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United States v. Rosalba

United States District Court, W.D. Virginia, Harrisonburg Division

April 11, 2017

UNITED STATES OF AMERICA
v.
MARIA ROSALBA ALVARADO MCTAGUE, et al., Defendants.

          MEMORANDUM OPINION

          Michael F. Urbanski United States District Judge

         This matter is before the court on defendants Maria Rosalba Alvarado McTague and Felix Chujoy's Motion to Dismiss Counts 1-11, 13-23, and 25-28 of the Superseding Indictment. ECF No. 433. The government has responded to the motion, ECF No. 443, and the matter was argued on April 6, 2017. See ECF No. 445. For the reasons that follow, the court will GRANT in part and DENY in part defendants' motion to dismiss. Counts Seven, Fourteen, Twenty, and Twenty-one are hereby DISMISSED in full without prejudice. Counts Six, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen, Twenty-two, and Twenty-three are DISMISSED in part without prejudice, as follows:

Count Six is dismissed to the extent that it alleges an attempt to violate 18 U.S.C. § 1592 and a violation of 18 U.S.C. § 1592(a)(3).
Counts Fifteen through Nineteen are dismissed to the extent that these counts allege recruiting without the statutorily required fee element.
Counts Twenty-two and Twenty-three are dismissed to the extent that these counts allege intimidation of the due administration of justice which is not criminalized in 18 U.S.C. § 1503(a).

         I.

         Federal Rule of Criminal Procedure 7(c)(1) lays out the general requirements for a criminal indictment:

The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government. It need not contain a formal introduction or conclusion. A count may incorporate by reference an allegation made in another count. 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. For each count, the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.

         "The requirements for an indictment are not onerous, " United States v. Palin, No. 1:14cr023, 2015 WL 6134125, at *5 (W.D. Va. Oct. 16, 2015), and courts should review indictments "on a practical basis and in their entirety, rather than 'in a hypertechnical manner, '" United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000) (quoting United States v. McNeese, 901 F.2d 585, 602 (7th Cir. 1990)); see United States v. Matzkin, 14 F.3d 1014, 1019 (4th Cir. 1994) ("[T]he sufficiency of an indictment should be determined by practical, as distinguished from purely technical, considerations." (brackets in original) (quoting United States v. Missler, 414 F.2d 1293, 1297 (4th Cir. 1969))). Consistent with the goal of the Federal Rules "to eliminate technicalities in criminal pleadings, " and "secure simplicity in procedure, " United States v. Resendiz-Ponce, 549 U.S. 102, 110 (2007), the government need not detail its "theory of the case and the supporting evidentiary facts, " United States v. Loayza, 107 F.3d 257, 261 (4th Cir. 1997) (quoting United States v. Arlen, 947 F.2d 139, 145 n.7 (5th Cir. 1991)).

         Nonetheless, judicial review of indictments is not entirely toothless. The Fifth Amendment to the United States Constitution makes an indictment a prerequisite to prosecution for "a capital, or otherwise infamous crime, " U.S. Const, amend. V, while the Sixth Amendment requires that a defendant "be informed of the nature and cause of the accusation" against him. U.S. Const, amend VI. "The criteria against which the sufficiency of an indictment is judged reflect these guarantees." United States v. Daniels, 973 F.2d 272, 274 (4th Cir. 1992).

         Accordingly, the Supreme Court has held that "an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 118 (1974). Thus, "[w]hile it is generally sufficient that the indictment describes the offense by using the unambiguous language of the statute, that general description '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.'" United States v. Quinn, 359 F.3d 666, 672-73 (4th Cir. 2004) (quoting Hamling, 418 U.S. at. 117-18).

         Where a count in an indictment is insufficient, the court may dismiss that count without prejudice. However, dismissal of the entire count is not always necessary: the court may partially dismiss a count and strike the portions of that count that rendered it defective.

         There is a "general rule forbidding amendment of an indictment by the court or prosecutor, " United States v. Coward, 669 F.2d 180, 183-84 (4th Or. 1981) (citing Ex parte Bain, 121 U.S. 1, 7 (1887)), which vindicates the right to indictment by a grand jury protected by the Fifth Amendment. See United States v. Miller, 471 U.S. 130, 135-36 (1985). But, the Supreme Court "has long recognized that an indictment may charge numerous offenses or the commission of any one offense in several ways, " and "[a]s 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." Id. at 136; see Turner v. United States, 396 U.S. 398, 420 (1920) ("[W]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged").

         Accordingly, "[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.'" Miller, 471 U.S. at 136 (quoting Ford v. United States, 273 U.S. 593, 602 (1927). In recognition of this fact, there is a "generally acknowledged exception [to the rule forbidding court amendment of indictments, ] which permits the court to strike surplusage from the indictment." Coward. 669 F.2d at 183-84; see United States v. Brooks, 438 F.3d 1231, 1237 (10th Cir. 2006) (The court "may strike from an indictment allegations which are both independent of and unnecessary to the offense on which a conviction ultimately rests."); accord United States v. Williams, 445 F.3d 724, 733 (4th Cir. 2006).

         In sum, Court precedent

forbids two general kinds of amendments to indictments. First. . . any amendment that transforms an indictment from one that does not state an offense into one that does. . . . The second improper alteration is seen in any change that tends to increase the defendant's burden at trial.

