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 -
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