U.S. v. Cline

Full title: UNITED STATES OF AMERICA, Plaintiff, v. TIMOTHY JAY CLINE, a/k/a "Pony,…

Court: United States District Court, D. Kansas

Date published: Apr 5, 2002

No. 00-40024-03/06-SAC (D. Kan. Apr. 5, 2002)

Opinion

No. 00-40024-03/06-SAC.

April 5, 2002

MEMORANDUM AND ORDER

SAM A. CROW, U.S. District Senior Judge.

The case comes before the court on the defendants' oral motions for judgment of acquittal pursuant to Fed.R.Crim.P. 29. Following the close of the government's case, the defendants argued their motions in chambers and the government responded. The court gave the parties until April 1, 2002 to file any written briefs in support of their positions. The court took the motions under advisement. At the close of the defendants' cases and the government's rebuttal evidence, the defendants renewed their Rule 29 motions adopting the arguments made in chambers. On each occasion, the court took the defendants' motions under advisement. The court continues to reserve its decision on the initial and renewed challenges to the sufficiency of the evidence to convict the defendants on the different counts. This order, however, does address the defendant Timothy J. Cline's challenges to pleading deficiencies in the superseding indictment. This ruling also will be reflected in the court's proposed jury instructions that will be made available to counsel in chambers at 8:45 a.m. on April 8, 2002.

ARGUMENTS

The defendant Cline contends that Counts 16 and 25 are deficient in charging him with a violation of 18 U.S.C. § 1956(h). These counts allege a conspiracy to conduct financial transactions involving proceeds from unlawful drug trafficking with the intent to promote such drug trafficking, but they fail to charge the commission of any overt acts taken in furtherance of the conspiracy. The defendant next contends that Count 24 is defective in omitting the year from the date on which that the money laundering activity was allegedly committed. Finally, the defendant argues the three counts alleging violations of 18 U.S.C. § 924(c) — Counts 31, 32 and 33 — are defective in failing to use the required statutory language.

In its written brief, the government opposes the challenges to Counts 16, 24 and 25 but concedes that the three firearm counts are incorrectly pled and moves to dismiss them. Admitting that Counts 16 and 25 do not plead any overt acts, the government relies on United States v. Tam, 240 F.3d 797 (9th Cir. 2001), in arguing that an overt act is not an element of a 18 U.S.C. § 1956(h) violation and need not be alleged in the indictment. The government maintains the omission of the year from the date alleged in Count 24 is a defect in form only.

GOVERNING LAW

Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides that the indictment "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." By the terms of Rule 12(b)(2), "a defendant's objection that the indictment fails to charge an offense `shall be noticed by the court at any time during the pendency of the proceedings.' See also United States v. Bullock, 914 F.2d 1413, 1414 (10th Cir. 1990) ('[T]he failure of an indictment to state an offense is a fatal defect that may be raised at any time.') (quotation omitted)." United States v. Gama-Bastidas, 222 F.3d 779, 788 (10th Cir. 2000).

Deficiencies that are minor and technical are not fatal to an indictment, but a court must be careful that the "guise of technical departures" is not used to deny the accused of "substantial safeguards." Russell v. United States, 369 U.S. 749, 763 (1962). An indictment is not sufficient unless it contains "the elements of the offense charged, putting the defendant on fair notice of the charges against which he must defend." United States v. Poole, 929 F.2d 1476, 1478 (10th Cir. 1991). The Supreme Court recently reiterated "that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt." Jones v. United States, 526 U.S. 227, 232 (1999) (citing Hamling v. United States, 418 U.S. 87, 117 (1974); United States v. Gaudin, 515 U.S. 506, 509-10 (1995)).

These requirements for an indictment serve the Fifth Amendment guarantee that a grand jury returns an indictment only after finding "probable cause to support all the necessary elements of the crime." United States v. Prentiss, 206 F.3d 960, 964 (10th Cir. 2001) (quotations omitted), modified on other grounds on rehearing en banc, 256 F.3d 971 (10th Cir. 2001). In Prentiss, the Tenth Circuit emphasized this important purpose for an indictment:

Narrowing the inquiry to the Fifth Amendment,

it is not enough that the grand jury concludes that the defendant should be prosecuted for violating a particular statute; rather, the indictment must also allege every element of the offense. Only in this way is any assurance furnished that the grand jury found probable cause to believe that the defendant in fact committed acts constituting the offense in question.

United States v. Deisch, 20 F.3d 139, 145-46 (5th Cir. 1994).

To be sufficient, an indictment must allege each material element of the offense; if it does not, it fails to charge that offense. This requirement stems from one of the central purposes of an indictment: to ensure that the grand jury finds probable cause that the defendant has committed each element of the offense, hence justifying a trial, as required by the Fifth Amendment.

United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999) (emphasis added). The omission of an element is "such a critical omission" that the Federal Rules of Criminal Procedure require it to "be noted by an appellate court sua sponte." [ United States v.] Brown, 995 F.2d [1493] at 1504 [(10th Cir. 1993)] (citing United States v. Meacham, 626 F.2d 503, 509 (5th Cir. 1980).

