The opinion of the court was delivered by: Parsons, District Judge.
MEMORANDUM OPINION AND ORDER
Defendant, Jerome S. Garland, moves this Court to dismiss a May
1970 indictment for violations of 18 U.S.C. § 1341 and 1343
essentially on the grounds that the indictment is: (1)
non-informative; (2) vague and insufficient in detail and
definition; (3) misleading; and (4) deficient in vital factual
allegations. In addition, defendant asserts two defenses: (1)
Statute of Limitations and (2) unconscionable delay in
The allegations set out in Count XII are identical to all the
allegations set out in the § 1341 counts: the only difference
being that Count XII charges the defendant with the use of wire
and radio communication in the execution of his scheme to
Reason and common sense must accompany the reading of an
indictment. A number of decisions have found in substance that an
indictment will stand if it identifies adequately each piece of
mail matter, charges sufficiently an offense in each count,
contains all the elements of the offense, apprises the defendant
of the nature of the charge, and enables him to plead a judgment
on it as a bar to further prosecution for the same offense. See
United States v. Cobb, 397 F.2d 416 (7th Cir.), cert. den.
393 U.S. 924, 89 S.Ct. 255, 21 L.Ed.2d 260 (1968); United States v.
Kahn, 381 F.2d 824 (7th Cir.), cert. den. 389 U.S. 1015, 88 S.Ct.
591, 19 L.Ed. 661 (1967); Collins v. Markley, 346 F.2d 230 (7th
Cir.), cert. den. 382 U.S. 946, 86 S.Ct. 408, 15 L.Ed.2d 355
The essential elements of a mail fraud offense under
18 U.S.C. § 1341 are formation of a scheme with intent to defraud and use
of the United States mails in furtherance of the scheme. United
States v. Johnson, 298 F. Supp. 58 (N.D.Ill. 1969).
Because the gist of the offense is not the scheme to defraud,
but the unlawful use of the mails in the case of § 1341 and
interstate wire communications in the case of § 1343, the scheme
itself need not be set out in the indictment with precision and
exactitude. United States v. Minnec, 104 F.2d 575 (7th Cir.),
cert. den. 308 U.S. 577, 60 S. Ct. 94, 84 L.Ed. 484 (1939). Of
course, the formation of the scheme to defraud is essential, but
it need only be set forth with such particularity as will inform
the defendant of what is intended and will acquaint him with what
he will be required to meet at trial. United States v. Minnec,
If all the aforementioned factors are present, the indictment
will stand notwithstanding that it could have been made more
definite or certain. Hagner v. United States, 285 U.S. 427, 52
S.Ct. 417, 76 L.Ed. 861 (1932); Adams v. United States,
375 F.2d 635 (10th Cir.), cert. den. 389 U.S. 880, 88 S.Ct. 117, 19
L.Ed.2d 173 (1967). This Court finds that all the aforementioned
factors are present in the indictment.
Defendant, focusing the Court's attention on Count XII of the
indictment, which alleges that the defendant
in executing the scheme to defraud "did knowingly and wilfully
transmit and cause to be transmitted, in interstate commerce, by
means of wire and radio communication, certain signs, signals and
sounds, to wit, a long distance telephone call from Chicago,
Illinois to Scottsdale, Arizona," contends that this terminology
is an inadequate description of the call and leaves him totally
uninformed as to the nature and cause of the charge.
The Court finds this contention without merit. Certainly it was
not necessary that the indictment set out, in haec verba, the
telephone conversation itself. Applying the same tests of
sufficiency of indictment here as were applied to the other
counts, the Court finds that not only does Count XII follow the
terms set out in the statute, but it also sufficiently alleges
the essential elements of the offense to adequately apprise the
defendant of the nature of the charge.
The defendant raises the defense of 18 U.S.C. § 3282, which is
the Statute of Limitations for non-capital offenses. He contends
that the loans and the alleged false financial statements
involved occurred more than five years prior to the return of the
indictment. However, the limitation period runs from the mailing
of the letters, Fournier v. United States, 58 F.2d 3 (7th Cir.
1931), and each mailing in the indictment is alleged to be for
the purpose of executing the scheme. Each alleged count offense
is a letter sent in the period from June 21, 1965, to and
including February 11, 1966, and thus each mailing is well within
five years of the indictment's return on May 28, 1970. The same
holds true for the telephone call.
Defendant's contention of unconscionable delay in prosecution
is based on his allegation that "the United States had full
knowledge of the transactions alleged to be offenses for a long
period prior to five years before the date of the return of the
indictment . . ." (Defendant's Motion, P. 3). The Government is
permitted a reasonable time for investigating a case and
preparing it for prosecution. Even if the Government had had
knowledge of the scheme to defraud prior to June 21, 1965, the
initial date of the mailings, it could not have brought any
charges under the mail fraud statute because the use of the
United States' mails is the very gist of the offense. The
indictment was returned well within the applicable five-year
statute of limitations and defendant has not demonstrated to this
Court any prejudice caused by the complained of pre-indictment
delay. Pre-indictment delays within the applicable five-year
statute of limitations are not improper, absent a showing of
prejudice. United States v. Lewis, 406 F.2d 486 (7th Cir. 1969);
United States v. Jones, 403 F.2d 498 (7th Cir. 1968); United
States v. Deloney, 389 F.2d 324 (7th Cir.), cert. den.
391 U.S. 904, 88 S.Ct. 1652, 20 L.Ed.2d 417 (1968).
This Court, after studying the indictment and reviewing the
applicable law, finds that the indictment, in meeting the
sufficiency of indictment tests, stands as a citadel against
defendant's assaults. None of the alleged grounds for dismissal
ever reaches the momentum necessary to bring it tumbling down.
Accordingly, it hereby is adjudged, ordered and decreed that
the defendant's motion to dismiss ...