Opinion
(Andrews Air Force Base) Criminal No. 02-3087M, Criminal No. 02-3084M
March 7, 2003
MEMORANDUM OPINION DENYING DEFENDANT'S MOTION TO DISMISS
Mark Wheeler and Carlton Wheeler ("Defendants") have been charged by criminal complaint, each with one count of theft of government property, in violation of 18 U.S.C. § 641.
Both Defendants have filed a Motion to Dismiss their complaints on the same basis. In addition, Carlton Wheeler has been charged with possession of a controlled substance. However, no deficiencies have been alleged regarding that charge, therefore it will not be addressed here.
The Court has before it Defendants' Motion to Dismiss ("Defendants' Motion"), the Government's Response in Opposition to Defendants' Motion to Dismiss and Defendants' Reply thereto. A hearing on Defendants' Motion was held on January 27, 2003. For the reasons presented below, the Court hereby DENIES Defendant's Motion.
I. Background
At issue is whether the criminal complaints (the "Complaints") sufficiently described the property that Defendants have been accused of stealing. The Complaints read as follows:
I, the undersigned complainant being duly sworn state the following is true and correct to the best of my knowledge and belief.
On or about 3 September 2002, at Andrews Air Force Base, Maryland, in the District of Maryland, defendant did, within the special territorial jurisdiction of the United States in the State and District of Maryland, embezzle, steal, purloin, or knowingly convert to his own use, or the use of another, assorted merchandise and/or money of the United States, of a total value less than $1,000.00, and belonging to the Army and Air Force Exchange Services (AAFES), an agency of the United States.
I further state that I am an Andrews AFB Police Officer and that this complaint is based on the following facts: I reviewed the Andrews AFB police report, Incident Report, DD Form 1805 contained there. Continued on the attached sheet and made a part hereof X Yes ___ No
Attached to each Complaint were more than twenty (20) pages of investigative documents and the Notice of Violation ("Notice") citation provided to each Defendant individually. The facts alleged in Mark Wheeler's Notice state that his role was as the accomplice to Carlton Wheeler in that Mark Wheeler selected merchandise that he passed to another to steal. Carlton Wheeler's Notice explicitly listed the goods allegedly stolen.
II. Discussion
A. The Complaints, as drafted, sufficiently protected Defendants' Constitutional rights.
Pursuant to the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. The Sixth Amendment guarantees that "in all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation." U.S. CONST. amend VI. In a prosecution for the alleged violation of 18 U.S.C. § 641, a defendant is so notified by the filing of either an indictment or complaint. The purpose of an indictment or complaint in a prosecution, is twofold. "The basic requirement mandates that each essential element of the offense be alleged together with sufficient additional facts to allow the indictment to be used as proof in bar of a subsequent prosecution for the same offense. Moreover, the facts alleged should be sufficiently detailed to apprise the defendant of the charge against him so that the may prepare his defense." United States v. Duncan, 598 F.2d 839, 848 (4th Cir. 1979). These requirements are designed to comport with the demands of the Fifth and Sixth Amendments. A motion to dismiss an indictment or complaint tests whether the charging instrument sufficiently charges the offense set forth against the defendant. See United States v. Sampson, 371 U.S. 75, 78-79 (1962).
"The trial of a misdemeanor may proceed on an indictment, information, or complaint or, in the case of a petty offense, on a citation or violation notice." FED. R. CRIM. P. 58(b)(1). Given that the charged offense is a Class A misdemeanor, and not a "petty offense," the Government cannot proceed to trial on the originally submitted Notice.
Defendants contend that the Complaints do not state the essential facts constituting the offense charged without a more particular description or identification of the goods allegedly stolen appearing on the face of the Complaints. It is suggested that by reason of this alleged deficiency, the Complaints set forth "such a vague charge" as to "fail to sufficiently apprise the defendant of `the essential facts' that form the basis of the allegation" and "thwarts the defendant's ability to plead double jeopardy in defense to a future prosecution for the same offense." Therefore, Defendants argue that the Complaints should be dismissed. As discussed below, Defendants' arguments fail because the Complaints sufficiently charge a violation of 18 U.S.C. § 641 and the relevant Fifth and Sixth Amendment guarantees have been met.
i. The Complaints, as drafted, are valid.
