U.S. v. Twigg

Full title: UNITED STATES OF AMERICA Plaintiff, v. SHANE C. TWIGG, Defendant

Court: United States District Court, D. Alaska

Date published: Jun 29, 2005

No. A05-041 CR (RRB), Docket No. 16-1 (D. Alaska Jun. 29, 2005)

Opinion

No. A05-041 CR (RRB), Docket No. 16-1.

June 29, 2005

RECOMMENDATION REGARDING MOTION TO DISMISS COUNT 1

JOHN ROBERTS, Magistrate Judge

Defendant Shane C. Twigg relying upon Federal Criminal Rule 7(c)(1), moves the court to dismiss Count 1 of the indictment on grounds that it is unduly vague and violates the Due Process Clause. Docket No. 16. The motion is opposed by the government. Docket No. 17.¹ Count 1 charges that the defendant did "knowingly forcibly assault, resist, oppose, impede, intimidate, and interfere with a special agent with the United States Bureau of Alcohol, Tobacco and Firearms, and Explosives while the special agent was engaged in his official duties, and in the commission of those acts, inflicted bodily injury on the special agent, . . ." all in violation of 18 U.S.C. § 111(a)(1) and (b). The defendant relies upon a portion of the language in Federal Criminal Rule 7(c)(1) that requires an indictment to be "a plain, concise and definite written statement of the essential facts constituting the offense charged."

1 The motion requests in the alternative a bill of particulars. A separate order addresses that request.

It is essential that every element of an offense be stated in an indictment but the rule permits a plain, concise and definite statement of the essential facts constituting the offense. Count 1 of the indictment is sufficient to inform Twigg of the charge alleged and to notify him of the extent of the alleged culpability. An indictment that sufficiently charges an offense is not subject to a motion to quash. Count 1 sufficiently sets forth the elements of resisting an officer proscribed by § 111 to inform Twigg of the offense charged, to enable him to prepare a defense, and to protect him against double jeopardy. The government is not required to set forth its theory of the case.United States v. Buckley, 689 F.2d 893, 896 (9^th Cir. 1982).

"An indictment is sufficient if it contains the elements of the charged crime in adequate detail to inform the defendant of the charge and to enable him to plead double jeopardy." United States v. Buckley, 689 F.2d 893, 896 (9^th Cir. 1982); See also Hamling v. United States, 418 U.S. 87 (1974).

A violation of § 111(a)(1) requires proof that the defendant forcibly resisted, opposed, impeded, intimidated or interfered with a federal law enforcement officer, that such conduct occurred while the officer was engaged in the performance of his duties and that the defendant did so wilfully. Potter v. United States, 691 F.2d 1275 (8^th Cir. 1982). The statute is written in the disjunctive ("or"). The government is not required to prove use of actual force. Rather, it is sufficient if there is proof that actual force was threatened and that the defendant acted in such a way as to inspire fear of pain, bodily harm or death. United States v. Cooley, 787 F. Supp. 977 (10^th Cir. 1992), vacated on other grounds (appearance of trial judge on national television show to discuss abortion protests required disqualification), 1 F.3d 985, r'hg denied, on remand. Count 1 also informs Twigg that the government is invoking the enhanced penalty provision of 18 U.S.C. § 111(b) based upon the alleged infliction of bodily injury.

The defendant speculates that the grand jury may have indicted the defendant under Count 1 based upon a different set of essential facts than what the government intends to present at trial. There is a general prohibition against disclosure of grand jury proceedings imposed by Federal Criminal Rule 6(e). In re Grand Jury Investigation, 610 F.2d 202 (5th Cir. 1980). A request for disclosure of grand jury testimony is subject to the secrecy provisions of Federal Criminal Rule 6(e)(3)(C)(I) and must satisfy the particularized need test of Douglas Oil Co. v. Petrol Stops, Northwest, 441 U.S. 211 (1979); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 (1959); United States v. Proctor Gamble, 356 U.S. 677, 681 (1958). The rule requires disclosure only when a defendant has been able to demonstrate a "particularized need" for disclosure. Dennis v. United States, 384 U.S. 855 (1966). No particularized showing has been made by the defendant.

Mere speculation of procedural improprieties or that grounds may exist for a motion to dismiss are insufficient. United States v. Budzanoski, 462 F.2d 443 (3rd Cir. 1972); United States v. Fanning, 477 F.2d 45 (5th Cir. 1973), cert. denied, 415 U.S. 1006. A strong presumption exists that the grand jury has validly performed its duties in returning an indictment. Costello v. United States, 350 U.S. 359 (1956);Lawn v. United States, 355 U.S. 339, 350 (1958). Mere conjecture that the grand jury had insufficient evidence before it to returned a true bill does not constitute a showing of particularized need for disclosure.

The indictment is not fatally defective because it alleges alternative means by which the offense was committed. Rule 7(c)(1) provides: "A count may allege that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means." An indictment is sufficient if the necessary facts appear in any form or by fair construction within the language of the allegation. United States v. Cluchette, 465 F.2d 749 (9^th Cir. 1972). See also Kaneshiro v. United States, 445 F.2d 1266 (9^th Cir. 1971), cert. denied 404 U.S. 992. The court looks to the allegations pleaded in the indictment to determine whether an offense has been charged. An indictment valid on its face is enough to call for the trial of the charge on its merits.

The government is not required to submit enough evidence to the grand jury to obtain a conviction. In federal pleading the government is allowed to charge in the conjunctive. United States v. Hicks, 619 F.2d 752, 758 (8^th Cir. 1980). Because § 111(a) charges a single offense, the indictment may charge different means, denounced disjunctively in the statute, conjunctively, and proof of any of the allegations will sustain a conviction whereby a judgment of guilty will bar any further prosecution with respect to any of the prohibited means embraced within the count. United States v. UCO Oil Co., 546 F.2d 833 (9^th Cir. 1976), cert. denied 430 U.S. 966. Wherefore, the defendant's motion to dismiss Count 1 of the indictment should be DENIED. IT IS SO RECOMMENDED.