United States District Court, E.D. North Carolina, Eastern Division
MALCOLM J. HOWARD, Senior District Judge.
This matter is before the court on the following motions filed by defendant:
(1) Motion to Dismiss Count Eleven of the Indictment [DE #208];
(2) Motion to Compel Discovery [DE #209];
(3) Motion for Evidence under Rule 404 (b) [DE #217];
(4) Motion for Discovery [DE #218];
(5) Motion to Incorporate and Deem Re-filed All Previous Motions [DE #219]; and
(6) Motion for Leave to File Additional Pretrial Motions If Needed [DE #220].
The government has responded and defendant has replied to many of the motions. In addition, a hearing was held on January 15, 2015, at the United States Courthouse in Greenville, North Carolina regarding the pretrial motions in this matter. These matters are ripe for adjudication.
I. Motions to Dismiss Standard of Review
Federal Rule of Criminal Procedure 7 (c) (1) provides that an indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." "To pass constitutional muster, an indictment must (1) indicate the elements of the offense and fairly inform the defendant of the exact charges and (2) enable the defendant to plead double jeopardy in subsequent prosecution for the same offense." United States v. Williams, 152 F.3d 294, 299 (4th Cir. 1998). Accord, Hamling v. United States, 418 U.S. 87, 117 (1974). Ordinarily, an indictment that tracks the statutory language is sufficient, as long as it is accompanied by a statement of facts and circumstances that will inform the accused of the charges against him. Hamling, at 117-118.
II. Motion to Dismiss Count Eleven [DE #208]
Defendant moves this court to dismiss Count Eleven as insufficient as a matter of law because it relies on defendant filing a document with the IRS "on or about May 14, 2010, " when no such filing is alleged in the Indictment and when the court can take judicial notice of the fact that no such filing occurred on that date. Defendant argues this is a fatal flaw because although Count Eleven indicates defendant's 2009 return was filed "on or about May 14, 2010, " the introduction to the Indictment refers to other filing dates-"on or about October 14, 2010" (¶ 129) and "on or about October 7, 2011" (¶ 181).
The government acknowledges that the return filing date in Count Eleven is a scrivener's error, the result of a simple typographical mistake made during the draft process. "Where a particular date is not a substantive element" of the offense, "strict chronological specificity or accuracy is not required." United States v. Kimberlin, 18 F.3d 1156, 1159 (4th Cir. 1994) (citations omitted). The exact filing date is not an essential element of 26 U.S.C. § 7206(1). Here, the Indictment alleges that the return was filed before the expiration of the statute of limitations and the date is alleged as "on or about, " deeming the defendant to be on notice that the charge is not limited to a specific date. The sufficiency of Count Eleven is not undermined by this scrivener's error. The allegations of Count Eleven are sufficient to apprise the defendant of the nature of the charge against ...