Opinion
CASE NO. 10-60194-CR-COHN/SELTZER.
November 29, 2010
ORDER GRANTING GOVERNMENT'S MOTION TO STRIKE SUBPARAGRAPH (c) OF PARAGRAPH 15 OF COUNT ONE OF THE INDICTMENT
THIS CAUSE is before the Court on the Government's Motion to Strike Subparagraph (c) of Paragraph 15 of the Indictment [DE 450]. The Court has considered the motion, Mr. Stoll's response [DE 506], the Government's reply [DE 532], and is otherwise advised in the premises.
The Government asks this Court to strike an object of a multi-object conspiracy Count One. The Government maintains that subparagraph (c) of paragraph 15, which alleges making a false statement on a HUD1, was unintentionally included. Since the Government seeks to narrow, not widen the issues the Defendant is called upon to answer, the Court will grant the Government's motion. United States v. Thomas, 398 F.2d 531 (5th Cir. 1968). The Eleventh Circuit in United States v. Diaz, 690 F.2d 1352, 1356 (11th Cir. 1982) held:
An indictment may charge a conspiracy with more than one distinct substantive offense, United States v. Avila-Dominguez, 610 F.2d 1266, 1270 (5th Cir.), cert. denied, 449 U.S. 887 (1980); Overstreet v. United States, 321 F.2d 459, 461 (5th Cir. 1963), cert. denied, 376 U.S. 919 (1964), and the withdrawal of distinct portions of such a conspiracy charge from jury consideration is permissible, Salinger v. United States, 272 U.S. 542 (1926), if the effect is to narrow the issues a defendant is called on to meet. Thomas v. United States, 398 F.2d 531 (5th Cir. 1967). The Supreme Court has held that withdrawing a part of a charge from the consideration of the jury does not work an amendment of the indictment, provided nothing is thereby added to the indictment. Salinger v. United States, 272 U.S. at 548-49; Overstreet, 321 F.2d at 461; see 1 C. Wright A. Miller, Federal Practice and Procedure, § 127 at 274-75 (1969). Such was the case here.
Accordingly, it is thereupon
ORDERED AND ADJUDGED that the Government's Motion to Strike Subparagraph (c) of Paragraph 15 of the Indictment [DE 450] is hereby GRANTED. DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, on this 29th day of November, 2010.