United States District Court, W.D. North Carolina, Asheville Division
MATTER is before the Court on the Defendant's
Motion to Dismiss Indictment [Doc. 16].
August 16, 2017, the Defendant was charged in a Bill of
Indictment with three counts of engaging in a sexual act with
a minor within Indian territory, in violation of 18 U.S.C.
§§ 2241(c) and 1153, and three counts of engaging
in and causing sexual contact with a minor within Indian
territory, in violation of 18 U.S.C. §§ 2244(a)(5)
and 1153. [Doc. 1]. The Defendant made an initial appearance
on August 30, 2017, at which time counsel was appointed. On
October 6, 2017, the Defendant filed a motion to continue
docket call and to extend the pretrial motions deadline [Doc.
12], which the Court granted on October 20, 2017 [Doc. 13].
The Defendant filed the present motion on October 27, 2017,
seeking dismissal of the Indictment. [Doc. 16]. In the
alternative, the Defendant requests a bill of particulars
from the Government. [Id.].
Government requested an extension of time until November 17,
2017, to respond to the Defendant's motion [Doc. 20],
which the Court granted [Doc. 21]. On November 14, 2017, the
grand jury returned a Superseding Bill of Indictment against
the Defendant. [Doc. 22]. The Government then filed its
response to the Defendant's motion to dismiss on November
17, 2017. [Doc. 24]. Accordingly, this matter is ripe for
motion, the Defendant argues that the Indictment is
insufficient as a matter of law for two reasons. First, the
Defendant argues that the charging language of the Indictment
does not track the statutory language of 18 U.S.C.
§§ 2241(c) and 2244(a)(5), which both require that
the defendant “knowingly engage” in a sexual act
or contact with a minor child. By omitting the word
“knowingly, ” the Defendant argues, the
Indictment fails to allege all of the essential elements of
the charge. [Doc. 16 at 4-5 (citing United States v.
Pupo, 841 F.2d 1235 (4th Cir. 1988)]. While it contends
that the wording of the Indictment is sufficient to withstand
the Defendant's motion [Doc. 24 at 2-3], the Government
nevertheless has sought a superseding indictment in order to
better conform the charges to the statutory language at
issue. The Superseding Bill of Indictment charges with
respect to each count that the Defendant “did knowingly
engage” in the particular sexual act or contact
alleged. [See Doc. 22] The Superseding Bill of
Indictment, therefore, renders moot the Defendant's
argument regarding the sufficiency of the charging language.
Defendant also argues that the Indictment is defective in
that the range of dates alleged is too large to fairly inform
the Defendant of the charges against him and to preclude him
from pleading double jeopardy as a defense in a future
prosecution for the same offenses. [Doc. 16 at 6]. The
Defendant moves for the dismissal of the Indictment on this
basis, or in the alternative, a bill of particulars from the
Government providing more particular detail regarding the
date, time, and location of each alleged offense.
[Id. at 6-7].
indictment is sufficient if it, first, contains the elements
of the offense charged and fairly informs a defendant of the
charge against which he must defend, and, second, enables him
to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” United States
v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002) (quoting
Hamling v. United States, 418 U.S. 87, 117 (1974)).
the Superseding Bill of Indictment alleges that the Defendant
committed six different offenses of sexual acts/contact with
a minor child within the boundaries of the Eastern Band of
Cherokee Indians reservation within Jackson County, North
Carolina. The Indictment sufficiently identifies the location
of the offenses in order to establish jurisdiction and venue.
The Indictment also alleges that the offenses occurred in an
approximately 29-month time period, that is, “between
January 1, 2015 and June 1, 2017.” This, too, is
sufficient. “[W]here an indictment alleges a crime
occurred on or about a certain date, proof need only
establish beyond a reasonable doubt that the crime occurred
on a date reasonably near that alleged.” United
States v. Ward, 676 F.2d 94, 96 (4th Cir. 1982). Courts
have long recognized that the inclusion of a precise date of
offense is not required when time is not a material element
of the criminal offense and no prejudice is shown. See,
e.g., United States v. Brewer, 1 F.3d 1430,
1437 (4th Cir. 1993) (“Proof that a crime occurred
reasonably near the date charged in the indictment is
sufficient unless time is a material element of the offense
or the actual date of the offense implicates the statute of
limitations or follows the indictment.”); United
States v. Nunez, 668 F.2d 10, 12 (1st Cir. 1981)
(holding that generality in allegation of date is allowed
where exact time of crime's commission is not essential
under criminal statute and no prejudice is shown). Courts
also have repeatedly held that, in the context of child abuse
and sexual assault cases, even fairly large windows of time
do not conflict with constitutional notice requirements.
See Hunter v. New Mexico, 916 F.2d 595, 600 (10th
Cir. 1990) (finding that an indictment alleging sexual abuse
over a nearly four-year period was not deficient); United
States v. Youngman, 481 F.3d 1015, 1019 (8th Cir. 2007)
(finding indictments alleging sexual abuse and assault over a
29-month time frame sufficient). This is often because
“the victims are children of tender years who are
simply unable to remember exact dates and times, particularly
where the crimes involve a repeated course of conduct over an
extended period of time.” Valentine v. Konteh,
395 F.3d 626, 632 (6th Cir. 2005) (quoting State v.
Mundy, 99 Ohio App.3d 275, 296, 650 N.E.2d 174 (1994)).
Thus, the 29-month period alleged in the Indictment
sufficiently informs the Defendant of the charges against
him. Further, each count alleges a different, factually
distinguishable offense of a sexual act or sexual contact
with a minor child. Thus, the Indictment is adequate to
protect the Defendant from double jeopardy in the future.
See Valentine, 395 F.3d at 636 (holding that
multiple, identically worded counts of sexual offenses did
not sufficiently protect against double jeopardy, but noting
that linking charges to multiple differentiated incidents
would offer sufficient protections). For all of these
reasons, the Defendant's motion to dismiss is denied.
alternative, the Defendant requests a bill of particulars
from the Government providing “in more particular
detail the date, time, and location that the government will
allege each offense in each count of the indictment took
place so that Mr. Armachain may know where and when the
offense(s) allegedly occurred.” [Doc. 16 at 7].
to Federal Rule of Criminal Procedure 7(f), the Court may,
within its discretion, direct the Government to file a bill
of particulars. Fed. R. Crim. P. 7(f); United States v.
Anderson, 481 F.2d 685, 690 (4th Cir. 1973). The purpose
of a bill of particulars is “to enable a defendant to
obtain sufficient information on the nature of the charge
against him so that he may prepare for trial, minimize the
danger of surprise at trial, and enable him to plead his
acquittal or conviction in bar of another prosecution for the
same offense.” United States v. Schembari, 484
F.2d 931, 934-35 (4th Cir. 1973). The underlying objectives
of a motion for a bill of particulars are fully satisfied by
the Government's voluntary disclosure of its discovery
file. Id. at 935; see also United States v.
Esquivel, 755 F.Supp. 434, 436 (D.D.C. 1990) (noting
that of “the indictment adequately details the charges,
or the information requested is otherwise available, then no
bill of particulars is required”) (citation omitted).
full discovery has been produced to the Defendant pursuant to
the Government's open file policy, and thus any
information that the Government possesses regarding the
specific dates, times, and precise locations of the alleged
offenses is available to the Defendant. For these reasons,
the Court denies the Defendant's alternative request for
a bill of particulars.
IS, THEREFORE, ORDERED that the Defendant's
Motion to Dismiss Indictment [Doc. 16], including the
Defendant's alternative ...