Rule 7(c)(1) of the Federal Rules of Criminal Procedure states that an indictment shall be a "plain, concise and definite written statement of the essential facts constituting the offense charged." FED. R. CRIM. P. 7(c)(1). The Supreme Court has stated that:
Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute. It is an elementary principle of criminal pleading, that where the definition of an offense, whether it be at common law or by statute, `includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species, — it must descend to particulars. Undoubtedly, the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.Russell v. United States, 369 U.S. 749, 764 (1962) (internal quotations and citations omitted); accord United States v. Loayaza, 107 F.3d 257, 260 (4th Cir. 1997) (in order to be valid, an indictment must contain must contain the elements of the offense charged as well as provide the relevant Fifth and Sixth Amendment protections).
None of the essential elements of the crime of theft are missing from the Complaints. An essential element of the offense is defined as one "whose specification . . . is necessary to establish the very illegality of the behavior and thus the court's jurisdiction." Hamling v. United States, 418 U.S. 87, 117 (1974). The elements of the crime of theft which would come under this Court's jurisdiction include alleging that the accused "(1) knowingly (2) stole or converted to the use of another (3) something of value of the United States." United States v. Forman, 180 F.3d 766 (6th Cir. 1999) (listing the elements of the crime of theft of government property). The Complaints allege that Defendants stole merchandise and/or money from AAFES on or about September 3, 2002. Since the Complaints allege the essential facts necessary to establish the illegality of Defendants' behavior and the Court's jurisdiction, the Complaints are valid charging documents.
ii. The Complaints, as drafted, protect Defendants from facing Double Jeopardy for the same alleged acts.
Defendants Double Jeopardy Clause protections are afforded here. The Double Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. See United States v. Ursery, 518 U.S. 267, 273 (1996). The first and second of those interests are at issue here. In the event that Defendants are either acquitted, or convicted, they are sufficiently protected from being required to defend against "second prosecutions" or "multiple punishments" arising out of their alleged conduct in this case by the balance of the record. The Supreme Court has stated that a defendant "could rely upon other parts of the present record in the event that future proceedings should be taken against them." Russell v. United States, 369 U.S. at 764; Dunbar v. Unites States, 156 U.S. 185, 191 (1895)("some parol testimony might be required to show the absolute identity of the smuggled goods, but such proof is often requisite to sustain a plea of once in jeopardy. It is no valid objection to an indictment that the description of the property in respect to which the offense is charged to have been committed is broad enough to include more than one specific article"). See also Roberson v. United States, 237 F.2d 536, 537 (5th Cir. 1956) ("it must be borne in mind that, upon a plea of former jeopardy, the identity of offenses may be established by other parts of the record or even by parol evidence"). Given the balance of the record, most importantly the Notices and materials annexed to the Complaints, which enumerated all of the facts and circumstances underlying the criminal charges, Defendants may show what charges to which they have previously answered.
iii. The Complaints apprised Defendants of the specific offense alleged.
Defendants argue that the Complaints are fatally deficient because the particular merchandise they are accused of stealing is not listed on the face of the Complaints, and that the attached documents cannot be considered. Defendants rely heavily on Edwards v. United States, 266 F. 848 (4th Cir. 1920). Defendant's assert that Edwards remains good law today, however, the Fourth Circuit implicitly overruled Edwards by holding that the Court may take into consideration the other counts of an indictment. Further, Duncan not only overruled the holding of Edwards, it also brought into question the efficacy of relying on Edwards in the instant case because Edwards was decided some 20 years before the enactment of the Federal Rules of Criminal Procedure.
In Edwards, the Fourth Circuit dismissed an indictment brought under the predecessor statute to 18 U.S.C. § 641 because the third count "simply allege[d] that the defendant applied to his own use certain property of the United States government which had theretofore been furnished for military service" but did not "indicate the nature, character, or value of the property thus furnished" and was therefore "too vague and indefinite upon which to deprive one of his liberty."Id. The property at issue was specifically identified in the first two counts of the indictment, but the jury returned a verdict of not guilty for those two counts, and standing alone the third count was held insufficient to state an offense because the third count did not include "any word of description . . . which could be held to refer to the property contained in the other two counts." Id. at 852.
