UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Rehearing Denied May 5, 1976.
Appeals from the United States District Court for the District of Columbia (D.C. Criminal 74-744).
MacKinnon and Wilkey, Circuit Judges, and Merhige,* United States District Judge for the Eastern District of Virginia.
Guilty verdicts were returned on eleven counts of the instant indictment. Count 1 charges a scheme to defraud by wire *fn1 and the remaining ten counts charge appellants with obtaining something of value by false pretenses with intent to defraud in violation of D.C. Code 22-1301(a) (1973). *fn2
Count 1, the federal wire fraud count, is a proper charge in every particular, in that it completely charges the factual basis for the alleged crime. However, none of the remaining counts allege any of the factual particulars of the false representations which defrauded the victim. The name of the victim, the date of the false representation, the amount involved and the date the sum was paid are all alleged, but as for the false representations which induced the victims to part with their money, which are the very core of the offense, counts 4-11 of the indictment are content with alleging that the defendants "made and caused to be made the following representations *fn3 to the following customers, knowing said representations *fn4 were untrue . . . ." and then fails to set forth any of the "representations" that allegedly "were untrue." (Emphasis added.)5 Counts 2 and 3 likewise fail to specify the false representations.
The Government contends that the indictment is in the words of the statute and that the particulars could have been obtained through a timely bill of particulars. See FED. R. CRIM. P. 7(f). Of course they could, but absent any allegation whatsoever in the indictment as to what the false pretenses were, the United States Attorney would have a free hand to insert the vital part of the indictment without reference to the grand jury. The law does not vest him with such authority. Since the indictment as returned by the grand jury fails to charge an offense under the false pretense statute, such counts should have been dismissed when the objection was timely raised at trial. FED. R. CRIM. P. 12(b)(2). A bill of particulars will not cure a fatally defective indictment. Russell v. United States, 369 U.S. 749, 770-71, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962).
Ordinarily, it is proper for an indictment to be drawn in the language of the statute, United States v. Thomas, 144 U.S.App.D.C. 44, 444 F.2d 919 (1971), but following the generic wording of a statute is not necessarily sufficient. United States v. Staiti, 397 F. Supp. 264 (D. Mass. 1975). The United States Supreme Court has stated:
Where guilt depends so crucially upon . . . a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.
"It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, 'includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species, - it must descend to particulars.'" [Emphasis added.] United States v. Cruikshank, 92 U.S. 542, 558, 23 L. Ed. 588. An indictment not framed to apprise the defendant "with reasonable certainty, of the nature of the accusation against him . . . is defective, although it may follow the language of the statute." United States v. Simmons, 96 U.S. 360, 362, 24 L. Ed. 819. "In an indictment upon a statute, it is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished; . . . " United States v. Carll, 105 U.S. 611, 612, 26 L. Ed. 1135. "Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged." United States v. Hess, 124 U.S. 483, 487, 31 L. Ed. 516, 8 S. Ct. 571. See also Pettibone v. United States, 148 U.S. 197, 202-204, 37 L. Ed. 419, 13 S. Ct. 542; Blitz v. United States, 153 U.S. 308, 315, 38 L. Ed. 725, 14 S. Ct. 924; Keck v. United States, 172 U.S. 434, 437, 43 L. Ed. 505, 19 S. Ct. 254; Morissette v. United States, 342 U.S. 246, 270, 96 L. Ed. 288, 72 S. Ct. 240, Cf. United States v. Petrillo, 332 U.S. 1, 10-11, 91 L. Ed. 1877, 67 S. Ct. 1538. That these basic principles of fundamental fairness retain their full vitality under modern concepts of pleading, and specifically under Rule 7(c) of the Federal Rules of Criminal Procedure, is illustrated by many recent federal decisions.
Russell v. United States, supra at 764-66 (footnotes omitted). For example, in United States v. Curtis, 506 F.2d 985 (10th Cir. 1974), it was held that pleading the statutory language in a mail fraud case without "any fair indication of the scheme or artifice relied upon, or the false pretenses . . . forming a part of it" was insufficient. 506 F.2d at 992. See also United States v. Thomas, supra (indictment following the words of the District burglary statute but failing to identify with particularity the offense defendant allegedly intended to commit when he entered the dwelling is insufficient); United States v. Staiti, supra (indictment following the language of the federal statute prohibiting the interstate transport of stolen goods but failing to identify the particular goods transported is insufficient).6
It would have been relatively simple for the Government to incorporate the applicable false pretense allegations of count 1 by reference in the remaining counts. Failing this, the judgments of conviction on the ten false pretense counts charged under D.C. Code § 22-1301(a) are vacated and set aside and the case is remanded for resentencing on count 1, the wire fraud conviction. By remanding for resentencing we do not mean to imply any ...