Incorporation by Reference
Fed. R. Crim. P. 7(c)(1), provides that "[a]llegations made in
may be incorporated by reference in another count." The device of
material from other counts is useful to avoid repetition such as is
fraud, conspiracy, and bankruptcy cases. For example, in a mail
fraud case an
introductory paragraph to one count was employed to charge all of
elements represented by individual mailings, which may be
reference and set out in columnar form to avoid repetition.
States v. McGuire, 381 F.2d 306 (2d Cir. 1961), cert.
denied, 389 U.S.
1053 (1968). See also United States v. Scurlock, 52
F.3d 531, 537
(5th Cir. 1995). The safe course to follow in incorporating
another count is to employ the term "incorporate" unless the
otherwise clear. If, for example, one count describes a particular
reference in subsequent counts to "said election" properly refers
to the same
election. See Blitz v. United States, 153 U.S. 308
Incorporation should not be made to the point of incorporating the
of a count in one indictment into a count of a different indictment
as was done
in United States v. Berqdoll, 412 F. Supp. 1308, 1318 n. 16
Each count of a multiple count indictment is viewed as a
indictment whose sufficiency must be determined without reference
to any other
count. United States v. Smith, 44 F.3d 1259, 1263 (4th
denied, 115 S.Ct 1970 (1995). If a count does not expressly
allegations of another count, such allegations cannot be
example, when count one properly described a controlled substance
but count two
omitted the numbers "3, 4," describing the same substance, the
second count did
not state an offense, a defect that could not be cured by reference
to the first
count. See United States v. Huff, 512 F.2d 66, 69
(5th Cir. 1975).
The same result was obtained when counts two and four of an
incorporated allegations of counts one and three, but the latter
incorporate the allegations of the former. Thus, allegations
necessary to counts
one and three could not be supplied from counts two and four.
United States v. Gordon, 253 F.2d 177, 180 (7th Cir. 1958).
"[I]f a previous count be defective or is rejected, that
not vitiate the remaining counts, if the reference be sufficiently
incorporate the matter. . . ." United States v. Smith, 13
F.3d 1421, 1427
(10th Cir.), cert. denied, 115 S.Ct 209 (1994); United
Weiner, 578 F.2d 757, 776 (9th Cir. 1978).