Sample Memorandum re Surplusage
V. THE INDICTMENT CONTAINS NO SURPLUSAGE|
XXX claims in his third motion that the last two sentences of
paragraph 12, as well as paragraphs 18 and 19 of Count 1 of the
Indictment should be stricken as impermissible surplusage.
A motion to strike allegations in an indictment as surplusage
should be granted only where it is clear that the allegations are
relevant to the charge made and contain inflammatory and
matter. See United States v. Davis, 714 F. Supp. 853,
(S.D. Ohio 1988). "'[I]f the language in the indictment is
which the government hopes to properly prove at trial, it cannot be
considered surplusage no matter how prejudicial it may be
course, it is legally relevant).'" United States v. Thomas,
F.2d 559, 563 (6th Cir. 1989) (quoting United States v.
Inc., 482 F. Supp. 376, 391 (N.D. Ill. 1979), aff'd
sub nom. United States v. Reliable Sheet Metal
Inc., 705 F.2d 461 (7th Cir.), cert. denied, 462
1134 (1983)), cert. denied, 493 U.S. 867 (1989). The
standard for striking language in the indictment "has been strictly
construed against striking surplusage," United States v.
503 F.2d 327, 329 (6th Cir. 1974), cert. denied, 419
1124 (1975), and "only rarely has surplusage been ordered
Davis, 714 F. Supp. at 866 (quoting 1 Wright, Federal
and Procedure § 127, at 426 (2d ed. 982)).
One need go no further than review the last paragraph that
seeks to strike to assess the paucity of XXXX' assertions.
of the Indictment lists 20 overt acts that were taken in
the conspiracy. An essential element of a conspiracy in violation
U.S.C. § 371 is the allegation and proof of at least one overt
in furtherance of that conspiracy. See, e.g.,
States v. Carr, 5 F.3d 986, 990 (6th Cir. 1993); United
Meyers, 646 F.2d 1142, 1143-44 (6th Cir. 1981). As such, there
be no question that inclusion of this paragraph is proper.
Thomas, 875 F.2d at 562 n.2 (affirming district court's
to strike overt act allegations).
XXXX' other objections fare no better. He complains that
18 of the Indictment, entitled "Means and Manners," is unnecessary
because it goes into "great detail" as to issues previously
"generalized statements." (Motion, at ¶ 3). Inclusion of a
and Manners" section in an indictment is an entirely permissible
of explaining the structure of the conspiracy and the roles of each
defendant within the organization. United States v. Jiminez,
F. Supp. 351, 370 (S.D.N.Y. 1993) (refusing to strike "Means and
Methods" portion of conspiracy charge). As courts have
The determinative question in a motion to strike
is not the potential prejudice, but rather the relevance of the
allegation to the crime charged in the indictment. If the evidence
the allegation is admissible and relevant to the charge, then
prejudice, the language will not be stricken.
Id. (quoting United States v. Napolitano, 552 F.
465, 480 (S.D.N.Y. 1982).
XXXX specifically objects to the allegation in paragraph 18
alleges that XXXX and his co-conspirators "caused Moon Down and
entities acquire over 20,000,000 pounds of sugar (including liquid
sugar), the vast majority of which was mixed with, and thereafter
as though it were in fact, orange concentrate, thereby defrauding
Down's customers, others, and the consuming public of in excess of
$20,000,000." (Indictment, ¶ 18(a)). XXXX complains that this
allegation is improper because it "infers to the jurors that the
Defendants must explain what happened to the 20 million pounds of
sugar." (Motion, ¶ 5). In making this argument, XXXX ignores
fact that it is the government that must bear the burden of proving
indictment's allegations. The government is more than prepared to
While XXXX might prefer that the jury not be apprised as to the
magnitude of his fraudulent activities, that information is clearly
admissible and relevant. See United States v. Charles
Co., 217 F. Supp. 199, 201 (S.D.N.Y. 1963) ("if evidence of the
allegation is admissible and relevant to the charge, then
how prejudicial the language, it may not be stricken"); see
also United States v. Krasnoff, 480 F. Supp. 723, 730
(S.D.N.Y. 1979) (refusing to strike allegation of "massive amounts"
prescriptions, noting that it is indicative that prescriptions were
other than legitimate medical purposes). Accordingly, this
should not be stricken.
XXXX further objects to the use of the phrase "secret room" in
paragraph 18(f) of the Indictment. Use of the word "secret" aptly
describes the defendants' use of hidden area to store sugar that
later surreptitiously added to concentrated orange juice products.
described in an overt act, one of these rooms "was hidden from view
accessible only through a fake electrical control panel . . . ."