Coward, 669 F.2d at 184 (quoting United States v. Milestone, 626 F.2d 264, 269 (3d Cir. 1980). Within these confines, the court may dismiss portions of an indictment without offending a defendant's Fifth Amendment right to indictment by grand jury. See Salinger v. United States, 272 U.S. 542, 548-49 (1926) (Where an indictment charges multiple offenses, or the commission of one offense in several ways, striking one offense, or one alleged method of committing it, does not constitute a forbidden amendment of the indictment).

         II.

         Defendants challenge the superseding indictment on two primary grounds: failure to state an offense under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), and lack of specificity under Rule 12(b)(3)(B)(iii). See ECF No. 433. They raise challenges to all counts except Counts Twelve and Twenty-four.[1] The court will now describe and rule on defendants' arguments as to each count.

         A. Count One

         Count One of the Superseding Indictment charges the defendants with a labor trafficking conspiracy. Defendants allege that this count is defective because, though it properly alleges the elements of a conspiracy, it "does not identify which code section (1581, 1583, 1589, 1590, or 1592) that the defendants are accused of conspiring to violate." ECF No. 433, at 8. In support, defendants cite United States v. Kingrea, which held that, "Although an offense that is the object of a conspiracy need not be delineated in the indictment with the same particularity as a substantive offense, this admonition applies to the statements of fact that 'flesh out' the indictment-not the basic elements of the offense itself." 573 F.3d 186, 192 (4th Cir. 2009) (quoting United States v. Hooker, 841 F.2d 1225, 1229 (4th Cir. 1988)).

         Though Count One fails to identify the code section of the underlying offense, as defendants acknowledge, "[t]he language of [Count One], 'by means of a scheme, plan, or intended, etc., ' tracks part of 18 U.S.C. § 1589[(a)] (4)." ECF No. 433, at 8-9. In actuality, the language of the Superseding Indictment provides all the elements of 18 U.S.C. § 1589(a) (the substantive offense), in addition to the elements of conspiracy.

         18 U.S.C. §1589 provides:

(a) Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means-
(3) by means of the abuse or threatened abuse of law or legal process; or
(4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint....

         Count One of the Superseding Indictment alleges that the defendants

conspired with each other and with others known and unknown to the grand jury to knowingly provide and obtain the labor and services of individuals known to the grand jury by means of a scheme, plan, or pattern intended to cause the victims believe [sic] that the victims would suffer serious harm and through threatened abuse of law and legal process.

ECF No. 52, at 7.

         The defendants' point, bolstered by the Fourth Circuit's decision in Kingrea, is well-taken: the indictment must allege both the elements of conspiracy and the underlying offense that was the object of the alleged conspiracy. Here, however, Count One does so, tracking the language of Section 1589, and alleging two of the alternative means contained in Sections 1589(a)(3) and (4). Cf. United States v. Wortman, 26 F.R.D. 183, 191 (E.D. 111. 1960) ("According to the authorities, when a statute denounces several things joined disjunctively with 'or, ' as a crime, the pleader, in drawing an indictment, should connect them by the conjunctive 'and, ' and under such an indictment guilt may be established by proof of any one of the things conjunctively charged."). Instead, Count One's only failing is that it does not identify the underlying statute by code section and number. But the Fourth Circuit has repeatedly held that such a failure will not doom an indictment. See United States v. Hooker, 841 F.2d 1225, 1228 (4th Cir. 1988). "[A] sufficient indictment must contain the elements of the offense, " Id. at 1230, and, if these elements are present, the failure to cite the statute is not controlling. This accords with the longstanding directive that indictments should be judged on practical, rather than technical criteria. See Matzkin, 14 F.3d at 1019. Defendants' arguments simply do not warrant dismissal of Count One.

         B. Counts Two and Three

         Counts Two and Three of the Superseding Indictment, which are identical except for the alleged victims, charge the defendants with labor trafficking in violation of 18 U.S.C. § 1589(a). Defendants argue that these counts must be dismissed because they "do[] not identify which of the four subsections of § 1589(a) the defendants supposedly violated." ECF No. 433, at 11.

         Counts Two and Three allege that the

defendants did knowingly provide and obtain the labor and services of an individual, known to the grand jury as Victim [A or B, respectively], by means of a scheme, plan, or pattern intended to cause the victim believe [sic] that the victim would suffer serious harm or through threatened abuse of law and legal process.

ECF No. 52, at 7-8. Defendants complain that these counts are defective because they contain language from both § 1589(a)(3) and (4), and because "the indictment omits part of the scienter requirement in subsection (4)." ECF No. 433, at 11. This first argument can be rejected out of hand; an indictment may permissibly allege alternative means of committing an offense. Fed. R. Crim. P. 7(c) ("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."); see United States v. Markee, 425 F.2d 1043, 1048 (9th Cir. 1970).

         Defendants' second argument, however, merits greater explication. Subsection (a)(4) of Section 1589 reads, "by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint." (emphasis added).

         Defendants argue that the emphasized text imposes a second scienter requirement: not only must defendant act knowingly in utilizing these means, but the alleged victim must believe that the threat of serious harm is conditioned on failure to perform labor or services. SeeUnited States v. Calimlim,538 F.3d 706, 711 (7th Cir. 2008). Thus, the ...


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