You are here

Criminal Resource Manual 221 Sufficiency

221

Sufficiency

Fed. R. Crim. P. 7(c)(1), provides:
The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.

See United States v. Ellender, 947 F.2d 748, 755-56 (5th Cir. 1991)(indictment charging defendant with drug conspiracy "commencing in or about the month of July 1982" through August, 1984 "in the Western District of Louisiana" sufficient under Rule 7(c)(1) because precise date not required). An indictment need only allege the essential facts, that is the facts and elements of the alleged offense necessary to inform the accused of the charge so that the defendant may prepare a defense and invoke the Double Jeopardy Clause when appropriate. The true test of an indictment is not whether it might possibly be made more certain but whether it contains:
[E]very element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in the case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

Cochran v. United States, 157 U.S. 286, 290 (1895).
Courts generally consider only the indictment itself to determine whether or not the indictment is sufficient. United States v. Critzer, 951 F.2d 306, 307-08 (11th Cir. 1992) (per curiam)(in analyzing motion to dismiss indictment for insufficiency, court should look only at face of indictment, not facts government expects to prove). Courts will not normally find an indictment insufficient unless it fails to state a material element of the offense. See United States v. Lopez, 2 F.3d 1342, 1368 (5th Cir. 1993), aff'd, 115 S.Ct. 1624 (1995)(indictment charging possession of firearm in school zone insufficient because of failure to allege commerce nexus where such connection is necessary element of defense); United States v. Covino, 837 F.2d 65, 71 (2d Cir. 1988)(indictment charging wire fraud insufficient because it failed to allege essential element of offense that defendant defrauded employer of money or property); United States v. Frankel, 721 F.2d 917, 917-19 (3d Cir. 1983)(indictment charging false statement insufficient because presentation of worthless check did not constitute false statement).
However, indictments that, when read in their entirety, inform the defendant of all elements of the offense are generally sufficient, even if lacking the factual circumstances of the crime charged. See United States v. Glecier, 923 F.2d 496, 501 (7th Cir.), cert. denied, 502 U.S. 810 (1991)(indictment charging RICO violation sufficient to charge conspiracy and racketeering activity even though failed to list specific predicate acts to which defendant conspired); United States v. Turley, 891 F.2d 57, 59 (3d Cir. 1989)(indictment charging mail fraud sufficient because, when read in entirety, it informed defendant of charges even though it lacked details of defendant's scheme).
Under the Federal Rules of Criminal Procedure, an error in or omission of a statutory citation is not a basis for dismissal of an indictment or information, or for reversal of a conviction if the defendant is not prejudiced by the error or omission. Fed. R. Crim. P. 7(c)(3); see United States v. Hall, 979 F.2d 320, 323 (3d Cir. 1992)(indictment that identified all elements of crime sufficient despite citing inapplicable statute when defendant appraised of charges because defendant not prejudiced); United States v. Mayo, 705 F.2d 62, 77-78 (2d Cir. 1983) (indictment that identified chapter, title and section of statute sufficient despite failure to cite specific provisions because defendant not prejudiced).
The defendant may move to require the government to supplement an incomplete indictment with a bill of particulars which more fully discloses the nature of the charges against the defendant. Fed. R. Crim. P. 7(f). A bill of particulars should not be used merely as a discovery device to acquire evidentiary details about the government's case. United States v. Fleming, 8 F.3d 1264, 1265-66 (8th Cir. 1993)(motion for bill of particulars denied when indictment sufficient to inform defendant of charges and no surprise or prejudice). In Russell v. United States, the Supreme Court stated that the availability of a bill of particulars will not cure an indictment that omits an essential element of the offense. 369 U.S. 749, 769-70 (1962).
An information must conform to the same rules regarding sufficiency as does an indictment. See England v. United States, 174 F.2d 466 (5th Cir. 1949); Southern Ry Co. v. United States, 88 F.2d. 31 (5th Cir. 1937).

[cited in Criminal Resource Manual 214]

Updated February 19, 2015