United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski United States District Judge
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
• 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).
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.
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)).
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).
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).
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.
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
"[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).
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).
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. The court will now describe and rule on
defendants' arguments as to each 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)).
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.
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
(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....
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.
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.
Counts Two and Three
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.
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
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).
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