VIII. Defenses
s
Sixth Circuit
• Fed. R. Crim. P. 12 - Pretrial MotionsU.S. v. Abboud, 04-3942 (2/17/06)
> Defendant was charged with bank fraud and in the indictment the government charged each transaction as a separate count. Defendant did not challenge the form of the indictment pretrial. Instead, defendant first raised a challenge to the form of the indictment at the end of the jury trial, during the hearing on the Rule 29 motion. The district court held that the failure to raise the claim pretrial meant that defendant had waived the issue pursuant to Fed. R. Crim. P. 12(b)(2) and (f). Defendant never raised a substantive claim of multiplicity in the district court. Defendant appealed the district court’s ruling.
* Holding: Reconciling two conflicting lines of cases in the Sixth Circuit, the court held that, as applied to claims of multiplicity and duplicity in an indictment, the waiver provision of Rule 12 applies only to challenges to the form of the indictment. Thus, if a defendant does not challenge an indictment pretrial, Rule 12 requires that she has waived such a challenge. In contrast, a substantive challenge that an indictment is multiplicitous, i.e., sentencing separately in multiple counts violates double jeopardy, may be raised at any time before sentencing. In the case, the court held that defendant had failed to raise his challenge to the form of the indictment pretrial and therefore, the district court’s finding of waiver of the issue was proper. Further, the court ruled that defendant did not raise any substantive challenge to multiplicity in the district court, and thus, he could not argue the issue on appeal.
• Fed. R. Crim. P. 12 - Pretrial Motions
U.S. v. Abboud, 04-3942 (2/17/06)
> Defendant was charged with bank fraud and tax violations and at trial attempted to utilize the defense of selective prosecution. The defendant did not raise the issue pretrial, and, pursuant to a government motion in limine, the district court prohibited defendant from presenting the defense at trial. Defendant appealed.
* Holding: The court held that the defense of selective prosecution addresses a matter that is independent of a defendant’s guilt or innocence, and thus, it is an issue for the court and not the jury. Therefore, Rule 12 requires that the issue be raised pretrial. The court accordingly held that defendant had waived the issue by failing to raise it in a pretrial motion, and the district court ruling was affirmed.
• Rule 12(b)(3) - Failure to State an Offense
U.S. v. The, 06-2371 (7/31/08)
> Defendant was charged with fraudulently importing merchandise contrary to law, pursuant to 18 USC § 545. The basis for the prosecution was the fact that defendant transported counterfeit DVDs of movies on a plane flight into the U.S. The indictment stated that defendant imported “counterfeit copies of motion pictures in DVD format, in violation of the copyrights of the motion pictures.” Defendant was convicted in a bench trial and argued for the first time on appeal that (1) the indictment did not allege an offense because it did not list the specific statutory copyright provision, and (2) § 545 could not be used to prosecute a copyright offense.
* Holding: An indictment is sufficient only if it “fully, directly, and expressly, without any uncertainty or ambiguity, sets forth all the elements necessary to constitute the offense.” Generally, an indictment may not provide only that an offense is “contrary to law” without stating which law is violated or alleging facts sufficient to show that some law was violated. In the case, the court first held that the general allegation regarding counterfeit copies in violation of copyright was insufficient to charge an offense. Nonetheless, the court held that, because defendant failed to raise the issue in the district court, plain error review applied. The court found that defendant could establish no prejudice as a result of the defect.
Second, the court held that § 545 could be used to prosecute copyright infringement because there was an identifiable criminal copyright statute which was violated, namely 18 USC § 2318. Thus, § 545 was not being used to criminalize a civil statute. The court noted that §545 carried up to 20 years in prison while § 2318 only carried a maximum of 5 years. The court stated that, had defendant been sentenced to more than 5 years, the government’s use of § 545 would have been “problematic.” Because defendant received a sentence of probation, however, the court found no plain error and defendant’s conviction was affirmed.
• 12(b)(3)(B) - Failure to State an Offense
U.S. v. Ali, 07-6446 (2/27/09)
> Defendant was charged with making a false statement on a citizenship application. The false statement pertained to defendant’s answer of “no” to a question as to whether he had ever been married to more than one person at a time. Defendant filed a pretrial motion to dismiss the indictment on the grounds that his second marriage, while he was still married to his first wife, was void ad initio under state anti-bigamy law. Thus, defendant was not married to two women at once because his second marriage was void. The district court denied the motion and defendant appealed. The government argued on appeal that the issue was not cognizable as a motion to dismiss under Rule 12.
* Holding: First, the court held that the government had waived its argument by not raising it in the district court. (See infra). Alternatively, the court held that the issue was properly raised as a motion to dismiss for failure to state an offense. The court ruled that defendant’s Rule 12 motion amounted to a claim that the undisputed facts did not give rise to the offense in the indictment. The court held that this issue raised a “purely legal question about whether the indictment stated an offense,” and was thus properly alleged in a Rule 12 motion. Accordingly, the court proceeded to the merits of defendant’s claim. (See supra).
• Rule 12(b)(3) - Failure to State an Offense
U.S. v. Schaffer, 09-3053 (11/12/09)
> Defendant was charged with conspiracy to commit computer fraud in violation of 18 USC § 371 and 18 USC § 1030(a)(4). Defendant pled guilty to the offense, but then argued on appeal that the indictment failed to state an offense.
* Holding: The court first held that, because the issue of whether an indictment states an offense is jurisdictional, it may be raised at any time. Further, the court ruled that, in order to adequately charge a crime, an indictment must (1) fully and expressly set out all of the elements of the offense and give notice to the defendant of the charges faced, and (2) be sufficiently specific to allow a plea of double jeopardy in a subsequent proceeding if charged with the same facts. In the case, the court found that the indictment sufficiently described the conspiracy and the elements of the offense by indicating that defendant and others conspired to access a computer used by the government contractor in order to fraudulently obtain military secrets. Additionally, the court held that the offense was not a legal impossibility because, although the operation was a sting and there were no real secrets, the offense in a conspiracy charge is the agreement to commit the crime, not the crime itself. Accordingly, defendant’s conviction was affirmed.
• Insufficiency of Indictment
U.S. v. McAuliffe, 06-3016 (6/22/07)
> Defendant was charged with mail fraud in relation to false insurance claims, after he intentionally burned his own home. After his conviction, defendant raised for the first time on appeal that the indictment was insufficient because it did not specifically set forth the elements of materiality and intent to defraud.
* Holding: An indictment is sufficient if it “fully, directly, and expressly sets forth all the elements necessary to constitute the offense.” In order to meet this requirement, the indictment must set out all of the elements of the offense, give notice to the defendant of the charges he faces, and be sufficiently specific that he could plead double jeopardy in a subsequent proceeding if charged over the same facts. Generally, pleading the words of the statute itself is sufficient, if accompanied by a statement of the facts and circumstances to sufficiently inform the accused of the specific charge. In the case, the court ruled that, in addition to tracking the statutory language, the indictment indicated that defendant made false representations to the insurance company that he did not cause the fire, when he, in fact, planned the fire. The court held that this language was more than sufficient to show defendant’s intent and that the statements would be material to the insurance company. Accordingly, the court found no plain error and affirmed defendant’s conviction.