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United States v. Glynn

United States District Court, M.D. Tennessee, Nashville Division

March 2, 2017

UNITED STATES OF AMERICA
v.
JASON GLYNN

          MEMORANDUM

          KEVIN H. SHARP UNITED STATES DISTRICT JUDGE.

         In a 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.

         It 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.

         I.

         Defendant 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.

         II.

         The 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 Surplusage.

         In its 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).

         Although 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 and unconstitutional.

(Docket No. 171 at 1).

         The 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).

         The 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).

         Counsel 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'”).

         Redaction 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.

         It is 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 innocence.

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 ...

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