BARRY J. PORTMAN

Federal Public Defender

DANIEL P. BLANK

Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA  94102

Telephone:  (415) 436-7700

 

Counsel for Defendant XXXX XXXX

 

 

 

IN THE UNITED STATES DISTRICT COURT

 

FOR THE NORTHERN DISTRICT OF CALIFORNIA

 

 

 

UNITED STATES OF AMERICA,

 

                                             Plaintiff,

 

v.

 

 

HECTOR MANUEL XXXX XXXX,

 

                                       Defendants.

 

 

 

 

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No. CR 00-0000 ABC

 

NOTICE OF MOTION AND MOTION FOR A BILL OF PARTICULARS; MOTION TO DISMISS THE INDICTMENT DUE TO DUPLICITY; MOTION STRIKE SURPLUSAGE FROM THE INDICTMENT; PROPOSED ORDERS

 

September 29, 2000

1:30 p.m.

 

 

 

 

 

                                                                 INTRODUCTION

Defendant Hector Manuel XXXX XXXX has apparently been charged by superseding indictment filed August 17, 2000, with some violation of 8 U.S.C. ' 1326, illegal reentry after deportation. Because the significance of a textual insertion into the superseding indictment is unclear, and calls into question what elements Mr. XXXX XXXX must be prepared to defend against at trial, the above-captioned motions to clarify the indictment are hereby brought.

Mr. XXXX XXXX had previously been arraigned on an indictment filed May 8, 2000, alleging an offense of precisely the same statute as in the superseding indictment.  The initial indictment, captioned A8 U.S.C. ' 1326,@ alleged only the three elements necessary for a conviction under ' 1326(a):  1) that the defendant is not a citizen; 2) that he was deported; and 3) that he subsequently returned to the United States without permission.  See Attachment A (Indictment and Superseding Indictment).  Although the government had initially agreed to a stipulated facts bench trial on the original indictment, see Attachment B (Letter), the government disregarded this agreement and filed the superseding indictment.  The superseding indictment charges the same offense, A8 U.S.C ' 1326,@ and differs from the initial indictment only by the insertion of the following phrase:  Ahaving been convicted of an aggravated felony within the definition of 8 U.S.C. ' 1101(a)(43).@

On August 18, 2000, in open court on the initial appearance of this matter, AUSA George Bevan, the chief of the General Crimes Section, represented that the additional text in the superseding indictment against Mr. XXXX XXXX did not represent an additional element, but was inserted as a result of a policy change following criticisms by district judges in other cases of how his office had responded to the Supreme Court=s recent decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).  Undersigned counsel agrees that the state of the law following Apprendi remains unsettled.  This uncertainty in the law of illegal reentry compels the instant motions to clarify the government=s theory of prosecution against Mr. XXXX XXXX.

                                                                      ARGUMENT

 

I.       MR. XXXX XXXX MOVES PURSUANT TO RULE 7(f) FOR AN ORDER TO COMPEL THE GOVERNMENT TO PRODUCE A BILL OF PARTICULARS

 

The superseding indictment against Mr. XXXX XXXX differs from the initial indictment only by the insertion of text regarding an unidentified prior conviction.  Such a prior conviction is what distinguishes ' 1326(b), which has a statutory maximum penalty of 20 years, from ' 1326(a), which has a statutory maximum of only 2 years.  Prior to the Apprendi decision, the government had not pleaded the existence of prior convictions or introduced evidence at trial to prove them beyond a reasonable doubt.  Although the government still maintains the position that the existence of a prior conviction does not constitute an element of the offense of illegal reentry, it has nevertheless gone to the trouble of returning to the Grand Jury to seek a superseding indictment.  As a result of this schism between what the government is saying and what the government is doing, the theory of the prosecution remains unclear.  In order to ascertain what elements he will have to prepare to defend against at trial, Mr. XXXX XXXX seeks a bill of particulars.

The Ninth Circuit has explained that the purpose of a bill of particulars is threefold:  ATo inform the defendant of the nature of the charges against him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable him to plead his acquittal or conviction in bar of another prosecution for the same offense when the indictment itself is too vague and indefinite for such purposes.@  United States v. Ayers, 924 F.2d 1468, 1483 (9th Cir. 1991) (internal quotations omitted).  The need for a bill of particulars is not met unless the defendant is otherwise made aware of Athe theory of the government=s case.@  United States v. Ryland, 806 F.2d 941, 942 (9th Cir. 1986).

The recent admission of government counsel in open court--that Mr. XXXX XXXX is not charged with a crime that includes as an element the existence of a prior conviction--may be sufficient to constitute Afull disclosure@ of the theory of the prosecution, obviating the need for a bill of particulars.  See, e.g., United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983) (AFull disclosure will obviate the need for a bill of particulars.@).  If the Court were to accept the statements by government counsel as sufficiently binding, then a bill of particulars would not be necessary.  However, in the absence of such a finding by the Court, Mr. XXXX XXXX moves the Court pursuant to Rule 7(f) to order that a bill of particulars be produced setting out the government=s theory of whether the offense charged against Mr. XXXX XXXX includes as an element the existence of a prior conviction, and which conviction if any is alleged.

 

II.     ALTERNATIVELY, THE INDICTMENT AGAINST MR. XXXX XXXX SHOULD BE DISMISSED AS DUPLICITOUS

 

As discussed above, the textual change in the superseding indictment raises serious questions as to the government=s theory of prosecution against Mr. XXXX XXXX.  These questions may be resolved either with a bill of particulars or with a finding by the Court that the government has committed itself with respect to the elements of the offense charged in the superseding indictment against Mr. XXXX XXXX.  In the absence of one or the other of these potential resolutions, the indictment should be dismissed as duplicitous.

