A motion to dismiss for failure to state an offense is governed by Rule 12(b) of theFederal Rules of Criminal Procedure. Rule 12(b)(3)(B) allows the Court to hear a claim that “theindictment or information fails to invoke the court’s jurisdiction or to state an offense.” In themuch cited
United States v. Boren
, 278 F.3d 911 (9
Cir. 2002), the Ninth Circuit addressed thecorrect analysis of such a motion.In ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, thedistrict court is bound by the four corners of the indictment. On a motion to dismiss anindictment for failure to state an offense, the court must accept the truth of the allegationsin the indictment in analyzing whether a cognizable offense has been charged. Theindictment either states an offense or it doesn’t. There is no reason to conduct anevidentiary hearing.
, 278 F.3d at 914 (internal citations omitted). Thus, in order to withstand the instantMotions to Dismiss (#56) (#57) the indictment must allege that the Defendants performed actsthat, if proven, constitute a violation of the law under which they have been charged.
.An indictment need only be a “plain, concise, and definite written statement of theessential facts constituting the offense charged.” Fed.R.Crim.P. 7(c)(1). For purposes of due process, an indictment is sufficient if it states “the elements of the offense charged with sufficientclarity to apprise a defendant of the charge against him, primarily so that he can defend himself against the charge and plead double jeopardy in appropriate cases.”
United States v. Johnson
, 804F.2d 1078, 1084 (9th Cir. 1986) (citations omitted).The Defendants argue that the Indictment (#12) fails because the facts alleged, even whenaccepted as true, do not amount to a cognizable offense under the statute. Title 18 U.S.C. §1030(a)(4), the statute under which the Defendants are charged, makes it a crime if anyone:knowingly and with intent to defraud, accesses a protected computer withoutauthorization, or exceeds authorized access, and by means of such conduct furthers theintended fraud and obtains anything of value, unless the object of the fraud and the thingobtained consists only of the use of the computer and the value of such use is not morethan $5,000 in any 1-year period.
. The Defendants assert that they have not violated this statute because: (1) a video poker machine is not a “protected computer” under the statute; and (2) the Defendants’ actions did not“exceed [their] authorized access” to the video poker machines.- 3 -
Case 2:11-cr-00022-MMD -RJJ Document 86 Filed 10/15/12 Page 3 of 10