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.