From the additional language in the superseding indictment against Mr. XXXX XXXX and government counsel=s statements in open court, it appears that the government intends to charge two distinct offenses in the superseding indictment=s one count:  illegal reentry simpliciter, in violation of ' 1326(a), and aggravated illegal reentry, in violation of ' 1326(b).  Since it charges two separate illegal reentry offenses in a single count, the superseding indictment should be dismissed as Aduplicitous.@

Charging two offenses in one count of an indictment is contrary to Federal Rule of Criminal Procedure 8(a), which requires that an indictment contain Aa separate count for each offense.@  The joining in a single count of two or more distinct offenses is termed Aduplicity.@  See generally 1 Wright, Federal Practice and Procedure ' 142 (2d ed. 1982); 8 Moore=s Federal Practice ' 8.03 (2d ed. 1984).  The Ninth Circuit has explicated the reasoning behind the prohibition against duplicitous indictments:

 

The vices of duplicity arise from breaches of defendant=s Sixth Amendment right to knowledge of the charges against him, since conviction on a duplicitous count could be obtained without a unanimous verdict as to each of the offenses contained in the count.  A duplicitous indictment also could eviscerate the defendant=s Fifth Amendment protection against doubt jeopardy, because of a lack of clarity concerning the offense for which he is charges or convicted.

 

United States v. Aguilar, 756 F.2d 1418, 1420 n.2 (9th Cir. 1985).  Along these lines, at least one district court in the Ninth Circuit has held that charging both 1326(a) and 1326(b) in one count is duplicitous.  See, e.g., United States v. Pantoja-Valderama, 1997 WL 856119 (S.D.Cal. 1997).[1]

As noted by the Ninth Circuit in Aguilar, the remedies for duplicity are either dismissal of the indictment or, in some circumstances, election by the government of one of the offenses charged in the single count.  See 756 F.2d at 1422-23.  As discussed above, to the extent that the government commits itself to a theory of prosecution regarding the elements of the offense charged against Mr. XXXX XXXX, election is a suitable remedy.  However, if the government will not elect a theory--either through a bill of particulars, or the Court=s notice of admissions by government counsel--then the indictment against Mr. XXXX XXXX must be dismissed as duplicitous.

III.    IF THE COURT DETERMINES THAT A PRIOR FELONY IS NOT AN ELEMENT OF THE CHARGE AGAINST MR. XXXX XXXX, THEN THE TEXT SHOULD BE STRICKEN FROM THE INDICTMENT AS SURPLUSAGE UNDER RULE 7(d)

 

Notwithstanding the textual insertion in the superseding indictment against Mr. XXXX XXXX regarding a prior conviction, the government has admitted in open court that its theory of prosecution is that the offense with which Mr. XXXX XXXX is charged does not include the existence of a prior conviction as an element.  If the Court accepts this theory of prosecution, then the additional language inserted into the superseding indictment should be deleted as surplusage.

Federal Rule of Criminal  Procedure 7(d) provides that A[t]he court on motion of the defendant may strike surplusage from the indictment or information.@  As noted by the Ninth Circuit, A[t]he purpose of Rule 7(d) is to protect a defendant against prejudicial or inflammatory allegations that are neither relevant nor material to the charges.@  United States v. Ramirez, 710 F.2d 535, 544-45 (9th Cir. 1983).  Among the common grounds for granting a motion to strike surplusage from an indictment is to strike aliases, where not relevant to the issue of the defendant=s identification, and to strike prejudicial language describing the nature of a prior felony conviction, where that prior felony conviction is an element of the charged offense.  See id. at 545 (citations omitted).

Here, the government has represented that the charge against Mr. XXXX XXXX does not include as an element the existence of a prior conviction.  The government=s position is that the existence of a prior conviction is relevant only to sentencing.  Under this theory, reference to alleged existence of Mr. XXXX XXXX= prior conviction is not relevant to any substantive element of the charged offense and therefore is surplusage.  Moreover, such references, since they are not relevant to any element of the charged offense, would serve only to prejudice the jury against the defendant.  See, e.g., Griffin v. California, 380 U.S. 609, 615 (1965) (noting prejudicial effect upon jury of admission of a defendant=s prior convictions); see also F.R.Evid. 609 (excluding introduction of prior conviction as prejudicial unless sufficiently probative).  For these reasons, the reference to the prior conviction should be struck from the indictment.

CONCLUSION

 

For the foregoing reasons, Defendant Hector Manuel XXXX XXXX respectfully requests that the Court enter one or more of the attached proposed orders:  1) order for a bill of particulars, Attachment C; 2) order to dismiss the indictment as duplicitous, Attachment D; and/or 3) order to strike surplusage, Attachment E.

 

Dated:

 

Respectfully submitted,

 

BARRY J. PORTMAN

Federal Public Defender

 

 

 

DANIEL P. BLANK

Assistant Federal Public Defender

 

 


[1]  This district court case predated the Supreme Court=s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998) (holding that ' 1326(b) does not set out a different offense than ' 1326(a)).  However, the continuing validity of Almendarez-Torres is questionable in light of the Supreme Court=s more recent decision in Apprendi.  Justice Thomas, who cast the deciding vote in Almendarez-Torres, now appears to have recanted his prior position.  See Apprendi, 120 S. Ct. at 2379 (Thomas, J. concurring) (A[O]ne of the chief errors in Almendarez-Torres--an error to which I succumbed--was to attempt to discern whether a particular fact is traditionally (or typically) a basis for a sentencing court to increase an offender=s sentence.@).  At a minimum, Apprendi limits Almendarez-Torres to its Aunique facts,@ wherein the defendant pleaded guilty and admitted in the colloquy that he had a prior felony conviction.  Apprendi, 120 S. Ct. at 2362.  As a result, the district court=s reasoning remains persuasive authority for this Court to take into consideration.