214
Drafting Indictments and Informations
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The Sixth Amendment commands that the accused in a criminal
prosecution "be
informed of the nature and cause of the accusation." Rule 7(c)(1)
gives effect
to these requirements and provides as follows:
The indictment or the information shall be a plain, concise and
definite
written statement of the essential facts constituting the offense
charged. It
shall be signed by the attorney for the government. It need not
contain a formal
commencement, a formal conclusion or any other matter not necessary
to such
statement. Allegations made in one count may be incorporated by
reference in
another count. It may be alleged in a single count that the means
by which the
defendant committed the offense are unknown or that he committed it
by one or
more specified means. The indictment or information shall state
for each count
the official or customary citation of the statute, rule, regulation
or other
provision of law which the defendant is alleged therein to have
violated.
Fed. R. Crim. P. 7(c)(1).
The indictment and information must contain sufficient detail
to adequately
apprise the defendant of the nature of the charges against him.
The drafter must
afford the defendant not only a document that contains all of the
elements of the
offense, whether or not such elements appear in the statute, but
one that is
sufficiently descriptive to permit the defendant to prepare a
defense, and to
invoke the double jeopardy provision of the Fifth Amendment, if
appropriate.
Hamling v. United States, 418 U.S. 87, 117, reh'd
denied,
419 U.S. 885 (1974); Russell v. United States, 369 U.S. 749,
763-72
(1962); United States v. Hernandez, 891 F.2d 521, 525 (5th
Cir. 1989),
cert. denied, 495 U.S. 909 (1990) (indictment for drug
trafficking and
firearm violations valid despite lack of specific statutory
language because
sufficient information provided to prepare double jeopardy
defense).
In reviewing the sufficiency of an indictment, the courts will
construe the document as a whole to ascertain whether the foregoing
requirements have been met. United States v. Hand, 497 F.2d
929,
934-35 (5th Cir. 1974), cert. denied, 424 U.S. 953 (1976);
Moore's Federal Practice, Section 7.04 (1982). What is required are
factual allegations rather than a mere recitation of the acts or
practices proscribed by the offense allegedly committed. See,
e.g., United States v. Nance, 533 F.2d 699, 701 (D.C.
Cir.
1976) (an indictment charging theft of money by false pretenses
which
listed name of victim, date of false representation, loss to victim
and
date money was paid to defendant was fatally defective, because it
did
not specify the false representation that induced victims to pay
money).
See this Manual at 221.
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