Fed. R. Crim. P. 7(c)(1), provides:|
The indictment or the information shall be a plain,
definite written statement of the essential facts constituting the
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
Louisiana" sufficient under Rule 7(c)(1) because precise date not
indictment need only allege the essential facts, that is the facts
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
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,
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
whether the record shows with accuracy to what extent he may plead
acquittal or conviction.
Cochran v. United States, 157 U.S. 286, 290 (1895).
Courts generally consider only the indictment itself to
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
indictment for insufficiency, court should look only at face of
facts government expects to prove). Courts will not normally find
insufficient unless it fails to state a material element of the
See United States v. Lopez, 2 F.3d 1342, 1368 (5th
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.
F.2d 65, 71 (2d Cir. 1988)(indictment charging wire fraud
it failed to allege essential element of offense that defendant
employer of money or property); United States v. Frankel,
721 F.2d 917,
917-19 (3d Cir. 1983)(indictment charging false statement
presentation of worthless check did not constitute false
However, indictments that, when read in their entirety, inform
defendant of all elements of the offense are generally sufficient,
lacking the factual circumstances of the crime charged. See
States v. Glecier, 923 F.2d 496, 501 (7th Cir.), cert.
U.S. 810 (1991)(indictment charging RICO violation sufficient to
conspiracy and racketeering activity even though failed to list
predicate acts to which defendant conspired); United States v.
F.2d 57, 59 (3d Cir. 1989)(indictment charging mail fraud
when read in entirety, it informed defendant of charges even though
details of defendant's scheme).
Under the Federal Rules of Criminal Procedure, an error in or
a statutory citation is not a basis for dismissal of an indictment
information, or for reversal of a conviction if the defendant is
by the error or omission. Fed. R. Crim. P. 7(c)(3); see
v. Hall, 979 F.2d 320, 323 (3d Cir. 1992)(indictment that
elements of crime sufficient despite citing inapplicable statute
appraised of charges because defendant not prejudiced); United
Mayo, 705 F.2d 62, 77-78 (2d Cir. 1983) (indictment that
title and section of statute sufficient despite failure to cite
provisions because defendant not prejudiced).
The defendant may move to require the government to supplement
incomplete indictment with a bill of particulars which more fully
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
evidentiary details about the government's case. United States
Fleming, 8 F.3d 1264, 1265-66 (8th Cir. 1993)(motion for bill
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.
[cited in Criminal Resource Manual 214]