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127.

Response to Motion to Strike Surplusage

Pursuant to Fed. R. Crim. P. 7(d), defendant XXXXXXXX has moved to strike Paragraph 1 of Count I of the Indictment in CR xxxxxxxxxxxxxx and its successive incorporation into all subsequent counts. The United States of America respectfully requests that the court deny this motion, as it did defendant's virtually identical motion in CR xxxxxxxxxxxxxx.

Rule 7(d) provides that, on motion by the defense, the Court may strike "surplusage" from an indictment. Such a motion is addressed to the sound discretion of the district court and should be granted only where an indictment contains "prejudicial or inflammatory allegations that are neither relevant nor material to the charges." United States v. Terrigno, 838 F.2d 371, 373 (9th Cir. 1988); United States v. Ramirez, 710 F.2d 535, 544-45 (9th Cir. 1983). The rule has been strictly construed against striking surplusage. See United States v. Jordan, 626 F.2d 928, 930 n.1 (D.C. Cir. 1980); United States v. Kemper, 503 F.2d 327, 329 (6th Cir. 1974), cert. denied, 419 U.S. 1124 (1975).

As an initial matter, the defendants do little more than assert that the allegations in question are "self-serving", "prejudicial" and "unnecessary to the indictment". Defendants' Motion to Strike Surplusage, p.2, ll.13-15. These bare bones assertions fall far short of the showing required for a motion to strike surplusage. Furthermore, the allegations challenged by the defendant are clearly relevant to the offenses charged in this case and are neither inflammatory nor prejudicial.

Paragraph 1 identifies the U.S. Food and Drug Administration (FDA) as the agency responsible for regulating drug products so that they are safe and effective, which is highly relevant to the criminal intent of the defendants as alleged in all of the counts of the indictment. Unlike other criminal statutes, the Federal Food, Drug and Cosmetic Act (FDCA), under which the defendants were charged, requires not only proof of knowing violations, but proof of "intent to defraud or mislead." 21 U.S.C. § 333(a)(2). "Intent to defraud or mislead" can encompass the intent to defraud or mislead the FDA in its efforts to carry out its regulatory mission. United States v. Cambra, 933 F.2d 752 (9th Cir. 1991); United States v. Bradshaw, 840 F.2d 871, 874 (11th Cir.), cert. denied, 488 U.S. 924 (1988). Given this mens rea requirement, and the fact that the FDA itself may be the target of the defendant's intent, both a brief statement of the FDA's regulatory responsibility and a statement of the purposes it serves provide relevant context to the charges alleged in the indictment.

The material sought to be stricken as surplusage is relevant and material to the charges alleged in the indictment. An examination of the language in question also shows that it is not in the least bit prejudicial or inflammatory. The defendant has failed to so much as articulate how this material is prejudicial or inflammatory, and given the nature of the wording which has been allowed by the courts in other cases, it is difficult to see how they could do so. See, e.g., United States v. Napolitano, 552 F. Supp. 465, 480 (S.D.N.Y. 1982) (reference to "the Bonanno Family of La Cosa Nostra" proper because explanatory of structure of criminal association); United States v. Persico, 621 F. Supp. 842, 860 (S.D.N.Y. 1985) (references to "organized crime," "anti-bugging" equipment, and the use of such aliases as "the Beast" and "the Snake"); United States v. Bucey, 691 F. Supp. 1077, 1081-82 (N.D.Ill. 1988) (allegations of drug trafficking and narcotics transactions in a mail fraud indictment); United States v. Richter, 610 F. Supp. 480, 496 n.25-26 (N.D.Ill. 1985) (references to "laundering" which the indictment defined as "illegally secreting" cash), aff'd mem. sub nom., United States v. Mangovski, 785 F.2d 312 (7th Cir.), aff'd mem. sub nom., United States v. Konstantinov, 793 F.2d 1296 (7th Cir.), cert. denied, 479 U.S. 855 (1986); United States v. Chaverra-Cardona, 667 F. Supp. 609, 610-11 (N.D.Ill. 1987) (references to defendant being an inmate awaiting trial for narcotics offenses). Of course, as indicated above, even if the material in question were prejudicial and inflammatory, it is not properly stricken as surplusage as long is it is relevant and material. United States v. Terrigno, 838 F.2d at 373. See also United States v. Climatemp, Inc., 482 F. Supp. 376, 391 (N.D. Ill. 1979) (indictment language the government hopes to prove at trial cannot be considered surplusage no matter how prejudicial it may be, if it is legally relevant), aff'd mem., 705 F.2d 461 (7th Cir.), cert. denied sub nom., Fakter v. United States, 462 U.S. 1134 (1983).

CONCLUSION

For the foregoing reasons, the United States requests that the defendant's Motion to Strike Surplusage be denied.

Respectfully submitted this _______ day of September, 1993.

____________________________ STEVEN A. KELLER SHARON I. KURN Trial Attorneys Office of Consumer Litigation U.S. Department of Justice P.O. Box 386 Washington, D.C. 20044

[cited in USAM 4-8.240]