Skip to main content

Primary tabs

Criminal Resource Manual

218. Incorporation By Reference

Fed. R. Crim. P. 7(c)(1), provides that "[a]llegations made in one count may be incorporated by reference in another count." The device of incorporating material from other counts is useful to avoid repetition such as is typical in fraud, conspiracy, and bankruptcy cases. For example, in a mail fraud case an introductory paragraph to one count was employed to charge all of the necessary elements represented by individual mailings, which may be incorporated by reference and set out in columnar form to avoid repetition. See United 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 material from another count is to employ the term "incorporate" unless the reference is otherwise clear. If, for example, one count describes a particular election, a reference in subsequent counts to "said election" properly refers to the same election. See Blitz v. United States, 153 U.S. 308 (1894). Incorporation should not be made to the point of incorporating the allegations 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 (D.D.C. 1981).

Each count of a multiple count indictment is viewed as a separate indictment whose sufficiency must be determined without reference to any other count. United States v. Smith, 44 F.3d 1259, 1263 (4th Cir.), cert. denied, 115 S.Ct 1970 (1995). If a count does not expressly incorporate allegations of another count, such allegations cannot be considered. For 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 indictment incorporated allegations of counts one and three, but the latter did not incorporate the allegations of the former. Thus, allegations necessary to counts one and three could not be supplied from counts two and four. See United States v. Gordon, 253 F.2d 177, 180 (7th Cir. 1958).

"[I]f a previous count be defective or is rejected, that circumstance will not vitiate the remaining counts, if the reference be sufficiently full to incorporate the matter. . . ." United States v. Smith, 13 F.3d 1421, 1427 (10th Cir.), cert. denied, 115 S.Ct 209 (1994); United States v. Weiner, 578 F.2d 757, 776 (9th Cir. 1978).