The standard research tools will not reflect that this aspect of Edwards has been overruled since the case was not cited in Duncan where the Fourth Circuit upheld an indictment charging defendant with eavesdropping on "certain individuals," instead of naming those specific individuals, noting, in part:
Fully advertent to the rule that each count of an indictment must stand or fall alone, except insofar as the allegations of another count are incorporated by reference. As we noted earlier in text, the apprisal function of an indictment can be satisfied through discovery or use of a bill of particulars. It would be anomalous not to take into consideration a comparable source, the other counts of the indictment, just because it is part of the same piece of paper. Considered for its res judicata/former jeopardy purpose the rule of express allegation or incorporation has obvious validity, but only with respect to the inclusion of essential elements of the offense charged. . . . We are not in this case, however, confronted with the complete omission of an essential element of the offense, but at most a non-specific statement of an element clearly identified.Duncan, 598 F.2d at 849 n. 5.
The Fourth Circuit recognized in Duncan that the "Federal Rules of Criminal Procedure have abandoned the excessive technicality demanded of an indictment by the common law. While perhaps suited to an age when the typical punishment for many crimes was death and some amelioration of those rigors, albeit indirect, was necessary, technicality of this sort is no longer justified." Duncan, 589 F.2d at 848. In a lengthier discussion, another United States District Court has recognized that adoption of the Federal Rules of Criminal Procedure abrogated
the technicalities which all too often had led to dismissal of indictments and to reversals of convictions on grounds that had no connection with the guilt or innocence of the defendant. . . . Among the many refinements impeding the decision of criminal cases on their merits were numerous technical requirements as to the contents of the indictment and the manner in which averments should be made, all inherited from a bygone era. . . . The history of the common law of crimes indicates that criminal procedure became encrusted with these barnacles as a result of commendable efforts of English judges to mitigate the rigors of the law of their day, under which the death penalty was imposed for every felony. The ingenious judicial mind gradually devised these technicalities as an escape. They have no place in modern jurisprudence.United States v. Young, 14 F.R.D. 407 (D.D.C. 1953).
The Complaints and annexed documents were sufficient to inform Defendants and the trier of fact as to the identity of the property allegedly taken. "[I]t is generally held that an indictment for larceny should contain a description of the goods stolen sufficient to identify the property and to advise the defendant with reasonable certainty as to the property meant and enable the jury to decide whether the property taken is the same as that upon which the indictment was found." Snead v. Smyth, 273 F.2d 838, 840 (4th Cir. 1959) (internal citations omitted). The Complaints and annexed documents do just that. Duncan provides further guidance relevant to this case. Because we are not confronted with the complete omission of an essential element of the offense, "but at most a non-specific statement of an element clearly identified," the Government's voluntary incorporation and attachment of its investigative files was sufficient to supplement the Complaint and apprise Defendant's of the nature and cause of the accusation. Duncan, 598 F.2d at 849, n. 5; See also United States v. Schembari, 484 F.2d 931, 935 (4th Cir. 1973) (apprisal function satisfied by Government's voluntary disclosure of its files).
The Court concludes that the Complaints are not deficient in their description of the property allegedly stolen. The allegation that Defendants stole "merchandise . . . belonging to the AAFES," brings that conduct within the statute prohibiting theft of government property and more particularly, property offered for sale. Defendants were initially notified of the charges they faced, and the particulars of the charges, by way of the Notice issued to them after their alleged act of shoplifting. In that Notice, each individual's role in the alleged crime, as well as the particular items of merchandise recovered from Carlton Wheeler were detailed. Defendants are not claiming actual ignorance of the substance of the alleged activity that resulted in the charges they face. In fact, the Government has even provided Defendants with a copy of a videotape of the alleged criminal acts. In conjunction with the production of the videotape, Defendant's pleas of ignorance as to the substance of the allegations are particularly disingenuous. To the extent that the Complaints may have been inartfully drawn, the annexation of the investigative documents was sufficient to apprise Defendants of the specific property alleged to have been stolen.
Merchandise is defined as "all goods which merchants usually buy and sell." BLACK'S LAW DICTIONARY 986 (6th ed. 1990).
Defendants also argue that "the particular offense under this statute requires a determination of value of the particular property allegedly stolen," which the Complaints fail to do. Defendants misread 18 U.S.C. § 641. After listing the acts that would be in violation of the statute, the statute makes reference to $1,000 as the threshold over which the individual "shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both." 18 U.S.C. § 641. The value of the property allegedly stolen need only be plead as a threshold matter regarding the punishment sought. United States v. Morison, 604 F. Supp. 655, 664 ("a reading of the statute would indicate that the value of the `thing' is determinative only of the appropriate penalty"); United States v. Glover, 381 F. Supp. 1139, 1141 (D.Md. 1974). As the Complaints set forth all of the essential elements of the crime of theft, the Complaints are valid.