206 F.3d at 965. After reviewing its precedent and the case law from other jurisdictions, the circuit panel in Prentiss concluded that the indictment there was insufficient for not alleging an essential element, that this omission was a jurisdictional defect, and that the harmless error analysis did not apply to this post-verdict challenge to the indictment. Id. at 974-77. On rehearing en banc, the Tenth Circuit overruled its prior case law and held that an indictment's failure to allege an essential element is subject to harmless error review "when a defendant fails to timely challenge such an indictment." 256 F.3d at 983, 985 n. 12.

The Supreme Court has said that "an indictment may not be amended except by submission to the grand jury, unless the change is merely a matter of form." Russell v. United States, 369 U.S. 749, 770 (1962). As to the different types of amendments qualifying as matters of form, the Tenth Circuit has identified the following:

Courts also have permitted amendments to correct typographical errors. See, e.g., United States v. Cina, 699 F.2d 853, 856-60 (7th Cir. 1983) (change in date of offense); United States v. Bush, 659 F.2d 163 (D.C. Cir. 1981) (change in number of form that defendant was charged with altering); United States v. Nicosia, 638 F.2d 970, 976 (7th Cir. 1980), cert. denied, 452 U.S. 961 (1981) (change in date of witness's testimony); Jervis v. Hall, 622 F.2d 19, 22-23 (1st Cir. 1980) (change in date of offense); United States v. Powell, 564 F.2d 256, 259 (8th Cir. 1977), cert. denied, 435 U.S. 904 (1978) (change in date of offense); United States v. Akers, 542 F.2d 770, 772 (9th Cir. 1976) (per curiam) (change in date of offense); . . . United States v. Gammill, 421 F.2d 185 (10th Cir. 1970).

United States v. Janoe, 720 F.2d 1156, 1160 n. 8 (10th Cir. 1983), cert. denied, 465 U.S. 1036 (1984). "It seems well settled that an allegation as to the time of the offense is not an essential element of the offense charged in the indictment and, within reasonable limits, proof of any date before the return of the indictment and within the statute of limitations is sufficient." Russell v. United States, 429 F.2d 237, 238 (5th Cir. 1970) (quotation marks and citations omitted) (government allowed to change date in indictment from "February 19, 1967," to "February 19, 1966"). "A defective allegation of time is a matter of form if time is not an essential element of the offense and if the indictment charges facts showing that the offense was committed within the period of the statute of limitations." United States v. Gammill, 421 F.2d 185, 186 (10th Cir. 1970). A court, however, is "without power" to amend a defective time allegation when the indictment does not allege facts showing the offense was within the statute of limitations. Id.

In Gammill, the Tenth Circuit reversed a conviction because the indictment charged only that the defendant sold "a quantity of narcotics" on "the 9th day of November" and did not refer to the year when this alleged drug sale occurred. 421 F.2d at 186. The Circuit found that "[t]his is not a case where the defect is an incorrect date within the limitation period." Id. (citation omitted). More recently, the Second Circuit has held that the failure to include the year in a count "is not fatally defective because the exact time when the defendants committed the crime [drug offense] . . . [was] immaterial. United States v. Jaswal, 47 F.3d 539, 542 (2nd Cir. 1995).

"[T]here is a distinction between an amendment and a variance to an indictment." United States v. Moore, 198 F.3d 793, 795 (10th Cir. 1999) (citing United States v. Beeler, 587 F.2d 340 (6th Cir. 1978)), cert. denied, 529 U.S. 1076 (2000). The Sixth Circuit has explained the distinction in this way:

There are two types of modifications of an indictment — an amendment and a variance: An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of an indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment. An amendment is considered per se prejudicial while a variance is not reversible error unless the accused has proved a prejudicial effect upon his defense. A variance rises to the level of a constructive amendment when the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.

United States v. Robison, 904 F.2d 365, 369 (6th Cir.) (quotation marks and citations omitted), cert. denied, 498 U.S. 946 (1990). When a constructive amendment occurs, "the jury convict[s] the defendant upon a factual basis that effectively modifies an essential element of the offense charged." United States v. Wright, 932 F.2d 868, 874 (10th Cir.) (quotation marks and citations omitted), cert. denied, 502 U.S. 962 (1991). The defendant bears the burden of showing "not only that the variance exists, but also that it is fatal [ i.e. affects his substantial rights]." United States v. Moore, 198 F.3d at 795-96.

