USA v. Haynes et al

Filing 250

Report and Recommendation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,

)
4:11-cr-00010-RRB-SAO
)
Plaintiff,
)
)
REPORT AND
vs.
)
RECOMMENDATION
)
REGARDING MOTION TO
)
DISMISS COUNTS 1, 2, 3, 5 AND
WILLIE WILSON,
)
6
)
Defendant.
)
(Docket No. 188)
)
_________________________________________ )___________________________________

INTRODUCTION
Willie Wilson filed a motion to dismiss Counts 1, 2, 3, 5 and 6 of the indictment, Docket
no. 188, due to insufficiency of evidence and an unduly vague indictment. Because the Federal
Rules of Criminal Procedure do not permit a court to dismiss an otherwise valid indictment for
insufficiency of evidence, I am recommending DENIAL of Wilson’s motion to dismiss the
charges against him.
LEGAL STANDARDS
Motion to Dismiss for Insufficiency of Evidence
A defendant may not challenge an otherwise adequate indictment solely for insufficiency
of evidence.1 Instead, a court should, for the purposes of a motion to dismiss, presume the truth
of the allegations in the indictment.2 A motion to dismiss should not consider evidence not on

1

United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996) (citing United States v. Mann, 517 F.2d 259, 267 (5th
Cir.), cert. denied, 424 U.S. 1087 (1976)).
2
United States v. Buckley, 689 F.2d 893, 897 (9th Cir. 1982); Boyce Motor Lines v. United States, 342 U.S. 337,
343, fn. 15 (1952).

the face of the indictment.3 Furthermore, dismissal of an indictment is a “drastic step” which is
generally disfavored as a remedy.4
Motion to Dismiss for Vagueness of the Indictment
Indictments must “be a plain, concise, and definite written statement of the essential facts
of the offense charged...”5 An indictment that sets forth the offense in the language of the statute
itself and contains the necessary factual predicates is sufficient.6 An indictment will withstand a
motion to dismiss if it is sufficient (1) to enable the defendant to prepare his defense; (2) to
ensure him that he is being prosecuted on the basis of the facts presented to the grand jury; (3) to
enable him to plead double jeopardy; and (4) to inform the court of the alleged facts so that it can
determine the sufficiency of the charge.7

FACTS
Wilson was charged, along with several co-conspirators, under a seven-count indictment
for a variety of federal offenses, including narcotics offenses, retaliating against a witness, and
attempted murder. The witness, a confidential informant, was allegedly assaulted by Wilson.
Wilson concedes in his brief that video given to the defense as part of discovery shows Wilson
striking the informant. Wilson filed a motion requesting that the Court dismiss Counts 1, 2, 3, 4
and 6 of the indictment, as well as for a bill of particulars (Docket no. 219) and two motions to

3

United States v. Jensen, 93 F.3d 667, 669 (citing United States v. Marra, 481 F.2d 1196, 1199-1200 (6th Cir.), cert.
denied, 414 U.S. 1004 (1973).
4
United States v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir. 1985).
5
Fed. R. Crim. Pro. 7(c)(1).
6
United States v. Johnson, 804 F.2d 1078, 1084 (9th Cir. 1986); Hamling v. United States, 418 U.S. 87, 117 (1974).
7
United States v. Pheaster, 544 F.2d 353, 360 (9th Cir. 1976); Russell v. United States, 369 U.S. 749, 763, 768 n.15,
771 (1962).

sever various counts (Docket nos. 220 and 221).8 This Report and Recommendation will only
consider Wilson’s motion to dismiss at Docket no. 188.

CONCLUSIONS OF LAW
In this case, Wilson moves to dismiss Counts 1, 2, 3, 5, and 6 due to insufficiency of
evidence. As has been made clear by the Ninth Circuit, “[a] motion to dismiss the indictment
cannot be used as a device for a summary trial of the evidence.... The Court should not consider
evidence not appearing on the face of the indictment.”9 A defendant charged with a federal
offense is not entitled to a preliminary hearing or examination if the Grand Jury returned an
indictment against him.10 Because much of Wilson’s brief is focused on his allegations that the
charges against him are not supported by sufficient evidence to support a conviction, these
arguments, while proper for trial, are premature for the current stage of the litigation.
Wilson’s brief in support of his motion to dismiss also alleges that the indictment was
insufficiently detailed to permit Wilson to prepare his defense. However, in the absence of a
more concrete showing, the fact that the indictment tracks the language of the statute ensures that
it is specific enough to survive Wilson’s motion to dismiss. The indictment against Wilson
contains the necessary recitation of the federal statute along with the necessary factual
predicates. Wilson alleges no specific prejudice that he has or will suffer as a result of the
defects in the indictment. For instance, Wilson fails to allege any specific details regarding his
inability to prepare his defense, his inability to ensure he is being prosecuted based on the facts

8

Defendant filed one motion at Docket no. 188 seeking dismissal of Counts 1, 2, 3, 4 and 6; requesting the court
order a bill of particulars; severance of the counts. Subsequently, the clerk’s office divided the motion at docket no.
188 into four docket nos. 188, 219, 220, and 221.
9
Jensen, 93 F.3d at 669.
10
Bayless v. United States, 381 F.2d 67, 71 (9th Cir. 1967); Austin v. United States, 408 F,2d 808, 810 (9th Cir.
1969).

before the grand jury, his inability to plead double jeopardy, or his inability to determine the
sufficiency of the indictment.11 As such, Wilson has not made the necessary showing in order to
warrant a dismissal of the indictment against him.

CONCLUSION
Because a pre-trial motion to dismiss is not the proper vehicle to test the sufficiency of
the evidence against Wilson and because the indictment contains sufficient details, this motion to
dismiss is DENIED.
IT IS SO RECOMMENDED.
DATED this 13th day of September, 2011 at Fairbanks, Alaska.
s/SCOTT A. ORAVEC
SCOTT A. ORAVEC
United States Magistrate Judge
Pursuant to Local Magistrate Rule 6(a), each party seeking to object to this proposed
finding and recommendation shall file written objections with the Clerk of Court no later than
NOON on Friday, September 16, 2011. The failure to object to a magistrate judge's findings of
fact may be treated as a procedural default and waiver of the right to contest those findings on
appeal.12 The Ninth Circuit concludes that a district court is not required to consider evidence
introduced for the first time in a party's objection to a magistrate judge's recommendation.13
Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue
positions presented in motion papers. Rather, objections and responses shall specifically
designate the findings or recommendations objected to, the basis of the objection, and the points

11

See Pheaster, 544 F.2d at 360.
McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981).
13
United States v. Howell, 231 F.3d 615 (9th Cir. 2000).
12

and authorities in support. Response(s) to the objections shall be filed on or before NOON on
September 19, 2011. The parties shall otherwise comply with provisions of Local Magistrate
Rule 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant
to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment.14

14

See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).