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U.S. v. Smallwood 09-CR-249-D07 (N.D. Tx.; July 15, 2011)

U.S. v. Smallwood 09-CR-249-D07 (N.D. Tx.; July 15, 2011)

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Court rejects criminal defendant's First Amendment challenges to CAN-SPAM.
Court rejects criminal defendant's First Amendment challenges to CAN-SPAM.

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Published by: Venkat Balasubramani on Jul 19, 2011
Copyright:Attribution Non-commercial


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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXASDALLAS DIVISIONUNITED STATES OF AMERICA, §§Plaintiff, §§ Criminal No. 3:09-CR-249-D(07)VS. §§ALICIA CARGILL SMALLWOOD, §§Defendant. §MEMORANDUM OPINIONAND ORDERDefendant Alicia Cargill Smallwood (“Smallwood”) has filed several motionschallenging the third superseding indictment (“indictment”). For the reasons that follow, thecourt denies the motions.ISmallwood is charged in the indictment with two offenses: in count one withconspiracy to commit wire and mail fraud, in violation of 18 U.S.C. § 1349; and in count twowith fraud and related activity in connection with electronic mail, in violation of 18 U.S.C.§ 1037(a)(2) and (b)(2)(C).
The indictment also contains a forfeiture notice in whichSmallwood’s assets are alleged to be subject to forfeiture upon a conviction of either of thecounts in which she is charged. Smallwood has filed three motions seeking relief withrespect to the indictment: a motion to dismiss the indictment on grounds of duplicity and
The count also charges that she is guilty of this offense as an aider and abettor under18 U.S.C. § 2.
Case 3:09-cr-00249-D Document 1003 Filed 07/15/11 Page 1 of 55 PageID 4985
multiplicity; a motion to dismiss the indictment on the grounds that it is not “a plain, concise,and definite written statement of the essential facts constituting the offense charged” and isconsequently vague and overly broad and fails to state an offense and, alternatively, to strikesurplusage in the indictment; and a motion to dismiss count two. The government opposesthe motions.
 Legal Principles Regarding Indictments
Because Smallwood’s motions challenge the sufficiency of the indictment, the courtbegins by reviewing pertinent legal principles.Under Fed. R. Crim. P. 7(c)(1), an indictment “must be a plain, concise, and definitewritten statement of the essential facts constituting the offense charged and must be signedby an attorney for the government.” When applying this standard, common sense shouldprevail over technicalities.
1 Charles A. Wright & Arthur R. Miller,
Federal Practiceand Procedure
§ 123, at 522-23 (4th ed. 2008). In each count, the indictment “must give theofficial or customary citation of the statute, rule, regulation, or other provision of law that the
The grand jury is authorized, of course, to return a fourth superseding indictment anytime before the trial commences.
See, e.g., United States v. Trahan
, 333 Fed. Appx. 818, 819(5th Cir. 2009) (per curiam) (noting the “long-standing authority holding that a supersedingindictment may be filed any time before trial on the merits”);
United States v. Millet,
559F.2d 253, 257-58 (5th Cir. 1977) (“This Court has held that a super[s]eding indictment maybe returned at any time before a trial on the merits.”). To the extent the court identifies in thismemorandum opinion and order defects in the indictment that are curable, the governmentmay opt to seek a fourth superseding indictment that removes the deficiencies in theindictment.- 2 -
Case 3:09-cr-00249-D Document 1003 Filed 07/15/11 Page 2 of 55 PageID 4986
defendant is alleged to have violated.” Rule 7(c)(1). “A count may allege that the means bywhich the defendant committed the offense are unknown or that the defendant committed itby one or more specified means.”
 Rule 7 put an end to “the rules of technical and formalizedpleading which had characterized an earlier era.” The complexrequirements of common law criminal pleading are nowobsolete, harmless imperfections of form are now disregarded,and the fine detail previously demanded at the pleading stage isnot longer required.1 Wright & Miller,
, § 123, at 521-22 (quoting
 Russell v. United States
, 369 U.S. 749,762 (1962)). Rule 7(c)(1) “is designed to simplify indictments by eliminating unnecessaryphraseology which needlessly burdened many indictments under the former practice.”
United States v. Debrow
, 203 F.2d 699, 701-02 (5th Cir.),
rev’d on other grounds
, 346 U.S. 374(1953);
see also United States v. Smith
, 228 F. Supp. 345, 347
(E.D. La. 1964) (“To requirean[] extensive recitation of facts in the indictment itself would be favoring form oversubstance and would ignore both the wording of Rule 7(c) and the intent to simplify the formof indictment expressed by the Advisory Committee on Federal Criminal Rules.”).“Rule 7 eliminates the necessity for the inclusion in an indictment of many of thetechnical and prolix averments which were required at common law[.]”
United States v. Cox
,342 F.2d 167, 171 (5th Cir. 1965) (en banc). The drafters of Rule 7(c) aimed to prevent“horrible examples of prolix indictments,” to allow simpler indictments, and to eliminatetechnicalities in the official forms previously required.
United States v. Trinastich
, 354 F.Supp. 54, 57 (W.D. Mo. 1973) (internal quotation marks and citation omitted);
see also
- 3 -
Case 3:09-cr-00249-D Document 1003 Filed 07/15/11 Page 3 of 55 PageID 4987

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