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214. Drafting Indictments and Informations

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.

Updated June 8, 2015