United States District Court, M.D. Tennessee, Nashville Division
H. SHARP UNITED STATES DISTRICT JUDGE.
case that has already been tried once, with a retrial
scheduled to begin next week and a final pretrial conference
set for tomorrow, the parties should be well on the way
towards final preparation. A number of recent filings,
however, suggest otherwise, and some posturing as well.
began with the Government's February 16, 2017 Motion to
Ascertain Status (Docket No. 164), which was promptly
disposed of the next day because the Court had granted
Defendant's request for a new trial at the conclusion of
a hearing held on December 13, 2016. This was followed on
February 24, 2017 by a Motion to Strike Surplusage in the
Indictment, through which the Government sought to eliminate
language from the Counts on which Defendant was acquitted,
but which also stated that the Government “would be
willing to consent to a short adjournment of the trial date
if the defendant requests one for scheduling purposes.”
(Docket No. 166 at 6). Then, on February 28, 2017 - just a
week before trial - Defendant filed a “Response in
Opposition to the Government Motion to Strike Surplusage in
the Indictment, ” so that this case “can proceed
to trial as scheduled, ” (Docket No. 177 at 1), yet, at
the same time, he filed two separate Motions to Dismiss
(Docket Nos. 178 & 179), the granting of either of which
would result in no trial at all.
was indicted by a federal grand jury on eight counts: Count
One charged him with conspiracy to commit mail fraud; Count
Two charged him with mail fraud; Count Three charged him with
aggravated identity theft; and Counts Four through Eight
charged him with bank fraud. The jury returned a verdict on
December 14, 2015, acquitting him of the charges contained in
the first three counts, but convicting him on the remaining
counts. On August 22, 2016, the Court entered an Order
(Docket No. 158) and an accompanying Memorandum (Docket No.
157) denying Defendant's Motion for Judgment of Acquittal
(Docket No. 137) and deferring ruling on his Motion for New
Trial (Docket No. 136) pending a hearing. At the conclusion
of the December 13, 2016 hearing, the Court granted
Defendant's request for a new trial on Counts Four
through Eight, and set the matter for trial on March 7, 2017.
Government did not appeal this Court's ruling, nor did it
seek a Superceding Indictment that would have eliminated the
acquitted counts. Instead, it filed the Motion to Strike
Motion, the Government moves to strike “the language of
Count One, Count Two, and Count Three; the first paragraph of
Counts Four through Eight; and paragraphs 2-4 of the section
labeled Forfeiture Allegations.” (Docket No. 166 at 1).
Even though the Government claims that “it would be
permissible to retry the case without altering the indictment
at all, and simply including a jury instruction telling the
jury to ignore the language in Counts One, Two, and Three,
” it asserts that “[s]triking this language from
the indictment would not create an impermissible variance or
otherwise contravene [Defendant's] rights.”
(Id. at 2 & 4). As for how this can best be
accomplished, the Government submits
that the Court has discretion to determine how to implement
the change logistically. That is, the Court could choose
(after hearing from the defendant) to: (1) redact the
language associated with the counts of acquittal and send a
redacted version back to the jury room; (2) send to the jury
room a “clean” version of the indictment (which
the government could provide) containing only the language
associated with the counts of conviction; or (3) read the
non-stricken language to the jury, while declining to send a
copy of the indictment back to the jury room.
(Id. at 5).
Defendant appears to oppose the Government's proposal in
its entirety, this is not certain. He writes:
To be clear, the defense does not oppose the government
motion “to strike surplusage” in the sense that
the Defendant seeks to proceed to trial on the indictment in
its current form. Nor does Defendant oppose the motion, at
this time, in the sense that the defense seeks to continue
the trial so the government can do what it should have done
months ago, to wit, seek a superseding indictment. Rather,
the defense opposes the government motion in the sense that
what the government seeks is a literal, pre-trial amendment
to the indictment returned by a grand jury, which is unlawful
(Docket No. 171 at 1).
Government's request is unlawful, Defendant claims,
because the Government did not do what it should have done
long ago - seek a Superseding Indictment. Instead, it now
seems to be attempting to utilize a Rule, viz Fed.
R. Crim. P. 7 (d), which allows only a defendant to request
the striking of surplus from an Indictment, and it seemingly
invites the Court to misapply another Rule, viz Fed.
R. 7(c), which allows a court only to it amend an
information. In short, Defendant argues that “[o]nce an
indictment is filed, the Rule provides no mechanism for the
prosecution or court to tamper with the indictment.”
