In a much welcomed opinion, the United States Court of Appeals for the Eleventh Circuit, which hears all federal criminal appeals from Georgia, Alabama and Florida, reversed an individual’s conviction last week due to the failure of the indictment to allege all the essential elements of the offense. The case at issue involved alleged violations of the federal statute that prohibits the “structuring” of financial transactions to evade currency reporting requirements. To me, however, the more interesting and significant part of the opinion involved the manner in which the court applied long standing (but often neglected) Fifth Amendment case law.
As federal criminal lawyers know, in federal court, an indictment must contain an allegation on all the elements of the offense. This same rule does not apply in state court because the Indictment Clause is one of the few provisions within the Bill of Rights that has not been incorporated into the Fourteenth Amendment. The “all elements” requirement emanates from the Indictment and Double Jeopardy Clauses of the Fifth Amendment, as well as the Notice Clause of the Sixth Amendment. With respect to the Indictment Clause, courts have recognized that the “all elements” requirement ensures that the members of the grand jury that returned the indictment found probable cause on each of the elements of the crime. Federal criminal lawyers and the individuals they represent have no right to be present inside the federal grand jury session considering an indictment, and under current law, federal prosecutors are not even required to present exculpatory evidence to the grand jury or provide the grand jury with legal instructions. For this and other reasons, the “all elements” requirement and the right to a grand jury indictment is one of the few rights that citizens possess in connection with the federal grand jury process.
As part of the Bill of Rights, the Indictment Clause of the Fifth Amendment was ratified in 1791. And for nearly 200 years, courts seemed to adhere to the “all elements” test. For example, in 1962 in Russell v. United States, the Supreme Court recognized that an indictment must “fully, directly, and expressly, without any uncertainty or ambiguity,” set forth all the elements of the offense. This unequivocal requirement was maintained and applied by courts for sometime thereafter. In relatively recent years, however, some courts have tended to ignore this requirement.
For example, according to the United States Attorney’s Manual and Circuit case law, an indictment is sufficient as long as the allegations within the indictment “warrant an inference” that a particular element has been alleged. This “rule” appears to have initially crept into the case law in this Circuit in 1975 but it has never been adopted by the Supreme Court.
Many years ago, we argued that the “warrants an inference” standard is inconsistent with the well-established rule recognized above by the Supreme Court in 1962 and before. We made this argument because, to us, it defies logic to say that an indictment that merely “warrants an inference” that an element has been alleged somehow “fully, directly and expressly, without any uncertainty or ambiguity” alleges all elements of the crime.
In the case decided last week, there were several aspects of the opinion that I found particularly interesting. First, early on, the Court pointed out that the lawyers in the case did not raise a challenge to the sufficiency of the indictment until after a guilty verdict was returned. Although the court recognized that an indictment is judged by a different standard when it is challenged for the first time on appeal, the court examined the indictment at issue and ultimately concluded that it was so defective that it failed to charge a crime, by any reasonable construction. Thus, I was naturally pleased by the manner in which the court struck down the indictment and adhered to the case law interpreting the Indictment Clause, even though the indictment at issue was not challenged before trial.
In addition to the result, I was also especially encouraged to see the court cite the Supreme Court’s decision in Russell in partial reliance on its ultimate conclusion. Again, as noted above, Russell recognized that in order to pass muster under the Indictment Clause of the Fifth Amendment, an indictment must allege all the elements of the offense, fully, directly, and expressly, without any uncertainty or ambiguity. Interestingly, however, in addition to citing Russell, in its decision last week, the court also cited United States v. Gray. Up above, I mentioned that the “warrants an inference” standard appears to have crept into the case law in this Circuit in 1975. And since then, this standard has been perpetuated itself like a bad virus in a number of cases, including Gray. For instance, in Gray, the Eleventh Circuit concluded that the indictment at issue was not defective because although it did not “expressly” allege an essential element of the offense, taken together, the indictment’s allegations were constitutionally sufficient nonetheless.
As noted above, in our view it is logically impossible to reconcile the standard set forth by the Supreme Court in Russell with the warrants an inference standard applied in Gray and other Circuit cases. Although last week’s decision did not address the inconsistencies between these two standards head on, I was encouraged to see the court cite Russell, and recognize that a defective indictment cannot be rewritten or corrected by a court, even when the defects in the indictment are raised for the first time on appeal. I am hoping that future Circuit cases kill the “warrants an inference” standard altogether and return Circuit law to the test set forth by the Supreme Court in Russell.
Those of you who are interested in reading the full opinion from last week can find it here.