Defendants' attack on the Complaints goes to form, as opposed to substance. Defendants argue that the Complaints do not meet the test set forth in United States v. Carll, 105 U.S. 611 (1881), nor does the description of the property in the Complaints permit an accurate determination of the total value of the property. However, where a defendant challenged the sufficiency of an indictment charging him with having smuggled "prepared opium," arguing the indictment was imprecise because the terms of description were broad enough to include opium prepared for purposes other than smoking, and therefore not subject to any duty, the Court described such an attack on the indictment as a "defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." Dunbar v. United States, 156 U.S. 185-92 (1895). In differentiating a defect in form from the substantive defect found in Carll, the Court held that "the rule is that if the description brings the property in respect to which the offense is charged clearly within the scope of the statute creating the offense, and at the same time so identifies it as to enable the defendant to fully prepare his defense, it is sufficient . . . where the only defect complained of is that some element of the offense is stated loosely, and without technical accuracy." Id. at 191-92. The Fourth Circuit has upheld indictments where a defendant's argument addressed the indictment's form, as opposed to its substance, and characterized the alleged defect in the indictment as "at most a non-specific statement of an element clearly identified." Duncan, 598 F.2d at 849 n. 5; See also Snead, 273 F.3d at 840
B. Assuming arguendo , that property allegedly stolen was insufficiently described on the face of the Complaints, that alleged deficiency can be cured by amendment or a bill of particulars.
In Carll, the Supreme Court stated that "In an indictment upon a statute, it is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished." 105 U.S. at 612.
Where defendant suggested that an indictment did not apprise him that he was charged with electronically eavesdropping on agents of the Internal Revenue Service because the indictment referred to the agents as `certain individuals', the Fourth Circuit found that claim to be "patently without merit." Duncan, 598 F.2d at 849. ("Under this rule the indictment in this case was technically insufficient but it does not follow that the defect was so grave as to deprive the court of jurisdiction to try the case").
Even if the Complaints' averments were insufficient, a dismissal of the Complaints would not be the appropriate remedy. Both the Supreme Court and the Fourth Circuit have addressed the issue of whether an invalid indictment may be cured versus curing a deficiency in a valid charging document. The Supreme Court has stated that "it is a settled rule that a bill of particulars cannot save an invalid indictment" because the court is not privy to the decision-making process of the grand jury and therefore cannot allow a prosecutor to amend an indictment issued by a grand jury. Russell, 369 U.S. at 770. The Fourth Circuit has also noted that "there is a marked difference between an indictment which is merely defective, so that it may be amended or the defendant may be given further information by a bill of particulars, and an indictment so fatally invalid that a prosecution cannot be based upon it." Snead, 273 F.2d at 840. As the Court has already found the Complaints to be valid, the technical deficiency alleged here, if found to exist, could be cured. Further, Defendants were charged here by a mere complaint, signed by an officer of the United States, which may be amended without the findings of a grand jury. See FED. R. CRIM. P. 7(e). The Federal Rules of Criminal Procedure provide that a technical error in an information should be rectified by amendment, rather than dismissal, unless a new offense is added or the defendant will suffer prejudice. FED. R. CRIM. P. 7(e); Snead, 273 F.2d at 841.
Since Congress has allowed that a violation of 18 U.S.C. § 641 may be alleged without the findings of a grand jury, a prosecutor may amend the Complaint. See Russell, 369 U.S. at 770 (Congress provided that no one could be prosecuted under 2 U.S.C. § 192 except upon an indictment issued by a grand jury, therefore the indictment can not be amended by a prosecutor).
Alternatively, "the court may direct the filing of a bill of particulars." FED. R. CRIM. P. 7(f). However, neither a bill of particulars nor an amendment are necessary here because the "underlying objectives of a Rule 7(f) motion were fully satisfied by the government's voluntary disclosure of its file." United States v. Schembari, 484 F.2d 931, 935 (4th Cir. 1973).
III. Conclusion
For the foregoing reasons, the Court DENIES Defendants' Motion to Dismiss.
ORDER
Upon consideration of Defendants' Motion to Dismiss, and the opposition thereto, it is this 6 th day of March, 2003, nunc pro tunc to the 27th day of January, 2003,
ORDERED that the Motion is hereby DENIED for the reasons stated in the accompanying memorandum opinion.