ANALYSIS AND CONCLUSION

Counts 16 and 25: Conspiracy to Commit Money Laundering in violation of 18 U.S.C. § 1956(h)

In two unpublished opinions, the Tenth Circuit has held that the government must prove the following elements of a conspiracy offense under 18 U.S.C. § 1956(h): "(1) the existence of an agreement; (2) to break the law; (3) an overt act; (4) in furtherance of the conspiracy's object; and (5) that a defendant willfully entered the conspiracy." United States v. Olson, 76 F.3d 393, 1995 WL 743845, at *2 (10th Cir. Dec. 15, 1985); United States v. Hand, 76 F.3d 393, 1995 WL 743841, at *2 (10th Cir. Dec. 15, 1985). Other circuits likewise have held that the commission of an overt act is one of the required elements of a conspiracy to launder money. See, e.g., United States v. Evans, 272 F.3d 1069, 1082 (8th Cir. 2001); United States v. Wilson, 249 F.3d 366, 379 (5th Cir. 2001); United States v. Ross, 190 F.3d 446, 450 (6th Cir.), cert. denied, 528 U.S. 1033 (1999); United States v. Hildebrand, 152 F.3d 756, 762 (8th Cir.), cert. denied, 525 U.S. 1033 (1998); United States v. Navarro, 145 F.3d 580, 593 (3rd Cir. 1998); but see United States v. Godwin, 272 F.3d 659, 669 n. 9 (4th Cir. 2001); United States v. Tam, 240 F.3d 797, 802 (9th Cir. 2001).

In both Olson and Hand, the Tenth Circuit panels relied on 18 U.S.C. § 371 and on United States v. Hanson, 41 F.3d 580, 582 (10th Cir. 1994), a decision discussing § 371, in identifying the elements for a conspiracy offense under 18 U.S.C. § 1956(h). United States v. Olson, 76 F.3d 393, 1995 WL 743845, at *2; United States v. Hand, 76 F.3d 393, 1995 WL 743841, at *2. The Tenth Circuit has held repeatedly that the government must prove an overt act as one of the elements for a violation of 18 U.S.C. § 371. United States v. Pretty, 98 F.3d 1213, 1218 (10th Cir. 1996), cert. denied, 520 U.S. 1266 (1997); United States v. Gacnik, 50 F.3d 848, 852 (10th Cir. 1995). The Tenth Circuit also has required the government to " allege and prove an overt act" for a conspiracy violation under § 371. Hudspeth v. McDonald, 120 F.2d 962, 965 (10th Cir.), cert. denied, 314 U.S. 617 (1941) (emphasis added); see also Laska v. United States, 82 F.2d 672, 674 (10th Cir.) ("[A]n overt act by some member [of the conspiracy] must be alleged and proven. . . ."), cert. denied, 298 U.S. 689 (1936); United States v. Thompson, 125 F. Supp.2d 1297, 1301 (D.Kan. 2000) (Found an indictment fatally defective in failing to allege an overt act within the statute of limitations).

The court is persuaded that the Tenth Circuit, as it has indicated in the unpublished opinions of Olson and Hand, would hold that an overt act is an essential element for a violation of 18 U.S.C. § 1956(h). This holding would be consistent with the approach taken by the majority of circuits cited above who have decided this issue. The view taken and the rationale expressed by the minority of circuit courts are not so compelling or substantial as to persuade this court that the Tenth Circuit would join them in holding that an overt act need not be proved nor alleged for a § 1956(h) violation.

Consistent with the Tenth Circuit case law on § 371 offenses, the court concludes that the government must allege an overt act in an indictment charging a conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). In its brief, "government admits neither Count 16 nor Count 25 refer to an `overt act' of the money laundering conspiracies." (Dk. 1364, p. 4). Presented with no other arguments or reasons for upholding these counts, the court sustains the defendant Cline's motion to dismiss Counts 16 and Count 25 for failing to allege the commission of an overt act in furtherance of the conspiracies.

Count 24: Money Laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i)

Count 24 charges that this offense involved currency in the amount of $34,140 and was committed on February 22nd, but it omits the year from this date. The defendant does not argue that he lacked sufficient notice of the charges as a result of this omission or that through the matters learned during discovery he is not fully aware this charge relates to the $34,140 in currency transported by Rudolph James Maio that law enforcement officers seized on February 22, 2000. The court is satisfied that the omission of the year here is not a fatal defect. "Failure to include the year will not subject defendant to double jeopardy because the court may `refer to the entire record of the prior proceeding and [will] not be bound by the indictment alone.'" United States v. Jaswal, 47 F.3d at 542-43 (quoting United States v. Smith, 65 F.R.D. 464, 468 (N.D.Ga. 1974). The court does not consider time to be an essential element of the offense charged in this count. The superseding indictment, construed as a whole, alleges sufficient facts showing the offense charged in Count 24 was within the statute of limitations. The court denies the motion for judgment of acquittal on this count and will insert the omitted year of "2000" into Count 24 of the superseding indictment.

Counts 31, 32 and 33: Possession of Firearms in violation of 18 U.S.C. § 924(c)

Conceding the counts are incorrectly pled based on current law, the government moves to dismiss these counts. After reviewing the case law, specifically United States v. Iiland, 254 F.3d 1264 (10th Cir. 2001); United States v. Pleasant, 125 F. Supp.2d 173 (E.D.Va. 2000); and United States v. Speight, 95 F. Supp.2d 595 (S.D.W.Va. 2000), the court grants the government's motion to dismiss counts 31, 32 and 33.

IT IS THEREFORE ORDERED that the defendant Cline's motion for judgment of acquittal as to Counts 16, 25, 31, 32 and 33 is granted and denied as to Count 24.

IT IS FURTHER ORDERED that the court reserves its decision as to the defendants' challenge to the sufficiency of the evidence supporting the remaining counts of the superseding indictment.