(Id. at 3).
Government's request is unconstitutional, Defendant
claims, because “‘[t]he Fifth Amendment
guarantees that an accused be tried only on those offenses
presented in an indictment and returned by a grand jury,
'” yet, through its Motion to Strike, the
Government seeks a “literal amendment to the terms of
the indictment[, ] which is . . . ‘considered per se
prejudicial and warrants reversal of a
conviction.'” (Id. at 5) (citation
omitted). Defendant contends that “[t]he timely filing
of a superseding indictment, ” on the other hand
“would have ensured ‘fair notice of the
charges', would have allowed fair litigation of double
jeopardy issues (both as to issues at the retrial and for any
future prosecutions), and would have allowed the Defendant to
be tried only upon charges returned by a grand jury
independent of the courts and prosecution.”
(Id. at 9).
for Defendant argues that he “has diligently sought a
case in which the Supreme Court or Sixth Circuit approved of
such a literal pre-trial amendment to an indictment after an
acquittal on some counts, with a new trial ordered on others,
but has been unable to find a case exactly on point.”
(Docket No. 170 at 5). Maybe so, but “[n]umerous
decisions have specifically recognized the power of the
district court to redact from an indictment charges which the
government has resolved not to prosecute, . . . and
superfluous language which unfairly prejudices the
accused.” United States v. Vastola, 899 F.2d
211, 231 (3rd Cir.) (judgment vacated on other
grounds, 497 U.S. 1001 (1990)) (collecting cases). Indeed,
while an indictment “may not . . . be so severely
redacted that any of the elements of the offense are
expunged, ” redaction “is permissible so long as
the elements of the offense charged are fully and clearly set
out in what remains.” United States v.
Doherty, 867 F.2d 47, 55 (1st Cir.1989)
(collecting cases); see also United States v. Cruz,
508 F.App'x 890, 897 (11th Cir. 2013) (citation omitted)
(stating that a “court may redact an indictment
‘so long as the elements of the offense charged are
fully and clearly set out in what remains'”).
need not be limited to just a couple of words or a phrase,
such as the elimination of the nature of a prior conviction
pursuant to Old Chief v. United States, 519 U.S.
172, 190 (1997). For example, in United States v.
Miller, 471 U.S. 130 (1985) defendant was charged with
three counts of mail fraud, but the government moved to
dismiss the third count and the remaining two were tried to
the jury. Upon conviction, defendant appealed to the Ninth
Circuit, which found a fatal variance between the crimes
charged and the counts of conviction. The Supreme Court
reversed and, in doing so, observed:
The Court has long recognized that an indictment may charge
numerous offenses or the commission of any one offense in
several ways. As long as the crime and the elements of the
offense that sustain the conviction are fully and clearly set
out in the indictment, the right to a grand jury is not
normally violated by the fact that the indictment alleges
more crimes or other means of committing the same crime. . .
. Indeed, a number of longstanding doctrines of criminal
procedure are premised on the notion that each offense whose
elements are fully set out in an indictment can independently
sustain a conviction. . . .
A review of prior cases allowing convictions to stand in the
face of variances between the indictment and proof makes the
Court of Appeals' error clear. Convictions generally have
been sustained as long as the proof upon which they are based
corresponds to an offense that was clearly set out in the
indictment. A part of the indictment unnecessary to and
independent of the allegations of the offense proved may
normally be treated as “a useless averment” that
“may be ignored.”
Id. at 136.
true that Miller's concern was with a variance,
and the Sixth Circuit “has recognized both the
distinction between variances and amendments and the reasons
underlying their treatment.” United States v.
Zelinka, 862 F.2d 92, 97 (6th Cir. 1988).
With regard to the latter, that court has observed:
The purposes underlying the rule against amendments and
constructive amendments include notice to the defendant of
the charges he will face at trial, notice to the court so
that it may determine if the alleged facts are sufficient in
law to support a conviction, prevention of further
prosecution for the same offense and finally, of
“paramount importance, ” the assurance that a
group of citizens independent of prosecutors or law
enforcement officials have reviewed the allegations and
determined that the case is worthy of being presented to a
jury for a determination of the defendant's guilt or
Id. None of those concerns, however, are impacted by
the Government's present proposal to strike the language
relating to the acquitted counts.
As revised, the Indictment would read:
THE GRAND JURY CHARGES:
COUNTS FOUR THROUGH ...