United States District Court, D. Vermont
OPINION AND ORDER ON MOTION TO DISMISS INDICTMENT PURSUANT TO RULE 12(B)(3)(B)(V) AND THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS, OR, IN THE ALTERNATIVE, TO STRIKE SURPLUSAGE PURSUANT TO RULE 7(D) (DOC. 632)
Geoffrey W. Crawford, Judge United States District Court.
Defendant Donald Fell seeks dismissal of the Superseding Indictment and the Special Findings in that Indictment (Doc. 57) under Fed. R. Crim. P. 12(b)(3)(B)(v) and the Fifth, Sixth, and Eighth Amendments to the United States Constitution. (Doc. 632.) Alternatively, Fell seeks to strike a portion of paragraph 1 of the Superseding Indictment as prejudicial surplusage under Fed. R. Crim. P. 7(d). The Government opposes Fell's Motion, (Doc. 658), and Fell has filed a Reply (Doc. 681). For the reasons below, Fell's Rule 12(b)(3)(B)(v) Motion to Dismiss and Rule 7(d) Motion to Strike (Doc. 632) are DENIED.
The July 8, 2002 Superseding Indictment begins with the following introductory paragraphs:
1. On or about November 27, 2000, inside the residence of Debra Fell in Rutland, Vermont, the defendant DONALD FELL and Robert Lee killed Debra Fell and Charles Conway by stabbing them with knives and slashing their throats.
2. After the killings, FELL and Lee decided to flee from Rutland and left the residence to search for a vehicle. They were armed with a Mossberg 12-guage shotgun.
3. In the pre-dawn hours of November 27, FELL and Lee accosted Teresca King, who had driven a 1996 Plymouth Neon automobile from her home in North Clarendon, Vermont to her job at the Price Chopper supermarket in downtown Rutland. FELL and Lee commandeered King's vehicle at shotgun-point and abducted Mrs. King.
4. Thereafter, FELL and Lee drove Mrs. King from Vermont to New York State. A few hours after the carjacking and kidnapping, in Dutchess County, New York, FELL and Lee intentionally killed Mrs. King by punching and kicking her in the head and by smashing her head with rocks. They abandoned her body at the murder scene.
5. After killing Mrs. King, FELL and Lee drove in her automobile to Wilkes-Barre, Pennsylvania and then on to Clarksville, Arkansas where, on November 30, 2000, they were stopped by law enforcement authorities and arrested.
6. Mrs. King's 1996 Plymouth Neon automobile was manufactured outside the state of Vermont.
(Doc. 57 at 1-2.)
The Superseding Indictment then recites the following four counts. In Count 1, the carjacking count, the Grand Jury charged:
On or about November 27, 2000, in the District of Vermont, the defendant DONALD FELL, with intent to cause death and serious bodily harm, took by force and violence and by intimidation from the person and presence of Teresca King a 1996 Plymouth Neon automobile, a motor vehicle that had been transported, shipped and received in interstate and foreign commerce, and the death of Teresca King resulted from such taking of the automobile. (18 U.S.C. §§ 2119(3) &2)
(Doc. 57 at 3.) In Count 2, the kidnapping count, the Grand Jury charged:
On or about November 27, 2000, in the District of Vermont and elsewhere, the defendant DONALD FELL unlawfully seized, kidnapped, abducted and carried away Teresca King and held her for ransom, reward and otherwise, and willfully transported her, while she was alive, in interstate commerce from the State of Vermont to the State of New York, resulting in the death of Teresca King. (18 U.S.C. §§ 1201(a)(1) & 2)
(Doc. 57 at 4.)