(Indictment, ¶ 19(g)). Moreover, as will be shown at trial, the
defendants' purpose for concealing the rooms where sugar was stored
to keep their usage of sugar a secret from government regulators.
the circumstances, use of the adjective "secret" to describe the
can hardly be deemed unfairly prejudicial. See, e.g.,
United States v. Gressett, 773 F. Supp. 270, 275 (D. Kan.
(references to "concealed" and "concealment" permissible where
government's proof will be that defendants accomplished fraud
concealment of transactions); United States v. Napolitano,
Supp. at 480 (reference to "the Bonanno Family of La Cosa Nostra"
because explanatory of structure of criminal association);
States v. Persico, 621 F. Supp. 842, 860 (S.D.N.Y. 1985)
references to "organized crime," "anti-bugging" equipment, and the
of such aliases as "the Beast" and "the Snake"); United States
Richter, 610 F. Supp. 480, 496 n.25-26 (N.D.Ill. 1985)
references to "laundering," which the indictment defined as
secreting" cash), aff'd mem. sub nom.,
United States v. Mangovski, 785 F.2d 312 (7th Cir.),
mem. sub nom., United States v.
Konstantinov, 793 F.2d 1296 (7th Cir.), cert.
479 U.S. 855 (1986).
Similarly, the allegation that the defendants caused "Moon
do business with various entities to provide a plausible basis for
explanations in the event defendants were ever questioned about
that Moon Down was acquiring and in fact mixing with products later
by Moon Down as unsweetened orange concentrate products,"
¶ 18(i)), is neither unfairly prejudicial nor inflammatory.
this paragraph will assist the jury in understanding nature of the
defendants' fraudulent scheme, and should therefore not be
See, e.g., United States v. Sciandra, 529 F.
320, 322 (E.D.N.Y. 1982) (permitting allegations of "false,
and fraudulent" invoices and "sham" transactions); United States
Chaverra-Cardona, 667 F. Supp. 609, 611 (N.D. Ill. 1987)
properly gave background information concerning defendant's
incarceration for narcotics offenses to prevent parts of the
from being "unintelligible to a jury"); United States v.
691 F. Supp. 1077, 1081-82 (N.D. Ill. 1988) (refusing to strike
allegations that the funding for narcotics transactions came from
illicit sources because it was relevant to the charges in the
indictment), aff'd in part, 876 F.2d 1297 (7th
1989); see also United States v. Wecker, 620
Supp. 1002, 1006 (D.Del. 1985) (refusing to strike allegations that
"while not essential to the charges, are certainly in a general
relevant to the overall scheme . . . charged").
XXXX' last challenge is directed at the last two sentences in
paragraph 12 of the Indictment which "consists of a recitation of
success of Moon Down in increasing its sales." (Motion at ¶ 3).
argues that "these recitations may infer to jurors that in order to
success, criminality is a necessary accompaniment." (Motion at
This contention is nonsensical. It can hardly be said that
individuals believe that success in business can only be realized
through criminal behavior. Nor is that the point of paragraph 12 of
Paragraph 12 discusses that an "object and goal of the
[was] to increase the sales and profits of Moon Down
. . . by concealing the fact that substantially less expensive
other ingredients were substituted for some of the orange
products defendants were falsely representing to be unsweetened
concentrated orange juice products." Through this activity, the
Indictment alleges, "defendants were able to sell products at
fraudulently inflated prices," and that, "[a]s a direct consequence
defendants' misrepresentations and unlawful acts," Moon Down's
were increased substantially.
These allegations are
and will assist the jury in understanding the defendants' motives,
well as the conduct charged in this case. See United
Fishbach & Moore, Inc., 576 F. Supp. 1384, 1398 (W.D. Pa. 1983)
(refusing to strike allegations relating to defendant corporations'
and amounts of sales); Charles Pfizer & Co., 217 F. Supp. at
(refusing to strike charge that the conspiracy sought to exact
"unreasonably high profits"), rev'd on other
grounds, 426 F.2d 32 (2d Cir. 1970); Climatemp, Inc.,
F. Supp. at 391-92 (refusing to strike allegations that "give
about the sheet metal industry in general and in Chicago in
because such matters "are relevant to forming an understanding
nature of this action"); see also Persico, 621
Supp. at 860 ("An indictment may properly set forth background
information relevant to a defendant's motive and intent")..