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128. Opposition To Defendant's Motion To Strike Surplusage

The United States hereby submits the following opposition to the defendant's Motion to Strike Surplusage.

Rule 7(d) of the Federal Rules of Criminal Procedure provides that a court, on motion of the defendant, may strike surplusage from an indictment. However, as the Tenth Circuit Court of Appeals has stated, a court may only strike allegations as surplusage if they are "not relevant to the charge at issue and inflammatory and prejudicial." United States v. Collins, 920 F.2d 619, 631 (10th Cir. 1990), cert. denied, 111 S.Ct. 2022 (1991); see also, United States v. Bucey, 691 F. Supp. 1077, 1081 (N.D. Ill. 1988), aff'd in part, rev'd in part on other grounds, 876 F.2d 1297 (7th Cir.), cert. denied, 110 S. Ct. 565 (1989) (motion to strike surplusage should be granted only where it is "clear that the allegations are not relevant to the charge and are inflammatory and prejudicial.") (quoting Wright & Miller, Federal Practice and Procedure, § 127 (1982)). Due to this "exacting standard," motions to strike information as surplusage are rarely granted. United States v. Gambale, 610 F. Supp. 1515, 1543 (D. Mass. 1985); Bucey, 482 F. Supp. at 1081; see also, United States v. Jordan, 626 F.2d 928, 930 n.1 (D.C. Cir. 1980) ("The standard under Rule 7(d) has been strictly construed against striking surplusage."). Furthermore, courts have routinely held that general background information intended to explain the charges contained in the indictment should not be stricken as surplusage. See, e.g., United States v. Wecker, 620 F. Supp. 1002, 1006 (D. Del. 1985); United States v. Climatemp, Inc., 482 F. Supp. 376, 391 (N.D. Ill. 1979), aff'd, 705 F.2d 461 (7th Cir.), cert. denied sub nom., Fakter v. United States, 462 U.S. 1134 (1983).

Given this legal framework, it is clear that the language challenged by the defendant should not be stricken as surplusage because it is legally relevant and because it is not inflammatory and prejudicial. The first seven paragraphs of the indictment provide important background information, that is neither inflammatory nor prejudicial, and that is essential for the jury's understanding of the charges contained in the indictment. Indeed, Paragraph One properly describes the party against whom the offenses were committed and which is responsible for ensuring compliance with the statute at issue in this case; Paragraph Two explains the central term -- "animal drug" -- of the indictment; Paragraph Three sets forth the labeling requirements which are at the heart of Counts One, Three and Four of the indictment; Paragraph Four describes the harm to be prevented by the labeling requirements set forth in Paragraph Three; Paragraphs Five and Six set forth the new animal drug application requirements which are the heart of Counts One and Two of the indictment; and Paragraph Seven sets forth a non-inflammatory description of the defendant and the business entities he controlled, and through which he committed the violations alleged in the indictment. Likewise, Paragraph 11(a)-(c) of the indictment simply sets forth the non-inflammatory fact that the defendant travelled to certain locations to receive the animal drugs at issue in the indictment, and Paragraph 11(f)-(g) sets forth the non-inflammatory fact that the defendant paid for these drugs.

Clearly, information about the FDA, the defendant's business entities, animal drugs, the FDA's labeling and new animal drug requirements, and the defendant's methods for obtaining these drugs, are relevant to the jury's understanding of the charges contained in the indictment. Indeed, courts have consistently refused to strike similar background information contained in indictments for this very reason. See, e.g., Climatemp, 482 F. Supp. at 391-92 (refusing to strike general language about sheet metal industry because relevant to charges); Bucey, F. Supp. at 1081-82 (refusing to strike allegations that funding for narcotics transactions came from illicit sources because relevant to charges); Wecker, 620 F. Supp. at 1006 (refusing to strike allegations that "while not essential to the charges, are certainly in a general sense relevant to the overall scheme . . . charged.").Furthermore, none of the challenged paragraphs contain any allegations that are inflammatory and prejudicial. To the contrary, numerous courts have upheld language that was much more inflammatory and prejudicial than the neutral language that is used in this indictment. See, e.g., United States v. Rastelli, 653 F. Supp. 1034, 1055-56 (E.D.N.Y. 1986) (refusing to strike such language as "Mafia," "La Cosa Nostra," and "The Bonanno Crime Family"); United States v. Persico, 621 F. Supp. 842, 860-61 (S.D.N.Y. 1985) (refusing to strike references to "organized crime" and aliases such as "the Beast" and "the Snake"); United States v. Terrigno, 838 F.2d 371, 373 (9th Cir. 1988) (refusing to strike allegations that diverted funds were destined for the "poor and homeless" and that rightful recipients were "lulled and deceived").As the discussion above makes clear, the defendants have not met the exacting standard of showing that the challenged language is irrelevant, inflammatory and prejudicial. Accordingly, the defendant's motion is without basis and should be denied.

Respectfully submitted,

__________________________________ Robert D. Okun William M. Zoffer Office of Consumer Litigation United States Department of Justice P.O. Box 386 Washington, D.C. 20044 202-616-2377; 202-307-0088

Updated May 20, 2015