Counts 3 and 4 are firearm counts. In Count 3, the Grand Jury charged:
On or about November 27, 2000, in the District of Vermont and elsewhere, the defendant DONALD FELL knowingly possessed and brandished a firearm, specifically a Mossberg 12-gauge shotgun, in furtherance of crimes of violence for which they may be prosecuted in a court of the United States, namely, carjacking and kidnapping in violation of 18 U.S.C. §§2119 and 1201. (18 U.S.C. §§924(c)(1)(A)(ii)&2)
(Doc. 57 at 5.) Count 4 reads:
On or about and between November 27, 2000 and November 30, 2000, in the District of Vermont and elsewhere, the defendant DONALD FELL, who was a fugitive from justice, transported a firearm, to wit, a Mossberg 12-gauge shotgun, in interstate commerce between the State of Vermont and the State of Arkansas. (18 U.S.C. §§ 922(g)(2) & 2)
(Doc. 57 at 6.)
The Superseding Indictment also contains the following "Notice of Special Findings, " stating that, as to Counts 1 and 2, Fell:
a. was 18 years of age or older at the time of the offenses.
b. intentionally killed Teresca King (18 U.S.C. § 3591(a)(2)(A)).
c. intentionally inflicted serious bodily injury that resulted in the death of Teresca King (18 U.S.C. § 3591(a)(2)(B)).
d. intentionally participated in one or more acts, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than a participant in the offense, and Teresca King died as a direct result of such act or acts (18 U.S.C. § 3591(a)(2)(C)).
e. intentionally and specifically engaged in one or more acts of violence, knowing that the act or acts created a grave risk of death to a person, other than one of the participants in the offense, such that participation in such act or acts constituted a reckless disregard for human life, and Teresca King died as a direct result of such act or acts (18 U.S.C. § 3591(a)(2)(D)).
f. caused the death of Teresca King during the commission of a violation of 18 U.S.C. § 1201 (kidnapping) (18 U.S.C. § 3592(c)(1)).
g. committed the offense in an especially heinous, cruel, or depraved manner in that it involved serious physical abuse to Teresca King (18 U.S.C. § 3592(c)(6)).
h. intentionally killed or attempted to kill more than one person in a single criminal episode (18 U.S.C. § 3592(c)(16)).
(Doc. 57 at 7-8.)
I. Motion to Dismiss the Superseding Indictment and Special Findings
Under Rule 12(b)(3)(B)(v), a defendant may bring a motion to dismiss for "a defect in the indictment or information including . . . (v) failure to state an offense." Fell contends that each count of the Superseding Indictment is defective for failing to state one or more essential elements. (Doc. 632-1 at 11.) He also contends that the Notice of Special Findings is defective for failing to state one or more essential elements. (See Id. at 15, 19, 31.) The court begins with the applicable legal standards, and then turns to each of Fell's specific challenges.
Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires that an indictment "be a plain, concise, and definite written statement of the essential facts constituting the offense charged." This court has held that, "[i]n order to meet these requirements, 'an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.'" United States v. Roy, No. 11-cr-109, 2012 WL 47768, at *2 (D. Vt. Jan. 9, 2012) (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975)). In addition to what Rule 7(c)(1) requires,
[t]here are "two constitutional requirements for an indictment: first, that it contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, that it enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense."
United States v. Veliz, 800 F.3d 63, 77 n.15 (2d Cir. 2015) (quoting United States v. Rigas, 490 F.3d 208, 228 (2d Cir. 2007)); see also United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007) (same). Thus, "[i]f... an essential element is omitted, the indictment must be dismissed." United States v. Miller, 17 F.R.D. 486, 489 (D. Vt. 1955).
The text of a criminal statute may not always recite all of the essential elements. See, e.g., Neder v. United States, 527 U.S. 1, 25 (1999) (holding that, although materiality was not mentioned in the federal mail fraud, wire fraud, and bank fraud statutes, it was an element of those crimes). Essential elements not stated in the statutory text must be explicitly alleged in the indictment. See United States v. Santeramo, 45 F.3d 622, 624 (2d Cir. 1995) (per curiam) ("It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly ... set forth all the elements necessary to constitute the offence intended to be punished." (internal quotation marks omitted; ellipsis in original) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974))); United States v. Jackson, 749 F, Supp. 2d 19, 26 (N.D.N.Y. 2010) ("When statutory language fails to include all the elements of an offense, the missing elements must be included in the indictment."); see also 1 Charles Alan Wright et al., Federal Practice and ...